THE STATE (CBI) v. THOMAS HERENZ AND ORS.
Court: Calcutta High Court
Bench: HON'BLE JUSTICE TIRTHANKAR GHOSH
Judgment date:
Case summary
Calcutta High Court judgment dated 2024-12-05. THE STATE (CBI) v. THOMAS HERENZ AND ORS. Read the judgment and case details on LawSphereX.
Judgment text
IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT PORT BLAIR CRIMINAL REVISIONAL JURISDICTION PRESENT: THE HON’BLE JUSTICE TIRTHANKAR GHOSH C. R. R. 1 of 2017 The State (C. B. I) versus Shri Newazesh Ali & Ors. With C. R. R. 17 of 2018 The State (C. B. I) versus Shri Man Mohan Singh With C. R. R. 18 of 2018 The State (C. B. I) versus Shri Pushpa Raju With C. R. R. 19 of 2018 The State (C. B. I) versus Shri Thomas Herenz & Ors. For the Petitioner/CBI : Mr. Rakesh Pal Gobind For the Respondent in CRR 18/2018 : Mr. Gopala Binnu Kumar For the Respondent No. 1 In CRR 19/2018 : Mr. K. M. B. Jayapal, Mr. Pradeep Singh. Reserved On : 06. 09. 2024. Judgement On : 05. 12. 2024. Tirthankar Ghosh, J. : The present set of revisional applications have been preferred challenging the order dated 21. 07. 2016 passed by the Learned Special Court, Port Blair in Special Case No.
05 of 2015 under Sections 120B/420/468/471 of Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 whereby the learned Special Court was pleased to discharge all the accused persons from the case at the stage of consideration of charges. The genesis of the case related to the FIR which was registered, being CBI SPE Port Blair No. RC 121 2014 A 0002 under Sections 120B/420/468/471 of Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. On the basis of a complaint lodged by Walter Minj, Deputy Secretary, (Vigilance) Andaman & Nicobar Administration, Port Blair with the CBI, Andaman & Nicobar Administration, Port Blair the aforesaid case was registered for investigation and the investigating officer on conclusion of investigation submitted charge-sheet through B. K. Sarkar, Deputy Superintendent of Police, CBI/ACB/Kolkata.
The brief facts of the case as narrated in the charge-sheet were to the effect that the de-facto complainant Walter Minj, Deputy Secretary (Vigilance), Andaman & Nicobar Administration, Port Blair complained against Newazesh Ali, the then Superintendent of Engineer, CC-I; Thomas Herenz, Executive Engineer, Wimberlygunj Sub-division, APWD; Pushpa Raju, Executive Engineer, Wimberlygunj Sub-division, APWD in conspiracy with the private firms cheated APWD in the matter of installation of Electro Chlorinators by issuing work orders to private companies without authority. In course of investigation it revealed that apart from the aforesaid persons others namely, Man Mohan Singh, Executive Engineer, APWD; Asish Kumar Bardhan, Executive Engineer, APWD; K. Deva Raju, Assistant Engineer, APWD; M/s G. F. Faser Verstarkt Products Pvt. Ltd. , Chennai represented through its Director. S. Chella Kumar; M/s Noble Eco System Pvt Ltd. , Chennai through its Director T. Francis Nelson; M/s R. T.
Safe Ballas Private limited represented through its Managing Director Jeyanath; John Kurein, Vice President, Noble Eco System Private Ltd. ; N. Sivagnanam, Director M/s R. T. Safe Ballas Private Ltd. entered into a Criminal Conspiracy hatched amongst themselves with the intention to cheat APWD in the execution of work of installation of Electro Chlorinators at various places of Andaman and in pursuance of the same, they cheated APWD by making payment to the companies being M/s G. F. Faser Verstarkt Products Pvt. Ltd. , Chennai, M/s Noble Eco System Pvt. Ltd, Chennai and M/s R. T. Safe Ballas Private Limited thereby causing wrongful loss to the APWD and wrongful gain to themselves. According to the report submitted by the CBI, investigation disclosed that APWD issued fifteen work orders for installation of Electro Chlorinators at its various water treatment sites at Wimberlygunj; MID, Hutbay and Construction Div-I CC-I, APWD.
Investigation revealed that the accused officers collected spot quotations from M/s Noble Eco System Pvt. Ltd. , M/s R. T. Safe Ballas Pvt. Ltd. , M/s G. F. Faser Verstarkt Products Pvt. Ltd. , M/s Waltair Marine Engineering Pvt. Ltd. , M/s Dolphin Agency and M/s. A. S. Moloobhoy & Sons, Wimberlygunj, Constriction Divisions-I and MID, Hutbay for supply, installation and commissioning of Electro Chlorinator. Investigation also disclosed that Puspha Raju, in the capacity of Executive Engineer, RCD, Wimberlygunj, APWD and of Construction Division- I, APWD illegally collected spot quotations without inviting open tender as mandatorily required by CPWD Manual from M/s Noble Eco System Pvt. Ltd. , Waltair Marine Engineering Pvt. Ltd. , RT Safe Ballas Pvt. Ltd. , M/s Dolphin Agency and M/s. A. S. Moloobhoy & Sons for supply, installation and commissioning of electro-chlorinators and issued work orders.
Investigation also disclosed that Thomas Herenz, in the capacity of Executive Engineer, RCD, Wimberlygunj, illegally collected spot quotations from M/s Noble Eco System Pvt. Ltd. , Waltair Marine Engineering Pvt. Ltd. , RT Safe Ballas Pvt. Ltd. , without inviting open tender as mandatorily required by CPWD Manual for supply, installation and commissioning of electro chlorinators and illegally issued work orders. Investigation also disclosed that Shri Asish Kumar Bardhan, while working as Executive Engineer, MID, APWD, Hutbay illegally collected spot quotations from M/s R. T. Safe Ballas Pvt. Ltd. , Waltair Marine Engineering Pvt. Ltd. , Noble Eco Systems Pvt. Ltd. , for supply of electro chlorinators, issued a quotation by scrutiny noted down on 03. 10. 11 to Shri Newazesh Ali, the then Superintendent Engineer, CC-I on 5. 10. 11 recommending to accept the rate of M/s Noble Eco systems Pvt. Ltd. Investigation revealed that Shri M. M.
Singh, the then Executive Engineer, MID, Hutbay illegally issued work order dated 30. 11. 2011 for Rs. 4,20,200. 00/- in favour M/s Noble Eco Systems Pvt. Ltd. , Port Blair after obtaining approval of Shri Newazesh Ali on the proposal dated 05. 10. 11 of Shri Ashish Kumar Bardhan. Investigation further disclosed that Shri K Devraju the then IC Executive Engineer MID, Hutbay also illegally collected spot quotations from M/s Waltair Marine Engineering Pvt. Ltd. , M/s R. T. Safe Ballas Pvt. Ltd. of Port Blair; M/s GF Faser Verstarkt Products Pvt. Ltd. and issued work order dated 02. 07. 12 for Rs. 4,20,200. 00/- in favour M/s G F Faser Verstarkt Products Pvt. Ltd. , for supply of electro chlorinators. Investigation disclosed that Newazesh Ali posted at Construction Circle-I as Superintending Engineer, APWD during the period from 11. 09. 2007 to 23. 05. 2013 and Shri M. M.
Singh was the then Executive Engineer working under direct supervision of Newazesh Ali, SE, CC-I as Head of Planning Branch of CC-I, APWD. Investigation further disclosed that Shri Pushpa Raju was working as Executive Engineer with RCD, APWD, Wimberlygunj in between 21. 07. 10 to 20. 06. 12 and with Construction Division - I of APWD in between 29. 06. 12 to 10. 09. 13. Investigation further disclosed that Thomas Herenz was working as Executive Engineer with RCD, APWD, Wimberlygunj in between 15. 06. 12 to 02. 05. 13 and K Devaraju was working as Executive Engineer (I/C), MID, APWD, Hutbay during the period between March/2012 to June/2012; Shri Ashish Kumar Bardhan was working and posted as Executive Engineer of MID, APWD, Hutbay during October, 2011 and Shri M. M. Singh was temporarily working as Executive Engineer, MID, Hutbay during November, 2011. Investigation disclosed that thirteen proposals on procurement of Electro Chlorinators by APWD have been dealt by M. M.
Singh being branch head in the capacity of Executive Enginner (Planning) then working in the planning branch of CC-I of APWD and processed for obtaining approval of Newazesh Ali, SE, CC-I, APWD in contravention of standard rule and procedure followed in government procurement and communicated the approval of Newazesh Ali to Divisional Heads. In course of investigation it was found that thirteen work orders were issued on the basis of approval of Newazesh Ali, which was accorded in contravention of rules and regulations of CPWD Manual/General Financial Rules, mandatorily being followed in government procurement. Investigation revealed that John Kurien, Vice President of M/s Noble Eco Sytems Pvt. Ltd. of Chennai arranged local people of Port Blair namely K Sathya Murthi and Shibu Varghese for the purpose of signature of quotations on behalf of M/s G. F. Faser Verstarkt Products Pvt. Ltd. and M/s Waltair Marine Engineers Pvt. Ltd.
Investigation disclosed that K Sathya Murthi was working as Manager of Palm Grove Resort, Port Blair and signed quotations on behalf of M/s G. F. Faser Verstarkt Products Pvt. Ltd. and Shibu Varghese, the owner of Palm Grove Resort, Port Balir signed the quotations of M/s Waltair Marine Engineering Pvt. Ltd. of Vishakhapatnam. Investigation disclosed that John Kurein, Vice President of M/s Noble Eco System, Private Ltd. , in furtherance of the criminal conspiracy used an employee of M/s Noble Eco System Private Ltd. , namely L. Shanmuga Raja for the purpose of getting signatures of various persons in the quotations and for that purpose John Kurein had sent unsigned and written quotations in the e-mail ID of the said L. Shanmuga Raja and after downloading the unsigned quotations L. Shanmuga Raja obtained signature of Shibu Varghese (a Hotel Owner at Port Blair), Satyamurthy and K. V. Cherian for the purpose of signing the quotations of M/s Walter Marine Engineering, M/s G. F.
Faser Private Ltd. , and M/s R. T. Safe Ballas respectively. In course of investigation it was found that the aforesaid persons were mere signatories only for the purpose of creating quotations in the name of the companies which reflect that all the companies had prior knowledge about the rate offered. Investigation disclosed that L. Shanmuga Raja obtained signatures of KV Cherian on the quotations of M/s R. T. Safe Ballas Pvt. Ltd. , signature of Shibu Varghese on the quotations of M/s Waltair Marine Engineering Pvt. Ltd. and signatures of Satyamurthi on the quotations of M/s G. F. Faser Verstarkt Products Pvt. Ltd. and after obtaining such signatures submitted those signed quotations to APWD, as and when directed by said John Kurien of M/s Noble Eco Systems Pvt. Ltd. , Chennai. Investigation disclosed that quotations submitted by Dolphin Agency, Port Blair and M/s A. S. Moloobhoy & Sons, Port Blair to APWD were supporting quotations of M/s Noble Eco Systems Pvt. Ltd.
which were not genuine and were fake. In course of investigation it was further found that directors were common between M/s Noble Eco Systems Pvt. Ltd and M/s G. F. Faser Verstarkt Pvt. Ltd. and M/s Waltair Marine Engineering Pvt. Ltd. On the quality of electro chlorinators of the three companies above named which was procured by APWD, the Bureau of Indian Standards never issued any licence or certificate. Investigation revealed that APWD made total payment of Rs. Rs. 33,85,204. 00/- to M/s Noble Eco Systems Pvt. Ltd. , M/s G. F. Faser Verstarkt Products Pvt. Ltd. , and M/s R. T. Safe Ballas Pvt. Ltd. towards supply and installation of Electro Chlorinators from the accounts maintained by EE, RCD, Wimberlygung and EE, CD-I, APWD with SBI, Port Blair and by EE, MID, Hutbay with SBI, Hutbay. Investigation disclosed that the electro chlorinators installed by M/s Noble Eco Systems Pvt. Ltd. , M/s G. F. Faser Verstarkt Products Pvt. Ltd. and M/s R. T. Safe Ballas Pvt. Ltd.
at divisions of APWD namely RCD, Wimberlygunj, CD-1 and MID, Hutbay, were not functioning / working and lying idle. On investigation it was found that urgent works can be taken up at specific request of user department with prior approval of CPWD officers competent to approve the work order provided such work is to be executed through work order and Chief Engineer shall be final authority to approve the execution of urgent works. No indent/requirement were raised for the installation of chlorinators from any quarter and in course of investigation it was found that all works costing more than Rs. 50,000/- and in case where the work is to be awarded expeditiously, the prescribed period of notice may be reduced. In urgent cases or when the interest of the work so demands or where it is expedient to do so, work may be awarded without calling of tenders after approval of the competent authority as per Section 14 of CPWD Manual.
APWD is bound to follow the provisions of CPWD Manual in all respect including collection of spot quotations by Executive Engineer or Assistant Engineer in case of an emergent and urgent case. According to CPWD Manual, emergency works are those which arise all of a sudden and are inescapable requiring immediate action that cannot wait for any delay which includes Earthquakes, Blizzards, Hurricanes/lightening, Tornados, Tsunami waves, Floods etc.
and on such occasion receipt of written order of the Chief Engineer in case any work declared emergent by him, the Executive Engineer/Assistant Engineer shall proceed to carry out the necessary work and shall immediately intimate the AO concerned that he is incurring such a liability, stating therein the approximate amount of liability that he is likely to incur and the Executive Engineer/ Assistant Engineer should obtain the administrative approval and expenditure sanction and accord of technical sanction of the competent authority to regularise the liability as early as possible. Investigation disclosed that Chief Engineer is the competent authority to declare any work as urgent/emergent nature in APWD and no such approval of Chief Engineer was ever obtained in the instant case prior to collection of spot quotations by the engineers.
Investigation disclosed that dealing of tender/work and its process has been defined in the Chapter 6 of General Financial Rules, mandatorily being followed by all departments of Government of India in public procurement. The procuring authority shall satisfy itself that the price of the selected offer is reasonable and consistent with the quality required and offers should be invited following a fair, transparent and reasonable procedure and that the selected offer adequately meets the requirement in all respects. Investigation disclosed that purchase of goods up-to value of Rs. 15,000. 00/- on each occasion may be made without inviting quotations or bids on the basis of certificate to be recorded by the competent authority and goods costing Rs. 15,000. 00/- and up-to Rs. 1 lakh only on each occasion may be made on the recommendation of local purchase committee.
The demand for goods should not be divided into small quantities to make piece meal purchase to avoid the necessity of obtaining the sanction of higher authority required to the estimated value of the total demand. The chlorinators in question were installed by entertaining spot quotations which was the outcome of the conspiracy hatched amongst the accused persons under the pretext of requirement. Thus spot quotations were arranged illegally and payments were released to those contractors which resulted financial loss to the APWD and thereby APWD was cheated. The material connected prima facies, discloses commission of offences by the accused persons namely Newazesh Ali, Thomas Herenz, Puspa Raju, Man Mohan Singh, Ashish Kumar Bardhan, K Devaraju, M/s G. F. Faser Verstarkt Products Pvt. Ltd, Chennai through S Chella Kumar, Director, M/s Noble Eco System Pvt. Ltd. , Chennai through T Francis Nelson, Director; M/s R.
T Safe Ballas Private Limited, Chennai through T Jeyananth, Managing Director and Shri John Kurien, Vice President of M/s Nobel Eco Systems Pvt. Ltd. and Shri N. Sivaganam, Director R. T. Safe Ballas Private Ltd. So far as the accused persons belonging to the government department is concerned they were charged under Sections 120B, 420, 468, 471 of the Indian Penal Code and Section 13(2) read with 13(1)(d) of PC Act, 1988 while the companies and their directors were charged for offences only under the Indian Penal Code. It was alleged that in furtherance of the criminal conspiracy entered between the accused persons for awarding work orders to the private firms for supply of Electro Chlorinators which were no longer required, there was wasteful purchase causing wrongful loss of Rs. 33,85,204. 00/- to the APWD and correspondingly wrongful gain to the accused persons. Mr.
Gobind Learned Advocate appearing for the CBI argued that out of the eleven accused persons, only three accused, namely Newazesh Ali, Man Mohan Singh and Pushpa Raju preferred an application for discharge under Section 227 of the Code of Criminal Procedure. However, surprisingly, the learned Special Judge, Port Blair was pleased to discharge all the accused persons, by the impugned order, ignoring the facts of the case. Criticizing the order dated 21. 07. 2016 passed by the learned Special Court, it was submitted that there was hardly any application of mind by the learned Special Judge while passing the impugned order and the same was passed without taking into account the documents relied upon by the prosecution and which would be palpable from the observations made by the learned Court while passing the impugned order.
To that effect, attention of this Court was drawn to the observation of the learned Special Court which proceeded on the premise that the electro chlorinators in question were duly installed at the site and CBI never raised any allegation in the charge-sheet that electro chlorinators were not installed or they were purchased at an exorbitant rate or electro chlorinators were not functioning. To that effect, learned Advocate drew the attention of this Court and submitted that categorically this was one of the basic allegations in the CBI charge-sheet as well as the inspection report. According to the prosecution, the learned Special Court did not go through the inspection report of all the electro chlorinators conducted by Monoj Kishan, Junior Engineer, CPWD, who is cited as witness No. 19, as well as the Assistant Engineer, S. Kasinathan, witness No. 20, as also the inspection report, which was enclosed in the charge-sheet as D-38 and D-39, consisting of 14 pages.
It was thereafter emphasized by the prosecution that the aforesaid inspection report on the face of it discloses that the electro chlorinators which were installed were not working and one of the inspection reports at page No. 11 in D-38 demonstrates that the electro chlorinators were not installed. On behalf of the CBI, it was further contended that the observation of the learned Judge while arriving at his conclusion, were on the foundation, “so the basic allegation left in this case is to see whether the collection of spot quotations without inviting open Tender is at all legal or the approval of the Chief Engineer prior to execution of urgent work were done due to criminal conspiracy between the parties”.
Substantiating their contention it was submitted by CBI that the learned Special Court failed to appreciate the CPWD manual, which is a mandatory directive issued by the government of India in relation to work related to public sector, wherein it is categorically mentioned that urgent works are kind of works which require fast start/completion within compressed schedule and are to be taken up on top most priority at the instruction of competent authority and under such situation, availability of funds needs to be ensured before taking up execution of works. Attention was drawn to further clauses which dealt with urgent works and which can be taken up at specific request of user department with prior approval of CPWD Officers competent to approve the work order and Chief Engineer shall be final authority to approve the execution of urgent works.
Thus, the financial powers under emergency and urgent situations should be exercised with great caution after watching the financial interest of the Government. The learned Trial Court according to the prosecution failed to appreciate such contention which is incorporated in the CPWD Manual, wherein it has been categorically stated that the Chief Engineer is the final authority. To that effect, attention was drawn to the statement of Maheshwar Rao, Assistant Engineer (Serial No. 3 in the list of witnesses) and PK Singh, Chief Engineer APWD, (Serial No. 24 in the list of witnesses) who categorically stated before the investigating officer that no Administrative approval was obtained from the competent authority and the work was never declared to be an urgent or emergent work.
It was further pointed out that from the statement of Walter Minj, it reflects that the electro chlorinators were not working after a few days of installation which is one amongst others a ground in the written complaint and the same contention was ignored by the learned Special Court who opined that providing safe disinfected water to public at large in A & N Islands is obviously a prime necessity and APWD has to ascertain that the clean water should be supplied to the people of the Islands.
Additionally, it was submitted on behalf of the prosecution/petitioner that the learned Court observed that the ingredients of criminal conspiracy cannot be found at the primary stage but it can be presumed that if the electro chlorinators were purchased at a high rate from any fake company, there may be a chance of criminal conspiracy but in this case, there are four companies who provided electro chlorinators at different spots of the Islands and they are companies of reputation for providing such material. To controvert such observations of the learned Trial Court, it was submitted on the basis of the documents collected by the investigating agency that the quality of the electro chlorinator was questionable as it was not certified or licensed by the Bureau of Indian Standards to the firm who supplied the same.
The investigating Officer also collected the rate comparison documents from reputed companies which demonstrate that the rate quoted by the private companies were exorbitant. The private companies engaged in the job by the accused persons quoted exorbitant rate and they were not authorized to supply and install the said electro chlorinators to APWD.
Drawing the attention of this Court to the observation made by the learned Special Judge that the process adopted by the Engineers in this case may be termed as irregular for which no criminal liability can be attached to the accused persons as they had in their view the purpose of supplying clean disinfected water to the public at large was a design to mislead the trial Court, in as much as not even post facto approval was obtained from the Chief Engineer and the purchase of the electro chlorinator at an exorbitant rate by process of spot quotation from the companies having no license or certification of the Bureau of Indian Standards itself fasten criminal liabilities. The said according to the prosecution are substantiated by documents which were ignored and were not referred to by the learned Trial Court while arriving at its conclusion.
It was further contended by the CBI that the accused respondents failed to comply the mandate in respect of the Rules relating to General Financial Rules (GFR) with due diligence so that their act of procurement of electro chlorinator may not cause wrongful loss to the Government. Attention was drawn to Rule 137 which contains fundamental principles of public buying and Rule 142 which is referred to Registration of Suppliers. In that respect it was submitted that the Rules categorically mentioned that the Central Purchase Organization will prepare and maintain items list of eligible and capable supplier and such approved suppliers would be known as Registered Supplier and Registration of the Supplier would be mandatory. Noncompliance of the same was ignored by the learned Trial Court.
The period of guarantee which were to be adhered to by the Engineers were not imposed upon the intending suppliers as per the guidelines and arbitrarily the public servants abused their official position and engaged their own person for the purpose of the said work without adhering to the Rules and Regulations. Reference were also made to the financial powers of the Executive Engineer, Superintendent Engineer and the Chief Engineer which has been the basis of finding of the learned Session Court and it was canvassed on behalf of the prosecution that if there is a strong suspicion and there are grounds of presuming that the accused has committed an offence then as a matter of principle the Court should proceed for conducting the trial instead of discharging the accused person at the stage of consideration of charges.
Lastly it was contended that the learned Trial Court did not take into account the statement of any of the witnesses and had the learned Trial Court perused the statement of witnesses No. 3, 4, 5, 12, 15, 16, 17 and 24 namely, Maheshwar Rao, G. D. Rajan, M. Ramesh Kumar, Pradeep Kumar Dey, Vivek Singh, Walter Minj, K. V. Yohannah and P. K. Singh, automatically a case for trial would have been made out. Erroneously the learned Court arrived at its finding of discharge in respect of all the accused persons and as such it was submitted that the impugned order dated 21-07-2016 passed by the learned Special Court, Port Blair be set aside and the case be sent for trial. Mr. Atul Prasant, learned Advocate appearing for the accused, Newazesh Ali, submitted that the prosecution has utterly failed to establish any charges, particularly with regard to the role played by him as the Superintendent Engineer of APWD, while issuing the work orders.
In fact the prosecution ignored the relevant provisions of CPWD Works Manual 2010 and 2012. It was emphasized that in urgent cases or when the interest of the work so demand and where it is expedient to do so, the work may be awarded without inviting any tender after approval of competent authority as per Section 14 of CPWD Manual. In case of emergency work, which arise all of a sudden requiring immediate action, the work should be executed in absence of any pre-requisites. The supply of Electro Chlorinators can never be termed as emergency works, but it is urgent work for providing clean and disinfected water to public at large. Urgent work has been defined under Section 2. 2 of CPWD Manual, which clearly states urgent work may not be treated at par with work to be taken up in emergency situations.
The installation of Electro Chlorinators for disinfection of drinking water were executed from the maintenance fund and contingencies of the original work through different work orders within the competency of the Executive Engineer and Superintendent Engineer as per the financial power delegated to the APWD/CPWD Officer, in paragraph 17 annexure 1 of CPWD Works Manual 2012 and the provision of Section 14. 1 of CPWS Works Manual. According to Appendix 1, Serial No. 17 of CPWD Manual, in respect of award of work orders without call of tenders, the Executive Engineer enjoys power to issue work orders up to Rs. 4 lakhs and the Superintendent Engineer enjoys power to issue work orders up to Rs. 12 lakhs. The approval of the Chief Engineer for urgent work is required only for original work.
It was contended on behalf of the accused that issuing work order for Electro Chlorinators in question was within the power of the concerned officer holding the post and in this case after collection of spot quotation adhering to the formalities it was found that the items were not easily available being specialized items and as such the Assistant Engineers and Executive Engineers obtained spot quotations as per the provision made in Para 5. 4. 1 and Para 14. 1 of CPWD Works Manual 2012. The reasonability of rates were ascertained by Field Executive Engineers and the circle office under Superintendent Engineers further explored to reduce the rate proposed by the contractor while preparing the justification rate of the items. Learned Advocate further contended that the provision of Section 2, Section 14 and Section 5 of the CPWD Manual were adhered to strictly.
As such the implication of the petitioner at the behest of the prosecution or the investigating agency was without any rhyme or reason. Learned Advocate further contended the allegations that the accused persons conspired for purchase of Electro Chlorinators without inviting any open tender and without prior approval of the Chief Engineer thereby causing loss to the Government is without any basis, as the Electro Chlorinators were installed at different water treatment sites of Andaman and Nicobar Islands and work orders were issued in respect of financial powers of the respective Engineers. The installation and commissioning work was done satisfactorily at field by respective Junior Engineer and Assistant Engineers and there are no evidence on behalf of the prosecution that some of the Electro Chlorinators are non-functional.
Further there are no evidence from the prosecution that any of the Electro Chlorinators were purchased beyond the prescribed specifications of the manual and handbooks issued by the Government of India. The investigating agency or the prosecution has failed to bring any material that the Electro Chlorinators were purchased at exorbitant rate resulting in any financial loss to the Government. The communication between the accused and the Chief Engineer for execution of the work from the time to time would reveal the same and as such the present petitioner who has been discharged by the learned Special Court was in adherence to the provisions of law and as such no interference is called for. Mr.
Binnu Kumar, learned Advocate, appearing on behalf of the accused Pushpa Raju submitted that the main allegation of the CBI against the petitioner and other Government officers were with respect to illegal collection of spot quotations, guarantee given for a period of 18 months whereas the life span of Electro Chlorinators should be 12 years from the date of its operation, non-compliance of CPWD manual, no post-facto approval obtained from the Chief Engineer and non-applicability of the financial Rules. Learned Advocate in order to substantiate his contention emphasized that Clause 17 of the CPWD work manual deals with award of work order without calling tenders and in terms of the same the Executive Engineer enjoys power to accord work to the extent of Rs. 4 lakh without calling a tender and the Superintendent Engineer enjoys power to award work without calling tender to the extent of Rs. 12 lakh. Section 2.
2 of the CPWD work manual defines urgent work and urgent work are those kind of work which requires fast start, completion within a compressed schedule and are taken up on topmost priority. The spot quotations in this case were invited which was within the permissible limit provided under the CPWD manual and on the basis of the same work orders were issued, Electro Chlorinator were supplied and installed with a guarantee period of 18 months by taking the aid of CPWD Manual and the General Specification for Electrical Works, 2005. So far as the issue relating to guarantee period is concerned, learned Advocate referred to General Specification for Electrical Works 2005 emphasizing on Clause 1. 27.
Different provisions of the CPWD Manual which were addressed on behalf of the CBI were attempted to be rebutted by the learned Advocate and it was further contended that as the work order which were issued were within the financial and administrative power of the Executive Engineer and the Superintendent Engineer, no approval was required from the Chief Engineer. Learned Advocate thereafter proceeded to refer to the statement of P. K. Singh, one of the witnesses and emphasized that so far as the present petitioner is concerned, his implication in the case is hardly made out and as such the order of discharge passed by the Learned Trial Court is substantiated by cogent reasons which do not call for any interference by this Court. Mr.
Tabraize, learned Advocate appearing for Man Mohan Singh submitted that the accused/opposite party was in charge of the office for a limited period of time and he has been unnecessarily implicated as he has followed the regular work orders which were earlier processed and as such his implication in the instant case is without any rhyme or reason. Learned Advocate also relied upon the CPWD and APWD Manual emphasizing the same Rules which were earlier submitted by the learned Advocate appearing for the accused Newazesh Ali and Pushpa Raju. It was the contention of the learned Advocate that the Learned Special Court took into account the relevant materials, the background of the circumstances under which the present set of public servants exercised their due diligence by adhering to the provisions of law and as such interference in respect of the order so passed will cause severe prejudice and irreparable loss and injury to the public servants who were mala-fidely implicated by the CBI.
Mr. Jaypal, learned Advocate appearing on behalf of Thomas Herenz adopted the submission of the learned Advocates who represented the public servants and submitted that the learned Trial Court while passing the order which is under challenge dealt with the powers of each and every officer, the manner in which they discharged their duties as well as the financial powers within which they have issued the work orders. As such, the order of discharge cannot be interfered with by this Court. Mrs. Rajashree Venkat Kundolia, learned advocate appearing for the respondent/accused numbers 7, 8, 9 and 10 in CRR 1 of 2017 submitted that the companies had carried out their work as per the requirements and they were paid for the materials which they have supplied. As such, they had no guilty intention for which they must be compelled to face the ordeal of a criminal trial.
Learned Advocate reiterated the contentions particularly with respect to the reasoning submitted by the learned Advocates who earlier presented their case and prayed before the Court for not interfering with the order passed by the Learned Special Court. I have considered the submissions advanced by the prosecution represented by learned Advocate Mr. Govind as well as the learned Advocates representing Newazesh Ali, Pushpa Raju, Man Mohan Singh, Thomas Herenz and the supplier companies. I have also taken into account the accusations which have been levelled against the accused persons in the charge-sheet and the materials which have been collected by the prosecution in support of its case. This Court is of the opinion that there is a glaring contrast to the case made out by the CBI and the finding of the Learned Special Court.
The CBI has in its charge-sheet and accompanying documents specifically made out a case wherein they found that most of the electro chlorinators were not functioning or working and were lying idle. As also that the accused persons entered into a conspiracy for awarding work orders to the accused/private firm for supply of electro chlorinators which were not required and the expenses incurred were for wasteful purchase causing wrongful loss of Rs. 33,85,204/- to the Andaman Public Works Department and correspondingly wrongful gain to themselves and in order to substantiate such claims, the prosecution relied upon 60 documents and 36 witnesses.
On the contrary, while passing the order dated 21-07-2016, the learned Trial Court surprisingly observed that the CBI/prosecuting agency did not challenge any of the codal formalities entered into by the Engineer in collecting spot quotations or awarding the work orders and it is neither the case that the work order was illegally issued or without following the APWD manual. Such conclusion of the Special Court is against the documents collected by the prosecution and relied upon by them. The further observation of the learned Special Court while arriving at its finding that there is no allegation in the case that the electro chlorinators were purchased at an exorbitant rate resulting in loss of Government money is also against the materials collected by the investigating agency while substantiating their case.
The learned Special Court while arriving at its finding diluted the accusations by observing that the process adopted by the Engineers may be termed as irregular but they cannot be fastened with any criminal liability. The aforesaid three issues which were the foundation for arriving at a conclusion of discharge are against the materials collected by the CBI and is a palpable error appearing from the records of the case. That being so, the order dated 21-07- 2016 discharging all the accused persons from Special Case number 05 of 2015 passed by the learned Special Judge, Port Blair, calls for interference and as such the same is hereby set aside. Accordingly, the revisional applications being CRR 1 of 2017, CRR 17 of 2018, CRR 18 of 2018 and CRR 19 of 2018 is hereby allowed. The accused persons are directed to appear before the Learned Special st Court, Port Blair on or before 31 January, 2025.
The learned Special Court, Port Blair is directed to frame the charges and take the trial to its logical conclusion. Pending connected applications, if any, are also disposed of. The Trial Court Records were called for in this case, the same may be returned to the Court of Learned Special Judge, Port Blair immediately. The Learned Registrar General, High Court Calcutta is directed to take immediate steps so that the Special Court, Port Blair receives the records of Special Case No. 05 of 2015. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Tirthankar Ghosh, J. )
Source: Calcutta High Court. Dataset: Dattam Labs. CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.