The Pulpally Labour Contract ... vs The State Of Kerala
2023 Latest Caselaw 6661 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
       THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                  WP(C) NO. 26251 OF 2016
PETITIONER:

          THE PULPALLY LABOUR CONTRACT SOCIETY LTD.
          NO.W-168, PULPALLY P.O., WAYANAD DISTRICT,
          PIN-673 579,
          REPRESENTED BY ITS SECRETARY.
          BY ADV SRI.MANU RAMACHANDRAN


RESPONDENTS:

   1     THE STATE OF KERALA
         REPRESENTED BY ITS CHIEF SECRETARY,
         GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
   2     SECRETARY
         LOCAL SELF GOVERNMENT DEPARTMENT,
         SECRETARIAT,THIRUVANANTHAPURAM.
   3     SECRETARY
         DEPARTMENT OF CO-OPERATION, SECRETARIAT,
         THIRUVANANTHAPURAM.
   4     THE ACCOUNTANT AND AUDITOR GENERAL
         STATE OF KERALA, THIRUVANANTHAPURAM.
   5     THE ASSISTANT ENGINEER
         OFFICE OF THE ASSISTANT ENGINEER,LSGD
         SECTION,PULPALLY, WAYANAD.
   6     THE PULPALLY GRAMA PANCHAYANTH
         REPRESENTED BY ITS CHIEF SECRETARY,
         PULPALLY, WAYANAD.
         BY ADVS.
         SRI.P.C.SASIDHARAN

          SRI V VENUGOPAL-GP
 WPC 26251/2016
                               ..2..



     THIS   WRIT   PETITION    (CIVIL)    HAVING    COME    UP    FOR
ADMISSION   ON   20.06.2023,   THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WPC 26251/2016
                                     ..3..




                            JUDGMENT

The petitioner impugns Exts.P2 and P3 Audit objections, as

per which, the Audit Department has found fault with them in

having obtained a contract from the sixth respondent -

Panchayat, with a 10% price preference over the lowest tender.

The petitioner says that the Audit Department has acted in

complete violation of law because, the sixth respondent -

Panchayat had given them the contract at a particular tender and

they have now been asked to repay the 10% price preference

they obtained from them even without they having been made

any such claim. The society thus contends that Exts.P2 and P3

audit objections are hence untenable and unnecessary.

2. Sri.Abhishek Johnson - learned counsel for the

petitioner, further explained that the sixth respondent had given

the contract to his client after assessing all relevant and

germane aspects at a particular rate. He argued that this may or

may not have been based on Ext.P1 order and hence that the

Audit Department had no reason to have issued Exts.P2 and P3,

particularly because the amounts now directed to be repaid will

have to be done by the society to the Panchayat, even without

them making any such objection.

WPC 26251/2016 ..4..

3. Sri.P.C.Sasidharan - learned counsel appearing for the

6th respondent, submitted that a counter affidavit has been filed

on record, explaining that the price preference to the Society was

given to them based on Ext.P1 Order. He, however, added that

his client has no intention to recover the amounts from the

Society, particularly because the work is now over to full

satisfaction.

4. Sri.V.Venugopal - learned Government Pleader,

appearing for the official respondents, submitted that the reason

which impelled the Audit Department to issue Exts.P2 and P3 was

because Ext.P1 order, issued by the Co-operative Department,

was not applicable to contracts awarded by the Local Self

Government Institutions until the year 2014. He then conceded

that Exts.P2 and P3 directs the Society to repay the 10% price

preference, which they had obtained from the Panchayat, but

without any such request being made by the latter.

5. I have considered the afore rival submissions on the

touchstone of the materials available on record.

6. The point in controversy between the parties is

whether Ext.P1 order was applicable to a Society qua contracts

awarded by the Local Self Government Institutions, thereby

giving them 10% price preference until the year 2014. The

learned Government Pleader maintains that this was not WPC 26251/2016 ..5..

available; though it is on record, going by the averments in the

counter affidavit of the 6th respondent Panchayat, that the

petitioner - Society was given such a benefit.

7. However, it must be borne in mind that even the

Panchayat does not have a case that the price preference given

to the Society put them into any prejudice, or that they have

taken any steps for recovery of the amounts from them. In such

scenario, prima facie, one fails to understand why the Audit

Department should have directed the Society to repay the

amounts to the Panchayat, even assuming that Ext.P1 was not

applicable. This is because, it is always possible that the

Panchayat could have awarded the contract as per their terms,

whether it was guided by Ext.P1 or otherwise.

8. Therefore, as long as the Panchayat does not have a

case against the Society, one fails to comprehend how Exts.P2

and P3 could direct the Society to repay the amounts to the

former, which they obtained as price preference.

9. I do not propose to speak any further because, I am

certain that the petitioner - Society must be given the opportunity

of filing objections against Exts.P2 and P3 before the competent

Authority, so that it can be then considered in terms of law, after

hearing all sides.

WPC 26251/2016 ..6..

In the afore circumstances, I allow this writ petition to the

limited extent of granting liberty to the Society to file their

objections against Exts.P2 and P3 before the competent Authority

of the Audit Department in terms of the applicable statutes; and

if this is done within a period of one month from the date of

receipt of a copy of this judgment, same shall be considered by it,

after affording necessary opportunities to them, as also to the

Panchayat; thus culminating in an appropriate order and

necessary action thereon, as expeditously as is possible without

any avoidable delay thereafter.

Needless to say, until such time as the afore exercise is

completed and the resultant order communicated to the parties,

the interim order granted by this Court on 08.08.2016 and which

was extended until further orders on 13.10.2016, will continue to

be in effect.

Sd/-

DEVAN RAMACHANDRAN, JUDGE

ACR WPC 26251/2016 ..7..

APPENDIX OF WP(C) 26251/2016

PETITIONER EXHIBITS EXHIBIT P1. THE TRUE COPY OF THE G.O.(MS) NO.135/97/CO-OP DATED 13/11/1997.

EXHIBIT P2. THE TRUE COPY OF THE DEMAND NOTICE VIDE NO.AE/LSGD/PLPY/GL-2016-17 DATED 11/7/2016 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER ANNEXED WITH THE AUDIT OBJECTION.

EXHIBIT P3. THE TRUE COPY OF THE DEMAND NOTICE VIDE NO.AE/LSGD/PLPY/GL-2016-17 DATED 12/7/2016 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER ANNEXED WITH THE AUDIT OBJECTION.

EXHIBIT P4. THE TRUE COPY OF THE CIRCULAR NO.34947/DPI/03/LSGD DATED 4/8/2003 IS PRODUCED HEREWITH AND MAY BE MARKED AS EXHIBIT.

EXHIBIT P5. THE TRUE COPY OF THE G.O.(MS) NO.153/2011/CO-OP DATED 31/10/2011 EXHIBIT P6. THE TRUE COPY OF THE G.O.(MS) NO.84/2014/CO-OP DATED 26/6/2014 EXHIBIT P7. THE TRUE COPY OF THE G.O.(MS) NO.28/2016/CO-OP DATED 2/6/2016.

RESPONDENT EXHIBITS EXHIBIT R6(a) TRUE COPY OF THE COMMUNICATION ISSUED BY THE AUDIT DEPARTMENT.