IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WP(C).No. 24882 of 2006(K) --------------------------------------- PETITIONER: ------------------- N.VIJAYANANDAN, S/O.P.S.NARAYANAN, ABHISHEK COTTAGE, MULIYAR P.O., KASARAGOD DISTRICT, 671 542. BY ADVS. MR.K.SHRIHARI RAO, SMT.N.SHOBHA, MR.B.R.MURALEEDHARAN MR.P.N.ANOOP. RESPONDENTS: ------------------------ 1. THE SOUTHERN RAILWAY, REP. BY ITS GENERAL MANAGER, HEADQUARTERS, SOUTHERN RAILWAY, CHENNAI. 2. THE DIVISIONAL RAILWAY MANAGER, WORKS, DIVISIONAL OFFICE, SOUTHERN RAILWAY, PALGHAT. R1 & R2 BY MR.SUBAL J.PAUL, SC, RAILWAYS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24882/2006-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AGREEMENT DTD. 17/11/05 BETWEEN THE PETITIONER AND R.2. EXT.P.2: COPY OF THE LETTER DTD. 27/03/06 OF THE PETITIONER TO THE DIVISIONAL ENGINEER, PALGHAT. EXT.P.3: COPY OF THE LETTER DTD. 19/04/2006 OF THE ASSISTANT DIVISIONAL ENGINEER TO THE PETITIONER. EXT.P.4: COPY OF THE LETTER DTD. 24/04/2006 OF THE PETITIONER TO THE ASSISTANT DIVISIONAL ENGINEER, MANGALORE. EXT.P.5: COPY OF THE LETTER DTD. 01/06/06 OF THE R.2. TO THE PETITIONER. EXT.P.6: COPY OF THE LETTER DTD. 10/06/06 OF THE PETITIONER TO THE R.2. EXT.P.7: COPY OF THE LETTER DTD. 20/06/06 OF THE R.2. TO THE PETITIONER. EXT.P.7.A: COPY OF THE POSTAL COVER DTD. 04/07/2006. EXT.P.8: COPY OF THE LETTER DTD. 30/06/06 OF THE R.2. TO THE PETITIONER. EXT.P.8.A: COPY OF THE POSTAL COVER DTD. 06/07/06. EXT.P.9: COPY OF THE LETTER DTD. 06/07/06 OF THE R.2. TO OTHER SOUTHERN RAILWAY AUTHORITIES. EXT.P.10: COPY OF THE LETTER DTD. 30/08/06 OF THE PETITIONER TO THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.24882 OF 2006 (K) -------------------------------------------------- Dated this the 20th day of January, 2010 J U D G M E N T Petitioner is a Railway contractor. Ext.P1 is an agreement between the petitioner and the railways, executed on 17.11.2005. By this agreement, petitioner was required to execute certain works, the nature of which is described in the agreement itself. The value of the contract was Rs.20 lakhs and the period specified was from 1.7.2005 to 30.6.2006. 2. Petitioner submits that he started the work but however in the absence of site Engineer, there was none to give him instructions and therefore he could not carry on the work. As a result of this, petitioner issued Ext.P2 letter dated 27.3.2006 informing the respondents about the difficulty in continuing with the work. Ext.P3 is the reply given and parties exchanged various communications in this behalf. 3. It would appear that subsequently, Ext.P5 notice was issued by the Railways on 1.6.2006, informing the petitioner that, the progress achieved by him was unsatisfactory and therefore the Railway will take action under Clause 62 of the General WPC.No. 24882/06 :2 : Conditions of Contract. On receipt of Ext.P5, petitioner submitted Ext.P6 reply dated 10.6.2006 reiterating his plea that it was not on account of his own fault but on account of non availability of site Engineer that he could not continue the work. 4. Then he was issued Ext.P7 notice dated 20.6.2006, giving him 48 hours for satisfactory completion of work. It is the specific case of the petitioner that Ext.P7 notice was de spatched in the office of the respondents only on 4.7.2006 and that he received it only on 8.7.2006. This claim is made on the basis of the postal cover produced as Ext.P7(a) enclosing Ext.P7 notice. This was followed by Ext.P8 final termination order dated 30.6.2006. The stamp affixed by the department on Ext.P8(a) postal cover shows that this notice was despatched on 6.7.2006. Thereafter Ext.P9 notice was issued by the 2nd respondent to the Railway Divisions, informing them about Exts.P7 and P8 and requesting them not to release payments to the petitioner. He submitted Ext.P10 representation. There was no response on it and therefore the petitioner has approached this court by filing this writ petition. 5. The railway has filed a counter affidavit justifying the action on the ground that it was on account of default committed WPC.No. 24882/06 :3 : by the petitioner that they had to initiate action for rescinding contract. 6. However, railway has not answered the allegation of the petitioner that Ext.P7 dated 20.6.2006 was dispatched on 4.7.2006 and that Ext.P8 rescinding the agreement was despatched only on 6.7.2006. If a contractor committed default in executing the contract, it may be open to the awarder to take action in terms of the provisions in the agreement for rescinding the contract, but such an order has to be passed by the awarder during the currency of the contract and not after the expiry of the period of the contract. If such action is permissible, by taking recourse to such a method, it is always open to the awarder to issue orders of this nature and avoid payments to the contractors who have executed the work awarded. 7. In this case though Ext.P7 notice is dated 20.6.2006, the postal seal on Ext.P7(a) shows that it was despatched on 4.7.2006. Similar is the case of Ext.P8 rescinding the agreement, which is dated 30.6.2006, but was dispatched only on 6.7.2006. An uncommunicated order, is of no consequences and can be effective only when it is served on the party concerned or at least WPC.No. 24882/06 :4 : from the moment it is despatched from the author of the letter. In this case both Exts.P7 and P8 were despatched by the author and received by the petitioner only after the period of agreement had expired. In my view this was impermissible and for that reason Ext.P7, P8 and consequently Ext.P9 are illegal and are to be quashed. I do so. Respondents are directed to release the payments, if any, due to the petitioner for the work that he has done under Ext.P1, within 6 weeks from the date of receipt of a copy of the judgment. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/