Andhra Pradesh High Court - Amravati
M/S. Vijay Electrical Engineering, vs The State Of Andhra Pradesh, on 21 October, 2021
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION No.10421 OF 2021
ORDER:
This Writ Petition, filed under Article 226 of the Constitution of India, calls in question the order passed by the Superintending Engineer, Operation Circle, APCPDCL, Ongole, respondent No.3 herein, vide Letter bearing LR.No.SE.O.OGL.TECH.E.DOC.E.No. 261047/2021 dated 12.05.2021, terminating L.S.Agreement No.105/2020-21 dated 18.09.2020.
2. According to the petitioner, it is a Proprietory concern and the deponent of the writ affidavit, who is the Proprietor of the petitioner-Proprietory concern, has been eking out his livelihood by executing electrical work contracts. The Andhra Pradesh Electrical Licencing Board, Government of Andhra Pradesh, issued electrical contract licence Grade-A in favour of the petitioner and the same is being renewed from time to time, enabling the petitioner to undertake operation and maintenance works at 33/11 K.V. Sub-Stations. In response to a tender floated by respondent No.2 for carrying out Manning of Sub-Stations, Operation and Maintenance including Watch and Ward at 33/11 K.V. Sub-Stations, the petitioner herein participated in the said process of tenders and emerged as successful bidder for the Sub-Stations at Adusumilli, Karamchedu, Swarna, 2 Edupulapadu, Motupalli, Vallapalli, Uppumaguluru, Vemavaram, Komminenivari-palem, Velamvaripalem. The Superintending Engineer, respondent No.3 herein, executed L.S.Agreement on 18.09.2020, covering all the above said Sub-Stations in favour of the petitioner herein for undertaking the works for a period of two years, commencing from 01.09.2020 to 31.08.2022. According to the petitioner, he appointed the Shift Operators/Watchmen and intimated the same to respondent Nos.3 to 5 to take necessary steps for verification of certificates by duly fixing the dates. The Executive Engineer, Chirala, respondent No.4 herein issued a notice dated 07.12.2020, asking the petitioner to produce the following:
(1) Validity of Original Grade-A Electrical Contract Licence cum original permit books.
(2) Supervisor in person along with Original permit certificate and Book.
(3) Wireman in person along with Original permit certificate.
(4) Equipment along with test certificate.
3. It is pleaded by the petitioner herein in the affidavit filed in support of the Writ Petition that by way of a reply dated 24.12.2020 (acknowledged by the office of respondent No.4 on 28.10.2020), he produced the entire information sought.
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4. The Executive Engineer, Addanki, respondent No.5 herein issued a notice dated 07.12.2020, asking the same information as sought by respondent No.4 in the above mentioned notice dated 07.12.2020 and according to the petitioner, vide reply dated 16.12.2020, he produced the entire information sought and the office of respondent No.5 also acknowledged the same on the even date.
5. Subsequently, vide letter dated 05.02.2021, respondent No.3/Superintending Engineer instructed the petitioner to attend his office on or before 11.02.2021 with relevant documents, pertaining to Wireman permit No.0- 304244 along with the persons during office working hours of any working day between 10.30 a.m. and 5.00 p.m. and also directed the petitioner to produce the following documents/information:
1. Original Appointment Letters issued to Supervisor & Wiremen.
2. Attendance Register of Supervisor and Wiremen.
3. Salary particulars paid to supervisor and Wiremen including E.P.F., E.S.I./Insurance Register numbers.
4. List of contract works done by the agency along with Purchase Orders/Work Orders details.
5. Performance Certificate issued by the department.
6. Ownership/Rental receipts paid by the agency for the address location specified.4
6. In reply to the same, according to the petitioner, he submitted explanation dated 11.02.2021, enclosing the following:
1) Valid A grade licence original.
2) Supervisor and wireman competency certificates original.
3) Super permit book upto 33KV original book.
4) Wire man permit book copies.
5) Superviser in person.
6) Wireman in person - two persons.
7) Insulation megger 2.5KV, 0.5000 M ohm.
8) Insulation megger 1000 volts, 0-500 M ohm.
9) Insulation megger 500 volts, 0-100 m ohm.
10) Earth megger 0-10 M ohm, 0-1000 M ohm.
11) Tong Tester voltage 0-750 volts Amps 0-1000 amps Resistance 0-20 K ohm
12) 7 to 11, Equipment test certificates enclosed.
13) Attendance Register of Supervisor and Wireman's.
14) Salary particulars paid to supervisor and wireman's including E.P.F., ESI/Insurance Register Numbers.
15) List of contract works done by the agency along with purchase orders/work order details.
16) Ownership/Rental receipts paid by the agency for the address location specified.5
7. Vide letter bearing No.LR.No.SE.O.OGL.TECH.F. DOC.E.No.257476/2021 dated 03.04.2021, the Superintending Engineer, respondent No.3 herein, issued a final notice, pointing out the following alleged lapses on the part of the petitioner herein:
1. The Particulars of E.P.F., ESI in respect of 2 Nos working wire men namely R.Bala Krishna and K.Sambasiva Rao for the period 01.09.2020 (i.e., date of Agreement) to 31.12.2020 are not submitted.
2. The particulars of Salary payment made through Bank along with proof of Bank Account details in respect of 2 Nos working wire men namely R. Bala Krishna and K.Sambasiva Rao for the period 01.09.2020 (i.e., date of Agreement) to 31.01.2021 are not submitted.
3. As per the Attendance Register 2 Nos working wiremen were not engaged full time for the said work as given below.
8. In response to the above letter, the petitioner herein submitted a reply dated 07.04.2021 and eventually, the Superintending Engineer-respondent No.3 herein, vide letter dated 12.05.2021, terminated the L.S.Agreement dated 18.09.2020. This Writ Petition filed under Article 226 of the Constitution of India assails the validity and legal sustainability of the said order of termination.
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9. The respondents herein have filed counter affidavit and a reply is also filed by the writ petitioner.
10. Heard Sri V.Venugopal Rao, learned counsel for the petitioner and Sri Y.Nagireddy, learned Standing Counsel for the respondent-Corporation, apart from perusing the material available on record.
11. Contentions/submissions of Sri V.Venugopal Rao, learned counsel for the petitioner:
(1) The order impugned in the present Writ Petition is highly illegal, arbitrary, unreasonable, malafide, discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution of India.
(2) The grounds assigned by the respondent-authorities for terminating the L.S.Agreement are neither sustainable nor tenable in the eye of law.
(3) The reason assigned in the impugned order that there was no valid Grade-A Electrical Contractor's Licence as on date of tender is contrary to the orders dated 30.03.2021 and the respondent ought to have seen that the deemed suspension was on account of Covid-19 pandamic and the licence stood extended with retrospective effect.
(4) The competent authority to issue A-Grade Licence is the A.P.Electrical Licencing Board, which granted licence renewal 7 upto14.07.2021 and the Board issued the licence on production of one Supervisor permit and 2 Wiremen permit and the Board alone is competent to verify and take action and respondents, if have any doubt as regards the licence and requirements contained therein cannot initiate action on their own, but can report the same to the Board for necessary action, if any.
(5) The respondents herein have absolutely no jurisdiction to ask information about EPF/ESI, Salary payment and other particulars as regards the salary payments and the attendance registers.
12. Contentions/submissions of Sri Y.Nagireddy, learned Standing Counsel for the respondents:
(1) The present Writ Petition filed under Article 226 of the Constitution of India is not maintainable as the issue raised in the Writ Petition pertains to contract.
(2) The contention that the respondents have no jurisdiction to verify EPF and ESI payments is not tenable in view of Clauses 6(iii) and 7(ii) & (vi) of the L.S.Agreement.
(3) The contention as regards the alleged harassment and discrimination is neither true nor has any basis and the petitioner herein has utterly failed to prove the same by adducing evidence.8
(4) At the time of entering into contract, the petitioner herein had no valid A-Grade contract licence in his favour and no intimation was furnished to the respondents about the letter of the Chief Electrical Inspector dated 30.03.2021.
(5) Clause 36 of the L.S.Agreement mandates filing of returns before the EPF authorities.
(6) As per Clause 33(T) of the L.S.Agreement, all disputes arising out of the contract are to be decided in the Courts situated in the geographical limits of the respective Operation Circles, as such, the petitioner herein has to file a Civil Suit before the jurisdictional Civil Court for reddressal of grievances, if any.
13. In the above background, now the issue which this Court is called upon to answer in the present Writ Petition is "Whether the petitioner is entitled for any relief from this Court under Article 226 of the Constitution of India, having regard to the facts and circumstances of the case?
14. It is very much manifest from a reading of the impugned order that on four grounds, the Superintending Engineer-respondent No.3 herein terminated the L.S.Agreement. They are:
(1) As per the report received from CEIG (Chief Electrical Inspector to Government), the "Grade A" Electrical Contractors Licence issued in favour of the petitioner was deemed to be 9 under suspension and the petitioner submitted an invalid Grade-
"A" Electrical Licence at the time of submission of the tenders and the petitioner violated the terms and conditions of the tender specifications.
(2) Particulars of E.S.I., E.P.F., in respect of 2 Nos. working Wiremen, namely, R.Balakrishna and K.Sambasiva Rao for the period 01.09.2020 i.e., the date of agreement, till 31.12.2020 were not submitted.
(3) Particulars of Salary Payment made through Bank along with proof of Bank account details in respect of 2 Nos. working Wiremen, namely, R.Balakrishna and K.Sambasiva Rao for the period from 01.09.2020 i.e., the date of agreement till 31.01.2021 were not submitted.
(4) As per the attendance register 2 Nos. working Wiremen were not engaged full time for the work as given below:
No. of days engaged Sl.No. Month R.Balakrishna K.Sambasiva Rao 1. Sep-2020 26 2 2. Octo-2020 26 2 3. Nov-2020 26 2 4. Dec-2020 26 15 5. Jan-2021 26 15 6. Feb-2021 26 15 10
15. In order to consider and adjudicate the validity and the sustainability of the above said grounds assigned in the impugned order for terminating the L.S.Agreement, it would be apposite and appropriate to refer to the notices issued by respondent No.3 prior to issuing the impugned order and the explanations offered by the petitioner in response to the same. It is very much evident from a reading of the letter bearing No.LR.NO.SE.O.OGL.TECH.F.DOC.E.No.749499/2021 dated 05.02.2021 of the Superintending Engineer-respondent No.3 that respondent No.3 in the said letter indicated only about the letters of respondent Nos.4 and 5 dated 01.02.2021 and 02.02.2021, wherein respondent Nos.4 and 5 alleged to have stated that 1 No. Wireman permit No.0-304244 pertaining to 'A' Grade licence was not produced and respondent No.3 in the said letter dated 05.02.2021 also instructed the petitioner to produce as many as 6 documents, namely:
1. Original Appointment Letters issued to Supervisor & Wiremen.
2. Attendance Register of Supervisor and Wiremen.
3. Salary particulars paid to supervisor and Wiremen including E.P.F., E.S.I./Insurance Register numbers.
4. List of contract works done by the agency along with Purchase Orders/Work Orders details.
5. Performance Certificate issued by the department.
6. Ownership/Rental receipts paid by the agency for the address location specified.11
16. In response to the said letter dated 05.02.2021, the petitioner herein submitted a reply dated 11.02.2021, enclosing as many as 16 documents as mentioned in the preceding paragraph. Thereafter, vide letter dated
03.04.2021, the Superintending Engineer-respondent No.3 herein issued another notice and the petitioner submitted a reply dated 07.04.2021 and both the replies dated 11.02.2021 and 07.04.2021 were duly acknowledged by the office of respondent No.3 and the respondents have not denied the submission of the said explanations and the documents enclosed. A perusal of the said explanations/replies dated 11.02.2021 and 07.04.2021 reveal, in clear and unequivocal terms, that the petitioner herein enclosed all the relevant documents as regards the alleged lapses indicated in the show cause notices dated 05.02.2021 and 03.04.2021.
17. With regard to Grade-A Contractor's Licence, both the petitioner as well as the respondents herein seek to place reliance on the letter bearing No.Lr.No.EI/Gnl/APELB/D.No. 209 dated 30.03.2021.
18. The specific contention advanced on behalf of the respondents herein is that at the time of tender process including L.S.Agreement, the Grade-A Contractor's Licence of the petitioner was under deemed suspension, as such, the 12 very tender submitted by the petitioner herein was invalid and liable for rejection.
19. In order to resolve the issue as regards Grade-A Contractor's Licence, it may be highly essential to verify the letter dated 30.03.2021 of the Electrical Inspector. According to the said letter dated 30.03.2021, there is absolutely no controversy as regards the permit of one Wireman, namely, K.Sambasiva Rao and the controversy is only with regard to the Wireman permit of one Sri R.Balakrishna. According to the said letter dated 30.03.2021, permit of R.Balakrishna, a Wireman, bearing No.0-302766 was valid during the period from 22.06..2015 to 21.06.2020 and subsequently, the permit holder did not approach the office of the Electrical Inspector for renewal of his permit within the time, but subsequently, the said permit came to be revalidated from 14.12.2020 to 13.12.2025. The Electrical Inspector also opined that in view of the same, the Contractor's Licence was deemed to be under suspension from 21.03.2020 as the said Wireman permit holder did not renew his permit within one month from the date of expiry of his permit. According to the respondents' version, since the subject tender process took place during the above said interregnum period and as the licence of the petitioner herein was under deemed suspension, the very participation of the petitioner in the said tenders was impermissible. A significant aspect which 13 this Court cannot lose sight of is that during the above said interregnum period, the entire world was under a tremendous agony due to Covid-19 pandemic and obviously, due to the said ground reality, the Electrical Inspector ordered revalidation of the permit of Sri R.Balakrishna. It is also significant to note in this context that Electrical Inspector, Guntur Division, Guntur, who is the authority competent to issue Grade-A Contractor's Licence, also informed the Superintending Engineer, Operation Circle, Ongole, in the letter bearing No.Lr.No.EI/Gnl/APELB/D.No. 209 dated 30.03.2021 that the office of the Chief Inspector would not give any suspension order for the Contractor's Licence and the same was deemed to be suspended during that period and would be revoked after the permit holder renewed the permit. In the said letter, the Electrical Inspector also made it very much clear that such relaxation had been given in view of the Covid-19 pandemic situation and as there was no transportation during the period from March, 2020 to December, 2020. In view of the above reasons, the contention contra advanced by the respondents herein that the petitioner herein participated in the tender process without valid Grade-A Contractor's Licence cannot stand for judicial scrutiny. Therefore, the ground assigned in the impugned order to the said effect is neither sustainable nor tenable in the eye of law.
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20. As regards the other grounds, namely, non- submission of ESI, EPF pertaining to 2 Nos. Wireman, Salary Payment and Attendance Register, it is required to be noted that in response to the notices dated 05.02.2021 and 03.04.2021, the petitioner herein submitted elaborate replies/explanations dated 11.02.2021 and 07.04.2021 duly enclosing various documents including the documents sought by the petitioner herein, but the Superintending Engineer-respondent No.3 herein in the impugned order conveniently mentioned that only certain details were furnished by the petitioner, but did not mention the details of the said information. Having called for the information, vide notices dated 05.02.2021 and 03.04.2021 and having acknowledged the replies/explanations dated 11.02.2021 and 07.04.2021, this Court does not find any valid reason/ justification on the part of respondent No.3-Superintending Engineer in not referring to and not considering the contents of the said explanations and the documents enclosed therewith. This exercise undertaken by respondent No.3, in the considered opinion of this Court, is patently arbitrary and infringes the fundamental right guaranteed to the citizens under Article 14 of the Constitution of India and this Court does not find any justification on the part of respondent No.3 in undertaking the process of termination of the L.S.Agreement in such an arbitrary manner. It is a settled 15 and well-established principle of law that when the impugned action is patently arbitrary and illegal, the Writ Petition is maintainable even in contractual matters in view of the law laid down by the Hon'ble Supreme Court in Tata Cellular Vs. Union of India1. In the case on hand, this Court finds such a contingency, as such, the contention contra advanced by the learned counsel for the respondents as regards the maintainability of the Writ Petition is not sustainable. In the considered opinion of this Court, the judgment of the Hon'ble Supreme Court dated 21.11.2001 passed in Appeal (Civil) No.7932 of 2001 in the case of State of Bihar and others Vs. Jain Plastics and Chemicals Limited, on which reliance is placed by the learned counsel for the petitioner, would not render any assistance to the petitioner, having regard to the facts and circumstances of the present Writ Petition.
21. For the aforesaid reasons, the Writ Petition is allowed, setting aside the impugned order passed by the Superintending Engineer-respondent No.3 herein, vide Letter bearing LR.No.SE.O.OGL.TECH.E.DOC.E.No.261047/2021 dated 12.05.2021 and the matter is remanded to respondent No.3 for fresh consideration of the issues and for passing appropriate orders/taking appropriate action strictly in accordance with law after giving opportunity of hearing to the petitioner herein and taking into account the contents of the 1 1996 AIR 11 = 1994 SCC (6) 651 16 explanations/replies submitted by the petitioner dated 11.02.2021 and 07.04.2021 and in the light of the observations made supra. There shall be no order as to costs of the Writ Petition.
Interlocutory applications pending, if any in the Writ Petition, shall stand closed.
__________________ A.V.SESHA SAI, J 21.10.2021 siva 17 THE HON'BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.10421 OF 2021 21.10.2021 siva