IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1672 of 2007(Y)
1. BABY JOSEPH,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE CONSERVATOR OF FORESTS,
3. THE DIVISIONAL FOREST OFFICER,
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :09/02/2007
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C) NO. 1672 OF 2007
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Dated this the 9th day of February, 2007
J U D G M E N T
The petitioner quoted his rates on the basis of Exhibit P1
notification inviting tenders for felling, transporting, stalking etc of
timber. Before the work was awarded to him, he brought to the
attention of the competent authorities as per Exhibit P2 that
following the opening of tenders, when he discussed the matter
with the trade union leaders, it emerged that the trade unions
insist on the labourers being paid wages at rates specified by the
Government as per decision dated 21/5/2002. He accordingly
requested the Government that he may be either permitted to do
the work by fixing such contract amount determining the rate of
labour as the rate fixed on 21/5/2002 or otherwise he may be let
free from any contractual liability, including risks and costs.
Thereafter the competent authority issued Exhibits P3 and P4 by
which the petitioner was identified as the person who quoted the
lowest, that is to say, 7% above the PAC and 3% less than PAC.
The fact remains that as of now, no work has been carried out and
the petitioner had essentially been shuttling between the office of
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the Chief Surveyor of Forests, the Government and this Court.
2. Having regard to the facts and circumstances of
the case, immediately after Exhibit P4 decision was taken on
8/10/03 identifying the petitioner as the person entitled to be
engaged as the contractor, the matter had gained attention of
this Court in WP(C) No. 35548/03, consequent on which the Chief
Surveyor of Forests (Development) wrote Exhibit P5 to the
Principal Secretary to Government. A reading of that
communication will disclose the administrative wisdom leading to
the recommendations made therein and the larger public interest
including the financial interest of the Government that was sought
to be ensured. It was also noticed that the implementation of the
revised wages order on 21/5/02 was delayed because of certain
discrepancies relating to the orders of wage revision. However, it
is a matter of common knowledge and experience in the labour
sector that when revised wages are identified by the Government
or even if the Government reach a tentative decision regarding
the same, the workers and the trade unions would normally insist
on payment of wages at such revised rates. Such a claim by the
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labour sector does not always depend upon technicality as to
whether the Government have notified the revised wages or
whether there is a stay of the revised wages as is in this case. I
say so, because the revised wages ordered as on 21/5/02 were
stayed by the Government by Government order dated 29.1.04.
Though the labour sector is not an unruly lot, they cannot also be
always expected to stand in abiding such stay orders and revision
orders of the Government because their paramount interest is
that they get the best and reasonable wages, having regard to
the work involved.
Under such circumstances, it is only practical that the
Government apply their mind in a reasonable and rational manner
to the entitlement of the labourers for such rates for which they
are demanding and take a reasonable decision in the claim of the
petitioner to let him do the work at some higher rate so that he
will not be put to peril by paying wages at rates determined to be
with effect from 21/5/2002, though the same was stayed by the
Government on 29/1/2004. The spiraling cost of commodities and
the resultant increase in transporting charges and expenditures in
all sectors of life is a matter of which none needs to place any
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materials for any Court to take note of. The contract relatable to
the year 2003 is still hanging, in 2007. This is inspite of repeated
directions of this Court and the repeated tender notices issued by
Government calling for alternate tenders to rearrange the work. If
work is so rearranged, may be that the Government would have a
right to claim risk and cost, in terms of law, from the petitioner.
But the fact remains that inspite of retender, none has quoted
over and above the rates quoted by the petitioner in terms of
Exhibit P1. So much so, as of now, it would well be within the
purview of the administrative function of the Government to
reconsider its decision in Ext.P6 on the basis of Ext.P5, particularly
when the petitioner, as of now, takes a stand that he is even
prepared to execute the work at the rates quoted by the second
lowest bidder in terms of Exhibits P3 and P4. Rather than drag on
the issue, it would be appropriate that the Government address
themselves on this issue and take a final decision in the matter,
unless of course, the Government come to the view that the trees
need not be felled at all.
3. In the aforesaid circumstances, this writ petition is
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disposed of directing that the Government will reconsider Exhibit
P6 in the light of Exhibit P5 and would also reconsider Exhibit R3
(e) decision because mulcting of responsibility for risk of cost can
be only when the work is rearranged and the petitioner, with
practical wisdom is keeping options open, to do the work at same
rate as could be agreed even mutually. The Government will give
the petitioner an opportunity of hearing and take a final decision
in the matter within a period of one month from the date of
receipt of this judgment. To enable this to be done, it is directed
that all decisions against the petitioner as part of this file would
not stand in the way of the Government giving a decision afresh.
THOTTATHIL B. RADHAKRISHNAN, JUDGE
Rp