Madhukar Bhikaji Patil vs The Union Of India
2013 Latest Caselaw 331 Bom

                                                           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

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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

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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

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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

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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

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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

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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

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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.

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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.)

...

khs/Dec.2013/WP4817_12