Pradeep.P vs Superintending Engineer, Pwd Buildings South Circle, Public Office Complex, Museum P.O, Thiruvananthapuram 695033

Shaji P. Chaly, J

Petitioner - a PWD Contractor was awarded with “Maintenance Works” of all buildings of Kuttalam Palace and construction of a reception block, belonging to the State Government. Exhibit P1 agreement was executed on 4.11.2020 and the work was to be completed within the time period stipulated thereunder. It is quite clear and evident that all the conditions in the Revised Edition - 2012 of Kerala Public Works Department Manual are applicable to the work.

Prior to the execution of the agreement, Exhibit P2 communication dated 2.11.2020 was issued accepting the tender quoted by the petitioner for an amount of Rs.1,80,55,155.06 and the petitioner was directed to execute the agreement within 14 days with other riders and conditions. The work was to be completed within 12 months from the date of handing over of the sites apart from other conditions fixed thereunder.

The issue involved in the writ petition is the termination of the contract as per Exhibit P11 proceedings dated 18 .11.2021 at the risk and cost of the petitioner. Termination was preceded by Exhibit P9 decision in a meeting convened by the Superintending Engineer in the presence of the petitioner. In fact, as per Exhibit P10 dated 6.11.2021, as instructed by the Chief Engineer, the Assistant Engineer, Public Works Department, Buildings Section, Kollam, issued a stop memo. It was challenged in W.P.© No.26146 of 2021, which was later withdrawn in the light of termination notice issued by the 4th respondent dated 18.11.2021. It is the case of the petitioner that issuance of termination notice was irregular; without hearing the petitioner; assigning any reasons' and without taking into consideration the extension of time sought for by the petitioner on account of pandemic lock down. Therefore, petitioner challenged Exhibit P11 termination order by filing W.P.© No.29576 of 2021, which was disposed of as per Exhibit P12 judgement dated 28.12.2021 directing the Secretary to Government, Public Works Department, Thiruvananthapuram - the 6th respondent, to dispose of the representation made by the petitioner against Exhibit P11 termination notice and seeking extension of time. Thereafter, the 6th respondent disposed of the request made by the petitioner as per Exhibit P13 order dated 4.3.2022, which according to the petitioner, is without taking into consideration any of the submissions and the documents produced by the petitioner.

The  paramount  contention  advanced  by  the petitioner  is  that  the respondents did not hand over all the buildings of Kuttalam Palace except two cottages. It is further submitted that the work of the two cottages was started by removing the tiles and according to the petitioner, on removal of the tiles, it was found that the wooden ceiling provided were all in an utter damaged condition and therefore, without removing the wooden ceiling, the further work could not be proceeded with.

In order to establish that all the cottages were not handed over to the petitioner for the renovation, petitioner has produced Kerala PWD Register showing the occupancy of the cottages, evident from Exhibit P14 series up to the period from 18.1.2021 to 15.11.2021. Admittedly, petitioner could not carry on with the work during the lockdown restrictions imposed by the State of Kerala as well the Government of Tamil Nadu, wherein the building in question is situated. It is further submitted that even though extension was sought for on account of the pandemic and other adverse situations, the respondents have not considered the same. It is also the case of the petitioner that even though in the request made to the Secretary to Government the entire aspects were pointed out by the petitioner substantiating with documents, none of the aspects were considered and therefore, Exhibit P13 order passed by the Secretary to Government, cannot be sustained under law, being arbitrary and illegal. It is thus challenging the legality and correctness of Exhibit P13 as well as termination of the work as per Exhibit P11, at the risk and cost of the petitioner, the writ petition is filed and accordingly the following reliefs are sought for:

i) Issue a writ of certiorari or such other writ or direction calling for entire records leading upto Exhibit P11 and P13 and quash the same after declaring the same as arbitrary. discriminatory and illegal,

ii) Issue a writ of mandamus or such other writ or direction directing the respondents not to impose any risk and cost upon the petitioner on termination of subject matter agreement and to refund/release the entire security deposit, performance guarantee and part bill of the petitioner within a time fixed by this Hon'ble Court,

iii) Issue a writ of mandamus or such other writ or direction directing respondents 1 to 6 to refund the performance guarantee of Rs. 4,52,000/-as per Treasury Savings Bank Deposit Certificate No. JL 0345213 dated 03-11-2020 of District Treasury, Kollam and a Bank Guarantee of Rs.4,52,000/- as per Bank Guarantee No. JBG 110974 dated 03- 11-2020 of Federal Bank Ltd, Kollam and an additional performance guarantee of Rs. 7,35,000/- given as per Treasury Savings Bank Deposit Certificate No. JL 0345214 dated. 03-11-2020 of District Treasury, Kollam and Bank Guarantee of Rs. 7,35,000/- as per Bank Guarantee No. JBG 110975 dated 03-11-2020 of Federal Bank Ltd, Kollam immediately to petitioner,

iv) Issue a writ of mandamus or such other writ or direction directing Respondents to release the pending payments for the works completed by the petitioner as per the measurements recorded in the measurement book by the department authorities within a time fixed by this Hon'ble Court.”

The Superintending Engineer, PWD Buildings South Circle, Thiruvananthapuram – the 1st respondent, has filed a detailed counter affidavit, in which the award of the contract, execution of agreement, time period stipulated etc. are all admitted. However, it is contended that the site was handed over to the petitioner as per clause 2102.1 of PWD Manual and standard bid documents, but the petitioner did not carry out the work as anticipated. Since the petitioner left the building idle without executing any work, the department rented out the entire building to avoid revenue loss to the state.

It is submitted that the petitioner is complaining about COVID -19 second wave and argued that its associated travel ban impounded the progress of construction. According to the 1st respondent, comparing to the first lock down restrictions in the country, there was not much restrictions in the second wave, especially e-travel passes are common for inter-state travel and absolutely there were no restrictions in Tamil Nadu in the construction sites during those days; the employees of the Palace and other site supervisory staffs from Kerala were travelling frequently to Tamil Nadu during these period with e-pass; the petitioner could arrange men and material at cheaper rate from the nearby site of Tamil Nadu State and complete the entire work even before the agreed date of completion; and that if there was any intention on the part of the petitioner to complete the work, he could have completed the work on time but the petitioner has never taken any earnest or sincere effort to complete the work in time.

It is also submitted that the petitioner could execute the work as per the agreement-conditions instead of waiting for the revised estimate since the same was not required for the completion of the project. According to the 1st respondent, the revised estimate was just a fabricated story to cover up all his impediments in executing the important work on time. It is also stated that COVID-19 pandemic situations are extremely convincing and the Department always provides sufficient extension of time in all genuine cases, but in the instant case the situation is entirely different. The petitioner has never taken any earnest efforts to complete the work and the percentage progress achieved after 11 months was only 2.4% against the targeted progress of 95%. He was executing the work with two or three labourers occasionally and if that practice is continued, it will take another couple of years to complete the work. Moreover, two important buildings got damaged and the State suffered enormous loss.

It is further submitted that the petitioner started the construction of the reception building on 30.12.2020. However, the total area of the same is just 76.65m² and the petitioner could complete the work only up to an amount of Rs.4,44,990 + GST till the termination of contract against the agreed PAC of Rs.1,80,55,155/- (Rupees One Crore Eighty Lakh Fifty Five Thousand One Hundred and Fifty Five only) i.e., just 2.4% of agreed work was completed even after the lapse of 11 months whereas, the target progress to be achieved at that time is 95%. According to the 1st respondent, the petitioner could have arranged men and material at a cheaper rate from nearby site of Tamil Nadu State, and complete the entire work even before the agreed date of completion, but instead of doing this, the petitioner started complaining about the consequences of COVID 19 second wave and its associated travel ban.

According to the 1st respondent, it is also evident that there is no need to arrange or deploy workers from Kerala State to Tamil Nadu State on daily basis to carry out the work since no complicated construction process is involved as a part of this particular agreement and no need to deploy heavy equipment in the site at any stage and all the materials needed are abundantly available at a cheaper rate in Tamil Nadu State and if there was any intention on the part of the petitioner to complete the work, he could have completed the work in time.

It is submitted that to review the work in progress, the Chief Engineer (Buildings) – the 5th respondent along with the 1st respondent and other departmental officers, had visited the site on 01.07.2021 and directions were issued to the petitioner to complete the work within the agreed time frame. Besides, notices were issued vide letter dated 13.09.2021 and 21.10.2021 to the Contractor to submit the programme schedule and to re-start & complete the work within the agreed time and informed that actions shall be taken as per the Revised KPWD Manual - 2012 clause 2116-2, however, the contractor did not show any interest to complete the work.

It is further submitted that since the work was on stand still for a long time without any progress and the petitioner hesitated to carry out the work as per the directions of the departmental officers, the 5th respondent - Chief Engineer, had visited the site on 05.11.2021 and was convinced with all these evident facts and thereafter only the Chief Engineer ordered to terminate the contract and re-arrange the work at the risk and cost of the petitioner since he has damaged two buildings of historical importance and has not taken any step to re-start the work or to complete the work on time. Hence, according to the 1st respondent, there are no options left except terminating the contract. Accordingly, based on the Chief Engineer's direction, the Assistant Engineer issued a Stop Memo to the petitioner in this regard and as per the Contractor's request, a meeting was held at the chamber of the Superintending Engineer on 17.11.2021 in the presence of other Departmental officers. Thereafter, the 2nd Respondent - Executive Engineer, has reported that the petitioner has restarted the work on 20.07.2021 after executing plinth level concrete for the Reception Block and completed only lintel level concrete on 30.10.2021. The 2nd respondent - Executive Engineer also reported that due to the demolition of the roof of the two buildings during January 2021, permanent damage is caused to the buildings due to heavy rain & wind and caused huge loss to the Government. In these circumstances, since the progress of work was only 2.4%, after a lapse of 11 months from date of handing over of the site, the 1st respondent terminated the work at the risk and cost of the petitioner, vide Order No. D5/3144/PWD (B) SC-TVM/2020 dated, 18.11.2021.

It is submitted that as per clause 2116.1 of PWD manual, the agreement authority has the power to terminate the contract and arrange the work in the event of default on the part of the petitioner and the same clause is also included in the general conditions of agreement. According to the 1st respondent, serious lapses and negligence occurred on the part of the petitioner. Hence, the agreement authority issued Exhibit P11 termination notice dated 18.11.2021. As per the judgment dated 28.12.2021 in W.P(C)No.29576 of 2021, this Court directed the 6th respondent – the Secretary to Government, Public Works Department, Thiruvananthapuram, to consider the request of the petitioner against the termination notice after hearing and in the meantime, it was also directed that the work shall not be re-tendered, if not already re-tendered and corrective steps shall be deferred. As such the 6 Respondent, Secretary, P.W.D had conducted a hearing on 18.02.2022; and according to the respondents the order impugned was passed taking into consideration the entire aspects of the matter and therefore no interference is required.

A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition. The 1st respondent has also filed an additional affidavit and along with the same, various documents are produced to substantiate the contentions raised in the counter affidavit.

The  sum  and  substance  of  the  contentions  advanced  by  the  1st respondent is that the petitioner was not entitled to get any extension of time or enhancement of the contract amount since there was no laches on the part of the respondents in handing over the site. It is further pointed out that as per the time of completion up to the 4th month, 35% of the work was to be completed; up to the 8th month 70% of the work was to be completed and up to the 12th month 100% of the work to be completed, including all finishing works. Therefore, according to the 1st respondent since the petitioner did not comply with the terms and conditions executed by and between the parties and the instructions issued by the respondents and failed to carry out the work, the respondents were entitled to terminate the contract awarded to the petitioner.

I have heard learned counsel for petitioner Sri.P.Sathisan, learned Special Government Pleader Sri.K.V.Manoj and perused the pleadings and materials on record.

The question to be considered is whether any interference is required to Exhibit P11 termination order and Exhibit P13 order passed by the Secretary to Government, Public Works Department, Thiruvananthapuram – the 6th respondent, pursuant to a direction issued by a learned Single Judge of this Court in W.P.© No.26146 of 2022 ? Elaborate discussion of facts made above would make it clear that petitioner started the work of two cottages. But according to the petitioner, when the roof of the cottages were removed, it was found that the wooden ceiling was in a damaged condition and therefore, it required some time to complete the work. It is further contended that the copy of register of the Public Works Department Rest House, Kuttalam from the period 8.1.2021 till 15.11.2021 produced as Exhibit P14 series would show that other cottages were being given on rent and therefore, the cottages were not handed over to the petitioner in order to carry out the repair and maintenance works.

In my considered view, Exhibit P14 series copy of register produced by the petitioner would show that the contentions raised by the petitioner that he could not carry out the work due to the lock down restrictions of the State Governments of the Kerala and Tamil Nadu, cannot be sustained because the said documents would amply prove that the rest house was being rented out continuously. Moreover, without handing over the cottages, the petitioner could not have carried out the work of the two cottages. Even according to the petitioner, the work of the two cottages started by the petitioner was delayed and perhaps this might have persuaded the PWD authorities to rent out the rest house till such time petitioner completes the maintenance of the cottages already started. Moreover, there is no case for the petitioner that petitioner ever requested to hand over free and vacant possession of the rest of the cottages in order to carry out the work. It may be true that during the second pandemic COVID-19, some restrictions were there but it was not an absolute one except for a short period.

Anyhow, it is an admitted fact that the work carried out by the petitioner altogether is only 2.4% of the total contract awarded to the petitioner for an amount less than Rs.5 lakhs; whereas the total contract amount would exceed Rs.1 Crore. I also find from the documents produced by the petitioner itself that the petitioner was directed by the respondents to carry out the work since it was found that the petitioner was not doing the work in terms of the milestone fixed by the respondents. It is also evident from Exhibit P9 minutes of the meeting of the Superintending Engineer dated 17.11.2021 that the petitioner participated in the said meeting and petitioner could not explain properly the reason for not carrying out the work in terms of the contract. However, the said authority was convinced on the basis of the report submitted by the subordinate officers that substantial work was pending and the petitioner had carried out only a minor portion of the work entrusted to the petitioner.

Now the question is whether Exhibit P13 order passed by the Secretary to Government, Public Works Department is in accordance with law ? Admittedly, the said order was passed on a direction issued by this Court in W.P.© No.29576 of 2021. The contention advanced by the petitioner is that the Government Secretary has not considered any of the aspects raised by the petitioner. But going through Exhibit P13 order, I find that the contentions advanced by the petitioner was taken into consideration by the Secretary to Government and after considering the facts and circumstances only , it has arrived at the decision to reject the representation submitted by the petitioner in a short and crisp manner . It is also clear and evident from Exhibit P13 that opportunity of hearing was provided to the petitioner and the petitioner has given a detailed explanation of the circumstances, which was also taken into consideration by the Secretary to Government. It is also evident that, it was after considering the rival submissions that the Secretary arrived at the finding that the petitioner is not entitled to any extension of time and the termination of the contract made by the respondents is in accordance with law. On an analysis of the facts, circumstances and the material on record, I am of the view that the petitioner could not establish any arbitrariness, mala fides or any other legal infirmities, justifying interference in a proceeding under Article 226 of the Constitution of India.

Needless to say, the writ petition fails, accordingly, it is dismissed.