Jharkhand High Court
Shailendra Kumar vs The State Of Jharkhand & Ors on 23 December, 2021
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W. P. (C) No. 6545 of 2014
Shailendra Kumar .... .. ... Petitioner(s)
Versus
The State of Jharkhand & Ors. .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Petitioner(s) : Mr. Ashok Kr. Jha, Advocate.
For the Resp./State : Mr. Suresh Kumar, SC (L&C)-II ..........
09 / 23.12.2021. Heard, learned counsel for the parties.
Mr. Ashok Kr. Jha, learned counsel for the petitioner has submitted that defect No.3 may be ignored for the present.
After perusing the defect no.3 with regard to filing of typed copy, Certified to be true of Page nos.26, 29, 33 to 37 is hereby ignored for the present.
So far the other defect(s) is concerned, Mr. Ashok Kr. Jha, learned counsel for the petitioner shall remove the same within 30 days from today.
Joint Registrar (Judicial) of this Court is directed to ensure compliance of the order.
Mr. Ashok Kr. Jha, learned counsel for the petitioner has submitted, that the petitioner (Shailendra Kumar) has preferred the instant Writ Petition before this Hon'ble Court on 23.12.2014 for direction(s), commanding upon the respondents to show-cause and explain as to under what circumstances, the payment of the remaining work executed by the petitioner in terms of agreement number 3F2 of 2012-13 has not been paid to him till date in spite of the fact that the final measurement of the same was taken on 12.03.2013 in presence of the petitioner and concerned Assistant Engineer/ Junior Engineer and on perusing the show-causes, if any filed by the authorities and on being satisfied be further pleased to direct the respondents to make final payment of the work done and executed by the petitioner as per the measurement.
Mr. Ashok Kr. Jha, learned counsel for the petitioner has further submitted, that the reason has not been assigned as to why part payment of the petitioner has been withheld though the petitioner has executed the work with sincerity as per the agreement.
Mr. Suresh Kumar, learned SC (L&C)-II appearing for the State has submitted that counter-affidavit has been filed by Satya Thakur, C.D.P.O., Jamshedpur, on 24.07.2015 and the relevant fact has been mentioned at Paras 6 to 11 and 14 to 16 of the counter-affidavit which may profitably be quoted hereunder :-
-2-6.That it is stated that the petitioner was selected a Anganwadi Sevika on 24.07.1987 at Anganwadi Centre, Manjikuli, Sonari.
7.That it is stated that having found some irregularities in the said centre in course of inspection of District Programme Officer on 14.07.1997, the petitioner was noticed to show Cause and being dissatisfied with the show cause, petitioner's selection was cancelled by order dated 5.5.1998 and in her place one Usha Devi was selected.
8.That it is stated that being dissatisfied with and aggrieved by the said cancellation order dated 5.5.1998 the petitioner filed CWJC No.2889 of 1998(R) and by order dated 16.04.2009 said cancellation order dated 5.5.1998 was set aside.
9. That it is stated that in the light of the order dated 16.04.2009, passed in CWJC No.2889 of 1998(R) the selection of said Usha Devi was cancelled by order dated 24.09.2009 of the Deputy Commissioner and the present petitioner was reinstated in her place as against single post two candidates cannot be engaged.
10. That it is stated that being dissatisfied with and aggrieved by the order dated 24.09.2009, said Usha Devi filed WPS No.5552 of 2009 and by order dated 7.11.2012 of the Hon'ble High Court said order and dated 24.09.2009 was set aside with a direction to initiate a denovo proceedings and the petitioner as per order dated 6.4.2009 of CWJC No.2889 of 1998 [R].
11. That it is stated that in compliance of order dated 7.11.2012 of WPS No.5552 of 2009, the Respondent No.2 by his impugned order dated 29.4.2013 accepted the joining of Usha Devi and CDPO Jamshedpur is directed to make a detail enquiry against the present petitioner in the light of the irregularities found on 14.7.1997 in course of inspection and submit a report.
14.That in reply to Para 4 to 10 of the writ application it is stated that the petitioner's appointment has been cancelled and an enquiry has been set up against her in pursuance to order dated 7.11.2012 passed in WPS No.5552 of 2009.
15. That in reply to Para 11 to 13 of the writ application are related to different orders of the Hon'ble High Court passed in different writ applications time to file filed by the present petitioner and one Usha Devi, hence need no comments.
16.That statement made in para 14 is incorrect. It is stated that the selection of the petitioner has been cancelled and an enquiry has been set up against her in the terms of order dated 7.11.2012 of WPC No.5552 of 2009.
Mr. Suresh Kumar, learned SC (L&C)-II appearing for the State has submitted that another counter-affidavit has been filed by Rambadan Singh, Executive Engineer, NH Division, Deoghar, on 05.11.2015 and the relevant fact has been mentioned at Paras 7 to 17 and 21 to 27 of the counter-affidavit which may profitably be quoted hereunder :-
"7.That it is humbly stated and submitted that the petitioner Shailendra Kumar executed an agreement no.3F2 of 2012-13 for Pot-patch work (Ordinary repair) under N.H.-80 from KM to 197 to 204. The amount of work was Rs.14,77,792/- work order was given by the Executive -3- Engineer, N.H. Division, Dhanbad (respondent no.6) vide letter no.830 dated 04.06.2012. The work has to be completed upto 03.07.2012 (within a month).
8.That it is humbly stated and submitted that Bitumen supply order has been issued vide letter no.845 dated 06.06.2012 and 983 dated 10.07.2012 by Executive Engineer, N.H. Division, Dhanbad to collect Bitumen from Indian Oil Dhanbad and Bitumen Emulsion (R.S. Gr.-I) from Ulberia (West Bengal) but petitioner has not taken any care and after lapse of more than two months petitioner was allowed extension of time for purchase of Bitumen and Bitumen Emulsion vide letter no.1242 and 1243 dated 15.09.2012 by Executive Engineer, N.H. Division Dhanbad.
9.That it is humbly stated and submitted that the petitioner was again written to complete the work at earliest by Assistant Engineer N.H. Sub- Division, Sahibganj vide letter no.255 dated 17.11.2012 but petitioner did not take care.
10.That it is humbly stated and submitted that the Assistant Engineer, N.H. Sub Division, Sahibganj has written vide letter no.280 dated 20.12.2012 to site incharge (Junior Engineer) to take measurement of work executed by the petitioner for part payment to the petitioner.
11.That it is humbly stated and submitted that the quality test report was taken and a part payment was made for Rs.3,58,876/- vide Cheque no.134034, dated 15.01.2013 to the petitioner as per measurement taken.
12.That it is humbly stated and submitted that after payment also there was no progress in work due to negligence on the part of petitioner.
13.That it is humbly stated and submitted that the Pot-hole of the road became bit to bigger which disturbed smooth running of traffic.
14.That it is humbly stated and submitted that the local administration, political parties and high officials always pressurizing the Department to complete the work immediately.
15.That it is humbly stated and submitted that the lastly on 12.03.2013 final measurement was taken in presence of petitioner.
16.That it is humbly stated and submitted that it is found that the quality of work is so poor and not as per specification. Hence due to non-completion of work as per specification and its low quality question of payment does not arise. Department was put in great loss due to negligence of petitioner.
17.That it is humbly stated and submitted that details of payment to the petitioner is herein under :-
I)Agreement No.-3F2 of 2012-13
ii)Agreement Amount- Rs.14,77,792/-
iii)Paid Amount- Rs.3,58,876/-
iv)Balance Amount- Nil.
v)Reasons for non-payment :- Work was not done by the writ petitioner on the pretext of rainy season. This lame excuse planted in writ petition is false and mis-interpreted. The work beyond specification done, is not subject to payment.
21.That with regard to the statement made by the petitioner in paragraph-9, in the instant writ petition under reply, it is humbly stated -4- and submitted that the same is totally false and not correct to say that the respondents were pointing the loop holes of the petitioner rather he was not serious to continue the work properly for this, he was cautioned from time to time for his negligence and latches,
22.That with regard to the statement made by the petitioner in paragraph-10 and 11, in the instant writ petition under reply, it is humbly stated and submitted that the work not delayed due to rain rather it was delayed and kept pending because of his negligence for which he was cautioned from time to time.
23.That with regard to the statement made by the petitioner in paragraph-12 to 14, in the instant writ petition under reply, it is humbly stated and submitted that the same is regarding completion of work and its payment is not denied being the matter of record. A part payment was made to the petitioner, for bill value Rs.6,29,973=00 against agreemented amount of Rs.14,77,792=00.
24. That with regard to the statement made by the petitioner in paragraph-15 to 19, in the instant writ petition under reply, it is humbly stated and submitted that the same are nothing but reiteration of correspondences in between petitioner and respondents and due to low quality of work it was not measured and work value remained same as part payment.
25. That with regard to the statement made by the petitioner in paragraph-20 and 21, in the instant writ petition under reply, it is humbly stated and submitted that the same are nothing but termed as false assertions made. Due to poor quality of work it was not measured as such question of raising any bill does not arise.
26. That with regard to the statement made by the petitioner in paragraph-22 to 24, in the instant writ petition under reply, it is humbly stated and submitted that the claim of petitioner for payment of final bill is imaginary and contra to the facts stated therein. The petitioner has not executed the work in terms of agreement no.3F2/2012-13.
27. That with regard to the statement made by the petitioner in paragraph-25 and 26, in the instant writ petition under reply, it is humbly stated and submitted that the petitioner is not entitled for any claim as stated in these paragraphs as the work was not done as per agreement and specification. The work beyond specification done is not subject to any payment."
Mr. Suresh Kumar, learned SC (L&C)-II has thus, submitted that the petitioner has not completed the work and work was found to be poor in quality and petitioner has only tried to pressurize the respondent-authorities for making part payment which cannot be allowed in Writ Jurisdiction under Article 226 of the Constitution of India in such disputed question of facts, as such, the instant Writ Petition may be dismissed.
Mr. Ashok Kr. Jha, learned counsel for the petitioner has further submitted, that the petitioner in-reply to the counter-affidavit filed rejoinder on 31.08.2016 and submitted that the relevant fact has been stated at Paras 4, 5 and 6 of the rejoinder which may profitably be quoted hereunder :-
-5-"4.That with respect to para 8 and 9 of the counter-affidavit it is stated that the statement made therein are not correct as such are denied. It is true that the then Respondent No.6 wrote letters bearing No.846 dt. 6.6.12 and 956 dt. 9.7.12 to the Shell India Markets (P) Ltd. for procurement of Emulsion, however the same was ultimately supplied in the month of October 2012 as the same is self apparent from the letter contained in memo no.1242 dt. 15.9.2012 of the Executive Engineer N.H. Division Dhanbad. After procuring the bitumen in the month of October 2012, this petitioner completed the entire repairing work in the month of Jan. 2013 itself. The petitioner is not at all responsible for the delayed work.
5.That with respect to para 10 and 11 of the counter-affidavit it is stated that as per the direction of the-then Respondent no.6 this petitioner submitted the bill for the part-work done by him and accordingly The Assistant Engineer, Sub Division Sahebganj vide his letter No.280 dt. 20.12.2012 instructed the Junior Engineer to take measurement of the work done by the petitioner and submit the bill.
In compliance of the aforesaid letter the Junior Engineer took the measurement on the said basis a part payment of Rs.3,58,876/- (Rupees Three Lakh fifty eight thousand eight hundred seventy six) only was made to this petitioner vide cheque No.134034 dt.15.1.2013.
6. That with respect to para 12, 13 and 14 it is stated that the statement made therein are wrong as such are denied.
It is relevant to mention herein that the then Respondent No.6 i.e. Executive Engineer N.H. Division Dhanbad, the reason best known to him, was antagonistic towards this petitioner.
The petitioner completed the work as per the specification which would be self apparent from the quality test report pertaining to W.B.M. Grade-III, premixing Carpet, B.U.S.M. Stone Metal respectively (Annexure-8 series). However the payment of the final work done has not been made to this petitioner till date. Inspite of the fact that the final measurement had already been taken on 12.3.2013 in presence of this petitioner."
Mr. Ashok Kr. Jha, learned counsel for the petitioner has further submitted, that there is delay in supply of emulsion which was because of the latches on the part of the respondent-authorities and submitted that part payment of Rs.3,58,876/- only has been made to the petitioner on 15.01.2013, but even after the final work done by the petitioner, rest payment has not been made till now, as such, the prayer made in the writ petition may be considered.
Considering the rival submissions of the parties and looking into the facts and circumstances of the case and perusing the materials available on record, it appears that the State has come with a case that the work, in question has not been completed and further the work is not up to the mark, as such, this Court is not inclined to issue Writ in favour of the petitioner in the facts and circumstances of the case.
Accordingly, the instant Writ Petition stands dismissed.
Sandeep/ (Kailash Prasad Deo, J.)