CONTENTS - Central Public Works Department

226 SECTION 35
(4) The question as to whether any dispute has become time barred will itself be a dispute which can
only be settled by arbitration. The stage of reference is not concerned with the question whether the
claim of the party to the arbitration agreement is barred by the Law of Limitation and that question
falls within the province of the Arbitrator to whom the dispute is referred. The reference of the disputes,
even though seemingly time barred, would therefore be made to the Arbitrator. The parties would be
free to agitate the question of time bar before the Arbitrator, who would no doubt consider this point
and give his award. However, it can be clarified in the letter of appointment of the Arbitrator that the
reference is without prejudice to the defence that may be raised by the Government regarding the
tenability of the claim on all necessary and available grounds including those in limitation.
(5) An appeal before the Division Bench is to be filed within thirty days of pronouncement of judgment
by the High Court. If for any reason a delay occurs, the Court has to be approached for condonation
of delay in filing the appeal, and the Department has to explain the day-to-day delay to the satisfaction
of the Court. Every care should, therefore, be taken in handling such arbitration/court cases, and
it should be ensured that timely and prompt action is taken within the period of limitation.
35.19 Court cases
(1) Before any action is taken in a court of law against some party for amounts due to the Government,
a reliable report of its financial standing should be obtained, and simultaneously the expenditure
likely to be incurred to recover this amount should be carefully estimated so that unnecessary
expenditure on litigation may be avoided where there is no reasonable chance of recovering the
judgment debts from the party concerned.
(2) Although it is the primary responsibility of the Departmental Counsel or Government Counsel at
the particular station where the case has jurisdiction to see to the proper defence of the case, it is
equally the responsibility of superior officer of the Department to keep a constant watch over the
progress of these cases and see that all such cases, at every stage, are processed properly so
that the cases do not go against the Government interests by default, resulting in financial loss,
etc. to the Government.
(3) The Superintending Engineer should, therefore, see that all such cases are reported to the Chief
Engineer as soon as a suit against Government is threatened by any aggrieved party, or the
Department itself intends to file a suit against a contractor or third party. The first report from the
Superintending Engineer about such cases should give a brief description of the case, and the steps
that are being taken or have been taken for the proper defence or prosecution of the suit. Thereafter,
monthly reports on each such case should be sent to the Chief Engineer detailing the progress of the
case and further action taken or to be taken for its defence or its successful prosecution.
(4) To enable him to discharge properly the responsibility that has been placed upon him in the matter
of defence of court cases, the Superintending Engineer should observe the following:
(a) The Executive Engineers of the Division concerned will be primarily responsible for handling
and defending the court cases. He will collect all the relevant records and compile it for the
benefit of the Counsel.
(b) The Superintending Engineer should also give adequate and timely instructions to the Executive
Engineer to ensure that case is defended properly and handled expeditiously.
(c) If it is considered necessary to obtain the advice of higher authorities at any stage, the
Superintending Engineer should refer the matter immediately to the Chief Engineer concerned
for advice, either personal or in writing, according to the needs of the occasion.
(d) In order that the Superintending Engineer keeps himself fully conversant with the progress of
each case, he should obtain regular reports from the Executive Engineer about the progress
of the case from time to time. He will send monthly reports to the Chief Engineer. All defence
statements to be filed by the Executive Engineer should be approved by the Superintending
Engineer and the Counsel before the statement is filed.