Orissa High Court
Prafulla Kumar Pradhan vs State Of Odisha And Others ..... Opp. ... on 23 July, 2018
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 14695 of 2015
AFR
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Prafulla Kumar Pradhan ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : M/s. Prabodha Ch. Nayak,
and S.K.Rout, Advocates
For opp. parties : M/s B.P.Pradhan,
Additional Government Advocate
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PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HON'BLE DR. JUSTICE B.R.SARANGI Decided on: 23.07.2018 DR. B.R. SARANGI, J, The petitioner, a registered "A" Class Contractor registered under the P.W.D. Contractor Registration Rules, 1967, has filed this writ petition challenging the rejection of his representation dated 04.07.2016 filed for 2 claiming incentive amounting to the tune of Rs.19,12,259/- which has been passed in compliance of order dated 28.06.2016 in W.P.(C) No.8334 of 2016.
2. The factual matrix of the case in hand is that Superintending Engineer, Public Health Circle, Bhubaneswar- opposite party no.4 invited public e-tender on behalf of Governor of Odisha vide identification No.SEPHBBSR- 09/2014-15 dated 26.08.2018 for the work "Replacement of existing water supply PSC pipeline with M.S./D.I. Pipe gravity main from Ghatikia MBR to Kalinga Nagar, K-7 and K-8 Junction at Bhubaneswar, under State Plan 2014-15". The cost of the tender value is Rs.247.27 lakhs (approximately) and the work is to be executed under the Executive Engineer, PH Division-III, Bhubaneswar-opposite party no.5. As per the tender call notice, the period of completion is 12 months. As per tender condition and condition of contract, the petitioner having been qualified in technical bid as well as financial bid, he was allowed to perform the contract and as per the provisions contained in Clause-6.21, he is entitled to get incentive for early completion of work. The petitioner having 3 been issued with work order dated 28.11.2014 with schedule period of completion of work within 12 months, executed the agreement and signed with the date of commencement 28.11.2014. Therefore, the stipulated date of completion was 27.11.2015. The petitioner executed the work and successfully completed the same on 26.08.2015, i.e., much before the stipulated date for completion. Therefore, the measurement was recorded and final bill was paid. But, as per tender condition and agreement, no incentive was paid to the petitioner for early completion of work even after repeated request of the petitioner. Lastly on 16.09.2015, the petitioner sent a representation along with copy of amended notification for payment of incentive dues for early completion. Due to inaction of the authority, the petitioner approached this by filing W.P.(C) No.8334 of 2016 and this Court vide order dated 28.06.2016 disposed of the said writ petition permitting the petitioner to file a fresh representation. Consequence thereof, the petitioner filed representation on 04.07.2016 which was considered and rejected by opposite party no.2-Engineer-in- 4 Chief, Public Health, Odisha, Bhubaneswar-opposite party no.2. Hence this application.
3. Mr. P.C. Nayak, learned counsel for the petitioner strenuously urged before this Court that as per Clause 6.21 of the tender condition, the petitioner is entitled to get incentive for early completion of work. But, the same has been rejected on the ground that there is some procedural violation therefore, the petitioner is not entitled to any incentive as claimed in the representation. It is contended that procedural violation has not been indicated in the order itself nor disentitlement of the petitioner has been mentioned in the order impugned. Therefore, the petitioner seeks for quashing of the same and further seeks for a direction to pay incentive for the Codal provision of the tender issued by the authority concerned. To substantiate his case, he has relied upon a judgment of this Court in Prafulla Kumar Pradhan v. State of Odisha, 2017(I) ILR-CUT 381.
4. Mr. B.P. Pradhan, learned Additional Government Advocate contended that the authorities have well justified in rejecting the claim of the petitioner with regard to grant of 5 incentive for early completion of work. It is further contended that incentive should be paid in respect of individual project for new construction/substantial additional or improvement work. As per Note-III of Para-3.5.5 of OPWD Code (Vol.1), Executive Engineer has been authorized to intimate the actual date of completion of the project as soon as possible through Fax or E- mail so that report can be received within seven days of such completion by the concerned Superintending Engineer, Chief Engineer and Administrative Department. Since the project (work in question) is not a new individual project, opposite party no.5 has not submitted his report before the Superintending Engineer and Chief engineer within seven days of completion. Therefore, the claim of the petitioner to get incentive cannot sustain. Accordingly, the authority is justified in rejecting the claim of the petitioner which does not warrant interference of this Court at this stage.
5. We have heard Mr. P.C. Nayak, learned counsel for the petitioner and Mr. B.P. Pradhan, learned Additional Government Advocate for the State. Perused the records. Pleadings have been exchanged between the parties and with 6 the consent of learned counsel for the parties, the matter is being disposed of at the stage of admission.
6. The facts narrated above are undisputed one. For just and proper adjudication of the case in hand, Clause-6.21 of the tender document is referred below:
"Clause 6.21 - Incentive for Early Completion. Incentive @ 1% will be paid in case of completion of the work ahead of one month (Part of month, shall be excluded) from the stipulated date for completion and the maximum amount shall be 2% if the work is completed 2 months ahead of the schedule time. For payment of incentive, the codal provision as laid by works Department in their letter No. 10070 Dt. 08.05.2007 and OPWD Code Volume-I para 3.5.5 and subsequent amendment thereof shall be followed".
7. The Government of Odisha, Works Department has issued an Office memorandum on 08.11.2013 by answering Clause 4(B)-Amendment to Para-3.5.5(V) Note-III of OPWD Code, Volume-1 by inclusion which is quoted below:
10. Clause 4(B) of the Office Memorandum dated
08.11.2013 is quoted below:-
"4(B)-Amendment to Para-3.5.5(V) Note-III of OPWD Code, Vol-I by inclusion-
Note-III- For availing incentive clause in any project which is completed before the stipulated date of completion, subject to other stipulations it is mandatory on the part of the concerned Executive Engineer to report the actual date of completion of the project as soon as possible through fax or e-mail so that the report is received within 7 days of such completion by the concerned SE, CE & the Administrative Department. The Incentive for timely completion should be on a graduated scale of one percent to 10 percent of the contract value.7
Assessment of incentives may be worked out for earlier completion of work in all respect in the following scale.
"Before 30% of contract period = 10% of Contract Value Before 20 to 30% of contract period = 7.5% of Contract Value Before 10 to 20% of contract period = 5% of Contract Value Before 5 to 10% of contract period = 2.5% of Contract Value Before 5% of contract period = 1% of Contract Value".
8. A conjoint reading of Clause-6.21 read with Office memorandum dated 08.11.2013 clearly indicates that for early completion of work the contractor is entitled to get incentive. The grounds for the rejection of representation dated 12.08.2016 indicated in the counter affidavit filed by the opposite parties on 01.12.2017 that the claim of the petitioner for payment of incentive that the Executive Engineer did not intimate about completion of work within seven days as required and also on the ground that the work allotted to the petitioner was not a new work. But, there is no denial of the fact that there is an incentive clause in the tender as well as in the agreement. As per Clause-6.21 of the tender condition which has been reproduced hereinabove clearly stipulates for early completion of work, but the same has been denied by the 8 opposite parties. The technical ground for denial of the incentive that same was to be paid only as Clause-3.5.5 of the OPWD Code, the same appears to be an afterthought as the opposite parties kept the matter for grant of incentive pending and did not take any decision till the petitioner approached this Court. Even if, the petitioner approached this Court and on consideration of the grievance, this Court disposed of the writ petition directing the petitioner to file a fresh representation, consequence thereof a fresh representation was filed on 04.07.2018, but the same was considered and rejected on a flimsy ground which cannot sustain in the eye of law. This question has been considered elaborately in Prafulla Kumar Pradhan (supra) and recently in M/s. Maa Santoshi Construction v. State of Odisha and others (W.P.(C) No.18655 of 2017) disposed of on 12.07.2018, this Court has taken into consideration similar question and directed for payment of incentive for early completion of work.
9. Applying the principle already laid down by this Court in the judgments mention (supra), we are of the considered view that as per the terms and conditions of Clause 9 6.21 of the tender condition as well as the agreement, the petitioner is entitled to get incentives. Therefore, the rejection of the claim for such incentive vide Annexure-9 dated 12.08.2016 cannot sustain in the eye of law and the same is liable to quash and accordingly the same is quashed.
10. The opposite parties are directed to calculate the incentives in terms of Clause-6.21 read with Clause-3.5.5 of the OPWD Code amended on 08.11.2013 and pay the same to the petitioner within a period of four months from the date of communication of this judgment.
11. Accordingly, the writ petition is allowed. No order as to cost.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 23rd July, 2018, Alok True copy P.A. 10