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2021 DIGILAW 697 (JHR)

Anil Kumar v. State of Jharkhand

2021-09-02

RAJESH SHANKAR

body2021
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition is taken up today through Video Conferencing. 2. The present writ petition has been filed for issuance of direction upon the Executive Engineer, Drinking Water and Sanitation Division, Adityapur, Saraikella-Kharsawan, the respondent no. 2 to make payment of the admitted dues of Rs. 15,34,301.42/- and Rs. 19,22,680.69 and Rs. 20,95,264.07/- (total amounting to Rs. 55,52,246.18/-) for the financial years 2012-13, 2013-14 and 2014-15 respectively in respect of the annual repair and maintenance work carried out by the petitioner under “Ghaghidih Jail Water Supply Scheme.” Further prayer has been made for issuance of direction upon the respondent- authorities to make payment of interest at the rate of 18% per annum with effect from the date when the said total amount of Rs. 55,52,246.18/- had fallen due till the date of its actual payment to the petitioner. 3. The factual background of the case as stated in the present writ petition is that the petitioner is a registered contractor under the Drinking Water and Sanitation Department, Government of Jharkhand and is primarily engaged in the work of repair and maintenance under the “Ghaghidih Jail Water Supply Scheme.” The petitioner had executed the work of annual repair and maintenance of water supply and annual establishment of Sewage Treatment Plant (STP) in Ghaghidih Jail and residential campus for the financial years 2012-13 to 2014-15 under the direction of the respondent nos. 2 and 6, however, till date the payment of the said work has not been released. Pursuant to the representation dated 19th June, 2014 filed by the petitioner, the respondent no. 2 vide order as contained in memo no. 774 dated 11th July, 2014 initiated the process of obtaining administrative sanction as well as allotment of fund for the said work. The respondent no. 6 vide his letter no. 2349 dated 22nd August, 2015 informed the respondent no. 2 that the proposal was sent to the Directorate of Prison, the respondent no. 5 for grant of administrative sanction as well as allotment of fund and further requested to send a detailed report in respect of the expenses incurred for carrying out the work of annual repair and maintenance for financial years 2012-13 to 2014-15. Subsequently, the respondent no. 2 that the proposal was sent to the Directorate of Prison, the respondent no. 5 for grant of administrative sanction as well as allotment of fund and further requested to send a detailed report in respect of the expenses incurred for carrying out the work of annual repair and maintenance for financial years 2012-13 to 2014-15. Subsequently, the respondent no. 2 vide his letter as contained in memo No. 1345 dated 24th August, 2015 forwarded the details of the expenditure which were incurred towards annual repair and maintenance of water supply as also for annual establishment of STP for the financial years 2012-13 to 2014-15. Thereafter, the respondent no. 6 vide his letter dated 25th August, 2015, forwarded the aforesaid details of expenditure sent by the respondent no. 2 to the respondent no. 5 for grant of necessary administrative sanction and release of consequential fund. Finally, the necessary sanction and allotment of fund has been granted by the respondent no. 5 and even consequential fund has been released by the respondent no. 6 for payment of the completed work of said financial years but till date the payment has not been made to the petitioner by the respondent no. 2. The petitioner filed a complaint before the Chief Minister Jan Samvad Centre, Ranchi which was registered as Grievance No. 2018-494 OL/EAS/18-6, wherein the respondent no. 2 filed report admitting that the funds have been made available and the payment would be made in favour of the petitioner within ten days. However, till date the payment has not been made. Hence, the present writ petition. 4. The learned counsel for the petitioner submits that the respondents have admitted that the said work was undertaken in Central Jail, Ghaghidih and residential campus under the Ghagidih Jail Water Supply Scheme of Drinking Water and Sanitation Division, Adityapur for the financial years 2012-13 to 2014-15. The respondents have also admitted that pursuant to the administrative sanction granted by the respondent no. 5, necessary fund amounting to Rs. 55,52,246.18/- has been released by the respondent no. 6 to the respondent no. 2, however, the payment has not been made. It is further submitted that the respondent nos.1 to 4 in their counter affidavit have denied the payment of the due amount on the ground that the respondent no. 5, necessary fund amounting to Rs. 55,52,246.18/- has been released by the respondent no. 6 to the respondent no. 2, however, the payment has not been made. It is further submitted that the respondent nos.1 to 4 in their counter affidavit have denied the payment of the due amount on the ground that the respondent no. 6 had no knowledge of execution of the aforesaid work by the petitioner, however, the said statement has been made with oblique motive. On bare perusal of letters dated 01st April, 2017 and 25th August, 2017 (both written by the respondent no. 6 to the respondent no. 2), it would be evident that the respondent no. 6 was well aware of the fact that the said work was being carried out by the petitioner. In the complaint filed by the petitioner before the ‘Chief Minister Jan Samvad Center, Ranchi’ a report was forwarded by the respondent no. 6 to the Inspector General of Prison vide letter no. 1472 dated 15th April, 2018 in which the respondent no. 6 stated that the said work had been undertaken by the petitioner. It is also submitted that the post facto administrative sanction has been accorded to the said work and even the fund has been released but still no payment has been made to the petitioner. The reason for denial of the claim of admitted dues of the petitioner, as stated by the respondent nos. 1 to 4 and 6 in their respective counter affidavits appears to be frivolous and after thought just in order to somehow dispute the claim of the petitioner. The work pertaining to water supply including repair and maintenance under the Water Supply Scheme in Central Jail, Ghaghidih was the work of emergent nature and as such, the petitioner being a registered contractor with the respondent – Drinking Water and Sanitation Department, was awarded the same on nomination basis. The Jharkhand Public Works Department Code, 2012 (hereinafter to be referred as the ‘Code 2012’) itself speaks that any government work is required to be undertaken only after getting administrative approval and technical sanction, however, in the present case though the petitioner was directed by the respondent no. 2 to perform the work, no administrative approval as well as technical sanction was obtained prior to commencement of the same. 2 to perform the work, no administrative approval as well as technical sanction was obtained prior to commencement of the same. Further, after completion of the work, post facto administrative sanction was obtained on repeated representations of the petitioner. It would be evident from various letters dated 24th August, 2015, 24th December, 2015 and 31st December, 2015 that on repeated occasions, the petitioner was directed by the respondent-authorities for carrying out the said work on emergent basis which was required to be carried out in order to ensure safety of about 1600 inmates of Central Jail, Ghaghidih and it was specifically assured to the petitioner that payment of the carried out work would be released as soon as administrative sanction was granted and allotment of fund was received by the Department. The respondent no. 2 vide his letter as contained in Memo No. 1862 dated 31st December, 2015 even directed the Sub-Divisional Officer, Drinking Water and Sanitation Department, Jugsalai, the respondent no. 3 to ensure that the work which was carried out by the petitioner from the year 2012-13 towards repair and maintenance under the Water Supply Scheme of Ghaghidih Central Jail should continue to be carried out by the petitioner in order to maintain law and order situation in the said Jail. It is further submitted that the respondents have wrongly stated in the counter affidavit that the petitioner was not a registered contractor in the year 2012, rather the petitioner was duly registered with the Drinking Water and Sanitation Department, Jharkhand from 27th May, 2008 to 26th May, 2013. 5. Per contra, the learned counsel for the respondent-State submits that the petitioner has failed to produce any document such as work order or agreement for taking up the work/scheme for the year 2012-13. In fact, he himself informed the department for the first time, vide his letter dated 19th June, 2014 that he had carried out the said work for the financial years 2012-13 to 2014-15, however, he did not mention with respect to any authorization for taking up the work during the said financial years. Thus, it raises doubt regarding execution of work for want of authorization that too when the petitioner was not even a registered contractor in the year 2012. It is further submitted that Code, 2012 stipulates the procedure to be followed for allotting any public work. Thus, it raises doubt regarding execution of work for want of authorization that too when the petitioner was not even a registered contractor in the year 2012. It is further submitted that Code, 2012 stipulates the procedure to be followed for allotting any public work. Paragraph 99(ii) of Chapter-II, Section-A mentions the classification of works of PWD i.e. the works costing above Rs. 25,000/- and up to Rs. 25 lakhs are classified as minor works. Paragraphs 120 to 124 of Chapter-II, Section-D mention the basic rules applicable to all works executed by the Public Works Department which stipulate that there are four main stages in a project, namely, technical approval, administrative approval, technical sanction and the appropriation or re-appropriation of funds. Technical sanction is granted on the basis of detailed proposal of the work. As also, in case of urgency or complexity, technical approval is granted on the basis of preliminary estimates and verification of structural soundness which is accorded by the officers competent to give technical sanction. The matters regarding administrative approval for every work (excluding repairs and petty works) initiated or connected with the requirements of another department, it is necessary to obtain the concurrence of the department concerned to the proposals. Further, for commencement of any work, administrative approval, technical sanction and appropriation of fund are necessary as availability of fund is the basic condition for according sanction. It is also submitted that in the present case the respondent no. 6 vide his letter no. 2349/Jail dated 22nd August, 2015 intimated for the first time that the matter of technical sanction for the financial years 2012-13, 2013-14 and 2014-15 had been forwarded to Directorate of Prison, Government of Jharkhand for administrative approval and allotment of fund. Further, the so called technically sanctioned estimates attached vide memo no. 1345 dated 24th August, 2015 sent from the respondent no. 2 only reflects details of expenditure towards annual R/M for the financial years from 2012-13 to 2014-15. Further paragraph 130(a) of the Code, 2012 stipulates that it is fundamental rule that no work shall be commenced or liability will be incurred in connection with it until administrative approval has been obtained, a properly detailed design and estimate have been technically sanctioned, appropriation of funds has been made and orders for the commencement of the work have been issued by the competent authority. Accordingly, the petitioner was required to seek proper authorization before commencement of the work for the financial years 2012-13, 2013-14 and 2014-15 which he failed to submit. Further paragraph 158(a) under Section H of Chapter-II mentions that tenders must be obtained for all works which are proposed to be given on contract unless the amount of contract is Rs. 250000/- or less or wherever the competent authority specifically directs this to be taken up departmentally or by nomination in case of exigencies. In this case, no record of tender notice or execution of work departmentally or any nomination made by the competent authority is available which itself puts a question mark on the admissibility of the claim and entitlement of the petitioner to receive payment. It is evident from the aforesaid facts that the petitioner has failed to establish his claim for payment of the dues as mentioned in the writ petition which is neither admitted nor appears to be genuine for want of valid documents i.e. proper work order, agreement, measurement book etc. Hence, his claim for payments of dues does not require consideration in the light of the relevant provisions of the Code, 2012. The claimed dues have not duly been admitted by the competent authority in the light of provisions of the Code, 2012. The amount allotted by respondent no. 6 is still lying with the office of respondent no. 2 which would have been released for the work in question if it had started after getting administrative approval as well as valid technical sanction. The letter of the respondent no. 2 as contained in memo no. 1345 dated 24th August, 2015 only specifies the details of estimated expenditure towards the work of annual repair and maintenance for the respective financial years from 2012-13 to 2014-15 but the same does not reflect the actual amount incurred for the work in question. It is further submitted that no work order was even issued to the petitioner for the period in question i.e. 2012-13 to 2014-15 and there was no agreement between the petitioner and the respondent no. 2 for the said work as also there is nothing in the record showing measurement of work purportedly done by petitioner. 6. Heard learned counsel for the parties and perused the materials available on record. 2 for the said work as also there is nothing in the record showing measurement of work purportedly done by petitioner. 6. Heard learned counsel for the parties and perused the materials available on record. The petitioner has sought payment of certain dues in respect of annual repair and maintenance work carried out by him under ‘Ghaghidih Jail Water Supply Scheme’ claiming that the admitted amount has not been released in his favour. The respondents have denied the claim of the petitioner on the ground that no work order was issued for the said work. The respondents have contended that the Code, 2012 mandates for taking administrative and technical approval before commencing any work as also the petitioner has failed to prove the execution of work by providing relevant documents and as such the amount as claimed by him should not be entertained by this court under writ jurisdiction. 7. Before coming to the merit of the petitioner’s claim, I have gone through Clause 130(a) of the Code, 2012 which reads as under:- “130....(a) It follows from the provisions of paragraphs 121-129 that, except in case, where the omission of one or more of the stages therein referred to, is permissible under other rules, it is fundamental rule that no work shall be commenced or liability incurred in connection with it, until, Administrative Approval has been obtained, a properly detailed design and estimate have been Technically sanctioned, appropriation of funds made and orders for the commencement issued by the competent authority. Mere provision in the budget estimate for expenditure on a work conveys no authority for commencement of the work. (b) If on grounds of urgency, an Executive Engineer is required by superior authority to carry out a work or incur a liability which involves an infringement of these fundamental rules the orders of such authority should be conveyed in writing. For ‘Urgent works’ the authority to commence work in anticipation of Administrative Approval shall vest in the Public Works Department and in anticipation of technical sanction to estimate, with the Chief Engineer. On receipt of such written orders of the competent authority, the Executive Engineer may proceed to carry out the necessary work and state approximately the amount of the liability which he is likely to incur. It is the duty of the Executive Engineer, incurring the expenditure to take immediate steps to regularize the execution of the work. On receipt of such written orders of the competent authority, the Executive Engineer may proceed to carry out the necessary work and state approximately the amount of the liability which he is likely to incur. It is the duty of the Executive Engineer, incurring the expenditure to take immediate steps to regularize the execution of the work. The appropriate authority will take such necessary steps to regularize the expenditure. In cases of emergency, such as breach by a flood or a calamity such as earthquake, cyclones, fires and imminent collapse of building and so on, an Engineer not below the rank of the Executive Engineer may, on his own responsibility, proceed to carry out the necessary work subject to the same condition as laid down above for execution of urgent works. Note: In all cases where works are taken up under orders of the superior authority or by the Executive Engineer on his own responsibility in anticipation of administrative approval or on the basis of rough estimates and plans or without detailed estimates and plans, the detailed plans and estimates and complete specifications, should be prepared by the Public Works Department officers and sanctioned by the competent authority within one month from the date of commencement of the work. Administrative approval should also be obtained where necessary within the period specified above.” 8. Thus, no work is to be commenced or liability is to be incurred in connection with it, until, administrative approval is obtained, a properly detailed design and estimate is technically sanctioned, appropriation of funds is made and order for commencement of the work is issued by the competent authority. However, in case of urgency, the work may be commenced in anticipation of administrative approval as well as technical sanction and on receipt of written orders of the competent authority, the steps is to be taken by the Executive Engineer to regularize the execution of the work. 9. On perusal of various letters annexed with the writ petition, it appears that on the petitioner’s application for release of payment, the respondent no. 2 never raised question with regard to the execution of work by him, rather he requested the petitioner to continue the work on the ground of urgency. The petitioner was informed vide Annexure-3, which is a letter written by the respondent no. 2 to the respondent no. 2 never raised question with regard to the execution of work by him, rather he requested the petitioner to continue the work on the ground of urgency. The petitioner was informed vide Annexure-3, which is a letter written by the respondent no. 2 to the respondent no. 6, a copy of which was also forwarded to him, that the details of expenditure for the work done by him for the financial years 2012-13, 2013-14 and 2014-15 was being forwarded to the respondent no. 6 for needful and the process for payment would be undertaken on receiving allotment. In the meantime, the petitioner was directed to continue the work. Further, vide letter no. 3567 dated 24th December, 2015, the respondent no. 6 informed the respondent no. 2 that the payment would be made after receiving allotment of fund. It was further requested by the said respondent to get the work continued. The respondent no. 2 vide letter as contained in memo no. 1862 dated 31st December, 2015 had assured the petitioner that the payment would be made on receiving allotment of fund. 10. On perusal of the contents of all those letters, it would be evident that the respondent no. 2 was well aware of the work done by the petitioner who was informed by different authorities including the respondent no. 2 himself that the payment for the said work would be made after receiving the allotment of fund. None of the authorities denied the execution of the work by the petitioner, they rather requested the petitioner to continue with the work. In fact, for the first time, the respondent no. 2 by filing counter affidavit has raised doubt regarding execution of the work by the petitioner. 11. Various letters of the respondent no. 2 would suggest that the work was taken from the petitioner on the ground of urgency and thereafter required sanction for the same was sought from the competent authority. The specific averment of the respondent no. 2 made in paragraph 6 of the supplementary counter affidavit dated 18th December, 2020 is that the fund for the said work has been sent to him by the respondent no. 6 after being allotted by the respondent no. 5 which is still lying with the office of the respondent no. 2. The specific averment of the respondent no. 2 made in paragraph 6 of the supplementary counter affidavit dated 18th December, 2020 is that the fund for the said work has been sent to him by the respondent no. 6 after being allotted by the respondent no. 5 which is still lying with the office of the respondent no. 2. In view of the aforesaid fact, I am of the view that the petitioner’s claim for payment cannot be denied after getting the work executed by him on the pretext of non-observance of the provisions of the Code, 2012. 12. In view of the discussion made hereinabove, the present writ petition is disposed of with a direction to the respondent no. 2 to release the payment of admitted dues to the petitioner for the work done by him for the financial years 2012-13 to 2014-15 within a period of four weeks from the date of production/receipt of a copy of this order.