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2018 DIGILAW 440 (ORI)

B. Manoj Kumar Rao v. State of Odisha

2018-04-20

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT VINEET SARAN, CJ. - The petitioner had entered into an agreement dated 6.1.2015 with the opposite party no.5 for execution of work, namely, “Improvement to Luchapada PWD Road to Shaktinagar via-Srimanagar, Merasahi, Badasahi road in the District of Ganjam under NABARD Assistance, RIDF-XIX”. 2. The value of the work as per the agreement was Rs.13,25,16,680/-, the stipulated date of commencement of the work was 6.1.2015 and the date of completion of the work was 5.7.2016. 3. Clause 19 of the Detailed Tender Call Notice (DTCN) provides for incentive to the contractor for early completion of work, which reads as follows:- “19. The work is to be completed in all respects within the period mentioned in column 6 of TCN in calendar months from the date of written order to commence the work. There will be provision of incentive @ 1% in case of completion of work ahead of one month (part of the month excluded) & the maximum amount payable will be fixed at 2% of the work is completed two months ahead of the scheduled time. Incentive should be paid in respect of individual project for new construction/substantial additional or improvement works, the minimum value of which is mentioned below : Name of work Minimum value 1. Building work/PH Work Rs. 40.00 lakhs 2. Road work Rs. 3.00 crores 3. Irrigation work Rs. 10.00 crores The claim for incentives shall be considered subject to the condition that the Executive Engineer in charge of the work shall intimate the actual date of completion to the concerned S.E., Chief Engineer and Govt. within three days of completion date. 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 EE 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 SE, CE & the Administrative Department. The incentive for timely completion should be on a graduated scale of one percentage 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. The incentive for timely completion should be on a graduated scale of one percentage 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 contract period 10% Before 20 to 30% of contract period 7.50% of contract value Before 10% to 20% of contract period 5% of contract value Before 5% to 10% of contract period 2.50% of contract value Before 5% of contract period 1% of contract value” 4. In the present case, the petitioner claims that he had completed the work on 19.12.2015, instead of 5.7.2016, which was 30% earlier than the contract period, being 199 days earlier than the scheduled time. According to the petitioner, he would be entitled to incentive of 10% of the contract value for such early completion of work. Since the petitioner was not granted the benefit, he filed Writ Petition No. 19518 of 2017, which was disposed of on 14.9.2017 with the direction to the Chief Engineer-opposite party no.3 to consider and decide the claim of the petitioner for payment of incentive, on the representation which may be filed by the petitioner. Pursuant thereto, the petitioner filed a representation on 18.9.2017 which was rejected by the opposite party no.3-Chief Engineer on 2.11.2017. Aggrieved by the same, this writ petition has been filed. 5. We have heard Sri N.Jujharsingh, learned counsel for the petitioner as well as learned Addl. Government Advocate appearing for the State-opposite parties and have perused the record. Pleadings between the parties have been exchanged. With the consent of the learned counsel for the parties, this petition is being disposed of at the admission stage. 6. The fact that the petitioner had completed the work in terms of the agreement dated 6.1.2015 on 19.12.2015, which was 199 days prior to the schedule date of completion and 30% before the contract period, is not disputed in the counter affidavit. In the order dated 2.11.2017 passed by the Chief Engineer on the representation filed by the petitioner, the opposite party no.3 has taken two grounds for rejection of the claim of the petitioner; firstly, that there was change in original scope of work; and secondly, there was delay in reporting the completion date by the concerned Superintending Engineer-opposite party no.4. 7. 7. In the said order no details of change in the original scope of work have been given and a bald statement has been made that there was change in the scope of work. The Opposite party has tried to explain in the counter affidavit that some work was reduced and as such, the petitioner did not complete the original work as per the agreement before the original time schedule and thus, since there was change in original scope of work, the petitioner would not be entitled to the benefit of Clause 19 of the DTCN, read with para 3.5.5(V) Note-I of OPWD code Vol.I. The said provision of the OPWD Code relates to payment of incentive and provides that “incentive will be paid with approval of next higher authority of tender accepting authority on completion of original work before original time schedule”. 8. The fact, that the petitioner had completed the work 199 days before the original time schedule, is not disputed by the opposite party. Admittedly, there was no change in the terms and conditions of the agreement dated 6.1.2015. The opposite parties have not brought on record any document in the counter affidavit also to show that the petitioner was ever intimated of the change in any terms of the agreement, or the scope of work as per the agreement. The order dated 2.11.2017 does not even specify any alleged change in original scope of work. The opposite parties have tried to justify the same in the counter affidavit by giving certain details, without supporting the same with any document to show that the change in scope of work was ever intimated to the petitioner, either during the pendency of the contract period, or even thereafter. As such, the said justification which the opposite parties have tried to give in the counter affidavit, cannot be accepted, especially when there was no intimation of any change of work given to the petitioner, nor details of the same had been given in the order dated 2.11.2017 which was passed in compliance of this Court’s order while disposing of the earlier writ petition of the petitioner. As such, the first ground for rejection of the claim of the petitioner for grant of incentive for early completion of work cannot be accepted in law. 9. As such, the first ground for rejection of the claim of the petitioner for grant of incentive for early completion of work cannot be accepted in law. 9. As regards the second ground, which relates to delay in reporting the completion date by the concerned Superintending Engineer-opposite party no.4 is concerned, we are of the opinion that once the petitioner had completed the work and due intimation was given to the concerned Engineer, which fact is not disputed by the opposite parties, it was for the concerned Engineer to intimate to the next higher authority, and any delay caused by the concerned Engineer in giving such intimation cannot be held against, or to the detriment of the petitioner. 10. The fact that the petitioner had completed the work 199 days before the scheduled date of completion, which was 30% before the scheduled time, is not disputed by the opposite parties. Thus, any lapse on the part of the Superintending Engineer in intimating the next higher authority of such early completion of contract work so as to enable the petitioner to be given the benefit of Clause 19 of the DTCN, cannot be taken against the petitioner. 11. At this stage, it may be pertinent to note here that nothing has been brought on record to show that either the Executive Engineer, or the Superintending Engineer, had while intimating the Chief Engineer about completion of the work, had ever stated that there was change in the scope of work because of which the petitioner would not be entitled to any incentive. The ground of change in the scope of work has been taken by the opposite party at a very late stage, first at the stage of passing of the order dated 2.11.2017 without giving any details with regard to alleged change in the scope of work, and then in the counter affidavit by making such assertion, without supporting the same with any document. 12. The meaning of “incentive” attached to clause 19 of the DTCN is to be examined in the context of facts of the case in hand. 12. The meaning of “incentive” attached to clause 19 of the DTCN is to be examined in the context of facts of the case in hand. As per Chambers Dictionary, the meaning of “Incentive in-sent’ iv, adj inciting, encouraging; igniting (Milton).-n that which incites to action, a stimulus.-n incentiviza’tion or-s-vi incent’ivize or-ise to have or be given an incentive, esp to work more efficiently, productively, etc.[L incentivus striking up a tune, from incinere, from in in, and canere to sing]. In Oxford Dictionaries “incentive” means a thing that motivates or encourages someone to do something. The meaning of “incentive” in Cambridge English Dictionary is something that encourages a person to do something. In Business Dictionary.com “incentive” has been defined to mean inducement or supplemental reward that serves as a motivational device for a desired action or behavior. As per WIKIPEDIA an “incentive” is something that motivates an individual to perform an action”. “Incentive” by Merriam-Webster means something that incites or has a tendency to incite to determination or action. According to P Ramanatha Aiyar’s Advanced Law Lexicon 4th Edition, “incentive” means something that arouses feeling or incites to action. Positive motive (sometimes 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”. 13. In Bijay Kumar Mohapatra v. State of Orissa, 2017 (I) OLR 41 , this Court, while considering the similar clause 2.4 of Detailed Tender Call Notice which prescribes ‘bonus’ for early completion of work, taking into account the meaning attached to word ‘bonus’ relying upon the law laid down by the apex Court in Ghaziabad Zila Sahkari Bank Ltd. v. Labour Commissioner, (2007) 11 SCC 756 held that “bonus” is a boon or gift, over and above, what is normally due as remuneration to be received. Similarly, the meaning attached to word “incentive” as per Clause 19 of the Detailed Tender Call Notice is a boon, over and above, what is normally due to the petitioner. 14. Incentive for early completion is provided in a contract to encourage the contractor to complete the agreed work early, which would go to the benefit of both parties. Similarly, the meaning attached to word “incentive” as per Clause 19 of the Detailed Tender Call Notice is a boon, over and above, what is normally due to the petitioner. 14. Incentive for early completion is provided in a contract to encourage the contractor to complete the agreed work early, which would go to the benefit of both parties. Denying the same on frivolous grounds would amount to breach of contract, as has been done in the present case where such incentive has been denied to the petitioner by raising the issue of change in nature of work as an afterthought, and that information was not given by the own officer of the opposite party, which was for no fault of the petitioner, when admittedly he had completed the contract work 199 days before the scheduled date. 15. In such view of the matter, we are of the firm opinion that the rejection of the claim of the petitioner for grant of incentive was not justified, and the order dated 2.11.2017 deserves to be quashed and is accordingly quashed. 16. The opposite parties are directed to pay the incentive amount to the petitioner in terms of Clause 19 of the DTCN for early completion of work, as expeditiously as possible, but not later than six weeks from the date of production of certified copy of this order before the Executive Engineer-opposite party no.5. 17. The writ petition stands allowed. No order as to costs. Petition allowed.