Sivanandan vs State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 OP(CRL.) NO. 401 OF 2016 AGAINST THE ORDER/JUDGMENT IN VC 8/2016 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, EKM AT MUVATTUPUZHA, ERNAKULAM PETITIONER: SABU CHERIAN EXECUTIVE DIRECTOR, M/S. MARY MATHA CONSTRUCTION COMPANY, MARY MATHA SQUARE, ARAKUZHA ROAD, MUVATTUPUZHA PO, ERNAKULAM DISTRICT BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.P.SHANES METHAR RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001 2 THE DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM-695001 3 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI-CORRUPTION BUREAU, ERNAKULAM UNIT, KATHRIKADAVU, KALOOR, ERNAKULAM-682019 4 P.L. JACOB PADINJAKKARA HOUSE, KUTTIKKADU PO, CHALAKUDY, THRISSUR- BY ADVS. SRI.K.V.SOHAN, STATE ATTORNEY GOVERNMENT PLEADER OP(Crl.)Nos.401/2016 & others 2 OTHER PRESENT: SPL.GP SRI.A RAJESH THIS ORIGINAL PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.2.2021, ALONG WITH Crl.MC.2287/2016 AND CONNECTED CASES, THE COURT ON 15/11/2021 PASSED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 CRL.MC NO. 2287 OF 2016 (FIR NO.8/2016 OF THE VIGILANCE AND ANTI CORRUPTION BUREAU ERNAKULAM) (ORDER/JUDGMENT IN CRMP 256/2015 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, EKM AT MUVATTUPUZHA, ERNAKULAM PETITIONERS/ACCUSED NOS. 8 & 9: 1 K.S. MAJEED, AGED 52 YEARS AGED 52 YEARS, S/O. A.K. SAYED MOHAMMED,ASSISTANT EXECUTIVE ENGINEER,M.I. SUB DIVISION, MOOLAMATTOM, IDUKKI. 2 RAMESAN P. AGED 48 YEARS, S/O K.V.KANNAN, ASSISTANT ENGINEER, PATHALAM REGULATOR CUM BRIDGE SECTION NO.1,ALUVA, ERNAKULAM DISTRICT. BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL PRANAVAM RESPONDENTS: THE COURT OF THE ENQUIRY COMMISSIONER &SPECIAL JUDGE (VIGILANCE),MUVATTUPUZHA, PIN:686661. 2 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE & ANTOCORRUPTION BUREAU,ERNAKULAM, PIN:682017. 3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN:682031. OP(Crl.)Nos.401/2016 & others 4 4 SRI.P.L.JACOB PADINJAKKARA HOUSE, P.O., KUTTIKKAD -680724,CHALAKUDY, THRISSUR. BY ADVS. SRI.K.V.SOHAN, STATE ATTORNEY SRI.T.M.ABDUL LATHEEF SPL.G.P.SRI..A.RAJESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 3.2.2021, ALONG WITH OP(Crl.).401/2016 AND CONNECTED CASES, THE COURT ON 15/11/2021 PASSED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 5

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WP(C) NO. 7259 OF 2020 PETITIONER: SABU CHERIAN AGED 48 YEARS MADAECKKAL HOUSE, ARAKKUZHA ROAD, MUVATTUPUZHA, ERNAKULAM-686661. BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.P.SHANES METHAR RESPONDENTS:

1 STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, PMG, OPP. VIKAS BHAVAN DEPOT, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033. 3 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT, KATHRIKADAVU, ERNAKULAM-682018. 4 P.L.JACOB, PADINJAKKARA HOUSE, KUTTIKKADU P.O., CHALAKKUDY, THRISSUR-680024. BY ADV GOVERNMENT PLEADER SRI.A.RAJESH

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.2.2021, ALONG WITH OP(Crl.).401/2016 AND CONNECTED CASES, THE COURT ON 15/11/2021 DELIVERED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 6

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 CRL.MC NO. 2878 OF 2020 (VC NO.8/2016 ON THE FILE OF THE VIGILANCE AND ANTI CORRUPTION BUREAY, ERNAKULAM) PETITIONER/ACCUSED NO.3: VIJAYADAS AGED 49 YEARS S/O. SWAMIDASAN, PRA-58, EDAPAZHANJI, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADVS. K.GOPALAKRISHNA KURUP (SR.) SMT.ANUROOPA JAYADEVAN SHRI.ASHRUTH NASER RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 THE DIRECTOR, VIGILANCE AND ANTICORRUPTION BUREAU, PMG, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033 3 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT, KARTHIKADAVU, ERNAKULAM , KOCHI 682 017 4 P.L JACOB, PADINJAKKARA HOUSE, KUTTIKKADU P.O, CHALAKKUDY, THRISSUR 680 024

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 3.2.2021, ALONG WITH OP(Crl.).401/2016 AND CONNECTED CASES, THE COURT ON 15/11/2021 PASSED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 7

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 CRL.MC NO. 2928 OF 2020 (FIR IN VC NO.8/16 OF THE VIGILANCE & ANTI CORRUPTION BUREAU, ERNAKULAM AGAINST THE ORDER/JUDGMENT IN CRMP 256/2015 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR, THRISSUR PETITIONER/6TH ACCUSED:

SIVANANDAN, AGED 60 YEARS S/O.K. MADHAVAN, SUDHARMA HOUSE, CHUTTUPATU KARA, EDAPPALLY, ERNAKULAM DISTRICT, PIN-682024. BY ADVS. SRI.T.A.SHAJI (SR.) S.ABHILASH VISHNU ATHUL SHAJI ANWIN JOHN ANTONY RESPONDENT/STATE & DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM(REPRESENTING THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION BUREAU, ERNAKULAM. 2 P.L. JACOB PADINJAKKARA HOUSE, KUTTIKKAD P O, CHALAKUDY, THRISSUR-680724. BY ADV GOVERNMENT PLEADER A.RAJESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 3.2.2021, ALONG WITH OP(Crl.).401/2016 AND CONNECTED CASES, OP(Crl.)Nos.401/2016 & others 8 THE COURT ON 15/11/2021 PASSED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 9

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WP(C) NO. 24302 OF 2020 PETITIONER: SABU CHERIAN AGED 52 YEARS MADAECKKAL HOUSE, ARAKKUZHA ROAD, MUVATTUPUZHA, ERNAKULAM-686 661. ADV.GRASHIOUS KURIAKOSE (SR) BY ADV P.SHANES METHAR RESPONDENTS:

1 STATE OF KERALA REP BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DIRECTOR, VIGILANCE AND ANTICORRUPTION BUREAU, PMG, OPP, VIKAS BHAVAN DEPOT, VIKAS BHAVAN P.O.THIRUVANANTHAPURAM- 695 033. 3 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION BUREAU, ERNAKULAM UNIT, KATHRIKADAVU, ERNAKULAM-682 017. BY ADV SRI.RAJESH A, SPECIAL GOVT. PLEADER FOR, VIGILANCE AND ANTI CORRUPTION BUREAU

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2021, ALONG WITH OP(Crl.).401/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 10

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WP(C) NO. 26221 OF 2020 PETITIONER: SABU CHERIAN AGED 52 YEARS S/O. M.P.CHERIAN, MADAECKKAL HOUSE, ARAKKUZHA ROAD, MUVATTUPUZHA, ERNAKULAM 686661 ADV.GRASHIOUS KURIAKOSE (SR) BY ADV P.SHANES METHAR RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 695001 2 THE DIRECTOR, VIGILANCE AND ANTICORRUPTION BUREAU PMG, OPP. VIKAS BHAVAN DEPOT, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, 695033 BY ADV GOVERNMENT PLEADER SRI.A.RAJESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.2.2021, ALONG WITH OP(Crl.).401/2016 AND CONNECTED CASES, THE COURT ON 15/11/2021 DELIVERED THE FOLLOWING: OP(Crl.)Nos.401/2016 & others 11

COMMON JUDGMENT

All the above proceedings arise from V.C. No.8/2016 of the Vigilance

and Anti Corruption Bureau, Ernakulam. The facts, as is discernible from O.P.(Crl.) No.401/2016 is as follows; The writ petitioner is an A class contractor registered with the Government of Kerala. Irrigation Department of the Government of Kerala issued notice inviting tender on 18/1/2012 for the pre qualification and award of work “NABARD- RIDF XVII-construction of regulator-cum-bridge at Pathalam across the river Periyar in Ernakulam

District”.   Probable amount of contract [PAC]         was Rs.57.05 Crores.
Petitioner submitted    tender . He satisfied the pre qualification and    was
awarded      the contract at the rate of 3.2 % below the estimated rate, at

Rs.49.71 Crores. A letter of authorization dated 14/6/2012 was issued as mandated under the notice inviting tender and agreement was executed on commenced on 17/7/2012.

2. In the course of the construction, bills were submitted for payment of

part construction. The executive engineer by his letter dated 17/4/2013, addressed to the contractor and informed that towards the part payment of bills for works done full payment for the works under clause 2 (a) & 2 (c) of Appendix B to the tender were not admissible. It was stated that the work was for BORED - CAST-IN-Situ, which included providing MS Liner. The rate quoted for Rs.20,528/- and Rs.8902/- under headings 2 (a) and 2(c) were

OP(Crl.)Nos.401/2016 & others 12 inclusive of MS liner. It was stated by the Executive Engineer that in the course of construction of work, the liner was not used by the contractor and hence, the corresponding contract amount for the MS Liner was not liable to be paid and was liable to be deducted from the tendered amount. It seems that there were several discussions between the parties pursuant to the objections raised by the contractor claiming that the rate quoted did not include MS Liner and that the terms of the contract as well as the notice inviting tender did not oblige the contractor to provide MS Liner.

3. While so, by the letter of the Water Resources Department of

Government of Kerala dated 24/4/2014, it was informed to the contractor that the Government had accorded sanction for revised estimate of the above project for about Rs.64.90 Crores. Contractor was directed to provide the rate under clause 2 (a), 2 (b) and 2 (c) of the Appendix B of the agreement, without MS Liner. It is seen from the records that the contractor quoted the same rate as he had quoted earlier.

4. Revised sanction estimate was issued on 24/4/2014 and a fresh supplemental agreement was executed on 23/2/2016.

5. Regarding the dispute of the amount payable in relation to MS Liner, which was withheld, there were several rounds of discussions. The matter was referred to the opinion of the Chief Technical Examiner, who

opined in favour of the contractor and consequently a sum of Rs.3,49,64,316.90/- which was withheld till the 7 th bill, was released by the Executive Engineer in the 8th bill. OP(Crl.)Nos.401/2016 & others 13

6. While so, one P.L.Jacob filed a complaint dated 8/4/2015 before the enquiry commissioner and special Judge, Thrissur, alleging that corruption was involved in the above contract, especially in relation to releasing of 3.49

Crores of Rupees. It was alleged that officers of the PWD and other department had colluded with the contractor and released huge amounts in favour of the contractor for works, which were actually not done. It was alleged that, it has resulted in pecuniary loss to the exchequer and unreasonable gain for the contractor. He sought for investigation by the

Vigilance Department.      Learned special judge ordered quick verification to
be conducted.      Pursuant to the      verification, a report was submitted
suggesting that prima facie no crime was          revealed in the course of
verification.   Another complaint dated        12/2/2016 before the Enquiry

Commissioner, Muvattupuza, was laid by the complainant reiterating his earlier allegations and further alleging that PWD had colluded with a private chemical company in the locality, to clandestinely draw a pipe line through the newly constructed barrage, to secretly drain off huge quantity of effluents from the above chemical company. Pursuant to the above complaint, another verification was ordered. Report submitted before the court suggested that there were doubtful circumstances, in the entire transaction and recommended for registering a crime. Accordingly, crime was registered against the contractor and few government officials as VC No.8/2016. 7.Alleging that the quick verification report recommending registration of FIR was bad and that it was without any basis and further contending that OP(Crl.)Nos.401/2016 & others 14

neither under the notice inviting tender nor at any stage thereafter, the contractor was informed by the tenderor that they were bound to provide MS Liner, the contractor has approached this Court. It was claimed that the rate was quoted by the contractor and agreement was entered into on the basis that the rate so quoted was not inclusive of the rate for MS Liner. It was contended that since the MS Liner was not laid and was not expected to be laid, the quoted amount did not include the rate for MS Liner and hence the

authorities were not justified in deducting arbitrarily, the price for the MS liner. It was contended that in the above circumstance, the bill was released by the Government legally and no corruption was involved in the above transaction. Hence, for setting aside the quick verification report and to quash FIR in relation to the contractor as bad, seeking the above reliefs, the contractor has approached this court. O.P.(Crl.) 401/2016 was filed to quash all proceedings leading to FIR No.VC 8/2016 and also to quash the above criminal proceedings pursuant to the FIR in VC 8/2016.

8.Crl. MC No.2878/2020 was filed by the 3rd accused who was the chief technical officer by name Vijayadas, with a prayer to quash VC 8/2016. Crl.M.C.2928/2020 was filed by the executive engineer who was arrayed as 6th accused. He had filed Crl.M.C.2928/2020 with a prayer to quash the FIR as against him. 8th accused and 9th accused one K.S.Majeed and Rameshan K.P., who were the assistant Executive engineer and assistant engineer respectively had filed Crl.M.C.2287/2016 claiming that they stand on a different footing and that they had not committed any offence directly, OP(Crl.)Nos.401/2016 & others 15 indirectly or by implication.

9. W.P.(C) 7259/2020 was filed by the contractor for a direction to the

Director Vigilance and also to the Dy.S.P.Vigiliance to consider the representation submitted by the petitioner and to conduct investigation properly. In the complaint, it was stated that the allegation in V.C.No.8/2016 was that the rate of pile work per meter was Rs.7,823/- and to substantiate it, tender documents in 8 other different contracts were produced. The rate of

piling for the same period, inclusive of liner ranged from Rs. 24,515/- to Rs.27,844/-. According to the petitioner, without liner, the rate quoted was Rs.20,528/-. Hence, it was contended that all the above contracts quoted by the Government fixing very high amount were not justified and were liable to be quashed. Hence, the prayer sought was for a direction to the Vigilance Department to conduct enquiry as to whether the rates were fixed in the above 8 contracts due to the malpractice meted out by the officers.

10. W.P.(C) No.24302/2020 was filed by the contractor for a direction

to the investigating officer to investigate the rate of piling in the various local works and requested for verification as recommended in Ext.P1 quick verification.

11. Since all the proceedings arose from the common vigilance case,

all the original petitions and Crl.appeals were posted together . Learned senior counsel for the contractor, learned senior counsel for the 6 th accused and the learned counsel for the 3rd accused were heard as well as the other counsel for the other petitioners. Lengthy arguments were advanced by them

OP(Crl.)Nos.401/2016 & others 16 based on several documents produced by them inviting this Court to refer to it for considering the limited question involved. Another party had filed I.A.No.2/2020 in O.P.(Crl.)No.401/2016 to get himself impleaded. Since he has filed complaint against the disputed construction, he was heard without formally impleading him. Heard the learned special government pleader for

the Vigilance Department also. During the course of hearing on earlier occasion, it was reported that final report was ready and would be filed within a short time. In the light of the pendency of the above proceedings before this court,it was directed that the investigating agency shall not file the final report till further directions from this court. Accordingly, final report has not been filed.

12. The crucial question that arises in W.P.(C) No.7259/2020 and

connected cases is whether the contractor had quoted the rate for piling inclusive of MS Liner and without using the MS liner, claimed and received the money for the rate of piling, inclusive of MS liner, with the connivance of the Government Officials and thereby made unlawful gain to himself and consequential unlawful loss to the Government Exchequer. Reference to the notice inviting tender,the agreement schedule and the tender schedule clearly shows that the crucial clauses in relation to piling are clauses 2 (a), 2

(b) and 2 (c) in Appendix B to the tender schedule and the agreement

schedule. Evidently, use of MS Liner is neither specifically nor impliedly referred to in the above clauses. As per the records, the contractor had quoted a sum of Rs.20,528/- under clause 2 (a) for providing bored cast -in

OP(Crl.)Nos.401/2016 & others 17 -situ piles of 1000 MM dia, at the length of 1 meter at the rate of RS.20,528/-. Under clause 2 (b) for another bored cast- in -situ piles of 1000 MM dia, with a different specification also ,he had quoted same rate of Rs.20,528/-. Under clause 2 (c), for a corresponding pile having a dia meter of 500 MM dia, he had quoted Rs. 8902/-. It is clear that, nowhere in the tender documents nor in any other specific document corresponding to it, including the tender schedule or the agreement schedule there was a specification for use of MS Liner. It is also not in dispute that the MS Liner was not used for the piling in the construction of Pathalam Regulator - cum-Bridge, across river Periyar. The specific contention of the contractor was also that since MS Liner was not required to be used, he did not use that and that he had quoted the piling rate including MS Liner. In otherwords, amounts that he had quoted under clauses2 (a), 2 (b) and 2 (c) did not include MS Liner. The specific

case of the contractor was that since MS Liner was very expensive component, he would have quoted a much higher amount, if that was asked for. It was also contended by the learned senior counsel for the contractor that usually in all tenders, wherever MS liner was to be used, separate rates would have been demanded in the NIT. In the case at hand, since it was not required to be used by the NIT, he proceeded as if it was not required and thereby quoted rates, which was not inclusive of the rate for MS Liner.

13.On the other hand, the specific allegation of the prosecution was that, though the clauses in the NIT, tender schedule, as well as the agreement schedule, did not specify that MS Liner should be used that it had

OP(Crl.)Nos.401/2016 & others 18 not called for rates of MS Liner and also that it was not explicitly or impliedly mentioned in clause 2 (a) & 2(c), the contractor understood that it was required to be done and had included its rates also in the rates quoted under clause 2 (a) & 2 (c). It was contended that the above rates included the rate for MS Liner and taking advantage of the fact that it was not specifically and separately asked, did not use it in collusion with the government officials and claimed and obtained money for the MS Liner also, without being used. It was the case of the prosecution that, the data of the basic document of the tender schedule was known to the contractor, he being an experienced contractor having much experience in the field, was aware that the MS Liner was an essential component, quoted that amount, and the very high amount quoted under clause 2 (a) to 2 (c) clearly indicated that he understood that it was liable to be used. It was also contended that he knew that it is the rate included the MS Liner and without using it, mala fide and clandestinely obtained the rate for MS Liner also. It was also contended that even though it was not specifically asked in the NIT, he was aware from the attending circumstances that it was liable to be used. It was also his obligation to refer to the said data, which formed the basis of the tender document and even if he had any doubt he should have brought it to the notice of the authorities and did not enquire as to whether MS Liner ought to be used or not.

14. It is Pertinent to note that MS Liner was not clearly required to be used by virtue of terms in the NIT. This is clear from cursory perusal of the notice inviting tender, tender schedule as well as the agreement schedule. In OP(Crl.)Nos.401/2016 & others 19 W.P.(C) No.2287/2016 at page 6, the then Assistant Executive Engineer and

the the Executive Engineer has specifically contended that NIT did not include the use of liner. The Additional Chief Secretary to the Government by his communication dated 28/2/2014, which is produced as Annexure A14 in Crl.M.C.2287/2016 had also specifically referred to the non mentioning of MS Liner in the notice inviting tender or tender schedule.

15. It is also to be noted that this seems to be a clear omission on the

part of the authorities who drafted the above tender documents. However, it is seen that in the sub data, the document which contains the specifications and other details, use of MS liner was specifically mentioned . It is clear that while preparing the tender document, there was a very serious omission of use of MS Liner, which the petitioner is now trying to take advantage of. There is considerable force in the contention of the prosecution that, this does not appear to be a purposeful omission, since the contract was awarded by a public tender, in which all the participants appeared and the absence of a clause about the user of the above MS Liner in the tender document was only an omission and hence it cannot be said to be an intentional one to help any of the tenderers.

16. In the course of investigation, it was revealed that , originally the

proposal was for construction of check dam with two meter wide pathway across river Periyar. Preliminary work for it and studies were conducted in the year 1993. For the preparation of the basic documents for the proposed check dam with two meters wide pathway above it, 10 trial borings were OP(Crl.)Nos.401/2016 & others 20 conducted. The site of rock was found at a level of 8 meters to 17..5 meters and since the check dam was only two meter wide, it was originally resolved that 8 meter depth borehole would be sufficient. Accordingly, estimate was prepared for that. Subsequently, that project was abandoned and in its place, a 11 meter wide and 185 meter long bridge with regulator and 95 m long lock and regulator shutters with 600 meters approach road was

proposed. For preparing the estimate, bore holes which was originally considered for the check dam alone was relied on . Hence the length of pile was proposed to be only 7 meters to 8.5 meters. It was also found that for the purpose of the present project of regulator - cum - bridge, no separate soil test was conducted. Evidently, for such a bigger project the soil test done in 1993 period alone was relied on, project report finalized , accordingly estimate prepared and tenders were called for. Only at the time of execution of the work, it was found that the piling required further boring and ultimately

there had to be a revision of rate. This resulted in additional work to be

done for longer piles with an enhanced rate of Rs.64.90 Crores and administrative sanction was granted. Since the work was partly completed, there was no other option except to award the contract to the same contractor enhancing the rate to Rs. 64.90 Crore from Rs.54 Crores of. Evidently, there was gross negligence on the part of officials in preparing the estimate. This is also a matter which needs be investigated in depth, in the course of investigation.

17.In the above circumstances the available materials have to be OP(Crl.)Nos.401/2016 & others 21 searched to ascertain whether the materials collected till now indicate that, petitioner was conscious of the fact that the MS liner was specifically referred

to in the sub data, or that he had occasion to see that, in the course of tendering or even thereafter it was bought to his knowledge that the work included MS Liner. It is also to be found out whether the rate that was quoted by him in fact included the MS Liner and that thereby he had a guilty mind in claiming and receiving the amount for the work which was not actually done by him. In the above circumstances, it is also to be ascertained whether he had received the assistance or aid of any other Government Officials to bring them within the campus of Prevention of Corruption Act. It is also to be noted at any point of time, whether the Government Officials had brought it to the notice of the contractor that he was bound to include MS liner.

18. In this background, it is also essential to refer to the circumstance under which an amount of Rs.4.9 crores was withheld from payment and thereafter released to him. It is seen from the records that accused Nos. 8 &

9 who were the Assistant Executive Engineer and the Assistant Engineer respectively had noted that at the time of execution, MS Lliner was not used. It was also found that from the nature of the soil and from the nature of the works done, MS liner was not essential. Though it was contemplated in the basic documents of tender, they reported to the senior officers that since MS liner was not used, the corresponding value was liable to be deducted from the contractor. Accordingly, though seven bills were passed, in the

OP(Crl.)Nos.401/2016 & others            22
meanwhile 4.9 Crores was withheld         as the value of the        MS Liner.
According to the prosecution, this was in the     background that sub data

prepared by the authorities was for amount which was quoted by the contractor, which included the rate of MS Liner. According to the prosecution, a high amount of Rs.20,528/- was quoted which itself was indicative that it was much higher than the existing rate for piling and was inclusive of the use of MS liner.

19. It seems that several representations were made by the accused

to the various departments seeking release of 4.9 Crores was withheld as the value of the MS Liner. After several rounds of discussions, including that in the presence of the Minister, it was resolved to refer the matter to the Chief Technical Examiner for a report. He, on the basis of the available materials, opined that the tender did not includes the use of MS Liner. It was also found that there was nothing on record to show that the some data was brought to the notice of the contractor or that he was informed at any point of time that the MS Liner was liable to be used. In the above circumstance, he opined that there was no justification in withholding the above amount. Pursuant to this opinion, the amount was ordered to be released on 28/2/2014. Accordingly,Rs. 4.9 Crores was released along with the eight bill.

20.It seems that though the data of the estimate contained a sub data for the same liner, the above record is not placed before the court. However, the existence of such a sub data is evident from the communication of the Additional Chief Secretary to the Chief Engineer dated 28/2/2014, which is

OP(Crl.)Nos.401/2016 & others 23 produced as Annexure A14 in Crl.M.C.2287/2016. The crucial question in this regard is whether the contractor was aware of such a sub data, whether it was brought to the notice of him. It is also pertinent to note that whether he was under an obligation to refer it before finalizing the tender. It seems that, in the rate prepared by the authorities as well as in the revised estimate, there was an indication that stream liner was liable to be used for the entire length. It seems that the same rate was quoted by the petitioner, which may indicate that he was aware of the rates proposed by the Irrigation Department. The available records relied on by the prosecution does not seem to indicate that statement of any of the persons who were questioned and the statements recorded had revealed that the sub data was brought to the notice of the contractor. However, if he was under an obligation to refer to

it, before preparing the document or that he had actually seen that document, the situation would be different.

21. It seems to be clear that the contractor is an experienced

contractor. If that be so, the necessity of user of the MS Liner in such constructions by piling into the river bed was an essential ingredient, must be known to him. Further, if it was revealed through cogent materials that, in this case also liner was liable to be used, quoted the price for that rate, but without using that liner took advantage that, it was not specifically mentioned in the NIT and claimed the amount, that would constitute material to allege criminal liability.

22. It seems that , in the proceedings initiated by the contractor,

OP(Crl.)Nos.401/2016 & others 24 counter argument of the prosecution was that the rates quoted by him under clause 2 (a) to 2 (c) were on the higher side. If the value of the piles alone are taken into consideration, contention of contractor was that the rates quoted by him was the normal rate quoted by other contractors for similar works of piling, and for MS liner, separates rates are called and quoted, which would be much higher than the rate quoted by him against clause 2 (a) to 2 (c). In W.P.(C) (civil)No.24302/2020 filed by the petitioner herein, he had filed a comparative statement of the rates quoted by the contractors in relation to eight bridges of Irrigation department and PWD to support his contention. He had relied on the above rates as a comparative statement which shows that the various piles involved in the above eight works varied from 1000 M.M dia to 1200 M.M dia. The works were awarded during the period 2011 to 2015. . It is seen that the rate of piles varied between Rs.24,515/- to Rs. 27,864/- being the rates quoted during the period from 2012 to 2013 which seems to be around Rs.24,515 to Rs.26095/-. In other words, the rate quoted for the piles alone was around Rs.24,000/- to 27,000/-. The rate of the liner varied from Rs.14,174/- to Rs.18,451/-. The total rate thus varied from the range of

Rs.,39,364/- to Rs. 46,215/-. These datas were pressed into service to establish that the rate of Rs.20,528/- quoted by him was the normal existing rate for piles alone that existed during the relevant period. It was also pressed into service to show that in all the NITs the rates for MS Liners were separately asked for .

23. This was heavily relied on by the learned counsel for the contractor

OP(Crl.)Nos.401/2016 & others 25 and the prayer sought in the W.P.(C) No.24302/2020 was for a direction to the investigating agency to take into consideration the above rates in the course of investigation. He had also submitted Ext.P2 representation, requesting for free and fair investigation and the prayer in the above was for consideration of Ext.P2 in the light of the above facts. The prayer sought in another writ petition filed by him as W.P.(C) No.26221/2020 was a direction to the investigating agency to consider the representation submitted by him to consider this contention.

24. It is not clear whether the rates relied on by him relate to the comparable rates and the work done therein were similar and identical to that of the works of construction of bridge across the river Periyar. Whether this is

a relevant material which is liable to be looked into by the investigating agency while in the course of its investigation. This Court, in a challenge to the investigation is not expected to consider such issues , but is delving into such a consideration, since these documents were produced and arguments were advanced on it.

25. The above data relied on by the contractor itself shows that, in all

the tenders of similar nature, MS Liner was an essential part of the work and in all the reasonable course, the petitioner ought to have known about it. In other words, it clearly pre suppose that the petitioner only knowing that the MS Liner was essential work to be done in the case of such constructions and the non mentioning of it in the tender may be an omission.

26. In the light of the above contentions, it seems that the investigation OP(Crl.)Nos.401/2016 & others 26 has to address itself as to the specific question whether the rate quoted by

the petitioner in the normal circumstances included the rate of MS liner. I feel that the investigating agency has to address itself on the above issue. Having considered this, since the conclusions arrived by the investigation agency are not available, I do not feel that it is worthwhile to consider the final conclusions, except directing the investigating agency to consider these

aspects in the light of what is mentioned above. Evidently, the W.P.(C) Nos.26221/2020 & 24302/2020 are liable to be disposed of with the above directions.

27. Crl.M.C.2287/2016 is filed by accused Nos. 8 & 9 who were the

Assistant Executive Engineer and the Assistant Engineer respectively, during the relevant time. Both were working in the Irrigation Department. According to the 8th accused, who is the first petitioner, he was posted as the Assistant Executive Engineer of the Irrigation Department, Aluva on

contract was awarded to the contractor in the present case, prior to the joining of the Assistant Executive Engineer. The contract was entered into on 9/7/2012 about a month after he took charge. It seems that the tender was finalized much earlier and even according to the prosecution, the first petitioner has no role in the preparation of the tender, calling of the tender or in its finalization. The second petitioner who is the 9 th accused joined as the

Assistant engineer of the Pathalam Regulator - Cum-Bridge Section on OP(Crl.)Nos.401/2016 & others 27 Evidently, the prosecution has no case that he was in any manner involved in the finalization of tender. He, in fact, joined much after the agreement was even entered into.

28. It seems that while they were involved in the execution of the work,

it was found that the MS liner was not used by the contractor. Accordingly, the first petitioner, the 8th accused by his communication dated 22/3/2013 produced as Annexure A12 in Crl.M.C.No.2287/2016, informed the executive engineer of the Irrigation Department that MS liner was not used by the contractor. Regarding item No.2a, which was for providing cast in situ piles of 1000 M.M. Dia, in all classes of soil, the quantity executed was 1600.71 m, instead of agreed quantity of 1763 meters . Since no MS liner was used for this item of work, which was found not essential during execution, the cost and working charges of liner may be deducted as per data provision. It was also mentioned that in case of work under clause 2( c) which was for providing cast in situ piles of 500 mm dia in all classes of soil, the quantity executed was Rs.2155.02 meter instead of the agreed quantity of 1360 meter. It was suggested that the difference in quantity executed and agreed was caused due to non consideration of the depth of the entire trial bore holes at the time of preparation of the estimate. The matter was presented in the technical committee and they were convinced. It was also mentioned that MS liner was not used for that item of work which was found not essential during execution, the cost and working charges of liner may be deducted as per data provision.

OP(Crl.)Nos.401/2016 & others 28

29. Accordingly the bills for a sum of Rs.4.9 crores was withheld

consequent to the above communication given by the first petitioner. It seems that thereafter, by Annexure A13, communication of the Additional Chief Secretary dated 9/1/2014 was issued. On the basis of the Chief Technical Examiner’s report,It was directed to the Chief Engineer to release 4.9 crores on the basis of the report of the Chief technical examiner.

30. In the light of the fact that, the petitioners in Crl.M.C.2287/2016

were not in any manner involved in the preparation, finalisation of tender and awarding of contract, they cannot be fastened with any criminal liability in relation to that. Further in fact they had brought to the notice of the higher ups that the MS liner was not used and in fact recommended for withholding of the amount. If the amount was ordered to be released by the Government, the petitioners who are accused Nos. 8 & 9 cannot be found fault with releasing the money. In other words, in releasing the money, no criminal liability can be fastened on the petitioners, in the absence of any materials to show that they had in fact colluded with or conspired with contractor or any other official for illegal profit to the accused. It is also not clear whether there is any allegation of falsification of the records by these accused. If there is no material gathered by the investigating agency, the petitioners are not liable to be proceeded against.

31. Crl.M.C No.2878/2020 is filed by the third accused in the above crime. He was the Chief Technical Examiner (in charge) during the period

OP(Crl.)Nos.401/2016 & others 29 liner, a sum of Rs.3.496/- Crores was withheld. It is reported that the total amount withheld till the time of the dispute arose was 4.9 crores, including the cost of the liner. Complaint was raised by the contractor which was discussed at various levels. Ultimately, the matter was discussed in a high

level meeting held in the chamber of the Minister of Water Resources, in the presence of minister of PWD. It was resolved to refer the matter to the Chief Technical Examiner for his opinion. He was asked to give opinion of CTE. It seems that Annexure 9 files were placed before him and he gave a report dated 9/12/2013 holding that deduction of a part of the quoted rate on the contractors’ bill was not justified by any reasonable conditions or provisions of agreement. Pursuant to the above, it was resolved to release the amount and accordingly it was released. 32.The accused is arrayed as the third accused on a premise that he recommended for release of the amount work of which was not done which was clearly intended to help the accused. Consequently huge amounts were released without any Government order, merely on the basis of the opinion given by the Chief Technical Examiner. On the above basis, the petitioner is arrayed as an accused.

33. Challenging the prosecution, the learned senior counsel for the

above petitioner vehemently contended that even from the admitted records, no offence has been made against the third accused, independently or in combination invoking section 120B IPC. It was contended that merely on the basis of giving opinion which were substantiated by valid reasons, he cannot OP(Crl.)Nos.401/2016 & others 30

be prosecuted for not having given a recommendation in favour of the Irrigation Department. It was contended that his reasons were para wise and none of the reasons stated by him in the above report produced as Annexure 10 was found to be not sustainable. He has given cogent reasons for his own conclusion, none of which can be assailed in the court of law. It was further contended that even if there was an error in the report, that may not cast any criminal liability on him, much less any civil liability even. It was vehemently further contended by the learned senior counsel that he did not recommend for release of the money. He only stated that the withholding of

the amount was improper and had no legal basis. The superior authorities were not bound by his opinion and they had the freedom to overrule is decisions and he cannot be burdened with any criminal liability for having given his opinion on record, it was argued.

34. Annexure 9 is the notes on file which seems to clarify the manner

in which various suggestions were put forth by the officers at various levels, ultimately culminating in the opinion of the third accused. It is recorded on the first page of Annexure 9 dated 20/8/2013 that pursuant to a decision to seek the opinion of the Chief Technical Examiner, the file was placed before him for his perusal and opinion. It seems that, pursuant to that a direction was issued for a site inspection at the earliest along with ATE 4. Thereafter an opinion is seen given by ATE 3 that the estimates submitted by the

Irrigation Department AEE on 4/11/2013 was scrutinized and found that in the data for board- cast -in -situ piles,1000mm, the rate adopted for the

OP(Crl.)Nos.401/2016 & others 31 machinery was found to be incorrect. It was also noted that in the sub data, amount of Rs.9739.24 per m was provided for providing casting pipe of inner dia 1000 MM. Accordingly, the rate per meter of the pile was fixed as Rs.20,528/- per meter. This was the rate quoted by the contractor, which he now claims was not inclusive of the line. It was mentioned therein that on scrutiny of the tender schedule for the specification of the Board Cast in Situ piles, nothing was mentioned about the steel liner. It was also noted on the file that Irrigation AE & AEE attended the office on 4/11/2013 and discussed with ACTE & TE3. The rate was submitted for 1000 MM dia pile without liner. Ultimately it was held that while preparing the estimate for technical sanction, provision for steel liner was included in the data and the rate per pile was Rs.20528/-. However, while issuing tender, schedule steel liner

was not mentioned in the schedule. But the rate shows Rs.20528/- per meter. It was found that the data adopted for technical sanction was incorrect. It was also reported that without mentioning the steel liner, the tender schedule was issued by keeping the rate at Rs.20,520/- per meter which was arrived after inclusion of the steel liner. The field officer had reported that the piles have already been casted, without steel liner.

35. It seems that ACTE thereafter raised a querry as to whether anywhere it was mentioned that the contractor has to execute as per the

details given in data used for preparation of the estimate. He was also requested to suggest as to whether it was correct to reduce the rate of liner, if it was not mentioned. The file noting indicates that the copy of the estimate OP(Crl.)Nos.401/2016 & others 32 or data was not supplied with the tender documents while calling the bills. Hence, the selected contractor was bound to follow the specification mentioned in the tender schedule and the general conditions of contract. The tender schedule submitted by the AEE was examined and in Appendix

B item Nos.2(a),2(b) and 2(c) of tender schedule steel liner was not mentioned in the specification. It was hence suggested by the officer that the contractor was not informed of providing steel liner, while quoting the tender, unless it was discussed in a pre bid meeting. Nothing mentioned about the pre bid meeting. Hence, it was suggested that the contractor ws eligible for the quoted rate/approved rate for the specification mentioned in the tender schedule Ultimately, ATE concluded that there was no logic or social justice in deducting the rate of steel liner from the rate of boarding cast in piles, since steel liner was not mentioned in the tender schedule. It seems that other officers had also given their suggestions. Ultimately, it indicated that neither the sub data was made available to the contractor nor available records indicate that at any point of time contractor was informed about the necessity of providing MS liner.

36.The opinion of superintendent engineer is seen referred to in the

noting dated 4/12/2013 by the ATE. Superintendent engineer seems to have taken the stand that his office was incompetent in interpreting the agreement clause. It was also clarified that there was no such clause in the agreement which stipulated that the contractor has to follow the provisions in the sub data. It was suggested that when there is a change in the specification of an

OP(Crl.)Nos.401/2016 & others                 33
item,the   item shall be converted to extra/substitute items and       only the
technical sanction authority can approve such variations.       Modification of

rate without change in specification was not permitted, unless sanctioned by the Government. It was also mentioned that the superintendent engineer had submitted that the rate worked out for 1000 MM Dia piles without liner and that on the scrutiny of the rate analysis, it was found that standard data by MOST was found to be altered. Ultimately, the CTE on the basis of the above inputs held that there was nothing on record to indicate that item description in the agreement schedule did not specify the use of steel liner as a part of the item. It was found that the data of estimate contain sub data for steel liner, however agreement authority could not produce any evidence which showed that the agreement, stipulated that the contractor should refer to the data in preparing in the agreement estimate. It was also found that at no point of time, the contractor were directed to include liner in the piling works during the execution stage and also further that before quoting the rate, the contractor was not informed at any stage that the item was inclusive of the liner. Ultimately, it was held that deduction of a part of the quoted rate from the contractors’ bills was not justified by any reasonable conditions or

provisions of the agreement. Before quoting the rate,the contractors were not informed at any stage that the item was inclusive of the liner. The opinion of the CTE, accordingly was that the action taken by the Irrigation Department to withhold the amount of Rs.4.9 Crores on account of non execution of steel liner was not justified. OP(Crl.)Nos.401/2016 & others 34

37. This opinion pursuant to which the amount was ordered to be

released is projected as a faulty one and that resulted in disbursement of the amount in favour of the contractor and thereby he sustained illegal gain. It seems that nothing was placed before the CTE to indicate that the sub data was made available to the contractor. There was nothing on record to show that, at any point of time, including a pre bid meeting, the contractor was informed that he was under an obligation to utilize to provide MS Liner.

38. In the light of the inputs earlier discussed, the CTE had his own

reasons to arrive at his own conclusions. In the above circumstance, it is also to be noted that he had given his opinion but did not recommend for release of the money as such. Further the superior authority had option to differ from his conclusion if any of the reasons suggested by him was found to be faulty. Hence merely because of giving an opinion, that too may be a

wrong one, the 3rd accused is normally not liable to be fastened with criminal liability, unless there are materials to show that he was actuated by mala fides or motives in holding that the withholding was illegal. It is for the investigating agency to decide whether it was liable to be prosecuted, whether he was actuated by malice that there was conspiracy or that there were reasons or materials before the CTE which persuaded him which have been ignored by him and was persuaded to take a contra decision.

39. It is true that the CTE has given his valid reasons for taking such a stand. However, the error committed by him in his conclusion was that there were clearly on record that the rate suggested by the Irrigation

OP(Crl.)Nos.401/2016 & others 35 Department for the above works included the work for steel liner also. It was also evident that it was mistakenly not carried forward by holding that the contractor was entitled for that amount indirectly he was getting an unjust enrichment. Whether it was purposeful or with malafice pursuant to a conspiracy entered into with the contractor are all matters which are to be

enquired. It is also to be enquired whether any pre bid meeting was conducted and whether in the pre bid meeting minutes, it is recorded that the contractor was informed that the use of liner was mandatory provision and that the rate quoted by him included the steel liner also. Investigation has to proceed on that line. It is made clear that the investigating agency before finalizing the report shall apply its mind on this aspect and if there is no other materials to show that the opinion given by the CTE is actuated by the mala fides or that he had entered into a conspiracy with other accused, prosecution of the accused merely for giving a wrong opinion may not be justifiable.

40. Crl.M.C.2928/2020 is filed by the 6 th accused. According to the 6th accused he took charge as the executive engineer of the irrigation

department of Ernakulam on 1/12/2013. He was also in charge of the execution of the work of Pathalam bridge regulator - cum - barrage. The petitioner therein stands arrayed as the 6th acused . According to him, he took charge one year and four months after the commencement of the work of the Pathalam bridge. The entire process commencing from the identification of Bore holes, preparation of design, preparation of estimate, according

OP(Crl.)Nos.401/2016 & others 36 administrative and technical sanction inviting the tender and awarding of work, had taken place prior to the petitioners’ transfer to Ernakulam Division. He had no role or connection with whatsoever in the preparation of estimate of subject work.

41. It is contended that the superintending engineer though was the

authority with whom the agreement was executed, the executive engineer was to ensure that the work was executed in conformity with the terms of the schedule appended to the agreement. More than 70%of the work had been completed before the petitioner took charge as the executive engineer. It was stated that the design for the regulator-cum-bridge was prepared by the Investigation Design Research Board (IDRB) of the Irrigation Department. Thereafter, based on the said design, the then Assistant Engineer who was working in the Pathalam Regulator - cum - bridge section prepared the estimate and forwarded it to the Government through proper channel in the year 2011. Thereafter, the Government accorded administrative sanction for the construction of regulator-cum-bridge at Pathalam by GO dated

Thrissur, tendered the work on 14/3/2012 for the construction. Thereafter, the present contractor was selected , contract was awarded and agreement was executed on 9/7/2012 by the Superintending engineer with the contractor.

42. Originally, proposal was to construct a check dam having a width

OP(Crl.)Nos.401/2016 & others 37 of 2 meter which, as mentioned earlier, was later changed to construction of a regulator - cum-bridge. During the construction of regulator - cum- bridge, the depth of piling required for bridge was found to be more than that was to identified for the construction of the check dam. Hence, the technical

committee convened a meeting on 24/12/2012 and after considering all aspects, accorded sanction to construct by having a depth of 19.30 meters below the Mean Sea Level (MSL) instead of 11.50 meters below MSL , as originally sanctioned. The preparation of the estimate, the agreement of schedule and execution of the agreement were long before the above petitioner took charge in the division and the petitioner has nothing to do with the drawbacks, if any in the estimate. It was also mentioned that , since the contractor constructed the piles only in accordance with the conditions stipulated in the agreement, the predecessor of the petitioner had written to the higher authorities to recover the cost of liner from the contractor. On the basis of the report submitted by the predecessor of the petitioner, an amount of Rs. 3,49,64,316.90 crores was withheld from the seven part bills.

43. It was vehemently contended by the learned senior counsel for the

third accused that the above facts clearly show that the above petitioner was not in any manner involved in the preparation of the plan and tendering of it and was involved only in execution of the work for a short period. No criminal liability can be fastened on him on the basis of the above facts. It was contended that there is absolutely no materials to show that he had committed any illegal act .

OP(Crl.)Nos.401/2016 & others 38

44. There is no dispute that the petitioner was not in the picture till at

the time of awarding the contract. He joined the post much later . However, a detailed statement was filed by the investigating agency in which it was alleged that there were involvement of petitioner, in the execution of the work also. It was stated that piling work was not actually done in the length recorded in the M book and scientific test was not conducted to know the actual depth of the pile and also did not conduct scientific test for calculating the strength and volume of steel piling and with the consent knowledge of the officials of the irrigation department the contractor laid a pipeline through the bridge for evicting the chemical waste water of CMRL by accepting 2.5 Crores as remuneration. This was one of the allegation raised against the contractor and the co-accused.

45. According to the investigating agency, the above allegation was

investigated into detail. It was found that if the sanctioned estimate of the work rate for items Nos. 2a, 2b and 2(c) in tender schedule were arrived at, for providing the liner for the entire length of pile and the rate was 20528/- per meter. Though steel liner is provided as a separate item, and the length of liner to be provided is based on the condition and nature of pile in the in that construction, the cost of steel liner was added to, and concreting of the pile, to arrive at this rate per meter. It seems that the provision for liner was not mentioned in the specification of item which according to the investigating agency was a lapse. The verifying and sanctioning authorities did not notice this lapse. Thus without correcting these lapses, tenders were invited and

OP(Crl.)Nos.401/2016 & others 39 the contract was finalized, without including steel liner as a separate item. Definitely, this liability cannot be cast on the petitioner herein, who is the 6 th accused.

46. However, in the course of investiation, it was stated by the investigating agency that during the course of execution of the work, in certain provisions original estimate were seen inadequate, due to the

prevailing condition. It was the 6th accused who prepapred the revised estimate. When the revised estimate was prepared, he did not propose the extra items of 2a 2b & 2c. He also failed to quote the excess quantity of the rate in the original estimate in the revised estimate also. When the first revised estimate was approved by the Government, it was specifically pointed out that, it should be done as per agreement clause 2(a), 2(b) and 2(c). But when the second revised estimate was prepared by the petitioner that did not consider it. According to the investigating agency, it was a malafide attempt of the petitioner as an official to benefit the contractor.

47. Yet another allegation was that when the extra items for the work were prepared for clauses 2(a), 2(b) and 2 (c), the rate in the original

estimation have been given. Moreover, the extra works relating to hire charges, labour, fuel,etc.should have been multiplied by 0.5 and it should mandatorily have been mentioned in the estimate. However, the petitioner in his capacity as the executive engineer had committed official lapse by multiplying 0.5 with total work, instead of only their extra work resulted in loss to the government and gain to the accused. When the petitioner took

OP(Crl.)Nos.401/2016 & others 40 charge of the executive engineer he had disbursed Rs.41,61,45,459/- to the contractor through part bills which through 13 parts bills which was illegal. It was also alleged that without valid government order, simply relying on the letter by the principal secretary, prepared on a technical opinion by the CTE

finance department,the petitioner released the amount to the contractor which was detailed by the Department for non user of steel liner.

48. The deduction of cost for non use of steel liner upto 7 th part bill

is recorded in the M Book. The executive engineer should prepare a estimate at the same rate, as included in the original estimate in excess quantitity. However to help the contractor he deliberately avoided the extra item 2 a 2 b and 2 c while preparaing the revised estimate to. Ultimately it was concluded that he has committed serious irregularities. In the light of the

objections, I feel that some grounds have been made out for prosecuting the 6th accused .

49. The investigation has to address itself to ascertain whether

there was a large scale conspiracy, that undue advantage was made to the contractor and that the some of the officers colluded. The writ petition filed by the contractor is liable to be disposed of with a direction to the authority to consider the matter afresh and take up decision on the basis of the available materials. The investigating agency shall also consider whether there was

any conspiracy with any of the other accused for unlawful gain. The individual role of accused Nos.3, 6. 7 and 8 & 9 shall be separately understood and appropriate decision shall be taken at the earliest.

OP(Crl.)Nos.401/2016 & others 41 Having considered the above, I am inclined to dispose of all the above petitions, with the above directions. Sd/- SUNIL THOMAS,Judge dpk OP(Crl.)Nos.401/2016 & others 42 APPENDIX OF OP(CRL.) 401/2016 PETITIONER EXHIBITS EXHIBIT:P1 TRUE COPY OF THE TENDER NOTICE DT. EXHIBIT:P2 TRUE COPY OF THE LETTER OF ACCEPTANCE OF TENDER DT. 14/6/12 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT:P3 TRUE COPY OF THE AGREEMENT DT. 9/7/12

EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT THE SCHEDULE OF CIVIL AND MECHANICAL WORKS ATTACHED TO THE AGREEMENT

EXHIBIT:P4 TRUE COPY OF THE ORDER DT. 24/4/14 SANCTIONING THE REVISED ESTIMATE EXHIBIT:P5 TRUE COPY OF SUPPLEMENTAL AGREEMENT NO. VIII DT. 23/2/16 ALONG WITH THE SUPPLEMENTAL SCHEDULE FOR EXTRA ITEMS OF WORK EXHIBIT:P6 TRUE COPY OF THE LETTER DT. 17/4/13 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER EXHIBIT:P7 TRUE COPY OF THE LETTER DT. 28/2/14 ISSUED BY THE GOVERNMENT OF KERALA EXHIBIT:P8 TRUE COPY OF THE COMPLAINT DT. 10/2/15 FILED BY THE 4TH RESPONDENT EXHIBIT:P9 TRUE COPY OF THE QUICK VERIFICATION REPORT DT. 12/5/15 ALONG WITH THE SITE INSPECTION REPORT SUBMITTED EXHIBIT:P10 TRUE COPY OF THE ADDL. COMPLAINT DT. THE SPECIAL JUDGE EXHIBIT:P11 TRUE COPY OF THE QUICK VERIFICATION REPORT DT. 29/3/16 EXHIBIT:P12 TRUE COPY OF THE ORDER DT. 17/3/16 ISSUED OP(Crl.)Nos.401/2016 & others 43 BY THE 2ND RESPONDENT EXHIBIT:P13 TRUE COPY OF THE ORDER DT. 19/3/16 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, MUVATTUPUZHA EXHIBIT:P14 TRUE COPY OF THE FIR VC 8/16 DT. 4/4/16 OF THE VIGILANCE AND ANTI-CORRUPTION BUREAU, ERNAKULAM EXHIBIT P15 TRUE COPY OF THE RELEVANT PAGES OF THE INSTRUCTION TO BIDDERS. EXHIBIT P16 TRUE COPY OF THE DESIGN ISSUED BY THE DEPARTMENT. EXHIBIT P16(a): TRUE COPY OF THE RELEVANT PAGES OF

DRAWING PERTAINING TO THE WORK OF "CONSTRUCTION OF MCMV OFFICE BUILDING FOR GOA SHIP YARD", "CONSTRUCTION OF FLYOVER AT KUNDANNOOR JUNCTION AT NH 66" AND "CONSTRUCTION OF LOCK CUM REGULATOR AT PURAPPILLYKKAVU ACROSS PERIYAR RIVER". EXHIBIT P17: TRUE COPY OF THE RELEVANT PAGES OFTHE KERALA PWD MANUAL.

EXHIBIT P18: TRUE COPY OF THE MINUTES OF MEETING HELD

ON 24/12/2012.

EXHIBIT P19:               TRUE COPY OF THE CERTIFICATE DATED
EXHIBIT P20:               TRUE COPY OF THE PILE LOAD TEST RESULT.
EXHIBIT P21:               TRUE COPY OF THE COMPARATIVE STATETMENT

OF RATES FOR PILING WORKS WITHOUT MS LINER FOR 6 WORKS. EXHIBIT P22: TRUE COPY OF THE RELEVANT PAGES OF THE TENDER DOCUMENTS. EXHIBIT P23: TRUE COPY OF THE COMPARATIVE STATEMENT OF RATES FOR PILING WORKS WITHOUT MS LINER FOR 6 WORKS.. EXHIBIT P24: TRUE COPY OF THE RELEVANT PAGES OF THE OP(Crl.)Nos.401/2016 & others 44 TENDER DOCUMENTS. EXHIBIT P25: TRUE COPY OF THE RELEVANT PAGES OF THE DATA FOR PILING WORKS REGARDING TENDER DOCUMENTS IN EXT.P24.

RESPONDENTS EXHIBITS: ANNEXURE R3(A): COPY OF COMPLAINT DATED 19/9/2013 ALONG WITH THE ENDORSEMENT DATED 20/9/2013 ANNEXURE R3(B): COPY OF THE FORWARDING LETTER ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE DATED 18/2/2014 ANNEXURE R3(C): COY FO THE LETTER NO. TI(CV-3)2014/EKM DATED ANNEXURE R3(D): COPY OF THE CONFIDENTIAL ENQUIRY REPORT NO.CV- ANNEXURE R3(E):COPY OF ORDER NO.E7(QV 60/2014-EKM)8440/2014 DATED 22/12/14 ANNEXURE R3(F): COPY OF THE DIRECTION DATED 21/3/2015 ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE THRISSUR ANNEXURE R3(G): COPY OF THE LETTER DATED 13/7/2015 FORWARDING EXHIBIT P3 ANNEXYRE R3(H): COPY OF THE LETTER NO.E7(QV-24/15/EKM)13694/15 DATED 4/9/2015 ANNEXURE R3(I): COPY OF THE DIRECTION ISSUED BY DIRECTOR, VACB

TO DEPUTY SUPERINTENDENT OF POLICE, VACB NO.E7-(QVOP(Crl.)Nos.401/2016 & others 45 APPENDIX OF CRL.MC 2287/2016 PETITIONER ANNEXURE ANNEXURE A1: TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE OF THE IST PETITIONER. ANNEXURE A2: TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE OF THE 2ND PETITIONER.

ANNEXURE A4:               TRUE COPY G.O. DATED 31.1.2012.
ANNEXURE A5:               TRUE COPY G.O. DATED 3.4.2012.
ANNEXURE A6:               TRUE COPY OF THE CONTRACT AGREEMENT DATED

9.7.2012. ANNEXURE A7: TRUE COPY OF G.O. DATED 12.11.2012. ANNEXURE A8: TRUE COPY OF THE GEO TECHNICAL REPORT SUBMITTED BY THE PETITIONERS BEFORE THE TECHNICAL COMMITTEE. ANNEXURE A9: TRUE COPY OF THE MINUTES OF THE MEETING OF THE TECHNICAL COMMITTEE. ANNEXURE A10: TRUE COPY OF THE RELEVANT PAGE OF THE SANCTIONED DATA RELATING TO THE PILE FOUNDATION. ANNEXURE A11: TRUE COPY OF THE RELEVANT EXTRACT OF THE

AGREEMENT SCHEDULE ATTACHED TO THE AGREEMENT EXECUTED BETWEEN THE CONTRACTOR AND THE SUPERINTENDING ENGINEER.

ANNEXURE A12: TRUE COPY OF THE REPORT DATED 22.2.2013 SUBMITTED BY THE IST PETITIONER TO THE EXECUTIVE ENGINEER. ANNEXURE A13: TRUE COPY OF THE LETTER DATED 9.1.2014 ISSUED BY THE GOVERNMENT. ANNEXURE A14: TRUE COPY OF THE LETTER DATED 28.2.2014 ISSUED BY THE GOVERNMENT. OP(Crl.)Nos.401/2016 & others 46 ANNEXURE A15: TRUE COPY OF THE ORDER DATED 15.2.2016 ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) TO THE 2ND RESPONDENT. ANNEXURE A16: TRUE COPY OF THE REPORT DATED 20.2.2016

SUBMITTED BY THE 2ND RESPONDENT BEFORE THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA. ANNEXURE A17: TRUE COPY OF CRL.M.P.FILED BY THE 4TH RESPONDENT. ANNEXURE A18: TRUE COPY OF THE ORDER DATED 19.3.2016 ISSUED BY THE IST RESPONDENT. ANNEXURE A19: TRUE COPY OF THE FIR NO.8/2016 ON THE FILES OF THE VIGILANCE & ANTI CORRUPTION BUREAU, ERNAKULAM. RESPONDENTS EXHIBTS ANNEXURE R3(A): COPY OF COMPLAINT DATED

DATED 20/9/2013 ANNEXURE R3(B): COPY OF THE FORWARDING LETTER ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE DATED 18/2/2014 ANNEXURE R3(C): COY FO THE LETTER NO. TI(CV-3)2014/EKM DATED 19/4/2014 OF DIRECTOR OF VIGILANCE ANNEXURE R3(D): COPY OF THE CONFIDENTIAL ENQUIRY REPORT NO.CV-3/2-14/EKM DATED ERNAKULAM. ANNEXURE R3(E):COPY OF ORDER NO.E7(QV ANNEXURE R3(F): COPY OF THE DIRECTION DATED 21/3/2015 ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE THRISSUR ANNEXURE R3(G): COPY OF THE LETTER DATED ANNEXYRE R3(H): COPY OF THE LETTER NO.E7(QV-24/15/EKM)13694/15 DATED

OP(Crl.)Nos.401/2016 & others 47 ANNEXURE R3(I): COPY OF THE DIRECTION ISSUED BY DIRECTOR, VACB TO DEPUTY SUPERINTENDENT OF POLICE, VACB NO.E7-(QVOP(Crl.)Nos.401/2016 & others 48 APPENDIX OF WP(C) 7259/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE FIR IN V.C.8/2016 OF THE VACB, ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE QUICK VERIFICATION REPORT QV 24/15/EKM DATED 29.02.2016. EXHIBIT P3 TRUE COPY OF THE NOTICE INVITING TENDER ALONG WITH SCHEDULE DATED 18.01.2012 FOR THE WORK NABARD-RIDF-CONSTRUCTION OF REGULATOR CUM BRIDGE AT PATHALAM ACROSS PERIYAR RIVER IN ERNAKULAM DISTRICT. EXHIBIT P4 TRUE COPY OF QUICK VERIFICATION REPORT OF THE DY. SP., VACB, ERNAKULAM DATED 12.05.2015 ALONG WITH THE SITE INSPECTION REPORT.

EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER

NO.402/2014/WRD DATED 24.04.2014 FOR SANCTIONING REVISED ESTIMATE. EXHIBIT P6 TRUE COPY OF LETTER NO.27427/NPI/12/WRD DATED 28.02.2014 OF THE ADDL. CHIEF SECRETARY TO CHIEF ENGINEER (I&A). EXHIBIT P7 TRUE COPY OF THE ORDER DATED 19.03.2016 IN CRL.M.P.NO.2/2016 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) MUVATTUPUZHA. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION (WITHOUT

ANNEXURES) DATED 25.02.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P9: COPY OF THE COMPARATIVE STATEMENT OF RATES FOR PILLING WORKS WITHOUT MS.LINER FOR 6 WORKS. EXT.P10: COPY OF THE RELEVANT PAGES OF THE TENDER DOCUMENTS PERTAINING TO THE WORKS MENTIONED IN EXT.P9

OP(Crl.)Nos.401/2016 & others 49 APPENDIX OF CRL.MC 2878/2020 PETITIONER ANNEXURE ANNEXURE 1 TRUE COPY OF THE QUICK VERIFICATION REPORT NO. QV-60/2014-EKM DATED 12-05- 2015 ALONG WITH A COPY OF JOINT SITE INSPECTION MAHAZAR ANNEXURE II TRUE COPY OF THE COMPLAINT CMP NO. 256/15 DATED 10-02-2015 ANNEXURE III TRUE COPY OF CMP NO. 483115 DATED ANNEXURE IV TRUE COPY OF THE CRL.M.P NO. 2/2016 IN CRL.M.P 256/2015 IN CRL.M.P 483/2015 ANNEXURE V TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 29/2/2016 SUBMITTED AS QV 24115/EKM ANNEXURE VI TRUE COPY OF THE ELTTER DATED 17/3/2016 ANNEXURE VII TRUE COPY OF THE ORDER DATED 19/3/2016 IN CRL MP NO. 2/2016 BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, MUVATTUPUZHA ANNEXURE VIII TRUE COPY OF THE FIR IN VAC 8/16 OF VACB, EKM ANNEXURE XI TRUE COPY OF OFFICE FILE BEARING NO. 62128/FW-C1/13/FIN ANNEXURE X TRUE COPY OF THE REPORT DATED 9-12-2013 SUBMITTED BY THE PETITIONER HEREIN TO THE SECRETARY,FINANCE ANNEXURE XI TRUE COPY OFFICE FILE BEARING NO. 62128/FW-C1/13/FIN. ANNEXURE XII TRUE COPY OF THE COMMON ORDER DATED 25-5- 2020 IN O.P (CRL.) NO. 401/2016 AND CONNECTED CASES PASSED BY THIS HON'BLE COURT. OP(Crl.)Nos.401/2016 & others 50 APPENDIX OF CRL.MC 2928/2020 PETITIONER ANNEXURE ANNEXURE I TRUE COPY OF THE FIR IN VC NO. 8/16 OF VACB ERNAKULAM, ALONG WITH THE TYPED COPY. ANNEXURE II TRUE COPY OF THE QUICK VERIFICATION REPORT NO.VQ-60/2014-EKM DATED 12.05.2015, ALONG WITH THE COPY OF JOINT SITE INSPECTION MAHAZAR. ANNEXURE III TRUE COPY OF C.M.P. NO.256/2015 DATED 10.02.2015. ANNEXURE IV TRUE COPY OF C.M.P. NO.483/2015 DATED 10.02.2015. ANNEXURE V TRUE COPY OF CRL.M.P. NO.2/2016 IN CRLM.P.NO.483/2015 IN CRL.M.P. NO.256/2015. ANNEXURE VI TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 9.02.2016 SUBMITTED AS QV ANNEXURE VII TRUE COPY OF THE LETTER DATED 17.03.2016 ISSUED FROM THE OFFICE OF THE DIRECTOR VACB. ANNEXURE VIII TRUE COPY OF THE ORDER DATED 19.03.2016 IN CRL M P NO.2/2016 BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE MUVATTUPUZHA.

ANNEXURE IX                TRUE COPY OF THE GO DATED 28.12.2011.
ANNEXURE X                 TRUE COPY OF THE G.O. DATED 31.1.2012.
ANNEXURE XI                TRUE COPY OF THE AGREEMENT DATED

09.07.2012 BETWEEN MARYMATHA CONSTRUCTION COMPANY AND THE SUPERINTENDING ENGINEER. ANNEXURE XII TRUE COPY OF THE G.O. DATED 12.11.2012. OP(Crl.)Nos.401/2016 & others 51 ANNEXURE XIII TRUE COPY OF THE GEO TECHNICAL INVESTIGATION REPORT CONDUCTED BY THE FOUNDATION ENGINEERING WING OF GOVERNMENT ENGINEERING COLLEGE, TRIVANDRUM, SUBMITTED BEFORE THE TECHNICAL COMMITTEE DATED 11.12.2012

ANNEXURE XIV TRUE COPY OF THE MINUTES OF THE MEETING OF THE TECHNICAL COMMITTEE DATED 24.12.2012. ANNEXURE XV TRUE COPY OF THE LETTER OF THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT DIRECTING DISBURSAL OF RS. 4.9 CRORES DATED 09.01.2014. ANNEXURE XVI TRUE COPY OF THE LETTER DIRECTING DISBURSAL OF AMOUNTS ON WITHHELD BILLS TO THE CONTRACTOR DATED 28.02.2014. OP(Crl.)Nos.401/2016 & others 52 APPENDIX OF WP(C) 24302/2020 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE QUICK VERIFICATION REPORT QV24/15/EKM DATED 29.2.2016 EXHIBIT P2 A TRUE COPY OF THE FIR IN CRIME 8/2016 OF VACB ERNAKULAM EXHIBIT P3 A COMPARATIVE COMPARATIVE CHART OF 8 TENDERS/WORKS OF THE IRRIGATION DEPARTMENT AND PWD DURING THE YEAR 2012- EXHIBIT P4 A TRUE COPY OF THE RELEVANT PAGES OF THE TENDER DOCUMENTS. EXHIBIT P5 A TRUE COPY OF THE STATEMENT OF THE 3RD RESPONDENT DATED 2.11.2020 IN IA 4/2020 IN OP(CRL) 401/2016 OP(Crl.)Nos.401/2016 & others 53 APPENDIX WPC NO.26221/2020

EXT.P1: COPY OF THE COMPLAINT DATED 13/11/2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT