Orissa High Court
Harbansa Sethi vs State Of Odisha & Ors on 6 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20164 of 2021
Harbansa Sethi .... Petitioner
Mr. Jashobanta Das, Sr. Adv.
-versus-
State of Odisha & Ors. .... Opp. Parties
Mr. P.P. Mohanty, AGA.
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
ORDER
Order No. 06.08.2021
03. 1. This matter is taken up through hybrid mode.
2. Heard Mr. Jashobanta Das, learned counsel appearing
for the Petitioner and Mr. P.P. Mohanty, learned Additional
Government Advocate for the State.
3. In this Writ Petition, the Petitioner has prayed to quash
the Office Memorandum No.12606 dated 24.12.2012 passed by
the Government of Odisha, Works Department under
Annexure-6 and to direct the Opposite Party No.4- The
Executive Engineer, Minor Irrigation Division, Nayagarh,
District- Nayagarh to refund the escalation amount due to hike
of price of POL and differential wages of labour components
under Annexure-3 series within a stipulated period.
// 2 //
4. Learned counsel for the Petitioner draws attention of
this Court to the earlier judgment passed in the case of All
Odisha Contractors' Association -vrs.- State of Odisha:
reported in 2012 (II) OLR 586, wherein this Court has taken
into consideration the provisions under Section 23 of the Indian
Contract Act, 1872 and has held that "the guideline under
challenge is discriminatory, unreasonable in the matter of
granting differential price to the contractors/ executing
agencies on account of price hike in Steel, Cement, Bitumen,
Labour and POL as a result of which they sustained loss in
course of execution of the work. The same is liable to be
quashed and accordingly the Division Bench quashed the
guideline under Annexure-1 of that case and the Opposite
Parties were directed to issue fresh guideline treating the
contractors/ executing agencies uniformity with regard to
payment/ refund of differential cost of material, wages or
labour and POL irrespective of the period of contract keeping
in view the observations made therein".
5. The aforesaid reported case was also considered by a
Division Bench of this Court in W.P.(C) No.12654 of 2021
disposed of on 09.04.2021 and it has been held therein that the
Office Memorandum dated 24th December, 2012 is not
sustainable and the same was quashed. The Opposite Parties of
that case were directed to issue a fresh circular with regard to
price variation/ escalation clause in the contract, keeping in
view the direction given in the case of All Odisha
Contractors' Association (supra).
// 3 //
6. Since this case is covered one which is not disputed by
the learned Additional Government Advocate for the State, we
allow this Writ Petition. The Office Memorandum No.12606
dated 24.12.2012 passed by the Government of Odisha, Works
Department under Annexure-6 is quashed. The Petitioner is at
liberty to approach the appropriate authority for
recovery/refund of the escalation amount due to hike of price of
POL and differential wages of labour components who shall be
given reasonable opportunity of hearing and for placing the
relevant documents.
7 Accordingly, this Writ Petition is disposed of.
8. Urgent certified copy of this order be granted on proper
application.
( S. K.Mishra)
Judge
( Savitri Ratho )
Judge
BJ
