K.M. Salim vs State Of Kerala And Ors

The petitioner, who is a Government Contractor, seeks to direct the respondents to pay the whole balance amount due to the petitioner to the tune of Rs.27,41,030/-covered by Bill No.595 dated 27.12.2015 in respect of the contract work "the construction of Chethukadavu Bridge across Kalikavu River in Malappuram District", completed and executed as per Ext.P2 agreement, by sanctioning the revised estimate, along with interest at a reasonable rate thereon, within such time as this Court deems just and proper. The petitioner further seeks to direct the respondents not to recover the DLR amount given to the petitioner, which was approved by the 2nd respondent as per Ext.P3.

The petitioner states that in response to a notification, the petitioner was awarded the work of the construction of Chethukadavu bridge across Kalikavu River in Malappuram District. The probable amount of contract was Rs.3,35,55,123/-. The petitioner quoted 13% below the PAC. The petitioner agreed to complete the work for Rs.2,91,92,957/-. The petitioner entered into Ext.P2 Agreement with the respondents on 01.05.2012. The petitioner had to complete the work within 18 months. The site was handed over to the petitioner on 15.05.2012.

The petitioner would submit that during the inception of well for the construction of the Bridge, existence of massive rock boulders were found beneath the water. These rock boulders could not have been removed by explosion using gunpowder. The massive rock boulders had to be chiselled and removed by skilled labourers who are experienced to work under water. In view of the urgency and importance of the work, the petitioner engaged skilled labourers, providing them with oxygen masks for doing the under-water work. The work was done by such skilled workers under the direct supervision of the Departmental Authorities. The wages for the skilled workers for doing this particular work had to be paid by the Department. However, the petitioner paid them initially. These amounts should be paid back to the petitioner as hand receipts.

As the massive rock formation was not contemplated in the work, the Department was bound to prepare a revised estimate, with the required additional quantity of work. The Chief Engineer approved the additional work of boulder removal and made part payment also. The skilled workers had to be paid Rs.69,08,919/-. The said amount was approved by the Chief Engineer as per Ext.P3. After removing the massive boulders, the construction was carried out and the bridge was handed over on 17.09.2014.

However, the Department did not honour the final bill of Rs.27,41,030/-, as the revised estimate was not sanctioned by the 1st and 6th respondents. The petitioner submitted repeated representations for sanctioning this amount. By Ext.P8, the 2nd respondent-Chief Engineer recommended to revise the estimate so as to include the additional work. To the shock and surprise of the petitioner, Ext.P9 order was issued by the 1st respondent rejecting the recommendation for sanction of the revised estimate.

The counsel for the petitioner argued that during the execution of the work, unexpected issues arose and huge rock boulder formations had to be removed from the well foundation. This work was not included in the estimate. This work had to be carried out engaging highly skilled workers. The work was done under the supervision of the officials of the Department. The skilled workers had to be paid an amount of Rs.69,08,919/-. This amount was approved by the Chief Engineer as per Ext.P3 and, in fact, part payments were made also. The petitioner has completed the construction of the bridge and the public are using the bridge. There is no complaint whatsoever regarding the quality of construction made by the petitioner.

After getting the work done, the respondents cannot now contend that they will not revise the estimates. There is no dispute that huge rock boulders had to be removed. The work was carried out in the presence of the Departmental Officials. They do not have any doubt regarding the work carried out by the petitioner. Therefore, the 1st respondent cannot now take an arbitrary stand that the amount cannot be paid.

The 1st respondent filed a counter affidavit. The 1st respondent admitted the existence of hard rock strata. The 1st respondent stated that a detailed estimate of the work was prepared in respect of this additional work adopting PWD standard data. The rate of cutting down obstacles of size above 40 dm3, wooden blocks of size above 100 dm3 and sinking wells in rocks, have not been included in item Nos.701 to 706 of well sinking. The 1st respondent stated that breaking down of obstacles of size more than 40 dm3 and the sinking wells through rock, if any, encountered during well sinking operation, is to be done by the Department separately by means of some other arrangements simultaneously together with well sinking operation.

The 1st respondent examined the proposals of the 2nd respondent. The 1st respondent noted that the size of boulders is not specified in the soil log. There is no evidence to establish that boulders removed were more than 40 dm3 size. The payment was made based on DLR without assessing the quantity of boulders removed and without arriving rate analysis of the above item, which is not in order. The Chief Engineer was directed to resubmit the revised estimate. Exts.P9 and P10 are not final orders or instructions.

The 1st respondent stated that the Government received a revised estimate proposal from the 2nd respondent. And no amount found to be eligible to the petitioner, would be withheld. The amount eligible to the petitioner will be sanctioned after examination of revised estimate in consultation with Finance Department of the Government of Kerala.

The 1st respondent subsequently filed an additional counter affidavit dated 24.08.2019. In the additional counter affidavit, it has been stated that the Finance Department of Government of Kerala examined the proposal for additional work and opined that the details submitted by the Chief Engineer pertaining to the admissible amount for breaking the boulders comes to Rs.1,09,296/- only as against the revised estimate provision of Rs.69,08,919/-. Though the Chief Engineer again submitted the same proposal, the proposal did not mention the quantum of 40 dm3 boulders broken and the split up details of rate analysis to substantiate the claim made on the said head. Therefore, it was once again requested to provide revised estimate. The revised estimate was accordingly submitted and it is under the examination by the Government. The 1st respondent reiterated that amount will be sanctioned to the petitioner soon.

The additional 7th respondent, who is the Chief Technical Examiner, Finance (Inspection Wing - Technical) Department has filed a counter affidavit dated 24.02.2021. The Chief Technical Examiner in his counter affidavit stated that:

The size of boulders is not specified in the soil log. Payment was seen made based on Daily Labour Report without assessing the quantity of boulders removed.

The revised estimate ought to have been prepared much earlier. Revised estimate should not be kept waiting till the work is completed. The Chief Engineer has not submitted the revised estimate to the Government during the course of execution of work. Revised estimate was forwarded only after completion of the work.

Field Officers could not quantify the boulders claimed to be broken and produce the materials at site or its disposal details for verification by the officials from the Technical Wing.

In this case, records of daily labourers engaged by the contractor for the particular item is available with PWD. The DLR submitted by the Chief Engineer, total man-days taken for cutting and breaking boulders and wooden logs more than 40 dm3 size comes to 216 numbers only. Therefore, admissible cost for cutting and breaking boulders as per the documents submitted by PWD would come to Rs.1,09,296/- at the rate of Rs.506/- each for 216 numbers of man-days.

I have heard the counsel on either side.

The dispute involved is in a narrow compass. While executing the work of bridge construction, it was noted that there were rock boulder formations beneath the water, which ought to have been removed for sinking well. The agreement entered into between the petitioner and the respondents did not contemplate this situation. The item of removing boulders above 40 dm3 size was not covered in the scope of agreement. It is the firm statement of the Chief Engineer, as contained in Ext.P3, that actual expenditure for cutting and breaking into small pieces of boulders of more than 40 dm3 size during sinking and seating of wells, would come to Rs.69,08,919/-.

The case of the 7th respondent is that there was no material to verify the quantity of rock boulders removed. The size of boulders is not specified in the soil log. The Field Officers from the Technical Wing were not in a position to quantify the boulders claimed to be broken and to produce the materials at the site or its disposal details for verification. This objection, it seems, is without appreciating the issue at hand.

In Ext.P11, the Assistant Engineer has specifically stated that to remove the huge rock boulders, the well sinkers/divers had to go down up to 12 metres in the river wearing oxygen mask helmets. Compressors, chisels and hammers had to be used by 5 to 6 sinkers/divers at a time. To assist them Serang, Man mazdoors, Compressor Operators, Cleaners and Blacksmiths had to be engaged as standbys.

The size of rock boulders could not have been assessed in advance. According to the Executive Engineer, no equipment or technology is presently available for determining the exact size and quantity of an invisible object laying beneath the earth. Though the presence of an object coming at the path of a core bore can be noticed, the size and quantity of the object cannot be assessed in core boring. According to the Engineers, who were in charge of the work, it was practically unviable to collect the crushed boulder pieces from the river bed and bring them ashore to assess the quantum of rock boulders.

As the size of massive rock boulders could not have been assessed in advance, the work also could not have been estimated in advance. Every day, Overseers used to prepare DLR and submit to higher officers. When the work was carried out in the presence of departmental officials and in such difficult situation, it would be harsh and unrealistic on the part of the 7th respondent to submit that their field officers could not quantify the boulders broken as the broken boulders were not produced at site for verification by the official from the Technical Wing.

The further contention of the respondents that revised estimates ought to have been prepared in advance, is also seen ignoring the stark reality. It is an admitted position that the size and the quantity of rock boulders beneath the river bed to be removed, could not have been quantified in advance. For the very same reason, preparation of revised estimate in advance was impractical. At any rate, the petitioner cannot be found fault with for not forwarding revised estimate in advance.

In Ext.P11, the Assistant Executive Engineer and Executive Engineer have informed that 5 to 6 sinkers have worked using compressor, chisel and hammer taking considerable time to remove the boulders. These workers were highly skilled and were using oxygen supply masks during the work under water. To facilitate the work and also for safety reasons, Serang, Man mazdoor, Compressor Operator, Cleaner and Blacksmiths were engaged every day. The Executive Engineer in Ext.P6 has stated that the said work took nearly six months.

There is a further anomaly in the stand taken by the respondents. The Assistant Executive Engineer and the Executive Engineer would submit that 5 to 6 sinkers/divers did work for nearly six months to remove the crop boulder formations. Supporting staff like Serang, Man mazdoors, Blacksmiths and Compressor Operators had to be deployed when sinkers and divers were doing the work at the river bed. These deployments were not provided for in the agreement.

The 7th respondent has stated that the total man-days taken for cutting and breaking boulders more than 40 dm3 size comes to 216 numbers only. Therefore, the admissible cost for cutting and breaking boulders more than 40 dm3 size as per the document submitted by PWD at the estimate rate based on PWD revised SoR 2010 comes to Rs.1,09,296/- (@ Rs.460/- + 10% contractors profit = @ Rs.506/-per each for 216 numbers man-days). The figure of 216 man-days has been arrived at on the basis of the DLR submitted by the Chief Engineer.

Obviously, there appears to be some error in calculating man-days. When 5 to 6 sinkers/divers have worked from beneath the river and when equal number of specialised staff had to be deployed ashore during the work, and when the rock boulder removal work lasted for more than 200 days, the total man-days cannot be 216. Similarly, the wage payable for such skilled workers is taken as Rs.506/- per worker per day. The daily wage payable even to unskilled labourer in Kerala in the open market is much higher. Assuming that the PWD Manual prescribes a lower rate of Rs.506/- per worker per day, there is no explanation as to why the said rate should be made applicable to highly skilled workers doing hazardous job beneath the waters and at the river bed. These important aspects are not seen taken note of.

In the afore circumstances of the case, this Court is of the considered opinion that the respondents will have to reconsider the entire issue afresh taking note of the peculiar circumstances under which the bridge was constructed, deploying highly skilled workers to execute the work of removal of rock boulders formations in the river bed. The omissions, if any, on the part of the officers of the respondents in making technical compliances in the matter of preparation of revised estimates etc., cannot be a reason to deny dues to the petitioner, if he is otherwise eligible for the same.

In the circumstances of the case, the writ petition is disposed of directing the 1st respondent to reconsider the revised estimate proposal submitted by the Chief Engineer in the light of the observations made hereinabove and take a decision afresh after giving an opportunity of hearing to the petitioner and after consulting the officers who were in charge of the work, if necessary. Fresh orders in this regard shall be passed within a period of four months. To enable the 1st respondent to take a reasoned decision afresh, Ext.P9 is set aside.