R.N. Misra, J.
1. Petitioner has engaged himself in execution of certain contracts under the Public Works Department of the State Government and has received payment under certain running bills for the work done and is yet to receive further payments. Under the 'standard F2 contract form', there is a fair wages clause and under executive authority, a 'Contractors' Labour Regulation' has been framed. Opposite party purporting to be the District Labour Officer and Welfare Officer under the fair wages clause wrote to the Executive Engineer, National Highway Division, Bhubaneshwar, to deduct a sum of Rs. 3,500 from the dues of the petitioner arising out of execution of such contracts pending investigation into a claim laid by some labourers engaged by the petitioner. The Executive Engineer withheld the amount and refused to make the payment to the petitioner in spite of demand. Petitioner has challenged the said order of the opposite party as without jurisdiction and has required the same to be quashed as it creates an unnecessary impediment in the carrying on of his business.
2. Opposite party has filed a counter affidavit indicating therein that he had made a mere request having no statutory force and the Executive Engineer concerned was not obliged to abide by the same. It is claimed that the 'Contractors' Labour Regulation' is a part of the contract entered into between the State Government and the contractor and, therefore, the contractor is bound by the provisions of the Regulation even though they have no statutory force. It is admitted that there has been no final adjudication of the claim raised by the labourers and yet it is claimed that the opposite party has authority to make an interim direction.
3. The contract entered into between the petitioner and the State Government was produced by learned Additional Government Advocate on the request of the petitioner. We find the regular 'F2' contract has not yet been executed and the work is being carried on under a 'K2' contract. It is unnecessary to examine this aspect of the matter, because in our opinion, this case can be disposed of on a different point.
4. Admittedly there has been no investigation into the claims of the labourers. Even under the relevant Regulation no provision is made for an interim attachment. Order 38, Rule 5 of the Code of Civil Procedure vests power in a civil Court to make an order of attachment before judgment. Courts have consistently taken the view that it is a harsh remedy and should not be granted unless the prescribed conditions are established. The order of the opposite party is in fact like an attachment before judgment. In the absence of any specific provision in the Regulation, we are of the view that he is not entitled to make such an order and thus put the petitioner to inconvenience or dislocate his work by withholding his money.
5. We would accordingly quash the impugned order and leave it open to the Executive Engineer to make such payment to the petitioner as he is entitled to under the contract. The writ application is allowed with costs. Hearing fee is assessed at rupees one hundred.
K.B. Panda, J.
6. I agree.