Rajasthan High Court - Jaipur
Asha Shiksha Samiti vs State Of Raj And Ors on 2 August, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B. CIVIL WRIT PETITION NO.4127/2008 (Asha Shiksha Samiti Vs. The State of Rajasthan & Ors.) Date of Order : August 02, 2013 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Bajrang Lal Sharma, Sr. Advocate with Ms. Sunita Srivastava, for the petitioner-Society. Mr. Rajneesh Gupta, for respondent No.4. Mr. Gajanand Manav Mishra, Dy.G.C., for the State. BY THE COURT
1) This petition has been filed praying that the State Government be directed to initiate disciplinary action as well as criminal prosecution against the respondent No.4 one Shri Radheyshyam Meena, at the relevant time the Principal of Dr. Bheemrao Ambedkar Government Girls Residential School, Chhan, Tehsil Gangapurcity, District Sawaimadhopur, for having allegedly committed forgery of Government records more particularly an affidavit purportedly executed by the petitioner-Society in the course of execution of a contract awarded to the petitioner-Society for the supply of daily diet break-fast etc. to the students of the aforesaid school. It has been further prayed that this Court direct the respondent Nos.1 to 3 to make payment of Rs.5,66,378/- to the petitioner-Society along with interest @ 12% per annum on account of outstandings due under the contract aforesaid and that subsequent to the making of the payment, the same be recovered by the respondent Nos.1 to 3 from the respondent No.4.
2) The facts of the case are that on 31.07.2006, a short term tender notice was published by the Principal of Dr. Bheemrao Ambedkar Government Girls Residential School, Chhan, Tehsil Gangapurcity, District Sawaimadhopur (hereinafter 'Girls Residential School') inviting offers for supply of daily diet break-fast etc. for the students of the school for the session 2006-07. The petitioner-Society appears to have been one of the applicants. The bid of the petitioner-Society was accepted and on 29.08.2006 the contract was awarded to the petitioner-Society for the supply of food for the students of the Girls Residential School aforesaid. As per the terms and conditions of the tender, an agreement was to be executed between the Principal of the Girls Residential School and the petitioner-Society on a non-judicial stamp of Rs.100/- pursuant to order dated 29.08.2006. For the purpose of executing the agreement, the petitioner-Society purchased a stamp paper of Rs.100/- on 29.08.2006 and met the then Principal of the Girls Residential School one Ghanshyam Sharma but was told that the typewriter for typing out the agreement thereon was not available in the school. The petitioner-Society was required to submit the blank stamp paper purchased duly signed by the Secretary of the petitioner-Society such that the conditions of the agreement as indicated in the short term tender could be typed on the stamp paper later on. It was submitted that the petitioner-Society thereupon started work effective 01.09.2006 and was orally informed that the arrangement for supply of food as per the menu should be for 327 students. Till October, 2006, Ghanshyam Sharma was the acting Principal and the execution of the contract dated 29.08.2006 was running smoothly. However, when the respondent No.4 Radheyshyam Meena was posted as Principal of the Girls Residential School, he started to harass the petitioner-Society with an ulterior motive and therefore directed the petitioner-Society to make supply of diet as per new menu effective 01.11.2006. Finding that the new menu entailed extra cost, the petitioner-Society protested, but was assured by Radheyshyam Meena that he would make arrangement for sanction of additional charges as per the new menu. The petitioner-Society states to be supplied the diet as per new menu and demanded extra charges thereof. Bills for the additional charges claimed were submitted. The bills submitted by the petitioner-Society for supply of food were however not honoured by the respondent No.4 and further illegal deduction sought to be made. Suddenly vide order dated 03.04.2007, the contract for supply of food to the students of Girls Residential School was terminated by the respondent No.4. Balance due for the supply of food already made was not paid in spite of repeated requests. To add insult to injury, the petitioner-Society's security money was also forfeited. It has been submitted that the entire action against the petitioner-Society was taken by the respondent No.4, Radheyshyam Meena malafidely on the basis of the misuse of the blank stamp paper left by the Secretary of the petitioner-Society with the erstwhile acting Principal of the Girls Residential School, Ghanshyam Sharma. No copy of the purported agreement signed by the Secretary of the petitioner-Society was supplied to the petitioner-Society in spite of repeated request.
3) It has been submitted by the counsel for the petitioner-Society that in the aforesaid circumstances, complaints were made to the various authorities including the District Collector, Department of Social Welfare, and Deputy Collector, Gangapurcity, District Sawaimadhopur. Consequently the matter was got inquired into and the Deputy Collector, Gangapurcity in his enquiry report dated 19.09.2007 is stated to have found that the respondent No.4 had misused the blank stamp paper and got typed terms and conditions thereon contrary to the terms and conditions of the short term tender dated 31.07.2006 and used the same to put the petitioner-Society into difficulty and ultimately to cancel the contract. It is alleged that the Inquiry Officer found that that the petitioner-Society had supplied extra food items beyond the conditions of the short term tender but extra charges were not paid for. It has been submitted that another enquiry report dated 10.05.2007 submitted by the Assistant Director, Social Welfare Department to the Officer In-charge Vigilance Cell, Collectorate, Sawaimadhopur, on the harassment of the petitioner-Society found that the terms and conditions of the contract had been settled by the misuse of the blank stamp paper tantamounting to forgery. According to the counsel for the petitioner-Society, a third enquiry report dated 11.10.2007 was submitted by the Nayab Tehsildar, Vazirpur to the Deputy Collector, Gangapurcity holding that the respondent No.4 had the intention to terminate the contract of the petitioner-Society and to give the same contract to another Society in the name and style of M/s. Mateswari Suppliers consequent to which the allegations of breach of contract were orchestrated against the petitioner-Society. It has been submitted that in spite of the three enquiry reports dated 19.09.2007, 10.05.2007, 11.10.2007 aforesaid, no action was taken by the State Government against the respondent No.4 for his illegal acts wholly without jurisdiction which not only caused monetary loss to the petitioner-Society but also entailed criminality and forgery. It has been submitted that the representations to the District Collector and other high officers of the State Government requiring to take disciplinary action and initiating criminal prosecution against the respondent No.4 on account of his criminal act have gone abegging. It has been submitted that the State Government has arbitrarily withheld the petitioner-Society's huge amounts under the contract. A notice dated 12.07.2007 was sent demanding payment of the outstanding amount aggregating to Rs.5,66,378/- to which the petitioner-Society is entitled to in law but to no avail. A notice for demand of justice was also sent by Registered post on 19.03.2008 to the Secretary, Department of Social Welfare, yet no action has been taken against the respondent No.4 for his criminal act of forgery and also his misconduct in misusing official position to damage the petitioner-Society by sullying its reputation on the one hand and causing it monetary loss by a mala fide termination of the contract under the order dated 03.04.2007.
4) Reply to the petition has been filed by both the State Government and respondent No.4. It has been submitted by the State Government that the issue agitated in the present petition is fundamentally an issue based on contract and its alleged breach. It has been submitted that the protestation by the petitioner-Society with regard to no breach having been committed by it, notwithstanding it has been the State Government's consistent stand that the petitioner-Society was in breach on its obligation under the contract dated 29.08.2006 and it failed to adhere to its objection to supply the requisite quality of food to the students of the Girls Residential School. It has been submitted that the matter sought to be agitated in the writ petition is in respect of a contractual matter which this Court would loath to address in the exercise of its extraordinary equitable jurisdiction under Article 226 of the Constitution of India. More so as there is no public law element to the contractual dispute between the petitioner-Society on the one hand and the respondent Nos.1 to 3 on the other and consequently, the petitioner-Society should be relegated to its remedy before the civil courts on this count. It has been submitted that the petitioner-Society was tardy and amiss in adhering its contractual obligation and in spite of repeated request from the Principal of the Girls Residential School failed to make supply of the requisite quality of food in accordance with the terms and conditions of the contract for supply of food. Instead bills contrary to the terms of the contract were raised and the petitioner-Society appeared determined to use the contract to generate monies not due under the contract. The petitioner-Society being in default invited termination of contract and forfeiture of security deposit. And even though three enquiry reports were indeed submitted by the Deputy Collector, Assistant Director and Nayab Tehsildar, the reports were not conclusive and only processes in the course of decision making and on further consideration they were found to be unsustainable and consequently no action was taken thereupon.
5) In reply to the writ petition, respondent No.4 apart from reiterating the preliminary objections as to the maintainability of the writ petition in a contractual matter has stated that the issues sought to be raised by the petitioner-Society in the writ petition entail serious disputed question of fact which cannot be agitated in the present proceedings under the extraordinary equitable jurisdiction of this Court. It has been submitted that the petitioner-Society had failed in adhering to the terms and conditions for the supply of food to the students of the Girls Residential School. Apart from breaching the terms and conditions of the contract for supply of food items to the school in issue, the petitioner-Society in the course of execution of contract threatened closure of the mess on several occasions when deficiencies in mess arrangement were found and when objections were raised to the unfair raising of bills contrary to the terms and conditions of contract for the supply of food items. In this regard, complaints about the quality of food being served in the mess for the Girls Residential School were received from the students on 08.02.2007, 12.02.2007 & 17.07.2007. It has been submitted that not only the parents and children complained of the poor quality of food supplied by the petitioner-Society as a contractor, but even the employees of the petitioner-Society submitted complaints stating that the management of the petitioner-Society was not making it possible for them to supply requisite quality of food to the children. It was stated that in spite of letters dated 12.02.2007 and 14.02.2007 requiring the petitioner-Society to put up its socks and ensure supply of quality food as per newly conveyed menu, no improvement was made and the contractor woefully failed to adhere to its obligation under the contract with the respondents. To add insult to injury, on 03.04.2007 the petitioner-Society locked the mess only to embarrass the principal of the Girls Residential School at the time of visit of the representative of RAPP who visited the school to see the working and efficacy of their funded programme to provide food to the students of Girls Residential School. It was submitted that in these circumstances, there was no option left except to terminate the contract vide order dated 03.04.2007, forfeit the security deposit and make alternate arrangement for running of the mess. Malafides against the petitioner-Society and forgery of the blank stamp paper submitted by the Secretary of the petitioner-Society to incorporate conditions of contract not a part of Short Term Tender have been denied.
6) Heard the counsel for the petitioner-Society and the respondents.
7) It is not in dispute that the underlying the writ petition is a contract entered into between the petitioner-Society and the respondents for the supply of food to the students of a Girls Residential School. From the averments in the petition and replies thereto, it is evident that the question as to whether the petitioner-Society was in breach or the respondent-School was in breach would entail adjudication of grossly disputed complex question of fact which this Court would loath to do and for which regular proceedings before the competent civil court would be more appropriate. More so in view of the fact that the petitioner-Society has alleged misuse/forgery of the stamp paper duly signed by the secretary of the petitioner-Society following the award of the contract to it on 29.08.2006. In my considered opinion, both for the reason of the writ petition being based on a contractual dispute and also for the reason that the dispute raised before this Court relates to complex disputed question of fact including an issue of alleged forgery, there is no occasion for this Court to exercise its extraordinary equitable writ jurisdiction under Article 226 or 227 of the Constitution of India and adjudicate the present petition on merits. Similarly I am of the considered view that the prayer in the petition seeking a direction that the respondent Nos.1 to 3 be required to make payment of Rs.5,66,378/- to the petitioner-Society is a matter of recovery of money simpliciter for which again the appropriate forum is the civil court. It would be in order to point out that the said amounts claimed are not admitted by the respondents and contrarily it has been asserted in the reply to the petition that no amounts at all are due and owing by the respondents Nos.1 to 3 to the petitioner-Society.
8) As far as the issue of directing that a criminal compliant be registered against the respondent No.4, I am of the considered opinion that there is ordinarily no occasion for a writ court to intermediate in criminal processes available to an aggrieved party and issue a direction for the initiation of criminal proceedings. The petitioner-Society itself has the remedy in law to lodge a First Information Report with regard to allegation of forgery or otherwise, if it is advised, to resort to proceedings against respondent No.4 by way of a criminal complaint before a competent criminal court. The Hon'ble Supreme Court in the case of Kunga Nima Lepcha & Ors. Vs. State of Sikkim and Ors. [(2010) 4 SCC 513] has enunciated the principle that if Superior Courts give direction for prosecution, it would cause serious prejudice to the accused as the direction of the court may have far-reaching persuasive effect on the court which may ultimately try the accused. On analogy of reasoning, the direction by this Court to the Government to file a criminal complaint would have a persuasive effect on the investigating agency to the grave prejudice of the accused. As has also been held by the Hon'ble Supreme Court, it is always open to the petitioner to approach the investigative agencies directly as a complainant with the incriminating materials and it is for the Investigative Agencies to decided on the further courts of action thereon.
9) Counsel for the petitioner-Society has however vehemently submitted that the respondents Nos.1 to 3 should be directed to initiate disciplinary proceedings against the respondent No.4 on the basis of the three enquiry reports dated 19.09.2007, 10.05.2007, 11.10.2007. It has been submitted that it is the right of every citizen that where misuse of governmental authority is made out, the delinquent officer should be subjected to a disciplinary enquiry for misconduct and be visited with appropriate punishment. The submission is that if a departmental enquiry were not to be the consequence of misuse of official power, the citizens subject to bad and malicious governance would be left high and dry, remedyless and despondent. I have also considered the submission of the counsel for the petitioner-Society on this count. In my considered opinion, a writ under Article 226 of the Constitution of India can issue only in the event of breach of a legal or fundamental right or where contravention of a statutory provision by a statutory authority occasions loss to an aggrieved party. It cannot be argued that the initiation of departmental enquiry by the State Government against its employees is a matter of a legal or fundamental right of a citizen. A departmental enquiry is an issue between the Employer-State and its employees. This Court cannot open the flood gates to every purportedly aggrieved citizen to seek a mandamus from this Court to the State Government for the initiation of disciplinary enquiry against a Government officer, whom the citizen perceives to have wronged him and be responsible for his discomfiture. Further in the reply to the writ petition, it has been stated by the State that despite of the three enquiry reports dated 19.09.2007, 10.05.2007, 11.10.2007, the State Government on consideration of the matter found that the breaches of the contract for the supply of food items to the Girls Residential School at Chhan were clearly attributable to the petitioner-Society and that the respondent No.4 could not in any event of the matter be found responsible for unjust termination of the petitioner-Society's contract contrary to law. In the case of Ayaaub Khan Noor Khan Pathan Vs. State of Maharashtra [(2013) 4 SCC 465], the Hon'ble Supreme Court has held that only a person who has suffered a legal injury can challenge an act / action / order etc. in a court of law by way of a writ under Article 226 of the Constitution of India. Writs under Article 226 of the Constitution of India are maintainable either for the purpose of enforcing a legal or fundamental right or when there is a sustainable complaint by the petitioner that there has been a breach of statutory duty on part of the authority qua him and to his prejudice thus making out a judicially enforcible right of his for enforcement. It has been held in the aforesaid case by the Hon'ble Supreme Court that it is implicit in the exercise of the extraordinary equitable jurisdiction of the High Courts that the relief prayed for must be for the enforcement of a legal right. A legal right has been held to mean entitlement arising out of legal rules. Concluding in para 17 of the aforesaid report on the question as to who is a person aggrieved, the Hon'ble Supreme Court has held that in view of the above, law on the said point can be summarised to the effect that a person who raises a grievance must show how he has suffered a legal injury. To my mind, non-initiation of disciplinary enquiry against the respondent No.4 cannot entail the petitioner-Society suffering a legal injury loss of entitlement arising out of legal rules. No rule has been shown to the Court which entitles the petitioner-Society to the initiation of a disciplinary enquiry against the respondent No.4.
10) In my considered opinion, on the aforesaid tests laid by the Hon'ble Supreme Court on the issue as to who is a person aggrieved the petitioner-Society cannot be held to be one or entitled to demand initiation of disciplinary enquiry against the respondent No.4. The petition is thus deserving of rejection as the petitioner-Society cannot be said to be a person aggrieved qua the alleged inaction of the State Government to invoke its discretionary power against its employees for initiation of disciplinary proceedings.
11) Consequently, the writ petition is without force and is dismissed.
(ALOK SHARMA), J MS/-.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.