Allowed

P.K.Abraham v. State of Kerala and Others

Kerala HC4 Jul 2016WP(C)/4629/2007

Case brief

AI extract

What is this about?

Writ petition filed by a government contractor against state officials for delay in settling accounts and releasing retention amount. Court held duty bound to act on prior verification and directions, dismissing other grievances for appropriate proceedings.

What did the court decide?

Directing respondents 3 and 4 to release retention amount and record final measurements within specified timelines, settling accounts reckoning seniority from 31.7.2001.

P.K.Abraham Vs State of Kerala and Others — Pension and Retirement Benefits | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶4

MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938

¶5

WP(C).No. 4629 of 2007 (A) ---------------------------

¶6

PETITIONER(S):

¶7

P.K. ABRAHAM,GOVERNMENT CONTRACTOR, PURAKKATT HOUSE,, ANGAMALY SOUTH P.O., ERNAKULAM-683 573.

¶8

BY ADVS.SRI.MURALI PURUSHOTHAMAN

¶9

SRI.P.M.BENZIR SRI.DEEPU LAL MOHAN

¶10

RESPONDENT(S):

¶11

1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO, GOVERNMENT, WATER RESOURCES (MP) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

¶12

2. CHIEF ENGINEER, KPIP, WATER RESOURCES DEPARTMENT, PROJECT I, CIVIL STATION, KOZHIKODE-20.

¶13

3. THE SUPERINTENDING ENGINEER, SIRUVANI PROJECT CIRCLE, PALAKKAD-12.

¶14

4. THE EXECUTIVE ENGINEER, KANHIRAPUZHA IRRIGATION PROJECT, DIVISION NO.II, OTTAPPALAM-679 104.

¶15

*ADDL. R5 IMPLEADED :

¶16

5. THE PRINCIPAL SECRETARY TO GOVERNMENT ADDITIONAL CHIEF SECRETARY (FINANCE), FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

¶17

*ADDL. R5 IS IMPLEADED AS PER ORDER DT6/3/2008 IN IA 2947/2008.

¶18

R1 TO 4 BY GOVERNMENT PLEADERSRI. JOBI JOSEPH

¶19

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

¶21

WP(C).No. 4629 of 2007 (A)

¶22

APPENDIX

¶23

PETITIONER'S EXHIBITS :

¶24

P1:	COPY OF THE LETTER DT 16/2/21998 OF THE PETITIONER ADDRESSED TO THE R3.
P2:	COPY OF THE LETTER DT 20/3/1998 OF THE PETITIONER ADDRESSED TO THE R3.
P3:	COPY OF THE LETTER DT 01/04/1998 OF THE PETITIONER ADDRESSED TO THE R3.
P4:	COPY OF LETTER DT 16/4/1998 OF THE PETITIONER ADDRESSED TO THE R3.
P5:	COPY OF THE LETTER NO.A4.2262/94 DT 174/1998 OF THE R4 ADDRESSED TO THE R3.
P6:	COPY OF THE LETTER NO.LBM/97-98 DT 18/5/1998 OF THE ASST. ENGINEER.
P7:	COPY OF THE LETTER DT 23/6/1998 OF THE PETITIONER ADDRESSED TO THE ASSISTANT ENGINEER.
P8:	COPY OF THE LETTER NO.LBM/97-98 DT 26/8/1998 OF THE ASSISTANT ENGINEER ADDRESSED TO THE ASSISTANT EX. ENGINEER.
P9:	COPY OF THE LETTER DT 1/9/1998 OF THE PETITIONER ADDRESSED TO THE ASSISTANT ENGINEER.
P10:	COPY OF THE LETTER DT 12/1/1999 ADDRESSED T THE R3 BY THE PETITIONER.
P11:	COPY OF THE LETTER NO.WP1-2271/96 DT 3/2/1999 OF THE R2 ADDRESSED TO THE R3.
P12:	COPY OF THE LETTER DT 4/5/1999 OF THE PETITIONER ADDRESSED TO THE R3.
P13:	COPY OF THE LETTER DT 22/7/1999 OF THE PETITIONER ADDRESSED TOT HE R3.
P14:	COPY OF THE LETTER DT 5/11/1999 OF THE R3 ADDRESSED TO THE R4.
P15:	COPY OF ORDER NO.WP1-2271/96 DT 14/1/2000 ISSUED BY THE R2.

¶25

WP(C).NO. 4629 OF 2007 (A)

¶26

P16:	COPY OF THE LETTER DT 11/4/2000 OF THE PETITIONER ADDRESSED TO THE RR3.
P17:	COPY OF THE LETTER NO.D2-287/96 DT 4/5/2000 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONER.
P18:	COPY F THE LETTER DT 2/3/2001 OF THE PETITIONER ADDRESSED TO THE R3
P19:	COPY OF THE LETTER DT 5/4/2001 OF THE PETITIONER ADDRESSED TO THER R3.
P20:	COPY OF THE ORDER NO.,D3-614/96 DT 16/6/2001 ISSUED BY THE R3.
P21:	COPY OF THE LETTER NO.LBMC/97-98 DT 28/7/2001 OF THE ASSISTANT ENGINEER ADDRESSED TO THE MANAGER, SOUTH INDIAN BANK.
P22:	COPY OF THE LETTER DT 14/8/2001 OF THE PETITIONER ADDRESSED TO THE ASSISTANT ENGINEER.
P23:	COPY OF THE LETTER DT 4/9/2001 OF THE PETITIONER ADDRESSED TO THE R3.
P24:	COPY OF THE LETTER NO.A4-2262/94 DT 18/9/2001 OF THE R4 ADDRESSED TO THE MANAGER, SOUTH INDIAN BANK.
P25:	COPY OF THE LETTER NO.JS/G1 DT 21/3/2002 OF THE R3 ADDRESSED TO THE POST MASTER ALUVA.
P26:	COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DT 11/2/2004 IN OP NO. 22605 OF 2002.
P27:	COPY OF THE LETTER DT 2/11/2004 OF THE R1 ADDRESSED TO THE R2.
P28: TO	COPY OF THE LETTER DT 11/1/005 OF THE R1 ADDRESSED THE R2.
P29:	COPY OF THE G.O.(RT) NO.242/2005/WRD DT 1/3/2005 ISSUED BY THE R1.
P30:	COPY OF THE ENQUIRY REPORT NO. 53783/FIW-C1/2005/FIN DT 24/4/2006 SUBMITTED BY THE CHIEF TECHNICAL EXAMINER.
P31:	COPY OF THE LETTER NO. 5355/MP3/2003/WRD DT 22/5/2006 OF THE R1 ADDRESSED TO THE R2.

¶27

WP(C).NO. 4629 OF 2007 (A)

¶28

P32: COPY OF THE LETTER DT 12/8/2006 OF THE PETITIONER ADDRESSED TO THE R3.

¶29

P33: COPY OF THE LETTER NO.D3-614/96 V DT 14/11/2006 OF THE R3 ADDRESSED TO THE PETITIONER.

¶30

P34: COPY OF THE ORDER NO.WP1-2271/96 DT 4/10/1997 ISSUED BY THE R2.

¶31

P35: COPY OF THE TELEGRAM BOOKED BY THE R2 ASKING ME TO ATTEND HIS OFFICE AT 12 NOON ON 9/10/2006.

¶32

P36: COPY OF THE TELEGRAM BOOKED BY THE ASSISTANT EXECUTIVE ENGINEER DIRECTING ME TO REPORT AT THE WORK SITE AT 9A.M. ON 30/10/2006.

¶33

RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A.TO JUDGE

P.V.ASHA, J.

W.P.(C) No.4629 of 2007

¶39

Dated this the 4^th day of July, 2016

¶40

JUDGMENT

¶41

The petitioner who is a Government contractor has filed this writ petition, aggrieved by the delay in settling his accounts, even after directions from the Government.

¶42

Petitioner was awarded the work of “Kanjirapuzha Irrigation Project-Forming LBMC from Ch.53400m to 54000m (balance work) including construction of a diversion canal from Ch.53390m to53520m and CD works” by the Irrigation Department. Petitioner submits that after facing various obstructions on account of landslide, slippage of earth etc., undertaking rectification works and additional works on revised estimate and revised design, he was able to complete the wok by 31.07.2001. Thereafter, the Superintending Engineer had as per Ext.P25 letter dated 21.3.2002 released the security amount to the petitioner stating that the work had already completed. However the respondents delayed his bills and payment was not effected against certain items in the bill. When the petitioner challenged the cutting short of the payment filing O.P.22605/2002, the respondents came forward assuring action for redressal and based on the assurance he withdrew that Original Petition. In the meanwhile the petitioner was

¶43

:2:

¶44

W.P.(C) No.4629 of 2007

¶45

asked to execute supplementary agreement for certain other works styled as balance work. Payment was not effected even after directions issued by Government, on account of a dispute between the petitioner and respondents 2 to 4 regarding the quantum of work.

¶46

Petitioner states that Government constituted a technical committee as per its Ext.P29 order dated 1.3.2005 in order to verify and report all aspects of work “KPIP-Forming LBMC from Ch.53400m to 54000m (balance work) including construction of a diversion canal from Ch.53390m to53520m and CD works”. The Chief Technical Examiner, after verification, found that the claim of the petitioner for the completed work can be considered for admitting for payment, as he had almost completed the work years back almost achieving the objective of the scheme and to settle his final claims after terminating the contract with him. Thereupon Government as per Ext.P31 letter dated 22.5.2006 forwarded the enquiry report to the Chief Engineer and requested for necessary action for releasing the outstanding payment to the petitioner as suggested therein with intimation to the Government. But even after several representations from the petitioner, the respondents did not take any action for releasing the amount. At the same time Superintending Engineer by Ext.P33 letter dated 14.11.2006 informed the petitioner that the retention amount

¶47

:3:

¶48

W.P.(C) No.4629 of 2007

¶49

cannot be released to him as the work is not completed. It was also stated therein that since the petitioner had brought these matters to the attention of the Minister, request for releasing the retention amount will be considered after getting instructions from higher authorities. Thus the respondents refused to settle the bills of petitioner. It is also the complaint of the petitioner that respondents 2 to 4 did not take any action to measure the work.

¶50

The petitioner had filed this writ petition at that stage, since the accounts with respect to the work done by him were not settled.

¶51

The Executive Engineer KPIP Division No.II, Ottapplam has filed a counter affidavit on behalf of respondents 3 and 4. In this counter affidavit, it is stated that the Executive Engineer had in his letter dated 16.3.2004 informed the Chief Engineer that the petitioner had to execute 9 items of work mentioned therein and thus it was stated that the entire work was not completed. It is also stated that no work executed by him at the site was left unrecorded. It is their further case that the petitioner did not co-operate with them in order to settle the disputes with respect to the measurement. It is further stated that retention amount can be released only three months after completion of work or paying off the final bill which ever is later. Thus according to the Executive Engineer as the work has not been

¶52

:4:

¶53

W.P.(C) No.4629 of 2007

¶54

completed satisfactorily, the final bill cannot be paid. It is further stated that the amount due to the petitioner has not been paid as he has not complied with the directions as per the agreements.

¶55

The petitioner has filed a reply affidavit stating that the respondents had not given him timely intimation regarding hearing and each of the telegrams sent to him to attend hearing reached him only after the date fixed for hearing.

¶56

The petitioner submits that he had to execute several additional work on account of the peculiar conditions, prevailed in the worksite, of which the respondents were convinced and the denial of payment even after the directions issued by Government is arbitrary.

¶57

I heard the learned counsel for the petitioner and the learned Government Pleader.

¶58

The stand of the respondents is that they have already recorded the final measurements. But they did not have a case that the final measurements have been taken in presence of the petitioner. At any rate the counter affidavit does not refer to Ext.P25 letter of the Superintending Engineer in which he has stated that the work has completed while returning the security amount. Moreover, once the Technical Examiner verified the work done and recommended settlement of accounts in respect of petitioner and based on that

¶59

:5:

¶60

W.P.(C) No.4629 of 2007

¶61

recommendation, Government issued directions to the 2^nd respondent to release the payment due to petitioner, there is no justification on the part of respondents in not settling the bills. When the Government had looked into the complaint of the petitioner and accorded sanction to constitute a technical committee specifically for the purposes as can be seen from the orders Ext.P29 and P30 and thereafter on the basis of that recommendation the Government in Ext.P31 directed the 2^nd respondent to take appropriate action in the matter to settle the claims of the petitioner in terms of the recommendation, respondents 2 to 4 were duty bound to implement that order. Even in the counter affidavit of the Executive Engineer nothing is stated regarding the Government's direction. They only refer to the letter issued in the year 2004 much before the recommendation of the Committee. It is seen that the work was completed as early as on 31.7.2001. Lethargy on the part of respondents 2 to 4 has unnecessarily caused delay in settling the matter.

¶62

Under the above circumstances, respondents 3 and 4 are directed to take immediate steps to release the retention amount due to the petitioner. Respondents 3 and 4 shall also take emergent steps to record the final measurements of the work Kanhirapuzha Irrigation project-forming Left Bank Main Canal from ch.53400m. to ch.54000m.

¶63

W.P.(C) No.4629 of 2007

¶64

:6:

¶65

(Balance Work) including construction of a diversion canal from Ch.53390 m. to Ch.53520m and C.D. works including final level measurement, in the presence of the petitioner after giving him due notice. This shall be done within a period of two months from the date of receipt of a copy of this judgment.

¶66

Immediately, after the measurement is completed, the respondents shall further take steps to settle the accounts of petitioner reckoning his seniority from 31.7.2001. The entire action shall be completed within a total period of three months from the date of receipt of a copy of this judgment.

¶67

The petitioner will be free to take up any other grievances with respect to the aforesaid work in appropriate proceedings.

¶68

This writ petition is disposed of accordingly.

¶69

Sd/-

¶70

P.V.ASHA JUDGE

¶71

rkc

P.K.Abraham v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

P.K.Abraham v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.P.Royachan Vs Tobin Antony

George Thomas Vs Kse Board

Kochurani Antony Vs Senior Regional Manager

Grasim Industries Ltd. Vs State of Kerala

T.R.Sajulal Vs the Ernakulam District Whole Sale

All Kerala Unani Hakim'S Assn.(Regd.) Vs State of Kerala