WP/4817/2012
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4817 OF 2012
Madhukar Bhikaji Patil,
Age 60 Years, Occ. Business,
R/o Vithal Mandir, Bhusawal,
Taluka Bhusawal, Dist.Jalgaon. ..Petitioner
Versus
1. The Union of India,
Through the Secretary,
Ministry of Railway,
New Delhi.
2. The Principal,
Zonal Railway's Training
Institute, Bhusawal,
District Jalgaon.
3. The President,
Mess Management Committee,
Zonal Railway's Training
Institute,Bhusawal,
District Jalgaon. ..Respondents
...
Shri Mukul S. Kulkarni, Advocate for petitioner &
Shri M. N. Navandar, Advocate for Respondents.
...
CORAM : A.H.JOSHI AND
RAVINDRA V. GHUGE, JJ.
Reserved on: December 9, 2013 Pronounced on: December 12, 2013 JUDGMENT:(Per Ravindra V. Ghuge, J.):-
1. This Court had heard Writ Petition and issued Rule on 25/06/2012 and directed that it be ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 2 heard along with Writ Petition No.8114 of 2010.
However, interim relief was refused.
2. The petitioner assailed the order of refusal of interim relief before the Honourable Supreme Court of India by filing Special Leave Petition (Civil) No.26543 of 2012. Honourable Apex Court disposed of the Special Leave Petition by an order dated 23.8.2012 and expected this Court to take up the hearing of the petition as expeditiously as possible.
3. We have heard the Writ Petition No. 4817/2012 finally, on 9.12.2013.
4. The petitioner is a Supply Contractor.
He does the business of supplying various types of goods. Since 1989 till passing of the impugned order dated 22.9.2009, the petitioner was supplying goods to respondent No.2 - Zonal Railway's Training Institute at Bhusawal, District Jalgaon ("ZRTI" for brevity). Large quantity of food grains and sugar was supplied by the ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 3 petitioner to ZRTI, pursuant to tenders and issuance of orders for supply being a successful bidder.
5. The respondent No.3 Mess Management Committee at Bhusawal, District Jalgaon ("MMC" for brevity) floated a tender by an advertisement dated 26.5.2012, and advertised it. It sought for bids for supplying various goods mentioned therein. Copy of invitation is at Page 32 of the paper book. The petitioner moved an application dated 18.5.2012 to the respondent No.3 seeking a copy of the tender document/form for enabling him to participate.
6. Respondent No.3 informed the petitioner by communication dated 7.6.2012 that the MMC had unanimously decided not to issue the tender forms to the petitioner as he was permanently black-
listed from participating in the tender process of the respondent No.2. It is this letter at page No.36 of the petition paper book that has been impugned by the petitioner in this petition.
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7. The contentions of the petitioner, in raising a challenge to the action of the respondent No.3 dated 7.6.2012 are put forth as under:-
(a) The respondents have committed a gross error in black-listing the petitioner.
(b) Neither any notice was issued nor was the petitioner given an opportunity of hearing before passing the impugned order.
(c) Principles of natural justice have not been adhered to the respondents.
(d) The earlier order of debarring the petitioner, which is subject matter of challenge in Writ Petition No.8114 of 2010 and which has expired, is unjustifiably the basis of the impugned order.
(e) The respondents have acted malafide against the petitioner.
(f) The impugned order of black-listing amounts to penalising the petitioner ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 5 without any opportunity of hearing.
(g) The petitioner cannot be prevented from participating in the tender process.
(h) The petitioner has been a regular supplier for ten years from 1999 till 2009, and termination/withdrawal done by him was/is in accordance to the terms of contract.
8. The respondent No.3 has filed its affidavit-in-reply. The contentions thereof are as follows:-
(a) The petition is not maintainable as the respondent No.3 - MMC is a private body and a Writ cannot be issued against a private body, and is distinct from Railway Administration.
(b) The set of Rules adopted by Railway Board are not applicable to the respondent No.3.
(c) The respondent No.3 - MMC functions on the principle of "No profit no loss".
(d) The respondent No.3 is a private body, which has come into existence after ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 6 the Railway administration took a decision to run the Mess in existence at several Zonal Railway's Training Institutes, through an autonomous body at local level.
(e) The MMC consists of office bearers and members as prescribed in it's Constitution, copy whereof is at page No. 48 of the paper book.
(f) Antecedents of the petitioner have been considered before passing impugned decision.
(g) The decision to permanently black list the petitioner is a conscious decision taken in public interest.
9. At the very outset, we would prefer to deal with the objection raised by the respondent No.3 as regards the maintainability of the petition.
10. The Sum and substance of the contention which is the foundation as regards lack of maintainability of a petition against respondent ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 7 No.3 is that MMC is a private and an independent body.
11. We have perused the policy decision/ directives issued by the Railway Board wherein the Board has prescribed the mode and the manner in which MMC shall be constituted. Thereby the Railway Board has prescribed the Constitution of MMC. What transpires from perusal of said decision is summarized as follows:-
(a) The title is, "Constitution of Mess Committee, ZRTI, C.RLY, Bhusaval".
(b) The stamp and seal of the President is as "President, Mess Management Committee, C.Rly, ZRTI Bhusawal."
(c) The learned counsel for respondent No.3 could not state as to whether the said MMC was a registered body under any Act. There is no contention in the affidavit-in-reply as well, that the MMC is a registered body under any specific Act.
(d) Nevertheless, the Constitution makes ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 8 provisions for appointing a Treasurer, who will maintain the account of the MMC and it's staff and who will transact business with the Bank on behalf of the MMC.
(e) The cheques of it's accounts will be signed by the Secretary and in his absence by the Joint Secretary.
(f) The accounts of the MMC will be audited by the various Auditors nominated by Railway Administration.
(g) Audit reports would be prepared.
(h) Payments of messing bills, honorarium and other expenses incurred by MMC will be made.
(i) There shall be a Procurement and Purchase Committee.
(j) The Tender Committee for the MMC (i) upto Rs.5,00,000/- will be the ACN or nominated officer, ADFM/ZRTI or ADFN/BSL Division and One faculty officer nominated by President. (ii) For above Rs.5,00,000 to Rs.50,00,000/-, the Committee shall comprise of Vice Principal (Convener), DFM/BSL and ::: Downloaded on - 23/12/2013 20:34:45 ::: WP/4817/2012 9 DCM/BSL.
(k) In chapter 2, provisions has been made for dealing with the income of the MMC and the operations of the bank account.
(l) The MMC shall have a permanent account number under the Income Tax Act.
12. From the contents of the Constitution of MMC and those high-lighted herein above, we have noted the manner in which the MMC functions despite that it is not registered under any law, as a legal entity, so as to give it an existence as such. It is a fact that MMC has opened a bank account and operated without any registration and even has obtained a PAN from the Income Tax authorities.
13. We have noticed that some of the contents of the Constitution of the MMC are as follows:-
(a) The Principal of ZRTI C.Rly, Bhusawal would be the ex-officio President of the MMC during the period of his posting at ZRTI.::: Downloaded on - 23/12/2013 20:34:45 :::
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(b) The Vice President would be the Vice Principal or Senior-most Faculty Officer at ZRTI/C.Rly during the period of his posting at ZRTI.
(c) Secretary would be the ACM/Mess Officer of ZRTI.
(d) The Treasurer will be ADFM/SO (Accounts), ZRTI.
14. In the light of the fact situation, emerging before us from the paper book of the petition, we are of the view that the respondent No.3 can not be recornized to be a "private legal entity". It clearly appears to be a camouflage by the respondent No.2 to create a make believe picture that the respondent No.3 is a "private legal entity".
15. As such, we find that the respondent No.3 is an artificial extension of the respondent No.2, which has a direct supervision, control and direction over the respondent No.3.
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16. We do refuse to accept the plea of the respondent since the documents on record do not support the plea on legal and factual basis.
17. The impugned order passed by the respondent No.3 is to be therefore, construed to be a decision taken by and on behalf of the respondent No.2.
18. In view of the foregoing discussion, we conclude that this petition is maintainable as against the respondent No.2.
19. Impugned order reveals that the MMC has taken the decision on the basis of past record of the petitioner. Any prior notice of show cause and any opportunity of hearing was not given to the petitioner before arriving at the said decision. Impugned decision has civil consequences and is punitive and stigmatic in nature and it denies to the opportunity of participating in the process of securing a contract under the department of Government of Union of India.
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20. In the light of the foregoing discussion, the petition deserves to be allowed.
21. In the result, Writ Petition No.4817 of 2012 is allowed. Impugned decision dated 07.06.2012 is quashed and set aside.
22. We have also noted that there was no interim relief granted to the petitioner during pendency of the writ petition. By now, the tender process and duration of supply is a story gone by as admittedly the spell-duration of supply for which invitation for offers was made by MMC has expired. We, therefore, do not wish to interfere in the said contract. Moreover, it cannot be speculated that the petitioner would have been a successful bidder.
23. Undoubtedly, petitioner was denied opportunity to participate and we have found that such action could not have been taken without a show cause. This finding adequately undoes the injustice suffered by the petitioner.
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24. While we have allowed the petition and even recorded a finding that the MMC does not have a separate status as a legal entity, we have not indicated that its Constitution violates in law.
All that, we mean is that it is a formal body. It could be a valid device of decentralization of powers for effective local management. All that, we have found is that it would be amenable to Law and writ jurisdiction.
25. Rule is made absolute in terms of paragraph Nos. 21 to 23. We direct the parties to bear respective costs.
(RAVINDRA V. GHUGE, J.) (A.H.JOSHI, J.) ...
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