Madhya Pradesh High Court
M/S. Trishul Construction vs The State Of Madhya Pradesh on 17 August, 2015
WP-10962-2015
(M/S. TRISHUL CONSTRUCTION Vs THE STATE OF MADHYA PRADESH)
17-08-2015
Shri Rajesh Maindiratta for the petitioner.
Shri Swapnil Ganguly, Government Advocate, for the
State/respondents.
Heard on the question of admission.
Petitioner has filed this writ petition challenging the show-cause notice and orders passed by respondent Nos. 2 and 3, in the matter of termination of contract and suspending the petitioner after issuing show-cause notice.
Petitioner is a registered Firm having its office at 14, Janki Nagar, Jabalpur. Petitioner is a registered A5 Contractor for the Water Resources Department and undertakes various civil contracts for the Department. As far as the dispute in hand is concerned, it is seen that petitioner was awarded work for construction of Mirhasan Diversion Scheme for Rs.1213.53 Lacs. The work was issued to the petitioner and agreement was entered into, which contemplates an Arbitration Clause. Various disputes arose between the parties in the matter of finalization of bills of the petitioner, conclusion of the contract within the stipulated period and, therefore, at the instance of the petitioner the matter came to this Court in W.P. No. 7593/2014. A Bench of this Court by an order passed on 30.7.2014, without entering into the controversy on merits, directed the competent authority to consider and decide the representation of the petitioner. Claim of the petitioner was rejected and thereafter it is seen that the petitioner has already taken recourse to the remedy available of seeking a reference to the MP State Arbitration Tribunal under the MP Madhyastham Adhikaran Adhiniyam, and the same is pending before the Tribunal.
However, in the meanwhile as petitionerâs registration was proposed to be suspended and a show-cause notice was issued, the petitioner again approached this Court challenging the show-cause notice in W.P. No. 5805/2015. A Coordinate Bench of this Court took note of the grievance of the petitioner and directed the competent authority to take a decision in the matter of the show-cause notice issued to the petitioner. In Writ Petition No. 5805/2015, petitioner had approached this Court with the same grievance that the action for suspending his registration is initiated at the instance of the Engineer-in-Chief and, therefore, as the petitioner apprehended that justice would not be done to him, he challenged the show-cause notice.
This Court while deciding W.P. No. 5805/2015, directed the competent authority namely the Chief Engineer to decide the matter relating to the show-cause notice without being influenced by the observations made by the Engineer-in-Chief, and act in an independent manner. The Chief Engineer having rejected the reply to the show-cause notice and having suspended the petitioner for a period of one year vide impugned order- dated 26.6.2015 â Annexure P/23, petitioner is again before this Court.
Shri Rajesh Maindiratta, learned counsel for the petitioner, took us through the documents and material available on record and tried to indicate on merits that the allegations levelled against the petitioner for suspension are not made out from the material available on record. Learned counsel also indicated that various grounds have been taken note of for suspending the registration of the petitioner, even though the same did not constitute the grounds contained in the show-cause notice.
Inviting our attention to a judgment rendered by Gwalior Bench of this Court in the case of Niravana Parth Movers Vs. State of MP and others [Writ Petition No.1400/2014], reported in 2014 SCC Online MP 5416, decided on 18.9.2014, learned counsel tried to argue that as the impugned action is taken without appreciating the explanation and defence of the petitioner, and as the same is in violation to the principles of natural justice, this Court can interfere into the matter. Learned counsel emphasized that even when the reference of the petitioner before the State Arbitration Tribunal is pending, the impugned action taken is arbitrary.
Refuting the aforesaid contention â Shri Swapnil Ganguly, learned Government Advocate, submitted that against the impugned order passed by the Chief Engineer, a remedy of appeal to the Engineer-in-Chief is available and as serious disputed questions of fact are involved in this writ petition, petitioner should be relegated to take recourse to the remedy of appeal and indulgence by this Court directly into such matter exercising its extra ordinary jurisdiction under Article 226 of the Constitution is not called for. That apart, learned Government Advocate argued that the apprehension of the petitioner that because the Engineer-in-Chief has directed to take action and, therefore, the appellate authority â the Engineer-in- Chief, will act in a pre-determined manner is totally misconceived and without any basis.
Learned Government Advocate submits that the Engineer-in-Chief has only directed that action in accordance to the terms and conditions of the Contract should be taken, that does not mean that the Engineer- in-Chief will not discharge his appellate duties in a proper manner.
Shri Rajesh Maindiratta, learned counsel for the petitioner, again argues that as the impugned action is taken on the dictate of the Engineer-in-Chief, the remedy of appeal before the same Engineer-in-Chief is not an efficacious remedy and, therefore, this Court should interfere into the matter.
We have considered the rival contentions advanced and we have bestowed our anxious consideration on the question with regard to entertaining this petition when a remedy of appeal before the Engineer-in-Chief is available to the petitioner.
The only reason which was canvassed by Shri Rajesh Maindiratta for by-passing the remedy of appeal and making indulgence in this petition was that the Engineer- in-Chief has already issued a direction for taking action and once action is taken on such a direction issued, the petitioner apprehends that the justice would not be done to him.
We have considered this question and we find that when the show-cause notice was issued to the petitioner and when petitioner approached this Court, in Writ Petition No. 5805/2015, instead of replying to the show-cause notice, the petition was filed. This question came up for consideration and at that point of time also, and the petitioner tried to indicate that as the Engineer-in-Chief has directed for issuing show-cause notice, remedy of replying to the show-cause notice is only an empty formality. This Court considered the same and directed the competent authority to consider the matter in accordance with law without being influenced by the observations made in his communication dated 6.4.2015. That apart, if the communication of the Engineer-in-Chief dated 6.4.2015, available on record, is taken note of, we find that the Engineer-in-Chief has only indicated that action be taken in the matter in accordance to the requirement of the contract, which includes black listing of the contractor. The observations made by the Engineer-in-Chief are only administrative instruction to take action in accordance to the requirement of the contract and while doing so, he has only suggested the action proposed to be taken, which includes the action for black listing.
Merely because the Engineer-in-Chief has so observed, it cannot be construed or held by us that the Engineer-in- Chief is biased or prejudiced against the petitioner and will act in a pre-determined manner. This is the apprehension of the petitioner and we are of the considered view that the Engineer-in-Chief will discharge his appellate jurisdiction in accordance with law. That being so, we are not inclined to accept the submissions made by Shri Rajesh Maindiratta and interfere into the matter, by passing the remedy of appeal available to the petitioner.
When the right of appeal is available to the petitioner before the Engineer-in-Chief and when questions of fact as are involved in the matter, which are disputed, and can be more appropriately dealt with by the Engineer-in- Chief, it is always best that the appellate authority should consider the grievance of the petitioner at the first instance and, thereafter it would be for the petitioner to approach this Court.
As far as the judgment in the case of Niravana Parth Movers (supra) relied upon by Shri Rajesh Maindiratta is concerned, in the said case, interference was made even after the appellate authority decided the matter and the Court found that even the appellate authority has violated the principles of natural justice while exercising its appellate jurisdiction. It was in the backdrop of these facts that the said writ petition was decided. In the present case, petitioner is yet to file an appeal and as the appellate authority has not considered the matter, for the present we feel that the said judgment will not help the petitioner.
Accordingly, we dispose of the writ petition with the following directions:-
âOn the petitionerâs filing a certified copy of this order alongwith a detailed appeal before the appellate authority within a period of 15 days from the date of receipt of certified copy of this order, the appellate authority shall consider the appeal of the petitioner, if required grant personal opportunity of hearing to the petitioner, and thereafter take a decision in the matter in accordance with law, within a period of 45 days thereof.â With the aforesaid observations, the writ petition stands disposed of.
CC as per rules.
(RAJENDRA MENON) (SUSHIL KUMAR GUPTA)
JUDGE JUDGE