M. G. Mukherji, J. - (1.) This special appeal preferred by the Slate of Rajasthan through the Secretary, Public Health and Engineering Department, Government of Rajasthan and the Secretary, Department of Personnel, Government of Rajasthan impugns a judgment and order dated 11th July, 1997 passed by a learned single Judge of our Court in S.B. Civil Writ Petition No. 2590/95.
(2.) The respondent-Shiv Dutt Bissa is a Superintending Engineer under the Public Health and Engineering Department. He was charge-sheeted vide Annexure-1 to the Writ Application under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on 23-11-1992 over an incident which took place in the year 1988-89. He was charged in the first place for placing orders for purchase of C.I. Detachable Joints beyond the prescribed limits of amount at his level. The main allegation against him was that he had exceeded his financial powers as regards the placing of the total quantum of orders which he could place without prior permission of the Chief Engineer. It was his specific case that with a view to depriving him from his promotion to the post of Additional Chief Engineer since he has reached the zone of consideration for the same, a charge-sheet was issued against him even though there was no specific allegation of misfeasance, misappropriation or any loss caused to the Government. It was his further contention that there was no allegation against him that he misused any of his powers. On the other hand, it was his specific submission that he had duly informed the Chief Engineer at the time of placing of orders and he sought his approval in the context of his placing of such orders for urgent requirement of raw-materials and the Chief Engineer did ultimately accord his approval prior to the delivery of the materials. The materials were sent direct to the concerned Executive Engineers and the payment was also made direct by the Divisions after the requirements had been approved. He contended that the whole of the charge-sheet ought to be quashed against him for the reason that the approval/permission which was sought at the time of placing of the orders did culminate in the passing of such orders by the Chief Engineer before the receipt of the purchased materials. Had there been any misuse or misconduct on his part, the Chief Engineer, who was informed about six months prior to the receipt of the materials, instead of approving the same would have stopped the approval of the orders initiated by him. As per the Government instructions dated 28-10-1988 (Annexure-3 to the writ application), there is a direction inter alia that as far as possible, order should be issued to all the firms in accordance with the rate contract as per demand, but the order could be issued to one firm for Rs. 3 lacs only and in a circle, no order more than Rs. 5 lacs could be placed by way of orders without obtaining prior permission from the Chief Engineer. The writ petitioner-respondent was competent to place orders up to Rs. 5 lacs and if any order above Rs. 5 lacs for purchase of any material was to be placed by him, a prior permission of the Chief Engineer was required. Admittedly, the writ petitioner-respondent had placed orders for more than Rs. 10 lacs to the firms with simultaneous intimation to the Chief Engineer for approving his action and this he did in view of the urgent need for obtaining the joints for laying down the water pipes. Admittedly, the payment was to be made by the concerned officer i.e. the Chief Engineer after receipt of the materials.
(3.) In reply to the charge-sheet, the writ petitioner-respondent by his representation dated 7-12-1992 gave out that many water schemes were in progress at as many as 11 places involving huge expenses including the emergency schemes at Jalore and Pali where people were suffering from acute shortage of water due to draught conditions. There was thus requirements of joints to be procured for maintaining the proper regular water supply. The Government decided to complete the water supply schemes as nonavailability of drinking water caused acute distress to the people. The pipes for supplying the water were made available but the joints not being available for completing the work of connecting the pipes, it was felt necessary by him that orders should be placed immediately for procurement of joints and thus four orders for a total amount of more than Rs. 10 lacs were placed, copies whereof were sent to the Chief Engineer for according approval. His contention inter alia is that this letter seeking for approval of the Chief Engineer was as good as a request for seeking a prior permission. He further contended that in case the order was placed beyond the prescribed limit and if the Chief Engineer did not want to accord his approval, the latter ought to have cancelled the order before the materials were received. After the placement of the orders, the Chief Engineer was having full knowledge of the exact requirements as per the orders and there was exchange of correspondence between the writ petitioner-respondent on the one hand and the Chief Engineer on the other. The very fact that the Chief Engineer did not cancel the orders and approved the same and issued letter of credit for payment to the concerned authorities went a long way to establish the contention of the writ petitioner-respondent that the Chief Engineer had not only approved it but had confirmed the orders which practically amounted to granting of permission. By another letter dated 13-12-1989, the Chief Engineer had directed the writ petitioner-respondent not to place any further orders and except the order passed in a January, 1989, no further orders were placed thereafter. It was further submitted by the writ petitioner-respondent that the orders for the materials to be supplied were as per the approved rate contract and the orders for joints were placed as per the directions of the Hon'ble Chief Minister when he had visited Jalore accompanied by the Home Minister and the Chief Engineer, Jodhpur. No loss had been caused to the State Government in any manner, but on the other hand there was a gain for the State Government because of the reason that later on for the year 1989-90, the rates had increased and the Government thus could save a margin of loss which it might had to pay had the order been placed at a later date. The public was in great distress because of non-supply of the joints within time and, therefore, laying down of the pipes could not be carried because of shortage of joints and as soon as the joints reached the destination points, the work was completed and the common villagers were benefited. Despite the fact that it was brought to his notice, the Chief Engineer had allowed the order to be completed and the action of the Chief Engineer thus amounted to permission being granted ex post facto. The writ petitioner-respondent was ultimately found guilty and given a punishment on 30-6-1995 along with other officers who were similarly charge-sheeted. The conclusive part of the penal order against him read as under:- "Sh. Bissa had issued the order of purchase to the extent of Rs. 10.915 lacs. According to the instructions dated 28-10-1988, the petitioner was authorised to issue purchase orders for Rs. 3 lacs to one firm and to issuing orders for more than Rs. 5 lacs, it was necessary for Bissa to have sought the prior permission of Chief Engineer. The petitioner Sh. Bissa had not taken the prior permission of the Chief Engineer and had placed the orders of Rs. 10.915 lacs and thus admittedly he had violated the instructions. Even though these orders were strictly within the limit of Rs. 3 lacs to one firm, but still he had violated the Government instruction dated 28-10-1988 and allegations against him, therefore, are proved. Because of the abovesaid reasons, the allegations against Sh. Bissa are proved partly, therefore, the Governor of Rajasthan hereby orders the punishment of imposing stoppage of two annual grade increments without cumulative effect on Sh. S.L. Parihar, S.E. and Sh. S.D. Bissa, S.E. and Sh. S.D. Rawat, S.E. Sd/- (Dy. Sec. Admn.)" A reply was filed by the present appellants-State of Rajasthan and its officers before the learned single Judge. The State took the plea that because of the reason that the orders placed involved more than Rs. 5 lacs, the instructions dated 28-10-1988 (Annex. 3) had been violated even though the individual orders placed with the four firms were each less than Rs. 3 lacs. It was submitted that the approval and prior permission arc two distinct matters and even though the writ petitioner-respondent had asked for approval simultaneously with the placement of orders, that could not condone the violation of the Government instructions. Since the writ petitioner-respondent had acted beyond the financial powers conferred on him as regards placing of the orders, he had been rightly dealt with. It was further admitted on behalf of the State Government that no enquiry was held as no enquiry was required to be held for imposing a minor punishment. It was submitted in this context that there was no need or necessity of passing any speaking order. Even though no loss had been caused or even though there was no allegation of misconduct or of any misappropriation or misfeasance or misuse of powers, but because of the reason that the Government instructions/circular had been violated, it was sufficient to presume that a misconduct had been made out.;