Karnataka High Court
Hitech Engineers vs The Managing Director on 4 September, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4th DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
WRIT PETITION NO.33634 OF 2012 (GM-TEN)
BETWEEN :
Hitech Engineers
Rep by its Managing Partner
No.D-6, 68, (S.F.S.)
407, Yelahanka New Town
Bangalore-560106. ..Petitioner
(By Sri Chandrakanth R.Goulay, Adv.,)
AND :
1. The Managing Director
Bangalore Urban, Bangalore Rural
& Ramnagar District Co-operative
Milk Producers Societies Union
Dr. M. H. Marigowda Road
Bangalore-29.
2. The Karnataka Co-operative Milk
Producers Federation Ltd.,
KMF Complex, P.B.No.2915
D.R. College Post
Dr. M.H. Marigowda Road
Bangalore-29
Rep by Managing Director. ..Respondents
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This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the impugned
order dated 30.8.2012 issued by the respondent vide
Annexure-F as arbitrary, illegal and void, one without
competence and jurisdiction apart from one made with a
malafide intention.
This writ petition coming on for preliminary hearing,
this day the Court made the following:-
ORDER
By the impugned order, the first respondent has reduced the quantum of work assigned to the petitioner to an extent of 35%. Consequently, the petitioner is denied to carry out the work to an extent of 35% allotted in his favour pursuant to the tender process. It is permitted to carryout 65% of the total work only.
2. The records reveal that the petitioner was assigned work of packaging activities of Bangalore Co- -3- operative Milk Union. The petitioner participated in the tender process, pursuant to the tender document at Annexure-A and it was the successful tenderer. The petitioenr was assigned work of undertaking milk packaging activities for two years i.e., from 2011 to 2013. The contract assigned to the petitioner ends by May 2013. Condition No.11 of the tender document reads thus:-
"11.0 - UÀÄwÛUÉ CªÀ¢Aü iÀÄÄ UÀÄwÛUÉ ªÀÄAdÆgÁzÀ ¢£ÁAPÀ¢AzÀ JgÀqÀÄ ªÀµÀðUÀ¼ÀzÁÝVzÀÄÝ, F Cª¢üAiÀÄ°è UÀÄwÛUÉzÁgÀgÀ PÉ®¸ÀPÁAiÀÄðUÀ¼ÀÄ vÀÈÀ¦ÛPÀgÀ/¸ÀªÀÄ¥ðPÀªÁV®è¢zÀÝ°è MPÉÆÌlªÀÅ 07 ¢£ÀUÀ¼À °TvÀ PÁgÀt-PÉý-£ÉÆÃnÃ¸ï ¤Ãr CzÀPÀÉÌ UÀÄwÛUÉzÁgÀgÀÄ ¤ÃqÀĪÀ «ªÀgÀuÉ/¸ÀªÀÄeÁ¬Ä¹ MPÀÆÌlPÉÌ vÀÈÀ¦ÛPÀgÀªÁV PÀAqÀĨÁgÀ¢zÀÝ°è UÀÄwÛUÉAiÀÄ£ÀÄß gÀzÀÄÝ¥Àr¸ÀĪÀ ºÁUÀÆ ¨ÀszÀævÁ gÉêÀtôAiÀÄ£ÀÄß ªÀÄÄlÄÖUÉÆÃ®Ä ºÁQPÉiÀÁ¼ÀÄîªÀ C¢üPÁgÀªÀ£ÀÄß MPÀÆÌlªÀÅ PÁ¢j¹PÉÆArgÀÄvÀÛzÉ "
From the above, it is clear that the work assigned to the petitioner may be cancelled if the -4- same is unsatisfactory by giving 7 days' notice for the reply of the petitioner, if the reply is unacceptable. It seems, notice came to be issued as per Annexure-B, dated 4.8.2012 to the petitioner calling upon the petitioner to show-cause as to why the action should not be taken against the petitioner inasmuch as the work carried on by it was unsatisfactory inasmuch as it is not carried on by it as required under the contract. It is also alleged that the petitioner had not engaged the required personnel having required qualifications for the purpose of packing milk packets as well as carriers. Since there was enormous leakage of milk in view of the fact that horizontal as well as vertical seals were not put properly by the petitioner and consequent upon such leakage, lesser quantity of milk was to be found in the packets than prescribed. The same was widely published by electronic media in television channels. The petitioner -5- replied to the show-cause as per Annexure-C dated 11.8.2012 contending therein that the petitioner was not at fault and the leakage is less than 0.80% out of supply of 9.5 lakhs of liters every day which is highly negligible. The petitioner has further contended that for the leakage, there are number of reasons apart from horizontal and vertical sealing for which petitioner is not responsible. However, the petitioner has contended that it has taken steps to secure new technology and it has been maintaining the concerned machineries properly with trained technical staff.
3. Having not satisfied with the reply of the petitioner, final notice is issued as per Annexure-D, dated 17.8.2012 narrating the incidents of improper packaging, etc. The petitioner has replied as per Annexure-E, dated 21.8.2012 explaining as to how the petitioner is doing the work as agreed. Respondent -6- No.1 having considered the material on record and the statement of objections, passed the impugned order at Annexure-F and permitted the petitioner to continue to work to an extent of 65% only, and consequently, the petitioner is denied the work to an extent of 35%. It is also mentioned in the impugned order that under Condition No.11 of the tender document, the work assigned in favour of the petitioner itself could have been cancelled; however, for the purpose of giving one more opportunity to the petitioner to rectify the defects, the lesser penalty of reducing the quantity of work to an extent of 35%, is imposed.
4. Sri Chandrakanth Goulay, learned counsel for the petitioner submits that the first respondent has not taken into consideration the statement of objections filed by the petitioner as per Annexures-C -7- and E; the impugned order is nothing, but restatement of the allegations against the petitioner made in the show-cause notice; the first respondent has failed to consider all the records including the records maintained by the Quality Control Department before passing the impugned order.
5. Show-cause notice as well as replies are perused by this Court in detail. The writ petition rests on mere adjudication of facts. The first respondent is a authority looking after milk dairy and its allied activities. It is the entity which looks after the work in question. It has to keep in mind the interest of the State, more particularly the interest of public at large. If there is any leakage in packages, the person who manufactures the packing material should be held responsible. If the seals are not put as required horizontally as well as vertically, it will result in -8- leakage of milk and consequently huge loss occurs to the institution. The people will get lesser quantity of milk than for what they pay. In such situation there is likelihood of adulteration of milk. The incidents of mistakes committed by the petitioner are narrated in the impugned order. Since the impugned order is based on the facts and the same is passed after perusing the statement of objections filed by the petitioner, the same needs no interference.
6. It is relevant to note that condition No.11 attached to the tender document clearly reveals that in case if successful tenderer does not carry out the work as required, it is open for the respondents to cancel the contract itself by issuing notice to the successful tenderer. In the matter on hand, the petitioner is issued two notices. It is given adequate opportunity for filing the statement of objections. -9- Only after considering the statement of objections effectively, instead of cancelling the contract, respondent No.1 has taken a decision to reduce the quantity of work assigned to the petitioner to an extent of 65%, thereby denying the work to an extent of 35%. Such an order is passed by the first respondent because the first respondent wants to give one opportunity to the petitioner to rectify the mistakes of the petitioner.
Since the impugned order is just and proper under the facts and circumstances of the case, no interference is called for. Merely because a legal point is made out in the writ proceedings, this Court will not interfere with the impugned order unless the impugned action is arbitrary or has resulted in injustice.
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Hence, writ petition fails and accordingly the same stands dismissed. However the petitioner shall be continued to carryon the work to an extent of 65% as ordered by 1st respondent.
Sd/-
JUDGE *ck/-