Judgment and Order (Oral)
1. Heard Mr. SS Dey, the learned senior counsel appearing for the petitioner. The respondents are represented by Ms. S. Chutia, the learned Standing Counsel for the Water Resources Department.
2. As a registered contractor under the Water Resources Department, the petitioner executed flood damage repairing works, to protect the left embankment of the Desang River from Rajgarh to Pathaligarh from 10th KM (Dehinga Konwar Gaon) to 12th KM (Lekonia-Tipomia), as those areas were affected by river erosion in the year 2003-04. The schemes for the repairing works were prepared by the Executive Engineer, Sivasagar Water Resources Division and after the petitioner submitted his tenders, the work orders (Annexure-2 series) were issued, for total contract work estimated at Rs.1,06,77,807/-.
3. The allotted works were completed by the contractor and were measured and verified by the departmental authorities and also by the D.C. of the Sivasagar District. The Executive Engineer on 6.6.2006 (Annexure-V), certified in writing that, 45 work orders of Rs.98,568/- each; 33 work orders worth Rs.85,000/- each; and 33 work orders worth Rs.1,04,159/- each, were successfully completed by the petitioner within 45 days. This certification was made by the Executive Engineer in consultation with the Secretary and the Chief Engineer of the Water Resources Department.
4. Since no payment was received for the completed works, the contractor filed the WP(C) No.358/2009, where he applied for direction to release the dues quantified at Rs.1,06,77,807/-. This case was disposed of on 1.4.2009 (Annexure-VI) with direction to the respondents to process the contractual claim, in accordance with the direction issued in Tamsher Ali Vs. State of Assam reported in 2008 (4) GLT) 1.
5. Following the above direction of this Court, the Government called for a specific report on 1.2.2011 (Annexure-X) from the D.C., Sivasagar, in respect of the flood damage repairing works for protection of left embankment of the Desang River. Although the nature of the response of the D.C. is not available, obviously upon due verification, the Government sanctioned Rs.1,89,42,908/- and out of this amount, Rs.1,06,77,807/- was specifically directed to be released to the petitioner. The balance of the sanctioned money was allowed to be paid for other completed works.
6. Thereafter the cheque for the sanctioned amount was released by the Government in July, 2011 for making the contractual payment for the works done under the flood damage repairing schemes and in the endorsement to the Sivasagar Water Resources Division made on 30.7.2011 (Annexure-XIII), it was clearly specified that Rs.1,06,77,807/- is to be paid to the petitioner, who had earlier filed the WP(C) No.358/2009.
7. But notwithstanding the sanctioning of money and direction for release of contractual dues, the payment was not made and therefore the contractor was forced to re-approach the Court through the present petition.
8. In this case, after returnable notice was issued, the Court passed an interim order on 21.2.2012, whereby the respondents were restrained from utilising the money earmarked for the petitioner through the letter dated 30.7.2011, for any other purpose.
9.1. To oppose the petitioner s claim, the respondents have filed as many as four counter affidavits in the case and in the 1st counter affidavit filed on 24.11.2011, the Chief Engineer avers that the work completion report furnished by the Executive Engineer R.K. Gogoi on 6.6.2006 is false and irrelevant as the concerned Engineer was transferred out of Sivasagar on 7.2.2006 itself. It is further stated that the petitioner was issued only two work orders worth Rs.5,25,408/- under the flood damage repairing scheme and the contractor s claim for the balance works is not tenable.
9.2. In the 2nd counter affidavit filed on 23.2.2012 by the Deputy Secretary to the Govt. of Assam, Revenue and Disaster Management Department, reference was made to the changes to the earlier sanction order. Through the corrective steps, while sanctioned the total amount of Rs.1,89,42,908/- was kept intact, the earlier endorsement for disbursing Rs.1,06,77,807/- to the petitioner was omitted and thus the specific direction for releasing the payment to the petitioner was cancelled.
9.3. A 3rd counter affidavit was filed by the respondent on 20.11.2014, where the Chief Engineer referred to the inquiry report dated 30.7.2013 prepared by the Addl. Chief Engineer and the findings of the inquiry were cited to resist the petitioner s claim. The inquiry report in substance states that only two items of works relating to supply of river boulders and RCC piles, worth Rs.5,25,408/- were executed by the petitioner but he made false claims in respect of 111 other works worth Rs.1,06,77,807/-, on the basis of forged documents.
9.4. In the 4th and final counter affidavit filed by the Chief Engineer on 30.6.2015, the inquiry report of the Addl. Chief Engineer was enclosed to and it was further stated that an FIR was filed on 22.8.2014 against the petitioner, where the findings of the inquiry report were referred to and on the basis of this complaint, the Sivasagar P.S. Case No.726/2014, under Section 468/420/406 IPC was registered.
10. In the two re-joinder affidavit(s) filed on 13.12.2011 and also on 3.5.2012, the petitioner has enclosed several documents to show that the Executive Engineer R.K. Gogoi, who certified the completion of work on 6.6.2006, in fact, continued in the same Sivasagar Water Resources Division till August, 2006. Moreover on the basis of similar certification by the same person made on 7.6.2006, other contractor like Ram Dutta who executed similar flood damage repairing works, were disbursed their contractual payments. Therefore the petitioner tries to project that dual standard was adopted in respect of the certification of the Executive Engineer R.K. Gogoi and it is the specific contention that since this person prematurely died on 4.2.2007, the Department is conveniently passing the buck on the dead person, without answering why all the other Government Officers also certified the works because of which, the specific amount was released and earmarked for the contractor.
11.1. Mr. SS Dey, the learned senior counsel submits that there is a clear attempt by the respondents to improve their case through multiple counter affidavits. The petitioner refers to the verification exercise involving the Sivasagar D.C. and other officers of the Water Resources Department against the Government enquiry made on 1.2.2011 (Annexure-X), whereby formal work order(s), work completion report(s), inspection report(s), technical sanction, etc. for the works in question were called for and only after due certification and satisfaction, the money was sanctioned by the Government on 28.6.2011 (Annexure-XI), by specifying the amount to be released to the petitioner.
11.2. Since execution of works is not denied anywhere by the Department notwithstanding the multiple affidavits, the senior counsel argues that the payment for the executed works can t be withheld and the projection of forgery/fabrication is contended to be a vindictive stand to deny payment to a contractor, who has refused to opt the easy way out by compromising with the departmental authorities and instead approached the Court of law.
11.3. According to the petitioner, he is a victim of discrimination, since other contractors whose work was certified by the same Executive Engineer R.K. Gogoi in June, 2006 were disbursed their contractual dues. Moreover the respondents do not have any response as to how the same person continued to function in the Sivasagar Water Resources Division at least until August, 2006, as can be seen from so many official documents annexed in the petitioner s re-joinder affidavits and therefore Mr. Dey submits that the Engineer Mr. Gogoi was competent to exercise his functions in June, 2006.
11.4. The allegation of forgery and fabrication of documents are contended to be unfounded in as much as such contentions are not supported by any acceptable material and more importantly it was based on the ex-parte enquiry conducted by the Addl. Chief Engineer of the Department and the petitioner was not afforded any opportunity to participate in the inquiry.
11.5. The senior counsel for the petitioner submits that when the concerned flood damage repairing works were admittedly carried out (in the absence of any denial), if the same were actually executed by another group of contractors, they would have certainly applied for disbursal of their contractual dues and since no such attempt by these fictitious group is disclosed by the respondents to establish the bona fide of their pleaded stand, the petitioner contends that the respondents have raised a false plea to deny the lawful contractual dues of the petitioner, for the 111 number of works executed by him.
12.1. On the other hand, the learned departmental lawyer Ms. S. Chutia refers to the counter affidavit(s) to submit that since the Addl. Chief Engineer has found forgery/fabrication of documents in the inquiry report dated 30.7.2013, it will be improper to entertain the contractual claim of the petitioner as this will be contrary to public interest.
12.2. The departmental lawyer further submits that since the Sivasagar P.S. Case No.726/2014 is registered against the contractor, unless he is exonerated by the Criminal Court, it will be improper to direct release of the contractual dues although the amount is kept intact on account of this Court s interim order.
13. When we take into account the rival contention, the execution of the flood damage repairing works on the left embankment of the Desang River is found to be uncontested. But the respondents resist the petitioner s claim for contractual dues by projecting that those 111 works worth Rs.1,06,77,807/- were executed by a group of contractors and they are suffering for non-receipt of their dues for the executed works. When we test the projection of the respondents on the basis of the materials made available, what is conspicuous is that not a single person among the so called group of contractors, is named by the respondents, who might have executed the works claimed by the petitioner. Moreover it is unrealistic for any contractor who executed some contract, to sleep over his claim and the respondents despite four counter affidavits, have not disclosed the instance of any such contractor, who has put forward a claim for the works in question. Therefore the Chief Engineer s contention as reflected in para-6 of the 4th counter affidavit filed on 30.6.2015, is prima facie found to be unbelievable.
14. Nevertheless very serious allegation of forgery/fabrication of contract documents are leveled against the petitioner and this can t also be brushed aside as one sided version of the respondents. But when the execution of the works is not disputed, the respondents can t escape their responsibility to make payment for the works done. Only upon due verification by various authorities at different level, sanction for contractual payment was made in the name of the petitioner, by the Government on 28.6.2011 and if the contract documents including the work orders were actually forged as is projected now, the same should have been detected during the verification process particularly after the order passed by this Court in the previous round i.e. WP(C) No.358/2009. Moreover if contract documents/work orders were fabricated by the contractor, the same could not have been manipulated without complicity of multiple functionaries at all levels of the State apparatus and it appears that the respondents have conveniently tried to put the entire blame on the contractor and the deceased Executive Engineer R.K. Gogoi, who died on 4.2.2007.
15. On the refusal of the respondents to disburse the contractual payment on account of the inquiry report dated 30.7.2013, one has to be conscious of the fact that this was an ex-parte proceeding and it cannot therefore be the basis for the adverse steps against the contractor who was kept outside the process of the enquiry. Moreover the Court too was not taken into confidence although the enquiry was conducted while this case remained pending in the Court. The Sivasagar P.S. Case No.726/2014 was registered on 23.8.2014 and the departmental lawyer has no information on the status of investigation of that case and Mr. SS Dey, the learned senior counsel submits that the police have not even questioned the petitioner so far in the police case. Moreover attempt at improvement of their case by the respondents, by supplanting reasons through affidavits in Court is clearly discernable in this case and such efforts are legally impermissible as was held in Commissioner of Police, Bombay vs. Gordhandas Bhanji reported in AIR 1952 SC 16.
16. In my perception it is not possible to conclude at this stage that, the petitioner had committed forgery/fabrication for which he is disentitled to receive contractual payment, particularly when, the execution of the works is not disputed by any quarter and no other contractor has made any claim for the executed works. But at the same time, the State s interest must also be protected as otherwise, an undeserving person may receive payment through illegal means and the State will be left remedy-less and this certainly can t be supported by the Court.
17. Therefore to balance the equitable interest of both sides and taking into account that the Government had sanctioned Rs.1,06,77,807/- for making payment to the petitioner and this money is kept intact through the interim order dated 21.2.2012, subject to furnishing of bank guarantee from a schedule Bank by the contractor, the earmarked amount of Rs.1,06,77,807/- is ordered to be released to the petitioner. However the departmental authorities are given the liberty to en-cash the bank guarantee, if any adverse finding is recorded against the petitioner through a legally acceptable process including the verdict in the criminal case. It is ordered accordingly.
18. With the above order, the case stands allowed to the extent indicated. No cost.