Gujarat High Court
Mediate Recruit Management Private ... vs The Collector on 25 November, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14572/2021 ORDER DATED: 25/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14572 of 2021
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MEDIATE RECRUIT MANAGEMENT PRIVATE LIMITED
Versus
THE COLLECTOR
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Appearance:
MR CHIRAG B PATEL(3679) for the Petitioner(s) No. 1,2
. for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 25/11/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;
"(A) Your Lordship may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the order dated 31.5.2021 passed by the respondent at Annexure-A to the petition qua blacklisting petitioner No.1 Company for a period of 3 years;
(B) That Your Lordships may further be pleased to issue appropriate writ, order or direction directing the respondent to release earnest money deposit of Rs.2.50,000/- and the security deposit to the tune of Rs.2,50,000/- in favour of the petitioners forthwith;
(C ) That Your Lordships may be pleased to direct respondent to continue and complete remaining Page 1 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021 tenure of the contract at Annexure-C to the petition memo;
(D) Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to stay further implementation, operation and execution of the order dated 31.5.2021 passed by the respondent at Annexure-A to the petition;
(E) Cost of this petition may kindly be awarded;
(F) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice may kindly be granted."
2. The facts, giving rise to this writ application, may be summarized as under;
2.1 The writ applicant No.1 is a Company registered under the provisions of the Companies Act, 1956. of which the writ applicant No.2 is the Authorized Director. It appears from the materials on record that the respondent invited E-Tender for running the Jan Seva Kendra and E- Dhara Center for issuance of revenue record by publishing a tender notice.
2.2 The writ applicants participated in the E-Tender process and were declared as the lowest E-tender offered by the Company.
2.3 The work orders dated 17.06.2020 and 4.11/12.2020 respectively were issued by the respondent to the writ applicants. It came to the notice of the respondent that Page 2 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021 the company had neglected to pay the salary to the employees who were appointed through outsourcing. It also came to the notice of the respondent that the Company failed to deposit the requisite amount towards the Provident Fund in the respective accounts of the employees. In such circumstances, referred to above, a show-cause notice came to be issued by the respondent dated 15th March, 2021 calling upon the writ applicants to show-cause as to why the contract should not be terminated and the Company be put on a Holiday/blacklist. The show-cause notice reads thus;
"Jansampark/ATVT/2019-20 RPAD Office of the Collector District Seva Sadan-1, Shroff road, near Jam tower, Rajkot Date:15-03-2021 Subject: To blacklist agency Reference: Letter of even number dated 11-02-2021 and 05-03- 2021.
Show cause notice:
You have been assigned contract to provide computer operators at Janseva kendra/ATVT center through outsourcing by order no.Jansampark-janseva Page 3 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021 kendra-e dhara tender- Vsh- 20, dated 17-06-2020 and 04-12-2020. Salary is not paid regularly upto 5 th of every month by you to Computer operators as per condition no.27 of the contract. Amount of PF of operators is being deducted till date since contract was assigned. It has come to notice that amount of PF is not credited to the account of operators from July 2020 to February 2021. Thus, it has come to notice that financial misconduct is being committed by you.
It is to further state that oral/ telephonic representation is made by operators in this regard. Moreover, you were instructed in writing by the above referred letter in this regard. You have not responded to it, nor any explanation has been submitted by you in that regard which is a very serious matter.
Upon considering the aforementioned matters, you have violated conditions of application and contract assigned through order no.Jansampark-janseva kendra-e dhara tender- Vsh- 20, dated 17-06-2020 and 04-12-2020. Therefore, you are asked to submit written clarification, in person to this office in 3 days as to why your agency should not be blacklisted and why your deposit should not be seized. If the aforesaid clarification is not provided within the specified time limit, ex-party action shall be taken and you are issued notice for the same.
Sd/-illegible Collector Rajkot District Rajkot To, Mediate Recruit Management Pvt. Ltd. Office no.206-207, J.P.Tower road, Rajkot 360002."
2.4 To the aforesaid show-cause notice, the following Page 4 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021 reply was filed dated 17.03.2021 by the writ applicants;
"To, The Collector Jilla Seva Sadan Rajkot.
Sub:Reply to the show cause notice issued by you.
Ref: 1) Na. Public relations/ATVT/2019-20 dated 05/03/2021
2) Na. Public relations/ATVT/2019-20 dated 15/03/2021 In connection with the above subject, it is to state that, letter sent by you was received on 15/03/2021, wherein, it was stated that, timely salary is not being paid at our Company.
Further, salary is paid only after the certificate for depositing the entire amount is produced by our Operators, which is beneficial for the Government and for us. There are precedents that, malpractice was observed and salary was not paid because, the certificates of the previous month was not received.
Salary and P.F. of the Operator performing their duty in the Public Relations till January 2021 has been paid by our Company and we give assurance to you that, upon receiving certificates of February month, we will not make any default to pay the salary for the month of February.
There is indeed a delay in crediting the amount of P.F. and reason for that is, the excuse of Covid situation given by the P.F. Office every now and then and problem of not able to open the website, which we accept. But, now the P.F. account of all the Operators have been transferred to our company and it has been verified, whether the amount has been credited to the accounts of the operators and salary Page 5 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021 and P.F. till January 2021 has been credited by our Company. The challan and yaadi for the amount of P.F. is attached herewith.
Mediate Recruit Management Pvt. Ltd.
Sd/- Illegible"
2.5 After due consideration of the explanation offered by the writ applicants, the final order came to be passed dated 31st May, 2021. The impugned order blacklisting the writ applicants reads thus;
"No.Jansampark-JSK-E-Dhara Tender-Vashi.20 Collector Office Jilla Seva Sadan Near Jaam Tower, Shroff Road, Rajkot Date: 31/05/2021 Sub:To black-list the agency appointed for work under E-Dhara Kendra and Janseva Kendra Mediate Recruitment Management Private Limited, Rajkot Read: 1) Notice published in the local newspaper vide Letter No.Jansampark/JSK.Tender/18/2017 dated 06/03/2020 of this office
2) Panch Rojkam dated 09/06/2020 and 11/06/2020 Page 6 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021
3) Order No.Jansampark-JSK-E-Dhara Tender-Vashi.20 dated 17/06/2020 of this office
4) Contract dated 10/11/2020
5) Order No.Jansampark-JSK-E-Dhara Tender-Vashi.20 dated 04/12/2020 of this office for extension in time-limit
6) Show-cause Notice No.Jansampark/ATVT/2019-20 by Letter dated 15/03/2021 regarding agency black-
list.
-: ORDER : -
Tender notice referred at Sr.no.1 above was published in the local newspaper for Computer Data Entry Operator services in Janseva Kendra and E- Dhara Kendra at the Collector Offices and subordinate revenue offices i.e. Mamlatdar Offices in the District of Rajkot. It was informed vide the said tender notice to submit online tender by 18:00 o'clock on 19/03/2020 within stipulated time-limit. Tenders were invited for the services of Computer Operator in the Janseva Kendra and E-Dhara Kendra. The date for opening of technical bid of the said tenders were fixed to 21/03/2020, but considering the Corona Virus, the government declared lock- down. Therefore, the tenders were opened on 09/06/2020. As the rate of Ms. Mediate Recruitment Management Private Limited, Rajkot was lowest, contract was granted vide Order dated 17/06/2020 referred at Sr. No.3 above from 01/07/2020 till 30/09/2020. Thereafter, the said contract was renewed upto 30/06/2021 by Order dated 04/12/2020 of this office referred at Sr. No.5 above.Page 7 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022
C/SCA/14572/2021 ORDER DATED: 25/11/2021 Shree Mediate Recruitment Management Pvt.Ltd., Rajkot was required to execute a contract on the prescribed stamp paper between the Agency and the Secretary e-seva Society by depositing the amount of security deposit withing 10 days from the receipt of the order as per the conditions of tender and order. But, the amount of security deposit was not deposited within the time limit therefore reminder was issued in this regard vide this office letter No. Public relation/ATVT/2019-20 dated: 05/01/2021.
Frequent oral complaints were received regarding non-payment of salary to the Operators in respect of the operator service provided by Shree Mediate Recruitment Management Pvt.Ltd., Rajkot. Pursuant to these complaints, the Prant Officer Rajkot city-2 on 18/02/21 and Mamlatdar- Jetpur Rural on 12/03/2021 and Mamlatdar, Gondal Rural on 25/03/2021 have made representation to this office for payment of salary in time and to deposit the amount of the PF account as the said amount has been deducted from the salary of the operators.
Shree Mediate Recruitment Management Pvt.Ltd., Rajkot was issued Show Cause Notice vide the letter under reference-6 dated: 15/03/2021 as to why the Agency should not be put in Blacklist for not depositing the amount of PF in the PF account of the operators and for non payment of salary in time and for violating the terms and conditions of contract and order. The Agency furnished its explanation in writing vide their letter dated: 17/03/2021. It has been explained by the Agency that they have paid the amount of PF and salary. But, the amount of PF has been deposited in the account of operator only for one month. In this regard, despite making frequent requests to the Agency, the amount of PF has not been deposited to the account of Operators and the amount of salary of two to three months has not been paid.Page 8 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022
C/SCA/14572/2021 ORDER DATED: 25/11/2021 Considering all the facts stated above, it is clear that Mediate Recruitment Management Pvt. Ltd., Rajkot has not purchased life insurance as per condition No.11 of the deed of contract, has not paid salary between 1st and 5th of the month as per the condition No.27 and has not transferred the amount of PF to Operators' PF Account by deducting it from Operators' salary and has not fulfilled conditions of the tender and orders under read at Sr. No.3 and 5. Therefore, the contract given to Mediate Recruitment Management Pvt. Ltd., Rajkot is terminated and cancelled with effect from 31/05/2021 and the amount of deposit is confiscated and it is hereby ordered to BLACKLIST Mediate Recruitment Management Pvt. Ltd. for Rajkot District at the cost and risk of the agency with effect from the date of this order, i.e. 31/05/2021 subject to conditions of the tender and provisions of the deed of contract.
Sd/- (Illegible) (Remya Mohan) Chairman District e-Seva Society and Collector, Rajkot District To - (through registered A.D.), The Proprietor Mediate Recruitment Management Pvt. Ltd. Rajkot Office No.206-207, Second Floor, J. P. Tower, Tagor Road, Rajkot Copy forwarded with Respect to:
(1) Collector.......................................................(All) Copy forwarded to:
(1) Prant Officer...............................................(All) (2) Mamlatdar..................................................(All)"Page 9 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022
C/SCA/14572/2021 ORDER DATED: 25/11/2021 2.6 Being dissatisfied with the aforesaid action on the part of the respondent, the writ applicants are here before this Court with the present application.
3. We have heard Mr. Chiragh B. Patel, the learned counsel appearing for the writ applicants and Mr. Ronak Raval, the learned AGP, appearing for the respondent.
4. At the outset, we are constrained to take cognizance of something which we don't appreciate. This writ application was filed on 27.09.2021. It came up for hearing for the first time before a Coordinate Bench, to which one of us J.B. Pardiwala, J., was a party. On 30.09.2021, when the matter was taken up for hearing for the first time, it was vociferously submitted by the learned counsel appearing for the writ applicants that here is a matter in which without issue of any show-cause notice and without giving any opportunity of hearing, the writ applicant-Company has been blacklisted. Such submission appealed to this Court and, accordingly, notice was issued to the respondent, making it returnable on 14 th October, 2021.
5. It appears that one day before the returnable date, an additional affidavit came to be filed by the writ applicants stating that they were served with the show-
Page 10 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022C/SCA/14572/2021 ORDER DATED: 25/11/2021 cause notice and the same was replied by them.
6. The aforesaid is something which creates a doubt in the mind of this Court as regards the bonafide on the part of the writ applicants.
7. Be the above as it may, even otherwise on merits, we are not inclined to interfere with the impugned action on the part of the respondent. Although the writ applicants have tried, in their own way, to offer an explanation as to why they were not in a position to pay the salary to the employees and why they failed to deposit the requisite amount towards the Provident Fund in the respective Provident Fund Accounts of the employees, yet we are not convinced with the explanation offered. During the period of crisis, i.e, Covid-19 Pandemic, it was expected of the Company to help the employees employed by them through outsourcing. Unfortunately, all such employees were deprived of their salary as well as their provident fund amount.
8. It is brought to our notice that even otherwise the contract period came to an end on 30 th June, 2021. So the controversy, as on date, is limited to the extent of the blacklisting of the Company for a period of three years.
9. In the overall view of the matter, we are convinced that we should not interfere with the action on the part of Page 11 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022 C/SCA/14572/2021 ORDER DATED: 25/11/2021 the respondent.
10. In the result, this writ application fails and is hereby rejected.
(J. B. PARDIWALA, J) (NIRAL R. MEHTA,J) Vahid Page 12 of 12 Downloaded on : Wed Jan 12 04:33:31 IST 2022