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2016 DIGILAW 1249 (ORI)

Prafulla Kumar Pradhan v. State of Odisha

2016-12-20

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. In response to a tender call notice dated 26.08.2014 issued by opposite party no.4-Superintending Engineer, Public Health Circle, Bhubaneswar, the petitioner was awarded the contract on 28.11.2014. As per the agreement, the petitioner was to complete the work within one year of 28.11.2014, i.e., by 27.11.2015. As per the clause of the tender notice, incentive was to be granted for early completion of work. The relevant clause-6.21 relating to incentive for early completion of work is reproduced below:- “6.21. Incentive for Early Completion: Incentive @1% will be paid in case of completion of the work ahead of One month (Part of month shall be excluded) from the stipulated date for completion and the maximum amount shall be 2% if the work is completed 2 months ahead of the schedule time. For payment of incentive, the codal provision as laid by Works Department in their letter No.10070 Dt.08.06.2007 and OPWD Code Volume-I, Para 3.5.5. and subsequent amendment thereof shall be followed.” 2. The petitioner completed the work on 27.05.2015, which was six months prior to the stipulated date of completion. He was also paid the final bill on 05.06.2015. Then, on 07.08.2015, the Executive Engineer-opposite party no.5 gave its report to the effect that the petitioner would be entitled to an incentive of 10% under the said clause-6.21, which amounts to Rs.19,98,222/-. A reminder was sent to the said effect by opposite party no.5-Executive Engineer to the opposite parties no.4 and 2 on 06.02.2016. When no order was passed on the communications made by opposite party no.5 to the higher authorities for grant of incentive to the petitioner, the petitioner approached this Court by filing this writ petition praying for direction to the opposite parties to pay the incentive amount along with interest. 3. During pendency of the writ petition, opposite party no.2-Engineer-in-Chief, Public Health, Odisha, has passed the order rejecting the claim of the petitioner for being paid the incentive amount on the ground that the Executive Engineer did not intimate about the completion of work within seven days as required and also on the ground that the work allotted to the petitioner was not a new work, but only “replacement of existing water supply rising main (PSC pipe) with M.S./D.I Pipe”. By way of amendment, the petitioner has brought the said order dated 30.05.2016 on record and also challenged the same. 4. By way of amendment, the petitioner has brought the said order dated 30.05.2016 on record and also challenged the same. 4. We have heard Sri P.C. Nayak, learned counsel for the petitioner, as well as Sri P.K. Muduli, learned Addl. Govt. Advocate for the State-opposite parties, and perused the records. Pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage. 5. The clause 6.1 of the tender notice, as mentioned supra, deals with “incentive for early completion”. Before delving into this clause, we have to examine the meaning of word “incentive”. In common parlance of English, meaning of the word “incentive” as provided in different dictionaries, reads as follows: As per Oxford Dictionary, “incentive” means: “1. A thing that motivates or encourages someone to do something. 2. A payment or concession to stimulate greater output or investment.” According to The Concise Oxford Dictionary, the meaning of “incentive” is: “1.a Tending to incite, 2.n. Incitement (to action, to do, to doing), provocation, motive, payment or concession to stimulate greater output by workers.” As per Chambers Dictionary, the meaning of “incentive” is: “In-sent’iv, adj inciting, encouraging; igniting (Milton). –n that which incites to action, a stimulus, esp to work more efficiently, productively, etc. As per Collins Dictionary, “incentive” means : “an additional payment made to employees as a means of increasing production, an incentive scheme. Wage incentive:-additional wage payments intended to stimulate improved work performance” According to Dictionary.com ”incentive” means: “1. something that incites or tends to incite to action or greater effort, as a reward offered for increased productivity. 2. inciting, as to action; stimulating; provocative.” As per Cambridge Advanced Learner’s Dictionary & Thesaurus, “incentive” means: “something that encourages a person to do something.” According to Merriam-Webster Dictionary” incentive” means: “Something that incites or has a tendency to incite to determination or action. Incentive synonyms Boost, encouragement, goad, impetus, impulse, incitation, incitement, instigation, momentum, motivation, provocation, spur, stimulant, stimulus, yeast.” In P. Ramanatha Aiyar’s Advanced Law Lexicon, 4th Edition, “incentive” has been defined to mean: “something that aroused feeling or incites to action. Positive motive (something artificially generated) for performing some task. It is not appropriate to limit the word ‘incentive’ to the provision of incentives for employees only. Positive motive (something artificially generated) for performing some task. It is not appropriate to limit the word ‘incentive’ to the provision of incentives for employees only. An incentive scheme is a scheme which has the purpose of giving rewards in order to encourage performance of some description.” One of such example is Export incentive- “Government incentives to promote exports. They include direct-tax incentives, subsidies, favourable terms for insurance and the provision of cheap credit.” 6. Applying the meaning of ‘incentive” discussed above, to clause 6.21, the incentive is provided by the authority for early completion of work so that the authorities may be benefited by the efficient and proper action of the contractor. 7. The apex Court in the case of S.V.A. Steel Re-Rolling Mills Limited v. State of Kerala, (2014) 4 SCC 186 , in paragraph-30 of the judgment held as under:- “Before laying down any policy which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise.” 8. In the present case, there is no denial of fact that there was an incentive clause in the tender as well as agreement. Even the opposite party no.5-Executive Engineer has certified that the work was completed six months prior to the stipulated date of completion. Further, more than three months prior to the date of completion, the Executive Engineer has on 07.08.2015 recommended for payment of incentive to the petitioner under the terms of the agreement. Even in the impugned order it is admitted that the work was completed on 27.05.2015, but the same was intimated by the Executive Engineer after three months, i.e., 07.08.2015. It is evident that parties had knowledge that the work was completed on 27.05.2015, inasmuch as even the payment of final bill was made to the petitioner on 05.06.2015. Even in the impugned order it is admitted that the work was completed on 27.05.2015, but the same was intimated by the Executive Engineer after three months, i.e., 07.08.2015. It is evident that parties had knowledge that the work was completed on 27.05.2015, inasmuch as even the payment of final bill was made to the petitioner on 05.06.2015. Merely for the fault, if any, of the Executive Engineer in not intimating of the completion of work prior to 07.08.2015 would not deny the petitioner the benefit of incentive clause in the agreement, as well as tender call notice, as the fault cannot be attributed to the petitioner. 9. Clause-6.21, as has been reproduced hereinabove, clearly stipulates payment of incentive for early completion of work which clause is not denied by the opposite parties. A technical ground for denial of incentive has been taken that the same was to be paid only for new work, as per clause-3.5.5. of OPWD Code. The same appears to be an after thought as the opposite parties kept the matter for grant of incentive pending and did not take any decision till the petitioner approached this Court, and it was only during pendency of the writ petition that on such technical ground, the claim of the petitioner has been rejected. The Executive Engineer, who is the executing authority, had never raised such objection. He had, in fact, recommended for payment of incentive on 07.08.2015, and then again sent reminder on 06.02.2016. 10. The clause for grant of incentive is specified in the tender call notice itself. Resorting to a technical objection that the same is not provided for under the OPWD Code cannot sustain in the eye of law, as the work to be executed was specified in the tender call notice and the incentive clause was also in the said notice, meaning thereby for the work to be executed, incentive for early completion of work was to be given for such work, which was also provided for in the tender call notice. 11. In the order passed on 30.05.2016, opposite party no.2 has resorted to a clause in the OPWD Code which provided that it is the obligation of the Executive Engineer to report about the completion of work within seven days thereof and since the Executive Engineer failed to do so, the petitioner would not be entitled to grant of incentive. 11. In the order passed on 30.05.2016, opposite party no.2 has resorted to a clause in the OPWD Code which provided that it is the obligation of the Executive Engineer to report about the completion of work within seven days thereof and since the Executive Engineer failed to do so, the petitioner would not be entitled to grant of incentive. It is surprising that for no fault of the petitioner, he has to suffer even though he has completed the work much prior to the stipulated date of completion and has already been paid the final bill, within ten days of completion of the work. The petitioner cannot be made to suffer for no fault on his part, especially when all the authorities have themselves accepted that the work was completed much prior to the date of completion. 12. In our view, in the facts of this case, the petitioner would be entitled to the incentive for early completion of work as provided for under clause-6.21 of the tender call notice. The order dated 30.05.2016 is thus quashed. Opposite party no.2-Engineer-in-Chief, Public Health, Odisha is directed to pass a fresh order in accordance with law giving the petitioner benefit of clause-6.21 of the tender call notice within two months from the date of filing of the certified copy of this order. 13. The writ petition stands allowed to the extent indicated above. No order as to costs.