Jharkhand High Court
Steel Authority Of India Ltd Thrugh Its ... vs Bokaro Steel Workers Union Through Its ... on 3 April, 2014
Author: R. Banumathi
Bench: Chief Justice, Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P. A No. 119 of 2014
The Steel Authority of India Ltd. & Ors. Appellants
Versus
Progressive Construction Corporation & Ors. Respondents
With
L.P. A No. 122 of 2014
The Steel Authority of India Ltd. & Ors. Appellants
Versus
Bokaro Steel Workers' Union & Ano. Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Appellant : Mr. Ananda Sen
For the Respondent No.1-3 : M/s.Sujit Narayan Prasad,
(In LPA No.119/14) Rajeev Ranjan Tiwary
For the Respondent No.4-6 : M/s.Indrajit Sinha, Sumeet Gadodi,
(In LPA No.119/14) Shrest Gautam
For the Respondents :M/s.Anil Kumar Sinha, Senior Adv.,
(In LPA No.122/14) Amit Tiwary
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CAV on 27th March, 2014 Pronounced on 3rd, April, 2014
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R.Banumathi,C.J. These two appeals are preferred against the
order dated 10.3.2014 and 18.2.2014 passed in W.P C No.1359/2014
and in WP C No.715/2014 respectively, in and by which the appellant
SAIL was directed not to finalize e-tender.
2. Brief facts which led to filing of these appeals are as follows:-
Tender was floated by the appellants being Tender Notice
No.RMD/C/CC/25 of 2013-14 dated 20.1.2014 for composite work of
manual raising, picking, sorting, sizing, stacking, manual loading of
dolomite into tippers, transportation to railway siding, wagon loading of
dolomite by mechanical manes at Tulsidamar Dolomite Mines in Garwa
district of Jharkhand. The tender was in two parts - (1) technical bid and
(2) commercial bid, i.e. price bid. In pursuance of the said tender notice,
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seven offers were received and evaluated as per tender terms. After
technocommercial scrutiny, six tenderers were technically qualified and
the same was intimated to the tenderers - first over telephone followed
by e-mail dated 28.2.2014 that the price bid will be opened on 1.3.2014
at 4.00 p.m. in the office of DGM(CC), RMD, SAIL Kolkata and the price
bid was opened as scheduled on 1.3.2014 at 4.00 pm. However, after
opening the price bid, when the appellant opened their e-mail, it was
seen that M/s. Progressive Construction Corp., M/s. R.S.Grewal and
M/s.ISS (Respondent Nos.1 to 3) requested to defer the opening of price
bid and for fixing another date for opening of the price bid. The bid was
already opened as scheduled, they were informed by e-mail dated 1.3.14
that at that stage their request cannot be entertained. The respondents
filed W.P (C) No. 1359/2014 praying quashing the entire tender process
on the ground that sufficient opportunity was not given to them while
opening the price bid and that the price bid should have been opened in
their presence. The court, vide order dated 10.3.2014, entertained the
writ petition and passed the interim order restraining the
respondent/appellant from finalizing the tender.
3. W.P (C) No. No.715/2014 was filed by the contract workers who
are engaged in raising and loading dolomite by mechanical means
through contractor of the said work. The contractor workers through
their Union earlier filed two writ petitions, CWJC No.2348/2000(R) and
W.P(C) No.3996 of 2006 seeking for regularization. The respondents
challenged the tender dated 20.1.2014 on the ground that some of
clauses, namely, Clause Nos.10.2, 10.6, 19.6, 31.11, 31.16 are
detrimental to the interest of the workmen and also prayed for
regularization. In the said writ petition, the management made
statement that the interest of the workmen is sufficiently safeguarded.
On such statement, in the said writ petition, the interim order dated
18.2.2014was passed directing the SAIL that the tender shall not be 3 finalized before making the clear statement on affidavit and satisfying this Court on that count.
4. Mr. Ananda Sen, learned counsel appearing for the appellant- SAIL, submitted that there is no allegation as to what prejudice has been caused to the private respondent nos.1 to 3 and that no substantive ground is made out to show that finalization of tender suffers from malice. Learned counsel submitted that the interim order not to finalize the tender process is substantially affecting the rights of the SAIL and by virtue of the interim order, raising and transportation of dolomite is affected. Learned counsel further submitted that the rates quoted by the tenderers/respondent nos.4 to 6 are less than that of the prevalent rates, which the current contractors/respondent nos.1 to 3 (writ petitioners) have quoted. It was contended that before passing any interim order, the court must carefully weigh the conflicting interest and the learned Single Judge did not keep in view the larger public interest that the interim order could delay the production of the appellant, apart from causing financial loss. Placing reliance upon the decision in the case of Raunaq International Ltd. v. I.V.R. Construction Ltd. & Ors. [(1999) 1 SCC 492] and Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group & Ors. [(2005) 5 SCC 61, learned counsel submitted that in commercial contracts, there cannot be blanket interim order staying the finalization of the tender.
5. Relying on decision in "Shah BabulalKhimji Vs. Jayaben D. Kania and Another" reported in AIR 1981 SC 1815 and orders passed by the Division Bench of this Court in L.P.A. No. 195 of 2011 and L.P.A. No. 202 of 2010, Mr. Anil Kumar Sinha, the learned Senior counsel appearing for the respondent nos. 1 & 2 in L.P.A. No. 122 of 2014 submitted that the interim order passed on 10.03.2014 directing the respondents (appellants herein) 'not to finalise the tender' cannot be said 4 to be falling under the meaning of the word 'judgment' so as to attract Clause 10 of the Letters Patent of the Patna High Court. It is further submitted that the case was fixed for 25.03.2014 however, it could not be taken up for hearing and the case has been fixed for hearing on 07.04.2014 with the consent of the parties. It is further submitted that the appellants have filed an application seeking vacation of the interim order dated 10.03.2014 therefore, the present Letters Patent Appeal preferred by the appellants is liable to be dismissed.
6. Learned counsel Mr. Sujit Narayan Prasad submitted that respondent nos.1 to 3, interalia, raised the contention on the maintainability of this Letters Patent Appeal. Placing reliance on the decision in the case of Shah Babulal Khimji v. Jayaben D.Kania & Ano. (AIR 1981 SC 1786), learned counsel submitted that if an interlocutory order possess the characteristic and trappings of finality, in such case the Letters Patent Appeal could be filed. It was submitted that in the facts of the present case, the interim order of stay does not possess the characteristic or quality of finality or trappings of finality and the order of the learned Single Judge cannot be construed as "judgment" and the order is purely interlocutory and it is always open to the appellant to raise its contention/points taken in the writ petition before the learned Single Judge and LPA is not maintainable.
7. Whether a judgment or an order is "final" or not has to be seen in the context of the subject-matter. Sometimes an order ex-facie interlocutory in character, can be said to be final even if the main controversy between the parties remains un-disposed of and thus, such order would fall within the ambit of Clause 10 of the Letters Patent of the Patna High Court. In "State of Orissa Vs. Madan Gopal Rungta" reported in AIR 1952 SC 12, though the High Court did not decide the dispute, it granted mandamus restraining the Government from taking action until 5 the proposed suits were filed. Rejecting the contention that the order was not final as it was for an interim relief and the dispute between the parties remained to be determined in the proposed suits to be filed, the Hon'ble Supreme Court held that the said order was final and appeal filed against the said order was maintainable.
8. In so far as the argument advanced on the maintainability of LPA is concerned, in Shah Babulal Khimji (AIR 1981 SC 1786), Hon'ble Supreme Court held that LPA is maintainable only against an order which possesses the characteristics and trappings of finality and in para 120, Hon'ble Supreme Court enumerated the illustrations of interlocutory orders, which can be treated as "judgment". In para 123, Hon'ble Supreme Court held as under:-
"123.In the instant case, as the order of the trial Judge was one refusing appointment of a receiver and grant of an ad interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, O. 43, R. I applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of clause 15 of the Letters Patent. The consistent view taken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of clause 15 of the Letters Patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision."
9. It is now well settled that the definition of "Judgment" in Section 2(9) of the Code of Civil Procedure has no application to Letters Patent. In "Shah BabulalKhimji Vs. Jayaben D. Kania and Another" (supra) also, the Hon'ble Supreme Court has held that the concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-Section (2) of Section 2 cannot be physically imported into the definition of the word "Judgment" as used in Clause-15 of the Letters Patent (which is pari-materia to Clause-10 of the Letters Patent of Patna High Court).
10. Having regard to the nature of the transaction, we are of the view that the interim order passed by the writ court contains the quality of finality and would, therefore, be a "judgment" within the meaning of 6 clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and the appeal before the Division Bench is maintainable.
11. In LPA No.119/2014, Mr.Sujit Narayan Prasad, learned counsel appearing for the respondent nos.1 to 3, contended that on the technical part, respondent nos.1 to 3-writ petitioners have been found successful and they were in anticipation that their price bid would be opened in their presence and they would be given an opportunity to represent themselves on the date of opening of the price bid. It was further submitted that the respondent nos.1 to 3 have been given communication through e-mail on 28.2.2014 asking them to appear on 1.3.14 at 4.00 pm in the office of SAIL at Kolkata and the writ petitioners, after obtaining the same through e-mail on 28.2.14 at 5.48 pm, found themselves unable to remain present on 1.3.14 at 4.00 pm in the office of SAIL at Kolkata because of long distance of more than 750 kms and the area where the respondent nos.1 to 3 reside is an extremist affected area and therefore, it was not possible for them to move in night to reach Kolkata to present themselves on 1.3.14 and hence the respondents made an application through e-mail requesting the authorities to defer the date of opening of the price bid and even though the SAIL has duly received the same, the appellant proceeded in a great haste and without following the basic principles of providing fair opportunity to all the bidders in the matter of awarding contract, the appellant had rejected the request of the respondent nos.1 to 3 for deferring the date of opening of the price bid. Learned counsel submitted that the respondent nos.1 to 3, inspite of their eligibility, have been deprived from participating in the price bid due to arbitrary action of the SAIL and the entire facts would go to show that the SAIL acted in an arbitrary manner in giving undue weight to respondent nos.4 to 6 and in declaring them successful and in view of the prima facie case made out, learned Single Judge rightly granted the interim stay. 7
12. Mr. Anil Kumar Sinha, the learned senior counsel appearing for the respondent nos.1 & 2 in L.P.A. No. 122 of 2014 has submitted that the workers, who are the members of the respondent nos.1 & 2- Union, have been working since last 25-30 years and taking note of the said fact this Court in CWJC No. 2348 of 2000 (R) restrained the management from removing the workmen till their claim is finally adjudicated by the Labour Court. After the Notification dated 17.03.1993 issued by the Central Government prohibiting employment of contract labour in the limestone and dolomite mines, the respondent nos.1 & 2- Union demanded the departmentalisation and absorption of the contract labourers working under various contracts for the SAIL. However, at the instance of the appellant- SAIL, the Notification issued by the Central Government under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 was challenged before Calcutta High Court in which, an ex-parte stay order was passed. Taking benefit of the interim order passed by the Calcutta High Court, the appellant- SAIL continued to engage contract labourers for executing the works and job in its mines. Although, in W.P.(C) No. 3996 of 2006 filed by the respondent nos.1 & 2- Union, the order passed in CWJC No. 2348 of 2000(R) has again been affirmed and reiterated however, according to the respondent-workmen, the appellant- SAIL continued to violate the order passed by this Court in as much as, the gratuity to the workmen has never been paid by the appellant- SAIL. It is further submitted that several workmen, in the meantime, have died and the appellants- SAIL filed false affidavit before this Court owning liability of statutory dues to be paid to the workmen and now by incorporating Clause 19.6 in the tender document making the contractor liable for payment of gratuity and retrenchment benefit, the appellant- SAIL is trying to compromise the interest of the workers and therefore, the writ petition has been filed. In view of the past conduct of the appellant- SAIL, the learned Single Judge directed SAIL to 8 file an affidavit satisfying the Court that the interest and welfare of the workers have been duly safeguarded. The learned senior counsel has tried to justify the interim order dated 18.02.2014 passed in W.P.(C) No. 715 of 2014 submitting that only at the instance of the appellants herein, the learned Single Judge has recorded the assurance given by SAIL that the tender shall not be finalised before making a clear statement on affidavit and satisfying the Court that the interest and welfare of the workers have been duly protected under Clause 19.6 of the tender document.
13. As against the above, Mr. Ananda Sen, learned counsel appearing for the appellants has submitted that the apprehension raised on behalf of the workers is imaginary and in fact under Clause 19.6, the interest of the workers has been secured in a better manner than the earlier provisions. It is submitted that in compliance of orders passed by this Court, the workers have not been retrenched and irrespective of the work- contract awarded to different contractors, these workers have been engaged. The learned counsel has further submitted that the writ petition by the worker's Union has been filed at the instance of the contractor, who has filed a separate writ petition in W.P.(C) No. 1359 of 2014. Since the contractor would continue to receive payment at higher rates, it would be benefited by the continuance of the interim order of this Court, which would cause huge financial loss to the appellant- SAIL.
14. Coming to the merits of the appeal in LPA No.119/2014, the Court at this stage is concerned with only the interim order passed by the writ court. The main writ petition is pending. The contentious points -
(i) what is the scope of judicial review in the matter relating to award of contract by SAIL;(ii) whether the respondent nos.1 to 3 ought to have been given opportunity to present themselves at the time of opening of the price bid; (iii) whether the respondent nos.1 to 3 had been given 9 sufficient opportunity of appearing at the time of opening of the price bid; (iv) whether the opening of price bid on 1.3.2014 was in great haste as alleged by the respondent nos.1 to 3; (v) whether the tender process is vitiated due to arbitrariness and is liable to be cancelled and other such contentious points falling for consideration in the main writ petition and the contentious points raised by the parties are required to be finally determined by the writ court.
15. It is submitted that due to the interim direction passed by the learned Single Judge dated 10.03.2014 the appellants are not permitted to finalize the tender which is causing serious and irreparable loss to the appellants in as much as the appellant no.1 is suffering from huge financial loss because they have to pay the contractor at the rates fixed in the earlier work-contract whereas, in the fresh tenders the appellant no. 1 has received bids for lessor rates. It is further submitted that due to non-finalization of fresh tenders, the appellants are apprehending serious labour unrest resulting in law and order problem as supply of Dolomite to the Steel Plants has severely been disrupted. The contention of the learned counsel for the appellants is that this is not a case where malafide has been alleged and the respondents have failed to demonstrate prejudice caused to them due to opening of the price-bid and while so, the learned Single Judge did not take into consideration the balance of convenience and likelihood of irreparable loss to the appellants and therefore, prays for interference by this Court with order dated 10.03.2014 passed in W.P.(C) No. 1359 of 2014 and order dated 18.02.2014 in W.P.(C) 715 of 2014.
16. In LPA No.122/2014, the questions whether the interest of the workmen are sufficiently safeguarded and whether the undertaking given has been flouted by the management as alleged by the workmen are the questions which are to be determined only in the writ petition. 10
17. It is well settled that an order of injunction can be granted only under exceptional circumstances. Only in extreme cases, an interim order can be passed when the court is satisfied with the parameters laid down for ex parte injunction on showing prima facie case of balance of convenience and also where the writ petitioners would suffer an irreparable injury.
18. The considerations which generally guide the grant of injunction have been indicated by the Hon'ble Supreme Court in "Morgan Stanley Mutual Fund Vs. Kartick Das", reported in [(1994) 4 SCC 225]. Referring to Morgan Stanley Mutual Fund case [(1994) 4 SCC 225], in Bombay Dyeing & Manufacturing Co. Ltd.
[(2005) 5 SCC 61, Hon'ble Supreme Court, in para 22 and 25, held as under:-
"22. This Court at this stage is concerned with an interim order passed by the High Court. The writ petition is still to be heard. Affidavits between the parties are yet to be exchanged. The objection as regards maintainability of the writ petition is also required to be finally determined by the High Court itself. This Court at this stage cannot, thus, enter into all the contentious questions raised in these appeals. But, there cannot be doubt or dispute whatsoever that before an interim order is passed and in particular in a public interest litigation, the court must consider the question as regards existence of a prima facie case, balance of convenience as also the question as to whether the writ petitioners shall suffer an irreparable injury, if the injunction sought for is refused. The courts normally do not pass an interlocutory order which would affect a person without giving an opportunity of hearing to him. Only in extreme cases, an ad interim order can be passed but even therefor, the following parameters as laid down by this Court in Morgan Stanley Mutual Fund v. Kartick Das1 are required to be complied with: (SCC pp. 241-42, para 36) "36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are--
(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;11
(d) the court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) even if granted, the ex parte injunction would be for a limited period of time;
(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court."
(See also Andhra Bank v. Official Liquidator [(2005) 5 SCC 75].) ..... ....... ........
25. In Deoraj v. State of Maharashtra [(2004) 4 SCC 697] this Court opined: (SCC p. 703, para 12) "12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case
-- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent."
Considering the present case in the light of above well settled principles, in the case of commercial transaction of State involving element of public law or public interest, the courts are to be slow in granting interim orders of stay. When the main writ petition is pending, having regard to the nature of work and considering the activities of SAIL, we are of the view that it is not a fit case for grant of interim order. 12
19. Relying upon the decision in the case of Raunaq International Ltd. [(1999) 1 SCC 492], AIR 1999 SC 393, it was submitted that the scope of judicial review being limited in tender matters, the court had to restrain itself from interfering with the process so long as the decision of the competent authority was not against the public interest, irrational, mala fide or illegal. Since the merit of this point is to be considered by the writ court, we do not propose to go into the merit of this point raised.
20. Learned counsel for the appellant submitted that the rates quoted by other tenderers (respondent nos.4 to 6) is Rs.684.55 per tonne, which is less than the prevalent rate which the current contractors/writ petitioners -respondent nos.1 to 3 have quoted and are working - Rs.727.67 per tonne. Learned counsel submitted that the difference per tonne is about Rs.43.12 and because of the interim order, SAIL is subjected to a great financial hardship and the balance of convenience lies only in favour of the appellant. It was also submitted that if the interim order is allowed to continue, the production of steel by SAIL would be affected and the appellant would be subjected to irreparable injury. As rightly stated by the learned counsel for the appellant, if the interim order is continued, SAIL would be subjected to financial loss. In view of the interim order passed, lifting and transportation of dolomite is affected, which consequently affects the production of SAIL.
21. Having regard to the facts and circumstances of the case, we are of the view that the ends of justice would be served if the SAIL is permitted to complete the process of tender and the same shall be subject to the result of the writ petition and the interim order passed by the learned Single Judge is liable to be vacated.
22. In the result, the interim order dated 10.3.2014 passed in W.P(C) No.1359/2014 and interim order dated 18.2.2014 passed in W.P (C) No.715/2014 by the learned Single Judge are vacated and these LPAs 13 are allowed. It was stated that the writ petitions are posted on 7.4.2014. The parties are at liberty to request the learned Single Judge to take up the matters and dispose of the same. Both the parties are also directed to co-operate for early disposal of the writ petitions.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 3rd April, 2014 AFR Dey/