Allowed

K.Vijayan, v. State of Kerala

Kerala HC8 Nov 2022WP(C)/3992/2022

Case brief

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What is this about?

The court allowed a writ petition filed by a PWD contractor seeking payment of Rs.49.43 lakhs for completed work. The respondent engineer delayed payment citing a surprise inspection report on different road works executed by the petitioner. The court held the inspection report was unrelated to the specific work executed and devoid of any action against the petitioner.

What did the court decide?

Respondents 2 and 3 directed to sanction and disburse the balance amount of Rs.49,43,647/- within one month of receiving a copy of the judgment.

K.Vijayan, Vs State of Kerala — Labour and Industrial Disputes | Kerala HC (2022)

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W.P.(C)No.3992 of 2022

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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 V.G.ARUN

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TUESDAY, THE 8^TH DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 WP(C) NO. 3992 OF 2022

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PETITIONER:

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K.VIJAYAN, AGED 63 YEARS PWD CONTRACTOR, VIJAYA BHAVAN, MENAMKULAM, KAZHAKUTTOM, THIRUVANANTHAPURAM.

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BY ADV AJITH KRISHNAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 033. 2 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT ROADS, PUBLIC OFFICE, THIRUVANANTHAPURAM-695 033. 3 THE SUPERINTENDING ENGINEER, PWD ROADS, SOUTH CIRCLE, THIRUVANANTHAPURAM-695 033. 4 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, THIRUVANANTHAPURAM-695 033.

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5 THE ASSISTANT EXECUTIVE ENGINEER, PWD CITY ROADS, SUB DIVISION, THIRUVANANTHAPURAM695 033.

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6 ADDL.R6. DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. [IS SUO MOTU IMPLEADED AS ADDITIONAL R6 AS PER ORDER DATED 25/2/2022 IN WP(C)3992/2022.]

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BY ADV ADVOCATE GENERAL OFFICE KERALA

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OTHER PRESENT:

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W.P.(C)No.3992 of 2022

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Spl. GP. K.V. Manoj Kumar

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.9.2022, THE COURT ON 8/11/2022 DELIVERED THE FOLLOWING:

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W.P.(C)No.3992 of 2022

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V.G.ARUN J.

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W.P.(C) No.3992 of 2022

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Dated this the 8 th day of November 2022

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JUDGMENT

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The petitioner was awarded the work “Deposit work-

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Restoration work in the balance portion from Oolampara to Sasthamangalam due to laying of premo-pipe by the Kerala Water Authority”. The petitioner executed the agreement on 13/9/2018, as per which the work was to be completed in six months. As the premo-pipeline laying works was not completed by the Kerala Water Authority in time, and also due to incessant rains, the petitioner was disabled from completing the work within the contract period. Therefore, the petitioner submitted an application seeking extension of time for completing the work. The Assistant Engineer and the Assistant Executive Engineer recommended to grant of extension of time upto 31/12/2019 without fine. Contrary to the recommendation, the

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3^rd respondent issued Ext.P1 order extending the time for

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W.P.(C)No.3992 of 2022

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completion of work upto 31/12/2019 by imposing a fine of Rs.50,000/-. The petitioner challenged Ext.P1 before this court and the writ petition was disposed of by setting aside Ext.P1 order and directing the third respondent to consider the request for extension of time for completion of the work till 31/12/2019 and pass appropriate orders, after taking into account the recommendations of the Assistant Engineer and the Assistant Executive Engineer.According to the petitioner, no order in terms of Ext.P2 judgment was passed by the second respondent. During execution of the work, the petitioner had submitted running account bills for Rs.66,00,000/-. The respondents having paid only Rs.16,56,353/- towards the bill, an amount of 49,43,647/- is due to the petitioner. In spite of repeated requests, the respondents have not taken any action to pay the balance amount. Hence, this writ petition seeking the following reliefs.

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i). Issue a writ of mandamus or writ of similar nature or order or direction commanding the respondents to disburse the balance bill amount of Rs.49,43,647/- in respect of “deposit work – restoration work in the balance portion from Oolampara to Sasthamangalam due to laying of premo pipe by Kerrala Water Authority” to the petitioner without deducting any fine amount forthwith '

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ii). Issue a writ of mandamus or such other writ or order or direction commanding the

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W.P.(C)No.3992 of 2022

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respondents to pay the interest at the rate of 18% on the amount due to the petitioner forthwith ;

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Learned Counsel for the petitioner contended that

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disbursal of the balance amount legitimately due to the petitioner is being delayed due to mere bureaucratic apathy towards contractors. Due to the delay, the petitioner was not able to pay off its debts and the bank has initiated recovery proceedings against the petitioner's properties. Referring to the counter affidavit filed on behalf of the respondents, it is submitted that an alleged inspection conducted at the site by the Vigilance Wing is of no relevance, since the inspection was with respect to the BM and BC rectification works of the Peroorkada -Sastamangalam- Edapazhanji road carried out way back in the year 2016. The work executed by the petitioner was only with respect to the restoration of the portion which had

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been dug up for laying the premo pipeline. As such, the vigilance inspection cannot be projected as a reason for further delaying the payment.

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Learned Government Pleader contended that the Vigilance Director had ordered for conducting State-wide surprise check at the work sites, based on series of complaints alleging irregularities and corruption in the award and execution

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W.P.(C)No.3992 of 2022

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of PWD works. Accordingly, the Peroorkada- SastamangalamEdapazhanji road was inspected on 24/09/2019. As part of the inspection, tar-cutting samples were collected from the road.

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The samples were thereafter subjected to examination at the Highway Research Institute. On examination, it was found that the quality of materials used was poor and the thickness of the bitumen applied was below specification. It is pointed out that Annexure R6(a) surprise inspection report submitted to the Director of Vigilance and Anti-Corruption. It is to the Secretary, Public Works Department for taking further action against the erring officials. Action was not recommended against the contractor, since the Defect Liability Period had expired on 30/11/2016, much prior to the surprise inspection.

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As rightly contended by the learned counsel for the petitioner, it is evident that the surprise check was with respect

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to the BM & BC restoration work of the Peroorkada Sastamangalam - Edapazhanji road which was done much prior to the petitioner being awarded the subject work. Although the petitioner executed the agreement on 13/9/2018, there is no dispute to the fact that he could not commence the work immediately since the Water Authority's pipeline work was in progress. The petitioner could complete the work only within

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W.P.(C)No.3992 of 2022

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the extended period of 31/12/2019 whereas the surprise check was conducted on 24/9/2019. Reading of Annexure R6(a) also indicates that the surprise check was with respect to the BM & BC rectification work of the road and had nothing to do with the restoration work conducted by the petitioner on the dug up portion of the road. The tar samples collected being also with respect to the BM & BC works, the inferior quality of the samples cannot result in the petitioner's bill not being honoured.

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The fact that the surprise check was not with respect to the work executed by the petitioner has been categorically stated by the second respondent in Ext.P7 letter. It is also stated in the letter that the Executive Engineer had recommended payment of the bill amount. In such circumstances, there is absolutely no justification on the part of the respondent in further delaying the payment due to the petitioner. The pendency of the Vigilance Director's report before the first respondent cannot also be projected as a reason, since no action is recommended against the petitioner.

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In the result, the writ petition is allowed. Respondents 2 and 3 are directed to take immediate steps to sanction and disburse the balance amount due to the petitioner under Ext.P3

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W.P.(C)No.3992 of 2022

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bill within an outer limit of one month of receipt of a copy of this judgment.

Sd/-

V.G.ARUN Judge

dpk

W.P.(C)No.3992 of 2022

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APPENDIX OF WP(C) 3992/2022

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE ORDER NO.DB.10(1)/454/2018 DATED 17.01.2020 ISSUED BY THE 3RD RESPONDENT. Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 09.06.2020 IN WPC NO.10339/2020. Exhibit P3 TRUE COPY OF THE RUNNING ACCOUNT BILL SUBMITTED BY THE PETITIONER. Exhibit P4 TRUE COPY OF THE LETTER DATED 19.02.2021 ISSUED BY THE 4TH RESPONDENT TO 2ND RESPONDENT. Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 10.01.2022 SUBMITTED TO THE 4TH RESPONDENT.

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RESPONDENT EXHIBITS

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Annexure annexure R6(a): true copy of the surprise check having sc No. 52/19/TVM

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PETITIONER EXHIBITS

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Exhibit P6 TRUE COPY OF THE LETTER DATED 19.2.2021 ISSUED BY THE 4TH RESPONDENT TO 2ND RESPONDENT Exhibit P7 TRUE COPY OF THE LETTER DATED NILL ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT

K.Vijayan, v. State of Kerala

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K.Vijayan, v. State of Kerala

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