A party failing to comply with contractual terms may be subject to termination even if claiming force majeure circumstances.

JUDGMENT :

The petitioner, a contractor engaged by the State Public Works Department for the work “Special Package Non Plan works 2020-21-Improvements (BM & BC) to Vypin-Pallipuram Parallel road Ch. 11/000 to 17/000”, has filed this writ petition challenging Exhibit P26 order dated 15.03.2023 passed by the Superintending Engineer, PWD Roads Division, Central Circle, Aluva Ernakulam District--respondent No.3; whereby the contract was terminated at the risk and cost of the petitioner.

2. The basic facts for the disposal of the writ petition are as follows:

On the basis of Exhibit P1 Notice Inviting Tender dated 15.02.2021, the petitioner participated in the tender and was awarded the work as per Exhibit P2 letter of acceptance; consequent to which Exhibit P3 agreement dated 08.09.2021 was executed by and between the parties.

3. As per the terms and conditions of the tender, the petitioner has provided a bank guarantee of Rs.8,83,750/-, which is valid upto 14.01.2027. The petitioner had submitted initial levels to the Assistant Engineer, PWD Roads Section, Njarakkal, respondent No.6, evident from Exhibit P4 communication dated 18.08.2021.

4. According to the petitioner, the said levels were not approved for an inordinate amount of time. It is further submitted that the work involves scarifying the existing surface of the site. According to the petitioner, it was part of the petitioner’s scope of work and necessary for the execution of the work as a whole. It is also submitted that the Chief Technical Examiner of the State Government, respondent No.1, vide Exhibit P5 Observation memo dated 11.11.2021, had directed the Executive Engineer, PWD Roads Division, Ernakulam, respondent No.4, to report the intermediate levels after scarifying the existing carriageway and rolling the scarified materials before laying the GSB layer.

5. Apparently, the said instruction was passed on to the petitioner by the Assistant Engineer, PWD Roads Section, Njarakkal, respondent No.6, as per Exhibit P6 letter dated 07.12.2021. The case of the petitioner is that the petitioner was obstructed from carrying out scarification by members of the local public, including the elected representatives of the local Panchayat, which according to the petitioner, is recorded in Exhibit P7 letter dated 07.12.2021 submitted by the petitioner to the Superintending Engineer, respondent No.3.

6. Therefore, according to the petitioner, the intermediate levels could not be reported, since as per the instructions contained in Exhibits P5 and P6, the same was possible only after the scarification was done and before the GSB layer was laid. Anyhow, it is admitted that the petitioner was subsequently instructed orally by the Assistant Executive Engineer, PWD Roads Sub division, North Paravur, 5th respondent, to take levels after GSB layer was laid. It seems, as per Exhibit P8 letter dated 03.03.2022, the petitioner sought written confirmation of the same, since it deviated from the earlier instructions.

7. It is further submitted that the above stated work was severely affected by the consequences of pandemic Covid-19, such as shortage of men and materials, and that the shortage of material, in particular, persisted throughout the course of the work and contributed immensely to slow the progress of the work. It is also submitted that the materials as per Exhibit P3 agreement were not available in the market, which also contributed to the slow progress of the work. That apart, it is submitted that there were only limited number of crusher units operational in Ernakulam District, which according to the petitioner, is recorded in Exhibit P9 minutes of the hearing conducted by the Superintending Engineer, PWD Roads Division, Central Circle, Aluva, respondent No.3, dated 19.05.2022. It seems, the petitioner, in that regard, had issued Exhibit P10 letter dated 28.05.2022 to the Superintending Engineer.

8. It is further contended that the onset of monsoon and heavy rains and flooding in the are