SHYAMAL KUMAR SEN, J. - (1.) THIS appeal is against the judgement and order dt. July 18, 1976 of the learned single Judge in the first Court whereby the learned Judge was pleased to discharge the Rule Nisi issued and dismissed the writ petition of the appellant.
(2.) THE appellant, the writ petitioner in the first Court is a Contractor. He submitted a tender in the name Messrs. Chakraborty and Company being Tender No. 2/ESI of 1966-67 for a part of the work in the construction of a 300 bedded general hospital, excavation of a tank and for raising the site under the E.S.I. Scheme at Budge Budge in the district of 24 Parganas under the Presidency Circle. THE said tender was opened in Feb. 1976. By a registered letter dt. 25th April, 1966 the respondent 5, the Executive Engineer, Eastern Circle, Public Works Department acting on behalf of the State of West Bengal accepted the appellant's tender for the above noted work at the rate of 24.5%. A registered letter dt. 25th April, 1966 was issued by the respondent 5 on behalf of the State of West Bengal the respondent No. 1 in favour of the appellant which was treated as a formal work" order. By a letter dt. 27th Feb. 1967 the Secretary, P.W.D., West Bengal intimated that the Governor had been pleased to sanction, inter alia, enhancement by 15% over the accepted tender including sanitary and plumbing works which had commenced earlier than the 1st April, 1966 but had not yet been completed. The sanction of enhancement by 15 per cent ensured to the benefit of the contractors who are making construction works in respect of E.S.I. hospital division under the territorial jurisdiction of the Presidency Circle. The appellant having been awarded the said work of construction of E.S.I. hospital in the Presidency Circle expected to get the advantage of the said enhancement as sanctioned. But since the appellants contract had been accepted and the work order was also issued after the 1st April, 1966 he was not allowed the said enhancement as sanctioned. The appellant made a representation to the authorities that the acceptance of tenders had been delayed by the authorities and considerable time was taken in issuing the approval of the terms and the work could have been started well ahead of 1st April, 1966 but such representation was not entertained and was refused. Clause 25 of the terms and conditions of the contract between the parties provided for arbitration and read as follows : "Cl. 25- Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings, instructions herein before mentioned, and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works of the execution, or failure to execute the same whether arising during the progress of the work, or after the completion or abandonment whereof shall be referred to the sole arbitration of the Chief Engineer of the Department. Should the Chief Engineer before any reason unwilling or unable to act as such arbitrator such questions and disputes shall be referred to an arbitrator to be appointed by the Chief Engineer. The award of the arbitrator shall be final, conclusive and binding on all parties to this contract." The appellant asked for arbitration in terms of the above clause in respect of his claim for enhanced rates as sanctioned and also in respect of a supplementary bill. The authority concerned referred the dispute relating to the supplementary bill to arbitration the authority concerned refused to refer the dispute arising out of the appellant's claim for enhanced rates. The appellant was intimated that the Government had carefully considered the claim but regretted its inability to refer the same to arbitration.
(3.) THE appellant, therefore, moved this Court in its constitutional writ jurisdiction on which a Rule nisi was issued by this Court on 3rd October, 1972. Calling upon the respondents viz. the State of West Bengal, the Deputy Secretary Public Works Department, the Chief Engineer, Public Works Department, the Superintending Engineer, Eastern Circle, Public Works Department and Executive Engineer, E.S.I. Hospital, Construction Division, Public Works Department to show cause inter alia why a writ in the nature of mandamus should not be issued directing there to cancel or rescind the letter No. 2304-A, of the respondent, Deputy Secretary, Public Works Department, Government of West Bengal dt. 29th Mar., 1972 in so far as it refuses to refer the main dispute to arbitration settlement of the enhancement of tendered rates by 15 per cent on Rs. 5,28,802/- under Cl. 25 of item rate tendered and contract for works as mentioned in the petition and why a writ in the nature of certiorari should not be issued setting aside, cancelling, quashing the said letter.;