Allowed

Jabir Usman C.K v. State of Kerala

Kerala HC27 Jan 2021WP(C)/1388/2021

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of a request to adjust a paid bill towards a performance guarantee for a new work contract. The court directed the respondents to manually process the adjustment without insisting on an online indemnity certificate, noting software modifications were pending.

What did the court decide?

Directing the Superintending Engineer to manually adjust the admissible amount towards performance guarantee within three weeks without insisting on an EMLI indemnity certificate.

Jabir Usman C.K Vs State of Kerala — Labour and Industrial Disputes | 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 SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

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WP(C).No.1388 OF 2021(W)

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PETITIONER:

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JABIR USMAN C.K CHALATHIL KALLADITHODI HOUSE, MELMURI P.O,MALAPPURAM DISTRICT.

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BY ADVS. SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.M.J.BENNY SRI.DEEPAK MOHAN SMT. CHITRA N. DAS SHRI.RISHAB S.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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3 THE SUPERINTENDING ENGINEER, PWD ROADS NORTH CIRCLE, PWD COMPLEX, MANANCHIRA, KOZHIKODE-673 001

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4 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, MANJERI, MALAPPURAM DISTRICT-676 121

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ADV.SMT.VINITHA.B, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.1388 OF 2021(W)

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JUDGMENT

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Dated this the 27^th day of January 2021

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The petitioner is awarded the work of “Urgent

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Surface Rectification and BC Overlay in between km 11/380 to 16/090 in Parappanagadi-Areekode road (SH 65) in Vengara LAC” as per Ext.P1 selection notice dated 21.12.2020. The petitioner was asked to furnish performance guarantee of Rs.8,63,700/-, out of which 50% should be by way of treasury savings deposit. The petitioner submits that the bill covered by Ext.P2 for a sum of Rs.21,94,207/- is due to the petitioner.

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As per Ext.P5 G.O.(Rt)No. 3834/2020/Fin dated 23.06.2020 Government has ordered that the amount

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under audited and passed bills of contractors would be accepted as Performance Guarantee/Additional

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Performance Guarantee for new contracts. The petitioner had therefore submitted Ext.P3 application,

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requesting the Superintending Engineer to adjust the the amount towards performance guarantee from the aforesaid bill covered by Ext.P2. The Superintending

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WP(C).No.1388 OF 2021(W)

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Engineer/3rd respondent had informed that the

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petitioner has to submit Indemnity Certificate issued online in EMLI application and to execute the

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agreement after furnishing the necessary documents. This Writ petition is filed at this stage, pointing out that EMLI software has not so far been modified in tune with Ext.P5 order.

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Heard the learned Counsel for the petitioner as well as the learned Government Pleader. Learned Government Pleader also submitted that no modification is effected to EMLI software so far.

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Ext.P5 Government order has been issued as

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early as on 23.06.2020. As per sub clause (v) of

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Clause 3 of Ext.P5 order, work bill amount will be

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accepted as Guarantee for new works being awarded,

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only on the basis of indemnity certificate issued

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online in EMLI application. Clause 4 provides for

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effecting necessary modifications in EMLI to

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facilitate the new system. The facility for

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adjustment of the bills have been ordered by

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Government for the benefit of the contractors on their

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request. When such a facility is ordered, Government

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WP(C).No.1388 OF 2021(W)

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has also to see that suitable modifications are

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effected in the software so as to enable the contractors to enjoy the benefit of the order. The petitioner cannot therefore be denied the benefit of the order. This Court has in several cases directed the respondents to carry out the adjustment manually.

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Therefore there shall be a direction to the 3^rd respondent to re-consider the request of the

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petitioner and to adjust the admissible amount, if any, under the pending bill covered by Ext.P2 towards

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performance guarantee in accordance with Ext.P5

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Government Order manually, i.e., without insisting for indemnity certificate through EMLI. This shall be done within a period of 'three weeks' from the date of receipt of a copy of the judgment. Petitioner shall also be granted time for execution of agreement by a further period of 'two weeks'.

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The Writ Petition is accordingly disposed of.

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WP(C).No.1388 OF 2021(W)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO. DC07/2020/1514 DATED 21.12.2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE BILL DATED 17.11.2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 01.01.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 11.01.2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER G.O(RT) NO. 3834/2020/FIN. DATED 23.06.2020. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 09.11.2020 OF THIS HON'BLE COURT IN W.P.C NO. 22048/2020.

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RESPONDENTS EXIBITS : NIL

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//TRUE COPY//

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PA TO JUDGE

Jabir Usman C.K v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jabir Usman C.K v. State of Kerala

Case brief

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What did the court decide?

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