Tripura High Court
Wp(C) No.266/2 vs The State Of Tripura Represented By The ... on 25 April, 2017
Author: Chief Justice
Bench: Chief Justice
THE HIGH COURT OF TRIPURA
AGARTALA
1. WP(C) No.266/2011,
2. WP(C) No.488/2011.
In WP(C) No.266/2011.
Sri Arindam Ghosh, Asstt. Engineer,
Drinking Water & Sanitation (DWS)
Under Public Works Department posted at office of the
Executive Engineer, DWS Division Agartala - I, Agartala,
West Tripura.
....... Petitioner.
-: Vrs. :-
1. The State of Tripura represented by the Principal
Secretary, Public Works Department (PWD), Government
of Tripura, Civil Secretariat, Capital Complex, Agartala,
P.O. Kunjaban.
2. Principal Secretary, General Administration (AR)
Department Government of Tripura, Civil Secretariat,
Secretariat Complex, Agartala, P.O. Kunjaban.
3. Mr. Santanu, I.A.S (Enquiring Authority), Commissioner
of Departmental Inquiries, Government of Tripura,
Agartala, P.O- Kunjaban.
4. The Chief Engineer, PWD(DWS), Government of Tripura,
Agartala, P.O - Kunjaban.
....... Respondents.
In WP(C) No.488/2011.
Sri Sudip Sinha, S/o Late Gunumani Sinha, Vill & P.O - Barjala, P.S. West Agartala, District - Tripura West ....... Petitioner.
-: Vrs. :-
1. The State of Tripura represented by the Principle Secretary, Public Works Department, Govt. of Tripura, Civil Secretariat, Capital Complex, P.O - Kunjaban, Agartala.
2. Principal Secretary, General Administration (AR) Department, Govt of Tripura, Civil Secretariat Complex, P.O - Kunjaban, Agartala.
3. Chief Engineer, Public Works Department(DWS) Govt. of Tripura, P.O - Kunjaban, Agartala, West Tripura.
....... Respondents. WP(C) Nos.266 & 488/2011 Page 1 of 11 BEFORE HON'BLE THE CHIEF JUSTICE Counsel for the petitioners : Mr. S M Chakraborty, Sr. Advocate, Mr. D K Biswas, Advocate, Ms. B Chakraborty, Advocate. Counsel for the respondents : Mr. S Chakraborty, Addl.G.A. Date of hearing : 27-3-2017. Date of Judgment & Order : 25-4-2017. JUDGMENT & ORDER WP(C) No.266/2011
In this writ petition, the petitioner is questioning the legality of the departmental enquiry against him and the resultant penalty imposed upon him.
2. The facts giving rise to the writ petition, as pleaded by the petitioner, may be briefly noticed. While the petitioner was posted in the Office of the Superintending Engineer, Ambassa as T.A. to Superintending Engineer, a departmental enquiry ("DE" for short) was held against him and two other Junior Engineers, namely, Shri Sudip Sinha and Shri Siddharta Sengupta by the Office memorandum dated 29-6-2006 on the common allegation of negligence in supervising the work of constructing an overhead water tank at Kulai in the year 2002. The DE was based on the report dated 12-5-2005 of the Expert Committee consisting of four members, namely, Er. RK Mazumdar (Chairman), (2) Er. BK Deb Barma (Member Secretary), (3) Er. T.K. Debnath (Member) and (4) Er. MK Bhowmik (Member). According to the petitioner, the enquiry was conducted behind his back and without issuing show cause notice to him nor was the report placed before him or his colleagues. He, however, managed to obtain the copy subsequently from a different source unofficially. It is contended by the petitioner that the charge sheet would show that the prosecution cited some documents and eight witnesses to substantiate the charges against him, but all cited documents could not produced or properly exhibited thereby stripping off of their evidentiary value. The Expert Committee spoke of the videograph taken at the time of the investigation made by them, but the same was never exhibited nor was WP(C) Nos.266 & 488/2011 Page 2 of 11 anyone producing the video subjected to cross-examination. According to the petitioner, vital witnesses for the prosecution such as BK Deb Barma and Shri R.K. Mazumdar, Members of the said Committee avoided the witness box for cross-examination in spite of repeated summons. Notwithstanding such deficiencies in the case of the Department as also lack of evidence, the Enquiry Committee found the petitioner and his colleagues guilty of the charge. The disciplinary authority without proper application of mind accepted the findings of the Enquiry Committee and imposed the penalty of reduction of his pay to three stages below with cumulative effect and recovery of `2,85,115/- which is alleged to be the loss suffered by the Department. The petitioner thereafter preferred a statutory appeal, but the appellate authority disposed of the appeal mechanically by the order dated 24-5-2011 without applying its mind to the grounds stated in the memo of appeal. Aggrieved by this, this writ petition has been filed for appropriate reliefs.
3. The State-respondents resisted the writ petition and filed their affidavit-in-opposition. It is the case of the answering respondents that on receipt of a complaint from PWD, proceedings were initiated against the petitioner and two other Junior Engineers, namely, Shri Sudip Sinha [the petitioner in WP(C) No.488/11] vide the order dated 29-6-2006 and Memo dated 27-6-2006 for failure to supervise the construction of 40,000 galons capacity of reinforced cement concrete (RCC) overhead reservoir of 15.30 metres staging height taken up under the scheme of Accelerated Rural Water Supply Scheme at Kulai, Ambassa. A Technical Expert Committee comprising of four members was constituted by the PWD for investigating the causes of defects of the said overhead water tank. The report was accordingly submitted to the PWD. There is no provision to show cause for holding preliminary enquiry for negligence or failure to supervise entrusted duty. The disciplinary proceeding was conducted as per the available records, whereas the degree of proof required in a DP is "preponderance of probability" and not proof beyond reasonable doubt. Videography CD was prepared at the time of visit by the Technical Committee and was supplied to the petitioner. All important documents were handed over to the petitioner during the enquiry. They deny WP(C) Nos.266 & 488/2011 Page 3 of 11 that no opportunity to cross-examine the prosecution witnesses, namely, RK Mazumder and Bishu Kumar Debbarma was given to the petitioner. It is pointed out by the answering respondents that the prosecution could establish in the enquiry that concrete used in the wall of the tank i.e. cylindrical wall portion plus the top dome was supervised by the petitioner and other Junior Engineers, was inadequately compacted resulting in air voids in the mass of concrete while the stone chips used in the concrete were not of proper grading. Those defects resulted in water percolation from the overhead tank and rendered the structure completely useless. As per the Measurement Book, the cost of the work came to `2,85,155/-. During the enquiry, the charge was proved after considering all aspects and the views of the Tripura Public Service Commission whereupon the disciplinary authority imposed the impugned punishment. The actual financial loss amounting to `2,85,155/- was directed to be recovered from the petitioner and the other petitioner (Sudip Sinha) vide Memo dated 8-12-2010. The appeal preferred by the petitioner was duly considered by the appellate authority, who after careful consideration of all the issues raised in the appeal found no merit in his appeal and rejected the same vide the order dated 24-5-2011. These are the sum and substance of the case of the answering respondents. No rejoinder affidavit is filed by the petitioner to rebut the case of the State- respondents.
4. Assailing the impugned orders, Mr. S.M. Chakraborty, the learned senior counsel for the petitioner, submits that the Enquiry Officer refused to take the evidence of two important witnesses of the Department, RK Mazumder and Bishu Kumar Debbarma to prove the case of the Department, which sufficiently proves the mischievous attempt to forcibly arrive at a finding of guilt against the petitioner. The Enquiry Officer has also illegally relied on the video purportedly recorded by the Committee, the genuineness whereof is untested on cross-examination and, as such, highly doubtful. Contending that the finding of the Enquiry Officer upon which the petitioner was punished is perverse, the learned senior counsel argues that the impugned orders are not sustainable in law. Per contra, Mr. S. Chakraborty, WP(C) Nos.266 & 488/2011 Page 4 of 11 the learned counsel for the State, supports the impugned orders and submits that they do not warrant the interference of this Court.
5. The charge against the petitioner is that he along with Sudip Sinha (the petitioner in the connected writ petition) while functioning as the Sub- Divisional Officer, PHE Sub-Division No.XVI, Ambassa and Junor Engineer attached to him respectively and one other Junior Engineer attached to his office during the period between 26-9-2000 and 6-7-2002 failed to supervise the construction of 40,000 gallon capacity of reinforced cement concrete (RCC) overhead reservoir of 15.30 Mtr. staging height taken up under the scheme of "Accelerated Rural Water Supply Scheme (ARWS) at Kulai, Ambassa vide work order dated 30-2-1998 issued by the Executive Engineer, PHE Division No. II, Kumarghat. As a result, the construction of the reservoir was found defective after completion and could not be made operational; it was completely useless. The concrete used for the overhead tank was inadequately compacted resulting in air void in the mass of concrete. Reinforcement cover of the cylindrical wall of the tank was inadequate and already rusted. Stone chips used in the concrete were not of proper grading. These defects resulted in water percolation from the overhead tank and rendered the structure completely useless. For negligence of them (sic), the State Government had to incur financial loss to the tune of `15,15,243/- paid to the contractor in six running bills.
6. The Enquiry Officer held that the concrete used in the wall of the tank was inadequately compacted resulting in air voids in the mass of concrete and the stone chips used in the concrete were not of proper grading as observed by the Technical Expert Committee. The defence could not counter this satisfactorily. The construction of that portion of the overhead tank, i.e. cylindrical wall portion plus the top dome was supervised by the petitioner, who was the Assistant Engineer and the other petitioner, who was the Junior Engineer attached to the Office of the petitioner. In reaching this conclusion, the Enquiry Officer relied on the evidence of Sri B.K. Debbarma (PW-4), the then Executive Engineer, PHE Division No.V, Ambassa, who deposed that the WP(C) Nos.266 & 488/2011 Page 5 of 11 water tank in question could not be made functional as there was leakage in the tank. He deposed that he informed the superintending Engineer about it vide the letter (Ext. S/3). Shri S. C. Das (PW-1), the then Superintending Engineer, Ambassa PHE Circle-II deposed that he found cracks at the bottom side of the cylindrical wall of the tank when he inspected the said tank. He also testified that he sent the concrete sample to the Chief engineer for testing which were found unspecified. It is, however, clear that no document was exhibited by the Department showing the result of laboratory test of the concrete sample sent by PW-1. The Enquiry Officer also relied on the exhibited report (Exbt. S/2) submitted by the Technical Committee through Shri R.K. Mazumder (PW-3). PW-3 deposed that the Technical Expert Committee was constituted to investigate the causes of defects on the work in question and recommend necessary remedial measure for reconstruction, replacement and rectification, etc. The Committee apparently engaged few holes in the wall of the tank in order to assess the quality of the work and found that concrete used was inadequately compacted resulting in air voids in the mass of concrete. It was also found that reinforcement cover of the cylindrical wall of the tank was not adequate and was already rusted as the chips used in the concrete were not of proper grading. P.W. 4 (Shri B.K. Debbarma) made similar comments as he was the Member Secretary of the Committee. According to the enquiry officer, as per the findings of the Committee, all these defects might have been responsible for water percolation and had rendered the structures precarious. This prompted the Committee to unanimously recommend the dismantling of the tank portion including the bottom slab (excluding staging) and its reconstruction as it was the only feasible option. The enquiry officer also took into account the evidence of the defense witnesses, particularly, DW-1 and DW-2, who deposed that the materials used in the said tank were physically and technically tested by the Executive Engineer, SR Dutta himself and two Junior Engineers, namely, Sudip Sinha, AO and Siddharta Sengupta, AO and were found to be as per specification and that the compaction was done properly, manually as well as mechanically through vibrator. This witness, however, alleged that before the visit of WP(C) Nos.266 & 488/2011 Page 6 of 11 Technical Expert Committee headed by Shri RK Mazumder, the inside portion of the tank were chiselled to bring out the inner reinforcement of the tank by the contractor Sri Niranjan Roy as per instruction of the then Executive Engineer, Sri BK Debbarma for his mala fide intention. It would appear that Sri Niranjan Roy, the contractor, was examined as PW-8, but he stated in the cross-examination that he was told by the then Executive Engineer, PHE, Sri BK Debbarma to demolish the inner surface of the water tank and expose the reinforcement. However, the said BK Debbarma denied of telling Sri Niranjan Roy, contractor to demolish the inner surface of the water tank in his cross- examination as PW-4. The conclusions of the enquiry officer can be summarized as follows:
"(a) The prosecution could establish that concrete used in the wall of the tank was inadequately compacted resulting in air voids in the mass of concrete and the stone chips used in the concrete were not of proper grading (as?) observed by the technical committee (Exbt.S/2). The construction of that portion of the overhead tank, i.e. cylindrical wall portion plus the top dome was supervised by the AO. Shri Sudip Sinha, the then Junior Engineer and Sri Arindam Ghosh, AO, was the Asst. Engineer.
As per MB No.462 (Exbt.S/5), the cost of the work came to `2,85,155/-.
(b) He did not find any evidence to prove the charge against Shri Siddharta Sengupta, Junior Engineer, who supervised the construction of bottom ring beam and bottom slab and exonerated him from the charge.
(c) The prosecution proved that the compaction was not done properly in construction (sic) of cylindrical portion of the overhead tank and the stone chips used were not proper grading, which were sufficient to prove that the petitioner and the said Arindam Ghosh failed to supervise the construction of cylindrical wall portion plus dome. The Enquiry Officer, therefore, did not WP(C) Nos.266 & 488/2011 Page 7 of 11 find it necessary to go into the merits of the allegation made by Arindam Ghosh that the inner surface of the overhead tank was chiselled by the contractor on instruction of the then Executive Engineer just before the visit of the inquiry committee."
7. The aforesaid findings are technical in nature, which, in turn, are based on the Technical Expert Committee. Whether the concrete used in the wall of the tank was inadequately compacted resulting in air voids in the mass of concrete and the stone chips used in the concrete were not of proper grading (as?) are matters which could be easily observed by the technical committee (Exbt.S/2). It is not within the province of a writ court to re- appreciate the evidence recorded by the Technical Expert Committee. However, the finding that the construction of the reservoir was found defective after completion and could not be made operational; it was completely useless, are self-evident or res ipsa loquitor. No formal proof is necessary in a case of this nature. It is not the case of the petitioner that the reservoir constructed under his very nose is not defective and is really operational. Judicial review in a case of this nature, which requires examination by technical expert, is extremely limited. The legal position is best described in the words of Chief Justice Neely quoted with approval by the Apex Court in Jal Mahal Resorts (P) Ltd. v. K. P. Sharma and others, (2014) 8 SCC 804, at page 863, which are in the following terms:
"140. At this juncture, we take note of two overriding considerations which combined, narrow the scope of review. The first is that of deference to the views of administrative experts and the other we take assistance from the words of Chief Justice Neely who expressed as follows:
'I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rare cases.' The learned Chief Justice further observed as follows: WP(C) Nos.266 & 488/2011 Page 8 of 11 "I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.
It is not the function of a judge to act as a super board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. It was suggested that the alternative for the court is to desist itself from interference on technical matters, where all the advantages of expertise lie with the agencies. If the court were to review fully the decision of an expert body such as State Board of Medical Examiners, it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia."
8. I may also reproduce below the scope of judicial review in a departmental enquiry propounded by the Apex Court in High Court of Judicature at Bombay v. Shashikant S. Patil and another, (2000) 1 SCC 416, at page 422 :
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the WP(C) Nos.266 & 488/2011 Page 9 of 11 Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
(Italics supplied)
9. In my judgment, the instant case is one without fear of contradiction that there is definitely some evidence, i.e. the evidence of the Technical Expert Committee, on which the findings of the enquiry officer can be based. Once it is so held, it is not the business of this Court to examine the adequacy or even the reliability of that evidence. After all, the role of this Court is only a secondary role, whereas the role of the disciplinary authority is a primary role. This Court cannot usurp the function of the disciplinary authority. Though some witnesses were not examined by the enquiry officer despite repeated request to that effect made by the petitioner, the findings of the Technical Expert Committee, which was duly exhibited as Exbt.S/2 by the Department, and the evidence of PW-4 (BK Debbarma, the then jurisdictional Executive Engineer) are not assailable and such evidence, in any case, can be said to constitute some evidence to prove the guilt of the petitioner in a departmental enquiry. It is true that such evidence may not be adequate to prove the guilt of that petitioner beyond reasonable doubt, but then, we are here not dealing with a criminal case; that makes all the difference.
10. The result of the foregoing discussion is that there is no merit in this writ petition, which is, accordingly, dismissed. However, on the facts and in the circumstances of the case, the parties are directed to bear their respective costs. Interim order, if any stands vacated.
WP(C) No.488 of 2011 WP(C) Nos.266 & 488/2011 Page 10 of 11
As the facts in this case and the facts in the foregoing case are on all fours, this writ petition must also meet the same fate. Resultantly, this writ petition has no merit and is, therefore, dismissed without costs. Interim order, if any, stands vacated.
CHIEF JUSTICE Sukhendu WP(C) Nos.266 & 488/2011 Page 11 of 11