Kerala High Court
P.T.Thomas vs The Principal Secretary To Government on 31 August, 2010
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3747 of 2008(U)
1. P.T.THOMAS, S/O.THOMAS,
... Petitioner
Vs
1. THE PRINCIPAL SECRETARY TO GOVERNMENT
... Respondent
2. THE COMMISSIONER,
3. THE PROJECT OFFICER,
4. THE SUB DIVISIONAL ENGINEER PHONES
For Petitioner :SRI.P.V.GEORGE(ONAKKOOR)
For Respondent :SRI.MATHEWS K.PHILIP,SC, BSNL
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :31/08/2010
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P.(C)No.3747 Of 2008
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DATED THIS THE 31st DAY OF AUGUST, 2010
JUDGMENT
The challenge is against Exhibit P11 order passed by the 1st respondent by which the petitioner is directed to furnish bank guarantee for an amount of Rs.4,20,463/-towards loss sustained to the BSNL.
2. The petitioner is a contractor. The contract was executed with the 3rd respondent on 7.5.2002 for the construction of 10 roads in Pampady Panchayat under the Prime Minister's Gram Sadak Yogana Scheme. The said roads were proposed to be constructed through two sub divisions of BSNL, namely Pampady and Ponkunnam.
3. For the effective construction of the roads, certain electric posts, telephone posts, underground cables, water supply lines, etc. had been shifted. It is the case of the petitioner that in spite of repeated requests made by him, respondents did not take any action to remove the obstruction in the roads, in order to avoid possible damages to it and the underground cables and water lines. There were allegations that underground telephone cables along certain roads were damaged, leading to certain demand for damages from him. Ultimately, the dispute reached this Court, when the petitioner W.P.(C)No.3747/08 -2- filed W.P.(C)No.38629/03, which was disposed of by common judgment dated 4.2.2004. Aggrieved by certain directions in the judgment, the petitioner filed Writ Appeal No.658/04 which was disposed of by Exhibit P8 judgment. The present controversy is as to whether the directions issued in the operative portion of the judgment have been complied with by the parties concerned.
4. The Division Bench, after hearing the parties disposed of the Writ Appeal as follows:
"The amount payable to the appellant for the work done shall be disbursed by respondents 1 to 3 to the appellant within two months from the date of receipt of a copy of this judgment on the appellant furnishing a bank guarantee, for the amount of compensation demanded by the BSNL. There shall be a tripartite proceedings among the appellant, respondents 1 to 3 and the additional 4th respondent-BSNL on the fixation of liability regarding any alleged damages caused to the installations of the BSNL and compensation payable, if any, by the appellant. If, ultimately, any compensation is found to be due from the appellant, the appellant shall pay the same, failing which respondents 1 to 3 shall invoke the bank guarantee furnished by the appellant for paying the amount to the BSNL."
5. One of the questions directed to be considered was the W.P.(C)No.3747/08 -3- fixation of liability towards damages caused to the installations of BSNL and compensation if any payable by the petitioner. Importantly, this Court directed that there shall be a tripartite proceedings against the appellant(the petitioner herein), respondents 1 to 3 and the additional 4th respondent in the Writ Appeal, namely, the BSNL.
6. Purportedly, in compliance with the directions, the 1st respondent passed Exhibit P11 order. It is pointed out by the learned counsel for the petitioner that what was directed to be done was tripartite proceedings, but the 1st respondent has assumed the power under the contract and thus unilaterally fixed the amount as Rs.4,20,463/- that too without hearing the petitioner.
7. The proceedings, Exhibit P11, shows that the petitioner was given notice to appear on 13.3.2007 and he had given a reply that he could not attend the meeting, as he was on tour. Thereafter, the petitioner filed Exhibit P10 along with his objections in the matter. No further hearing was done. It appears that the BSNL had also raised certain claims before the Government and finally the present order was passed.
8. In the counter affidavit filed by the 1st respondent in paragraph 18 it is stated that no formal decision was taken in the meeting convened on 13.3.2007. In the absence of the petitioner, he W.P.(C)No.3747/08 -4- could not be heard. Therefore, in the interest of natural justice, the minutes of the proceedings of the meeting was informed to him on 16.3.2007 for his comments. It was decided to hear him also, for which he was given the proceedings of the meeting on 13.3.2007. In response to this, the petitioner in his letter dated 10.4.2007 furnished a detailed statement. The contentions raised therein were examined in detail and a final decision was taken as per Exhibit P11. I am of the definite view that the same will not satisfy the directions issued by the Division Bench in Exhibit P8 judgment, obviously and the observation in Exhibit P11 that for failure in attending the meeting on 13.3.2007, the petitioner has forfeited his right to be heard is not sustainable.
9. Evidently, going by the averments in the counter affidavit itself, to comply with natural justice, the minutes of the meeting were communicated to the petitioner. As the petitioner was absent on 13.3.2007, he had to be given a fresh hearing, that too in the presence of the authorities of the BSNL who were also entitled to be heard. It appears that the Government has passed Exhibit P11 by referring the rival contentions. Actually, the Government was not designated as an authority by this Court in Exhibit P8 judgment to pass an adjudicatory order. What was directed is to have a tripartite proceedings alone. The evidence produced by the BSNL ought to W.P.(C)No.3747/08 -5- have been put to the notice of the petitioner.
10. Evidently, the Government was compelled to pass the order in the present fashion in the light of a Contempt of Court Case (COC.No.1033/07) filed by the petitioner before this Court. Probably, during the pendency of the said case, they have rushed through the proceedings. But,in the hurry, the directions in Exhibit P8 judgment have not been properly considered and all opportunities were not given, which violated the principles of natural justice. In that view of the matter, Exhibit P11 cannot be supported.
11. It is submitted by the learned counsel for the petitioner that by raising various claims against the Government and others, the petitioner has already filed O.S.No.630/08 before the Additional Sub Court, Kottayam and the said suit is still pending. Whatever that be, since this Court in Exhibit P8 judgment had directed finalisation of the matter by having a tripartite proceedings, the same will have to be properly complied with.
12. In that view of the matter, Exhibit P11 is quashed. The 1st respondent will take steps to see that the tripartite proceedings are taken among the petitioner, respondents 1 to 3 in Exhibit P8 judgment and the additional respondent No.4-BSNL for arriving at liability, if any, on the part of the petitioner. The same will be completed within a W.P.(C)No.3747/08 -6- period of three months from the date of receipt of a copy of this judgment with due notice to all parties. This will not prejudice the contentions of the respective parties in the civil suit, which is pending.
The Writ Petition is allowed as above.
T.R.RAMACHANDRAN NAIR, JUDGE.
dsn