Judgment 1. These four appeals, given akinness, have been clubbed by order dated 17th September 2015 and are, thus, taken and decided ad seriatim. CFA No.145/2012 2. Civil First Appeal is directed against judgement and decree dated 30th June 2012, passed by Additional District Judge, Srinagar (for shortness “Trial Court”) on a Civil Original Suit bearing no.12 titled Abdul Qayoom Dar v. Union of India and another, and for setting aside the same, with a further prayer to dismiss the suit. 3. A civil original suit, as is discernible from the record on the file, was filed by plaintiff – respondent herein before the Trial Court, seeking following relief: (a) Decree of declaration, declaring the impugned communication dated 04.11.2018 bearing No.JCC/W-4/ITBP/54(101)/1236-H, issued by defendant, Superintending Engineer, directing imposition of penalty to the tune of Rs.1,65,583/- in relation to contract; construction of T-I/16 Nos.(F/S) quarters for ITBP at Zeewan Camps, Panthachowk, Srinagar, covered under agreement No.EE/ SCD / 57 of 2004-05 as null and void, ineffective, improper and inoperative against the plaintiff be passed in favour of the plaintiff and against the defendants. (b) Decree for recovery/payment/refund of Rs.1,65,583/- with interest in favour of the plaintiff and against the defendants. (c) To direct defendants to pay the costs of litigation to the tune of Rs.30.000/- to the plaintiff. 4. The case set up by plaintiff/respondent before Trial Court was that contract as regards construction of Type-I/16 (F/S) Qtrs for ITBP at Zeewan, Panthachowk, Srinagar, was allotted in his favour. It was maintained by him that during execution of contract multiple hindrances occurred which were beyond his control and taking note of genuineness of hindrances, the supervisory staff comprising of Junior Engineer, Assistant Engineer, Assistant Executive Engineer recorded such hindrance in the site order book, cement register and hindrance register, so that appropriate extension for completion of work could be granted. According to plaintiff/respondent, the contract was complete on 23rd August 2007 and Executive Engineer is stated to have forwarded case to Superintending Engineer and recommended extension on the strength of justification recorded by him. However, Superintending Engineer imposed penalty for delayed completion of contract in the amount of Rs.1,65,538/-. Plaintiff/respondent sought quashment of communication dated 4th November 2008, issued by Superintending Engineer, imposing penalty on plaintiff, as also its recovery/payment. Appellants/defendants resisted the plaint of respondent. 5. However, Superintending Engineer imposed penalty for delayed completion of contract in the amount of Rs.1,65,538/-. Plaintiff/respondent sought quashment of communication dated 4th November 2008, issued by Superintending Engineer, imposing penalty on plaintiff, as also its recovery/payment. Appellants/defendants resisted the plaint of respondent. 5. The Trial Court, taking into account pleadings of parties, framed following issues for adjudication: (1) Whether the delay caused in completion of work is attributable to the defendant department? OPP (2) Whether the plaintiff was entitled to secure extension in time for the completion of contract on the basis of justification put forth by the Ex. Engineer while recommending grant of extension of approval to defendant No.2? OPP (3) Whether in presence of the extension clause contained in agreement was it open for defendant No.2 to direct imposition of penalty? OPP (4) Whether the defendant No.2 was justified in imposition of penalty to the tune of Rs.1,65,583/-? OPD (5) Whether power exercised by defendant No.2 directing imposition of penalty is in accordance with law and whether same was permissible keeping in view facts and circumstances attendant with the case? OPD (6) Relief 6. Plaintiff/respondent produced witnesses, namely, Ramesh Kumar and M.S. Batia, besides himself. Appellants/defendants did not produce any witness in support of its stand. By impugned judgement and decree, the Trial Court held communication dated 4th November 2008, issued by Superintending Engineer as null and void and directed payment/refund of Rs.1,65,000/- along with interest in favour of respondent/plaintiff. It is this judgement and decree of which appellants are aggrieved and seek setting-aside thereof. 7. Learned counsel for appellants submits that impugned judgement and decree is liable to be set-aside as Trial Court has not taken into account the fact that suit was to be rejected on account of non-joinder of parties inasmuch as Union of India was to be sued through Secretary of the concerned Department. He also avers that notice required under Section 80 of the Code of Civil Procedure had not been given. He also avers that notice required under Section 80 of the Code of Civil Procedure had not been given. It is contended that Trial Court has not considered written statement of appellants as it was mentioned therein that the date of actual completion of work was 19th February 2006, but considering the genuine hindrance extension was granted upto 1st August 2006 and despite granting extension, respondent failed to complete the contract and actually completed the contract on 28th September 2007 and, thus, delay from 2nd August 2007 to 28th September 2007 was not found justified, so penalty of Rs.1,65,583/- was imposed upon respondent, which was justified. It is also stated that counsel for appellants during time of argument made a submission that penalty was justified in view of proceedings leading to imposition of penalty, which were submitted by appellants before the Trial Court, but the said proceedings were not found on record and accordingly, counsel for appellants made a request that he should be given time to submit the proceedings to justify penalty, but the Trial Court did not accept the said plea and proceeded ahead without giving appellants an opportunity even to produce documentary as well as oral evidence during the trial and therefore, they were condemned unheard as they were not given sufficient opportunity to prove their case. Learned counsel has also stated that at the time of filing of their written statement, appellants handed over proceedings justifying imposition of penalty to their counsel, but their ex-counsel for unknown reasons did not submit the proceedings leading to imposition to penalty before the Trial Court. 8. Per contra, learned counsel for respondent has insisted that plaintiff/ respondent, aggrieved of imposition of penalty, called in question legality and validity of penal action before Trial Court in a civil suit inasmuch as imposition of penalty under relevant clause of agreement was an excepted matter and, therefore, beyond scope of arbitration. It is contended that during execution of contract, multiple hindrances occurred which were beyond the control of respondent and noting genuineness of hindrances, supervisory staff comprising of Junior Engineer, Assistant Engineer, Assistant Executive Engineer, recorded such hindrances in the site order book, cement register and hindrance register so that appropriate extension in the time for completion of work could be granted. It is stated that the contract was complete on 23rd August 2007. It is stated that the contract was complete on 23rd August 2007. Upon completion of contract, Executive Engineer, on the strength of report and recommendation made by supervisory staff, forwarded case to Superintending Engineer, approximately two years after completion of contract, for extension. It is averred that the Trial Court only after taking note of events relating to subject contract and after analysing material produced by respondent both oral and documentary, set-aside order imposing penalty. Learned counsel asserts that appellant-department, in order to justify imposing penalty, had to establish that time was essence of contract and it was during the period fixed for completion that penalty could be imposed, considering factual position relating to agreement and that clause (2) provided that time is the essence of contract and clause (3) related to imposition of penalty in case of delay in completion of contract. It is also stated that clause (5) provides for grant of extension by department keeping in view hindrances caused. During course of submissions made before the Trial Court, it was primarily contended that in the face of existence of penalty clause and clause granting extension in time, clause (20) about time being essence of contract, pales into insignificance and when time ceases to be essence of contract no penalty could be imposed. Learned counsel in support of his submissions has placed reliance on Hind Construction Contractors v. State of Maharashtra, AIR 1979 SC PT 20; Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 ; and 2019 SLJ C11 689. 9. Perusal of the record on file would divulge that plaintiff/respondent had faced hardship in execution of contract. The site had not been earmarked hindering starting start of work, followed by climatic factors, viz. severe cold conditions and sub-zero temperature leading to non-execution of work; thereafter non-availability of cement and steel in the departmental stores, forced plaintiff to make purchases from open market; late electrification of the work by the department; delay in handing over of site and late inspection of site by the department. Hindrances faced by plaintiff/respondent have been admitted by defendants / appellants. Executive Engineer recommended 628 days’ extension, but Superintending Engineer did not accept it and instead imposed penalty. The act and action of Superintending Engineer are cryptic, arbitrary, without cogent reasons and unjustified as has been rightly said by the Trial Court while deciding Issues 1, 2 & 3. 10. Hindrances faced by plaintiff/respondent have been admitted by defendants / appellants. Executive Engineer recommended 628 days’ extension, but Superintending Engineer did not accept it and instead imposed penalty. The act and action of Superintending Engineer are cryptic, arbitrary, without cogent reasons and unjustified as has been rightly said by the Trial Court while deciding Issues 1, 2 & 3. 10. The Trial Court, taking into account pleadings of parties, framed Issues and discussed and decided them ad seriatim. It has been found by the Trial Court during course of discussion and deciding of the Issues that there are no reason muchless cogent or material one, to impose penalty on plaintiff/respondent and there had been no proper application of mind in declining recommendations for extension in time. Thus, the Trial Court has rightly allowed the suit of respondent. 11. It may not be out of place to mention here that dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, one has to look to the nature of the power conferred, the person or persons on whom it is conferred, framework of law conferring that power, consequences ensuing from exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State, like ours, it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures, considered inherent in the exercise of a judicial power, are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back, is now being considered as a quasi-judicial power. The procedures, considered inherent in the exercise of a judicial power, are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back, is now being considered as a quasi-judicial power. The following observations of Lord Parker C.J. in Regina v. Criminal Injuries Compensation Board, Ex. Parte Lain [1967] 2 Q.B. 864, 881, are instructive: “With regard to Mr. Bridge’s second point I cannot think that Atkin, L.J. intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioners case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the commissioners had to be approved by the Minister of Transport and by resolutions of Parliament. The commissioners nevertheless were held amenable to the jurisdiction of this court. Moreover, as can be seen from Rex. v. Postmaster-General, Ex-parte Carmichael, [1928] 1 K.B.291 and Rex. v. Boycott Ex parte Keasley, [1939] 2 K.B. 651, the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected. The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter parties. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing -a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned. Finally, it is to be observed that the remedy has now been extended, see Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned. Finally, it is to be observed that the remedy has now been extended, see Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd., [1952] 2 Q.B. 313, to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. In such a case this court has jurisdiction to supervise that process. We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this court. It is as Mr. Bridge said, ‘a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown’. It is clearly, therefore, performing public duties.” 12. In Purtabpore Co. Ltd. V. Cane Commissioner of Bihar, [1969] 2 S.C.R. 807, the Supreme Court has held that the power to alter the area reserved under the Sugar Cane (Control) Order 1966 is a quasi-judicial power, by further observing that with the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case, let it be assumed that power exercised by respondent no.1 was an administrative power, and test the validity of imposing penalty and action on that basis. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case, let it be assumed that power exercised by respondent no.1 was an administrative power, and test the validity of imposing penalty and action on that basis. Respondent has been able to establish his case before the Trial Court as it has been found that there had been violation of principles of natural justice on the part of appellants while imposing penalty upon respondent. 13. It is pertinent to mention here that skyline of natural justice is constantly expanding. The question how far principles of natural justice govern administrative enquiries came up for consideration before the Queens Bench Division in Re: H. K. (An Infant) [1967] 2 Q.B. 617, 630. There the validity of action taken by an Immigration Officer came up for consideration. In the course of his judgment Lord Parker, C.J. observed, thus: “But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one’s mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative frame work under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially.” 14. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially.” 14. In the same case Blain, J. observed thus: “I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi-judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it. If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie.” 15. An administrative order involving civil consequences must be made consistently with the rules of natural justice. The Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei AIR 1967 SC 1269 , observed: “We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State....” 16. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely, (a) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (b) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). In the past it was thought that it included just two rules, namely, (a) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (b) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in a good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to rules of natural justice. Till very recently it was opinion of the Courts that unless authority concerned was required by law under which it functioned to act judicially there was no room for application of rules of natural justice. The validity of that limitation is now questioned. If the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw a line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry. As observed by the Supreme Court in Suresh Koshy George v. The University of Kerala and Ors., AIR 1969 SC 198 , rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, framework of law under which enquiry is held and the constitution of tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether observance of that was necessary for a just decision on the facts of that case. 17. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether observance of that was necessary for a just decision on the facts of that case. 17. When the case in hand is tested on the touchstone of above discussion, there is no gainsaying that the Trial Court judgment is based on luculent, lucid and comprehensive discourse and therefore, does not warrant any interference and as a corollary thereof, the appeal on hand is liable to be dismissed. 18. For the reasons discussed above, the instant Appeal is dismissed with connected CM(s). Interim direction, if any, shall stand vacated. CFA No.66/2012 19. Penalty imposed by Superintending Engineer in the amount of Rs.49,655/- vide communication no.4/BSF/54(46)/1220 dated 30th December 2008 was challenged in a civil original suit by respondent/plaintiff. The suit was allowed by Trial Court and penalty set-aside vide judgement and decree dated 28th February 2012. It is this judgement and decree, which is thrown to challenge in appeal on hand. 20. A civil original suit was filed by respondent/plaintiff before the Trial Court stating therein that a contract for construction of joint officers Mess at STC BSF Humhama was allotted to him. During its execution, a number of hindrances took place, delaying completion of work. Extension of time was recommended by concerned field agencies/ engineers and accordingly contract came to be completed on 29th February 2006. The case was forwarded to Superintending Engineer, who, however, imposed penalty to the tune of Rs.49,655/-. The Trial Court, given the case set up, has rightly allowed the suit of respondent. Detailed discussion has been made herein before while deciding concomitant Appeal (CFA no.145/2012) that need not be ingeminated here again inasmuch as it takes care of all that has been stated in the Appeal on hand and on that count the instant Appeal is also liable to be dismissed. 21. Accordingly, the instant Appeal is dismissed with connected CM(s). Interim direction(s), if any, is vacated. CFA No.74/2012 22. Penalty imposed by Superintending Engineer in the amount of Rs.3,51,222/-, vide communication no.JCC/W-4/BSF/54(61)/01-H dated 1st January 2009, issued Superintending Engineer, was challenged in a civil original suit by respondent/plaintiff. The suit was allowed by Trial Court and penalty set-aside vide judgement and decree dated 26th March 2012. It is this judgement and decree, which is thrown to challenge in appeal on hand. The suit was allowed by Trial Court and penalty set-aside vide judgement and decree dated 26th March 2012. It is this judgement and decree, which is thrown to challenge in appeal on hand. 23. A civil original suit, as is discernible from perusal of the file, was filed by respondent/plaintiff before the Trial Court stating therein that a contract for construction of boundary wall with barbed wire fencing (left and right side) Chain Link Fencing on rear side including 5 numbers observation posts cum living bunkers at BSF Campus, Panthachowk, Srinagar, was allotted to him. It was contended that immediately after allotment of the contract, plaintiff/respondent geared up and mobilised his resources for speedy execution of contract but upon receipt of the award letter, it came to be disclosed that the site for construction of the boundary wall was not available and an attempt was made to demarcate the area on 13th June 206, and thereafter plaintiff took steps to do excavation of earth work for foundation but after carrying his constructional activities for few days, local inhabitants of the area came on spot and prevented plaintiff/respondent from proceeding ahead with the construction, which came to a grinding halt. It was also averred that respondent made attempts to secure settlement of dispute with DIG, BSF, and local population and after brief interaction between parties, only part of the site was handed over to respondent on 6th July 2006, and while the work in the said area was in progress, inhabitants of the area approached civil court and they succeeded in getting an order of status quo qua the said construction and resultantly the work again came to grinding halt causing heavy pecuniary losses and disadvantage of respondent. It was also contended before the Trial Court that the matter remained sub judice and the stay order remained in operation till August 2006 and thereafter respondent took steps for execution of work and portion of boundary wall was stopped on account of the stay order passed by the court of competent jurisdiction, but a dispute arose between local population and BSF authorities and in March 2007, BSF personnel were again brought to demarcate the area on the rear side of the boundary which was again objected by local population and all hindrances were taken note of by supervisory staff who recorded all such hindrances in hindrance register. Plaintiff in support of his case produced and examined witnesses, but defendants/appellants did not produce any witness. Plaintiff/ respondent was found to genuinely entitled to the extension of time for contract as time was essential for completion of the contract in view of extension clause (b) in the agreement. It is made clear here that Trial Court has rightly allowed the suit of respondent. Comprehensive discussion has been made herein before while deciding concomitant Appeal (CFA no.145/2012) that need not be reiterated here again as it answers all that has been raised in the instant Appeal and on that count the instant Appeal is also liable to be dismissed. 24. In view of above, the instant Appeal is dismissed with connected CM(s). Interim direction(s), if any, shall stand vacated. CFA No.164/2012 25. Penalty imposed by Superintending Engineer in the amount of Rs.1,07,776/- vide communication no.JCC/W-4/ITBP/54(100)/1480-H dated 17th December 2008, issued Superintending Engineer, was challenged in a civil original suit by respondent/plaintiff. The suit was allowed by Trial Court and penalty set-aside vide judgement and decree dated 30th June 2012. It is this judgement and decree, which is thrown to challenge in the instant Appeal. 26. A civil original suit, as is evident from the file, was filed by respondent/ plaintiff before the Trial Court stating therein that a contract for construction of T-II/8 numbers (F/S) quarters for ITBP at Zewan Camp, Panthachowk, Srinagar, was allotted to him. It was contended that immediately after allotment of the contract, plaintiff/respondent geared up and mobilised his resources for speedy execution of contract but plaintiff/ respondent was made to wait for eight long months for earmarking the area over which construction was to be started and thereafter building material as was required to be made available through departmental store, was not available and it was only in the last week of November that a decision was taken that respondent be permitted to arrange steel out of his own funds from open market, which was not otherwise provided in the contract. It was also contended that the work, however, could not be started due to onset of winter season inasmuch as Executive Engineer issued standing instruction in writing not to undertake execution of work involving consumption of cement on account of sub-zero temperature prevailing in the valley during winter season. It was also contended that the work, however, could not be started due to onset of winter season inasmuch as Executive Engineer issued standing instruction in writing not to undertake execution of work involving consumption of cement on account of sub-zero temperature prevailing in the valley during winter season. Respondent/plaintiff in support of his case produced and examined witnesses, but defendants/appellants did not produce any witness. Plaintiff/ respondent placed on record of the Trial Court a number of communications to show recommendation for extension of 709 days made by field functionaries. It was found that plaintiff proved the case beyond any shadow of doubt and at the same time defendants failed to prove their case. The Trial Court has rightly allowed the suit of respondent. Elaborate discussion has been made herein before while deciding concomitant Appeal (CFA no.145/2012) that need not be reiterated here again as it answers all that has been raised in the instant Appeal and on that count the instant Appeal is also liable to be dismissed. 27. In view of above, the instant Appeal is dismissed with connected CM(s). Interim direction, if any, shall stand vacated. 28. Decree sheet be, accordingly, prepared. 29. Trial Court record, if summoned/received in all these Appeals, be sent down along with copy of this judgement.