Telangana High Court
M/S Sushee Hitech Projects Pvt Ltd vs The Singareni Collieries Company ... on 24 November, 2020
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.8397 OF 2020
ORDER:
The petitioner herein filed the present Writ Petition under Article 226 of the Constitution of India seeking the following reliefs:
(a) the action of respondents in not considering the period from February, 2020 till declaration of prevalence of normalcy in the Country by the Disaster Management Authority, Government of India, as a force majeure period due to spread of COVID-19 as illegal;
(b) recovery of monthly penalty on shortfall quantity during force majeure period i.e., from the month of February, recovering quarterly penalty at the end of 5th Quarter i.e., April, 2020 as illegal and in violation of terms of agreement dated 30.01.2019;
(c) direction to the respondents to consider the period from February, 2020 till the declaration of prevalence of normalcy in the Country by the Disaster Management Authority, Government of India, as a force majeure condition under the Order No.7600007644, dated 31.01.2019;
(d) restrain the respondent from recovering any penalty till the declaration of prevalence of normalcy in the Country by the Disaster Management Authority, Government of India; and KL,J W.P. No.8397 of 2020 2
(e) direction to the respondents to refund the penalty amount of Rs.33,88,769/- recovered illegally from the petitioner towards monthly penalty from the month of February and the quarterly penalty from the bills of the petitioner contrary to the terms of the contract.
2. Heard Mr. D. Prakash Reddy, learned Senior Counsel, representing Mr. Avinash Desai, learned counsel for the petitioner, and Mr. J. Srinivasa Rao, learned Standing Counsel for the respondents.
3. The facts germane to filing the present writ petition are as follows:
(a) The petitioner, M/s. Sushee Hitech Projects Limited, private company incorporated under the Companies Act, 1956. It engaged in the business of mining contracts. Respondent No.1 has awarded the work of 'drilling, excavation, loading, transportation, dumping, spreading and levelling etc., of 2568.200 LBCM of overburden with hired HEMM in combination with conventional equipment at JVR OC-II Project, KGM area during a period of 84 months', vide Order No.7600007644, dated 30.01.2019.
(b) The relevant and important Clauses of the said agreement are as follows:
(i) Clause 1.12 deals with 'Force Majeure Conditions', which is as under:
KL,J W.P. No.8397 of 2020 3 "The following shall be treated as force majeure conditions War, Strikes, lockouts, law & order problem Natural calamities like Flood, Fire and Epidemics Non availability of Explosives Non supply of Diesel by SCCL Interruption of work due to Fog Rains Riots or Civil commotion Non-availability of land Production loss due to interruption of work for the reasons not attributable to either SCCL or the contractor Time delay in completion of works by SCCL connected to OB removal work."
(ii) Clause 2.3.2 deals with Penalty for lagging behind monthly schedule, which is as under:
a) In case excavated quantity is less than 90% of the monthly scheduled quantity, penalty shall be levied @ 1% per week or part thereof on the value of incomplete quantum of the work subject to force majeure conditions. Force majeure conditions, if any, in each month shall be taken into account and such period shall be added to the completion schedule to decide actual work completion date. Penalties, if any, shall be recovered from running account bills.
b) The monthly penalties shall be reconciled on quarterly basis. The first 3 calendar months of the scheduled period (even if the work starts in the middle of the month) shall be treated as one quarter. Later on every 3 months period shall be treated as one quaqrter. If in the subsequent quarter the contractor excavates over and 100% of the scheduled quantity, such surplus excavated quantity over and above 100% of scheduled quantity shall be considered to assess the shortfall made in the immediate previous quarter. In case the shortfall is made up, the penalties KL,J W.P. No.8397 of 2020 4 levied/recovered in the previous quarter on account of achieving less than 90% of scheduled quantity shall be refunded to the contractor."
(iii) Clause 2.3.2 (e) of the said contract also deals with 'Model calculation of monthly penalties. According to it, penalties shall be levied based on the year wise rates at the time of execution of work, from time to time. Clause 2.3.4 deals with 'penalties for not completing the work in scheduled time', which is as under:
a) In case the contractor fails to excavate the awarded quantities including excess quantities awarded if any under clause 1.3.1.A
(b) by the end of scheduled contract period including extended period for additional quantity if any, penalty @ 7% on the value of the unexcavated quantity shall be levied unless the bench-wise quantities are reduced by SCCL under clause 1.3.1.A (a).
The contractor should complete the total awarded quantity within the scheduled period including period extended proportionate to the excess quantities excavated over and above the awarded quantities subject to force majeure period. The incomplete quantum of work at the end of the scheduled period (including extended period for additional qty) shall attract penalty @ 1% per week or part thereof, subject to a maximum of 7% of the value of the unexpected quantity.
i) In case the contractor executes the balance quantity beyond scheduled contract period, penalty shall be levied as under:
Assuming that the balance work shall be executed in 5 weeks, penalties shall be as follows:
Quantity Quantity Weighted attracts Week excavated average Rate of Penalty penalty in
(a) in BCM rate in Rs. penalty (c x d x e ) BCM
(b) (d) (e)
(c) 1st week 4,00,000 20,00,000 40.00 0.01 8,00,000 2nd 4,00,000 16,00,000 40.00 0.01 6,40,000 week 3rd week 4,00,000 12,00,000 40.00 0.01 4,80,000 4th week 4,00,000 8,00,000 40.00 0.01 3,20,000 5th week 4,00,000 4,00,000 40.00 0.01 1,60,000 KL,J W.P. No.8397 of 2020 5
ii) In case contractor refuses to execute the balance quantities with penalty beyond scheduled contract period of SCCL is not interested to carry out the work beyond scheduled period, a maximum of 7% penalty shall be levied on the unexecuted quantity.
If the unexecuted penalty is 20 LBCM, then, the penalty would be - 20,00,000 x 40 x 0.07 = Rs.56,00,000/-."
(c) As stated above, Clause - 1.1.4 (a) of the Order dated 30.01.2019, provides for work completion schedule, under which the work is to be completed in 84 months from the date of commencement. Letter of Intent dated 17.12.2018 was issued to the petitioner by respondent No.1 on awarding the contract. As per Clause - 1.6 (f) of the work order, payment shall be made to the contractor on fortnightly and monthly basis and for fortnightly bills, payment shall be made on the basis of progressive trip average, and monthly bill shall be made as per survey measurement. Under Clause
- 1.6 (g), fortnightly bill payment shall be made within seven days of fortnight and monthly bill payment shall be made within fifteen days of month ending duly deducting income tax.
(d) According to the petitioner, it has mobilized required equipment and machinery, keeping in view the quantities to be executed year-wise during the period of contract. On completing excavation of the available quantity, the petitioner requested respondent No.2 to release balance quantities of subsequent year in advance so as to achieve yearly targets and the equipment are not kept idle. But, there is no response from the respondents. On the other KL,J W.P. No.8397 of 2020 6 hand, the respondents have recovered an amount of Rs.13,06,478/- from the petitioner's bills towards yearly penalty.
(e) It is contended by the petitioner that prior to recovery of the penalty, vide letter dated 30.09.2019, the petitioner has requested respondent No.3 not to levy and recover yearly penalty for the reasons mentioned therein. Despite receiving and acknowledging the said letter, there was no response from respondent No.3. Vide letter dated 04.02.2020, the petitioner has explained the difficulties faced in executing the work during the first year of the contract, and finally requested the respondents not to impose penalty on reconciliation of first year quantities. But, there is no response to the same.
(f) The further contention of the petitioner is that it could not execute the monthly scheduled quantities during the 5th Quarter due to various force majeure conditions relating to the outbreak of COVID-
19. The first COVID-19 case in India was reported on 30.01.2020, and the same caused fear and panic among the workmen and resulted in reducing manual efficiency during the month of February, 2020. According to the petitioner, the World Health Organization (WHO) has declared 'COVID-19' as 'Pandemic' on 11.03.2020. Therefore, the National Disaster Management Authority has issued an order dated 24.03.2020 under the Disaster Management Act, 2005, directing the Government to take appropriate steps to curb the spread of COVID-19 pandemic. The Government of Telangana has also issued G.O.Rt.No.4, dated 14.03.2020 in exercise of its power under the KL,J W.P. No.8397 of 2020 7 Epidemic Diseases Act, 1897, recognizing the threat faced by COVID-19, pandemic, and imposed several restrictions. The Government of India has imposed Janata Curfew on 22.03.2020 followed by total nationwide lockdown from 24.03.2020. During the said stringent restrictions imposed by the State as well as Central Governments, the supply chain management of consumables and spares essentially required for day-to-day operation and maintenance of the equipment and machinery used in the works was severely disrupted. The restrictions imposed on the conduct of business and the movement of workers were periodically revised and renewed and, severely impacted the work that could be completed by the petitioner during the 5th Quarter.
(g) The petitioner, in spite of the adverse situation faced by it, which were beyond its control, could achieve more than 75% of the scheduled quantity (90% quantity being the target) during the months of February to April, 2020. The respondents, without considering the 'force majeure' conditions during the said months, levied and recovered total LD Penalty of Rs.8,24,254/- from the bills of the petitioner on the pretext of shortfall in scheduled monthly quantity during the said months. The respondents, in addition to the monthly LD Penalty levied and recovered from the petitioner, further levied penalty of Rs.25,64,515.03ps. towards quarterly penalty at the end of April, 2020 @ 3% on Rs.8,54,83,834.35ps. being the total value of the unexecuted schedule monthly quantity in the 5th Quarter. The KL,J W.P. No.8397 of 2020 8 respondents subsequently recovered an amount of Rs.25,64,515/- from the petitioner by endorsing the same in M-Book.
(h) It is further contended by the petitioner that it has requested respondent No.3 by submitting several letters to not levy penalty considering the impact of lockdown due to COVID-19 epidemic, a force majeure condition, and to refund the penalty amount recovered from its bills. Since achieving the monthly quantities during the 5th Quarter was not possible in view of the circumstances prevalent in the Country, levy and recovery of monthly penalty by the respondents from the bills of the petitioner from February, 2020, is not only contrary to the terms of contract, but also arbitrary apart from being illegal. The terms of agreement dated 30.01.2019 only provide for levying of monthly penalty on the unexecuted monthly scheduled quantity, recovery of Rs.25,64,515/- made by the respondents towards quarterly penalty from the bills of the petitioner, is illegal and contrary to the express terms of the work order.
(i) With the said contentions, the petitioner sought the aforesaid reliefs in the present writ petition.
4. The respondents have filed counter affidavit denying the allegations made by the petitioner including the reliefs sought in the writ petition. It is contended by the respondents that the relief sought is with regard to enforcement of contract and, therefore, the writ petition is not maintainable. The respondents have placed reliance on KL,J W.P. No.8397 of 2020 9 the judgment of the Hon'ble Supreme Court in Joshi Technologies International Inc. v. Union of India1; and also on the judgments of the High Court of Andhra Pradesh at Hyderabad in Klen and Marshalls Manufacturers & Exporters Ltd., Secunderabad v. Eastern Power Distribution Company of Andhra Pradesh Ltd (operation and Maintenance), Visakhapatnam2 and M/s. Lanco Infratech Limited v. Power Finance Corporation, New Delhi3 in support of his contentions. Performance of the petitioner was very poor right from the beginning. Despite issuing several letters, the petitioner failed to improve its performance. The respondents have mentioned the month-wise quantity in a tabular form about the work performance carried out by the petitioner since its inception. The respondents have also addressed several letters from 04.09.2019 to 13.06.2020 advising the petitioner for improvement of work and fleet.
5. It is further contended by the respondents that despite receipt of the said letters, there is no improvement in the performance of the petitioner. Therefore, the respondent company has invoked the penalty clause i.e., 2.3.2 of the order dated 30.01.2019, imposed the penalty and recovered the same from the bills of February to April, 2020. Vide G.O.Ms.No.48, dated 24.03.2020, the Government has issued certain directions, wherein the Personnel of Singareni Collieries Company Limited (including its contractual workmen) were permitted to move so as to attend duties. As per the Director General 1 . (2015) 7 SCC 728 2 . 2011 (6) ALD 186 (DB) 3 . 2017 (5) ALD 556 KL,J W.P. No.8397 of 2020 10 of Mines Safety Circular No.DGMS / General Circular / 01, dated 30.03.2020 of DGMS (Officiating) and Chief Inspector of Mines, underground Non-mechanized mines were laid off during Covid-19 period i.e., from second shift of 01.04.2020 to third shift of 14.04.2020 or until lockdown is lifted vide Circular No.CRP/PER/IR/COVID19/463, dated 01.04.2020. Remaining Mechanized underground mines and all Opencast Mines were permitted to work normal. As such, the Opencast Mines were allowed to work normally during COVID-19 period. Overburden, removal and outsourcing contract works were also continued by virtue of the exemption granted by the Government and also as per the Circulars mentioned above. However, force majeure conditions, are applied basing on the deployment of fleet by the contractor before lockdown i.e., before 22.03.2020, on pro-rata base.
6. It is further contended by the respondents that for the first year of the contract, the quantity available for excavation in the demarcated area was, only 87 LBCM as against the scheduled quantity of 106.370 LBCM. As per the order, first year period scheduled quantity is 106.370 LBCM of Overburden and Coal. The petitioner has excavated 87.355 LBCM quantities of Overburden and Coal within a percentage of 82.10 and, as such, performance of the petitioner including force majeure period is 91.2. Thus, there is a back-log of 19.015 LBCM at the end of the first year period i.e., up to 14.02.2020. Further, there is a short-fall quantity of about 12 LBCM KL,J W.P. No.8397 of 2020 11 in first year area due to steam rising, geological disturbances etc. Hence, the available quantity of Overburden in first year area is about 94.37 LBCM out of 106.370 LBCM. The petitioner has excavated only 87.356 LBCM during first year period and, as such, there is a back-log quantity of about 7 LBCM on available quantity of 94.3 LBCM. However, first year re-revised projections were drawn for 106.37 LBCM and approved by the competent authority. Thus, the firm has to excavate 106.37 LBCM of the first year quantity as per Clause 1.6 b of the order. Therefore, the respondents imposed penalties by invoking the terms of the work order dated 30.01.2019. Since the petitioner failed to excavate 95% of the yearly bench-wise quantities, penalty @ 2.5% on the value of the un-executed quantity falling short of 95% of yearly bench-wise quantities was levied at the end of the first year after considering the force majeure condition. An amount of Rs.13,06,,478.38ps. was recovered from February, 2020 monthly bill towards yearly penalty as the last year re-revised projections were drawn for 106.37 LBCM by considering the geological disturbances etc.
7. However, vide letter dated 20/22.05.2020, approval has been accorded for reconciliation of the first year excavated quantities, and the first year bench-wise quantities were re-revised considering the geological disturbances. In the said letter, it is mentioned that penalties shall be calculated for unexecuted quantity basing on the re- revised approved bench-wise quantities. Yearly penalties were KL,J W.P. No.8397 of 2020 12 reviewed along with monthly bill of May, 2020, and an amount of Rs.10,76,081.83ps. was levied, and an amount of Rs.2,30,396.55ps. was refunded to the petitioner.
8. It is further contended by the respondents that the lockdown declared by the Government cannot be treated as force majeure in view of the relaxation given by the Government of Telangana vide G.O.Ms.No.48, dated 24.03.2020 to the respondents. The issue has been examined in detail and keeping in view the representations received from OB removal contractors, restrictions on the movement of men and machinery and also transportation of materials, it has been decided not to levy penalty during the lockdown period from 22.03.2020 to 31.05.2020, and to refund the penalties recovered for the said period. Accordingly, refund of amount is being made for the penalties imposed during the lockdown period i.e., 14.02.2020 to 14.04.2020.
9. As per Clause 1.14 of the order dated 30.01.2019, any dispute or disagreement between the parties arises out of or in connection with the contract or performance of any of the obligations of the petitioner and the respondent company including an issue or dispute as to breach or termination of the contract, the aggrieved party can refer the issue to the Management Committees, as specified in the said Clause, for resolution of the dispute. Further, if the dispute is not resolved by the Management Committees, the aggrieved party has to approach the competent Civil Court at Bhadradri - Kothagudem KL,J W.P. No.8397 of 2020 13 District. The petitioner without availing the said remedy, filed the present writ petition and, therefore, the same is not maintainable.
10. With the aforesaid contentions, the respondents sought to dismiss the present writ petition.
11. Perused the material on record.
12. A perusal of the record would disclose that the petitioner and the respondents' authorities have entered into the work order dated 30.01.2019 on the specific terms mentioned therein for drilling, excavation, loading, transportation, dumping, spreading and levelling etc., of 2568.200 LBCM of overburden with hired HEMM in combination with conventional equipment at JVR OC-II project, KGM during the period of 84 months. Clause 1.14 of the said work order deals with 'settlement of disputes, issue and dispute resolution protocol', which is as under:
"Any dispute or disagreement between SCCL and the contractor hereto arising out of or in connection with the contract or the performance of any of the obligations of SCCL and the contractor hereunder or referred to herein, including an issue or dispute as to breach or termination of this contract or as to any claim or tort, in equity or pursuant to any statute ("Dispute") shall be referred first to the Mine Management Committee which shall attempt to reach a consensus on the matter; Within 7 (seven) days, it shall be referred to Area Management Committee.
KL,J W.P. No.8397 of 2020 14 After referring the issue, if the Area Management Committee fails to resolve issue within 7 (seven) days, it shall be referred to Corporate Management Committee. Corporate Management Committee shall resolve the Dispute within 21 calendar days of referral to them. Any dispute or disagreement not resolved as stated above shall be decided by 'CIVIL COURT' of competent jurisdiction at Bhadradri-Kothagudem district and not by Arbitration."
13. In Joshi Technologies International Inc.1, the Apex Court after considering the principle held by it in Life Insurance Corporation of India v. Escorts Ltd.4 and ABL International Ltd. v. Export Credit Guarantee Corporation5, and also on consideration of different situations / aspects relating to the contracts entered into by the State / Public Authority with private parties, summarized certain principles, which are as follows:
"(i) At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.
(ii) State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations.
(iii) Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise.
If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving 4 . (1986) 1 SCC 264 5 . (2004) 3 SCC 553 KL,J W.P. No.8397 of 2020 15 examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings Under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc.
(iv) Writ jurisdiction of High Court Under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.
(v) Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.
(vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.
(vii) Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.
(viii) If the contract between private party and the State/instrumentality and/or agency of State is under the KL,J W.P. No.8397 of 2020 16 realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court Under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.
(ix) The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions Under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.
(x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.
KL,J W.P. No.8397 of 2020 17
(xi) The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes."
14. In M/s. Lanco Infratech Limited3, by referring to the principle laid down in the aforesaid decisions, this Court held that in concluded contract, parties are not entitled to maintain writ petition. The scope of writ petition under Article 226b of the Constitution of India has also dealt with.
15. In view of the said authoritative pronouncement of law by the Apex Court, coming to the case on hand, as stated above, there is alternative dispute mechanism in the work order dated 30.01.2019. The petitioner herein instead of availing the said alternative dispute mechanism as per Clause - 1.14, approached this Court by way of filing the present writ petition.
16. Clause - 1.12 of the work order deals with 'force majeure conditions', which is already extracted above. As per the said clause, natural calamities, like flood, fire and epidemics, shall be treated as force majeure conditions. Clause 2.3 deals with 'penalties', while Clause 2.3.2 deals with 'penalty for lagging behind monthly schedule'. Clause - 2.3.2(e) deals with methodology for calculation of the said penalties. Clause - 2.3.4 deals with 'penalties for not completing the work in scheduled time. Methodology of calculation KL,J W.P. No.8397 of 2020 18 of the said penalties was also specifically mentioned in the said clause.
17. In view of the above Clauses of the work order dated 30.01.2019, coming to the case on hand, the WHO has declared 'COVID-19' as 'Pandemic' on 11.03.2020. Janata Curfew was imposed by the Government of India on 22.03.2020 followed by a total nationwide lockdown from 24.03.2020. The Government of Telangana vide G.O.Rt.No.4, dated 14.03.2020, in exercise of its power under the Epidemic Diseases Act, 1897, recognizing the threat faced by COVID-19 pandemic has imposed several restrictions. As per G.O.Ms.No.48, dated 24.03.2020 issued by the Government of Telangana, the Personnel of Singareni Collieries Company Limited (including its contractual workmen) were permitted to attend the duties. In the said G.O., it is mentioned that in continuation of the orders issued vide G.O.Ms.No.45, dated 22.03.2020 and G.O.Ms.No.46, dated 23.03.2020, the Government in exercise of powers conferred under Section 2 of the Epidemic Diseases Act, 1897 read with all enabling provisions of the Disaster Management Act 2005, having notified lockdown in the entire State of Telangana and also having directed that no movement of any persons shall be permitted for any purpose other than accessing emergency medical care during the period from 7.00 PM every evening to 6.00 AM on the following day directed that the personnel of certain Departments / Offices of the State Government shall be permitted to move as they KL,J W.P. No.8397 of 2020 19 have to attend duties. In the said G.O. at serial No.(xiv), the Singareni Collieries Company Limited is included. It is also stated in the said G.O., that the DGP / Commissioners of Police / Superintendents of Police in the State shall allow the employees / officers of the respective Departments / Offices, by viewing their l.D. Cards issued by the respective departments, with immediate effect.
18. The Singareni Collieries Company Limited has also issued a Circular dated 01.04.2020 by referring to the Circular dated 30.03.2020 of DGMS (Officiating) & Chief Inspector of Mines. In the said Circular, it is specifically mentioned that the mechanized sections in ALP, VK-7 Inc, Shanthikhani, GDK-11A Inc and Kondapur Mines and also Opencast Mines / Projects shall be in operation till further orders. Certain guidelines were also issued therein. By referring to the same, the learned counsel for the respondents would submit that the performance of the petitioner firm was very poor right from the beginning. Despite issuing number of letters from 04.09.2019 to 13.06.2020, there was no improvement in the performance of the petitioner and it is trying to take advantage of the COVID-19 pandemic situation. Though the Government has declared lockdown as per G.O.Ms.No.48, dated 24.03.2020, the personnel of Singareni Collieries Company Limited including its contractual workmen were permitted to move as they have to attend duties. Circulars dated 30.03.2020 and 01.04.2020 were also issued with specific directions.
KL,J W.P. No.8397 of 2020 20 Remaining mechanized underground mines and all Opencast Mines were permitted to work normally.
19. The petitioner has excavated only 87.355 LBCM during the first year period with a percentage of 82.1 as against the schedules and the performance of the petitioner is very low, except monsoon season, despite the schedules fixed at less quantities and the less affect of rains in the monsoon 2019. Therefore, as the petitioner failed to excavate 95% of the yearly bench-wise quantities, penalty @ 2.5% on the value of the un-executed quantity falling short of 95% of yearly bench-wise quantities was levied at the end of first year after considering the force majeure conditions. An amount of Rs.13,06,478.38ps. was recovered from February, 2020 monthly bill towards yearly penalty, as the first year re-revised projections were drawn for 106.37 LBCM by considering the geological disturbances etc. However, vide letter dated 20/22.05.2020, approval has been accorded for reconciliation of the first year excavated quantities and for the first year bench-wise quantities were re-revised considering the geological disturbances etc. Penalties shall be calculated for un- executed quantity basing on the re-revised approved bench-wise quantities. Accordingly, yearly penalties were reviewed along with monthly bill of May, 2020 and an amount of Rs.10,76,081.83ps., was levied, and an amount of Rs.2,30,396.55ps., was refunded to the petitioner. In proof of the same, the respondents have filed letter dated 26/27.06.2020, wherein it is mentioned that an approved note KL,J W.P. No.8397 of 2020 21 dated 05.06.2020 in consideration of shortfall in OBR quantities by the OBR contractors at all OC mines against the scheduled quantities during the COVID-19 pandemic lockdown period from 22.03.2020 to 31.05.2020 and not to impose any penalty during the same period due to the justified reasons as mentioned in the approved note, which affected the performance of OBR contractors.
20. In the note, dated 05.06.2020 put up by respondent No.2, at serial No.9, it is mentioned that during the lockdown period, SCCL facilitated the OBR contractors to best possible extent, like arranging passes and permissions. Across all the OBR contractors, some factors which adversely affected their performance are also mentioned therein. It is further mentioned at serial No.9 (g) that after relaxation of certain restrictions in lockdown by the Government towards the end of May, 2020, some of the camp employees of OBR contractors, who hail from other states, have left for their native places as they were working here for months together due to lockdown restrictions. Neither the contractor, nor the project authorities could stop them, even after a lot of persuasion (taking the help of police also). The above employees are yet to return from their native places (other states) and thus the OBR works are still getting affected. At serial No.11, it is mentioned that considering the above overall environment, it is proposed not to penalize any OBR Contractor against shortfall in OBR works during COVID-19 lockdown period KL,J W.P. No.8397 of 2020 22 from 22.03.2020 to 31.05.2020 and to consider the same shortfall in OB excavation quantity as force majeure.
21. The above stated facts would reveal that the Government of Telangana vide G.O.Ms.No.48, dated 24.03.2020, permitted the personnel of Singareni Collieries Company Limited to move since it deals with 'essential services'. According to the Government, services of the Singareni Collieries Company Limited come under essential services. Considering the same, the Singareni Collieries Company Limited has declared that penalty shall not be affected for the period from 22.03.2020 to 31.05.2020. But, the petitioner is seeking the relief from February, 2020 to April, 2020 i.e., 5th Quarter. The petitioner herein is also seeking a direction to the respondents to consider the period from February, 2020 till the declaration of prevalence of normalcy in the Country by the Disaster Management Authority, Government of India as a force majeure condition under the order dated 30.01.2019.
22. As stated above, relaxations were issued in respect of the Singareni Collieries Company Limited. Coal is an essential commodity, and the services of the Singareni Collieries Company Limited are also essential services. With the said reason only, vide G.O.Ms.No.48, the Government has relaxed certain conditions in respect of the Singareni Collieries Company Limited. The 'WHO' has declared COVID-19 as a 'pandemic' on 11.03.2020. Lockdown was imposed on 24.03.2020. Janatha Curfew was imposed on KL,J W.P. No.8397 of 2020 23 22.03.2020. The directions were issued by the Government of Telangana vide G.O.Ms.No.48, dated 24.03.2020. In the said G.O., name of the Singareni Collieries Company Limited is also specifically mentioned. Thus, there is no restriction on the men and machinery of Singareni Collieries Company Limited to attend duties. It appears that the petitioner herein taking advantage of the said Clause is trying to evade the penalties imposed by the respondents. The correspondence filed by the respondents' authorities would show that the performance of the petitioner firm was poor from the inception. Despite addressing number of letters, there is no improvement in the performance of the petitioner. Therefore, the respondents have imposed penalty by invoking Clause - 2.3.2 of the work order dated 30.01.2019. More so, the petitioner herein did not avail the alternative dispute resolution mechanism provided in Clause 1.14 of the said work order dated 30.01.2019.
23. It is also trite to note that the respondents' authorities have considered the lockdown situation and also the shortfall in OBR quantities by the OBR contractors at all OC mines against the scheduled quantities during COVID-19 pandemic lockdown period from 22.03.2020 to 31.05.2020 and decided not to impose any penalty during the said period due to the justified reasons as mentioned in the approved note, which affected the performance of OBR contractors. The respondents have also filed Circular, dated 05.06.2020, wherein justified reasons were specifically mentioned. Thus, the petitioner KL,J W.P. No.8397 of 2020 24 herein instead of availing the alternative dispute resolution mechanism, filed the present writ petition. Admittedly, the petitioner is seeking to enforce the contractual obligations. In the concluded contract, the parties are not entitled to maintain a writ petition. There are several facts sought to be adjudicated by this Court in the present writ petition. Though, as held by the Apex Court in ABL International Ltd., this Court can go into the factual aspects, but certainly not the disputed questions of facts. In the present case, there are several disputed questions of facts which cannot be decided by this Court in a writ jurisdiction.
24. As discussed above, there are several factual aspects including restrictions imposed by the Central and the State Government on account of COVID-19 pandemic and the relaxations / directions issued by the respective Governments with regard to movement of men and machinery of Singareni Collieries Company Limited and other Departments, and the justified reasons mentioned in Circulars dated 26/27.06.2020 and 05.06.2020 to be decided. At the cost of repetition, the respondents' authorities have decided not to impose penalties during the lockdown period from 22.03.2020 to 31.05.2020. In the counter, it is also specifically mentioned by the respondents' authorities that in view of the decision taken by the respondents' authorities not to levy penalties and to refund the penalties recovered during the said period, refund of amount is being made for the penalties imposed during the lockdown period i.e., KL,J W.P. No.8397 of 2020 25 14.02.2020 to 14.04.2020. Thus, the respondents' authorities have considered the entire fact-situation including the restrictions imposed by both the Central and State Government during lockdown period. Therefore, there are several aspects which are to be decided as they are complicated questions of facts, which cannot be decided in a writ jurisdiction under Article 226 of the Constitution of India.
25. As discussed supra, one of the reliefs sought by the petitioner is to issue a direction to the respondents to consider the period from February, 2020 till the declaration of prevalence of the normalcy in the Country by the Disaster Management Authority, Government of India, as a force majeure condition under the Work Order, dated 30.01.2019. Prevalence of normalcy is not in the hands of human being. COVID-19 pandemic is a force majeure. Lockdown restrictions were relaxed and the Government of Telangana has also relaxed certain conditions in respect of essential services including the Singareni Collieries Company Limited. Therefore, the petitioner is not entitled for the said relief.
26. In view of the above stated facts, the petitioner herein failed to make out any ground or circumstances warranting interference by this Court and, therefore, the writ petition is liable to be dismissed.
27. Accordingly, the present Writ Petition is dismissed. However, liberty is granted to the petitioner to approach appropriate KL,J W.P. No.8397 of 2020 26 authority by availing alternative dispute resolution mechanism as per Clause 1.14 of the work order dated 30.01.2019, and the authorities concerned shall consider the same in accordance with law. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
________________________ K. LAKSHMAN, J th 24 November, 2020 Mgr