Jabir Usman C.K vs State Of Kerala
2021 Latest Caselaw 2949 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                       WP(C).No.1388 OF 2021(W)


PETITIONER:

               JABIR USMAN C.K
               CHALATHIL KALLADITHODI HOUSE, MELMURI P.O,MALAPPURAM
               DISTRICT.

               BY ADVS.
               SRI.JOMY GEORGE
               SRI.R.PADMARAJ
               SRI.M.J.BENNY
               SRI.DEEPAK MOHAN
               SMT. CHITRA N. DAS
               SHRI.RISHAB S.

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695 001

      2        THE SECRETARY,
               PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695 001

      3        THE SUPERINTENDING ENGINEER,
               PWD ROADS NORTH CIRCLE, PWD COMPLEX, MANANCHIRA,
               KOZHIKODE-673 001

      4        THE EXECUTIVE ENGINEER,
               PWD ROADS DIVISION, MANJERI, MALAPPURAM DISTRICT-676
               121



               ADV.SMT.VINITHA.B, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1388 OF 2021(W)

                                   2



                           JUDGMENT

Dated this the 27th day of January 2021

The petitioner is awarded the work of "Urgent

Surface Rectification and BC Overlay in between km

11/380 to 16/090 in Parappanagadi-Areekode road (SH

65) in Vengara LAC" as per Ext.P1 selection notice

dated 21.12.2020. The petitioner was asked to furnish

performance guarantee of Rs.8,63,700/-, out of which

50% should be by way of treasury savings deposit. The

petitioner submits that the bill covered by Ext.P2 for

a sum of Rs.21,94,207/- is due to the petitioner.

2. As per Ext.P5 G.O.(Rt)No. 3834/2020/Fin dated

23.06.2020 Government has ordered that the amount

under audited and passed bills of contractors would be

accepted as Performance Guarantee/Additional

Performance Guarantee for new contracts. The

petitioner had therefore submitted Ext.P3 application,

requesting the Superintending Engineer to adjust the

the amount towards performance guarantee from the

aforesaid bill covered by Ext.P2. The Superintending WP(C).No.1388 OF 2021(W)

Engineer/3rd respondent had informed that the

petitioner has to submit Indemnity Certificate issued

online in EMLI application and to execute the

agreement after furnishing the necessary documents.

This Writ petition is filed at this stage, pointing

out that EMLI software has not so far been modified in

tune with Ext.P5 order.

3. Heard the learned Counsel for the petitioner

as well as the learned Government Pleader. Learned

Government Pleader also submitted that no modification

is effected to EMLI software so far.

4. Ext.P5 Government order has been issued as

early as on 23.06.2020. As per sub clause (v) of

Clause 3 of Ext.P5 order, work bill amount will be

accepted as Guarantee for new works being awarded,

only on the basis of indemnity certificate issued

online in EMLI application. Clause 4 provides for

effecting necessary modifications in EMLI to

facilitate the new system. The facility for

adjustment of the bills have been ordered by

Government for the benefit of the contractors on their

request. When such a facility is ordered, Government WP(C).No.1388 OF 2021(W)

has also to see that suitable modifications are

effected in the software so as to enable the

contractors to enjoy the benefit of the order. The

petitioner cannot therefore be denied the benefit of

the order. This Court has in several cases directed

the respondents to carry out the adjustment manually.

5. Therefore there shall be a direction to the

3rd respondent to re-consider the request of the

petitioner and to adjust the admissible amount, if

any, under the pending bill covered by Ext.P2 towards

performance guarantee in accordance with Ext.P5

Government Order manually, i.e., without insisting for

indemnity certificate through EMLI. This shall be

done within a period of 'three weeks' from the date of

receipt of a copy of the judgment. Petitioner shall

also be granted time for execution of agreement by a

further period of 'two weeks'.

The Writ Petition is accordingly disposed of.

Sd/-

P.V.ASHA JUDGE DM WP(C).No.1388 OF 2021(W)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.

DC07/2020/1514 DATED 21.12.2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE BILL DATED 17.11.2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 01.01.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 11.01.2021 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER G.O(RT) NO. 3834/2020/FIN. DATED 23.06.2020.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 09.11.2020 OF THIS HON'BLE COURT IN W.P.C NO.

22048/2020.

RESPONDENTS EXIBITS : NIL

//TRUE COPY//

PA TO JUDGE