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29. From the voluminous correspondence that is on record, it is obvious that while NHAI was understood to be the Employer, the  Manager PIU is the Engineer.

30. A cursory reading of Clause 7.1 would suggest that the concept of subcontracting was not abhorred in this contract agreement. That was very much a concept in consideration and a presumable one also. In fact, subcontracting could be done to the extent of 50% of the work and that is the admitted position. However, a plain reading thereof would suggest that the contractor could subcontract the portion of the work up to a limit specified in the contract with the approval of the Engineer. the second deduction from the language is that the contract could not be assigned without the approval of the Employer in writing and lastly, any subcontracting does not set the contractor free from the contractual obligations. The meaning is, therefore, clear:

1.In the first place, there is no user of the words prior approval either in respect of the subcontract or in respect of the assignment of the contract.
2.Then, there is a definite difference in the concept of subcontracting of the portion of the work and assigning the original contract itself. While for subcontracting only the approval of the Engineer is required, for assignment of the contract itself, the approval of NHAI that too in writing, is necessary.

There is undoubtedly a dichotomy in the concepts of subcontracting and assignment of the contract. It is, therefore, obvious that for such subcontracting, there would be no need of the approval of NHAI though unfortunately, the parties have understood otherwise.

31. We have already pointed out that the learned single Judge also deduced that firstly there was an agreement between the appellant and M/s.CECON and that the said agreement was without the prior approval of NHAI. Even presuming that there was any such agreement, in our opinion, there was no necessity of having a prior approval of NHAI as per the express language of clause 7.1. That could at the most be an agreement for subcontracting which would be undoubtedly an agreement different from the assignment of the contract itself. The approval of the Engineer was necessary for subcontracting the work while the approval of the employer i.e. NHAI in writing was necessary for the assignment of the contract. The word contract used in clause 7.1 has been defined in the agreement being the contract between the employer and the contractor to execute, complete and maintain the works. We cannot, therefore, equate the agreement to subcontract (even if it is presumed to have taken place in between the appellant and CECON) with the assignment of the contract itself. While, in the former case a mere approval of the engineer was necessary; for the latter the written approval of NHAI would be necessary. That is nobodys case and unfortunately, clause 7.1 was read by the authorities very casually and generally and without noting the different functions of the engineer vis-a-vis the employer. It is for this reason that we have deliberately quoted extensively from the correspondence which flew from the engineer  in this case the Manager-PIU and the respondent NHAI itself. Though the show cause notice was very guardedly given complaining of the absence of approval of the engineer/ employer, it is worth-seeing that there is no word prior in this show cause notice and though this approval was to flow from the engineer, the word  employer has also been introduced. However, in the impugned order dated 31 -10-2000 a specific reason is given of non-adherence of conditions of contract i.e. subcontracting of the work without obtaining the prior approval of NHAI on an on-going project. It is obvious, therefore, that there was a complete confusion on the part of the NHAI because subcontracting of work did not require firstly prior approval and secondly, the said approval was not required of NHAI. It was only the approval of the engineer which was necessary. Learned single Judge has also not addressed the question from these angles which, in our opinion, were the necessary angles emanating from the language of clause 7.1. Instead, the learned single Judge has gone on to record a finding that it was an admission on the part of the appellant that the appellant had entered into a contract without the prior approval and that resulted in the breach of the clause. In view of the specific language, we cannot agree with the learned single Judge. On this issue, the question that would still remain is whether the exercise on the part of the appellant in getting some work done (admittedly 4% of the total work) and for that purpose entering into a contract with CECON without prior approval would amount to the non-adherence of the conditions of the contract. In our opinion, that by itself will not amount to the non-adherence of the contract. The finding of the learned single Judge as also the finding arrived at by NHAI on the issue of subcontracting thus are erroneous.