K. Dhananjoy Singh And Others vs Chief Secretary And Others

Kh. Nobin Singh, J

[1] Heard Shri B.P. Sahu, learned Senior Advocate appearing for the petitioners and Smt. Momota Oinam, learned Addl. Advocate General appearing for the respondents.

[2] By the instant writ petition, the petitioners have prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to pay/ release the outstanding bill amount as claimed by them i.e., Rs. 30,27,297/- (Rupees thirty lakhs twenty seven thousand two hundred and ninety seven).

[3.1] According to the petitioners, they are the special contractors of the Electricity Department, Government of Manipur which has been converted into two companies - one, Manipur State Power Company Limited (hereinafter referred to as "the MSPCL") and two, Manipur State Power Distribution Company Limited (hereinafter referred to as "the MSPDCL") w.e.f. 01-02-2014 and both are headed by two different designated posts of the Managing Directors. Before the conversion of the Electricity Department into two companies, the Department was headed by the Chief Engineer (Power), Manipur.

[3.2] Before the Electricity Department was converted into companies, the petitioners obtained the contract works from the Department of Electricity and its approvals were given by the Chief Engineer (Power), Manipur and the Additional Chief Engineer (Civil) under the delegation of financial powers. The contract works were successfully carried out by the petitioners within the time frame for which the completion certificates were submitted to the authorities in time. The works mainly done by the petitioners in civil divisions were constructions, flooring, plaster and repairing, etc. The aforesaid contract works were carried out in between the years, 2006 and 2008. The outstanding bill amounts of all the contractors were verified by the office of the then Chief Engineer (Power), Manipur which were mainly in relation to the office of the Executive Engineer (Civil) Division No.1. The liability and statements of the pending bills were signed by the Chief Engineer; the Additional Chief Engineer; the Superintending Engineer and the Executive Engineer. The total pending bill for both the plan and non-plan was about Rs.37,87,762/- (Rupees thirty seven lakhs eighty seven thousand seven hundred and sixty two), out of which part payments had been made and the remaining bill amount was Rs.30,27,297/- (Rupees thirty lakhs twenty seven thousand two hundred and ninety seven). On account of the said non-payment of the outstanding bills, the petitioners approached the Hon'ble High Court by way of a writ petition being WP(C) No.491 of 2016 and while the said writ petition was pending, an application was filed by the petitioners praying for a direction to the respondents to pay/ release the claimed amount of Rs.30,27,297/-only. The said application was disposed of on 19-10-2018 directing the respondents to consider the claim of the applicants/ petitioners in terms of the order passed by the Full Bench of the Hon'ble Gauhati High Court on 29-09-2008 in writ petition being WP(C) No 2277 of 2008.

[3.3] The said order dated 19-10-2016 passed by this court was furnished to the respondents along with a legal notice dated 22-10-2016 being served through their counsel. Some information was sought for by the authorities which was duly furnished by the petitioners and the respondents did not find any mistake from their side but no payment was made without assigning any reason which compelled the petitioners to file a contempt petition and while it was pending, the State Government in its budget for the year 2018-2019 granted Rs.3 crore for paying outstanding bill in complying with the various orders of this Court. On the basis of the said budget provisions, this Court passed an order dated 15-03-2018 directing the respondents to issue compliance order within a period of three months therefrom. In spite of this Court's order directing the respondents to release the amount, the State respondents did not obey it which compelled the petitioners to file a second contempt petition in which the counsel appearing the Managing Director, MSPCL produced an office report dated 04-09-2018 to contend that it was not in a position to be able to make the payment as no necessary/ specific budgetary provision was reflected for such payment and on the basis of the said order passed by the Managing Director, the contempt case was closed. Being aggrieved by the non-payment of bills, the instant writ petition has been filed by the petitioners

[4] An affidavit has been filed on behalf of the respondent Nos.2 and 3 wherein it has been submitted that in compliance with the Court's order dated 24-10-2016 passed in MC(W.P.(C)) No.261 of 2016, the claim of the petitioners was examined strictly in accordance with Jatin Pathak's case by the concerned Division and it was observed that the claim/ liability amounting to Rs.30,27,297/- (Rupees thirty lakhs twenty seven thousand two hundred and ninety seven) was non-admitted outstanding for which a speaking order had been issued vide office order dated 11-01-2017. There were no specific budgetary provisions as reflected in the BE/RE dated 2017-2018 for payment of outstanding bills. However, an earmarked provision of Rs.3 crore for payment of outstanding bill in compliance with the Court's order was allocated to the MSPDCL. In compliance with the orders passed by this Court in writ petition being WP(C) No.849 of 2015 and WP (C) No.491 of 2016, the payments have been made vide order dated 10-05-2016 and 11-01-2017.

[5] It is not in dispute that the petitioners have executed certain civil works as is evident from the letter dated 22-07-2013 addressed to the Commissioner (Power), Government of Manipur by the Chief Engineer (Power), Manipur enclosing therewith a list of liabilities. From the letter dated 22-07-2017 itself, it is seen that the list of liabilities for other divisions was awaited and the same would be updated later. The question of liabilities would arise, if the works had been completed by the petitioners and others. The stand of the respondents is that the letter dated 22-07-2013 was only a proposal for which the administrative approval had not been granted by the State Government and therefore, the question of payment would not arise at all for the execution of the said works. Only an amount of Rs.3,89,948/- as mentioned in the order dated 10-05-2016 was approved by the State Government.

[6] On perusal of the said letter dated 22-07-2013, it is clearly seen that it was not a proposal at all, rather it was a letter enclosing a list of final liabilities division-wise and chronologically and in other words, it was a letter showing the statement of completed works pending for payment. In order to decide the issue involved herein, this Court vide its order dated 27-08-2019 directed the State Government to file an additional affidavit in respect of the following:

(a) Whether the approval No. & date as given in the said documents have been given by the Administrative Department or not and if not, the respondents must indicate as to who has given the approval;

(b) Assuming for the sake of argument that the works have been executed without the approval of the Administrative Department, the question is as to who authorised the contractors to execute the said works and whether any action has been taken against the concerned authorities/ engineers who has allowed the petitioners to execute the works without the approval from the Administrative Department; and

(c) What is the basis on which it has been stated in the order dated 10-05-2016 that only an amount of Rs.3,89,948/- has admitted to be paid.

[7] In compliance with the said Court's order dated 27-08-2019, an affidavit dated 03-10-2019 was filed by the Under Secretary (Works), Government of Manipur enclosing two letters dated 19-09-2019 of the Executive Engineer addressed to the Legal Officer, MSCPCL and dated 01-10-2019 of the DGM, Civil Division, MSPCL addressed to the same person. From these two letters, it is evident that the works which have been executed by the petitioners, were approved either by the Chief Engineer (Power) or by the Addl. Chief Engineer (Civil) and therefore, it is the responsibility of the Chief Engineer (Power)/ Addl. Chief Engineer to get the approval of the Administrative Department. In fact, it is an internal affairs between the office of the Chief Engineer (Power) and the Administrative Department. They failed to do it and the lapses on the part of the Chief Engineer (Power) or the Addl. Chief Engineer cannot be attributed to the petitioners. It is hard to believe that the Chief Engineer (Power) or the Addl. Chief Engineer would have granted the approval without the knowledge of the Administrative Department in respect of such a large number of works. This Court can understand the stand of the State Government if the works executed by the petitioners are few, say, one or two works but it is not so and on the contrary, many works have been executed by the petitioners. There is no reason as to why the petitioners should be penalized for no fault of theirs.

[8] The State Government being an institution, ought to act fairly and reasonably and it cannot take the advantage of the mistakes committed by its own officials/ engineers. The present controversy has been created by the officials of the State Government and in particular, the engineers for which they are to be blamed and the petitioners cannot be blamed for it. But there is no any allegation by the Administrative Department that the works have been executed by the petitioners in collusion with the Chief Engineer (Power) or the Addl. Chief Engineer. When the State Government is unable to keep its cards in order, it cannot throw the blame on the petitioners. If the petitioners had not been granted permission by the office of the Chief Engineer, they would not have had the courage to enter into the Government land and execute the said works. From the letter dated 19-09-2019 filed along with the additional affidavit, it is seen that no action has been taken against the Chief Engineer (Power) or the Addl. Chief Engineer by the State Government. Moreover, a list of 46 works with details of the approval granted either by the Chief Engineer (Power) or by the Addl. Chief Engineer and the names of the contractors has been filed along with said affidavit dated 19-09-2019. Admittedly, the payments have been made by the State Government in respect of about a half of the said works and if that be so, there is no reason as to why the petitioners shall be denied the payment in respect of the remaining works. The act of the State Government making payment to some and denying the same to some other who are similarly situated, is highly unfair, unreasonable and discriminatory being violative of Article 14 of the Constitution of India. Considering the aforesaid circumstances, this Court is of the view that since certain works have been admittedly executed by the petitioners spending money from their pockets, they are entitled to payment thereof. The non-payment of the bills for the works done by the petitioners, is bad in law.

[9] For the reasons stated hereinabove, the instant writ petition is allowed with the direction that the respondents and in particular, the MSPCL shall pay/ release the outstanding bill amount of Rs.30,27,297/-(Rupees thirty lakhs twenty seven thousand two hundred and ninety seven) as claimed by the petitioners within a period of sixty days from the date of receipt of a copy of this judgment and order, failing which the said amount shall accrue an interest @ 8% per annum. It is open to the State Government to hold an enquiry and recover the said amount from the officials/ engineers who are responsible for allowing the petitioners to execute the said works without the approval of the Administrative Department. There shall be no order as to costs.