Divya Krishnan vs Kerala State Electricity Board ...
2021 Latest Caselaw 694 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

  FRIDAY, THE 08TH DAY OF JANUARY 2021/18TH POUSHA, 1942

                   WP(C).No.13491 OF 2018(J)


PETITIONER:

              DIVYA KRISHNAN, AGED 38 YEARS,
              W/O.BABU, MATTATHIL KAROTT HOUSE,
              VADAKODE P.O., KANGARAPADY,
              ERNAKULAM DISTRICT.

              BY ADVS.
              SRI.C.R.SANISH
              SRI.KARTHIK S. ACHARYA

RESPONDENTS:

     1        KERALA STATE ELECTRICITY BOARD LTD.,
              VYDYUTHI BHAVAN, THIRUVANANTHAPURAM,
              PATTOM - 695 004,REPRESENTED BY ITS
              CHAIRMAN AND MANAGING DIRECTOR.

     2        THE CHAIRMAN AND MANAGING DIRECTOR,
              KSEB LTD., VYDYUTHI BHAVAN,
              THIRUVANANTHAPURAM, PATTOM - 695 004.

     3        THE EXECUTIVE ENGINEER,
              KSEB ALUVA DIVISION,
              ERNAKULAM DISTRICT- 683 102.

     4        THE ASSISTANT EXECUTIVE ENGINEER,
              KSEB KALAMASSERY SUB DIVISION,
              ERNAKULAM DISTRICT.

     5        THE ASSISTANT ENGINEER,
              KSEB KALAMASSERY SECTION,
              ERNAKULAM DISTRICT.
 WP(C) No.13491/2018
                             :2 :


       6      REMESH BABU,HARITHA HOUSE
              (THEKKUMTHALA VEEDU),KADEPALLY ROAD,
              KADUNGALLOOR, U C COLLEGE P.O., ALUVA,
              ERNAKULAM,PIN- 683 102, FORMER ASSISTANT
              EXECUTIVE ENGINEER,KSEB KALAMASSERY
              SUB DIVISION, ERNAKULAM DISTRICT.

              R1-R5 BY SRI.SUDHEER GANESH KUMAR R., SC,
              KERALA STATE ELECTRICITY BOARD LIMITED

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-01-2021 THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.13491/2018
                                      :3 :



                            N. NAGARESH, J.

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                       W.P.(C) No.13491 of 2018

           `````````````````````````````````````````````````````````````
                Dated this the 8th day of January, 2021

                             JUDGMENT

~~~~~~~~~

The petitioner, who is a petty contractor in KSEB,

has approached this Court seeking to direct the 1 st respondent-

KSEB to enquire into Ext.P6 complaint submitted by the

petitioner and sanction the petitioner's work bills along with

interest from 20.12.2017 and take necessary action against the

3rd and 6th respondents in accordance with law.

2. The petitioner states that she is a petty labour

contractor of KSEB. She submitted two tenders and two

quotations for Distribution Transformer Meter Reading Box

setting (DTR Fitting) and Street Light OH line constructing

(Street Light) works in Aluva Electrical Division of Kalamassery

Section. Works were allotted to the petitioner and she

deposited 5% of total value of the work and 2.5% of EMD in the

concerned KSEB Section Office. When the work was allotted WP(C) No.13491/2018

to the petitioner, the petitioner deposited remaining 2.5% of

total value of the tender work also. Agreement was entered

between the petitioner and the 6th respondent with regard to

the quotation works and with the 5 th respondent with regard to

tender works.

3. The petitioner states that she raised the bills for the

following completed works:-

(1) M-book No.43/17-18 (DTR fitting), PC Bill No.77/17-18, for an amount of `1,70,940/-

(2) M Book No.181/15-16 (Street Light), PC Bill No.81/17-18 for an amount of `1,52,080/-

(3) M Book No.259/16-17 (DTR Fitting), PC Bill No.76/17-18 for an amount of `99,900/-

(4) M Book No.76/12-13 (DTR Fitting), PC Bill No.83/17-18 for an amount of `99,900/-

Under the aforesaid bills, the petitioner is entitled to

`5,22,820/-, in total. Though the petitioner submitted several

representations and reminders, the respondents did not

sanction the bills of the petitioner. The petitioner submitted

Ext.P1 representation before the 3 rd respondent on

06.03.2018. By Ext.P2 letter of the 3 rd respondent, the WP(C) No.13491/2018

petitioner was informed that her PC Bill Nos.77/17-18 and

81/17-18 are under audit and the petitioner will be paid once

audit is completed. As regards Bills 76/17-18 and 83/17-18,

the petitioner was informed that bills can be submitted to the

office of the Executive Engineer if documents relating to the

work are clear.

4. The petitioner thereupon filed Ext.P3 complaint

dated 12.03.2018 to the 2nd respondent. To Ext.P2, the

petitioner sent Ext.P4 reply dated 26.03.2018 to the 3 rd

respondent. By Ext.P5(a) of the 3 rd respondent, the petitioner

was informed that the Sub Division Officers have pointed out

certain shortcomings and action will be taken once the

shortcomings are made good. On the same day, Ext.P5(b)

letter was also issued to the petitioner alleging that the

petitioner has done certain works without proper work order or

agreement and that the petitioner has to submit work

orders/agreements for inspection. It was further alleged that

the petitioner is not a contractor registered in the Sub Division.

Carrying out work without work order, agreement and permit, WP(C) No.13491/2018

is a serious offence. The petitioner was required not to repeat

such offence.

5. On receipt of Ext.P5(b), the petitioner again

preferred Ext.P6 complaint before the 2 nd respondent. In

Ext.P6, the petitioner explained the facts in detail and stated

that the petitioner is unnecessarily being harassed. However,

the 2nd respondent did not act on Ext.P6 complaint and the

petitioner is left without a remedy than to approach this Court

for payment of money for the work executed by her.

6. This writ petition was filed on 12.04.2018, serving a

copy of the writ petition on the Standing Counsel for the

respondents. On 13.04.2018, the Standing Counsel took

notice of the writ petition. On 04.06.2018, the writ petition was

admitted and the Standing Counsel sought time for filing

counter affidavit. On 26.07.2018, when this writ petition came

up for hearing, this Court ordered that the Standing Counsel for

KSEB shall place on record the counter affidavit. On

09.10.2018, this Court again directed that the counter affidavit

be filed within 10 days. The writ petition was posted again for WP(C) No.13491/2018

hearing on 25.10.2018, 01.11.2018, 22.11.2018, 28.11.2018,

12.12.2018, 14.12.2018 and 08.01.2019. On 08.01.2019, this

Court again directed the respondents to place a counter

affidavit on record. However, no counter affidavit was filed.

The case was again posted for hearing on 21.01.2019,

22.01.2019 and 07.02.2019. However, counter affidavit was

not filed. This Court noted the said fact on 11.02.2019 and

posted the case to 21.2.2019. On 21.02.2019, the

respondents sought one more week time to file counter

affidavit, which was granted by this Court. The case was

posted for hearing on subsequent days also. On 02.03.2020

and 12.03.2020, the Standing Counsel again sought further

time to file counter affidavit. On 12.03.2020, time was granted

as a last chance. Yet no counter affidavit was filed. The writ

petition came up on 30.09.2020 on which date this Court

granted further time of four weeks making it clear that if counter

affidavit is not filed within four weeks, the defence of

respondents 1 to 5 will stand struck off. Yet the respondents

have not filed counter affidavit. In the circumstances, this WP(C) No.13491/2018

Court is forced to consider the claim of the petitioner on the

basis of available pleadings on record.

7. The works executed by the petitioner are four in

number, as stated in paragraph 3 above. The fact that bills

were submitted by the petitioner is discernible from

communication of respondents exhibited in the writ petitions.

The fact that works are completed is not seen disputed therein.

The petitioner submitted Ext.P1 representation to the 3 rd

respondent on 06.03.2018.

8. In Ext.P3, the petitioner has specifically stated that

all the aforesaid bills were verified by the Section Assistant

Engineer after measurement and were forwarded to the Sub

Division Office in December, 2017. When the Assistant

Executive Engineer, Sub Division delayed check

measurement in respect of the bills, the petitioner approached

the Assistant Executive Engineer and reminded of the bills.

On 05.03.2018, when records were verified by the petitioner, it

was seen noted in the records that the bills were forwarded

from the Sub Division to the Division. In the records, it was WP(C) No.13491/2018

noted that M Book No.76/17-18 was not received in the

Division Office and as regards M Book No.259/16-17, book

was received but the copies of the bills were not received by

the Division Office. The petitioner further pointed out that in the

records maintained in the Sub Division, it was specifically

noted in the M Book movement register that bills were

forwarded to the Division Office. The petitioner pointed out that

the non-conduct of check measurement and alleged non-

receipt of M Books and bills are mysterious and intended to

harass the petitioner.

9. The petitioner was thereafter issued with Ext.P5(a)

letter dated 04.04.2018 wherein it was stated that the petitioner

can make good the deficiencies in respect of the bill relating to

M Book 43/17-18. On the same day the very same Executive

Engineer issued Ext.P5(b) letter, stating that no work order or

agreement exists in respect of the three other works. In

Ext.P5(b), it has been alleged for the first time that the

petitioner is not a registered contractor of the Sub Division.

The petitioner was required to produce work orders or WP(C) No.13491/2018

agreements in respect of the three works, in order to pass the

bills.

10. The petitioner thereupon submitted Ext.P6 complaint

again to the 2nd respondent. The petitioner pointed out that the

Section Assistant Engineer concerned had taken the

measurements in respect of the four works and prepared the

bills which were forwarded to the Assistant Executive Engineer,

Kalamassery. The Assistant Executive Engineer, Kalamassery

is adopting a vindictive measure against the petitioner.

11. Going through the pleadings and materials

available in the case, this Court is inclined to find that the

petitioner has executed the four works. In Ext.P2, the

Executive Engineer has stated that two of the bills are

undergoing audit and after the audit, payment will be made to

the petitioner. In respect of two other works, the Executive

Engineer stated that there are no work orders in respect of

those works. But subsequently the Executive Engineer in

Ext.P5 letter took a stand that the petitioner is not a registered WP(C) No.13491/2018

contractor and that the execution of work by an unregistered

contractor is an offence.

12. Ext.P8 work order issued by the respondents would

show that the petitioner has been given petty work in the year

2017 also. Ext.P9 agreement executed between the

respondents and the petitioner would also show that the

respondents had contract arrangements with the petitioner

earlier. Ext.P10 document would show that the petitioner was

a contractor in respect of work relating to installation of

Transformer DTR metre 77. Therefore, the allegation

subsequently raised by the respondents that the petitioner is

not a registered contractor, cannot be accepted.

13. As stated earlier, the respondents have not

disputed submission of the bills by the petitioner. The

respondents also do not dispute the fact that initial

measurements were taken by KSEB officials and bills were

submitted in respect of the work executed. The petitioner had

submitted supporting bills in respect of her claim. Denial of

payment to the petitioner on the grounds that the petitioner is WP(C) No.13491/2018

not a registered contractor, that the petitioner has not

submitted supporting bills and that work orders were not issued

to the petitioner, can only be treated as attempt of the officers

of the 1st respondent to harass the petitioner and deny the bill

amounts payable to the petitioner. The petitioner had promptly

brought to the notice of the higher officials, the vindictive

attitude of the Assistant Executive Engineer against the

petitioner. However, no enquiry was made in this regard.

Therefore, in the conspectus of the facts of the case, it is

evident that the petitioner has been denied amounts legally

due to her, illegally and arbitrarily.

In the facts and circumstances of the case, the writ

petition is allowed. The competent among the respondents is

directed to make final payment on the bills claimed by the

petitioner within a period of six weeks.

Sd/-

N. NAGARESH, JUDGE

aks/04.01.2021 WP(C) No.13491/2018

APPENDIX PETITIONER'S EXHIBITS:

EXT P1 TRUE COPY OF THE REPRESENTATION DATED 6/3/18 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXT P2 TRUE COPY OF THE REPLY DATED 21/03/18 BEARING NUMBER GB/COMPLAINT/2017-18 ISSUED BY THE 3RD RESPONDENT.

EXT P3 TRUE COPY OF THE COMPLAINT DATED 12/03/18 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXT P4 TRUE COPY OF THE REPLY DATED 26/03/18 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXT P5(a)&P5(b) TRUE COPIES OF LETTERS DATED 04/04/18 BEARING NUMBERS GB/COMPLAINT/2018-19/7 AND GB/COMPLAINT/2018-19/20 ISSUED BY THE 3RD RESPONDENT.

EXT P6 THE TRUE COPY OF THE COMPLAINT DATED 07/04/18 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXT P7(a)&P7(b) TRUE COPIES OF RECEIPTS ISSUED FROM THE KSEB SECTION OFFICE KALAMASSERY TO THE PETITIONER DATED 09/10/17 AND 11/10/17 SHOWING THE EMD AND SECURITY DEPOSIT TO DONE THE PETTY CONTRACT WORK.

EXT P8 TRUE COPY OF THE MANUAL WORK ORDER ISSUED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY BEARING WORK ORDER NO.DB/WO/83/2016-17 DT.27/02/2017 TO THE PETITIONER.

WP(C) No.13491/2018

EXT P9 THE TRUE COPY OF THE AGREEMENT DATED 28/02/2017 ENTERED BETWEEN THE ASSISTANT ENGINEER, ELECTRICAL SECTION KALAMASSERY EXT P10 THE TRUE COPY OF THE PETTY CONTRACT BILL NO.77/17-18 FOR AN AMOUNT OF RS.1,62,393/- PREPARED AND SIGNED BY THE ASSISTANT ENGINEER, ELECTRICLA SECTION, KALAMASSERY AND THE PETITIONER.

EXT P11               TRUE   COPY   OF   THE    SCM    SARAS   WO
                      NO.WO/5573/2017-18/25         DT.07/11/2017
                      ISSUED    BY  THE   ASSISTANT     ENGINEER,

ELECTRICAL SECTION KALAMASSERY TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

EXT P12               THE TRUE COPY OF THE WORK ORDER ISSUED BY
                      THE   ASSISTANT    ENGINEER,   ELECTRICAL

SECTION KALAMASSERY BEARING WORK ORDER NO.WO/5573/2017-18/25 DT. 07/11/2017 TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

EXT P13               THE TRUE COPY OF THE WORK ORDER ISSUED BY
                      THE   ASSISTANT    ENGINEER,    ELECTRICAL

SECTION KALAMASSERY BEARING WORK ORDER NO.WO/5573/2017-18/24 DT.08/11/2017 TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

EXT P14               THE TRUE COPY OF THE WORK ORDER ISSUED BY
                      THE   ASSISTANT   ENGINEER,    ELECTRICALS

ECTION KALAMASSERY BEARING WORK ORDER NO.WO/5573/2017-18/27 DT. 08/11/2017 TO THE PETITIONER ALONG WITH AS, TS AND ESTIMATE.

EXT P15 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 30/04/2018 AND ITS REPLY DATED 29/05/2018.

WP(C) No.13491/2018

EXT.P16 TRUE COPY OF THE RELEVANT PAGES OF SECTION 10.2.3 OF THE KERALA PUBLIC WORKS ACCOUNTS CODE SHOWING THE MAXIMUM INTERVALS PERMISSIBLE AT THE SEVERAL STAGES BETWEEN THE MEASUREMENT OF A WORK AND PAYMENT OF BILL FOR IT.

EXT.P17 THE TRUE COPY OF THE PETTY CONTRACT WORK BILL BEARING NO.81/17-18 PREPARED BY THE 5TH RESPONDENT AND SINGED BY HIM ON 09/11/2017 FOR AN AMOUNT OF RS.1,36,102.94/-

EXT.P18 THE TRUE COPY OF THE PETTY CONTRACT WORK BILL BEARING NO.76/17-18 PREPARED BY THE 5TH RESPONDENT AND SIGNED BY HIM ON 09/11/2017 FOR AN AMOUNT OF RS.99,900/-.

EXT.P19 THE TRUE COPY OF THE PETTY CONTRACT WORK BILL BEARING NO.83/17-18 PREPARED BY THE 5TH RESPONDENT AND SIGNED BY HIM ON 09/11/2017 FOR AN AMOUNT OF RS.99,900/-