M.C.Baby vs State Of Kerala
2021 Latest Caselaw 19761 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
         THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                             WP(C) NO. 8496 OF 2021
PETITIONER/S:

            M.C.BABY
            AGED 58 YEARS
            S/O.CHACKO, MATTATHIL HOUSE, MONAPPILLY,
            PUTHENCRUZ P.O., ERNAKULAM-682308.

            BY ADVS.
            TESSY JOSE
            SRI.ELDHO PAUL



RESPONDENT/S:

     1      STATE OF KERALA
            REPRESENTED BY PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT,
            ROADS AND BRIDGES, SECRETARIAT, THIRUVANANTHAPURAM-695001.

     2      THE SUPERINTENDING ENGINEER,
            P.W.D., ROADS AND BRIDGES,
            CENTRAL CIRCLE,
            ALUVA-683101.

     3      THE ASSISTANT ENGINEER,
            PWD ROADS SECTION, MULLANTHURUTHY-682014.

     4      THE ASSISTANT EXECUTIVE ENGINEER,
            PWD ROADS, SUB DIVISION, THRIKKAKARA,
            ERNAKULAM-682021.

     5      THE EXECUTIVE ENGINEER,
            PWD ROADS DIVISION, THRIKKAKARA P.O.,
            ERNAKULAM-682021.

            BY ADV GOVERNMENT PLEADER

                        SMT. DEEPA NARAYANAN, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8496 OF 2021
                                     2



              P.V.KUNHIKRISHNAN, J.
           ===================
              WP(C) No. 8496 OF 2021
           ===================
    Dated this the 23rd day of September 2021


                           JUDGMENT

The above writ petition is filed with the following

prayers;

" i) Issue a writ of certiorari to quash Exts.P3 and P5 orders passed by the 2nd respondent.

ii. To grant such other relief as this Hon'ble Court may deem fit in the facts and circumstances of the case."

2. The main grievance of the petitioner is that, the

fine imposed in Exts. P3 and P5 orders for extension of

completion of the work is illegal, in the light of the remarks

by the respondents in Exts. P2 and P4 application.

3. The learned counsel for the petitioner submitted

that, an application for extension of time for the completion WP(C) NO. 8496 OF 2021

of work was submitted as evident by Ext.P2 on 09.01.2019.

The date of completion as per the agreement was on

09.01.2019 and the petitioner prayed for extension up to

30.05.2019. Column 7 of Ext.P2 is the reason mentioned for

not completing the work by the petitioner and the same is

extracted hereunder;

" Difficulty in executing the work due to heavy traffic road, shortage of Bitumen and delay in supply of shredded plastics work could not be completed."

4. Column No. 11 of Ext.P2 is the remarks of the

Departmental Officers which is extracted hereunder;

" Difficulty in executing the work due to heavy traffic road, shortage of Bitumen and delay in supply of shredded plastics work could not be completed."

5. In Ext.P2 the Assistant Engineer, Assistant

Executive Engineer and Executive Engineer signed. The

Assistant Executive Engineer clearly stated that, the reason

stated is genuine. It is true that, there is no remarks by the WP(C) NO. 8496 OF 2021

Assistant Engineer and Executive Engineer while putting their

signature. Thereafter Ext.P3 order is passed in which it is

stated that, the Executive Engineer has also recommended

that the time of completion may be extended up to

30.05.2019 with fine since the facts explained by the

contractor are not genuine.

6. Similarly Ext.P4 is the application submitted by the

petitioner for extension of time in another work. The date of

commencement of that work was on 10.12.2018. The date up

to which the extension was sought was 30.09.2019. Column

No. 7 of Ext.P4 is the reason for not completing the work

mentioned by the petitioner contractor which is extracted

hereunder;

" Due to heavy rain balance works like road marking, surface drain etc. were delayed which could be completed only after monsoon."

7. Column No. 11 of Ext.P4 is the remarks of the

departmental officers which is also extracted hereunder; WP(C) NO. 8496 OF 2021

" Due to heavy rain balance works like road marking, surface drain etc. were delayed which could be completed only after monsoon."

8. In Ext.P4 the Assistant Engineer, Assistant

Executive Engineer and Executive Engineer signed. It is true

that, the Assistant Executive Engineer stated that, the

extension can be given without fine. But, the Executive

Engineer stated that "recommended for extension up to

30.09.2019 with fine". Thereafter, Ext.P5 is the order passed

in Ext.P4, which says that, Executive Engineer has also

recommended that the time of completion may be extended

up to 30.09.2019 with fine since the facts explained by the

contractor are not genuine.

9. when the remarks made by the Departmental

Officers in column No. 11 in Exts.P2 and P4 are compared

with the reasoning in Exts. P3 and P5 orders, it is clear that,

there is contradiction. According to me, this is a matter to be

re considered by the authority concerned. I don't want to WP(C) NO. 8496 OF 2021

make any further opinion. In Exts.P2 and P4 application the

contractor specifically mentioned a reason which is endorsed

by the Departmental Officers in column No. 12 of Exts.P2 and

P4. Hence, in such situation, I think, it is injustice on the part

of the respondents to issued Exts.P3 and P5 orders imposing

fine. I think, the matter is to be reconsidered again.

Therefore this writ petition is allowed in the following

manner.

1. The fine imposed in Ext.P3 and P5 orders are set as

side.

2. The 2nd respondent is directed to reconsider the

matter, after giving an opportunity of hearing to the

petitioner.

3. The above exercise should be completed by the 2 nd

respondent as expeditiously as possible, at any rate, within WP(C) NO. 8496 OF 2021

one month from the date of receipt of a copy of this

judgment.

(Sd/-)

P.V.KUNHIKRISHNAN JUDGE LU WP(C) NO. 8496 OF 2021

APPENDIX OF WP(C) 8496/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE AGREEMENT NO.17/SECCA/2019-2020 DATED 31.05.2019 BETWEEN THE PETITIONER AND THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 09.01.2019.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.DEE-10593/2017 DATED 09.09.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 28.05.2019 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER NO.DEE-10593/2017 DATED 16.09.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 04.10.2020 SENT BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.DEE-10593/2017 DATED 28.09.2020 ISSUED BY THE 2ND RESPONDENT.

RESPONDENTS EXHIBITS

ANNEXURE R2 (A) TRUE COPY OF THE PROCEEDINGS NO. DEE 10593/2017 DATED 09.09.2020 WP(C) NO. 8496 OF 2021

ANNEXURE R2 (B) TRUE COPY OF THE PROCEEDINGS NO. DEE 10593/2017 DATED 16.09.2020.

          //   True Copy //             PA to Judge