Judgment:
R.S. Mongia, J.
1. Petitioner had joined Punjab P.W.D. (B & R) Department as a Junior Engineer in August, 1956. On September 1, 1976, tenders were invited for constructing bridge over the peripheral road between Sectors 62-63, Mohali by the then Executive Engineer, Incharge of the Construction Division, S.A.S. Nagar, before the posting of the petitioner as Junior Engineer in that division. The tenders submitted by Shri P.L. Dua, contractor, had been accepted by the then. Executive Engineer of the Construction Division, S.A.S. Nagar. The rates etc. which were settled were also conveyed to the Chief Engineer on February 1, 1977.
2. The petitioner joined the said Construction Division on transfer on June 14, 1977 as Junior Engineer when the above said work on the site was already in progress. Even two running bills had already been sanctioned and paid to the contractor on the basis of the rates, which were settled by the then Executive Engineer.
3. It has further been averred in the writ petition that the work on the site was completed somewhere in the year 1978 and in the Audit Inspector Report of the year 1979, it had been pointed out that some irregularities had taken place while sanctioning the rates to the contractor and over payment to the tune of Rs. 1,01,959/- had been made. The petitioner was issued a show cause notice dated September 5, 1980 (copy at Annexure P.7) by the then Executive Engineer, S.A.S. Nagar, Construction Division, in which it had been mentioned that the petitioner had allowed the payment of special rates for well sinking to Shri P.C Dua, Contractor, in various running bills prepared by him which had resulted in excess payment to the contractor to the tune of Rs. 1,01,959/-. The petitioner was asked to explain as to under what authority the payment of special rate for well sinking was recommended by him. The petitioner gave reply on September 12, 1980 (Annexure P.8) mentioning therein that the petitioner had nothing to do with the settling of the rates and the rates had already been settled between the Executive Engineer and the contractor and the same had also been approved by the Supdtg. Engineer and sent to the Chief Engineer. Not only that, prior to the petitioner's taking over as Junior Engineer, the work was already in progress and payments of the earlier running bills had been made by the previous officers' after due sanction by the Sub-Divisional Engineer etc. in which the same rates had been sanctioned as were recommended by the petitioner as the rates already stood sanctioned and approved by the competent authority, in which the petitioner as Junior Engineer had no hand. After filing of the reply, the matter rested there. However, in February, 1990, a departmental enquiry was initiated against Shri T.C. Bali, Executive Engineer of the S.A.S. Nagar Construction Division, regarding dereliction of his duties resulting into excess payment of Rs. 1,01,959/-. It may be observed here that this enquiry was specifically against Shri T.C. Bali alone. In the report submitted by the Enquiry Officer, it was observed that since the competent authority had not approved any payment of N.S. rate at any stage, the action of Shri Bali in allowing N.S. rate is not justified. Regarding the other plea of action of the other officers/officials it was observed that was not the issue before the Enquiry Officer, but the Junior Engineer, Sub-Divisional Engineer, Divisional Accountant cannot be absolved of responsibilities and with this loss attributable to Shri Bali get reduced to 25% of the total loss. It was further reported that the charge of dereliction of duties as laid down in paragraph 5.4. of the P.W.D. Manual of Orders is proved against Shri Bali and the loss attributed to him was only 25% of the total loss.
4. Petitioner retired from service w.e.f. April 30, 1992. While releasing the retiral benefits, a sum of Rs. 25,439/- was withheld from gratuity on account of recoveries against him. This was done vide order dated November 25, 1992 (copy at Annexure P.14).
5. It may be observed here that a show cause notice dated March 25, 1991 (copy at Annexure P. 10) was issued to the petitioner, in which it was mentioned that the petitioner had got the work done in a hurry and made the over payments to the contractor which had resulted in a loss to the Government to the tune of Rs. 1,01,959/- but he was being held responsible for the loss of only Rs. 25,489/- as that loss came to his share. It was also mentioned in the show cause notice issued to him as to why one increment without future effect be not stopped. He gave a detailed reply on August 28, 1991 (Annexure P.13). It was inter -alia pleaded in the reply that apart from the fact that the matter related to the years 1976-78, the petitioner had nothing to do with the sanctioning of the rates. In any case, no enquiry had been held against the petitioner as to how he was responsible for any loss that might have been caused to the Government and simply because the enquiry officer in his report in the departmental enquiry against Shri T.C. Bali, the Executive Engineer, had observed that the other officers/officials cannot be absolved did not mean that the petitioner was actually responsible for the loss and how the loss had been calculated to the tune of Rs.25,489/-. The State Government, however, passed the impugned order dated August 24, 1993 (Annexure P.16), in which it has been mentioned that the reply of the petitioner has been considered and the comments of the Chief Engineer, Punjab P.W.D. (B&R;) were also asked for wherein he had mentioned that the petitioner was responsible for 25% of the loss and, therefore, had recommended the recovery of Rs. 25,489/- from the petitioner. This led the petitioner to file the present writ petition.
6. Learned counsel for the petitioner argued that the impugned order of recovery of the amount is wholly arbitrary and has ignored the legal as well as the factual aspect of the matter. He submitted that the petitioner, admittedly, had no role in settling the rates with the contractor, Shri P.L. Dua. The rates had already been settled prior to his joining in the concerned Division by his superiors. Not only that, some payments of the running bills had already been made by his predecessor, which were approved by his bosses i.e. the Sub-Divisional Engineer and the Executive Engineer and if the petitioner had recommended the payment on the same rates as was done by his predecessor, which rates were sanctioned by his bosses i.e. Executive Engineer, he could not be held responsible for recommending the payment to the contractor on those rates. Further he submitted that no enquiry was held against the petitioner regarding any loss that might have been incurred by the State Government. The departmental enquiry was only against the Executive Engineer, Shri T.C. Bali, and it was only in the report of the enquiry officer that it was observed that the other officers/officials i.e. the Sub-Divisional Engineer etc. cannot be absolved of the responsibilities and, therefore, the responsibility of the loss of Shri T.C. Bali, Executive Engineer, was only to the tune of 25%. He submitted that an independent enquiry should have been held against the petitioner. It was also argued that initially a show cause notice was issued to the petitioner inter-alia mentioning therein that he was responsible for the entire alleged loss of Rs. 1,01,959/-, to which he gave reply. Thereafter, just on the basis of the enquiry report against Shri T.C. Bali, the petitioner was made liable for loss to the tune of 25% of the total alleged loss. On what basis the petitioner was being held to be liable to the tune of 25%. The basis on which the Chief-Engineer in his comments held the petitioner liable to the extent of Rs. 25,489/- are also not forthcoming at all. Moreover, according to the learned counsel while withholding the impugned amount, when the other retiral benefits were released, vide order dated November 25, 1992, the mind had already been made up that amount in any case had to be recovered from the petitioner. It was still further argued that the petitioner could not have been punished just by issuing a show cause notice that why he should not be held liable for the loss to the tune of Rs, 25,489/-. In fact, a regular departmental enquiry should have been held against the petitioner before ordering any such recovery.
7. Learned counsel for the respondents could not successfully argue as to how the petitioner was being held responsible for the payments that had been made on the rates which had been sanctioned atleast upto the level of Executive Engineer/Superintending Engineer. It is not disputed that prior to the petitioner's taking over, the work was already in progress and some payments of the running bills had already been made on the rates already sanctioned. Further, how on the basis of enquiry against Sh. T.C. Bali, Executive Engineer, the petitioner has been burdened with a loss to the tune of 25% of the total loss in also not decipherable from any documents as to how this figure was reached so far as the petitioner is concerned. Why can't it be said in a given case that the responsibility of the higher officers i.e. the Executive Engineer or the Sub-Divisional Engineer was much more than a Junior Engineer. These are all facts which should have been taken into consideration before imposing any punishment and that too after following due procedure under law. How the Chief Engineer in his comments had recommended that the petitioner is responsible for 25% of the loss is also not decipherable from any document/averment. Simply because there were four persons involved at the spot cannot lead to the conclusion that each one is responsible to the tune of 25% of the total loss. Not only that, the matter related to the years 1976-78, the show cause notice was issued in the year 1990 asking the petitioner as to why he should not be held liable for the 25% loss. The observation in the enquiry report against Shri T.C. Bali by the Enquiry Officer could not be made the basis of the recovery against the petitioner.
8. I am of the view that the order of recovery of the petitioner suffers from factual as well as legal infirmities as has been pointed out above. For the foregoing reasons this writ petition is allowed and the order dated July 20, 1993 (Annexure P.16) is hereby quashed. The petitioner should be released the amount which has been recovered from his gratuity within a fortnight from the date of receipt of the order either from this Court or a certified copy thereof from the petitioner. There will be no order as to costs.