Orissa High Court
WP(C)/18570/2016 on 6 January, 2021
W.P.(C) No.18570 of 2016
03. 06.01.2021 By means of this writ petition, the Petitioner has
challenged the Office Memorandum dated 24th December,
2012 issued by the Engineer-in-Chief-cum-Secretary to
Government of Odisha, whereby the earlier departmental
circular/letter No.5608 dated 3rd April, 2007 has been
amended.
2. We have heard Mr. P.C. Nayak, learned counsel
for the Petitioner and Mr. S.N. Das, learned Additional
Standing Counsel for the State-O.Ps. by Video
Conferencing mode and perused the record.
3. Mr. P.C. Nayak, learned counsel for the
Petitioner submits that the present writ petition being
identical to W.P.(C) No.11537 of 2019, the same may be
disposed of in terms of the order dated 18th July, 2019,
passed in W.P.(C) No.11537 of 2019.
4. Mr. S.N. Das, learned Additional Standing
Counsel for the State-O.Ps. does not dispute the said
position.
5. Though the said circular has been challenged on
several grounds, which include procedural flaws;
unreasonable classification; discrimination; being
contrary to the judgment dated 6th July, 2012 passed in
the case of All Odisha Contractors' Association v.
State of Odisha, 2012 (II) OLR 586; hit by Section 23 of
the Indian Contract Act, 1872; being in violation of the
Minimum Wages Act and notifications issued thereunder;
and several other grounds, but we are considering the
first ground alone.
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6. Learned counsel for the Petitioner has
submitted that earlier circular dated 3rd April, 2007 was
issued with regard to price variation/escalation in
contract entered into with the government, which is
dated 3rd April, 2007, and was challenged in the case of
All Odisha Contractors' Association (supra), in which
the said circular dated 3rd April, 2007, filed as Annexure-
1 to the said writ petition, was quashed with the following
observation:
"14. In view of the above, we are of the view
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
we quash the guideline under Annexure-1.
Opposite parties are directed to issue fresh
guideline treating the contractors/executing
agencies uniformly with regard to
payment/refund of differential cost of
material, wages of labour and POL
irrespective of the period of contract keeping
in view the observations made hereinabove."
7. The contention is that the impugned Office
Memorandum issued on 24th December, 2012 is not an
independent Office Memorandum, but is an amendment
to the earlier Works Department Circular/Letter dated 3rd
April, 2007, which has already been quashed.
8. It is submitted that there cannot be any
amendment to the Government circular, which has been
quashed, and the Office Memorandum/order/circular
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should have been issued afresh with regard to the issue
in question, keeping in mind the directions issued in the
judgment of this Court rendered in the case of All
Odisha Contractors' Association (supra).
9. Learned Additional Standing Counsel appearing
for the State-O.Ps. has submitted that the direction
issued in the case of All Odisha Contractors'
Association (supra) has been complied with, but the
office memorandum was not well worded. He could not,
however, justify the amendment of the earlier Circular
dated 3rd April, 2007 made by the impugned Office
Memorandum dated 24th December, 2012, as the
Circular dated 3rd April, 2007 has already been quashed
by this Court in the case of All Odisha Contractors'
Association (supra), after having been held the same to
be illegal.
10. As such, on this ground alone, this writ petition
succeeds and the Office Memorandum dated 24th
December, 2012 is quashed. The O.Ps. are 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). It is made clear that
any deduction made from the bills of the contractors or
any payments made to the contractors in pursuance of
the Notification dated 24th December, 2012 shall be
refunded/adjusted by the O.P.-Department or the
contractors, as the case may be, within a period of three
months from the date of receipt of copy of this order.
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The writ petition stands allowed to the extent
indicated above.
As restrictions are continuing for COVID-19,
learned counsel may utilize the soft copy of this order
available in the High Court's website or print out thereof
at par with certified copies in the manner prescribed, vide
Court's Notice No.4587, dated 25th March, 2020.
.................................
( Dr. S. Muralidhar)
Chief Justice
................................
A. Dash/
S.K. Guin ( Dr. B.R. Sarangi )
Judge
