Kerala High Court
K.S.Asok vs State Of Kerala on 11 February, 2016
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY,THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938
Crl.MC.No. 5535 of 2013 ()
---------------------------
CRL.MP.NO. 1371/2011 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
VC.NO.7/2013 OF VIGILANCE POLICE STATION, IDUKKI DISTRICT
------------------
PETITIONER(S)/ACCUSED:
---------------------------------------
1. K.S.ASOK, AGED 56 YEARS,
ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SUB DIVISION,
THODUPUZHA (NOW EXECUTIVE ENGINEER,
ROADS DN., MUVATTUPUZHA), S/O.N.P.SANKARAN NAIR,
HILL PALACE, MEKKEDAMPU, P.O.MUVATTUPUZHA,
ERNAKULAM.
2. P.H.MUNEER, AGED 58 YEARS,
ASSISTANT EXECUTIVE ENGINEER, PWD NH DIVISION,
DEVIKULAM -685 613 (NOW RETIRED), S/O.P.M.HASSAN,
PALATHIKAL, ASAD ROAD, MUVATTUPUZHA,ERNAKULAM.
3. SMT. SHIJI KARUNAKARAN, AGED 43 YEARS,
ASSISTANT ENGINEER,ROAD SECTION,THODUPUZHA-685 564,
D/O.KARUNAKARAN,VARIKKANIKAL HOUSE,
UZHAVOOR EAST.P.O, KOTTAYAM.
4. SMT.TESSYMOL SEBASTIAN, AGED 49 YEARS,
ASSISTANT ENGINEER,PWD ROAD SECTION,
KARIMANNOOR-685 585, D/O.V.M.SEBASTIAN,
THURACKAL HOUSE, MUDALAKODAM.P.O,
THODUPUZHA, IDUKKI.
5. ISSAC VARGHESE, AGED 41 YEARS,
ASSISTANT ENGINEER,PWD BUILDING SECTION,
ERATTUPETTA (NOW ASST.EX.ENGR.BLDG.,SUB DN.,
THODUPUZHA) S/O.V.J.VARGHESE, TAZHAKKEERICKAL,
MUTTAM.P.O, THODUPUZHA,IDUKKI.
6. RAJ.C.THOMAS, AGED 54 YEARS,
ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SUB DN.,MUVATTUPUZHA,
S/O.THOMAS,CHIRAKKADAVIL HOUSE,
ASHRAMAM ROAD,MUVATTUPUZHA,
ERNAKULAM.
2/-
-2-
CRL.MC.NO.5535/2013
7. PREMENANDAN, AGED 46 YEARS,
ASSISTANT ENGINEER,
PWD BUILDING, CHAVAKKAD, S/O.NARAYANAN,
KIZHAKUMKARA MODIYIL,
ERUMAKKADU.P.O, EDAYARANMULA, PATHANAMTHITTA.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT(S)/COMPLAINANT/STATE:
-------------------------------------------------------------
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682 031,
(CRIME NO.VC 7/2013 OF THE VIGILANCE POLICE STATION,
IDUKKI DISTRICT).
*ADDL.R2 IMPLEADED
*ADDL.R2: V.N.SAJI, AGED 35 YEARS, S/O. NARAYANAN,
VELIYAMKUNNATH HOUSE, KULAMAVU.P.O.,
IDUKKI DISTRICT-685 601
*IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 11/02/2016 IN
CRL.MA.NO.11026/2013 IN CRL.MC.NO.5535/13.
R1 BY PUBLIC PROSECUTOR SMT. MAYA
ADDL.R2 BY ADV. SRI.SAJIV.C.K.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 19-07-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sts
CRL.MC.NO.5535/2013
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX 1 COPY OF THE PRIVATE COMPLAINT FILED BY SAJI DATED 22/07/2011
ANNEX II COPY OF THE ORDER DATED 03/08/2011 IN CRL.MP.NO.1371/2011
PASSED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
KOTTAYAM
ANNEX III COPY OF THE REPORT SUBMITTED BY THE DY. SUPERINTENDENT OF
POLICE, VACB, IDUKKI DATED 23/05/2013
ANNEX IV COPY OF THE ORDER DATED 31/07/2013 IN CRL.MP.NO.1371/11
PASSED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE
KOTTAYAM
ANNEX V CERTIFIED COPY OF FIR IN VC.NO.7/2013 OF VIGILANCE POLICE
STATION, IDUKKI
ANNEX VI COPY OF THE ORDER DATED 17/03/2011 IN WP(C).NO.8317/11 OF THIS
HON'BLE COURT.
ANNEX VII COPY OF THE ORDER DATED 23/02/2011 PASSED BY THE
ADDL.SECRETARY TO GOVERNMENT
ANNEX VIII COPY OF THE COMMUNICATION DATED 15/07/2016 ALONG WITH THE
REPORT SUBMITTED BY THE EXECUTIVE ENGINEER WITH
ATTESTATION OF THE PUBLIC INFORMATION OFFICER
ANNEX IX COPY OF THE STATEMENT RECORDED FROM THE ROAD ROLLER
DRIVERS BY ADDITIONAL ENGINEER, ROAD CIRCLE, WITH RESPECT
TO THE CONDITION OF THE ROAD ROLLER OBTAINED BY THE
PETITIONERS UNDER THE RTI ACT
ANNEX X COPY OF THE COMMUNICATION DATED 04/01/2011 BETWEEN THE
CHIEF ENGINEER AND THE SECRETARY TO THE GOVERNMENT
REGARDING THE LOSS SUSTAINED TO THE GOVERNMENT
ANNEX XI COPY OF THE REPORT DATED 15/11/2010 SUBMITTED BY THE
EXECUTIVE ENGINEER TO THE CHIEF ENGINEER, PWD
ADMINISTRATION, REGARDING THE USE OF PRIVATE ROAD ROLLER
RESPONDENT'S ANNEXURES:
ANNEX R2(A) COPY OF THE QUICK VERIFICATION REPORT ISSUED BY THE DY.
SUPT OF POLICE, VACB, IDUKKI, DATED 22/8/2012
2/-
-2-
CRL.M.C.NO.5535/2013
ANNEX R2(B) COPY OF THE TENDER SCHEDULE DOWN LOADED FROM THE
WEBSITE OF PUBLIC WORKS DEPARTMENT
ANNEX R2(C) COPY OF THE ORDER PASSED BY THE CHIEF ENGINEER
(ADMINISTRATION) OF PUB WORKS DEPARTMENT ON 6/9/2010
/TRUE COPY/
P.A.TO JUDGE
sts
B. KEMAL PASHA, J.
`````````````````````````````````````````````````````````````
Crl.M.C. No.5535 of 2013
`````````````````````````````````````````````````````````````
Dated this the 19th day of July, 2016
O R D E R
~ ~ ~ ~ ~ ~ Alleging offences under Sections 7, 13(a) and 13
(d) read with Section 13(2) of the Prevention of Corruption Act and Sections 167 and 409 IPC against the officials of the Public Works Department Division in Idukki district, the 2nd respondent preferred Annexure-I complaint before the Court of the Enquiry Commissioner and Special Judge (Vigilance), Kottayam. On getting Annexure-I, the court below passed Annexure-II order by referring the complaint to the Vigilance and Anti-Corruption Bureau, Idukki and directing a preliminary inquiry and for filing a report.
2. Consequently, the VACB conducted a detailed verification by way of an enquiry and filed Annexure-III report before the court below. Through Annexure-III, it was reported that registration of an FIR was not required in the matter and at the most, the inaction and omissions on the Crl.M.C.5535/2013 : 2 : part of the officials could only invite departmental actions by way of disciplinary proceedings. On the scrutiny of Annexure-III report, the court below rejected the recommendation in the report and directed the VACB to register the FIR against the suspected officials and to proceed with the investigation. On the basis of the direction in Annexure-IV, VC.07/2013 of the VACB, Idukki has been registered against the petitioners for the offence under Section 13(1)(d)(iii) read with Section 13(2) of the Prevention of Corruption Act.
3. The crux of the allegation against the petitioners is that while working as Assistant Executive Engineers and Assistant Engineers of the PWD Roads Sub Division, Thodupuzha, they had abused their official position as public servants and committed criminal misconduct by permitting the contractors, who were engaged in works of the roads, to use private road rollers for various works carried out by the PWD, for obtaining pecuniary advantage Crl.M.C.5535/2013 : 3 : to them and thereby causing a loss of 2,392/- per day to the government for the period from 2005-06 to 2008-09.
4. In the course of the submissions, learned counsel for the petitioners has also admitted that certain PWD Divisions were maintaining some road rollers, which could not be classified as advance machinery even during that period. Presently, the government could understand that maintaining such road rollers and some machinery for mixing bitumen etc. was not worthy to be continued and, therefore, the government has stopped the said practice and all such machinery kept by the PWD for the said purpose were sold in public auction. According to the learned counsel for the petitioners, there was no condition incorporated in any of the work agreements or MOU entered between the PWD and such contractors making it obligatory on the contractors to make use of the road rollers of the PWD. It is for the contractors to make use of their own machinery to carry out the work properly to avoid financial Crl.M.C.5535/2013 : 4 : loss to them and also to ensure sufficient strength to the work that was being carried out by them.
5. The learned counsel for the 2nd respondent has invited the attention of this Court to Circular dated 19.09.2003 issued by the Secretary to Government, Public Works (H) Department, whereby the use of private road rollers was discouraged and by directing the PWD officials to use the department road rollers whenever necessary for executing the work, except in unavoidable circumstances. The following instructions were also given through the Circular:-
"(i) Before hiring the private road rollers, the officer who is authorised to execute the work should obtain a certificate from the Assistant Engineer/Asst. Executive Engineer/ Ex.Engineer, in charge of the road roller to the effect that the department owned road roller in the division/section is unserviceable/under repair or under use for other specific work under the division/section for a specified Crl.M.C.5535/2013 : 5 : period.
(ii) The certificate should be
countersigned by the immediate superior
officer."
6. On going through the Circular, it can be seen that it was only a direction to the PWD officials to make use of the PWD road rollers as and when required. In case of any request or demand for the supply of such a machinery, the PWD officials, who consider such request or demand, as the case may be, should make such machinery available to the contractors. On an interpretation of the said Circular, it cannot be said that the officials should not permit a contractor from making use of his own machinery for carrying out the construction works or maintenance works of roads. The position would have been otherwise in a case where there is a corresponding clause incorporated in the MOU or the agreement being entered into between the PWD and the contractors for such works. When contractors are not bound by such a direction, the said conditions in the Crl.M.C.5535/2013 : 6 : said Circular and the directions in it are merely directory in nature and not something mandatory to be performed.
7. If such a condition was imposed on the contractors, normally, good contractors would not have come forward to accept any of the works of the PWD. A contractor having sophisticated machinery of advanced nature with him, would not have cared to insist the PWD to supply machinery of obsolete nature.
8. It seems that three enquiries were conducted in the matter; one by way of quick verification as per Annexure-IV order, one by the Finance (Inspection Technical Wing) Department and the other one by the PWD. In all the three enquiries, it was concurrently found that only departmental actions in the nature of disciplinary actions could be taken in the matter, at the most. Consequently, departmental actions were taken against the officers and a punishment of censure was imposed. Strictly speaking, it is doubtful whether the offences under Sections 13(a) and 13 Crl.M.C.5535/2013 : 7 : (1)(d) read with Section 13(2) of the Prevention of Corruption Act could be attracted in this case. There is no allegation of any demand, which is required to attract Section 13(1)(d) of the Prevention of Corruption Act. There are no specific allegations to attract Section 13(a) of the Prevention of Corruption Act. The only allegation is that the officers have not insisted the contractors to make use of the department road rollers, and permitted them to make use of their own machinery or other private road rollers for carrying out the works.
9. In fact, it cannot be said that the government had incurred any loss in it. True that the government was maintaining the drivers of the said machinery. They could be adequately deployed to do other works in the department. When a contractor could not be insisted to carry out the works by making use of the machinery being supplied by the PWD, it cannot be said that the government incurred any loss in the said matter. On hearing either side, Crl.M.C.5535/2013 : 8 : this Court is of the view that the proceedings in the present matter have become clearly unnecessary in view of the reports in the repeated enquiries conducted in the matter.
At the most, it could be said that the erring officers had violated some government Circular or orders and in such case, departmental actions only could be initiated against them. Departmental actions were initiated and the same also culminated. There is no meaning in proceeding with the matter further and, therefore, Annexure-V FIR and all further proceedings based on it as against the petitioners herein can be quashed.
In the result, this Crl.M.C. is allowed and Annexure-V FIR and all further proceedings based on it as against the petitioners herein are quashed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/19/07 // True Copy // PA to Judge