WP/13693/2005 of Kosarju Venkateswara Rao, Vs The Senior Divisional Engineer (Coord), on 26 December 2005

Conclusion

ORDER :

This writ petition has been filed by Kosaraju Venkateswararao, with a prayer toissue Writ of Mandamus or any other appropriate Writ or order or direction declaringthe letter bearing No.B/W.148/1/6066/WA/Coord, dated 15-06-2005 issued by theSenior Divisional Engineer (Coord), South Central Railway, Vijayawada, A.P.-respondent herein, as arbitrary, illegal and unjust.

(2) The case of the writ petitioner as disclosed in the affidavit filed in support of thewrit petition is :

The respondent issued a tender notification for the work of Rayanapadu - Repairs toUnderground Sewerage Pipelines, Sewerage Pumps, collection of wells, drainagemain outlet for Type I and Type II Quarters (464) Units) at Wagon Workshop Colony.The writ petitioner submitted tender on 23-08-2004. The respondent accepted the tender by proceedings dated 19-11-2004. The total value of the tender isRs.16,45,751/-. The work should be competed within three months from the date ofissue of letter of acceptance of tender. The petitioner completed the work by the endof March, 2005. The concerned officials made necessary endorsements in themeasurement book. The maintenance period is six months, during which period, thepetitioner had to maintain the work done by him. Subsequently, the petitionerreceived a letter dated 15-06-2005 informing him that he was paid more over andabove the work done by him to the extent of Rs.20, 59, 798/- and thereby, he wasasked to remit the said amount. Hence this writ petition.

3) The respondent filed counter-affidavit. It is stated in the counter-affidavit that theworks carried out by the writ petitioner were verified and on verification, he wasfound to have been paid an excess amount of Rs.20, 59,798, over and above theworth of work done by him. I deem it proper to refer the paragraph 7 of the counter-affidavit and it is thus:

“In reply to paras 5, 6 and 7 of the affidavit, I submit that the execution ofwork was done under the direct supervision of Senior SectionEngineer/works/Watering Arangements/Rayanapadu and also withmonitoring and checking by Assistant Divisional Engineer/Bldgs, SouthCentral Railway, Vijayawada. The measurements for this work wererecorded by Sri K. Venkateswara Rao, Senior SectionEngineer/Works/Watering Arrangements/Rayanapadu in the MBNo.530/2004 from Page No.618 to 625 and 641 to 651. The AssistantDivisional Engineer/Bldgs has also furnished test check certification at therelevant pages in the MB. In terms of Clause No.51 (2), it is agreed term ofcontract that the railway reserves to itself the right to carryout a post-payment audit and or technical examination of the works and the final bill,including all supporting vouchers, abstracts, etc., and to make a claim on thecontractor for the refund any excess amount paid to him if as a result of suchexamination any over-payment to him is discovered to have been made inrespect of any works done or alleged to have been done by him under thecontract. The check was carried out in similar manner of all the contractworks executed in the jurisdiction of Senior SectionEngineer/Works/Watering Arrangements/Rayanapadu. The work referred inthe present case is one of the works checked in this manner. Themeasurements have been certified as technically checked by the ChiefDraftsman of the Works Branch, Vijayawada. During the check the petitionerwas also very much present and other witnesses Sri B. Tomothy, SectionEngineer/Works/Rayanapadu were also present. The Special Report on theverification conducted on 01-06-05 and 02-06-05 pertaining to the contract inquestion is annexed hereto as Annexure-R-V. On verification of the saidwork, it is found that the Petitioner(Contractor) has been paid an excess amount of Rs.20,59,798/ over and above the work done by him for the worksnot actually executed by him. Hence, the respondent (Railways) is entitled torecover the said amount which was gained by the petitioner unlawfully.Further, it is to be submitted that it is not mandatory on the part of SeniorDivisional Engineer/Co.ord. South Central Railway, Vijayawada (respondent)to carry out complete check of the measurements or test check of themeasurements for the above said contract. It is stipulated that in respect ofworks contracts costing Rs.25 lakhs and above, a test check of 5% shall beexercised by the Senior Divisional Engineer. In the present case, the value ofthe work is less than Rs.25 lakhs and therefore does not warrant any checkon the part of Senior Divisional Engineer. However, during his normalinspection of the various Railway installations such as Rayanapadu stationyard, workshop, etc., the inspection of the open drain work under executionin this contract by the deponent was in progress and the same wasinspected. Masonry stones were available at the site and they were found tobe of proper quality. The bills have been passed in the Accounts section andthereafter the payment was made to the contractor. Further, it is to be statedthat the false measurements have been recorded by Senior SectionEnginer/Works/Watering Arrangements/Rayanapadu (Sri K.VenkateswaraR a o ) . Hence, Sri K. Venkateswararao, Senior SectionEngineer/Works/Watering Arrangements/Rayanapadu and Sri P.Satyanarayana, Senior Section Engineer/Drg/Bldgs/Vijayawada have alsobeen kept under suspension w. e. f. 30-05-05 and 01-06-05 respectively.”

4) In a nutshell, the plea of the respondent is that the officials of the respondentcolluded with the writ petitioner and allowed him to draw the amount over and aboveto which he is not entitled.

5) Heard the learned counsel appearing for the petitioner and the learned standingcounsel appearing for the respondent.

6) The learned counsel for the writ petitioner submits that the alleged inspection ofthe works done by the writ petitioner was not conducted in his presence, andtherefore, any report prepared based on such inspection is in violation of principlesof natural justice. He further submits that, as per the general conditions of thecontract, amounts were paid on due verification of the work done by the concernedsupervising authorities of the railways. He refers clauses 45, 47, 48 and 51 of theGeneral Conditions of Contract which deal with the measurements certificate andpayments.

7) He also refers to the special report said to have been prepared by a committee ofofficers comprising of DEN East/BZA and ADEN Buildings/BZA.He emphasizes thedate mentioned in the special report and also the dates mentioned in the notice impugned in the writ petition. According to the said report, the verification of works issaid to have been conducted on 1.6.2005 and 2.6.2005 whereas in the noticeimpugned in the writ petition, the dates of verification have been mentioned as 03-06-2005, 06-06-2005 and 07-06-2005.

8) The learned counsel appearing on behalf of the respondent raised an objectionwith regard to the maintainability of the writ petition and the very frame of the writpetition. His principal contention is that the Union of India is a necessary party andtherefore, the writ petition is liable to be dismissed on the ground of non-impleadment of the necessary party. He refers to section 79 of the Civil ProcedureCode and Article 300 of the Constitution of India. In support of his submissions,reliance has been placed on the decision reported in () “STATE OF KERALA v.G.M., SOUTHERN RAILWAY “ wherein it has been held thus:

“According to Section 79 of the Code, in a suit by or against the Government, the authorityto be named as plaintiff or defendant, as the case may be, shall be (a) in the case of a suitby or against the Central Government, the Union of India, and (b) in the case of a suit by oragainst a State Government, the State. This section is in accordance with Article 300 of theConstitution, according to which the Government of India may sue or be sued by the nameof the Union of India and the Government of a State may sue or be sued by the name of theState. It is not disputed that Southern Railway is owned by the Union of India. As such, asuit dealing with the alleged liability of that railway should have been brought against theUnion of India.”

9) Per contra, the learned counsel for the writ petitioner submits that section 79 (a) ofthe Civil Procedure Code is not applicable to the proceedings. In support of hissubmission, he refers to section 141 of Civil Procedure Code and rule 7 A of the WritRules.

10) It is explicit from section 141 of the Civil Procedure Code that the procedureprovided in Civil Procedure code in regard to suits shall be followed as far as it isapplicable, to all the proceedings in any Court of Civil jurisdiction.

Explanation to section 141 of Civil Procedure Code reads as follows:

“In this Section expression “proceedings” includes proceedings under OrderIX, but it does not include any proceedings under article 226 of theConstitution.”

11) Under Rule 7A of the Writ rules, whenever a petition or application is presentedagainst the Government or any authority, the copies of the petition, the applicationand the accompanying affidavit and documents shall be served on the GovernmentPleader or the standing counsel concerned, and the said petition or the applicationshall not be accepted in the registry unless it contains an endorsement of servicesigned by the Government pleader or the standing counsel concerned, or by theSecretary of the Government Pleader’s office or

by some one authorized by him in this behalf, not below the rank of aSuperintendent, or by a Registered clerk of the standing counsel concerned, as thecase may be, or by a person so authorized by the standing counsel concerned underintimation to this registry.

12) The grievance of the writ petitioner is against the respondent who issued orderimpugned in the writ petition and therefore, the objection raised by the respondentthat Union of India is necessary party has no merit and the same is liable to berejected.

13) It is submitted by the learned counsel for the respondent that in view of thearbitration clause in the General Conditions of the agreement, the dispute is requiredto be resolved by way ofarbitration and therefore, the writ petition is notmaintainable.

14) It is the grievance of the writ petitioner that he was not put on notice at the time ofre-checking of the work done by him. The dates of re-checking mentioned in thereport and in the notice impugned in the writ petition, do not tally. As per the contentsof the inspection report, the writ petitioner was not present at the time of inspection.Such is the situation, issuing notice impugned in the writ petition basing on themeasurements of the work in his presence, clearly amounts to violation of theprinciples of natural justice. Therefore, I find that the second contention of thelearned counsel for the respondent, has no merit.

15) With regard to the merits of the case, I am not inclined to give any finding on the arguments advanced by either party in view of the order proposed to be passed.Admittedly, the dates of inspection as mentioned in the report and notices impugnedin the writ petition do not tally each other. The respondent has stated in para 5 of thecounter affidavit is as follows:

“The report of the Investigation committee prepared on 06-06-05 which wasalso communicated to the writ petitioner along with impugned letter dated 15-06-2005 clearly shows the various discrepancies as detailed in Schedule-A.Schedule-A1, Schedule-A2 and Schedule-B of the report, in arriving at thetotal amount of Rs.20,59,798-02ps which is to be recovered from the Writpetitioner. The report of the Investigation committee containing the schedulesare annexed as material papers.

However, if the Hon’ble Court comes to the conclusion that there is denial ofthe opportunity to the Writ petitioner at the time of theverification/investigation by the said committee, the Railways are prepared tooffer the writ petitioner an opportunity for re-verification of the discrepanciesthat were found by the investigation committee resulting in the impugnedletter.”

16) As the verification by a committee of officers is not made in the presence of thewrit petitioner, I deem it appropriate to set aside the notice impugned in the writpetition giving liberty to the respondent to conduct verification of the work done bythe writ petitioner in his presence, within two months.

17) Accordingly, the writ petition is allowed. No order as to costs.

__________________________

Justice B. SESHASAYANA REDDY

Date : 06-09-2005

Note:

CC by one week.

BO

Dvs

HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY

WRIT PETITION NO. 13693 OF 2005

Dated 06-09-2005