Bombay High Court
Shri Dinesh Mahadeorao Thakre vs The Commissioner, Amravati Division, ... on 14 February, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.358 of 2018
Dinesh Mahadeorao Thakre,
Aged 59 years, Occ.-Retired,
R/o.-Kirti Nagar, Gorakshan Road, Akola, District Akola. .... Petitioner
(Ori. Applicant)
-Versus-
1] The Commissioner, Amravati Division, Amravati.
2] Zilla Parishad, Akola,
through its Chief Executive Officer. .... Respondents.
(Ori. Respondents)
Mr. A.S. Kilor, Counsel for petitioner.
Mr. Mahesh Bute, Counsel for resp. no.2.
Mr. Bissa, AGP for resp. no.1.
Coram : Manish Pitale, J.
Dated : 14th February, 2019.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing for the parties.
2. By this Writ Petition, the petitioner has challenged order dated 27-02-2017, passed by respondent no.1-Commissioner, Amravati Division, whereby the said respondent has only partly allowed the appeal of the petitioner herein and remanded the matter back to the Chief Executive Officer, Zilla Parishad i.e respondent no.2, for passing fresh orders after ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 ::: 2 wp 358.18.odt conducting a fresh enquiry against the petitioner. While doing so, respondent no.1-Commissioner kept order dated 30-05-2016, passed by respondent no.2, in abeyance. By the said order of respondent no.2, penalty had been imposed on the petitioner of permanently withholding of two increments and recovery of amount of Rs.5.56 Lakhs for alleged poor quality of construction for which the petitioner was said to have been responsible as a Junior Engineer.
3. Since the impugned order in its observations states the facts of the present case, the same are reproduced below :-
" OBSERVATIONS
1. The appellant is working as Junior Engineer in the establishment of Zilla Prishad, Akola since 05.11.1980. The appellant was posted as a Junior Engineer, Sub Division Public Works, Zilla Parishad at Murtizapur since 05.11.1980 tao 02.08.2000.
2. While construction works of P.H.C. Parad in Murtizapur, Tahsil was undertaken the appellant was officer-in-charge of Sub Division, Murtizapur as Junior Engineer. It is needless to mention that, the appellant is not alone responsible for granting technical sanction, administrative approval, plan of construction, day to day working of construction Agency whom undertaken construction works of P.H.C. building at Parad.::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 :::
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3. The respondent acted on the basis of complaints receive to Zilla Parishad pertaining to quality of construction. The respondent established truth finding committee in the name of "Satyashodhan Samitti", the Committee has enquired the matter and submitted the report. On the basis of Committee report respondent administration issued show cause notice to the appellant on 21.11.1992. The Executive Engineer, Zilla Parishad, Akola has submitted his preliminary observations report on 05.08.2000 before respondent administration for further action.
4. Since 05.08.2000 no action has been taken in accordance with preliminary observation report submitted by Executive Engineer, Zilla Parishad, Akola. The charge sheet has been issued to the appellant on 28.01.2014. This fact shows that, the respondent administration initiated Departmental Enquiry proceeding against appellant after 14 years from the date of preliminary observation report.
5. On perusal of documents it seems that, the appellant was only held liable for all charges in pursuance to irregularities committed in construction of Substandard P.H.C. Building at Parad. What was role of Executive Engineer and others?::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 :::
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6. The building was in used since 1992 to 2010.
The building has been demolished by the respondent authority in pursuance to resolution passed by Zilla Parishad, Akola. This fact admitted by respondent in their reply specifically. In such case how only one person can be responsible? Why his seniors had been left out? Why they were silent if the work was of inferior quality? What was their role? It needs further enquiry and investigation."
4. The aforesaid observations clearly show that the petitioner was sought to be proceeded against by issuance of show cause notice on 21-02-2014, for alleged poor construction of a building which was undertaken some time during the period 1987-1988. In fact, in the year 1992, a report was submitted by the Chief Executive Officer to respondent no.2 in respect of allegations regarding poor quality of construction of the said building, wherein the petitioner had been issued show cause notice as far back as on 16-11-1992. Even in the said report of the year 1992, there were no specific findings rendered against the petitioner, because it was observed that by the very nature of the implementation of the project of construction of the said building, it had become difficult to narrow down on the responsibility of individuals as regards the alleged poor construction of the said building. It has come on record that at the relevant period the petitioner was only a Junior Engineer and he had acted on the directions of his seniors. By the time a renewed enquiry was sought to be undertaken in the year 2014, most of the Engineers senior to the petitioner ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 ::: 5 wp 358.18.odt had already superannuated. In the report of the year 1992 it was only observed, that if at all the petitioner was to be found responsible no major penalty could be imposed against him. It is also an admitted position that between the years 1992 and 2014 the respondents chose not to take any action against the petitioner.
5. It was suddenly on 21-02-2014, that the aforesaid show cause notice was issued to the petitioner. It is relevant that in the interregnum the building in question itself stood demolished in the year 2010. A perusal of the charges levelled against the petitioner and the conclusions in the enquiry report pursuant to show cause notice dated 21-02-2014, shows that only charge nos. 5 and 6 were found to have been proved against the petitioner. But, as noted by respondent no.1 in the impugned order itself, such charges and allegations pertained to the period 1987-1988 when the said building was constructed. The charges were obviously stale and the respondents had chosen not to proceed against the petitioner despite the report of the year 1992. It was obviously too late for the respondent to have issued show cause notice on 21-02-2014 to the petitioner and to have initiated fresh inquiry against him. It is also recorded in the impugned order passed by respondent no.1, that there is nothing on record to show as to what action was sought to be taken against all the engineers who were senior to the petitioner at the relevant time when the building in question was constructed. The facts that have come on record and have been noted by respondent no.1 in the impugned order make it clear, that the very initiation of a fresh enquiry in the year 2014, for alleged misconduct of the petitioner pertaining to a period 1987-1988, was unsustainable, particularly in the absence of any charges against all the other engineers ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 ::: 6 wp 358.18.odt who were admittedly senior to the petitioner when the building in question was constructed. The charges were obviously stale and could not have been relied upon by the respondents to proceed against the petitioner and to issue the order dated 30-05-2016, imposing the aforesaid penalty against him.
6. Despite noting all these facts in the impugned order passed by respondent no.1, surprisingly the said respondent has merely remanded the matter for a fresh enquiry by keeping the order dated 30-05-2016, passed by respondent no.2 against the petitioner in abeyance. This Court fails to understand as to what purpose such a fresh inquiry would now serve, particularly when the engineers who were senior to the petitioner have superannuated and the only material on which respondent no.2 relied while imposing the order of penalty dated 30-05-2016, were statements made by certain officials based on memory and on photographs of the said building, which admittedly stood demolished in the year 2010 itself. The respondent no.1 clearly failed to realize that the petitioner was entitled to entire relief claimed by him and that an order of remand for fresh enquiry was obviously not sustainable in the facts and circumstances of the present case.
7. In the light of the above, this Court finds not only that the impugned order passed by respondent no.1 dated 27-02-2017 is unsustainable, but, the order dated 30-05-2016 passed by respondent no.2, imposing penalty on the petitioner for stale charges, is also wholly unsustainable. Accordingly, the present Writ Petition is allowed. The impugned orders passed by respondent no.1 and respondent no.2 are ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 ::: 7 wp 358.18.odt quashed and set aside.
8. Rule is made absolute in above terms. No order as to costs.
JUDGE Deshmukh ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 12:12:35 :::