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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.3929 OF 2018
Manipal Technologies Ltd. & Anr. ] ... Petitioners
Versus
Union of India & Ors. ] ... Respondents
Mr. Ravindra Kadam, Senior Advocate a/w Mr. Ashish Kamat,
Ms.Tanmai Rajadhyaksha Mr. Anoj Menon, Ms.Pooja Kshirsagar,
Ms.Apoorva Gupta & Mr. Vedant Jalan i/b AZB and Partners for
Petitioners.
Mr.Anil Singh, ASG a/w Mr. Shardul Singh, Mr. Yashodeep Deshmukh
& Ms. Geetika Gandhi i/b V. P. Deshmukh for Respondents.
CORAM :- B. P. DHARMADHIKARI &
SARANG V. KOTWAL, JJ.
DATE :- DECEMBER 11, 2018 P. C. :-
1. As per order of the Hon'ble Apex Court dated 29/11/2018 and orders of this Court dated 07/12/2018, we have heard Mr.Ravindra Kadam, learned Senior Advocate for the Petitioners and Mr.Anil Singh, learned ASG for Respondents.
2. The parties have addressed us at some length on the question of admission of Writ Petition and on interim relief.
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3. Mr. Kadam, learned Senior Advocate for the Petitioners, after narrating history, has urged that though there was time of three months given by this Court on 04/05/2018 to pass a fresh order extending necessary opportunity to the Petitioners, the hearing took place practically at the fag-end of that period and after hearing, the Petitioners were given just a day's time to file written submissions. He claimed that when the Show-Cause Notice was issued on 31/01/2017 and earlier order blacklisting the Petitioners was passed on 23/04/2018, this hearing and time given to the Petitioners shows undue haste and procedural bias as also arbitrariness.
4. He has invited our attention to certain pleadings to urge that hearing was by a panel in which authority passing the impugned order was holding a subordinate position. All officers put questions and the order does not seem to be passed jointly or after joint deliberations. He, therefore, states that the order again is not in accordance with the settled principles and cannot be seen to be passed freely and fairly by a subordinate officer.
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5. The Show-Cause Notice dated 31/01/2017 and reply thereto given on 18/02/2017 is read out along with the impugned order dated 06/11/2018 to demonstrate that the impugned order travels beyond the Show-Cause Notice. He explains that during hearing, certain questions were put to the representative of the Petitioners and hence in written submissions filed thereafter, few facts in relation to the matters not covered by the Show-Cause Notice appear, but then that does not tantamount it extending the Petitioners the effective opportunity.
6. According to him, the impugned order does not consider the reply fully and also considers only part of the written submissions.
7. The Show-Cause Notice does not allege any malice and pointed out only 10 discrepancies without specific facts. The discrepancies are labelled as irregularities while in the impugned order, the same have been elevated as malpractices or misconduct. This malice or intention lacking in Show-Cause Notice has thus infused the impugned order that too without giving the Petitioners necessary opportunity.
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8. He has submitted that in such relationship between the parties when claim is against other, severe consequences follow the higher standard of objective fairness are mandatory and those are not adhered to here. He contends that the Petitioner No.1 - Company has no previous blacklisting history though 90% of its business consists of tendering work. He submits that in this situation, the punishment of blacklisting for five years is grossly disproportionate and arbitrary.
9. To substantiate these contentions, he has taken us through relevant documents on record as also relied upon the following Judgments :
(i) Paragraphs 21 and 22 in Gorkha Security Services Vs. Government (NCT of Delhi) and Others, reported in (2014) 9 Supreme Court Cases 105,
(ii) Paragraph 58 in Sarku Engineering Services Vs. Union of India & Anr., reported in 2016 SCC OnLine Bom 5233,
(iii) Paragraph 79 in Tata Cellular Vs. Union of India, reported in (1994) 6 Supreme Court Cases 651, URS 4 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 ::: 5 1-WPL 3929-18.odt
(iv) Paragraph 24 in National Highways Authority of India Vs. L. N. Malviya Infra Projects Pvt. Ltd. and Anr., reported in 2018 SCC OnLine Delhi 9753,
(v) Page 17 in R Vs. Rochdale Metropolitan Borough Council in 1982 Judgment reported at [1982] 3 All ER 761, and
(vi) Paragraph 11 in a Division Bench Judgment of this Court in Navroz Kershasp Mody Vs. Life Insurance Corporation of India , Mumbai and others reported at 2013 (6) Mh.L.J. 167.
10. In view of the reply placed by the Respondents on record, he, by relying upon the impugned order, contended that finding of guilt reached therein is as a result of cumulative consideration of all misconducts and hence part of the order cannot be severed and treated as good while the other part discarded. Contention is, entire order must be read as one and must fall or stand together. He has, for this purpose, relied upon a view in para 11-070 under the head 'Oppressive Decisions' in book of De Smith's Judicial Review, 7 th Edition.
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11. As against this, Mr. Anil Singh, learned ASG appearing for the Respondents, submitted that the exam related work including holding of examination was entrusted to the Petitioners for filling in 2434 posts of Postman / Male Guards and Multi Task Specialists. The Petitioners accepted the responsibility and was to offer final result after completing the examination in hassle-free manner.
12. He states that the Petitioners have proceeded on the basis of 8 boxes for writing roll numbers on OMR while the actual roll numbers assigned to the candidates were of 9 digits. The candidates, therefore, wrote first digit or last digit in a block manually carved out by them on OMR sheets. The OMR sheet, for online examination needed the similar number to be marked in the shape of bubble below the digital roll number in a provided space. There again, because of this difficulty, the candidates have put an additional bubble in the column as per their choice thereby making it impossible for software to understand the same. He contends that this has seriously compromised the examination process.
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13. He has also pointed out to us finding in the impugned order and in reply to urge that in the process, the candidates with similar mobile numbers or email ID or residential address have all scored same marks. He states that as recruitment was in this part of the country, knowledge of Marathi or Konkani as regional languages was essential. After the candidates reported, it was found that they do not have any knowledge of these languages. He submits that from area like Hissar or Karnal, the candidates having knowledge of Marathi or Konkani got selected while no candidate from the regions like Nagpur or Amravati has been selected. He want this Court to look into the findings reached in this respect even by the learned Single Judge of this Court while dealing with the Anticipatory Bail Application.
14. He invites out attention to the Show-Cause Notice and states that vital discrepancies which materially impact the examination, are mentioned in it and the Petitioners were given opportunity also in relation thereto. The impugned order has been passed after giving Petitioners opportunity on those points. He, therefore, argues that in such situation, the principle that the entire URS 7 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 ::: 8 1-WPL 3929-18.odt order must stand or fall at it is, cannot be applied as the discrepancies mentioned in the Show-Cause Notice clearly show that transparency of examination process has been compromised, and it is sufficient to sustain the blacklisting.
15. He further states that as per the contract, the work could not have been assigned to any sub-contractor and in the present matter, when the Petitioners have assigned the entire work to a sub- contractor by name Chanakya Software Services (for short, 'CSS'), the examination itself becomes unacceptable. He submits that in tender process, the bid of the Petitioners was found lowest while that of Chanakya Software Services was at L2. He invites our attention to the co-called 'Agreement' between the Petitioners and CSS to demonstrate that out of Rs.92 per examinee payable to the Petitioners by the Respondents, amount of Rs.43.26 has been made over by the Petitioners to the CSS.
16. Because of the contention of the Petitioners that the sub- letting of work to CSS was within knowledge of the Respondents and they did not object to it, he points out that the draft agreement URS 8 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 ::: 9 1-WPL 3929-18.odt forwarded to the Respondents does not contain name of M/s. Chanakya Software Services and that space is left blank. This draft is also not consented to by the Respondents. He further states that contention that Sangram Barge has entered into correspondence with the Respondents on behalf of the CSS, is also not borne out from record and the Respondents may have corresponded with Santosh Barge as representative of the Petitioners only.
17. To drive home the contentions raised by him, he has relied upon the following Judgments :
(i) Paragraph 7 in Railway Board Representing the Union of India Vs. Niranjan Singh, reported in 1969 (1) Supreme Court Cases 502,
(ii) Paragraph 19 in Swarn Singh and Another Vs. State of Punjab and Others, reported in (1976) 2 Supreme Court Cases 868,
(iii) Paragraph 94 in Susme Builders Private Limited Vs. Chief Executive Officer, Slum Rehabilitation Authority and Others, reported in 2014 SCC OnLine Bom 4822 and URS 9 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 ::: 10 1-WPL 3929-18.odt
(iv) Paragraph 23 in Aligarh Muslim University and Others Vs. Mansoor Ali Khan, reported in (2000) 7 Supreme Court Cases 529.
18. He also distinguished the Judgment reported in (2014) 9 Supreme Court Cases 105 relied upon by Mr. Kadam supra to show that the observations in para 22 there reveal that, in facts before the Hon'ble Apex Court, the contents of Show-Cause Notice were found not adequate.
19. He explains that because of these irregularities, the entire exercise initiated in 2014 and completed in 2015, has been cancelled. Hundreds of candidates have filed petitions either in High Court or in CAT and the Respondents are required to spend unnecessarily for it. Fresh recruitment has become necessary. All this, therefore, has resulted in loss to public revenue.
20. In reply arguments, learned Senior Advocate Mr. Kadam has relied on paragraph 79 in the case of Tata Cellular Vs. Union of India reported in (1994) 6 Supreme Court Cases 651 to show the URS 10 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 ::: 11 1-WPL 3929-18.odt situation in which this Court can intervene in writ jurisdiction. He further submits that the precedents cited by Respondents on severability of order arise out of service law where punishment is in domain of employer and hence finding on one charge has been held sufficient to sustain it. In the present matter when both the parties have a contractual arrangement, the higher standard, as observed by the Division Bench of this Court, needs to be adhered to.
21. He, therefore, submits that without prejudice to the contentions raised supra and in alternative the Petitioners are ready and willing to submit an undertaking to this Court that they shall not undertake any examination work or any examination related work till the petition is finally decided. However, they should be left free to bid for other tenders.
22. We need not, at this stage, record finding on all the contentions noted by us supra. The Petitioners expressly, in para 54 and in grounds of Writ Petition, have pointed out that hearing was conducted by a panel and superior officers participated in it. Though in reply the Respondents have dealt with this aspect in paragraphs 33 and 34, we find the reply not that specific.
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23. We find that arguable points are involved. Therefore,
Rule.
24. Insofar as the prayer for interim relief is concerned, we find substance in the contentions of learned ASG Mr. Singh that when the Petitioners were aware of space of 8 blocks reserved for writing roll numbers by a candidate, assigning a roll number of 9 digits was itself unwarranted. It appears that the candidates in excess of five lakhs appeared for the examination and therefore, the roll numbers running into 8 digits only could have been given to all of them.
25. However, considering other contentions raised, we are inclined to grant limited interim relief as prayed for in alternative by Mr.Kadam. We direct the Petitioners to file an undertaking in the Registry of this Court that they shall not either directly or indirectly engage themselves in any examination or exam related tender. If such an undertaking is filed within one week, the order dated 06/11/2018 to the extent it blacklists the Petitioners for the other tender work, shall remain stayed during pendency of this petition.
URS 12 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 ::: 13 1-WPL 3929-18.odt 26. Mr. Singh waives notice of Rule. (SARANG V. KOTWAL, J.) (B. P. DHARMADHIKARI, J.) URS 13 of 13 ::: Uploaded on - 13/12/2018 ::: Downloaded on - 27/12/2018 05:15:06 :::