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6.44 From the record it is clear that non-removal of hindrances attributable to the Employer is the main cause of delay and slow progress of work. Still the Employer served a show-cause notice dated 26.09.2012 for termination of the Contract. It was replied by the Contractor vide his letter dated 10.10.2012 wherein it was brought out that the various reasons for slow progress were delay in tree cuttings, delay in raising of height of HT/LT lines, delay in shifting of properties etc. as attributable to the Employer. The Contractor also stated in this reply letter that they had got surplus plant and machinery from works at WB-10 and WB-12 packages which could be well utilized for WB-9 for early completion of work. The Contractor requested for O.M.P. (COMM) 66/2017 Page 17 granting EOT and submitted the work program for completion of work but there was no response from the Employer.

AND WHEREAS the Regional Officer (RO) vide its letter no. NHAI/RO/PAT/PIU-MUZ/WB-09/2011/538(i) dated 21.04.2011 to the Project Manager of PCL, pointed that after site visit with PD, Muzaffarpur, RE of the Supervision Consultant and your Representative it was noted that the O.M.P. (COMM) 66/2017 Page 23 progress of the works is slow and dissatisfactory and due attention on the observations made thereunder is required, since, they are extremely vital for progress of work within the scheduled time frame of the Contract.
AND WHEREAS the TL vide its letter no. TL-PO-/ LMNHP /TL/277/11 dated 06.06.2011 to the Project Director, PIU, Muzaffarpur mentioned that since PCL has already been issued notice for slow progress of works no O.M.P. (COMM) 66/2017 Page 24 steps necessary for expediting progress to comply with the time frame under the Supplementary Agreement have been taken. The TL also stated that PCL does not have adequate resources to complete the works in agreed time schedule and further mentioned that as per their evaluation PCL may take atleast 36 months to complete the works. It was also mentioned that the amount of works done by PCL are not confirming to the required specifications and standards under the Contract and pointed out that PCL is not taking any remedial measures in this context. The TL further stated that PCL has employed a sub-contractor for execution of earthworks without the prior consent of NHAI. Therefore, since it was observed by the TL that the works under the Contract would not be completed either under the time schedule or executed as per the specifications of the Contract, he recommended NHAI to take action against PCL under Clause 63.1 of GCC.

53. It is also a matter of record that the approval for shifting of electric cables/poles was given to the Contractor on 19.04.2011 and the Engineer finalized the location of utility ducts and overhead wire raising by his letter dated 23.02.2012. Similarly, the permission of cutting of additional trees was given on 15.11.2011. Though it cannot be denied that grant of such late permission would have affected the performance of the work by the respondent, however, it was for the Arbitral Tribunal to have further considered whether the slow performance of the work as mentioned in the Show Cause O.M.P. (COMM) 66/2017 Page 35 Notice as also in the termination notice issued by the petitioner was justified on part of the respondent due to such delays and if so, to what extent. Certainly, the entire delay in the execution of the Contract could not have been justified merely for the above reasons. This becomes more profound in light of the two Supplementary Agreement (s) executed between the parties wherein the respondent had admitted to the slow progress of work by it. In view of the above, the reliance of counsel for the respondent on judgment of Hindustan Construction Co. Ltd. (supra) does not suffice.