Allowed

Divya Krishnan v. Kerala State Electricity Board Ltd.

Kerala HC8 Jan 2021WP(C)/13491/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition by a petty contractor against Kerala State Electricity Board for denial of payment. The Court found the denial of bills to be arbitrary harassment and directed final payment within six weeks.

What did the court decide?

The competent respondent is directed to make final payment on the bills claimed by the petitioner within a period of six weeks.

Divya Krishnan Vs Kerala State Electricity Board Ltd. — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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FRIDAY, THE 08TH DAY OF JANUARY 2021/18TH POUSHA, 1942

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WP(C).No.13491 OF 2018(J)

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PETITIONER:

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DIVYA KRISHNAN, AGED 38 YEARS, W/O.BABU, MATTATHIL KAROTT HOUSE, VADAKODE P.O., KANGARAPADY, ERNAKULAM DISTRICT.

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BY ADVS. SRI.C.R.SANISH SRI.KARTHIK S. ACHARYA

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RESPONDENTS:

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1 KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, THIRUVANANTHAPURAM, PATTOM - 695 004,REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.

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2 THE CHAIRMAN AND MANAGING DIRECTOR, KSEB LTD., VYDYUTHI BHAVAN, THIRUVANANTHAPURAM, PATTOM – 695 004.

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3 THE EXECUTIVE ENGINEER, KSEB ALUVA DIVISION, ERNAKULAM DISTRICT- 683 102.

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4 THE ASSISTANT EXECUTIVE ENGINEER, KSEB KALAMASSERY SUB DIVISION, ERNAKULAM DISTRICT.

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5 THE ASSISTANT ENGINEER, KSEB KALAMASSERY SECTION, ERNAKULAM DISTRICT.

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6 REMESH BABU,HARITHA HOUSE (THEKKUMTHALA VEEDU),KADEPALLY ROAD, KADUNGALLOOR, U C COLLEGE P.O., ALUVA, ERNAKULAM,PIN- 683 102, FORMER ASSISTANT EXECUTIVE ENGINEER,KSEB KALAMASSERY SUB DIVISION, ERNAKULAM DISTRICT.

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R1-R5 BY SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD LIMITED

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N. NAGARESH, J.

W.P.(C) No.13491 of 2018

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Dated this the 8^th day of January, 2021

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner, who is a petty contractor in KSEB,

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has approached this Court seeking to direct the 1^st respondent-

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KSEB to enquire into Ext.P6 complaint submitted by the petitioner and sanction the petitioner's work bills along with interest from 20.12.2017 and take necessary action against the 3^rd and 6^th respondents in accordance with law.

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The petitioner states that she is a petty labour contractor of KSEB. She submitted two tenders and two quotations for Distribution Transformer Meter Reading Box setting (DTR Fitting) and Street Light OH line constructing (Street Light) works in Aluva Electrical Division of Kalamassery Section. Works were allotted to the petitioner and she deposited 5% of total value of the work and 2.5% of EMD in the concerned KSEB Section Office. When the work was allotted

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to the petitioner, the petitioner deposited remaining 2.5% of total value of the tender work also. Agreement was entered between the petitioner and the 6^th respondent with regard to the quotation works and with the 5^th respondent with regard to tender works.

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The petitioner states that she raised the bills for the following completed works:-

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(1) M-book No.43/17–18 (DTR fitting), PC Bill No.77/17–18, for an amount of `1,70,940/-

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(2) M Book No.181/15–16 (Street Light), PC Bill No.81/17–18 for an amount of `1,52,080/-

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(3) M Book No.259/16–17 (DTR Fitting), PC Bill No.76/17–18 for an amount of `99,900/-

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(4) M Book No.76/12–13 (DTR Fitting), PC Bill No.83/17–18 for an amount of `99,900/-

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Under the aforesaid bills, the petitioner is entitled to `5,22,820/-, in total. Though the petitioner submitted several representations and reminders, the respondents did not sanction the bills of the petitioner. The petitioner submitted Ext.P1 representation before the 3^rd respondent on 06.03.2018. By Ext.P2 letter of the 3^rd respondent, the

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petitioner was informed that her PC Bill Nos.77/17–18 and 81/17–18 are under audit and the petitioner will be paid once audit is completed. As regards Bills 76/17-18 and 83/17-18, the petitioner was informed that bills can be submitted to the office of the Executive Engineer if documents relating to the work are clear.

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The petitioner thereupon filed Ext.P3 complaint dated 12.03.2018 to the 2^nd respondent. To Ext.P2, the petitioner sent Ext.P4 reply dated 26.03.2018 to the 3^rd respondent. By Ext.P5(a) of the 3^rd respondent, the petitioner was informed that the Sub Division Officers have pointed out certain shortcomings and action will be taken once the shortcomings are made good. On the same day, Ext.P5(b) letter was also issued to the petitioner alleging that the petitioner has done certain works without proper work order or agreement and that the petitioner has to submit work orders/agreements for inspection. It was further alleged that the petitioner is not a contractor registered in the Sub Division. Carrying out work without work order, agreement and permit,

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is a serious offence. The petitioner was required not to repeat such offence.

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On receipt of Ext.P5(b), the petitioner again preferred Ext.P6 complaint before the 2^nd respondent. In Ext.P6, the petitioner explained the facts in detail and stated that the petitioner is unnecessarily being harassed. However, the 2^nd respondent did not act on Ext.P6 complaint and the petitioner is left without a remedy than to approach this Court for payment of money for the work executed by her.

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This writ petition was filed on 12.04.2018, serving a

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copy of the writ petition on the Standing Counsel for the respondents. On 13.04.2018, the Standing Counsel took notice of the writ petition. On 04.06.2018, the writ petition was admitted and the Standing Counsel sought time for filing counter affidavit. On 26.07.2018, when this writ petition came up for hearing, this Court ordered that the Standing Counsel for KSEB shall place on record the counter affidavit. On 09.10.2018, this Court again directed that the counter affidavit be filed within 10 days. The writ petition was posted again for

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hearing on 25.10.2018, 01.11.2018, 22.11.2018, 28.11.2018, 12.12.2018, 14.12.2018 and 08.01.2019. On 08.01.2019, this Court again directed the respondents to place a counter affidavit on record. However, no counter affidavit was filed. The case was again posted for hearing on 21.01.2019, 22.01.2019 and 07.02.2019. However, counter affidavit was not filed. This Court noted the said fact on 11.02.2019 and posted the case to 21.2.2019. On 21.02.2019, the respondents sought one more week time to file counter affidavit, which was granted by this Court. The case was posted for hearing on subsequent days also. On 02.03.2020 and 12.03.2020, the Standing Counsel again sought further time to file counter affidavit. On 12.03.2020, time was granted as a last chance. Yet no counter affidavit was filed. The writ petition came up on 30.09.2020 on which date this Court granted further time of four weeks making it clear that if counter affidavit is not filed within four weeks, the defence of respondents 1 to 5 will stand struck off. Yet the respondents have not filed counter affidavit. In the circumstances, this

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Court is forced to consider the claim of the petitioner on the basis of available pleadings on record.

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The works executed by the petitioner are four in number, as stated in paragraph 3 above. The fact that bills were submitted by the petitioner is discernible from communication of respondents exhibited in the writ petitions. The fact that works are completed is not seen disputed therein. The petitioner submitted Ext.P1 representation to the 3^rd respondent on 06.03.2018.

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In Ext.P3, the petitioner has specifically stated that all the aforesaid bills were verified by the Section Assistant Engineer after measurement and were forwarded to the Sub Division Office in December, 2017. When the Assistant Executive Engineer, Sub Division delayed check measurement in respect of the bills, the petitioner approached the Assistant Executive Engineer and reminded of the bills. On 05.03.2018, when records were verified by the petitioner, it was seen noted in the records that the bills were forwarded from the Sub Division to the Division. In the records, it was

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noted that M Book No.76/17–18 was not received in the Division Office and as regards M Book No.259/16–17, book was received but the copies of the bills were not received by the Division Office. The petitioner further pointed out that in the records maintained in the Sub Division, it was specifically noted in the M Book movement register that bills were forwarded to the Division Office. The petitioner pointed out that the non-conduct of check measurement and alleged nonreceipt of M Books and bills are mysterious and intended to harass the petitioner.

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The petitioner was thereafter issued with Ext.P5(a) letter dated 04.04.2018 wherein it was stated that the petitioner can make good the deficiencies in respect of the bill relating to M Book 43/17–18. On the same day the very same Executive Engineer issued Ext.P5(b) letter, stating that no work order or agreement exists in respect of the three other works. In Ext.P5(b), it has been alleged for the first time that the petitioner is not a registered contractor of the Sub Division. The petitioner was required to produce work orders or

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agreements in respect of the three works, in order to pass the bills.

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The petitioner thereupon submitted Ext.P6 complaint again to the 2^nd respondent. The petitioner pointed out that the Section Assistant Engineer concerned had taken the measurements in respect of the four works and prepared the bills which were forwarded to the Assistant Executive Engineer, Kalamassery. The Assistant Executive Engineer, Kalamassery is adopting a vindictive measure against the petitioner.

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Going through the pleadings and materials available in the case, this Court is inclined to find that the petitioner has executed the four works. In Ext.P2, the Executive Engineer has stated that two of the bills are undergoing audit and after the audit, payment will be made to the petitioner. In respect of two other works, the Executive Engineer stated that there are no work orders in respect of those works. But subsequently the Executive Engineer in Ext.P5 letter took a stand that the petitioner is not a registered

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contractor and that the execution of work by an unregistered contractor is an offence.

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Ext.P8 work order issued by the respondents would show that the petitioner has been given petty work in the year 2017 also. Ext.P9 agreement executed between the respondents and the petitioner would also show that the respondents had contract arrangements with the petitioner earlier. Ext.P10 document would show that the petitioner was a contractor in respect of work relating to installation of Transformer DTR metre 77. Therefore, the allegation subsequently raised by the respondents that the petitioner is not a registered contractor, cannot be accepted.

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As stated earlier, the respondents have not disputed submission of the bills by the petitioner. The respondents also do not dispute the fact that initial measurements were taken by KSEB officials and bills were submitted in respect of the work executed. The petitioner had submitted supporting bills in respect of her claim. Denial of payment to the petitioner on the grounds that the petitioner is

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not a registered contractor, that the petitioner has not submitted supporting bills and that work orders were not issued to the petitioner, can only be treated as attempt of the officers of the 1^st respondent to harass the petitioner and deny the bill amounts payable to the petitioner. The petitioner had promptly brought to the notice of the higher officials, the vindictive attitude of the Assistant Executive Engineer against the petitioner. However, no enquiry was made in this regard. Therefore, in the conspectus of the facts of the case, it is evident that the petitioner has been denied amounts legally due to her, illegally and arbitrarily.

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In the facts and circumstances of the case, the writ petition is allowed. The competent among the respondents is directed to make final payment on the bills claimed by the petitioner within a period of six weeks.

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Sd/- N. NAGARESH, JUDGE

aks/04.01.2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXT P1 TRUE COPY OF THE REPRESENTATION DATED 6/3/18 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXT P2 TRUE COPY OF THE REPLY DATED 21/03/18 BEARING NUMBER GB/COMPLAINT/2017-18 ISSUED BY THE 3RD RESPONDENT. EXT P3 TRUE COPY OF THE COMPLAINT DATED 12/03/18 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT P4 TRUE COPY OF THE REPLY DATED 26/03/18 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT P5(a)&P5(b) TRUE COPIES OF LETTERS DATED 04/04/18 BEARING NUMBERS GB/COMPLAINT/2018-19/7 AND GB/COMPLAINT/2018-19/20 ISSUED BY THE 3RD RESPONDENT. EXT P6 THE TRUE COPY OF THE COMPLAINT DATED 07/04/18 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT P7(a)&P7(b) TRUE COPIES OF RECEIPTS ISSUED FROM THE KSEB SECTION OFFICE KALAMASSERY TO THE PETITIONER DATED 09/10/17 AND 11/10/17 SHOWING THE EMD AND SECURITY DEPOSIT TO DONE THE PETTY CONTRACT WORK. EXT P8 TRUE COPY OF THE MANUAL WORK ORDER ISSUED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY BEARING WORK ORDER NO.DB/WO/83/2016-17 DT.27/02/2017 TO THE PETITIONER.

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EXT P9 THE TRUE COPY OF THE AGREEMENT DATED 28/02/2017 ENTERED BETWEEN THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY EXT P10 THE TRUE COPY OF THE PETTY CONTRACT BILL NO.77/17-18 FOR AN AMOUNT OF RS.1,62,393/- PREPARED AND SIGNED BY THE ASSISTANT ENGINEER, ELECTRICLA SECTION, KALAMASSERY AND THE PETITIONER. EXT P11 TRUE COPY OF THE SCM SARAS WO NO.WO/5573/2017-18/25 DT.07/11/2017 ISSUED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

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EXT P12 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY BEARING WORK ORDER NO.WO/5573/2017-18/25 DT. 07/11/2017 TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

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EXT P13 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY BEARING WORK ORDER NO.WO/5573/2017-18/24 DT.08/11/2017 TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE. EXT P14 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE ASSISTANT ENGINEER, ELECTRICALS ECTION KALAMASSERY BEARING WORK ORDER NO.WO/5573/2017-18/27 DT. 08/11/2017 TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

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EXT P15 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 30/04/2018 AND ITS REPLY DATED 29/05/2018.

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EXT.P16 TRUE COPY OF THE RELEVANT PAGES OF SECTION 10.2.3 OF THE KERALA PUBLIC WORKS ACCOUNTS CODE SHOWING THE MAXIMUM INTERVALS PERMISSIBLE AT THE SEVERAL STAGES BETWEEN THE MEASUREMENT OF A WORK AND PAYMENT OF BILL FOR IT. EXT.P17 THE TRUE COPY OF THE PETTY CONTRACT WORK BILL BEARING NO.81/17-18 PREPARED BY THE 5TH RESPONDENT AND SINGED BY HIM ON 09/11/2017 FOR AN AMOUNT OF RS.1,36,102.94/EXT.P18 THE TRUE COPY OF THE PETTY CONTRACT WORK BILL BEARING NO.76/17-18 PREPARED BY THE 5TH RESPONDENT AND SIGNED BY HIM ON 09/11/2017 FOR AN AMOUNT OF RS.99,900/-. EXT.P19 THE TRUE COPY OF THE PETTY CONTRACT WORK BILL BEARING NO.83/17-18 PREPARED BY THE 5TH RESPONDENT AND SIGNED BY HIM ON 09/11/2017 FOR AN AMOUNT OF RS.99,900/-

Divya Krishnan v. Kerala State Electricity Board Ltd.

Case brief

What is this about?

What did the court decide?

Divya Krishnan v. Kerala State Electricity Board Ltd.

Case brief

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