Duryodhan Pradhan vs State of Orissa

L.K. Mohapatra, J.—This application u/s 482 Code of Criminal Procedure. has been filed for quashing the proceeding in Bhubaneswar Vigilance P.S. Case No. 51 of 2002 corresponding to T.R. No. 89 of 2005 pending in the Court of the Learned Special Judge (Vigilance), Bhubaneswar.

On the basis of information received by the D.S.P., Vigilance, Bhubnaeswar, the aforesaid case was registered for commission of offence u/s 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act against the Petitioner and some others. The allegation in the F.I.R., is that for the purpose of construction of a long composite spur on right embankment of river Devi, an estimate of Rs. 50 lakhs had been prepared by the Executive Engineer, Nimapara Division in February, 1998. The said estimate was sanctioned by the Superintending Engineer, Central Irrigation Circle, Bhubaneswar, who is the Petitioner before this Court, on 26.2.1998 and thereafter administrative approval was accorded by the then Chief Engineer on 21.2.1998. The tender for execution of the work was invited by the Executive Engineer, Nimapara Division in February, 1998 and the tender schedule for the work had been approved by the Petitioner for an amount of Rs. 47,54,639.00. Fifteen persons filed their tenders and the tender submitted by N.R. Pradhan, which was 2.76% less than the estimated cost, was accepted. So far as the Petitioner is concerned, it is alleged that the said N.R. Pradhan, who executed the work as contractor, is the son of the present Petitioner and, therefore, undue favour has been shown to the son of the Petitioner.

The Learned Counsel, Shri Dutta appearing for the Petitioner drew attention of the Court to the technical inspection report submitted by the Executive Engineer, Vigilance Department, Cuttack. In the said report, it is stated that on scrutiny of the estimate, no appreciable irregularities were noticed. It was found from the record that the tender was well competitive and awarding the work in favour of the second lowest bidder Sri N.R. Pradhan on the ground of price preference allowed to Graduate Engineer Contractor is well within executive instruction and, therefore, no irregularities were committed in evaluation of tender. It was contended by Shri Dutta, the Learned Counsel appearing for the Petitioner that the Petitioner was only involved in technical sanction of the project and no irregularities having been found in such technical sanction of awarding the work in favour of the son of the Petitioner, no offence has been committed by the Petitioner and, therefore, the proceeding should be quashed.

Shri Mohapatra, the Learned Counsel for the Vigilance Department, on the other hand, submitted that the fact of submission of the tender by the son of the Petitioner was not unknown. Under the O.P.W.D. Code, the contractor should have disclosed the aforesaid fact at the time of submission of the tender and had it been done, possibly the son of the Petitioner could not have been awarded with the work. On the above fact it is submitted by Shri Mohapatra, the Learned Counsel appearing for the Vigilance Department that the nexus between the Petitioner and his son in execution of the work cannot be ruled out. In reply to the above submission, it is contended by Shri Dutta, the Learned Counsel appearing for the Petitioner, that in the O.P.W.D. Code a declaration has to be made by the contractor and if no such declaration has been made, the contractor is to be held responsible and for the fault on the part of the contractor, the Petitioner cannot be penalised.

There is no dispute that in preparation of the estimate, the Petitioner was involved. No doubt such estimate was given administrative approval by a suprior officer and no irregularities have been found with regard to such estimate. There is also no dispute that son of the Petitioner, who is the second lowest tenderer, was awarded with the work without giving any declaration that his father, who is present Petitioner, was involved in the process. There is also no dispute, as is evident from the record, that till payment of 7th running bills, the Petitioner continued as Superintending Engineer.

The Learned Counsel for the Petitioner submitted that payment of running bills is looked after by the Superintending Engineer. Even if such contention is accepted, son of the Petitioner was awarded with the work, though legally as per the Government instructions contained in the O.P.W.D. Code, the contractor is required to give the declaration, it cannot be said that the Petitioner was not aware of awarding of such work in favour of his son and he continued in the post till 7th running bill was paid to his son. I, therefore agree with the Learned Counsel for the Vigilance Department that nexus between the Petitioner and the contractor who is the son cannot be ruled out at this stage unless evidence is adduced to the contrary. I am, therefore, of the view that this is not the stage where the proceeding can be quashed, so far as the Petitioner is concerned.

I, accordingly do not find any merit in this application and the same is dismissed.

Application dismissed.