ANIL KUMAR PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner was asked to undertake emergent earth filling work as a part of Flood Protection Programme. There were other similarly situated persons who were contracted to do the said work of constructing embankments. The work was done and payments demanded. As usual, the problem starts then. The payment not forthcoming, the poor contractors approached this Court. This Court disposed of CWJC No. 889 of 2004 by order dated 22.3.2005 directing the respondents to examine the claim of the petitioners and take steps for making payment of admitted dues. In case payments were denied, the petitioners were to be communicated the same giving reasons in support thereof. By the impugned order (Annexure -7) dated 12.9.2005, the petitioners have been communicated the order of the Chief Engineer, Water Resources Department, Muzaffarpur. The petitioner has been held entitled to only Rs 2,78,450/ - as against the claim of Rs. 7,01,429.00. State has filed counter affidavit and submitted that on verification made the claims of petitioner were not rejected as a whole but some payment was found due and tendered to the petitioner. Enquiry did not find him entitled to any further payment. It is, as such, submitted that the balance amount being an amount in dispute cannot be made subject matter of a writ application before this Court.

(2.) HEARD the parties and with their consent, the writ application is being disposed of at the stage of admission itself. It is not in dispute that in rainy season of 2002, the petitioner volunteered to do the earth filling work for flood protection of embankments which was accepted by the Department. Even though petitioner had volunteered, it makes little or no difference as the petitioner was entitled to receive payment as it is not the case of the State that petitioner was doing any charity for the State. It is well established that no work is gratuitous unless accepted and said to be so. Merely because the petitioner volunteered would not take the obligation to pay for the work away from the State. The obligation to pay arises out of work done.

(3.) ONCE the work was done and the petitioner and other such contractors applied for payment, the problem started. As stated above, they came to this Court. The matter was remanded and now by Annexure -7, the reasons for the short payment has been disclosed. In paragraph -3 of the impugned communication (Annexure -7), the first reason given is that the officers of the State, who get the work done at the time of the floods, were directed by the higher officials to submit progress report every fifteen days but the Government servants connected with the same did not submit reports timely and, as such, in absence of timely report having been received, in January 2003 it was recorded that for dereliction of orders, the work would be deemed to be not done and it is for that reason, payments remained pending. If this was the only reason then this Court would have straightway issued a mandamus for payment for the simple reason that because State 'sown officer failed to maintain records or submit report and, thus, committed a default the liability of contractor being third party cannot be jeopardized. If what the State submits is to be accepted then it would be penalizing a person for default by someone over which he had no control. No jurisprudence would permit such an action. For default committed by State Officers, the contractors are being sacrificed. In a fair democratic society, such a stand cannot be accepted by any Court.