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2016 DIGILAW 1096 (ORI)

Bijay Kumar Mohapatra v. State of Orissa

2016-11-15

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. The petitioner is a registered super class contractor. He was awarded a contract work for “improvement of Barikpur-Dhamnagar road from 0/0 to 9/660 km. under ACA Scheme for the year 2013-14” pursuant to the agreement dated 03.09.2014 which was completed by him before the due date. He thus claims for incentive for early completion of work, as well as refund of earnest money deposit (EMD) and security deposits in terms of the agreement. 2. The admitted facts of the case are that challenging the said award of contract in favour of the petitioner, one Suryanarayan Mohanty had filed W.P.(C) No. 16944 of 2014, in which initially interim order was passed on 06.09.2014, but finally on 25.11.2014 the writ petition was dismissed. The petitioner thereafter commenced the work and completed the same on 15.04.2015, which was admittedly two months prior to the assigned date of completion as indicated in the agreement. On 17.04.2015, opposite party no.4- Executive Engineer issued completion certificate and the final bill of the petitioner was also released on 27.05.2015. Then on 03.07.2015, the petitioner requested the Executive Engineer to disburse the incentive in his favour for early completion of work, as was stipulated in the terms of the agreement. When the said incentive was not paid, this writ petition has been filed for a direction to the opposite parties to pay the incentive to the petitioner for early completion of work and also for refund of EMD and security deposit. 3. We have heard Sri B. Routray, learned Senior Counsel along with Sri S.K. Sahoo for the petitioner, as well as learned Addl. Govt. Advocate appearing for the State-opposite parties. Pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 4. The work in question was awarded in favour of the petitioner and accordingly the work order issued in his favour on 03.09.2014. Effectively, he started the work on 10.12.2014 and completed the same on 15.04.2015, which was much prior to the assigned date of completion. 4. The work in question was awarded in favour of the petitioner and accordingly the work order issued in his favour on 03.09.2014. Effectively, he started the work on 10.12.2014 and completed the same on 15.04.2015, which was much prior to the assigned date of completion. The Executive Engineer issued the completion certificate on 17.04.2015 and subsequently wrote a letter to the Chief Engineer (DPI & Roads) on 03.07.2015 narrating the details regarding completion of work executed by the petitioner, in which he has admitted that the petitioner is entitled to get 10% incentive of the agreement amount and the same should have been paid along with the bill. 5. Clause 2.4 of the Detailed Tender Call Notice in Annexure-1 to the writ petition prescribes for bonus for early completion of work, which is as follows:- “Bonus for early completion 2.4.1 Amendment to para 3.5.5 (v) Note-iii of OPWD Code Vol-I by inclusion. For availing incentive clause in any project which is completed before the stipulated date of completion, subject to other stipulations it is mandatory on the part of the concerned Executive Engineer to report the actual date of completion of the project as soon as possible through FAX or e-mail so that the report is received within 7 days of such completion by the concerned Superintending Engineer, Chief Engineer and the Administrative Department. The incentive for timely completion shoud be on a graduated scale of one percent to 10 percent of the contract value. Assessment of incentives may be worked out for earlier completion of work in all respect in the following scale. Before 30% of the contract period=10% of the contract value Before 20% to 30% of the contract period=7.5% of the contract value Before 10% to 20% of the contract period= 5% of the contract value Before 5% to 10% of the contract period= 2.5% of the contract value Before 5% of the contract period= 1% of the contract value.” 6. The aforementioned clause contained in Detailed Tender Call Notice also forms part of the agreement in terms of the OPWD Code (Vol.4). So far as OPWD Code is concerned, which is statutory in nature and as per the conditions stipulated therein, the petitioner is entitled to get refund of the earnest money deposit and also the security amount. The aforementioned clause contained in Detailed Tender Call Notice also forms part of the agreement in terms of the OPWD Code (Vol.4). So far as OPWD Code is concerned, which is statutory in nature and as per the conditions stipulated therein, the petitioner is entitled to get refund of the earnest money deposit and also the security amount. Due to inaction of the authorities, under the compelling circumstances, the petitioner has approached this Court by filing this writ petition. On being noticed, the opposite parties have filed counter affidavit. In paragraph-8 of the counter affidavit, it has been stated as follows:- “That with regard to averments made in paragraph-8 of the writ petition, it is humbly submitted that one of the tenderer namely Sri Suryanarayan Mohanty was not qualified in Technical bid. So, he had filed one writ petition bearing no.16994/2014 before the Hon’ble Court to set aside the order of rejection of Technical bid. By judgment daed 25.11.2014, the Hon’ble Court has been pleased to dismiss the W.P.(C) No. 16994/2014. Challenging the judgment dated 25.11.2014, said Suryanarayan Mohanty has filed SLP (Civil) No.36506/2014 before the Hon’ble Supreme Court which is pending for adjudication. Present opposite parties have been impleaded as Rspondent no.1, 2, 3 and 5 respectively in SLP (Civil) No.36506/2014. Present petitioner has been impleaded as respondent no.6. Due to pendency of aforesaid SLP before the Hon’ble Supreme Court, the present opposite parties are not releasing incentive amount in favour of the petitioner. However, present opposite parties undertake that soon after disposal of aforesaid SLP by the Hon’ble Supreme Court of India, incentive amount will be released in favour of the petitioner. Copy of SLP as well as copy of interim application for stop payment is annexed herewith as Annexure-A series.” 7. Even though in the counter affidavit the opposite parties have admitted that the petitioner is entitled to get the incentive, the reasons for non-releasing the incentive amount in favour of the petitioner has been shown to be pendency of the SLP before the apex Court. The opposite parties have, however, undertaken that soon after disposal of the aforesaid SLP the incentive amount would be released in favour of the petitioner. The opposite parties have, however, undertaken that soon after disposal of the aforesaid SLP the incentive amount would be released in favour of the petitioner. In view of the candid admission made by the opposite parties in their counter affidavit, nothing more remains to be considered so far as entitlement of the petitioner on the ground of clause-2.4 of the agreement is concerned. 8. The meaning of ‘bonus’, as contemplated under clause-2.4 in common parlance, is as follows:- “A gratuity; a premium or advantage; a definite sum to be paid at one time, for a loan of money for a specified period, distinct from, and independently of, the interest; a premium for loan; a sum paid for services or upon a consideration in addition to or in excess of that which would ordinarily be given. In Webster Dictionary, “bonus” has been defined to mean: “something given in addition to what is ordinarily received by, or strictly due to, the recipient; specifically: (a) A premium given for a loan, or for a charter or other privilege granted to a company. (b) An extra dividend to the shareholders of a company, out of accumulated profits. (c) Money, or other valuable, given in addition to an agreed compensation (d) Life insurance. An addition or credit allotted to policy holders out of accumulated profits.” In Business Encyclopaedia Caxton, “bonus” has been construed to mean: “as a gift, reward, or premium, granted voluntarily although theoretically only in many cases, as a matter of grace and without consideration or obligation. Thus, a payment to an employee in addition to his wages is called a bonus.” As per Great Encyclopaedia of Universal Knowledge, “bonus” means: “something over and above what is the usual or regular payment. In the case of joint-stock companies it is a payment to shareholders, when profits are exceptionally high or have accumulated in the form of an extra dividend or new free shares. It may also be a payment for special services rendered or as an inducement to work.” The apex Court in Ghaziabad Zila Sahkari Bank Ltd. V. Labour Commissioner, (2007) 11 SCC 756 , has held that “bonus” is a boon or gift, over and above, what is normally due as remuneration to be received. It may also be a payment for special services rendered or as an inducement to work.” The apex Court in Ghaziabad Zila Sahkari Bank Ltd. V. Labour Commissioner, (2007) 11 SCC 756 , has held that “bonus” is a boon or gift, over and above, what is normally due as remuneration to be received. In view of the meaning attached to the word “bonus” as contemplated in clause-2.4 of the Detailed Tender Call Notice, it is nothing but an incentive granted to a contractor, who completes the work before the assigned or schedule date of completion. 9. The claim of the petitioner rests on the basis of the agreement which stipulates that the petitioner would be entitled to certain incentives on early completion of the contract work. In paragraph-8 of the counter affidavit, it is admitted that the petitioner is entitled to the incentive amount, but the same is not being paid to the petitioner because of the pendency of S.L.P. filed by one Suryanarayan Mohanty before the apex Court after dismissal of his writ petition no.16944 of 2014. It is admitted that no interim order has been passed by the apex Court in the said S.L.P(C) No.36506 of 2014. 10. If the pendency of the SLP was to be a reason for the petitioner not being paid the incentive amount, then it is not understood as to how the petitioner was allowed to perform the contract work in pursuance of the work order dated 03.09.2014 and complete the same and thereafter have even been paid the final bill. Once, in terms of the agreement, the petitioner was permitted to perform the contract work and complete the same, for which the completion certificate was issued and he had also been paid final bill, the petitioner would also be entitled to payment of the incentive, as stipulated in the terms of the agreement. 11. Learned Addl. Govt. Advocate appearing for the State-opposite parties could not justify as to why the incentive should not be paid merely because of the pendency of the SLP, without there being any interim order granted in the said petition. 12. 11. Learned Addl. Govt. Advocate appearing for the State-opposite parties could not justify as to why the incentive should not be paid merely because of the pendency of the SLP, without there being any interim order granted in the said petition. 12. Though the learned counsel for the petitioner has submitted that after the petitioner completed the work in terms of the contract awarded in his favour, the said SLP pending before the apex Court has become infructuous, but we would not be inclined to go into such an issue as it is for the apex Court to consider the same. 13. However, considering the fact that the work has already been completed and the petitioner has already been paid the final bill, the incentive, to which the petitioner is admittedly entitled to as stipulated in the agreement (as has been accepted by the opposite parties in paragraph-8 of the counter affidavit) we would be of the opinion that the petitioner would be entitled to payment of the same. Besides this, since the contract has already been completed and the final bill has also been paid, the petitioner would also be entitled to refund of the Earnest Money and security amount deposited by him in terms of the contract agreement. 14. Accordingly, the writ petition stands allowed. The incentive, to which the petitioner is found entitled, shall be paid to him within four weeks from the date of filing of a certified copy of this order before opposite party no.4- Executive Engineer. The earnest money and security amount deposited shall also be paid to the petitioner, in accordance with the terms of the agreement. No order to cost.