IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.10.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.1462 OF 2009 and M.P.Nos.1 to 3 of 2009 A.Radha Krishnan .. Petitioner vs. 1.The Southern Railway rep. By General Manager Park Town, Chennai 3 2.The Assistant Divisional Engineer NH Quality, Quality Control Sub Division Southern Railway, Sullurupeta. 3.Senior Divisional Engineer/East/MAS Southern Railway, Chennai 3. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus call for the records of the 3rd respondent ending with proceedings No.M/W 148/AGT/East/48 dt.19.12.08 and quash the same and consequently direct the respondents to conduct retest of ballast sample No.14 representing stock No.24 & 25 and Sample No.15 representing Stock No.26 & 27 supplied under Agreement No.48/E/MAS of 1.4.08. For petitioner : Mr.N.A.Nissar Ahmed For respondents : Mr.M.Vellaisamy ORDER The writ petition is directed against the order of the third respondent dated 19.12.2008, by which the third respondent has informed the petitioner that as per extant instructions, no retesting will be conducted for the ballast once it is declared failed on the ground that the ballast sample tested at the Southern Railway Laboratory as per the agreement got failed in impact test. In the impugned order, the third respondent has requested the petitioner to https://hcservices.ecourts.gov.in/hcservices/ remove the rejected ballast failing which demurrage will have to be paid for any delay. 2. The petitioner is a working contractor in the Southern Railway and carried out the transportation of PSC sleepers, P.Way Fittings and collection and supply of machine crushed hard stone ballast. He was awarded the contract for performance of work 'MAS-GDRSEC, collection and supply of 50 mm. size stone ballast at Odur Depot for TBR, CTR(P) and TTR works under ADEN/SPE Sub Division' as per the contract agreement dated 1.4.2008. 2(a). Based on that, the petitioner has been supplying ballast to Odur Depot. In respect of sample No.14 representing stock No.24 and 25 and sample No.15 representing stock No.26 and 27, when the same were sent for testing, the second respondent, by proceedings dated 24.10.2008, informed that they failed the impact test. Therefore, the petitioner approached the Assistant Divisional Engineer, National Highways Quality Control Sub-Division, Chennai-25 to conduct impact test on the ballast samples collected from the above said stock 25, 26, 27 and 28. 2(b). According to him, the samples were found to be impact value positive. It was, in those circumstances, enclosing the said certificate, the petitioner sent a letter to the third respondent on 27.11.2008, requesting for retesting of ballast sample, but the third respondent declined retesting and directed the petitioner to remove the rejected ballast immediately. Aggrieved by the order of the third respondent, the present writ petition is filed. 3. The third respondent in the counter affidavit has stated that the petitioner had initially supplied ballast from M/s.Srinivasa Edifice Crusher Kandra, Gudur Mandal and after collection of 6500 cum. the petitioner applied for the approval of new quarry on 25.6.2008 for the supply of ballast. There was no progress shown by the petitioner to the satisfaction of the respondents and in order to speed up the progress of work, permission was granted by the third respondent by letter dated 23.7.2008 for supply of ballast from the new quarry. 3(a). It is stated that sample Nos.14,15 in stock 24, 25, 26 and 27 were sent for test to the Headquarters Laboratory of Southern Railway at Chennai and the impact value was found to be 21% and 22% of the samples respectively. As per the agreement, the maximum impact value would be allowable in aggregate to the maximum extent of 20%. Therefore, the petitioner was informed on 24.10.2008 about the failure of sample. 3(b). The petitioner instead of approaching the respondents, had sent the sample for testing by the Assistant Divisional Engineer, https://hcservices.ecourts.gov.in/hcservices/ National Highways Quality Control Sub-Division, Chennai unilaterally and hence, the certificate issued by the National Highways Quality Control Sub-Division is not binding on the respondents. There is no provision in the agreement for testing the sample outside the Railway Laboratory. 3(c). As per the terms of contract, viz., clause 13.5.3, the contractor is liable to pay rent and other damages for the period spent beyond the specific time and for the railway space occupied by the petitioner. The respondent has acted in terms of the contract clause 13.5 providing for such quality control of ballast. 4. Relying upon C.E. Circular No.1, dated 20.4.2005, wherein one of the clauses viz., clause No.2(iv) enables for retesting, it is the contention of the learned counsel for the petitioner that in the present case, inasmuch as the petitioner has obtained testing result from the National Highways Department which found the sample positive, there is no impediment on the part of the respondents in retesting and by such retesting the respondents are not going to lose anything. 5. On the other hand, it is the contention of Mr.Vellaisamy, learned counsel appearing for the respondents that when the Circular relied upon by the petitioner enables the respondents to have retesting on certain contingencies, it does not enable the contractor as a matter of right to claim for retesting. 6. As submitted by the learned counsel for the respondents, as per the specifications for track ballast vide CE's letter dated 26.5.2004, the ballast sample and its impact value should be up to the maximum 20%. That is found in clause 2.2.1 which is as follows: "2.2.1. Ballast sample should satisfy the following physical properties in accordance with IS 2386 Pt.IV 1963 when tested as per the procedure given in Annexure 1 & 2. BG.MG&NG (Planned/Sanctioned for conversion) Aggregate abrasion value ... 30% max Aggregate impact value ... 20% max. In exceptional cases, on technical and/or economic grounds relaxable up to 35% & 25% respectively by CTE in open line an CAO/CN for construction projects. The relaxation in Abrasion and Impact values shall be given prior to invitation of tender and should be incorporated in the tender document". https://hcservices.ecourts.gov.in/hcservices/ 7. As per clauses 3.1 and 3.2, which relate to the conditions for submission of tenders, the tenderer should give an undertaking that ballast supplied will conform to the specifications for track ballast as specified by the Railway. The clauses are as follows: "3.1. Each tenderer at the time of tendering shall submit the following: Each tenderer at the time of tendering shall submit the test reports of impact value, abrasion value, water absorption value from approved laboratory. The soil mechanics laboratory, Southern Railway, Chennai-3. The ballast testing certificates in original are to be submitted by the tenderer at the time of submission of tender duly testing sample of ballast at soil mechanics laboratory, Southern Railway, Chennai-3 duly paying Rs.1300/- as ballast testing charges per sample in any cash office of Southern Railway and original receipt of such payment is to be attached along with the requisition for testing of ballast. 3.2. The tenderer shall also furnish an undertaking as incorporated in the tender documents that the ballast supply at all the times will conform to specifications for track ballast as specified by Railway." 8. Clause 5 deals with 'sampling and testing', which makes it clear that the test shall be gone through Soil Mechanic Laboratory, Hd.Qrs., Chennai. The relevant clauses are as under: "5.1. A minimum of 3 samples of ballast for sieve analysis shall be taken for measurement done on any particular date even if the numbers of stacks to be measured are less than three. 5.2. The test viz. Determination of abrasion value, impact value and water absorption value as mentioned in para 5.3.1. and 5.3.2. of specification of track ballast should be got done through Soil Mechanic Laboratory, Hd. Qrs., Chennai. 5.3. In order to ensure supply of uniform quality of ballast the following norms shall be followed in respect of sampling, testing and acceptance. 5.3.1. On supply of the first 100 cum. the tests for size gradation, Abrasion Value, Impact value and Water Absorption shall be carried out by Rly. Further supply https://hcservices.ecourts.gov.in/hcservices/ shall be accepted only after this ballast satisfies the specifications for these tests. Rly. reserves the right to terminate the contract as per GCC at this stage itself in case the ballast supply fails to conform with any of these specifications". Therefore, the contents of the agreement makes it clear that the testing has to be done only in the testing laboratory of Railways. 9. The mere fact that the petitioner has tested the ballast with the Assistant Divisional Engineer, National Highways Quality Control Sub-Division, Chennai, which is not forming part of the terms of agreement, the same is not binding upon the respondents. The clauses in the C.E. Circular No.1/2005 (17) dated 20.4.2005 speak about the procedure for receipt, preparation and testing of ballast samples in Soil Mechanics Laboratory at Chennai. Clause 2(iv) states as follows: "2. On the day of testing: (i) to (iii) xxxx (iv) IT is preferable to do impact test first. Stones to the extent required for impact testing should be broken into 10 to 12.5 mm size metal as per specifications. About 800 gms of the broken metal should be packed in a separate polythene cover as test storage again (to permit to repeat tests later if required, but repeat tests should not be done normally and should be done with the approval of CGE or Dy.CE/QC). This packed broken metal should also be kept inside the polythene pack containing the full size stones already packed under item (iii) above and the pack should be sealed and signed in the presence of the Section staff. The 'lab number tac' should be kept inside. This packed material (both full size and broken metal) should be preserved for 45 days from the day of declaration of results." 10. A reading of the said clause makes it clear that the repeated test shall not be done normally and in extraordinary circumstances, the same can be done only with the approval of C.G.E. Or Deputy C.E./QC. As submitted by the learned counsel for the respondents, it is for the respondent Department to conduct retesting, that too, in extraordinary circumstances that warrant the respondents to conduct retesting and in such contingencies, the respondents can repeat the test with the approval of the higher authorities and that is not a right given to the contractor. Therefore, there is absolutely no merit in the contention of the learned counsel for the petitioner and the writ petition is liable to be dismissed. Accordingly, it is dismissed. No costs. Connected miscellaneous petitions are closed. 1.10.2009 https://hcservices.ecourts.gov.in/hcservices/ ORDER : The Writ Petitioner to 1462/09 having been posted on Tuesday the 20th day of October 2009, for being mentioned subsequent to the order of this court dated 1.10.2009 and made herein and in the presence of Mr.N.A.NASSAR AHMED, Advocate for the petitioner and of Mr.M.Vellaichamy standing counsel for Railway the court made the follwoing order. This matter has been taken up today under the caption "Being Mentioned". This Court, by an order dated 01.10.2009 dismissed the Writ petition. Now, it has been brough to the notice of this court that there is an arbitration clause and the petitioner may be directed to proceed in accordance with the arbitration clause. 2. If there is any such arbitration clause and the petitioner is entitled to any relief, it is open to him to proceed in accordance with law. 20.10.2009 Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1.The General Manager The Southern Railway Park Town, Chennai 3 2.The Assistant Divisional Engineer NH Quality, Quality Control Sub Division Southern Railway, Sullurupeta. 3.Senior Divisional Engineer/East/MAS Southern Railway, Chennai 3. + 1 cc to Mr.W.A.Nissar Ahmed, Advocate SR 55013 W.P.NO.1462 OF 2009 JRG (CO) RH (24.10.09) https://hcservices.ecourts.gov.in/hcservices/