M/S Tassu Engineers vs State of Himachal Pradesh and others

Rajiv Sharma, Judge

A work order was issued in favour of the petitioner on 25.10.2008 for the construction of science lab at Government Boys Senior Secondary School at Lal Pani. The work order was cancelled on 16.12.2009. However, on the basis of the representation and undertaking given by the petitioner vide Annexure R-2, the same was revoked and the petitioner was again awarded the work on 18.01.2010. The respondents rescinded the contract on 24.07.2010 vide Annexure P-9.

Mr. Ajay Vaidya, learned counsel for the petitioner has strenuously argued that cancellation of contract of the petitioner vide Annexure P-9 is illegal, arbitrary and, thus, violative of Article 14 of the Constitution of India. He then contended that the petitioner has not been afforded an opportunity of being heard before the decision was taken to rescind the contract.

Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the petitioner has been granted numerous opportunities to speed up the construction work of science laboratory. He was issued show-cause notice, to which he did not file any reply and ultimately, the department has no alternative to revoke the contract and to re-tender the work vide Annexure P-12.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

The work order was issued in favour of the petitioner on 25.10.2008, whereby he has to complete the construction within a period of one year, but due to administrative reasons, the work order was cancelled on 16.12.2009. However, the same was revoked and the petitioner was awarded the work on 18.01.2010.

Mr. Ajay Vaidya, learned counsel for the petitioner has argued that neither the site was handed-over to his client nor the structural or architectural drawings were given to his client. It has come in the reply that there was some delay as far as the permission from the T.C.P. was to be obtained. The permission was accorded by the T.C.P. on 29.01.2010 and thereafter, the petitioner was supplied structural and architectural drawings. Petitioner has been repeatedly called upon to speed up the work as per letters dated 29.01.2010, 10.02.2010, 16.02.2010, 18.02.2010, 22.02.2010, 24.02.2010, 03.03.2010, 09.04.2010, 19.04.2010 and 22.04.2010. Petitioner sent a letter to the Executive Engineer, Shimla Division No. III, HP PWD, Shimla on 29.04.2010 undertaking to complete the work within ten months. Thereafter, the petitioner was again called upon by the Superintending Engineer to show the concrete results by 21.05.2011, vide letter dated 04.05.2010. The Executive Engineer again called upon the petitioner to complete the work expeditiously and show the results by 21.05.2011 vide letter dated 10.05.2010. The Superintending Engineer was again constrained to send a communication to the petitioner on 28.05.2010 to attend his office on 12.06.2010. The Superintending Engineer again sent communications to the petitioner on 15.06.2010 and 18.06.2010. By way of these communications, the petitioner was again requested to complete the work at the earliest, failing which, the work order was to be rescinded under Clause-6 of the agreement. Petitioner ultimately sent a communication to the Executive Engineer on 25.06.2010 seeking hike in the rates. Thereafter, the petitioner has been again called upon to accelerate the pace of the work vide communication dated 02.07.2010.

Petitioner has been served with a show-cause notice, dated 16.07.2010 vide Annexure P-10, whereby he was called upon to furnish the reply within a period of 7 days, failing which, action was to be taken against him as per Clause-3(a) of the agreement. Admittedly, the petitioner has not filed any reply to the show-cause notice dated 16.07.2010. Thereafter, the Executive Engineer rescinded the contract on 24.07.2010 vide Annexure P-9. Petitioner has been given numerous opportunities to accelerate the pace of work after the site was handed-over and the structural or architectural drawings were supplied to him. He has failed to complete the construction work within a period of one year. He has only dug the foundation on 05.03.2010 and thereafter did not carry-out the work.

Mr. Ajay Vaidya, learned counsel for the petitioner has also argued that though the contract has been rescinded on 24.07.2010, but his client was called upon by the respondent to appear in the office on 26.07.2010 vide Annexure P-11. It has come in the reply that this telegram was sent by respondent No. 3. This fact was also brought to the notice of the petitioner vide letter dated 09.08.2010 by respondent No. 4. In fact, the work order issued in favour of the petitioner was cancelled on 16.12.2009 and thereafter, petitioner furnished an undertaking vide Annexure R-2. The work was again allotted to the petitioner on 18.01.2010. It is evident from the language employed in Annexure R-2 that the petitioner has undertaken to complete the work at the rates quoted by him for the work earlier. This undertaking was furnished by him on 18.01.2010 itself. Petitioner has been dealt with in a just and fair manner by the respondent-department. The construction work of a science lab at Government Boys Senior Secondary School at Lal Pani, Shimla was of utmost public importance. When the petitioner has not completed the work allotted to him, the respondent-department has no alternative but to re-tender the work as per Annexure P-12. There is no violation of the principles of natural justice.

The Court has directed the respondent-State on 23.09.2011 to ascertain whether the work was allotted to respondent No. 5 or not and whether he has commenced the work? In sequel thereto, learned Deputy Advocate General has placed on record letter dated 15.10.2011. According to the text of the letter, the work had already been awarded to respondent No. 5 on 30.10.2010 and he has commenced the work on 05.03.2011 and the work of 2nd slab was in progress. Petitioner could not substantiate that there is any arbitrariness in the action of the respondents, whereby the contract has been cancelled.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.