Punjab-Haryana High Court
Jagsir Singh vs State Of Punjab And Others on 5 July, 2012
Author: G.S. Sandhawalia
Bench: Ajay Kumar Mittal, G.S. Sandhawalia
CWP No. 7585 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 7585 of 2012
DATE OF DECISION: July 05 , 2012
Jagsir Singh .........PETITIONER(S)
VERSUS
State of Punjab and others ......RESPONDENT(S)
AND
CWP No. 7680 of 2012
Rachpal Singh .........PETITIONER(S)
VERSUS
State of Punjab and others ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. K.K. Goel, Advocate,
for the petitioner.
Mr. Gaurav Garg Dhuriwala, DAG, Punjab.
Mr. Rakesh Gupta, Advocate,
for respondent no. 9.
Mr. Gautam Nabi Malik, Advocate,
for respondent no. 10.
G.S. SANDHAWALIA, J.
1. This judgment shall dispose of two petitions i.e. CWP No. 7585 of 2012 titled Jagsir Singh vs. State of Punjab and others and CWP No. 7680 of 2012 titled Rachpal Singh vs. State of Punjab and others. The CWP No. 7585 of 2012 2 facts are being taken from CWP No. 7585 of 2012 titled Jagsir Singh vs. State of Punjab and others.
2. The petitioner has filed the present writ petition under Articles 226 and 227 of the Constitution of India for quashing of order dated 21.04.2012 (Annexure P-1) whereby the petitioner has been blacklisted from executing the contract awarded for two food agencies i.e. Markfed and Pungrain, respondents no. 8 and 9 respectively and also whereby the security amount has been forfeited. An additional prayer has been made in the writ petition for quashing public notice (Annexure P-2) whereby the official respondents called for tenders on the same day and also allotted the same to respondent no. 10 on the next day i.e. on 22.04.2012 at the risk and cost of the petitioner for the contract of labour and cartage for the year 2012-13 and further prayer has been made that respondents no. 4 to 6 be restrained from executing the agreement with respondent no. 10.
3. The pleaded case of the petitioner is that District Manager, Pungrain-cum-Chairman Tender Committee, Sangrur-respondent no. 9 invited tenders for transportation of Food Grains and other articles from labour/cartage contractors. In pursuance of the tenders, the petitioner filled his rates and being the lowest, was awarded the contract for the purpose of handling of transportation of food grains and other articles of the agencies at the provincial reserve centre, Malerkotla in District Sangrur. Accordingly, the petitioner was allotted the work and the agreement was executed between the petitioner and the agencies and the contract was given for a period of one year commencing from 01.04.2012 to 31.03.2013 and the rates quoted by the petitioner were 28% above ASOR. The petitioner has pleaded that after completing all formalities and execution of the CWP No. 7585 of 2012 3 agreement, the petitioner deposited the security amount with the concerned agencies and arranged vehicles and labour for transportation of food grains but were stopped by respondent no. 10 which is All India Food and Allied Workers Union, Malerkotla from executing the transport contract on the ground that he was working at such a low rate and for a number of years they had been working there and would not allow any new incumbent to work there. In pursuance of the allotment, the petitioner started executing the work but was not allowed to work by respondent no. 10 and the petitioner's labour was threatened and since he was not able to execute the work smoothly and regularly, a letter was got issued from the District Manager, Markfed stating therein that why demurrage should not be imposed for losses suffered by the department due to loading/unloading of gunny bags. This was being resorted to by the agencies since there was a clause in the agreement that they could get the work done through other sources at the risk and cost of the defaulter. It was pleaded that the petitioner gave reply to the letter issued by respondent no. 8-Markfed that respondent no. 10 was not allowing him to execute the work. It was further pleaded that the petitioner made a number of representations and met the officers of the District Administration but no action was taken for providing security/police help to enable the petitioner to execute the work and the petitioner was running from pillar to post but no action was taken against the culprits in spite of repeated representations.
4. Accordingly, the petitioner filed Crl. Misc. No. M-10869 of 2012 titled Jagsir Singh vs. State of Punjab and this Court issued notice on 19.04.2012 for 30.04.2012. It was further averred that one Rachpal Singh (who has filed the connected petition i.e. CWP No. 7680 of 2012) was also CWP No. 7585 of 2012 4 awarded the contract of labour and cartage for Punjab Agro Industries Corporation and Punjab State Ware Housing Corporation and even he was threatened by respondent no. 10 and had also written a letter on 16.04.2012 seeking police protection and his apprehension was proved correct when he and his workers were attacked by Khushi Mohmmad and his goons and the vehicles belonging to the contractor were damaged badly and four workers were injured seriously in an incident which took place on 18.04.2012. The petitioner had written a detailed letter on 19.04.2012 and sent a telegram for registration of FIR against respondent no. 10 and his supporters and requested vide Annexures P-11 and P-12 that the petitioner was ready to execute the work of the purchase agency if police protection was provided. However, instead of providing police help, public notice was issued against the petitioner as well as the other contractor Rachpal Singh that they should remain present in the grain market, Malerkotla alongwith their labour on 21.04.2012. The petitioner alongwith his labour was present but no officer of the purchase agency came present at the spot. A telegram was sent that they had approached this Court and the matter was sub judice and no steps for blacklisting the petitioner be taken. Thereafter, another public notice was published in the newspaper inviting short term tenders at the risk and cost of the petitioner and it was stated therein that the tender form could be collected between 10 to 11 a.m. on 22.04.2012 and were to be submitted between 12.00 to 12.30 noon which were to be opened at 2.00 p.m. The said tender forms were opened on the same day and the petitioner was blacklisted and penalized and the security amount was forfeited without affording any opportunity to the petitioner and the contract was awarded to respondent no. 10 at 58% ASOR. The said action has been challenged on CWP No. 7585 of 2012 5 the ground that the petitioner had never been provided police help and was attacked by respondent no. 10 and his supporters, and has been falsely implicated in FIR No. 34 dated 18.04.2012 registered at P.S. Malerkotla under Sections 336, 323, 342, 427, 148, 149 IPC and Sections 25 and 27 of The Arms Act, 1959. It is accordingly pleaded that there was no necessity of blacklisting the petitioner and there was no urgency for inviting the tender and opening and awarding it on the same day. It has also been pleaded that if the contract was awarded to respondent no. 10, the Government would suffer heavy financial losses and the same was done for some extraneous consideration by the District Administration, Sangrur. It was further pleaded that opening of the office on Sunday was to please the political bosses and all rules and regulations had been flouted and no opportunity of hearing had been afforded to the petitioner to explain his position though repeatedly he had undertaken to do the work if police help was provided. It is the case of the petitioner that the drafts had been prepared in favour of the Chairman, Tender Committee and the intention of the Tender Committee was very clear that they wanted to help the respondent-Union, and the authorities who were the custodians of the government office had failed in their legal obligation.
4. Separate written statements were filed by respondents no. 1, 3 and 4, respondent no. 2 and respondent no. 10, who had also filed a caveat. In the written statement filed on behalf of respondents no. 1, 3 and 4 through the District Controller, Food Civil Supplies and Consumer Affairs, Sangrur, plea was taken that there is an alternative remedy by way of arbitration as per the agreement and reliance was also placed upon directions of this Court passed in CWP No. 913 of 2011, whereby a policy CWP No. 7585 of 2012 6 had been formulated with regard to the blacklisting of contractors for labour and cartage in the State of Punjab. On the aforesaid premises, it was submitted that there was an alternative remedy available by way of filing an appeal before the Managing Director of the concerned procurement agency which had blacklisted him. It was pleaded that the food grains had started to arrive at Malerkotla Mandi and the petitioner was to provide labour for loading/unloading and stacking of the bags and food grains and to make arrangements within 48 hours of allotment of work but the petitioner could not do so and started making false representations to the police. The arrival of gunny bales for packing the food grains started from 07.04.2012 onwards and till 12.04.2012 and 20 loaded trucks of gunny bales had to be returned back to Sangrur on account of non arrangement of labour by the petitioner and the incident of 18.04.2012 was much later in time after the law and order situation deteriorated on account of non arrangement of labour by the petitioner. It is further pleaded that in the FIR, the petitioner was the main accused having used a fire arm. It was admitted that the petitioner had quoted a rate of 31% ABR (Above Basic Rate) whereas respondent no. 10 had quoted the rate of 150% ABR for only two purchase agencies namely Pungrain and Markfed. For the remaining procurement agencies namely Food Corporation of India, Punjab State Warehousing Corporation, Punjab Agro Food-grains Corporation and Punsup, the tender was recalled. That out of the remaining four purchase agencies, only two tender forms were received from Rachpal Singh and respondent no. 10 @ 150% ABR and that after negotiation, tender had been granted to Rachpal Singh at 28% ABR for both the purchase agencies namely Punjab Agro Food-grains Corporation and Punjab State Warehousing Corporation. Since the petitioner failed to CWP No. 7585 of 2012 7 supply labour and as such the food grains could not be loaded and unloaded at the purchase center which resulted into a chaos at the purchase center. The farmers started staging protests on account of non-lifting of the food grains from the agency, repeated reminders were also sent to the petitioner to which the petitioner did not respond and, therefore, the District Manager, Markfed had directed the petitioner to supply labour on 21.04.2012 so that the work of loading and unloading of food grains could be started. The failure to provide labour was to attract penal provisions as per the policy.
5. Even a notice was published regarding the petitioner as well as Rachpal Singh to supply labour by 21.04.2012 afternoon so that the work of loading and unloading of food grains could be completed and since the petitioner failed to supply the labour, in pursuance of the provisions i.e. condition mentioned at serial no. 14 and serial no. 16 of the policy, an order was passed for blacklisting of the petitioner by the District Managers of all the procurement agencies. It was further decided to award the contract for carrying out the work of labour and cartage for the said purchase center by inviting fresh tenders at the risk and cost of the petitioner. After the blacklisting of the petitioner, fresh tenders were called for all procurement agencies on 22.04.2012. Only two tender forms were received for the said purchase center. Respondent no. 10 was one of the tenderer who had quoted the rate of 100% ABR. The allotment of tender in favour of respondent no. 10 was sought to be justified on the ground that there was huge stock piled up in the grain market and the farmers sat on dharna and had started road blocks, so after due deliberations and negotiations by the Deputy Commissioner, Sangrur and keeping in view the urgency involved, the tender was given to respondent no. 10 at 58% ABR. It was accordingly CWP No. 7585 of 2012 8 pleaded that as per clause 1 of the agreement, the labour and cartage for handling and transportation of food grains had to be arranged within 48 hours as per the requirement of the concerned District Managers. Since the petitioner had failed to supply the labour and the inflow of wheat was high but the same was not being loaded/unloaded, it had resulted into a law and order situation. A final notice had been issued to the petitioner to supply labour, failing which, the contract was to be awarded to some other contractor at the risk and cost of the petitioner but since the petitioner had failed to supply the labour and keeping in view the urgency of the situation, fresh tenders were invited at the risk and cost of the petitioner after blacklisting him on 22.04.2012. The petitioner having failed to complete the work which was entrusted to him which was of sensitive nature and the wheat crop was a perishable item, therefore, the contract was awarded to respondent no. 10 without any bias or connivance with the said bidder. It was also pleaded that it was wrong that no security was provided to the petitioner and since the petitioner is now an accused in FIR No. 34 dated 18.04.2012, he did not come forward since he was apprehending arrest and was rightly blacklisted after issuing notice to him.
6. In the written statement filed by respondent no. 2, Deputy Commissioner, Sangrur, it has been admitted that an application had been moved for providing adequate security on 19.04.2012 and similar request was received on 20.04.2012 and the Deputy Commissioner, Sangrur directed the Senior Superintendent of Police, Sangrur to provide adequate security to the contractor to whom the work had been allotted and even Additional Deputy Commissioner, Sangrur on behalf of the deponent had requested the Senior Superintendent of Police to provide necessary security CWP No. 7585 of 2012 9 and make proper arrangements for loading and unloading of the food grains in various purchase centers of Malerkotla. It was further pleaded that the petitioner did not arrange proper labour and made arrangements for loading and unloading of the food grains and there was a glut of produce and the commission agents and the farmers created large scale hue and cry, accordingly fresh tenders were required to be called under the supervision of the Deputy Commissioner. The said proceedings were attended by the Additional Deputy Commissioner and since respondent no. 10 had quoted the lowest rates, therefore, the contract for labour and cartage had been awarded to him by all the District Managers of various procurement agencies under the supervision of the Additional Deputy Commissioner, Sangrur. The blacklisting was a collective decision of various District Managers of the procurement agencies and the petitioner had not come forward and failed to undertake the work of labour and cartage.
7. Respondent no. 10, in his written statement, besides the plea that the writ was not maintainable in view of the judgment of this Court rendered in CWP No. 913 of 2011 has pleaded that vide order dated 22.04.2012, he had been allotted the contract to carry out the work of loading and unloading the food grains and had already loaded 3,17,020 bags and stacking of 14,38,830 bags and the petitioner had not challenged the order dated 22.04.2012 whereby he was allotted the contract. It was accordingly contended that the petitioner was given two days' notice to execute the work and he failed to do so and appear before the authorities and, therefore, he was rightly blacklisted and the contract was cancelled. It was alleged that the petitioner had himself indulged in illegal and criminal activities. Although he was not having any contract of Punjab State CWP No. 7585 of 2012 10 Warehousing Corporation but he alongwith other anti-social elements, duly armed with deadly weapons, went to the warehouse godown and started beating the labourers due to which FIR had been lodged. It was alleged that he got the contract by giving bogus address where he was not residing and legal proceedings are required to be initiated against him and he had refused to make payment to the workers @ 28% above ASOR and was giving the workers only wages @ 5% above ASOR. It was denied that the respondent ever stopped the petitioner from executing the work. It was the workers of the respondent-Union who abstained from work as the petitioner was not paying them the wages at the rate mentioned by him at the time of getting the contract. The action of the official respondents was justified due to the urgency and the respondent having quoted the lowest rates, had been rightly allotted the work.
8. On the basis of the above the said pleadings, counsel for the petitioner has submitted that in spite of approaching this Court and making repeated representations, the official respondents have illegally awarded the contract to respondent no. 10 at a higher rate and caused loss to the Government and the process followed by them was illegal and arbitrary and with a mala fide intention to benefit respondent no. 10. He also referred to Clause 17 of the tender notice providing that where successful bidder refused to do the work after the approval of L-1 tender, then an offer was required to be made to L-2 bidder to do the work at that rate and so on and in the eventuality of non-availability of any of them, the tender could to be issued again.
9. On the other hand, the official respondents have justified their action on the ground of urgency and on the ground that the petitioner had CWP No. 7585 of 2012 11 failed to execute the work which led to glut of food grains in the market which necessitated the decision of re-tendering after blacklisting the petitioner and awarding the contract to respondent no. 10.
10. A perusal of the record clearly shows that the petitioner has a genuine grievance. The tender was called for on 22.03.2012 and the bid was opened on 04.04.2012. The petitioner was successful tenderer having been awarded the contract at 28% above ASOR. That the agreement with Pungrain was entered into on 06.04.2012 and with Markfed on 12.04.2012 for a period of one year from 01.04.2012 to 31.03.2013 (Annexure P-3). That on 07.04.2012 (Annexure P-7), the petitioner made a representation to the SHO for taking action against Khushi Mohmmad, President of All India Food and Allied Workers Union, Malerkotla-respondent no. 10 with the allegation that he was not being allowed to execute the work allotted to him by food agencies after investing a sum of `5 lac for raising labour and depositing security and that he was being threatened. A similar representation was filed on 10.04.2012 (Annexure P-6) to the Senior Superintendent of Police, Sangrur. Notice dated 11.04.2012 (Annexure P-4) had been issued by Markfed whereby the petitioner was called upon to deposit the security amount and execute the agreement within two days. The petitioner was required to unload the gunny bags from the trucks by 12.04.2012. On 12.04.2012 itself, the petitioner addressed communication (Annexure P-5) to the Deputy Commissioner, Sangrur and two other officials including the Managing Director, Pungrain after executing the agreement, expressing his apprehension that he had tendered the lowest rate whereas the local labour union was quoting rates on a much higher side. It was also intimated that the Government would suffer financial loss because CWP No. 7585 of 2012 12 the petitioners were not being allowed to work and the department wanted to blacklist them and harm them financially and police protection was sought. Another representation was made on 16.04.2012 to the Chief Secretary by both the petitioners in the two writ petitions namely Jagsir Singh and Rachpal Singh wherein, it was again mentioned that the labour was being threatened by Khushi Mohammad etc. on the asking of the old contractor Mansa Ram and when the labour was unloading the trucks of empty gunny bags belonging to Markfed, the labour was attacked and Khusi Mohammad and others threatened the labour by showing a pistol and accordingly police protection was asked for.
11. That on 18.04.2012 (Annexure R-7), the Supervisor, Food and Civil Supplies, Malerkotla wrote to the District Food and Supplies Controller, Sangrur that the labour of the new labour contractor was loading the truck in the presence of the police and some unidentified persons had attacked the labour and necessary measures be taken. Thereafter, the petitioner approached this Court by filing Crl. Misc. No. M-10869 of 2012, which came up for hearing on 19.04.2012 and the following order was passed:-
"Learned counsel for the petitioner submits that on the one hand he is being threatened to be held responsible for the losses vide Annexure P-2 and on the other hand he is not being provided the police protection sought by him vide Annexure P-3. He further submits that even the police authorities are becoming mute spectators to the high handedness against the petitioner at the hands of private respondents.CWP No. 7585 of 2012 13
Notice of motion for 30.4.2012.
Dasti only."
12. On the same day, the State Warehousing Corporation Manager at Malerkotla addressed a letter (Annexure R-6) to the Deputy Commissioner regarding the incident of 18.04.2012 relating to the newly appointed labour contractor namely Rachpal Singh. It was pointed out therein that 200 workers of the Food and Allied Labour Union sat on dharna in front of the office of State Warehousing Godown and the opposite labour union was obstructing their work which was affecting the purchase work and the problem of labour may be resolved at the earliest. That on 20.04.2012 (Annexure R-8), the District Manager, Pungrain also wrote to the Deputy Commissioner regarding the incident of 18.04.2012 and requested that necessary action be taken to assure that the purchase works was carried out smoothly. On the same day, the Deputy Commissioner also addressed letter to the Senior Superintendent of Police that a fight was going on in connection with the labour tenderers at Malerkotla and the contractor to whom the tender had been allotted be provided requisite security on priority on demand by him.
13. In his letter dated 21.04.2012 addressed to the SDM, the Tehsildar intimated that the Labour Contractor had not sent labour at any of the mandis and labour tenders may be floated afresh. Thus, from the above correspondence, it would be clear that the petitioner had been running from pillar to post of the District Administration and even approaching this Court to provide him security so that he could carry out the work of loading and unloading of food grains which was being obstructed by respondent no. 10, who was the local labour union. The District Administration and the CWP No. 7585 of 2012 14 procurement agency, instead of stepping forward to defuse the situation and provide force, started acting in a manner to benefit the obstructor namely respondent no. 10 and issued advertisement (Annexure R-4) dated 21.04.2012 calling upon the petitioner to come forward and provide labour, failing which, he would be blacklisted and his tender would be cancelled. The petitioner to the said advertisement replied by sending fax at 11.14 a.m. (Annexure R-13) that he was ready and willing to execute the work but adequate security should be provided to him and his labour and he should not be blacklisted. However, instead of taking any action on the said letter, on the same day, the impugned order was passed blacklisting the petitioner and forfeiting the security deposit. It was also directed that the District Administration at Sangrur had decided to get the work done at the risk and cost of the petitioner from some other agency. On the same day, fresh contract was advertised for 22.04.2012 for all purchase agencies including Food Corporation of India and the short term tender notice Annexure P-2, was published on 22.04.2012, which was a Sunday and it was provided that the tender form had to be purchased between 10.00 a.m. to 11.00 a.m. and deposited between 12.00 to 12.30 noon which was to be opened at 2.00 p.m. In pursuance of the said advertisement, the tender of respondent no. 10, who had quoted 100% ABR, was accepted for all procurement agencies except Food Corporation of India. The proceedings show that in the presence of the Deputy Commissioner, Sangrur, the work was given at the increased rate of 37% of the last year's approved rate which was to be approved from the Board of Directors of the concerned agencies. Apart from respondent no. 10, only one Ashok Kumar had purchased the tender form for all the procurement agencies.
CWP No. 7585 of 2012 15
14. Thus, from the above facts and the sequence of events, it would be clear that the respondent-Administration acted with haste to blacklist the petitioner and issue public notice on 21.04.2012 by fixing the hearing on 21.04.2012 itself and passing the order on the same day. Thereafter, another advertisement was issued for the next day for calling of the bids for all purchase agencies for Malerkotla centre for the year 2012-13 and then awarding it to respondent no. 10. As noticed earlier from the date of agreement which was entered into on 06.04.2012, the petitioner had been representing since 07.04.2012 (Annexure P-7) that he was being harassed by respondent no. 10, the local union, who was not allowing him to carry out the work of loading and unloading. The Administration, instead of providing help to tenderer who had competed and had been given the contract at lowest rate, was silently conniving to ensure that the work could not be carried out so that after cancellation, it was allotted in favour of respondent no. 10, the local union. Admittedly, as per the written statement of respondents no. 1, 3 and 4, the tender for the remaining procurement agencies, Food Corporation of India, Punjab Agro Industries Corporation, Punjab State Ware Housing Corporation and Punsup had been recalled and it had only been allotted for Pungrain and Markfed in one case to the present petitioner and of Punjab State Ware Housing Corporation and Punjab Agro Industries to Rachpal Singh, the writ petitioner in other case.
15. It would, thus, emerge that by virtue of the impugned order, the petitioner has been penalized twice. Firstly, the petitioner was blacklisted and his contract was cancelled with two agencies and secondly he was debarred from applying for the other tenders. The process of tendering for the other procurement agencies in such a hasty manner is not free from CWP No. 7585 of 2012 16 suspicion about the bona fides of the official respondents which appears to have been done to benefit respondent no. 10.
16. The defence of the State counsel that it was for the purpose of ensuring that the work at the site was not affected and required urgency, does not carry any conviction. It is not disputed that the tenders had been called for on 22.03.2012 and withdrawn for other procurement agencies, there was thus no urgency to issue short term tenders for the other procurement agencies also. This has resulted in benefitting respondent no. 10 as other contractors never got an opportunity to apply and fill up and deposit the forms on 22.04.2012, which was a Sunday. The argument of the State Counsel that the earnest money of respondent no. 10 was still lying with them, who had applied earlier and was utilized alongwith the tender documents submitted on 22.04.2012 leaves no room for doubt that it was all done to benefit respondent no. 10. To be fair to the State Counsel, he has tried to project that an effort was made to get the work done from private contractors and a meeting was also called on 19.04.2012 and reference was made to the minutes of the meeting dated 19.04.2012 (Annexure R-14) wherein, the Committee had met to discuss the problem of purchase of wheat and lifting and discussed the same with the President of the Commission Agency Association and Arthia Association of Malerkotla. A perusal of the meeting note shows that the Committee had already made up its mind since there was a recommendation that the Labour Contractor who had been awarded the work, should be blacklisted and fresh tenders should be invited. Thus, the action of the State was bereft of bona fides and proceeding in the manner the local labour union wanted it to. Another factor which requires mention is that the Deputy Commissioner himself was CWP No. 7585 of 2012 17 writing to the Senior Superintendent of Police to provide police help if asked for whereas he was very well aware that notice had been issued in criminal miscellaneous petition on 19.04.2012. In spite of the aforesaid fact, on 21.04.2012 and 22.04.2012, he proceeded to the contrary by blacklisting the petitioner instead of ensuring that he carried out the work at the spot without any hinderance.
17. The plea of the State counsel regarding an alternative remedy of arbitration in the agreement in terms of the decision of the Division Bench of this Court in Saheed Udham Singh Co-operative Society vs. Deputy Commissioner, Sangrur and others, CWP No. 913 of 2011 decided on 18.04.2012 would not help his case in view of the factual matrix and the conclusion noticed hereinafter. The petitioner has been able to make out a ground that he was consistently approaching the District Administration and this Court for carrying out the work allotted to him smoothly but the Administration had failed to provide the necessary help.
18. Reference can be safely made to judgment of the Supreme Court rendered in Ram and Shyam Company v. State of Haryana and others, AIR 1985 SC 1147 wherein, it has been laid down that where an appeal is not an effective remedy, then the jurisdiction under Article 226 of the Constitution of India can be invoked.
19. The observations of the Hon'ble Supreme Court read as under:-
"Before we deal with the larger issue, let me put out of the way the contention that found favour with the High Court in rejecting the writ petition. The learned Single Judge as well as the Division Bench recalling the observations of this Court in Assistant Collector of CWP No. 7585 of 2012 18 Central Excise v. Jainson Hosiery Industries rejected the writ petition observing that 'the petitioner who invokes the extraordinary jurisdiction of the court under Art. 226 of the Constitution must have exhausted the normal statutory remedies available to him'. We remain unimpressed. Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied upon by the High Court in The State of Uttar Pradesh v. Mohammad Nooh it is observed that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the in stance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot CWP No. 7585 of 2012 19 be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister of the State. To whom do you appeal in a State administration against the decision of the Chief Minister ? The clutch of appeal from Ceasar to Ceasar wife can only be bettered by appeal from one's own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is passed at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court."
20. In the present case, as noticed above, the contract is for a period of one year and the petitioner had just commenced executing the work and was obstructed by respondent no. 10 whereas the District Administration did not provide him help in spite of repeated requests and the termination of contract and the awarding of work to respondent no. 10 not only for the CWP No. 7585 of 2012 20 contract which was with the petitioner, but for all other procurement agencies on a Sunday, impels us to intervene and quash the action of the respondents. The alternative remedy, in the present set of facts and circumstances, would not be an effective remedy as the whole year would pass and respondent no. 10 would complete the contract.
21. Another submission made by the learned counsel for the petitioner may also be noticed. According to him, as per Clause 17 of the revised policy dated 22.03.2012, if the bidder had not done the work after the approval of the L-1 tender, then the next bidder was to be afforded an opportunity to perform the work at that rate and so on and only in case of non-availability of any of the said bidders, the tender was to be issued again. Clause 17 of the policy is reproduced as under:-
"17) If the bidder will refuse to do the work after the approval of L-1 tender then on this rate first of all L-2 bidder will be asked to do work and then L-3 and in case of non-
availability of any of them then tender will be issued again."
22. There is no material referred to show that the procedure laid down in Clause 17 of the revised policy of the Government was followed. The respondents have thus failed to follow the aforesaid procedure. The petitioner was blacklisted on 21.04.2012 and thereafter a decision was taken to call for the tenders on the same day which was advertised for 22.04.2012 and was allotted to respondent no. 10 on the same day which was a non- working day being a Sunday. As noticed, only two tenders were received for all procurement agencies and a 100% increase was demanded in the new basic rates and one Ashok Kumar had demanded increase of 150%. Respondent no. 10 was allotted the tender by giving increase of 37% of the CWP No. 7585 of 2012 21 last year's approved rate without following the procedure established by law.
23. The decision of the respondents to allot the work on Sunday does not withstand the test of equality enshrined in Article 14 of the Constitution of India and is bad in view of the judgment of the Apex Court in Union of India vs. Dinesh Engineering Corporation and another, AIR 2001 SC 3887 wherein it was held that a monopoly cannot be created in favour of any person with the following observations:-
"16. But then as has been held by this court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by Courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrary, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year CWP No. 7585 of 2012 22 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the Constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non- application of mind, hence, it has to be quashed as has been done by the High Court."
24. In view of the above, the irresistible conclusion is that the action of the official respondents in blacklisting the petitioner was not bona fide and is hereby declared illegal. It is also held that the awarding of the contract on Sunday to respondent no. 10 of all the food agencies except, Food Corporation of India was also unjustified.
25. Accordingly, the writ petition is allowed and the order blacklisting the petitioner and forfeiting the security amount is quashed and the petitioner shall continue to execute the contract as per the terms and conditions and respondent no. 2 shall ensure that adequate security is provided by way of police protection to the petitioner to execute the balance of the contract for the rest of the year. The contract awarded to respondent no. 10 by virtue of decision on 22.04.2012 (Annexure R-5) is also quashed. Resultantly, the respondents shall be free to re-tender the labour and cartage contracts for other purchase agencies for Malerkotla center after following due procedure and advertising the said tender, in accordance with law, within a period of two weeks from the date of receipt of certified copy of the order.
CWP No. 7585 of 2012 23
26. The writ petitions are allowed with costs of `25,000 in each case, to be paid by respondent no. 9.
(G.S. Sandhawalia)
Judge
05.07.2012 (Ajay Kumar Mittal)
shivani Judge
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?