## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940**
## **WP(C).No. 13728 of 2013**
## **PETITIONER:**
**A.MOHAMMED NAJEEB AGED 57 YEARS S/O.ABDUL REHIMAN EXECUTIVE ENGINEER (RETD)KERALA WATER AUTHORITY PUBLIC HEALTH DIVISION,KOLLAM RESIDING AT " BISMI ", ASRAMOM P.O.,KOLLAM**
**BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.T.N.SREEKALA SRI.V.S.THOSHIN**
## **RESPONDENTS:**
**1 THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM PIN - 695001**
**2 THE MANAGING DIRECTOR KERALA WATER AUTHORITY VELLAYAMBALAM, THIRUVANANTHAPURAM PIN CODE - 695008 3 THE VIGILANCE DIRECTOR VIGILANCE ANTI CORRUPTION BUREAU DIRECTORATE OF VIGILANCE, THIRUVANANTHAPURAMPIN 695003**
## **OTHER PRESENT:**
**SUNILKUMAR KURIAKOSE GP AND BENJAMIN PAUL SC KWA**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
1.This writ petition is filed challenging Exhibit P4 report issued by the Superintendent of Police as well as Exhibit P5 communication issued by the Principal Secretary to Government to the Director, Vigilance and Anti Corruption Bureau with copy to the Managing Director of the Kerala Water Authority. It is stated that the petitioner was the Executive Engineer in charge of the Public Health Division at Kollam of the Kerala Water Authority. Work was awarded to a contractor on 4.2.2009. Exhibit P1 special circular of the Water Authority provided for a Price Variation Clause under which the price of the DI pipes had to be reduced or enhanced on the variation of the wholesale price index of foundry grade pig iron. It is stated that without noticing a downward revision in the price of foundry grade pig iron, the petitioner had permitted the contractor to draw an advance of Rs.75,09,245/-. It is stated that a complaint had been raised, pursuant to which a vigilance enquiry had been conducted. The petitioner contends that Exhibits P2 and P3 explanations had been forwarded by the petitioner. But without considering
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the same, Exhibit P4 report has been furnished in 2012. Exhibit P4 report directs the concerned administrative department to realise interest at the rate of 12% on Rs.75,09,245/- ,which was recovered from the final bill due to the Contractor, from suspect officers 1 to 3. The petitioner was suspect officer No.1. It is stated that thereafter, Exhibit P5 proceedings have been issued by the Government informing the Director of Vigilance and Anti Corruption Bureau that the Managing Director of the Water Authority has to be directed to take action as recommended by the Vigilance Department and furnish an action taken report. The learned counsel for the petitioner submits that Exhibit P4 recommendation and P5 communication are issued without hearing the petitioner and that therefore the directions are untenable.
- 2.The learned counsel for the petitioner also relies on the decision of the Apex Court in **State Bank of India and others v. D.C.Aggarwal and others** [Civil Appeal No.4213 of 1992] to contend that unless the petitioner is put on notice
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and is supplied with all the materials, no finding of culpability can be found as against the petitioner.
- 3.A counter affidavit has been placed on record by the respondents stating that due to the action of the petitioner in having released advance due to the contractor without considering the Price Variation Clause for DI pipes, the contractor was enabled to retain an amount of Rs.75,09,2745/-, which is the variation, for two years till it was recovered from the final bill. It is, therefore, contended that suspect officers 1,2 and 3 are liable to proceeded against. It is stated that this aspect of the matter had been found by the Resident Audit Officers' team of Kerala Water Authority in the audit conducted for the financial year 2008-2009 and had been affirmed in the Vigilance enquiry as well. It is, therefore, contended that there is absolutely no illegality in Exhibits P4 and P5 proceedings.
- 4.The learned counsel for the petitioner, however, contends that the petitioner had retired from service on 31.3.2011. The
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communication in Exhibit P5 states that the Managing Director of the Water Authority has been informed of Exhibit P4 and has been required to take action as recommended in Exhibit P4. The learned counsel for the petitioner would further contend that paragraph 6 of the judgment relied upon covers the issue.
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5.I have considered the contentions advanced. What is under challenge before me is only the recommendation of the Vigilance Department to realise the interest amount from the petitioner. The contention appears to be that the petitioner ought to have been put on notice before Exhibits P4 and P5 were issued. Exhibits P4 and P5 are only part of the fact finding proceedings and are not orders issued in disciplinary proceedings against the petitioner. The judgment relied on by the learned counsel for the petitioner refers to an order passed in a disciplinary proceeding. The contention in that case was that a recommendation of the CVC had been relied on against the petitioner in a disciplinary proceedings without serving a copy of the same on her. It was contended before
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## W.P.(C).No.13728/13
the Apex Court that the reliance placed on the said recommendation without giving a copy to the petitioner was unwarranted. In those factual circumstances, the Apex Court held that the order imposing penalty is vitiated because of non-supply of the copy of the CVC recommendation which was relied upon as against the petitioner.
- 6.I am of the opinion that the said decision has absolutely no application in the instant case, where recommendation has been made to recover the amounts due from the petitioner in accordance with law. Appropriate steps can therefore be taken by the employer authority only in accordance with law. I am not impressed by the submission that the petitioners ought to have been put on notice by the audit team or the vigilance at the stage of report itself. It is for the Water authority to take action as permissible in law against the petitioner.
- 7.It is not clear whether any departmental action has been taken against the petitioner in terms of Rule 3 of Part III KSR. Any action for recovery of loss from the DCRG would also have to
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be taken within three years from the petitioner's retirement. In case such proceedings have been initiated within the time granted, it is for the employer authority to put the petitioner on notice and consider his objections in the said proceedings. If no such proceedings have been initiated, it may not be possible for the authorities to initiate such proceedings at this distance of time. However, the prayers raised in this writ petition are for quashing Exhibits P4 and P5 on the ground that they are issued without notice. I am of the opinion that the said prayers are not liable to be granted.
In the result, the writ petition fails and the same is accordingly dismissed.
Sd/- **Anu Sivaraman, Judge**
sj
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 EXT.P-1 THE TRUE COPY OF THE SPECIAL CIRCULAR DATED 7/3/09 NO. KWA/JB/P&M/3/651/2009**
- **EXHIBIT P2 EXT.P-2 THE TRUE COPY OF THE PROCEEDINGS NO.AB7/3248/09 DATED 2/7/10 TO THE FINANCE MANAGER & CAO, KWA ISSUED BY THE PETITIONER**
- **EXHIBIT P3 EXT.P-3 THE TRUE COPY OF THE NO.AB7/3248/09 DATED 24/1/11 TO THE EXECUTIVE ENGINEER, PROJECT DIVISION, KWA, KOLLAM ISSUED BY THE PETITIONER**
- **EXHIBIT P4 EXT.P-4 THE TRUE COPY OF REPORT DATED 18/9/12 OF SUPERINTENDENT OF POLICE (INT) UNDER PROCEEDINGS NO.E1 (VE2/2011/SRT) 8535/2011**
|**EXHIBIT P5**<br>**EXT.P-5 THE TRUE COPY OF THE**<br>**PROCEEDINGS NO.5757/B1/13/WRD DATED**<br>**20/3/13 OF THE PRINCIPAL SECRETARY TO**<br>**GOVERNMENT.**|**EXHIBIT P5**<br>**EXT.P-5 THE TRUE COPY OF THE**<br>**PROCEEDINGS NO.5757/B1/13/WRD DATED**<br>**20/3/13 OF THE PRINCIPAL SECRETARY TO**<br>**GOVERNMENT.**|
|---|---|
|**EXHIBIT P6**|**TRUE COPY OF THE PROCEEDINGS ISSUED BY**<br>**THE PETITIONER DATED 13.11.2009.**|
|**EXHIBIT P7**|**TRUE COPY OF THE COMMUNICATION BEARING**<br>**NO.KWA/PDK/AB4-949/2008 DATED 10.6.2015**<br>**ISSUED BY THE EXECUTIVE ENGINEER,**<br>**PROJECT DIVISION, KOLLAM.**|
|**EXHIBIT P8**|**TRUE COPY OF THE COMMUNICATION BEARING**<br>**NO.RAO/KWA/II/IR/2-24/2008-09/217 DATED**<br>**18.6.2015 ISSUED FROM THE OFFICE OF THE**<br>**PRINCIPAL ACCOUNTANT GENERAL,**<br>**THIRUVANANTHAPURAM.**|
True copy
PS to Judge
