KANTI PRASHAD MITTAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Vide the present Writ Petition the Petitioner seeks to challenge the Order dtd. 15/6/2023, passed by the Respondent No.3 herein/Executive Engineer, PWD (NH Works), Chandmari, Guwahati, Assam. The Respondent No.3 by the said Order has justified the grant of Performance Certificates to the Respondent No.7.

(2.) The facts, in brief, leading to the present Writ Petition, are that a Request for Proposal No. NHC/BR/21/2018/Pt/18 dtd. 12/9/2019 was issued by the Respondent No.1 through the Public Works Department (Govt. of Assam) to carry out: a) strengthening of pavement from Km 61/00 to Km. 69/00 and; b) widening of 1.5 meter paved shoulder on either side and strengthening from Km. 103/00 to Km. 106/00 of NH-39 under Annual Plan for the year of 2018-19 under Golaghat NH Division in the State of Assam on EPC Mode. The Petitioner herein made his bid for the said project and a Letter of Award dtd. 25/10/2019 was issued to the Petitioner pursuant to which a Work Order was also issued. Consequently, the Petitioner and Respondent No.1 entered into an Engineering, Procurement and Construction Agreement on 27/11/2019. The work was to be completed by 25/12/2020. At this juncture, it is pertinent to mention that Clause 4.2 of the EPC Agreement provides that if any sub-contract or works or the aggregate of such sub-contracts with any Sub-contractor exceeds 5% of the Contract price, the Contractor shall communicate the name and particulars, including the relevant experience of the Sub-contractor, to the Authority prior to entering into any such sub-contract and the Authority shall examine the particulars of the Sub-contractor from the national security and public interest perspective and may require the Contractor, no later than 15 days from the date of receiving the communication from the Contractor, not to proceed with the sub-contract. Clause 4.2(i) provides that the Contractor, whether Joint Venture or sole, shall not sub-contract any Works in more than 49% of the Contract Price and shall carry out Works directly under its own supervision and through its own personnel and equipment in at least 51% of the Contract Price. Respondent No.3 was designated as the Authority Engineer and Authority Representative to act on behalf of the Government. On 1/12/2019 the Petitioner sent a letter to Respondent No.7 for sub-contracting of the work. The said letter reads as under:

(3.) The said letter indicates that virtually the entire work has been sub- contracted by the Petitioner to the Respondent No.7 which is beyond the permissible limit of 49%. The Petitioner also sent a letter dtd. 10/12/2019 to the Respondent No.3 informing him that they are proposing Respondent No.7 as their sub-contractor and that they wish to sub-contract the work on back to back basis to Respondent No.7. Thereafter, the Respondent No.4/Assistant Executive Engineer sent a letter to the Respondent No.3 regarding the proposal sent by the Petitioner for subcontracting the work to Respondent No.7. Vide letter dtd. 16/3/2020, the proposal of subcontracting the work of strengthening of pavement from Km 61/00 to Km. 69/00 and widening of 1.5 meter paved shoulder on either side and strengthening from Km. 103/00 to Km. 106/00 of NH-39 was accepted by the Respondents.