Faiyaz Ali v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/19/2024 Faiyaz Ali Vs.

The Union of India and Others Mr. Mohammed Tabraiz ... for the petitioner Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Rakesh Kumar Mr. Dibesh Dwivedi ... for the respondents March 19, 2025 [SR] Item No.6 1.

The petitioner was the erstwhile Assistant Engineer (Civil) posted at Port Blair Central Circle, Andaman Public Works Department, Andaman and Nicobar Islands, Port Blair. 2.

During his posting, the then Executive Engineer, invited a tender for the work of "Reconstruction of pedestal for installation of statute of former Prime Minister late Smt Indira Gandhi at Indira Point, Campbell Bay as also for reconstruction of Helipad at Indira Point, Campbell Bay". 3.

After acceptance of tenders two agreements were executed between the then Executive Engineer, Construction Division, APWD, Campbell bay and the contractors and thereafter work orders were issued in favour of the contractor. The works were completed on 5th February, 2009.

4.

During the execution of work, certain scheduled items were required to be substituted and as such, the Executive Engineer mooted a proposal to sanction for such substituted items before the Superintending Engineer and sent the proposal

to the Assistant Engineer (Civil) for processing the bills of the contractor. The contractor was dissatisfied with the rates sanctioned pertaining to the substituted items and he raised the dispute. Such dispute was referred to a Sole Arbitrator to decide the claims of the contractor. The award was passed in favour of the contractor. The arbitrator passed an award on 20.11.2012 allowing claims and awarded more amount in favour of the contractor in comparison to what was actually paid. The respondent authorities did not challenge the arbitral award under section 34 of the Arbitration and Conciliation Act, 1994. The award thus became enforceable as it had attained finality.

5.

Subsequently, a case being RC No.121012A004 dated 26.11.2012 was registered by CBI against the then Executive Engineer and on the basis of a report dated 28.12.2013, it was alleged that the charges against the accused persons are proved.

6.

The Disciplinary Authority initiated a departmental proceedings against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965. Articles of charges were framed against the petitioner as well as the Executive Engineer in which it was alleged that the excess amount of Rs.7,64,723/- and Rs.33,71,534/- in respect of the agreements no.

47/DB/CD/CB/2007-08 and 48/DB/CD/CB/2007-2008 was paid.

7.

The learned Special Judge under the Prevention of Corruption Act allowed the application filed by the Executive Engineer on 21.10.2016 and as well as supplementary

application filed by the petitioner on 30.06.2016. The Executive Engineer and the contractor were discharged.

8.

The petitioner has alleged that despite judgment in the criminal case being No.3/14 and the award, the Enquiry Officer held that the charges against the petitioner are proved. The petitioner made a representation against the report of the Enquiry Officer before the Disciplinary Authority and the said authority vide order dated 20/24th September, 2019 imposed major penalty of reduction of pay to the lower stage in the time scale of pay by three stages for a period of three years with cumulative effect upon the petitioner and his pay was fixed at Rs.70,000/- in the Time Scale of pay of pay Level-7 (Rs.44,0001,42,000). The said order also mentioned that the petitioner will not earn increments during the period and will not regain his normal increments on completion of the aforementioned period of three years.

9.

The writ petitioner preferred a statutory appeal on 06.11.2019 under Rule 23 of the CCS (CCA) Rules, 1965 before the Hon'ble President of India which was forwarded to the Chief Secretary, A & N Administration for appropriate attention. 10.

The petitioner, being aggrieved, by the said action, filed an Original Application in which he has prayed for quashing of the charge sheet. Before the Tribunal, it was contended that the proceeding before the criminal court and the disciplinary proceeding are entirely different and acquittal in the criminal proceedings will not relieve the petitioner of the charges for which the disciplinary proceeding have been initiated. It was alleged that the petitioner has violated the provisions contained in the CPWD Manual.

11.

It was further argued that the finding of a criminal court cannot be an advantage for the writ petitioner in the disciplinary proceeding and moreover, the charges before the criminal court against the other accused persons and the charges framed against the present petitioner in the disciplinary proceeding are entirely different.

12.

The Central Administrative Tribunal refused to exercise its jurisdiction in view of the fact that the statutory appeal is pending. The order of the Tribunal is dated 16.02.2024. The statutory appeal was filed on 06.11.2019. The Administration has failed to justify before this Court for the delay in disposing of the statutory appeal. There cannot be any doubt that a considerable time had passed since the appeal was preferred and this long delay in disposing of the statutory appeal has resulted in manifest injustice to the appellant. 13.

Prima facie it appears that the Disciplinary Authority before imposing the punishment has not taken into consideration of the material facts which inter alia, includes that the petitioner has merely processed the amount on the basis of the direction of the superior authorities. 14.

The award further reveals that the learned Arbitrator has awarded amounts for in excess to the amounts processed by the writ petitioner on the recommendation and approval of higher authorities. The rates for such substituted items does not appear to be unjustified having regard to the finding in the award. The award was accepted by the department concerned. 15.

It does not, prima facie, disclose any act of misconduct on the part of the petitioner in processing the RA bills in question. The stand of the petitioner with regard to the enhanced rate for

the substituted items gets affirmed and ratified in the award that was passed in favour of the contractor in the arbitration proceeding for amounts for in excess to the amount processed in respect of such bills. There was no justification on the part of the Administration for not challenging the award if they were of the view that the Administration has made payment in excess. In the arbitration proceeding no counter claim was made.. 16.

The Disciplinary Authority has not considered the said issue at all and imposed major penalty by way of punishment. The petitioner filed a statutory appeal on 6th November, 2019. The appeal was not heard since then. The petitioner cannot be made to suffer for an indefinite period due to failure on the part of the statutory authority in disposing the appeal within a reasonable time. Even today, it is being submitted on behalf of the Administration by placing reliance on a letter dated 24.02.2025 that six months is required for disposal of the appeal by the statutory authority.

17.

Mr. Mohammed Tabraiz, learned counsel appearing on behalf of the petitioner has submitted that no fresh issue is required to be raised before the appellate authority. Since the appeal is otherwise ready for hearing, we dispose of the writ petition by directing the Appellate Authority to dispose of the statutory appeal within a period of four months from the date of communication of this order by either of the parties. 18.

In deciding the statutory appeal, the appellate authority shall take into consideration the observations made in this order. The Appellate Authority shall take into consideration that the Executive Engineer and the contractor were discharged in

the criminal proceeding and the administration has accepted the award.

19.

In the event, the statutory appeal is not disposed of within the aforesaid period, the OA/351/00951/2020 shall revive as we are of the view that the petitioner cannot be left remediless.

20.

In the event proceeding before the CAT revives, the learned Tribunal is requested to dispose of the said original application preferably within a period of four months from the date the learned Tribunal is informed of this order without granting any adjournment to either of the parties unless it is unavoidable.

21.

The writ petition stands disposed of. However, there shall be no order as to costs.

( Soumen Sen, J. ) (Raja Basu Chowdhury, J. )