M/S Ragasumum Constructors And ORS v. The Lieutenant Governor And Others
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE MOUSHUMI BHATTACHARYA WPA/248/2021 M/S RAGASUMUM CONTRACTORS AND OTHERS ... PETITIONERS
Versus
THE LIEUTENANT GOVERNOR AND OTHERS ... RESPONDENTS For the petitioners : Mr. Gopala Binnu Kumar For the respondents : Mr. Shatadru Chakraborty Heard on : 17th August,2022 Judgment on : 18th August, 2022 Moushumi Bhattacharya, J.
1.
The petitioners prays for setting aside of an order passed by the Office of the Chief Engineer, Andaman Public Works Department, on 6th November, 2020 by which the business of the petitioners was suspended for a period of two years from the date of the order.
2.
The petitioner No.1 is the contractor named in the order and was engaged by the respondent authorities for widening the State Highway No.9 from Chunna Bhatta to Ferrergunj under South Andaman District.
3.
The impugned order was passed on the ground that the petitioners were guilty of slow progress of work and were unable to complete the work.
4.
Learned counsel appearing for the petitioners places documents to show that the petitioners were compelled to push back the date for completing the work by reason of the dilatory tactics of the respondent authorities. Counsel further places documents to show that out of Rs.10,00,000/-which were to be given to the petitioners, only Rs. 3,00,000/- was finally given by the respondents. Counsel places the relevant paragraph in the writ petition which enumerates the difficulties faced by the petitioners while executing the work. The stated causes include non-allocation of site, shifting of electric pole as well as delay in payment and the lockdown during which period the work could not be completed. It is also submitted that the date for completion was extended by at least three communications. 5.
Learned counsel appearing for the Administration/ respondents submits that the writ petition involves disputed questions of facts and that the impugned order is a wellreasoned order. Counsel relies on Rule 23.4 of the Enlistment (Amendment) Rules, 2017 of Contractors in Andaman Public Works Department, 2018, under which the Enlistment Board is entitled to order immediate suspension of business. Counsel also places communications dated 12.07.2019, 22.08.2019 and
14.10.2019 to show that the petitioners were unable to complete the work despite several reminders to that effect. 6.
Upon hearing learned counsel, the dispute appears to involve the question whether the petitioners were prevented from completing the work within the agreed time-frame. There appears to be two main reasons for the non- completion of the work. First, by an Office Order dated 2nd May, 2018, the petitioners were sanctioned an amount of Rs.10,00,000/- as mobilization advance. A subsequent document however shows that the petitioners were ultimately given Rs.3,91,793/-. Second, there are at least six internal documents from the Superintending Engineer to the Executive Engineer, Road Construction Division from 20th July, 2018 to 22nd August, 2019 with regard to shifting of electric pole from the periphery of the portion of the road/site. The Executive Engineer, APWD has brought the said fact to the notice of the Executive Engineer, Electricity Department and complained that no action has been taken by the latter to remove the electric poles which led to stoppage of the work.
7.
The respondents have no defence to these documents. Even if the date of the last internal letter namely, 22nd August, 2019 is taken into account the fact that the petitioners were prevented from doing the work from 20th July, 2018 to 22nd August, 2019, which is more than a year, cannot be ignorned.
8.
The other significant fact is that the Executive Engineer, APWD extended the time frame for completing the work on three occasions namely, 29.03.2019, 30.05.2019 and on 04.11.2020. The petitioners were given extension of time by each of three letters with the last extension being till 30.11.2020. The impugned Office Order suspending the petitioners for period of two years was issued on 06.11.2020. Hence, the suspension was issued during the extended period within which the petitioners were given time to complete the work. This fact is of significance making the impugned action arbitrary and vulnerable to challenge.
9.
It further appears from the impugned Office Order that the decision to suspend the petitioners for two years was taken on a complaint made by one Shri Stephen Martin, a Social Activist.
10.
Rule 23.4 of the Enlistment (Amendment) Rules of Contractors in APWD, 2018, is unconscionable since the Rules are bereft of the principles of natural justice. Rule 23.4 would also not be attracted in the present case since Rule 23.4 (i) provides for a default on the part of the contractor. The documents on record make it clear that the petitioners in this case cannot be held to be solely responsible for the non completion of the work.
11.
This court also takes note of the fact that although show cause notices were issued to several other contractors the
authorities failed to take similar action against the other contractors as has been taken against the petitioners. Hence, the action of the respondents is discriminatory towards the petitioners and violative of Article 14 of the Constitution of India.
12.
The writ petition does not contain any disputed questions of fact of a nature which would warrant rejection. This is a fit case where the extraordinary powers of the writ Court can be invoked for issue of appropriate orders against the arbitrary action of the respondents.
13.
WPA/248/2021 is accordingly allowed and disposed of by setting aside the Office Order dated 6th November, 2020. Although only two months remain of the period of suspension, the petitioners are entitled to be freed of the stigma on account of the impugned order.
14.
Urgent certificate copies of this judgement, if applied for, may be supplied to the parties upon compliance of usual formalities.
( Moushumi Bhattacharya , J.)