APARESH KUMAR SINGH, J. - (1.) Heard learned counsel for the petitioner and Respondent-State.
(2.) Petitioner was awarded work under Agreement no. 8/2008-09 under PMGSY Package No. JH0603, Phase-Vth, in the district of East Singhbhum for execution of work relating to (i) Kadamdih to Marchagora-5.388 Km.; (ii) Simuldanga to Betakocha-1.450 Km. For Agreement Value Rs. 1,68,55,687/. Construction cost was Rs. 153,16,013.00 while Maintenance cost was Rs. 15,39,674.00. Agreement is dated 10th January, 2009. Work was to commence from 10th January, 2009 itself to be completed by 9th January, 2010. A similar nature of work was also awarded to the petitioner under Agreement no. 06/2008-09 under PMGSY package no. JH0605, Phase-Vth, in the same district for construction of road (i) Jadugora Musabani road to Swaspur-2.028 Km. (2) Govindpur Jadugora road to Tilamura-2.680 Km., for Agreement Value Rs. 1,26.90,863.00. The construction cost was Rs. 1,16,67,130.00/- while Maintenance cost was Rs. 10, 23,733.00. Agreement is dated 16th May, 2008. Agreement was to commence from the same date and to be completed by 15th May, 2009. Both these agreements have been rescinded by the impugned order dated 15th May, 2010 bearing Memo nos. 974 and 975 issued by respondent no. 6, Executive Engineer, Rural Works Department, District-Singhbhum East invoking the terms and conditions of Clause-52.2, Sections-c, f, h and k as respects Agreement no. 08/2008-09 and Clause-52.2, Sections-a, e and f as regards agreement no. 06/2008-09 (Annexures-5 to writ petition and B and C to counter affidavit respectively) Dispute Redressal Mechanism is provided under Clause 24 of the agreement (brought on record by supplementary affidavit dated 29th September, 2016) which however has been clarified not to be an arbitration Clause as per Clause 25.1. The Dispute Redressal System do provide a mechanism where-under firstly it is to be referred to competent authority and thereafter before Standing Empowered Committee if the amount appealed against the decision of the competent authority is in excess of rupees one lakh. Clause 52 of the agreement which contains the Termination Clause is quoted hereunder: 52. Termination 52.1 The Employer may terminate the Contract if the Contractor causes a fundamental breach of the Contract. 52.2 Fundamental breaches of Contract shall include but shall not be limited to, the following a) the Contractor stops work for 28 days when no stoppage of work is shown on the current Programme and the stoppage has not been authorised by the Engineer; b) the Contractor is declared as bankrupt or goes into liquidation other than for approved reconstruction or amalgamation; c) the Engineer gives Notice that failure to correct a particular Defect is a fundamental breach of Contract and the Contractor fails to correct it within a reasonable period of time determined by the Engineer; d) the Contractor does not maintain a Security, which is required e) the Contractor has delayed the completion of the Works by the number of days for which the maximum amount of liquidated damages can be paid, as defined in clause 44.1 f) the Contractor fails to provide insurance cover as required under clause 13; g) if the Contractor, in the judgment of the Employer, has engaged in the corrupt or fraudulent practise in competing for or in executing the Contract. For the purpose of this clause, "corrupt practise" means the offering, giving, receiving, or soliciting of any thing of value to influence the action of a public official in the procurement process or in Contract execution. "Fraudulent Practise" means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the Employer and includes collusive practise among Bidders (prior to or after bid submission) designed to establish bid process at artificial noncompetitive levels and to deprive the Employer of the benefits of free and open competition; h) if the Contractor has not completed at least thirty percent of the value of construction Work required to be completed after half of the completion period has elapsed; i) if the Contractor fails to set up a field laboratory with the prescribed equipment, within the period specified in the Contract Data and j) any other fundamental breaches as specified in the Contract Data; k) if the Contractor fails to deploy machinery and equipment or personnel as specified in the Contract Data at the appropriate time.
(3.) Termination entails consequences which are enumerated at Clause-53 and other clauses thereof.;