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Manipur High Court · body

2022 DIGILAW 164 (MAN)

Gaikhonlung Panmei v. Union of India

2022-08-17

AHANTHEM BIMOL SINGH

body2022
JUDGMENT 1. Heard Mrs. L. Ayangleima, learned counsel appearing for the petitioner, Mr. W. Darakishwor, learned senior panel counsel appearing for the respondent No. 1 and Mr. D. Julius Riamei, learned counsel appearing for the respondents No. 2 & 3. The present writ petition had been filed with a prayer for quashing and setting aside the show-cause notices dated 04.09.2019 and 12.09.2019 as well as the notice on final action under clause 3 of the agreement dated 30.09.2019 thereby determining the contract earlier awarded to the petitioner. 2. The case of the petitioner is that the Assistant Joint Manager (Civil Engineering) of the Food Corporation of India (FCI), Regional Office, Manipur, issued an E-tender notice dated 12.03.2018 inviting online percentage rate tender under two bids system from the eligible contractors for executing two works, viz., (i) providing tube well and safe drinking water facility at FSD Ukhrul, Manipur and (ii) repairing of office building and AR & MO works at SD Ukhrul, Manipur. The petitioner being a registered special class work contractor and being an eligible bidder participated in the tender process by submitting his bids in respect of the contract work for providing tube well and safe drinking water facility at SD Ukhrul, Manipur. As the bid submitted by the petitioner was found to be the lowest, the respondent No. 3 issued a work order dated 18.05.2018 in favour of the petitioner and in the said work order, it is stipulated that the time allowed for carrying out the work shall be two months from the 15th day after issue of the said work order. 3. On the date of issuance of the work order dated 18.05.2018, the petitioner entered into a formal agreement with the respondent No. 3 to the effect that the petitioner shall complete execution of the contract work within the period prescribed/stipulated in the work order and to maintain the same at the cost of the petitioner for a period of six months. It is the case of the petitioner that after executing the formal agreement, he visited the work site and started executing the work under the supervision of the respondent No. 3, however, due to law and order problem on the road from Imphal to Ukhrul and as the hiring charges of heavy drilling machineries for drilling tube well were very high, the petitioner could not hire the said machineries as such, the petitioner executed the contract work by drilling the tube well manually by engaging expert and skilled workers. It is the case of the petitioner that he informed the respondent No. 3 about his inability to hire heavy drilling machineries and about the arrangement of skilled workers by submitting a letter dated 25.95.2018 and continued executing the contract work with the aim to complete it within the stipulated period. In response to the aforesaid letter of the petitioner dated 25.05.2018, the respondent No. 3 wrote a letter dated 09.07.2018, thereby informing the petitioner that the contract work had been awarded to him at his own independently quoted rate and hence, no claims for high hiring charges of heavy drilling machineries will be entertained by the office at that stage and directing the petitioner to execute work strictly as per schedule of the work. 4. As the petitioner could not complete the execution of the contract work in times, he submitted an application dated 20.07.2018 to the respondent No. 3 for extending the time of completion of the work w.e.f. 20.07.2018 till 30.09.2018 and according to the petitioner, the respondent No. 3 allowed the request of the petitioner and the petitioner completed executing the whole work within the extended period. 5. It is the case of the petitioner that after about 11 months from the date of completion of the contract work, the petitioner received two show-cause notices dated 04.09.2019 and 12.09.2019 from the respondent No. 3 thereby informing the petitioner to show-cause within 7 days as to why action under clause 3(a) and/ or 3(b) of the terms and agreement of the contract shall not be taken against him for breach of the terms and condition of the contract by the petitioner. In the said show-cause notices, the petitioner was further informed that if he failed to submit any show-cause within the stipulated period, action will be taken up against him as contemplated under clause 3 of the terms and agreement of the contract without further notice. According to the petitioner, he could not submit any reply to the said show-cause notices due to his illness and later on, he came to know that the respondents have taken final action against him under clause 3(a) and (b) of the terms and conditions of the contract by issuing a final action notice dated 30.09.2019, thereby determining the contract and forfeiting the Earnest Money, Security deposit and Performance Guarantee submitted by the petitioner. In the said notice for final action dated 30.09.2019, the petitioner was informed that the remaining unexecuted work will be taken out from him and gave it to another contractor to complete the work and that he shall have no claim to compensation for any loss sustained by him and the petitioner was also informed that the work executed by him will be measured up on 10.10.2019 and asking the petitioner to attend for a joint measurement, failing which, the work executed by the petitioner will be measured unilaterally by the respondents in his absence and that the result of the measurement will be final and binding on the petitioner. Having been aggrieved, the petitioner approached this Court by filing the present writ petition for redressing his grievances. 6. Mrs. Having been aggrieved, the petitioner approached this Court by filing the present writ petition for redressing his grievances. 6. Mrs. L. Ayangleima, learned counsel appearing for the petitioner draw the attention of this Court to the terms and conditions of the contract under clause 3(i), (ii), (iii) (a) & (b) of the tender documents which are as under:- 'Clause-3 When Contract can be Determined Subject to other provision contained in this clause, the Engineer-in-Charge may, without prejudice to any other rights or remedy against the contractor in respect of any delay inferior workmanship, any claims for damages and/or any other provisions of this contract or otherwise, and whether the date of completion has or has not elapsed, by Notice in writing absolutely determine the contract in any of the following cases: '(i) If the contractor having been given by the Engineer-in-Charge a Notice in writing rectify, reconstruct or replace any defective work or that the work is being performed in an inefficient or otherwise improper or un-workmanlike manner shall omit to comply with the requirement of such Notice for a period of seven days thereafter. '(ii) If the contractor has, without reasonable cause, suspended the progress of the work or has failed to proceed with the work due diligence so that in the opinion of the Engineer-in-Charge (which shall be final and binding) he will be unable to secure completion of the work by the date for completion and continues to do so after a Notice in writing of seven days from the Engineer-in-Charge. '(iii) If the contractor fails to complete the work within the stipulated date or items of work with individual date of completion, if any stipulated, on or before such date(s) of completion and does not complete them within the period specified in a Notice given in writing in that behalf by the Engineer-in-Charge. '(a) To determine or rescind the contract as aforesaid (of which Termination or Rescission Notice in writing to the Contractor under the hand of the Engineer-in-Charge shall be Conclusive evidence). Upon such determination or rescission, the Earnest Money Deposit, Security Deposit already recovered and Performance Guarantee under the Contract shall be liable to be forfeited and shall be absolutely at the disposal of the FCI. Upon such determination or rescission, the Earnest Money Deposit, Security Deposit already recovered and Performance Guarantee under the Contract shall be liable to be forfeited and shall be absolutely at the disposal of the FCI. '(b) After giving Notice to the contractor to measure up the work of the contractor and to take such whole, or the balance or part thereof, as shall be un-executed out of his hands and to give it to another contractor to complete the work, the contractor, whose contract is determined or rescinded as above, shall not be allowed to participate in the Tendering process for the balance work. In the event of above courses being adopted by the Engineer-in-Charge, the contractor shall have no claim to compensation for any loss sustained by him by reasons of his having purchased or procured any materials or entered into any engagements or made any advances on account or with a view to the execution of the work or the performance of the contract. In case action is taken under any of the provision aforesaid, the contractor shall not be entitled to recover or be paid any sum for any work thereof or actually performed under this contract unless and until the Engineer-in-Charge has certified in writing the performance of such work and the value payable in respect thereof and he shall only be entitled to be paid the value so certified.' 7. Mrs. L. Ayangleima, learned counsel appearing for the petitioner submitted that the respondents issued the impugned show-cause notices dated 04.09.2019 and 12.09.2019 under clause 3(ii) & (iii) of the terms and conditions of the contract and final action had been taken against the petitioner under clause 3(a) and (b) of the terms and conditions of the contract erroneously and illegally, inasmuch as, such provisions are relevant only when the contractor is unable to secure completion of the work or fails to complete the work within the stipulated period and that such notice can be given either before expiry of the stipulated period for execution of the work or when the contractor fails to execute the work within the stipulated time. The learned counsel submitted that in the present case, as the petitioner had completed execution of the work on 30.09.2018, the respondents could not have issued the impugned show-cause notices and took final action against the petitioner after about 11 months from the date of completion of the contract work. The learned counsel accordingly submitted that the respondent No. 3 issued the impugned show-cause notices and took final action against the petitioner arbitrarily and illegally and accordingly, such action are not sustainable in the eyes of law and the same are liable to be quashed and set aside. 8. The learned counsel for the petitioner further submitted that in the report submitted by a committee after inspection of the work executed by the petitioner, it has been clearly opined that the petitioner has not done the work as per the specification, meaning thereby that the petitioner had executed the contract work, however, not in accordance with the specification. According to the learned counsel for the petitioner, in such a situation, the respondent No. 3 ought to have issued the show-cause notices under clause 3(i) of the terms and conditions of the contract if at all respondents are not satisfied with the work executed by the petitioner and not under clause 3(ii) & (iii) of the terms and conditions of the contract work as had been done arbitrarily and illegally by the respondent No. 3 in the present case. The learned counsel accordingly submitted that the impugned show-cause notices and the impugned notice of final action taken against the petitioner are liable to be quashed and set aside. 9. Mr. D. Julius Riamei, learned counsel appearing for the respondents No. 2 & 3 submitted that the contract work for providing tube well and safe drinking water facility at FSD Ukhrul was to be executed within two months from the 15th day of issuing the work order dated 18.05.2018. As the petitioner was unable to execute the contract work within the stipulated period of two months, he requested for extension of the period for completion of the contract work till 30.09.2018 by submitting an application dated 20.07.2018 to the respondent No. 3. 10. When the petitioner failed to execute the contract work within the stipulated period, a committee consisting of three officials of the FCI carried out an inspection of the contract work on 27.08.2019 and submitted a report dated 28.08.2019. 10. When the petitioner failed to execute the contract work within the stipulated period, a committee consisting of three officials of the FCI carried out an inspection of the contract work on 27.08.2019 and submitted a report dated 28.08.2019. In the said report, it is clearly stated that upon inspection, it was found that the petitioner had connected two P.V.C. Pipes from the newly drilled Borewell to the existing old tube well and put the submersible pump into the old tube-well and that one of the P.V.C. Pipes is directly connected to the outlet of submersible pump and other was used for carrying electrical connection to the submersible pump. In the said report, it is also stated that the item of boring of the tube well considered in the tender was machine boring but the contractor had done manual boring and provided 75 mm diameter G.I. Pipes and that the depth of the boring was unknown and water was not pump out from the new tube well but it was connected to the old tube well with P.V.C Pipes and water was drawn out from the old tube-well through the submersible pump connected in the old tube-well and accordingly, the committee was of the opinion that the petitioner did not execute the work as per the specification. Thereafter, the committee recommended that appropriate action may be taken by the competent authorities as per the terms and conditions of the contract. 11. It has been submitted by the learned counsel for the respondents No. 2 & 3 that on a bare perusal of the said committee report dated 28.08.2019, it is crystal clear that the petitioner failed to execute the contract work, inasmuch as, the new tube well was not complete and unworkable as no water was pump out from it. As the petitioner failed to execute the contract work, the impugned show-cause notices were issued and when the petitioner failed to submit any reply thereto, the respondents have issued the notice of final action dated 30.09.2019 thereby determining the contract. The learned counsel accordingly submitted that no illegality or irregularity had been committed by the respondent No. 3 while issuing the impugned show-cause notices and the impugned notice of final action. 12. Mr. The learned counsel accordingly submitted that no illegality or irregularity had been committed by the respondent No. 3 while issuing the impugned show-cause notices and the impugned notice of final action. 12. Mr. D. Julius Riamei, learned counsel further submitted that the petitioner has neither intimated nor submitted any letters to the respondent No. 3 regarding completion of the contract work till date and the petitioner has not raised any claim for payment of the bills for the work being executed by him. Moreover, after the respondent No 3 have taken the final action on 30.09.2019, the petitioner submitted a letter dated 03.10.2019 to the respondent No. 3 stating, inter-alia, that the matter regarding non-execution of the contract work had been discussed with the respondent No. 3 and that the petitioner had already proposed to cancel the said contract work as the same was non-executable and for calling a fresh tender. In the said letter, the petitioner also stated that he had not claimed and will not claim any bill/payment for the work executed by him. The learned counsel submitted that in view of such conduct of the petitioner, it is crystal clear that the petitioner had himself admitted that he did not complete the execution of the contract work and accordingly, there is no ground or reason for interfering with the impugned show-cause notices and impugned action taken by the respondent No. 3 and the present writ petition is liable to be dismissed as being devoid of merit. 13. I have heard the learned counsel appearing for the parties at length and have also carefully examined the materials available on record. 13. I have heard the learned counsel appearing for the parties at length and have also carefully examined the materials available on record. On careful examination of the aforesaid committee report dated 28.08.2019 and letter of the petitioner dated 03.10.2019, addressed to the respondent No. 3 and also taking into consideration the undisputed fact that the petitioner has neither submitted any work completion report nor raised any claim for payment of bills for the work executed by him till date, there is no doubt that the petitioner did not execute the contract work completely and as such, this Court is of the considered view that there is no substance or merit in the contention raised by the counsel for the petitioner and that the respondent No. 3 did not commit any illegality or irregularity in issuing the impugned show-cause notices and the final action taken by him against the petitioner under clause 3(ii) & (iii) read with clause 3(a) & (b) of the terms and conditions of the contract. In the result, the present writ petition fails and accordingly, the same is dismissed as being devoid of merit. In view of the facts and circumstances of the present case, there will be no order as to costs.