IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 2118 of 2010(L) -------------------------------------- PETITIONER(S): -------------------------- THE KOLLAM LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD.N.Q.1004, STADIUM COMPLEX, KOLLAM-691 001, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FISHERIES PORTS DEPARTMENT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, HARBOUR ENGINEERING, SOUTHERN ZONE KAMALESWARAM, MANAKKAD P.O., THIRUVANANTHAPURAM. 4. THE CHIEF TECHNICAL EXAMINER AND EX-OFFICIO, ADDITIONAL SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.2118/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COMMUNICATION DATED 27/9/1995 FROM THE EXECUTIVE ENGINEER TO THE SUPERINTENDING ENGINEER. P2 COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CHIEF MINISTER DATED 28/6/1996. P3 COPY OF THE COMMUNICATION DATED 12/7/1996 ISSUED BY THE EXECUTIVE ENGINEER TO THE PETITIONER. P4 COPY OF THE COMMUNICATION FROM THE ASSISTANT ENGINEER DATED 12/2/1997 ADDRESSED TO THE ASSISTANT EXECUTIVE ENGINEER. P5 COPY OF THE REPORT SUBMITTED BY THE EXECUTIVE ENGINEER. P6 COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE FISHERIES MINISTER DATED 8/8/1996. P7 COPY OF THE RELEVANT EXTRACT FROM THE REPORT OF THE CHIEF TECHNICAL EXAMINER DATED 26/11/1996. P8 COPY OF THE REPRESENTATION SUBMITTED BEFORE THE GOVERNMENT DATED 9/7/2007. P9 COPY OF THE REPRESENTATION BEFORE THE CHIEF TECHNICAL EXAMINER DATED 18/9/2007. P10 COPY OF THE JUDGEMENT DATED 7/1/2008 IN WPC.NO.31607 OF 2007. P11 COPY OF THE REPORT OF THE CHIEF TECHNICAL EXAMINER DATED 19/2/2008. P12 COPY OF THE REPORT DATED 14/5/2008 SUBMITTED BY THE SUPERINTENDING ENGINEER TO THE CHIEF ENGINEER. P12(A) COPY OF THE REPORT NO.10952/D1/07/CE DATED 26/5/2008 FROM THE CHIEF ENGINEER TO THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, FISHERIES AND PORTS(B) DEPARTMENT. P13 COPY OF THE ORDER DATED 19/10/2009 ISSUED BY THE 1ST RESPONDENT GOVERNMENT. P14 COPY OF THE ADDITIONAL AGREEMENT DATED 23/11/1995 EXECUTED BETWEEN THE PETITIONER AND SUPERINTENDING ENGINEER. P15 COPY OF THE EXPLANATION ON 4/7/1996. P16 COPY OF THE ORDER OF TRANSFER DATED 4/7/1996. 2/- -2- WP(C)NO.2118/2010 P17 COPY OF THE CONVEYANCE STATEMENT OF THE ESTIMATE SIGNED BY THE EXECUTIVE OFFICER. P18 COPY OF THE COMMUNICATION DATED 29/9/1995 FROM THE SUPERINTENDING ENGINEER TO THE CHIEF ENGINEER ALONG WITH THE ESTIMATE REPORT. P19 COPY OF THE COMMUNICATION DATED 21/8/1996 FROM THE ASSISTANT EXECUTIVE ENGINEER TO THE SUPERINTENDING ENGINEER. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE REGISTERED LETTER NO.A2/434/2010/EE DATED 12/04/2010. R1(B) COPY OF THE DETAILS OF FINAL BILL IN LETTER NO.A2-434/2010/EXECUTIVE ENGINEER DATED 05/04/2010 FROM THE EXECUTIVE ENGINEER, HARBOUR ENGINEERING, THIRUVANANTHAPURAM DIVISION TO THE SUPERINTENDING ENGINEER. R1(C) COPY OF THE LETTER NO.D1-655/94-A/EE DATED 12/07/1996 ISSUED TO THE PETITIONER. R1(D) COPY OF THE LETTER NO.D1-655/94/EE DATED 05/10/2005 ISSUED TO THE PETITIONER. R1(E) COPY OF THE LETTER NO.D1-655/94/EE.2. DATED 14/12/2009 ISSUED TO THE PETITIONER. R1(F) COPY OF THE G.O.(RT)NO.652/2009/F&PD DATED 19/10/2009. /TRUE COPY/ P.S.TO.JUDGE sts C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 2118 of 2010 L --------------------------------- Dated this the 24th day of November, 2011 JUDGMENT The petitioner is a Labour Contract Co-operative society who had undertaken a work for Fisheries Department of the State Government. There arose some dispute between the petitioner society and the executing authority with respect to payment of part bills of the work. The Executive Engineer had sanctioned three part bills, admitting quantity of earth work escavation and deposit of cut earth. It is evident that the work of earth escavation had exceeded the estimated quantity, which eventually led to removal of cut earth to far away distant places. It is also evident that, with respect to conveyance of the cut earth a supplemental agreement was executed fixing cost at the rate of Rs.58.86 per M3. According to the respondents the rate fixed as above was on the basis of a wrong estimation done by the concerned officials. The Executive Engineer later initiated steps for recovery of the excess payment made in this regard. WPC.2118/2010 2 On the basis of a petition submitted by the contractor society, the Government ordered an enquiry through the Chief Technical Examiner. In the enquiry report it was revealed that the conveyance of earth was done with the help of machinery and not through headload. Therefore it is found that the Government have to frame 'observed data' based on application of machineries. Meanwhile the Public Account Committee (PAC) of the State Legislature also recommended for taking action to fix up responsibility on the officers concerned, for their laches, after conducting an independent enquiry. Based on the recommendation of the PAC Government again ordered the Chief Technical Examiner to conduct an enquiry and to submit detailed report. The Chief Technical Examiner submitted a further enquiry report in which it is mentioned that there was failure on the part of the departmental officers in quantifying the exact earth work required. It was found that, if a realistic estimate was prepared there would have been favourable reflections in the percentage quoted for the work. The report concluded that the Engineers concerned have clearly failed in sanctioning reasonable original WPC.2118/2010 3 estimate based on actual requirements at the site. This had resulted in an enormous increase in the quantity of earth work and led to fixation of rate for extra item wide supplemental agreement. It is also stated that the rate for extra work has been inflated due to the provision available for 150 meter headload conveyance, which was not required and executed at the site. In the recommendations of the Chief Technical Examiner it is mentioned that the responsibility should be fixed for the lapses on the part of the officers. The report recommended that immediate action should be taken to recover the excess amount paid on account of the faulty data and rates provided for the extra items covered under the supplemental agreement, from the contractor. 2. Meanwhile the petitioner society filed writ petition before this court complaining about withholding of the part bills. By Ext.P10 judgment this court directed the Chief Technical Examiner to consider the claim of the petitioner and to forward it to the Government along with recommendations within a time frame stipulated. The Government was directed to finalise the WPC.2118/2010 4 claim on receipt of the recommendations, within a time frame. The Government after examining the entire aspects found that there was irresponsible actions on the part of the Executive Engineer. In effect payment of 3 part bills were withheld and steps were taken to recover the excess payments. Considering report of the Chief Technical Examiner the Government found that, the provision for 150 meters headload conveyance was included in the agreement executed, without actual requirement. Since the headload conveyance was not done by the petitioner, their claim for payment in that respect is unjust and cannot be approved by the department, is the stand taken. Based on the report, Government found that in actual execution of the work no headload was not employed and payment on that count cannot be justified. The Executive Engineer had disallowed the claim on the above basis. But by that time, due to an oversight, he had passed 3 part bills . Therefore the steps were taken for recovery of the excess payment effected, on realisation of the mistake. It is stated that as per condition No. 8 of the contract the Executive Engineer is the competent to recover the WPC.2118/2010 5 amount before passing final bill. According to the Government, the petitioner cannot legitimately make claim for any work which was not actually executed. According to the Government, the claim made for alleged transport of earth by headload for 150 meters is not true and correct, because the transport was effected by using lorries. Hence the claim of the petitioner society was rejected. The Government had further directed the Chief Engineer to fix responsibility on the petitioner for their lapses and loss sustained. 3. Contention of the petitioner is that the alleged irregularity found out through reports of the Chief Technical Examiner, is only with respect to the preparation of estimate, for which the petitioner is not responsible. It is contended that the petitioner is entitled to get payment of amounts settled on the basis of the terms of the agreement. It is not based on inputs in preparation of the estimate that the petitioner had entered into the contract. But the contract was signed plainly on the terms and conditions of the agreement executed. Even if there is any lapses on the part of the officials concerned in preparing the WPC.2118/2010 6 estimate, the petitioner cannot be denied of payment on the actual quantity of work executed in accordance with the agreement. Sri. M.Sasindran, learned counsel for the petitioner, further pointed out that even the findings of the Technical Examiner is only to the effect that, the petitioner instead of transporting the cut earth by headload had used machineries for the conveyance. Therefore the technical examiner had only directed the officers concerned to evolve an observed data of such work done by using machineries and to work out calculations accordingly. On the terms of the above contentions it is argued that there is no proper consideration of the matter in Ext.P13 and the denial of the claim of the petitioner society was made on the basis of extraneous considerations . 4. Before entering into the merits of the rival contentions raised in the pleadings and arguments, the question arises as to whether the issue can be adjudicated in this writ petition. It is based on the rights and obligations arising out of a contract entered between the petitioner and the respondents, the issue need be decided. For a proper adjudication of the issue, WPC.2118/2010 7 consideration of various factual aspects based on relevant data and materials is required. The dispute can better be resolved on evaluating evidence on various factual aspects, both recordical and otherwise. I am of the view that such an exercise is not possible to be undertaken by this court, sitting in the writ jurisdiction conferred under Article 226. Inspite of vehement contentions raised, I do not find any patent illegality or arbitrariness on the part of the 1st respondent in dealing with the matter and in arriving at a decision as contained in Ext.P13. Question remains as to whether the decision on the factual aspects is correct or not. But such a decision can be arrived only on evaluation of various factual aspects, most of which are in dispute. It is settled legal proposition that the writ jurisdiction cannot be exercised in the matter of dispute arising out of contractual obligations. The remedy left open to the petitioner lies elsewhere. 5. However, learned counsel for the petitioner had pointed out that Ext.P13 impugned decision was taken solely considering the report about the alleged mistake committed by WPC.2118/2010 8 the executing officers while preparing the estimate and while executing the supplemental agreement. But the 1st respondent has not considered the aspect of entitlement of the petitioner to get the payment on the basis of the terms of the contract. According to the petitioner, even assuming that there was no conveyance of cut earth by headload, the recommendations are only to the effect that, the petitioner need be paid for such conveyance effected through machinery, by evolving an observed data. The said aspect was not considered while rejecting the claim under Ext.P13, is the contention. On the above premise the petitioner seeks for a direction to the 1st respondent to reconsider Ext.P13. 6. I am of the view that it is left open to the petitioner to bring to the notice of the 1st respondent about those aspects and to seek a review of the decision. If any such approach is made by the petitioner it is for the 1st respondent to consider the same. Under the above mentioned circumstances while disposing the writ petition I am inclined to direct the 1st respondent to consider and pass appropriate orders on review WPC.2118/2010 9 petition if any filed by the petitioner. Learned counsel for the petitioner assured that the petitioner will approach the 1st respondent with a review petition, within a period of two weeks from the date of receipt of a copy of this judgment. Needless to say that if any such petition is received the same shall be considered by the 1st respondent, after affording an opportunity of personal hearing to the petitioner and a decision thereon shall be taken at the earliest possible at any rate within a period of two months from the date of receipt of such petition. It is made clear that if the petitioner is aggrieved by any such decision, they will be at liberty to seek appropriate remedy before appropriate forum in accordance with the observations contained hereinabove. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM,JUDGE pmn/ WPC.2118/2010 10 WPC.2118/2010 11