Orissa High Court
Col. Amulya Kumar Panda vs Union Of India & Others ... Opposite ... on 2 May, 2018
Equivalent citations: AIR 2019 (NOC) 87 (ORI.)
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.20052 of 2016
In the matter of applications under Article 226 and 227 of the Constitution
of India.
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Col. Amulya Kumar Panda ...... Petitioner
- Versus-
Union of India & Others ... Opposite Parties
Counsel for Petitioner :M/s. Gautam Mishra, D. K. Patra, A. Dash, A. S.
Behera, J. Biswal and J. R. Deo.
Counsel for Opp.Parties : Mr. Bibekananda Nayak;
M/s. Aditya N. Das, N. Sarkar, E. A. Das and M.
Muduli.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 18.04.2018 and Date of Judgment: 02.05.2018
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S. N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of
India whereby and where under direction has been sought for upon the opposite
parties, particularly upon opposite party nos.3 and 4 to extend the security
coverage contract made between the petitioner and opposite party nos.3 and 4
under annexure-7 for a period of two years as per the guideline under Annexure-4
and 5.
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2. The brief fact of the case of the petitioner is that he, after passing out
from National Defence Academy, had joined the Army as a Lieutenant in the
year 1982, served in the Armed Force with an unblemished record and ultimately
retired as Colonel in the year 2010.
The Ministry of Defence, in order to resettle ex-servicemen, has
launched various schemes, one of such schemes relate to sponsorship of security
agencies, such sponsorship is done by the Directorate General Resettlement (in
short DGR) which works under the Ex-Servicemen Welfare Department, Ministry
of Defence. The said scheme is governed by the office memorandum dtd.9.7.2012
(Annexure-1), under the aforesaid scheme, the petitioner had applied for
empanelment in the year 2013 which was considered and allowed with effect from
20th September 2013 to 19 September, 2016 (annexure-2).
The petitioner, after issuance of the aforesaid empanelment
certificate, was not been allowed to make the said certificate operational and for
that he was to run from pillar to post and in course thereof, he has made
complaint against the security agency as well as the DGR, the DGR, in counter,
has issued a show cause on 2.5.2014 for giving false affidavit which was replied by
the petitioner and ultimately his status has become operational in the month of
June 2014.
The petitioner, at that moment, being aggrieved with the action of the
DGR by keeping the petitioners' agency in abeyance, had approached this court by
filing W.P.(C) No.10512 of 2014 which was withdrawn on 26.3.2014 as the issue
was resolved with the opposite party nos. 1 & 2.
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The petitioner has also filed writ petition against the inter se dispute
between him and the other security agencies vide writ petition being W.P.(C)
No.15906 of 2016 which relates to renewal of empanelment certificate as regard
his security agency, this court while passing an order on 14.09.2016, has issued
notice upon the Central Government, as also passed an interim order to maintain
status quo with regard to the security agency of the petitioner and directed that no
coercive action shall be taken till the next date without leave of the court.
The petitioner has been allotted with a letter of award for providing
security services and surveillance contract for power grid corporation at
Bhubaneswar and its associate offices in the State of Odisha vide letter
dtd.11.11.2014. The contract period of the security service initially was for one
year w.e.f. 1.12.2014 with a provision for extention of another one year in the
same rate, terms and conditions subject to satisfactory performance of the agency.
The grievance of the petitioner is that even though the guideline
issued by the ministry of defence dtd.9.7.2012 contains a condition entitling the
petitioner's security agency for re-sponsorship for further period of two years, as
would be evident from Annexure-4 but the same has not been considered even
though the certificate of satisfactory performance has been issued to the
petitioner.
The case of the petitioner is that the same has not been extended
only due to the reason that complaint has been filed regarding financial
irregularity in the DGR and he has asserted in the writ petition that there is no
reason not to extend the sponsorship for a further period of two years and if any,
the same needs an enquiry and further whatever complaint he has made against
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the irregularities in the office of the DGR, the same is to be enquired before taking
any adverse action against him. Accordingly this writ petition has been filed.
3. The opposite party nos.2 and 3 have filed detailed counter affidavit
inter alia therein it has been stated that a contract was given to the petitioner by
way of letter of award dtd.11.11.2014 which was initially for one year from
01.12.2014 with a provision of extension of another one year, according to them
the sponsorship which has been given to the petitioner with effect from
11.11.2014 has been continued by virtue of passing an order of extension from
time to time up to 31.5.2017, hence the period of one year and thereafter the
further period of one year has been extended, not only that, the petitioner has
performed the services even more than the period of two years, i.e two and half
years and while the maximum period of contract subject to extension is for a
period of two years, it cannot go beyond that period since it is the terms of
contract which the petitioner has accepted.
4. Mr. Vivekananda Naik, learned Central Government Counsel
although has not filed counter affidavit but has argued out the case at length and
has submitted that the petitioner has been given the agency for a period of two
years in view of the office memorandum dtd.11.11.1994 subject to extension for a
further period of two years and in view of such sponsorship, he has been
sponsored before the opposite party nos.3 and 4 and accordingly the letter of
award has been issued in his favour on 11.11.2014 and for the maximum period
of contract the services have been discharged by the petitioner and now it cannot
be extended by extending the period of contract.
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He submits by refuting the argument of learned counsel for the
petitioner that the office memorandum dtd.11.11.1994 is regarding
the sponsorship of agency, meaning thereby the security personnel are to be given
a licence by the DGR under the office memorandum dtd.11.11.1994 to render the
services of security in the other Central Government undertakings and the period
of the said agencies by way of lincence has got no bearing with the contract period.
According to him, the learned counsel for the petitioner is arguing on
the basis of the office memorandum dtd.11.11.1994 leaving apart the contract
period which stipulates the maximum period of contract for a period of 2 years
while the maximum period of licence for the agencies for a period of 4 years having
no nexus with each other save and except that for getting the letter of award to
provide security services the agency by way of a lincence is to be accorded by the
DGR in view of the office memorandum dtd.11.11.1994 and in view thereof they
will be given licence to render the services depending upon the terms and
conditions of the contract containing the period of contract.
5. Heard the learned counsel for the parties and appreciated their rival
submissions.
This court has gone through the pleadings made in the writ petition,
counter affidavit as also rejoinder affidavit filed in court and found that the
petitioner is an ex-serviceman, got sponsorship agencies from the office of the DGR
for a period of two years in view of the office memorandum dtd.11.11.1994. This
court after going across the office memorandum dtd.11.11.1994 has found that
the sponsorship period is initially for a period of two years, generally extendable
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for two more years, for ready reference the part of the office memorandum
dtd.11.11.1994 is being quoted herein below:-
"2. All Administrative Ministries / Departments are requested to kindly issue
necessary instructions to the Public Sector Undertakings under their
administrative control to obtain contract security service from the Director
General of Resettlement (DGR), West Block 4, R K Puram, New Delhi 110066
(Tel 6872354) or State Ex-servicemen Security Corporations for sponsoring ex-
Servicemen Security Agencies on their panel without engaging security
agencies on contract through open tenders. The DGR sponsors only one
agency for one job for a specific period of 2 years, generally extendable by 2
more years."
The name of the petitioner's agency has been sponsored by the DGR
to provide security service under the Power Grid Corporation Ltd. of Government
of India undertakings and agreement has been entered into in between the
petitioner and the Power Grid Corporation on 11.11.2014 (Annexure-7). It is
evident from the terms of contract that the contract period is for a period of one
year with effect from 1.12.2014 with a provision of extension for another one year
or part thereof on same rate, terms and conditions, subject to satisfactory
performance of the agency, for ready reference clause no.5.0 of contract period is
being reflected herein below:-
"5.0 CONTRACT PERIOD:
The contract period of security service contract shall be initially for one
year w.e.f. 10.12.2014 with a provision of extension for another One year or
part thereof on same rate, terms and conditions, subject to satisfactory
performance of the agency."
Under the terms and conditions of contract under clause no.1.0 it
has been provided that the contract shall be in force for a period initially for one
year and shall be deemed to have commenced by virtue of issue of letter of award.
Power GRID reserves the right to extend the contract for a further period of one
year or part there of on the same terms and conditions as those of the original
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letter of award subject to satisfactory performance, for ready reference the said
part of the stipulation is being quoted herein below:-
"1.0: CONTRACT PERIOD:
1.1: The contract shall be in force for a period initial period for one
year and shall be deemed to have commenced by virtue of issue of letter
award. Power GRID reserves the right to extend the contract for a further
period of 01 year or part there of one the same terms and conditions as those
of the original LOA subject to satisfactory performance."
Under Annexure-5 there is a heading, i.e. special terms and
conditions of contract under which also the period of contract has been provided
under clause B which is for a period of one year from the date of award for the
date as mentioned in the contract with a provision of extension for another one
year or part thereof on the same rate, terms and conditions, subject to satisfactory
performance of the agency.
It is, thus, evident that the petitioner has entered into a contract on
11.11.2014 which was initially for a period of one year with a provision of
extension of another one year subject to satisfactory performance of the agency.
The petitioner agency has started providing service w.e.f. 1.12.2014.
It is evident from the pleading made in the counter affidavit that the
security contract was extended for one more year from 1.12.2014 to 31.11.2016
thereafter for six months, i.e. from 1.12.2016 to 31.5.2017. Further extension
beyond the period of two years was given to the petitioner since there was no
sponsorship by the DGR, as such the petitioner's agency has provided their
services from 1.12.2014 to 31.5.2017, which is for a period of two years and nine
months. Thereafter the DGR has sponsored the name of new agencies for security
and allied services, as would be evident from annexure-B/3 dtd.23.11.2016 but
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the petitioner, few days before issuance of sponsorship letter dtd.23.11.2016, has
approached this court on 15.11.2016 for getting extension of the contract as
contained under Annexure-7 on the ground that the opposite parties are bent
upon not to extend the contract due to the reason that he has made complaint
against the working of the office of the DGR, this court has passed an interim
order on 23.11.2016 directing the opposite party nos.2 and 3 to maintain status
quo with regard to the security coverage contract of the petitioner appearing at
annexure 7 till the next date, by virtue of the same, the petitioner agency is still
providing the services.
The main contention raised by the petitioner is that since he has
made a complaint against the functioning of the office of DGR, the new
sponsorship has been made and his contract has not been extended, as such the
allegation of mala fide has been alleged against the opposite parties but that
argument is not worth to be considered for the reason that it is the admitted case
of the petitioner that before entering into a contract with the opposite party nos.3
and 4, he has made complaint against the functioning in the office of the DGR as
would be evident from paragraph 6 of the writ petition and the said statement has
been supported by the document as contained under Annexure-3 series, from its
perusal it is evident that the first complaint is dtd.26.11.2013, the second
complaint is also dtd.26.11.2013 and the next complaint is dtd.10th September,
2014, as would be evident from page 21, 22 and 24 of the writ petitions, meaning
thereby the first complaint has been made by the petitioner on 26.11.2013 and
even after the said complaint his name has been sponsored and he has been
issued with the letter of award on 11.11.2014 and thereafter also his period of
contract has been extended, as per the period of contract stipulated, i.e. maximum
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period of two years and even thereafter, as such it cannot be said that the
petitioner's interest in any way has been prejudiced with the action of the
opposite parties, furthermore, the allegation of mala fide is very easy to level but it
is very difficult to prove, that too when none of the parties has been impleaded by
name and it is settled that allegation of mala fide is to be alleged against individual
functionary by impleading him party by name and it cannot be alleged against the
designation / post, hence the allegation of mala fide leveled against the opposite
parties is hereby rejected for the reason aforesaid.
7. The petitioner has tried to impress upon the court by relying upon
the office memorandum dtd.11.11.1994 which stipulates for sponsorship for a
specific period of two years, generally extendable for two more years, as such he
submits that at list he ought to have been allowed to provide for a period of four
years which he is not being allowed.
This court, after appreciating the argument advanced on behalf of the
opposite parties in this regard and by going through the terms of contract as
under clause no.5.0 of the letter of award dtd.11.11.2014 and the terms and
conditions as also the special terms and conditions of contract, as quoted above,
wherein the contract period of security service shall be initially for one year w.e.f.
1.12.2014 with a provision of extension for another one year or part thereof on
same rate, terms and conditions subject to satisfactory performance of the agency.
It is evident from the pleading made in the counter affidavit that the
contract was entered on 11.11.2014 begins from 1.12.2014 up to 31.11.2015 and
thereafter it was extended up to 1.12.2015 to 31.11.2016 and thereafter it was
extended from 1.12.2016 to 31.5.2017 and again up to 31.8.2017, meaning
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thereby the petitioner agency has provided service for a period of three years and
nine months which is excess to the period of contract since the period of
contract is for a maximum period of two years in case of extension.
The contention of the petitioner is that the agency may be allowed to
provide service for a period of 4 years as per the office memorandum
dtd.11.11.1994 but the said argument is not worth to be considered for the reason
that the office memorandum dtd.11.11.1994 is for sponsorship of ex-servicemen
security agency from their panel for a specific period of two years, generally
extendable by two more years and if any agency would be provided the
sponsorship agency by virtue of the office memorandum dtd.11.11.1994, their
names will be sponsored by the DGR to any public sector undertaking to provide
the security services, meaning thereby, there has to be empanelment for
sponsorship by the DGR, however, the petitioner has got the sponsorship and by
virtue of the same his name has been sponsored before the Power Grid
Corporation of India Ltd. and in view thereof the letter of award was issued on
11.11.2014 asking him to provide security services initially for a period of one year
subject to extension of further one year out of which he has rendered their service
for a period of two years 9 months, as such continuing the name of the agency in
the panel of DGR is one thing and getting the contract to provide security services
to the Central Government undertakings is another thing, it is for the reason that
the sponsorship, i.e. by way of enlistment before the DGR and by virtue of the
sponsorship the letter of award would be issued by the concerned public sector
under takings and the agency will provide their services in terms of the contract
entered in between the agency and the Central Government undertakings before it
the services is to be provided.
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Here in the instant case the petitioner since has entered into contract on
11.11.2014 and by keeping his eyes open, has accepted the terms and
conditions of the contract, now cannot turn around and say that the period of
contract be extended for four years on the basis of the period of sponsorship none
in pursuance to the office memorandum dtd.11.11.1994.
It is settled position of law that the terms and conditions of a
contract is binding upon the parties and after accepting it the same cannot be
assailed.
The petitioner's case is not that the terms of contract is against any
statutory provision and it cannot be for the reason that the work to provide
security services is by way of compassion shown to the ex-servicemen and it is
settled that compassion cannot be taken as a matter of right.
This court, has come across the fact that due to non-sponsorship of
the agencies by the DGR the petitioner was allowed to provide service even after
completion of the period of two years but it is evident from Annexure-B/3 that the
other security agencies have been sponsored by DGR to provide security services
before the Power Grid Corporation Ltd., as such the petitioner now cannot seek
direction from this court to extend the terms of the contract by rewriting the terms
of contract, reference in this regard may be made to the judgment rendered by
Hon'ble Apex Court in the case of Life Insurance Corporation of India and
Another Vrs. Smt. S. Sindhu, reported in (2006) 5 SCC 258 (para-8).
8. This court, after discussing the factual aspect and the legal position
in detail as above, is of the view that the relief sought for by the petitioner for
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extension of the period of contract cannot be extended by this court in exercise of
power conferred under Article 226 of the constitution of India since
the contract depends upon the terms and conditions incorporated therein which is
binding upon the parties and once it is accepted by the parties, it cannot be
subject matter of judicial scrutiny, that too by way of rewriting the terms of
contract.
9. In view thereof, on the basis of the discussion made above, in my
considered view, the relief sought for by the petitioner is not fit to be entertained,
accordingly the writ petition fails and the same is dismissed.
Misc. Case, if any, also stand disposed of.
.........................
S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 2nd May, 2018 / Manas.