A contractor must be afforded an opportunity to be heard before drastic actions, such as contract termination at risk and cost, are taken, reinforcing the principle of fair procedure.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

The petitioner impugns Ext.P8 order issued by the 4^th respondent – Project Director, whereby, a contract which he had entered into qua a particular road has been cancelled at his risk and cost; with a corollary direction to forfeit the Security Deposit and “any other amount due from him” (sic) towards the work.

2. Sri.Akshay George – learned counsel for the petitioner, vehemently argued that Ext.P8 suffers from the vice of improper application of mind, and that it has been done without affording any hearing to his client. He pointed out that the said proceedings is the result of a complaint stated to have been preferred by a former member of the Legislative Assembly; and that the Project Director has acted in a mechanical manner, without considering any of the relevant facts and without even offering his client an opportunity of representing against it. He added that his client has subsequently preferred Ext.P9 representation before the Project Director and argued that its contents would establish that the attempt to impose risk and cost liability against his client, is not merely impermissible, but uncharitable and unfortunate. He, therefore, prayed that Ext.P8, to the extent to which it has imposed risk and cost liability against his client, be set aside; and the competent Authority be directed to refund the Security Deposit and other amounts entitled to his client, under the work, within a time frame to be fixed by this Court.

3. Sri.K.V.Manoj Kumar – learned Senior Government Pleader and Standing Counsel for the PWD, submitted that, as is evident from Ext.P8, the road in question was found to be in a completely dilapidated condition even after the work was said to have been completed by the petitioner; and that several complaints were received from the public. He added that, in fact, the petitioner did not even commence work on one stretch of the road; and that the Project Director acted, not because of the complaints he received from the former MLA alone, but after due inspection and diligence. He explained that there were several review meetings held by the Project Director, in which the petitioner was involved and his version having been heard; thus arguing that, consequentially, further opportunity to him of being heard, before Ext.P8 was issued, was unnecessary. He, however, fairly conceded that this Court is not inclined to accept Ext.P8 solely because it has been issued without hearing the petitioner, then, as far as the termination of the contract at the risk and cost of the petitioner, he can be given an opportunity of being heard and his explanation, namely Ext.P9, adverted to. He added that, in any event, no other event is possible because, the work of the road has been rearranged and is being completed through another contractor.

4. When I evaluate and consider the afore rival submissions, and examine Ext.P8, it is rendered luculent that the said order does not say that it has been issued after hearing the petitioner. No doubt, the specific stand of the learned Government Pleader is that review meetings were held in the past and therefore, that a further hearing was unnecessary. However, it is now well settled, without requirement for restatement, that an opportunity of being heard and of preferring objections prior to a drastic step as termination of contract at the risk and cost of a contractor, is the sine qua non of a fair procedure. This cannot be violated, even if there had been review meetings in the past.

5. That apart, the petitioner appears to have preferred Ext.P9 objections against Ext.P8 and there is nothing on record to show that this has been even adverted to by the Project Director, at any time.

In the afore c