Denying incentive for early completion on frivolous grounds would amount to breach of contract.

JUDGMENT

Dr. B.R. Sarangi, J. - The petitioner has filed this writ petition to quash the order dated 30.10.2010 under Annexure-17 passed by the opposite party no.1-A.F.A.- cum- Under Secretary to Government of Orissa, Works Department, and to issue direction to the opposite parties to make payment of its dues towards incentive/ bonus stipulated in sub-clause-2.4.1 of clause-120 of the Detailed Tender Call Notice (DTCN) as well as special clause-20 of the Special Condition of the Contract arising out of and relating to the Contract Agreement No.11-P1/2008-2009.

2. The facts of the case, in brief, are that the opposite party/ Employer, Government of Orissa, Department of Works invited tenders from the intending tenderers/contractors for execution of the work i.e. 'Improvement to Badakera Maidharpur Road from 0/0 Km. to 16/300 Km. in the district of Angul under NABARD Assistance (RIDF-XII)'. In response thereto, the petitioner submitted its tender, which was accepted as per Works Department Letter No.15521 dated 09.09.2008. An agreement for performance of the said work was executed on 15.10.2008 between the opposite party no.5 and the petitioner which was registered as P1 Agreement No.11-P1 of 2008-09, for an agreement value of Rs.11,84,99,289/- with the stipulated dates of commencement and completion of work as 24.10.2008 and 23.04.2010 respectively. The petitioner executed the work in terms of the conditions stipulated in the contract agreement as well as day to day instructions of the Engineer-in-Charge and Site Engineers and completed the work on 22.02.2010, i.e. two months before the scheduled time of completion of work.

3. Mr. Nilakantha Jujharsingh, learned counsel for the petitioner contended that Agreement No.11-P1 of 2008-09 for the work i.e. 'Improvement to Badakera Maidhapur Road from 0/0 Km. to 16/300 Km. in the district of Angul under NABARD Assistance (RIDF-XII)' was executed on 15.10.2008 between the petitioner and the opposite party no.5- The Executive Engineer, Angul (R & B) Division, Angul with an agreement value of Rs.11,84,99,289/-. Though the petitioner has commenced the work and also completed the same two months before the stipulated time and intimated the authority with regard to completion of the work and for that it is entitled to get the incentive/bonus in terms of sub-clause 2.4.1 of clause-120 read with special clause- 20 of the Special Condition of Contract, but the same has not been paid to the petitioner and the claim for incentive/bonus has been rejected vide the impugned order dated 30.10.2010 under Annexure-17. Therefore, the petitioner has approached this Court by filing this writ petition.

4. Mr. J.P. Pattnaik, learned Government Advocate appearing for the opposite parties, on the other hand, contended that the reason for rejection of the claim of the petitioner has been indicated in the impugned order, that the completion certificate was not submitted by fax/telegram, which is a mandatory provision in Order No.10070/W dated 08.06.2007 of Works Department. Therefore, no fault can be found with the authority in rejecting the claim of the petitioner.

5. Heard Mr. N. Jujharsingh, learned counsel for the petitioner and Mr. J.P. Pattnaik, learned Government Advocate appearing for the State-opposite parties through hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties, this Court disposes of this writ petition finally at the stage of admission.

6. In the above backdrop and rival contentions of the parties, it is to be decided whether the petitioner is entitled to get the incentive/ bonus for early completion of the work in question, and that whether the order dated 30.10.2010 in Annexure-17 denying such benefit to the petitioner is legally tenable.

7. The materials available on record reveal that pursuant to the agreement executed on 15.10.2008, the petitioner completed the work on 22.02.2010 before two months of the date of actual complet