IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 15572 of 2007(D) --------------------------------------- PETITIONER(S): ------------------------ V.S.SAJITH KUMAR, LAKSHMI NIVAS, CHENKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. MR.BABU JOSEPH KURUVATHAZHA MR.K.I.SAGEER RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE ITS SECRETARY TO GOVERNMENT, DEPT. OF PUBLIC WORKS, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, PW.D. ROADS AND BRIDGES, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, P.W.D (ADMN), THIRUVANANTHAPURAM. 4. THE DIRECTOR OF VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. 5. THE DEPUTY SUPERINTENDENT OF POLICE, & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. 6. THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, THIRUVANANTHAPURAM. 7. THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, NEYYATTINKARA. GOVERNMENT PLEADER MR.T.K.VIPINDAS FOR R.5,6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15572/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LICENCE BEARING NO.8/2000-01 OF THE PETITIONER ISSUED BY THE 6TH RESPONDENT. P2:- COPY OF THE TENDER SCHEDULE OF THE WORK AWARDED TO THE PETITIONER. P3:- COPY OF THE SELECTION NOTICE NO.D5.219(A)/2000 DT. 28.5.01 ISSUED BY THE 7TH RESPONDENT. P4:- COPY OF THE RELEVANT PORTION OF THE ENQUIRY REPORT ALONG WITH THE FORWARDING ENDORSEMENT OF THE 4TH RESPONDENT. P4(a):- COPY OF THE ORDER NO.A3(IG)166/2005 DT. 28.12.06 ISSUED BY THE 6TH RESPONDENT. P5:- COPY OF THE JUDGMENT DT. 9.2.07 IN WPC. NO.2548/07 OF THIS HONOURABLE COURT. P6:- COPY OF THE ORDER NO.A3- 373/07 DT. 8.5.07 ISSUED BY THE 6TH RESPONDENT. P7:- COPY OF THE NOTICE OF HEARING BEARING NO.A30373/07 DT. 5.3.07 ISSUED BY THE 6TH RESPONDENT. TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- W.P.(C.NO.15572 OF 2007 ---------------------------- DATED THIS THE 25TH DAY OF MARCH, 2009 JUDGMENT Petitioner-contractor executed the work scheduled in Ext.P2 tender schedule, after executing an agreement as per the terms and conditions of Ext.P2. The entire amount due to the petitioner was disbursed. In Ext.P2 schedule three items of works were specified, which reads as follows: ''1. Retarring the tar cut portion after consolidating by metalling base work using 60 mm and 36 mm metal 7:3 ratio by volume as per specification and providing 20 mm Cover base course as per I.R.C. Specification. 2. Earth work excavation in all classes of soil and depositing conveniently with all leads and lifts for forming the berm of road. 3. Sectioning using 150 mm thick and forming the surface of old berm etc.'' 2. On the basis of the complaints from the public raising irregularities in the road works conducted by the P.W.D. Roads -2- W.P.(C).No.15572/2007 Sub Division, Neyyattinkara, the Superintendent of Police, Vigilance and Anti-corruption Bureau, Southern Range, Thiruvananthapuram conducted a vigilance enquiry and submitted a report. Another enquiry was also conducted by the Vigilance and Anti-Corruption Bureau and a report was also submitted. The enquiry report reveals that during the year 2000 March to 2002 March 154 road works including tender works and quotation works were executed in Neyyattinkara Sub Division. The rectification work approved by the department and awarded to the petitioner is the above extracted items of work at an estimated cost of Rs.1,50,187/-. The petitioner, who quoted the lowest rate, was awarded the work and the agreement dated 7/8/2001 was executed. In Ext.P4 report submitted by the Superintendent of Police, it is reported that there were three items of work in the accepted schedule, item No.3 is ordinary excavation and sectioning and since ordinary excavation alone is required for this item, sectioning can be disallowed. He also -3- W.P.(C).No.15572/2007 reported that the total loss sustained in this regard is Rs.28,561.50 and recommended that the said amount should be recovered from the Contractor, since the payment of this work was made. As already stated, the work was completed in the year 2001 and the payment was also disbursed in the same year. Ext.P4 report is dated 10/10/2005. Sectioning work was also carried out by the Contractor as per Ext.P2. During the course of work the department never directed the contractor not to do the sectioning work. So long as the work was done by the petitioner as per the tender schedule and so long as the work was completed and approved by the department and payment made, a subsequent report made by the Police Officer after 3 or 4 years later stating that the sectioning work should have been avoided, since ordinary excavation alone is necessary for the purpose and therefore the costs of the said sectioning work estimated at Rs.28,561.50 shall be recovered from the contractor is grossly unjust and cannot stand. Based on Ext.P4 report, the Chief -4- W.P.(C).No.15572/2007 Engineer recommended cancellation of 'C' class registration issued to the contractors including the petitioner. Ext.P4 (a) order was passed by the Executive Engineer based on Ext.P4. I have already stated that the work done by the Contractor is as per the schedule approved by the department. Only later, the Police Officer expressed his opinion that Sectioning should have been avoided and on that basis he recommended to recover an amount of Rs.28,561.50 from the Contractor. The stand taken by the department on the basis of Ext.P4 report and the other enquiry made by the Vigilance and Anti-corruption Bureau are without basis and are liable to be quashed. Ext.P4(a) was passed cancelling the 'C' class registration, even without hearing the petitioner. There are no valid reasons to sustain Exts.P4, P4(a) and P6 orders. Ext.P6 order was passed based on Ext.P4 and P4 (a). Therefore, Ext.P6 order is also liable to be set aside. In the result, the impugned orders, Ext.P4(a) and P6, to the extent it affects the petitioner, are quashed. Petitioner is at liberty -5- W.P.(C).No.15572/2007 to submit an application for registration in that case whereupon the competent authorities shall pass appropriate orders. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv. -6- W.P.(C).No.15572/2007