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2008 DIGILAW 232 (PAT)

Anil Kumar Pandey v. State Of Bihar

2008-02-04

NAVANITI PRASAD SINGH

body2008
Judgment 1. The petitioner was asked to undertake emergent earth filling work as a part of Flood Protection Programme. There were other similarly situated persons who were contracted to do the said work of constructing embankments. The work was done and payments demanded. As usual, the problem starts then. The payment not forthcoming, the poor contractors approached this Court. This Court disposed of CWJC No. 889 of 2004 by order dated 22.3.2005 directing the respondents to examine the claim of the petitioners and take steps for making payment of admitted dues. In case payments were denied, the petitioners were to be communicated the same giving reasons in support thereof. By the impugned order (Annexure-7) dated 12.9.2005, the petitioners have been communicated the order of the Chief Engineer, Water Resources Department, Muzaffarpur. The petitioner has been held entitled to only Rs 2,78,450/- as against the claim of Rs. 7,01,429.00. State has filed counter affidavit and submitted that on verification made the claims of petitioner were not rejected as a whole but some payment was found due and tendered to the petitioner. Enquiry did not find him entitled to any further payment. It is, as such, submitted that the balance amount being an amount in dispute cannot be made subject matter of a writ application before this Court. 2. Heard the parties and with their consent, the writ application is being disposed of at the stage of admission itself. 3. It is not in dispute that in rainy season of 2002, the petitioner volunteered to do the earth filling work for flood protection of embankments which was accepted by the Department. Even though petitioner had volunteered, it makes little or no difference as the petitioner was entitled to receive payment as it is not the case of the State that petitioner was doing any charity for the State. It is well established that no work is gratuitous unless accepted and said to be so. Merely because the petitioner volunteered would not take the obligation to pay for the work away from the State. The obligation to pay arises out of work done. 4. Once the work was done and the petitioner and other such contractors applied for payment, the problem started. As stated above, they came to this Court. The matter was remanded and now by Annexure-7, the reasons for the short payment has been disclosed. The obligation to pay arises out of work done. 4. Once the work was done and the petitioner and other such contractors applied for payment, the problem started. As stated above, they came to this Court. The matter was remanded and now by Annexure-7, the reasons for the short payment has been disclosed. In paragraph-3 of the impugned communication (Annexure-7), the first reason given is that the officers of the State, who get the work done at the time of the floods, were directed by the higher officials to submit progress report every fifteen days but the Government servants connected with the same did not submit reports timely and, as such, in absence of timely report having been received, in January 2003 it was recorded that for dereliction of orders, the work would be deemed to be not done and it is for that reason, payments remained pending. If this was the only reason then this Court would have straightway issued a mandamus for payment for the simple reason that because States own officer failed to maintain records or submit report and, thus, committed a default the liability of contractor being third party cannot be jeopardized. If what the State submits is to be accepted then it would be penalizing a person for default by someone over which he had no control. No jurisprudence would permit such an action. For default committed by State Officers, the contractors are being sacrificed. In a fair democratic society, such a stand cannot be accepted by any Court. 5. If this stand was bona fide and not mere pretence to harass the contractors or to wrongly deny them payment then the State should have come forward and disclosed that they had taken punitive action against the officers/officials who had defaulted in following instructions binding on them. Unfortunately while the officers, who allegedly committed the default are left totally scot free with no punitive action, the contractors, who have done their part of work, are being denied their payment on such a spacious plea. This Court is unable to accept the contention of the State accordingly. 6. The next and the last ground given for denying the payments is that pursuant to claims made by the petitioner for the work during the floods of 2002, the Department set up an Enquiry Committee which Committee submitted its report being Report No. 17 of 2005. This Court is unable to accept the contention of the State accordingly. 6. The next and the last ground given for denying the payments is that pursuant to claims made by the petitioner for the work during the floods of 2002, the Department set up an Enquiry Committee which Committee submitted its report being Report No. 17 of 2005. This report after spot verification accepted the claim of the petitioner to the extent of about Rs. 2.78 lacs as against a claim of Rs 7.01 lacs which has been paid and, thus, nothing more is required to be paid. 7. Had the facts been as simple as that, the writ petition would have failed. The verification report has been annexed as Annexure-8 and not disputed by the State. The report states that the verification was sought to be done in the year 2004 and clearly admits that when the inspection team went to the embankment areas, substantial parts thereof were submerged in floods and it was difficult to even go there yet with Gods grace and divine blessings, they were able to assess the work done. The work was done prior to 2002 floods. Three rainy seasons intervened and yet with mathematical exactitude, they were able to come up with figures of admitted claims. In my view, nothing can be more absurd and arbitrary than the report aforesaid and nothing can be more absurd and arbitrary in accepting the same as has been done by the Chief Engineer, Muzaffarpur. The officers are supposed to be "Engineers". What they are engineering is open to suspect in view of the report submitted. There is no scientific basis for such a report. Even a layman can see that the report is nothing but to create an excuse and deny legitimate payments. 8. Apex Court in the case of M/s Hindustan Sugar Mills V/s. The State of Rajasthan & Others, AIR 1981 SC 1681 has said that in a democratic society governed by rule of law, State cannot be permitted to take a legalistic view of the matter only to deny the legitimate claims of the citizens. The fact remains that there is no denial of the work having been done by the petitioner. The fact remains that there is no denial of the work having been done by the petitioner. What is denied now after such a long passage of time is the quantity of work done but there is no estimation based on any scientific material to substantiate this denial. The two grounds, as aforesaid being the only grounds, in my view, they offer no legal justification to deny payments. They are mere pretences of an excuse to deny payments. 9. A feeble attempt was made to submit that in absence of any agreement as between the parties, petitioner was not entitled to any payment. This question, in my view, would be relevant if there was a total denial of any work by any nature having been done by the petitioner. Work is admitted to have been done by the petitioner and it is not in dispute that it was not for charity. Thus, payment is due and has to be made to the petitioner. The fallacious inspection report admits now that the fifteen days reports were in fact sent by the authorities and received in the office of the Chief Engineer which was denied earlier. In my view, these are mere pretences of an excuse to deny legitimate payments and once the claims are established, payments cannot be denied to the petitioner much less on the grounds as aforesaid. 10. In the facts and circumstances, the writ application is allowed. The respondents are directed to make allocation of funds for payment of the petitioners outstanding amounts which should be paid to the petitioner within three months of the day of filing of this order before the Chief Engineer, Department of Water Resources, Muzaffarpur.