ANEESH APPU v. STATE OF KERALA

SRI.P.S.APPU – GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4703 OF 2023 2 JUDGMENT The petitioner undertook certain works for the Public Works Department (PWD), but was unable to complete the same on account of various reasons which, he says, are not attributable to him. He alleges that, however, in spite of this, the third respondent - Executive Engineer, has issued Exts.P3 to P6 orders cancelling the contract at his “risk and cost”, followed by Ext.P7 order issued by the 2nd respondent - Superintending Engineer, directing him to appear before him on 03.02.2023, for a hearing to fix the “risk and cost” liability against him. He thus impugns Exts.P3 to P7 as being illegal and unlawful.

2. Sri.Lindons C.Davis – learned counsel for the petitioner, vehemently argued that, as is evident from Exts.P1 and P2 earlier representations made by his client before respondents 2 and 3 respectively, among the various reasons that have led to the running contract being unable to be performed by his client effectively, is the withholding of the bills and security deposits with respect to the said works and that of other collateral and earlier works, without any tangible WP(C) NO. 4703 OF 2023 3 reasons. He submitted that this is a clear case where his client is financially choked; thus being incapacitated from continuing with the contract effectively, even though his intention was and is to honour it fully. He submitted that, therefore, his client does not stand in the way of the contracts being terminated, but that the action now proposed in Ext.P7, namely to fix risk and cost, is illegal and unlawful.

3. Sri.P.S.Appu – learned Government Pleader, in response, submitted that, as is evident from Exts.P3 to P6, the Executive Engineer has no other option, but to cancel the contract awarded to the petitioner and to fix risk and cost responsibility against him, because he did not respond to any of the letters issued to him, as have been referred to in the said orders. He submitted that Exts.P1 and P2 are self-serving documents now placed on record by the petitioner, in which, untenable objections have been impelled; and therefore, that this writ petition is not maintainable. He then argued that, there was no reason for the petitioner to have approached this Court at all because, Ext.P7 is only a notice asking him to show cause why risk and cost is not fixed against him; and that he can always reply to the same, as also explain why his licences WP(C) NO. 4703 OF 2023 4 be not cancelled in future. He concluded saying that the Superintending Engineer will take any further action against the petitioner only if it is warranted; and that too, after following due procedure and in terms of law, without any breach.

4. When I assess and evaluate the afore rival assertions, it is limpid that there are disputations of facts between the parties, which cannot be resolved by this Court, while acting under Article 226 of the Constitution of India. On one hand, the petitioner says that he has endeavored to complete the work as per the contract, but was unable to do so on account of the severe financial crunch brought upon him by the conduct of the respondents in not releasing the payments in time; while, on the other, the officials take the stand that the petitioner did not respond to any of the earlier notices issued to him, thus constraining the Executive Engineer to issue Exts.P3 to P6 letters, cancelling the contracts and terminating the same under the risk and cost of the petitioner. As a corollary, the official respondents maintain that the cancellation of the licence is a necessary consequence and nothing else.

5. However, it must be borne in mind that it is the WP(C) NO. 4703 OF 2023 5 specific case of the petitioner that, he was willing and ready to continue with the work but could not do so on account of the financial crisis, which was allegedly brought upon him since the bills entitled to him were not released by the official respondents. 6. Obviously, these are matters which will have to be considered comprehensively by the Superintending Engineer before any further action, to either terminate the licence of the petitioner, or to cancel the contract at risk and cost is taken and completed.

7. In the afore circumstances, acceding to the request of the learned Government Pleader, I allow this writ petition to the limited extent of granting liberty to the petitioner to make a detailed objection against Ext.P7 before the Superintending Engineer; and if this is done within a period of one month from the date of receipt of a copy of this judgment, the said Authority will hear him and advert to the said objections; thus culminating in an appropriate order, detailing the reasons, if any, for either imposing risk and cost on him, and/or cancelling his licence - as the case may be. Needless to say, until such time as the afore exercise is completed and resultant order communicated to the petitioner, WP(C) NO. 4703 OF 2023 6 the detriment of either the risk and cost, or the cancellation of his contract – even if it is to be so ordered by the Superintending Engineer - shall not be given effect to. Sd/- DEVAN RAMACHANDRAN JUDGE WP(C) NO. 4703 OF 2023 7 APPENDIX OF WP(C) 4703/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE REPRESENTATION E-MAILED ON 18.01.2023 TO THE 2ND RESPONDENT Exhibit P2 A TRUE COPY OF THE REPRESENTATION E-MAILED ON 18.01.2023 TO THE 3RD RESPONDENT Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 A TRUE COPY OF THE ORDER NO.D1/PWD/RW/EST/104210/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT A COPY OF THE ORDER NO.D1/PWD/RW/EST/104352/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT A COPY OF THE ORDER NO.D1/PWD/RW/EST/104313/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT A COPY OF THE ORDER NO.D1/PWD/RW/EST/104888/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT . A COPY OF THE LETTER NO.FCR-485/2013 DATED 27.01.2023 ISSUED BY THE 2ND RESPONDENT A COPY OF THE WRITTEN SUBMISSION TOWARDS HEARING DATED 03.02.2023 BEFORE THE 2ND RESPONDENT Exhibit P9 A COPY OF THE INTERIM ORDERS DATED 01.11.2022 IN WP(C) NO.33871/2022 Exhibit P10 . A COPY OF THE REQUEST OF THE PETITIONER DATED 29.10.2022 BEFORE THE 2ND RESPONDENT Exhibit P11 A TRUE COPY OF THE RELEVANT PAGES OF PWD MANUAL 2012 WP(C) NO. 4703 OF 2023 8 RESPONDENT EXHIBITS Exhibit R2(a) A true copy of GO(Rt) No.147/2022/PWD dated 09.02.2022 exhibit R3a GORT 147/2022/PWD dt.9.2.2022