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Thursday, January 21, 2021

HC ticks off J&K officials: In slumber like Kumbhkarn

The court also said, “The result of this casualness is causing huge loss to the public exchequer.”

Written by Arun Sharma | Jammu | Updated: December 11, 2020 8:46:49 am
Justice Bindal made these observations while dismissing a writ petition filed by the National India Construction Company, which had challenged rejection of its bid for construction of a road under the Pradhan Mantri Gram Sadak Yojana (PMGSY).

Expressing displeasure at the “casualness” of their working, the Jammu and Kashmir High Court has ticked off officials of the Union Territory’s administration by equating them with “Kumbhkarn’’, and observing that they “had to be scolded” to be woken up.

The court also said, “The result of this casualness is causing huge loss to the public exchequer.”

Pointing out that all government employees are trustees of public money, and time has come that people can ask them to be accountable for not using it properly, Acting Chief Justice Rajesh Bindal said, “The way of working and attitude of shirking responsibility (by officials) will not change unless people at the helm are held accountable for their action and inaction. If officers and staff are paid salaries from amounts contributed by the public, why should the public exchequer suffer for their inefficiency and casualness?”

Justice Bindal made these observations while dismissing a writ petition filed by the National India Construction Company, which had challenged rejection of its bid for construction of a road under the Pradhan Mantri Gram Sadak Yojana (PMGSY).

Referring to the Supreme Court once comparing a litigant with Kumbhkarn for approaching the court after a long delay, Justice Bindal noted, “…if considered in that light, for filing of replies/objections in cases pending in this court, government (UT) officials are no better. As has been mentioned in Ramayan, demon king Ravan had to use a lot of noise and different means to wake up Kumbhkarn when his kingdom was in trouble. Here also government officials are to be woken up from slumber by using different means.”

“In the case in hand and what is seen in other cases filed against the government [erstwhile J&K government; present UT administration] in this court, replies/objections are not filed in some cases even for a decade,” Justice Bindal pointed out. And “it is not limited to main petitions but even in contempt petitions, compliance report is not filed for a long time.”

This, he said, “results in denying fruits of litigation to the succeeding party, but even lowers public trust in the judicial institution.”

In the present case, he said, “the project for creation of infrastructure in the Union Territory had been put on hold on account of interim stay granted by this court on April 16, 2018. As usual, the department kept ‘sleeping’ over the matter and did not take care even to file objections immediately after receipt of notice.”

Justice Bindal added, “Apparently sleeping over a matter may be more suitable for reasons best known to them (UT officials), but the result remains that the people of Jammu & Kashmir remain deprived of better infrastructure facilities.”

Despite court expressing “serious concern” over delay in filing of objections in its order on May 15, 2019, he said “official respondents continued sleeping over the matter for more than one year”.

He said, “To wake them up, they had to be scolded…now it was a communication from the (Union) Ministry of Agriculture and Farmers Welfare and Rural Development and Panchayat Raj, saying that works sanctioned before April 1, 2020 and which remain unwarned till December 31, 2020 will be dropped from the list of sanctioned works of PMGSY…

“In such a situation, Jammu and Kashmir will have to fund these projects out of its own resources.”

The court observed: “These facts establish that apparently there has to be some monitoring authority standing on the heads of all departments with a stick to take even routine work from them…there can be some vested interest to keep silent and delay execution of projects.”

“It was after this communication (from the Centre) that the officers got up from slumber,” Justice Bindal observed. “It may be for the reason that fresh funds were to flow. Otherwise, no one is taking care of the projects for which funds have already been released and those are hanging fire.”

He referred to delays caused by the invoking of arbitration clause and siphoning off of money in the form of claims. The litigation in those cases, too, are not contested properly, he added.

The court asked the competent authority to consider the manner in which the estimated project cost is evaluated. It said, “In the case in hand, e-NIT [or e-tender] mentioned the estimated cost of the project as Rs 1,285.68 lakh, but the petitioner claimed that his offer was for Rs 9,90,10,059. But…the difference in cost estimated by the department as compared to bids submitted by the bidders was about 15-20 per cent.”

The lowest bidder had offered a rate that was 19.10 per cent less than the estimated cost of the project, the court noted.

The Acting CJ also referred to “another strange fact” – that a “successful bidder is ready and willing to execute the project at the same rates even after five to 10 years” after it was allotted. Pointing out that such instances have come before the court earlier, too, he said, “Apparently, it can be for one reason: that the rates at which the works are allotted are so high that any contractor is able to execute the same even after five to 10 years of allotment, even if the time provided for completion of the work may be 1-2 years.”

While there is always an increase in cost of projects on account of labour and material during this period, he said, “May be it is more lucrative to work in Jammu and Kashmir, as one of the companies registered in Assam was also in litigation with the department here with reference to some contract. There can be issue of quality of construction also.”

Emphasising the need for “deep examination” of these issues, the Acting Chief Justice directed the UT Chief Secretary to refer some cases for test audit to the Central Road Research Institute for quality of the works being executed in J&K.

“Estimated cost of project calculated by the department should also be gone into by the Institute. Besides, any other related matter can also be referred by the Chief Secretary to the Institute, as the idea is to bring transparency in the system and create better infrastructure,” Justice Bindal said.

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