IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
WP(C) NO. 19141 OF 2022
PETITIONER:
CONCORD CONSTRUCTION,
HEAD OFFICE AT KALLATRA COMPOUND,
RAILWAY STATION ROAD, KANHANGAD,
KASARGOD DISTRICT PIN- 671 315,
REPRESENTED BY ITS PARTNER,
DR. KALLATRA ABDUL MUNEER
BY ADVS.
ALIAS M.CHERIAN
K.M.RAPHY
AJAI ALIAS CHALAPPURAM
BRISTO S PARIYARAM
RESPONDENTS:
1 KOCHI METRO RAIL LTD. - KMRL
JLN STADIUM METRO STATION, 4TH FLOOR KALOOR,
ERNAKULAM, PIN - 682017
REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE GENERAL MANAGER (PROJECTS),
KOCHI METRO RAIL LIMITED,
JLN STADIUM METRO STATION, 4TH FLOOR KALOOR,
ERNAKULAM, PIN - 682017
BY ADVS.
SC FOR KMRL: JAJU BABU (SR)
M.U. VIJAYALAKSHMI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19141 OF 2022
2
JUDGMENT
Dated this the 14th day of June, 2022 The petitioner was awarded certain works by the first respondent Kochi Metro Rail Limited (KMRL). The works were awarded under Ext.P1 dated 12.04.2021. According to the petitioner, due to adverse climatic conditions and other factors, including the second phase of COVID-19 pandemic and resultant lockdown, the work did not progress as expected. This resulted in the petitioner being issued with Ext.P5 notice dated 04.05.2022, granting the petitioner 14 days time to offer explanation for the lack of progress, failing which the contract will stand automatically terminated. The petitioner submitted Ext.P7 explanation, pointing out various reasons for not completing the work as per schedule. As the explanation was not satisfactory, the petitioner was issued with Ext.P8, informing that the termination had come into effect on expiry of 14 days from the date of issuance of Ext.P5 and that in furtherance of the termination, KMRL intends to WP(C) NO. 19141 OF 2022 3 conduct inspection of the site and prepare an inventory of the works completed and pending. This writ petition is filed challenging Ext.P8, primarily on the ground that the petitioner was not afforded an opportunity of hearing before passing the order.
2. Learned Counsel for the petitioner submitted that, had the petitioner been given an opportunity of hearing, he would have been able to convince the officials of the respondents that, the delay in completion of the work was for reasons beyond the petitioner's control. It is further contended that, having granted 14 days time under Ext.P5 and the petitioner having availed such opportunity by submitting a detailed explanation, it was only appropriate for the respondents to have considered the explanation and heard the petitioner before passing Ext.P8.
3. Learned Senior Counsel appearing for the respondents submitted that the respondents were compelled to terminate the contract, on finding that WP(C) NO. 19141 OF 2022 4 not even 5% of the work had been completed as per schedule. Moreover, in spite of being granted opportunity by extending the contract period, the recalcitrance on the petitioner's part continued. As further delay in completing the work would cause substantial prejudice not only to the respondents but to the public at large, the contract had to be terminated. Hence the proceedings under Exts.P5 and P8.
4. Having heard the learned Counsel on either side, I find merit in the contention that, having been issued with Ext.P5 granting 14 days time for offering explanation and the petitioner having offered Ext.P7 explanation, it is only proper for the respondents to afford an opportunity of hearing to the petitioner before taking the final decision. In that view of the matter, Ext.P8 order is directed to be treated as a show cause notice and the petitioner afforded an opportunity of hearing before proceeding further.
In the result, the writ petition is disposed of, WP(C) NO. 19141 OF 2022 5 directing the respondents to consider Ext.P8 as a show cause notice and afford an opportunity of hearing to the petitioner before taking further proceedings based on Ext.P8. For that purpose, the petitioner shall be issued with a notice, specifying the date and time on which authorised representative of the petitioner should appear for hearing. On such appearance, competent officer of the respondents shall hear the petitioner's version. Once such opportunity is given, appropriate orders can be passed within two weeks.
Sd/-
V.G.ARUN JUDGE NB/14-6 WP(C) NO. 19141 OF 2022 6 APPENDIX OF WP(C) 19141/2022 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF LETTER OF AWARD NO.
KMRL/PROCUREMENT/LOA/2021-22/02 DATED 12/04/2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF NOTICE TO PROCEED NO.
KMRL/PRJ/GMP/KNCO2/449/2020/1187 DATED 28/04/2021 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF LETTER NO. KMRL/PRJ/GMP/ 449/2020/ KNCO2/1756 DATED 09.03.2022 ISSUED THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF LETTER NO CC/KMRL/BD/150/1273/ 2022 DATED 12.03.2022 ISSUED BY THE PETITIONER EXHIBIT P5 TRUE COPY OF NOTICE OF TERMINATION OF CONTRACT NO. KMRL/PRJ/GMP/449/2020/ KNC02/1862 DATED 04/05/2022 ISSUED BY THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF THE CONTRACT NO:
KMRL/PRJ/GMP/449/2020/KNC02- TENDER DOCUMENTS, VOLUME 2 OF GENERAL CONDITIONS OF CONTRACT OF KOCHI METRO RAIL LIMITED EXHIBIT P7 TRUE COPY OF REPLY NO CC/KMRL/BD/150/1331/ 2022 DATED 13/05/2022 GIVEN BY THE PETITIONER EXHIBIT P8 TRUE COPY OF ORDER OF TERMINATION BEARING NO KMRL/PRJ/GMP/449/2020/KNC02/1899 DATED 04/06/2022 ISSUED BY THE 2ND RESPONDENT RESPONDENTS EXHIBITS: NIL TRUE COPY P.A. TO JUDGE