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2018 DIGILAW 983 (JHR)

Shashi Kant Gopalka v. State of Jharkhand

2018-05-02

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : Heard Mr. Sachin Kumar, counsel appearing on behalf of the petitioner. 2. Heard Mr. D.K. Dubey, Sr. S.C. I appearing for the respondents-State. 3. This writ petition has been filed for the following reliefs:- (i) For issuance of a writ of certiorari to quash the letter No. 2124 dated 20.08.2013 issued under the signature of respondent no. 4 whereby it has been communicated that the request for grant of time extension to the petitioner as recommended by the respondent no. 5 & 6 cannot be considered. (ii) To direct the respondents to allow time extension to the petitioner. 4. Counsel for the petitioner submits as under:- a. The petitioner had entered into an agreement for execution of work vide agreement dated 04.06.2012 and as per the agreement, the period of completion of work was six months which expired on 04.12.2012. However, the petitioner completed the work on 11.05.2013. Accordingly, the extension for completion of work was required for the period from 05.12.2012 to 11.05.2013. b. Counsel for the petitioner by refereeing to Annexure-9 which is extract of Jharkhand Public Works Department Code 2012 referred to paragraph no. 291A which deals with the powers of various authorities including the power for granting of extension of time. Clause-5 of paragraph no. 291 A reads as under:- Nature of Power Limits of power 1 ------------------ ---------------- 2.------------------ ----------------- 3.----------------- --------------------- 4--------------------- ------------------------ 5.To alter the time limit and to remit or reduce the penalty provided in all agreements of contract In contracts approved by the Departmental Tender Committee- Full powers in Contracts where extension required is up to 50% of the time period defined in the Contract. Matters where Extension of Time (EoT) Required is more than 50% of the time period defined in the Contract shall be referred to a Committee headed by Departmental Secretary whose other members would be Engineer-in-chief, internal Financial Advisor & the concerned Chief Engineer c. Counsel for the petitioner submits that required time extension was more than 50%, therefore decision could have been taken as per clause 5 of the aforesaid code and the matter was to be referred to the Committee headed by the Secretary of the Department. d. Counsel by referring to impugned letter dated 20.08.2013 submits that the Chief Engineer instead of referring the matter to the Committee for consideration of time extension has refused to process the application of the petitioner for extension of time and the reason has been given that the petitioner has been blacklisted. e. Counsel for the petitioner submits that the black listing of the petitioner was done vide order dated 28.06.2013 and thereafter the order dated 28.06.2013 was challenged by the petitioner in W.P. (C) No. 4417 of 2017 and the matter was remitted to the authority for fresh consideration on the point of quantum. Thereafter fresh order was passed by the authority which was again challenged by the petitioner in W.P. (C) No. 504 of 2016 and the petitioner submits that the writ petition has been decided in favour of the petitioner. f. Counsel for the petitioner submits that this writ petition may be disposed of on the short point of jurisdiction regarding extension of time, as the impugned order dated 20.08.2013 whereby extension of time has been rejected or not considered has been passed by the Chief Engineer who has got no jurisdiction in the matter. 5. Counsel for the respondents on the other hand submits that the matter of consideration of extension of time can be considered by the competent authority as indicated by the petitioner as per the provisions of Jharkhand Public Works Department Code 2012 and the committee headed by the Secretary, Road Construction Department would be the competent authority to take a decision as per Clause-5 of 291 A of the aforesaid Code. 6. Considering the facts and circumstances of the case and after hearing counsel for the parties, this writ petition is allowed on the short point of jurisdiction and the impugned order dated 20.08.2013 issued by the Chief Engineer, Road Construction Department whereby the said authority has refused to consider the prayer of the petitioner for extension of time, is hereby quashed and set aside in view of Clause 5 of Paragraph 291 A of the Jharkhand Public Works Department Code 2012. 7. This court finds that the agreement involved in this case is dated 04.06.2012 and as per the agreement, the period of completion of work was six months which expired on 04.12.2012. However as per the petitioner the work was completed on 11.05.2013. 7. This court finds that the agreement involved in this case is dated 04.06.2012 and as per the agreement, the period of completion of work was six months which expired on 04.12.2012. However as per the petitioner the work was completed on 11.05.2013. Accordingly, the extension for completion of work was required for the period from 05.12.2012 to 11.05.2013 which is certainly more than 50% of the time allotted in the agreement for completion of work. 8. This court finds that appropriate decision ought to have been taken under paragraph no. 291A clause 5, but instead of taking such step as per the provision of Jharkhand Public Works Department Code 2012, the impugned order has been passed by the Chief Engineer. 9. This court finds that as per paragraph no. 291A clause 5, of Jharkhand Public Works Department Code 2012, matters where Extension of Time (EoT) required is more than 50% of the time period defined in the Contract has to be referred to a Committee headed by Departmental Secretary whose other members would be Engineer-in-chief, internal Financial Advisor & the concerned Chief Engineer. 10. Accordingly, the impugned order dated 20.08.2013 issued by the Chief Engineer, Road Construction Department is hereby quashed and set aside and the respondent no. 2 is directed to take appropriate action as per the provisions of Jharkhand Public Works Department Code 2012 so that the matter of extension of time may be placed before the competent authority as per the provisions of the said Code. The respondent no. 2 is directed to do the needful so that the decision is taken within a period of four weeks from the date of receipt of the copy of this order along with the representation filed by the petitioner. 11. It is made clear that this Court has not gone into the merits of the case.