Kerala High Court
K.C.Antony vs Government Of Kerala on 15 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
WP(C) NO. 16854 OF 2018
PETITIONER:
K.C.ANTONY
AGED 58 YEARS
S/O. LATE CHACKO,AGED 58 YEARS,
CONTRACTOR, KAITHACKAL HOUSE,
CHEMMALAMATTOM.P.O.,
ERATTUPETTA-VIA
KOTTAYAM DISTRICT, PIN- 686 529
BY ADV SRI.BABU JOSEPH KURUVATHAZHA
RESPONDENTS:
1 GOVERNMENT OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF PUBLIC WORKS,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695 001
2 MEMBER SECRETARY
KSRRDA (KERALA STATE RURAL ROADS DEVELOPMENT
AGENCY),5TH FLOOR,
SWARAJ BHAVAN, NANTHANCODE, KOWDIAR.P.O.,
THIRUVANANTHAPURAM- 695 003
3 SUPERINTEDING ENGINEER
KSRRDA, 5TH FLOOR,
SWARAJ BHAVANNANTHANCODE, KOWDIAR.P.O.,
THIRUVANANTHAPURAM- 695 003
4 EXECUTIVE ENGINEER
PROGRAMME IMPLEMENTATION UNIT,
DISTRICT PANCHAYAT,
KOTTAYAM,PIN-686 001
5 THE STATE QUALITY MONITOR (SQM)
LOCAL SELF GOVERNMENT
DEPARTMENT,5TH FLOOR,
SWARAJ BHAVAN,
WP(C) NO. 16854 OF 2018
2
NANTHANCODE,
KOWDIAR.P.O.,
THIRUVANANTHAPURAM- 695 003
BY ADV.JOBY JOSEPH, GOVERNMENT PLEADER
SRI.JOBY JOSEPH, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 16854 OF 2018
3
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)No. 16854 of 2018
--------------------------------
Dated this the 15th day of February, 2022
JUDGMENT
The above writ petition is filed with the following
prayers:
"(i) issue a writ of certiorari or any other
appropriate writ, order or direction quashing Exts.P6
and P10 proceedings of the 4th and 3rd respondents
respectively;
(ii) issue a writ of mandamus or any other
appropriate writ order or direction commanding the
respondents to disburse the entire payment of
Rs.9,03,042/- with interest minimum at the treasury
rate, with effect from the date of recovery/deduction,
followed by Ext.P6;
(iii) issue such other writ, order or direction, as
this Hon'ble Court may deem fit, fair and proper in the
facts and circumstances of the case.[SIC]"
2. The petitioner was awarded the contract work
involved in Exts.P1 to P3 proceedings. An agreement
was also executed with the 3rd respondent by the
WP(C) NO. 16854 OF 2018
petitioner as per agreement No.23/SE-KSRRDA/2007-08
dated 26.10.2007. It is the case of the petitioner that,
on the satisfactory completion of the entire work, the 8 th
part and final bill was prepared, based upon the
measurements finally agreed upon by the petitioner and
the 4th respondent for an amount of Rs.1,36,64,428/-
and Ext.P4 completion certificate was issued to the
petitioner. Later payments due to the petitioner based
upon the part bills were also cleared. It is the case of
the petitioner that without issuing notice to the
petitioner and without giving an opportunity of hearing
to the petitioner, in utter violation of the principles of
natural justice, the 4th respondent recovered an amount
of Rs.9,03,042/-, which was followed by Ext.P6 order. It
is the definite case of the petitioner that Ext.P6 order is
passed without giving an opportunity of hearing to the
petitioner. Aggrieved by Ext.P6 order of the 4 th
respondent, the petitioner submitted Ext.P7
representation as per Clause 24.1 of the General
WP(C) NO. 16854 OF 2018
Conditions of the Contract forming part of the agreement
before the 3rd respondent. Ext.P7 has been preferred on
14.10.2010 and this Court as per Ext.P9 judgment
directed the 3rd respondent to consider and pass
appropriate orders in Ext.P7 representation.
Consequently Ext.P10 order was passed by the 3 rd
respondent. Aggrieved by the same, this writ petition is
filed.
3. Heard the learned counsel appearing for the
petitioner and the learned Government Pleader.
4. The learned counsel for the petitioner
reiterated his contentions in the writ petition. The
counsel takes me through Ext.P4 completion certificate
issued by the Chief Technical Officer and Superintending
Engineer. The counsel thereafter takes me through
Ext.P6 order. The counsel submitted that it is an order
passed without hearing the petitioner. The counsel also
submitted that Ext.P6 was challenged by submitting
Ext.P7 and when there was delay in consideration of
WP(C) NO. 16854 OF 2018
Ext.P7, the petitioner approached this Court and asper
the direction of this Court Ext.P10 order is passed. The
counsel takes me through Ext.P10 order. The counsel
submitted that, even in Ext.P10 proper enquiry is not
conducted by the 3rd respondent. The counsel submitted
that the order passed by the 3rd respondent behind the
back of the petitioner, several documents were dealt in
Ext.P10 order and the petitioner was not allowed to
peruse those document. The counsel submitted that if
an inspection is conducted by the 3 rd respondent in the
presence of the petitioner and other officers who ratified
the work, the truth will come out. The counsel
submitted that, that is the manner in which Ext.P7 ought
to have been considered by the 3rd respondent.
5. The learned Government Pleader on the other
hand submitted that a detailed counter affidavit is filed
by the 3rd respondent. The Government Pleader
submitted that there is nothing to interfere with Ext.P10
and the other details are mentioned in the counter
WP(C) NO. 16854 OF 2018
affidavit filed by the 3rd respondent.
6. I considered the contentions of the petitioner
and the Government Pleader. Admittedly Ext.P6 order is
passed without giving an opportunity of hearing to the
petitioner. Thereafter this Court interfered and issued
certain directions in Ext.P9 judgment. Thereafter
Ext.P10 order is passed. I perused Ext.P10 order. In
paragraphs 1 to 4 of Ext.P10, the statement of facts and
the contentions of the petitioner are narrated.
Thereafter the 3rd respondent passed the following order:
"It is revealed from the records that the quality
monitors observed in this work that for 599 Nos. of
hectometer stones recorded in the M-Book, proper
1:4:8 concrete foundations had not been provided.
Since the contractor had not performed those items to
the proper quality standards and specifications, a
total amount of Rs.128439/- was deducted for the
above said items of guard stones, boundary stones
and hectometer stone at Rs.201/- for each. The
Contractor had excavated rock from the said road
during the construction for a total quantity of 5476.53
m3 and this was recorded in the M Book, in the
agreement schedule contained as an item of dry
WP(C) NO. 16854 OF 2018
rubble masonry for the construction of the side
protection works. The rate of the said item was
prepared for the rate of rubble brought to the site
with a conveyance charge of Rs.277.81/m3. In this
work, since the blasted rubble was obtained at site an
amount of Rs.7,60,702/- was deducted for the item of
Dry rubble masonry work. As per Ext P6 (Proceedings
No.3944/07/EE/PIU/KTM dated 8.9.2010 of EE, PIU,
Kottayam), Contractor was also informed about the
above deductions.
In the above circumstances, it is concluded that
the contractor is not eligible for the amount that has
already been deducted from the bill of the said work.
Hence hereby complied the Judgment of Hon'ble High
Court. "
7. It is the case of the petitioner that the enquiry
of the 3rd respondent ought to have been in the presence
of the petitioner and the other officials who ratified the
work which leads to Ext.P4 completion report. The
counsel submitted that, if a work is completed it will be
recorded in the 'M' book and it will be ratified by the 4 th
respondent and thereafter the bill book will be prepared.
There are several stages before disbursing the amount.
There are several officers who will ratify these bill
amounts. Only after ratification, the bill amount is
WP(C) NO. 16854 OF 2018
sanctioned and in this case also the bill amount is
sanctioned after ratification from the authorized officers
of the respondents. In such circumstances, without
getting a report from those officers and simply relying on
certain documents, the 3rd respondent erred in passing
Ext.P10 is the contention raised by the petitioner. I see
some force in the contention raised by the petitioner.
According to me, without expressing any opinion on
merit, Ext.P10 can be set aside and the 3 rd respondent
can be directed to reconsider the matter after giving an
opportunity of hearing to the petitioner. The 3 rd
respondent before concluding the matter will get report
from other officers who ratified this work.
Therefore, this writ petition is allowed in the
following manner:
i. Ext.P10 order is set aside.
ii. The 3rd respondent is directed to reconsider the matter
after giving an opportunity of hearing to the petitioner
and also allowing the petitioner to produce additional
documents also, if necessary.
WP(C) NO. 16854 OF 2018
iii. Before concluding the proceedings, the 3 rd respondent
will get report from all officers who ratified the work
and sanctioned the bill.
iv. The above exercise should be completed by the 3 rd
respondent, as expeditiously as possible, at any rate,
within three months from the date of receipt of a copy
of this judgment.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
WP(C) NO. 16854 OF 2018
APPENDIX OF WP(C) 16854/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE LETTER OF ACCEPTANCE
DATED 8.10.2007 ISSUED BY THE 3RD
RESOPNDENT
EXHIBIT P2 TRUE COPY OF THE SCHEDULE OF WORK
INVOLVED IN AGREEMENT NO.23/SE-
KSRRDA/2007-08 DATED 26.10.2007
EXHIBIT P3 TRUE COPY OF THE SPLIT UP DETAILS OF
THE PAC OF THE WORK INVOLVED IN THE
AGREEMENT AND THE MAINTENANCE CHARGES
FOR THE FIRST TO FIFTH YEAR
MAINTENANCE
EXHIBIT P4 TRUE COPY OF THE COMPLETION
CERTIFICATE DATED 17.8.2009 ISSUED BY
THE 3RD RESPONDENT
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 6.4.2010
IN WPC NO 5946/2010 OF THIS HON'BLE
COURT
EXHIBIT P6 TRUE COPY OF THE IMPUGNED ORDER NO.A5
3944/07/EE/PIU/KTM DATED 8.9.2010
ISSUED BY THE 4TH RESPONDENT
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
14.10.2010 SUBMITTED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT
EXHIBIT P8 TRUE COPY OF THE CLAUSE 24.1 OF THE
GENERAL CONDITIONS OF THE CONTRACT
ENTERED BETWEEN THE 3RD RESPONDENT
AND PETITIONER
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED
26.2.2018 IN WPC NO.28733/16 OF THIS
HON'BLE COURT
EXHIBIT P10 TRUE COPY OF THE IMPUGNED ORDER DATED
27.4.2018 ISSUED BY THE 3RD
WP(C) NO. 16854 OF 2018
RESPONDENT
EXHIBIT P11 TRUE COPIES OF PAGE NOS.23,32,33 AND
39 OF M BOOK NO.2, FOR THE YEAR 2007-
2008.
EXHIBIT P12 TRUE COPIES OF PAGE NOS.38 AND 69 OF
M BOOK NO.3, FOR THE YEAR 2007-2008.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE
