High Court · 2009

up together for the purpose of final disposal. Heard Mr. BD Konwar, learned counsel, assisted by Mr. MK Borah, learned counsel, for the petitioner, and Ms. RM Deka, learned Standing Counsel, Public Works Dep artment, appearing on behalf of the respondents. Let me, first, deal with the petitioner’s case in WP(C) No.1878/2009. The petitioner herein was entrusted with some works by Public Works Depa rtment (in short, ’PWD’), Government of Assam, under the Prime Minister’s Gramin Sadak Yojana (PMGSY) Scheme. By letter, dated 29-12-2008, placed at Annexure-P/ 17 to this writ petition, made under Article 226 of the Constitution of India, t he petitioner has been blacklisted by the respondent/authority concerned and by the letter, dated 29-01-2009, placed at Annexure-P/19 to this writ petition, the work, in question, which had been allotted to the petitioner, stands terminated . It is contended on behalf of the petitioner, that the decision to blackl ist the petitioner for the alleged delay in execution of the works was, unilater ally, taken without affording any opportunity to the petitioner to put across hi s version in the matter and, hence, the impugned order blacklisting the petition er may be declared as illegal and unauthorized in law. The petitioner has, in the present case, not only challenged the order b lacklisting him, but has also challenged the orders, whereby the works, assigned to the petitioner, as contractor, have been rescinded for alleged unsatisfactor y progress of the work. The petitioner contends that the decision to rescind the contract ought not to have been taken inasmuch as the petitioner had been granted additional ti me to complete execution of the works, but even before expiry of the extended pe riod, the work orders were rescinded. It is further contended, on behalf of the petitioner, that the ground re alities, at the place of the works, had not been taken into account and the extr a-ordinary difficulties faced by the petitioner, as contractor, had also not bee n considered by the respondents. By citing special circumstances, prevailing in the areas, where the works were to be executed, it is submitted, on behalf of th e petitioner, that the petitioner ought not to have been blamed for the delay in execution of the works. The petitioner further submits that although there are several contracto rs under the PWD, who have failed to complete their respective works on time, th e writ petitioner has been selectively targeted, which indicates discriminatory stand of the respondents. Appearing for the respondents, Ms. RM Deka, learned Standing counsel, su bmits that under Clause 24 of Section 4 of Conditions of Contract, a Dispute Red ressal System has been put in place and instead of a writ Court examining the le gality of the order terminating the contract, the matters should be relegated fo r adjudication by the Dispute Redressal System, which is an adequate alternate r emedy available with the petitioner. As regards not giving of an opportunity to the petitioner before orderin g blacklisting of the writ petitioner, Ms. R.M.Deka submits that the records cle arly reveal that the petitioner had miserably failed to execute the works within the stipulated period of time and the works had been abandoned without completi on. The respondents’ learned counsel, therefore, submits that even if an opportu nity had been afforded to the petitioner, no satisfactory explanation could have been given by the petitioner and the conclusion being inevitable, it was not ne cessary to afford any opportunity to the petitioner, as contractor, before he wa s blacklisted. Responding to the first submissions of the respondents, it is pointed ou t, on behalf of the petitioner, that the under terms of the contract, the ’emplo yer’ is defined to be the Chief Engineer, (Roads), PWD, and unless the competent authority prescribed under Clause 24.1 is an officer higher in rank than that o f the Chief Engineer, the Dispute Redressal System would be a futile exercise as no (cid:28)competent authority (cid:29), lower than a Chief Engineer, can be expected to disag ree with decisions taken at the level of the Chief Engineer. In similar circumstances, as in the present case, the High Court, in its order, dated 03-08-2009, passed in WP(C) No. 581/2009, observed and directed as under: (cid:28)Having regard to the above submission, I am of the opinion that while the petit ioners may be relegated to the Dispute Redressal System - the alternate remedy e nvisaged under Clause 24.1, the (cid:28)competent authority (cid:29) prescribed therein must be an officer, above the rank of the Chief Engineer. Only then the petitioner can have confidence with the Dispute Redressal System, put in place under the terms of the contract. In so far as the issue of blacklisting is concerned, since the petitione r was not afforded any opportunity before blacklisting order was passes, it woul d be appropriate to direct the respondents to take such action only after afford ing an opportunity to the aggrieved Contractor. Accordingly, on this issue, if t he respondents issues Chow Cause Notices to the petitioners to enable him to put forward his versions on the allegations against him and the respondents conside r such replies and thereafter takes an appropriate decision, it would, in my vie w serve the cause of justice. Accordingly the impugned blacklisting orders are h ereby quashed but the respondents are permitted to proceed afresh, if so advised , on blacklisting of the writ petitioner but only in accordance with law. The learned counsel appearing for the petitioner Achunt Saikia submits t hat he may be permitted to raise all the points before the (cid:28)competent authority (cid:29) of the Dispute Redressal System. The learned counsel appearing for the petition er Kush Kumar Yadav also submits that he may also be permitted to avail of the a lternate remedy against the contract rescinding order, although the same is not specifically challenged in his W.P.(C) 581/09. In so far as work-rescinding orde r issued against the contractor Jiten Kalita, it is submitted by his Advocate Mr . B. Kalita that the said contractor has approached the Civil Court for redressa l of his grievance with regard to work rescinding order. Having regard to the above submissions of the learned counsels for petit ioner, is permitted to approach the (cid:28)competent authority (cid:29) as envisaged under Cla use 24.1 with regard to the work rescinding orders issued against them by the re spondents. He would approach the respondents in this regard with all necessary d ocuments within 2 weeks from today. On applications of the two petitioners, the respondents would facilitate the adjudication of their grievances through a (cid:28)com petent authority (cid:29) of an appropriate rank under the Dispute Redressal System envi saged by Clause 24 of the Contract where it would be ensured that the (cid:28)competent authority (cid:29) is an officer in rank, than the Chief Engineer. The (cid:28)competent authority (cid:29) would ensure expeditious disposal of the proce eding, where the petitioner contractor will also lend their cooperation. The mat ters be disposed of expeditiously and preferably within a period of 3 months, af ter the petitioners make their approach. The (cid:28)competent authority (cid:29) would adjudic ate on the matters on merit without having regard to any observation made in thi s order. No penal action in so far as the allotted works to the writ petitioner would be taken by the respondents, without an appropriate decision by the (cid:28)compe tent authority (cid:29). It is ordered accordingly. With the aforesaid direction these 2 writ petitions stand disposed of. (cid:29) Having regard to the fact that the issues, which arise for determination , in the writ petitions, are similar to the ones, which were dealt with, and dec ided, in the order, dated 03-08-2009, passed in WP(C) No. 581/2009 and similar o ther matters, the impugned order dated 29/12/2008 blacklisting the petitioner is hereby set aside and quashed, but the respondents are left at liberty to procee d, in accordance with law, afresh, if so advised, on the subject of blacklisting the writ petitioner. As regards the termination of the contract, this writ petition i.e., WP( C) No.1878/2009 is disposed of with similar directions as were given in the orde r, dated 03-08-2009, passed in WP(C) No. 581/2009. The petitioner shall accordin gly take steps in terms of the directions, which have been given in the order, d ated 03-08-2009, passed in WP(C) No. 581/2009 and if the petitioner applies for redressal of his grievances in terms of the directions as indicated hereinbefore , within a period of two weeks from today, the respondents shall deal with the m atter in the manner and within the time frame as given in the order, dated 03-08 -2009, passed in WP(C) No. 581/2009. Coming to the WP(C) No. 2015/2009, it may be pointed out that consequent to his having been blacklisted by the order, dated 29-12-2008, aforementioned, which st ood impugned and has already been discussed above, in WP(C) No. 1878/2009, the p etitioner’s contract, which forms the subject-matter of this writ petition, has been terminated. Hence, the legality and correctness of the termination is requi red to be dealt with, and decided, in the same manner as the termination of cont ract is required to be deal with, and determined, in WP(C) No. 581/2009 and simi lar other matters. It is, therefore, directed that as against the impugned order, dated 07-02-2009, whereby the petitioner’s contract stood terminated, the petitioner shall apply to the competent authority as envisaged under Clause 24.1, in terms of the obser vations already made, and directions already given, while dealing with the termi nation/rescission of the contract, which formed the subject-matter of controvers y in WP(C) No. 1878/2009. With the above observations and directions, these writ petitions shall s tand disposed of. No order as to cost.