High Court Kerala High Court

Baby Joseph vs The State Of Kerala on 9 February, 2007

Kerala High Court
Baby Joseph vs The State Of Kerala on 9 February, 2007
       

  

  

 
 
  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

                        ```````````````````````````

             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