THE GAUHATI HIGH COURT AT GUWAHATI

Transcription

1 THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI WP(C) No. 4088/2014 Sri Dibyajyoti Kaushik, Son of Sri Santanu Baruaha, Village-Pachatia, P.O.-Morigaon, Dist.-Morigaon, Assam. -Versus- Petitioner 1) The State of Assam Represented by the Commissioner and Secretary to the Government of Assam, Irrigation Department, Dispur, Guwahati-6 2) The Chief Engineer, Irrigation Department, Chandmari, Guwahati-3 3) The Superintending Engineer, Nagaon Circle (Irrigatoin), Nagaon, Dist-Nagaon 4) The Executive Engineer, Morigaon Division (Irrigation) Morigaon, Dist.-Morigaon, Assam, PIN Respondents BEFORE THE HON BLE MR. JUSTICE NELSON SAILO For the Petitioner: Ms. M. Barman Advocate. For the respondents: Dr. B. Ahmed,... SC, Irrigation Department WP(C) No.4088/2014 Page 1 of 5

2 Date of Hearing : 18 th April, 2017 Date of Judgment : 18 th April, 2017 JUDGMENT AND ORDER(ORAL) Heard Ms. M. Barman, the learned counsel for the petitioner as well as Dr. B. Ahmed, the learned Standing Counsel, Irrigation Department. 2. The case of the writ petitioner in brief is that against the 4 (four) work orders dated , , and , he was asked to submit bank drafts amounting to Rs.78,880/-, Rs. 12,560/- Rs.52,720/- and Rs.61,760/- by the respondent No.4. For the aforesaid purpose the petitioner entrusted one Ikbal Hussain, who was the power of attorney holder of a fellow contractor. The petitioner accordingly gave him sum of Rs.2,06,000/- on for preparing bank drafts on his behalf and other Rs.24,000/- for preparation of bank draft on behalf of one Sri Kabya Joyti Barua. In addition, the petitioner gave him Rs.8,000/- as a loan. The petitioner, therefore, all together handed over a sum of Rs.2,38,000/- to Mr. Ikbal Hussain. 3. Sri Ikbal Hussian instead of preparing the bank drafts to the require amount actually prepared 3 bank drafts of Rs.1,000 each and thereafter, tempered with the same by adding appropriate figures in words in the said bank drafts. Subsequently, the President of Morigaion Zila Irrigation Department Contractor Association lodged a complaint as it was found that the 7 (seven) bank drafts prepared by Sri Ikbal Hussain, which included the four bank drafts of the writ petitioner, were tempered bearing serial No to and although, the actual sum was for Rs.1,000/-, Sri Iqbal Hussain added the figures 3, 6, 8 and 9 in words in the bank drafts as a result the four contactors including the writ petitioner for whom the 7 bank drafts were prepared were asked to submit their explanation. An inquiry was also conducted by the Superintending Engineer, Nagaon, Irrigation Circle. WP(C) No.4088/2014 Page 2 of 5

3 4. Vide communication dated , the petitioner was asked to show cause against the tempered bank drafts submitted by him bearing No.00923, and of Assam Gramin Vikash Bank within a period of 15 days from the date of receipt of the same. The petitioner gave his reply to the show-cause notice explaining the circumstances under which the bank drafts had been submitted after being tempered by Sri Ikbal Hussain. He further stated that he had no knowledge about tempering of the bank drafts and upon coming to learn the same, he deposited a total sum of Rs.2,09,020/- in the office of the Morigaon Division (Irrigation) on and in the form of 5 numbers of drafts of fixed deposit as security deposit money for the works that were allotted to him. 5. The respondent authorities, however, did not accept the petitioner s explanation and vide office order dated (Annexure-19) the petitioner was black listed with immediate effect. Pursuant to the office order dated issued by the respondent No.2, the petitioner submitted various representations to the respondent authorities for recalling the order but since the same was not done, the writ petitioner has filed the instant writ petition. 6. Assailing the impugned office order dated , the learned counsel for the petitioner Ms. M. Barman submits that the petitioner on good faith had given Sri Ikbal Hussian the power of attorney holder of his fellow contractor and an amount of Rs.2,38,000/- for preparation of 4 (four) bank drafts for satisfied amount. However, Sri Ikbal Hussain without the knowledge of the writ petitioner prepared 4 (four) bank drafts for amount of Rs.1,000/- each and thereafter, tempered the same. The petitioner upon coming to know about this immediately deposited actual amount of security deposit for the works allotted to him before the respondent authorities. She submits that while the respondent authorities did not black list other contractors who had submitted tempered bank drafts, the writ petitioner has been singled out by the respondent authorities and therefore, the petitioner prays that the impugned office order dated be set aside by this Court. WP(C) No.4088/2014 Page 3 of 5

4 7. The respondent Nos.2, 3 and 4 filed their rejoinder affidavit on against the writ petition, whereby, they had stated that the writ petitioner had submitted that he was ignorant of the fact of tempering committed on the bank drafts/ call deposits and that it might have been committed by his agent. The respondents further in the affidavit also stated that it could not be for sure as to who was responsible for preparation of the call deposits on behalf of the contractors and that the role of the bank employees could also be not ruled out. The inquiry report according to the respondents confirmed fraud but it did not indicate as to who personally was responsible for tempering of the call deposits. 8. Dr. B. Ahmed, the learned Standing Counsel, Irrigation Department, submits that when the respondents discovered that the bank draft/ call deposits were tempered, necessary action was immediately taken by causing an inquiry of the matter in consultation with the bank concerned. Although, the petitioner mentioned that he was not aware or responsible for tempering the bank drafts, the fact remains that tempered bank drafts/ call deposits were submitted by the writ petitioner and therefore, the petitioner would be responsible and liable for appropriate action in the matter. He submits that said malpractice cannot be taken lightly, inasmuch as, such action/inaction involves transactions from public exchequer. Such commission of tempering betrays the trust between the contractor and departmental officials and for which the public interest is at stake. Referring to the Annexure -1(a) to (g), Dr. B. Ahmed submits that the call deposits were indeed tempered and for which the departmental authorities had no further alternative but to take a strong action against the defaulting contractor i.e. the petitioner by black listing him for preventing similar acts in future. 9. Ms. M. Barman, the learned counsel for the petitioner, on the other hand submits that pursuant to the filing of the counter affidavit by the respondent Nos. 2, 3 and 4, this Court had stayed the impugned office order dated by which the petitioner was black listed vide order dated The petitioner has, therefore, since been participating in the tender process and undertaking the contract works. She, therefore, submits that the petitioner having already deposited the required sum towards the security deposit, the interim order dated be made absolute. WP(C) No.4088/2014 Page 4 of 5

5 10. I have considered the rival submissions of the parties and perusal of the materials available on record. Although tempered call deposits were submitted by the petitioner for the works allotted to him, the petitioner on coming to learn about the same, replaced the tempered call deposits with the proper ones. The respondent authorities also in the inquiry conducted has contended in the counter affidavit that the involvement of bank officials could not be ruled out. It is also noticed that the departmental authorities have also given the benefit of doubt in respect of the other contractors and upon considering the facts and circumstances in its entirety, I am of the considered opinion that the direct involvement of the writ petitioner in tampering with the call deposits having not been established, the writ petitioner cannot be singled out. It is also however observed that it is the boundent duty of every citizen to see that those who are responsible for depriving the finances of the State fraudulently and that too at the expense from the public exchequer do not go unpunished. 11. In the instant case, although the direct involvement of the petitioner has not been established, the petitioner was black listed by the Department since till an interim order was passed by this Court on The same in my considered opinion would serve the proper and having held thus, the impugned office order dated warrants the interference of this Court. 12. In the result, the impugned office order dated is set aside. The writ petition is accordingly disposed of. No cost. JUDGE sumita WP(C) No.4088/2014 Page 5 of 5