Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 992 (PAT)

Bishwanath Prasad v. State Of Bihar

2006-11-03

NAVANITI PRASAD SINGH

body2006
Judgment 1. Counter affidavit, supplementary counter affidavit and an affidavit thereafter by the State with regard to the steps taken against the officials have been filed. Rejoinder has been filed by the petitioner. With consent of parties, the present application has been heard for the purposes of final disposal at the stage of admission its-elf. 2. Petitioner had filed this writ application for a direction to the respondents to make available funds for payment of his long outstanding dues in respect of work done by him as a contractor in relation to repair and maintenance of road and construction of culvert. It is not in dispute that pursuant to an agreement duly entered into between the petitioner and the State of Bihar, he was to construct a culvert (small bridge) on the public road, While doing that work, it became necessary to construct a diversion to allow traffic flow while work was being done on the said culvert. This was not specifically provided in the agreement and, as such, it was extra work which had to be taken up to facilitate the main work. The petitioner having completed the work demanded payment. He submitted his bill in this regard which was approved for payment by officials right upto the Superintending Engineer and repeatedly funds were demanded for discharge of the said liability. Funds not forthcoming for payment to the petitioner, the petitioner filed the present writ application in August, 2004. It seems once the writ application was filed, the matter was referred to a Committee constituted by the State Government referred to as the Liability Committee. The Liability Committee examined the matter during the pendency of the writ application. It is not in dispute that the Liability Committee neither noticed the petitioner nor disclosed the informations gathered by it to the petitioner nor gave petitioner a chance to explain any fact and it came to an ex parte view that the amount was not payable. The order of the Liability Committee has been appended to the counter affidavit filed by the State. A reference to the said order of the Liability Committee would show first that the Liability Committee has nowhere disputed the factum of work having been done by the petitioner. Secondly, it would disclose that the Liability Committee found fault with the officers of the Department in not scrupulously following departmental circulars. A reference to the said order of the Liability Committee would show first that the Liability Committee has nowhere disputed the factum of work having been done by the petitioner. Secondly, it would disclose that the Liability Committee found fault with the officers of the Department in not scrupulously following departmental circulars. Thirdly, it referred to a letter No. 610 dated 15.3.2001 (wrongly written as 28.3.2001 in the report) as being a letter by which allegedly the Superintending Engineer had directed that the work be done departmentally. In my view, the Liability Committee apparently proceeded with a preconceived notion that some excuse had to be given for denying payment for work having been done. The excuses given are not germane to the issue, Firstly, if there be no dispute as to work having been done as is eviden from various contemporaneous documents as well as the report of the Liability Committee then in law, there cannot be an escape from payment. The law in this regard is well settled that no service rendered is gratuitous. If work has been done then payment has to be made. The contractor has to be compensated for he acted bona fide on orders of Government officials. Secondly, the work that was done was not for some private work for any individual official. The work was for repair/maintenance of a public road. It did not enure to the benefit for any individual officer. In this situation, payment to the contractor cannot be denied. Then if the officials failed to perform their part of the duty, the petitioner cannot be penalised. I may mention that noticing this dichotomy that for fault of officials, no punishment was being given to them rather for no fault of the contractor, the contractor was being punished. This Court earlier ordered the department to show whether they proposed any action against its officials. Today, this Court is informed that action is proposed against some of the officials. Some have retired against whom legal opinion is being sought whether any action has been taken. In my view, this is not sufficient. If failure of officials to comply with governmental directives is the cause for depriving the contractor of his rightful payment then action has to be taken against both. Otherwise the actions of the respondents would smack of gross discrimination and arbitrariness falling with Article 14 of the Constitution. 3. In my view, this is not sufficient. If failure of officials to comply with governmental directives is the cause for depriving the contractor of his rightful payment then action has to be taken against both. Otherwise the actions of the respondents would smack of gross discrimination and arbitrariness falling with Article 14 of the Constitution. 3. Lastly, a reference may be made to letter No. 610 dated 15.3.2005. This letter has been referred to as one of the main grounds by the Liability Committee to deny payment. This letter is written by the Superintending Engineer and in view of Liability Committee, they think that this letter states that the work had to be done departmentally and, as such, no payment was to be made to the petitioner. To say the least, it shows that the Liability Committee has mortgaged its mind to non-entities. The letter is already annexed as Annexure-3 to the writ application. It does not speak anything like that. On the contrary, the letter specifically admits the liability towards the petitioner. This clearly shows that the Liability Committee proceeded with a preconceived notion to say anything to deprive the petitioner of his legitimate dues. In this connection, I may make a reference to the judgment of Chief Justice Chagla (as he then was) since reported in the case of All India Groundnut Syndicate Limited vs. Commissioner of Income Tax, AIR 1954 Bombay 232 wherein it was held: "But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S. 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no personwe take it that the Income-tax Department is included in that definitioncan put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right, is lost because of that default". 4. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right, is lost because of that default". 4. In fairness to Shri Jha, learned Junior Counsel appearing on behalf of the State, he has relied on a decision since reported in the case of Rita Mishra and Others vs. Director, Primary Education, Bihar and Others, 1987 PLJR 1090 and in particular, para-22 thereof for the proposition that the State is not bound for the illegal acts committed by its officials. In this case, the problem at issue was of illegal appointments. The Court held that as the appointments were void ab initio made by a person unauthorised, made by a procedure not sanctioned by law, the person claiming to be appointed had no legal right to enforce. The position in the present case is totally different. In the present case, the authorities who had entrusted the work were competent to do so. The work was in fact done. What is being sought by the petitioner-contractor is a compensation which in law he is required to be paid for work having been done. As noted above I have clearly stated that the work was of public nature. It was not a work for an individual for his benefit. It does not lie in the mouth of State to say that payment cannot be made because work has wrongly been taken. In a democratic society, the State is a Welfare State and cannot take legal and technical pleas to defeat the legitimate claims of citizens. This stand of State is highly deplorable and is anti-democratic. 5. I have no option in the aforesaid facts and circumstances but to quash the order of the Liability Committee and order that payment has to be made to the petitioner alongwith interest at the rate of 6% from the date when payment was due. The Department would be entitled to realise the interest from any erring officers responsible but it will not detain payment being made to the petitioner. 6. It is expected that the payment would be made within one month from the time petitioner represents to respondent No. 3 alongwith a copy of this order. 7. In the result, this writ application is allowed.