High Court · 2009

Mr. I. Choudhury, learned standing counsel for the Public Works Department represents the respondents in these cases. All the 3 petitioners were entrusted with various works by the PWD under the Prime Minister’s Gramin Sadak Yojana (PMGSY) Scheme and have approached thi s Court to challenge orders passed by the respondents rescinding their contracts and also the orders whereby the writ petitioners have been blacklisted. It may be recorded at the outset that the writ petitioner Kush Kumar Yad av [W.P.(C) No. 581/2009] and writ petitioner Jiten Kalita [W.P.(C) No. 408/2009 ] have challenged the orders of the respondents, whereby M/s J.K. Enterprise (Pr oprietary concern of Kush Kumar Yadav) and Jiten Kalita have been blacklisted. It is contended that the order blacklisting the petitioners for the alleged dela y in execution of the works was unilaterally taken without affording any opportu nity to the petitioners to put across their version in the matter and under such circumstances, it is submitted that the blacklisting orders has to be declared as unauthorized in law. The 3rd petitioner Dwijen Chutia [W.P.(C) No. 414/2009] has not only cha llenged the blacklisting order but has also challenged the orders, whereby the w ork assigned to the said contractor have been rescinded, for alleged unsatisfact ory progress of the work. It is contended on behalf of the petitioners that the decision to rescin d the contracts should not have been passed in as much as the contractors were g ranted additional time to complete the execution of the works and even before ex piry of the extended period, the work orders were rescinded. It is further contended that the ground realities at the place of the wo rks were not taken into account and the extra ordinary difficulties faced by the contractors were also not considered by the respondents and by citing the speci al circumstances, it is submitted that no blame should have been placed with the contractors for the delay in execution of the works. The petitioners also submit that although there are several contractors under the PWD who have failed to complete works on time, the writ petitioner con tractors have been selectively targeted, which indicates a discriminatory stand of the respondents. Appearing for the respondents, Mr. I. Chowdhury, learned standing counse l firstly submits that under Clause 24 of Section 4 of Conditions of Contract, a Dispute Redressal System has been put in place and instead of the Writ Court ex amining the legality of the Contract Termination Orders, the matters should be r elegated for adjudication by the Dispute Redressal System, which is an adequate alternate remedy available with the petitioners. As regards not giving an opportunity before ordering blacklisting of the writ petitioners, Mr. Chowdhury submits that the records clearly reveal that th e contractors have miserably failed to execute the work within the stipulated ti me and the works have been abandoned without completion. Therefore the responden t’s counsel submits that even if such an opportunity would have been afforded to the petitioners, no satisfactory explanation could have been given by them and the conclusion being inevitable, it was not necessary to afford any opportunity to the contractors, before they were blacklisted. Responding to the first submissions of the respondents, it is pointed ou t by the petitioners that under the terms of the contract the ’employer’ is defi ned to be the Chief Engineer, (Roads), PWD and unless the competent authority pr escribed under Clause 24.1 is an officer higher in rank than the Chief Engineer, the Dispute Redressal System would be a futile exercise as no (cid:28)competent author ity (cid:29) lower than a Chief Engineer can be expected to disagree with decisions take n at the level of the Chief Engineer. Having regard to the above submission, I am of the opinion that while th e petitioners may be relegated to the Dispute Redressal System - the alternate r emedy envisaged 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 petition er 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 rs were not afforded any opportunity before blacklisting orders were passed, it would be appropriate to direct the respondents to take such action only after af fording an opportunity to the aggrieved Contractors. Accordingly on this issue, if the respondents issues Show Cause Notices to the petitioners to enable them t o put forward their versions on the allegations against them and the respondents consider such replies and thereafter takes an appropriate decision, it would, i n my view serve the cause of justice. Accordingly the impugned blacklisting orde rs are hereby quashed but the respondents are permitted to proceed afresh, if so advised, on blacklisting of the writ petitioners, but only in accordance with l aw. The learned counsel appearing for the petitioner Dwijen Chutia 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, the 2 wr it petitioners Dwijen Chutia and Kush Kumar Yadav are permitted to approach the (cid:28)competent authority (cid:29) as envisaged under Clause 24.1 with regard to the work res cinding orders issued against them by the respondents. They would approach the r espondents in this regard with all necessary documents within 2 weeks from today . On applications of the two petitioners, the respondents would facilitate the a djudication of their grievances through a (cid:28)competent authority (cid:29) of an appropriat e rank under the Dispute Redressal System envisaged by Clause 24 of the Contract where it would be ensured that the (cid:28)competent authority (cid:29) is an officer higher i n rank, than the Chief Engineer. The (cid:28)competent authority (cid:29) would ensure expeditious disposal of the proceeding, w here the petitioners/contractors would also lend their cooperation. The matters be disposed of expeditiously and preferably within a period of 3 months, after t he petitioners make their approach. The (cid:28)competent authority (cid:29) would adjudicate o n the matters on merit without having regard to any observation made in this ord er. No penal action in so far as the allotted works to the 2 writ petitioners wo uld be taken by the respondents, without an appropriate decision by the (cid:28)compete nt authority (cid:29). It is ordered accordingly. With the aforesaid direction these 3 writ petitions stand disposed of.