Calcutta High Court (Appellete Side)
In Re: Hindusthan Steelworks ... vs The Board Of Trustees For The Port Of ... on 15 May, 2020
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
15.5.2020
Item no. 10
Sulalit
WP No. 4795 (W) of 2020
With
C..A.N. No. 3073 of 2020
And
C..A.N. No. 3072 of 2020
(Via Video Conference)
In re: Hindusthan Steelworks Construction Limited
v.
The Board of Trustees for the port of Kolkata
& Ors.
Mr. Haradhan Banerjee, Sr. Counsel
... for the petitioner.
Mr. Jaydeep Kar, Sr. Counsel
... for the respondent nos. 1 & 2.
Mr. Sunil Singhania ... for the respondent no. 3.
The present writ petition has been preferred challenging, inter alia, an order of termination dated January 1, 2020 and a further notice dated April 27, 2020.
In view of the express undertaking of the petitioner to comply with all the formalities regarding filing, including stamping of the petition immediately upon resumption of normal Court business and in view of the urgency involved, the application being CAN 3073 of 2020, is allowed and the petition is taken up for hearing through Video Conference.
Records reveal that since after filing of the writ petition, the same could not be taken up by this Court in view of the extraordinary situation which occasioned due to pandemic, the petitioner preferred an application under Article 32 of the 2 Constitution of India before the Hon'ble Supreme Court in which an order was passed on May 8, 2020 directing the respondents not to take any steps pursuant to the order of termination dated January 1, 2020 and the notice dated April 27, 2020 for a period of two weeks.
Mr. Haradhan Banerjee, learned senior counsel appearing for the petitioner submits that the impugned order of termination suffers from a jurisdictional error inasmuch as in view of the Office Memo dated May 22, 2018 the dispute, which occasioned amongst the parties, ought to have been referred to AMRCD.
According to him, the respondents made up their mind to issue the order of termination at the show cause stage. The deployment made by the petitioner was accepted by the parties and a Commissioning Certificate was also issued on July 2, 2018. After issuance of such certificate, the order of termination could not have been issued.
According to him, the issue of deployment was within the knowledge of the authorities, inasmuch as , in a prior writ petition preferred by one Uma Corporation challenging the issuance of work order in favour of the petitioner, the said issue was discussed by the Court and the writ petitioner's prayer was rejected.
Per contra, Mr. Joydeep Kar, learned senior counsel for the respondent nos. 1 and 2 submits that the assignment made is violative of clause 7.9(e) which provides that:-
"7.9(e). The contractor assigns or transfers the weighbridges and its associated facilities to any third party without permission from KoPT."
Drawing the attention of this Court to the MOU between the petitioner and the proforma respondent no. 4, Mr. Kar submits that from clauses 2.1 and 2.2 it would be explicit that the work was completely assigned to the proforma respondent no. 4 and the revenue share in between the petitioner and the said respondent was 12.5 % and 87% respectively. 3
Mr. Kar denies that the order of termination suffers from any jurisdictional error inasmuch as the Office Memo dated May 22, 2018 is an administrative order and it has not been given any retrospective effect. The said Office Memo thus has no manner of application.
Prima facie, I find substance in the argument of Mr. Banerjee that the impugned order of termination suffers from a jurisdictional error, inasmuch as, in terms of the Office Memo dated May 22, 2018 a dispute or difference between the Central Public Sector Enterprises/Port Trust needs to be resolved through AMRCD and the same applies to on going contracts also. Furthermore, the issue pertaining to assignment was also involved in a prior litigation initiated by one Uma Corporation. An arguable case has been made out by the petitioner to avail an interim protection.
Accordingly, there shall be an interim order restraining the respondents from giving or further effect to the impugned order of termination dated January 1, 2020 and the notice dated April 27, 2020 for a period of ten weeks from date.
The respondents would be at liberty to file their affidavits-in-opposition within three weeks from date. Reply, if any, be filed within two weeks thereafter.
The parties would be at liberty to mention the matter for final hearing after expiry of the period, as fixed above, towards exchange of affidavits.
The application, being C.A.N. No. 3072 of 2020 is disposed of. The parties are directed to act on the basis of a server copy of this order.
( Tapabrata Chakraborty, J.)