A.R. Rail Vikas Services Pvt. ... vs Union Of India
2013 Latest Caselaw 224 Bom

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dss




                                                                              
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                      
                    WRIT PETITION (L) NO.2445 OF 2013

      A.R. Rail Vikas Services Pvt. Limited       ]
      Having its registered office at 311/331,    ]




                                                     
      A.R.House, RCS /48, Gorai-II,               ]
      Borivali (W), Mumbai-400 092                ]        ..      Petitioner
                   Vs.
      1. Union of India                           ]
      Through its Branch Secretariat, Mumbai      ]




                                            
      2nd Floor, Aaykar Bhavan Annexe,            ]
      New Marine Lines, Mumbai-400 020
                            ig                    ]

      2. Ministry of Railways                     ]
      through its Secretary, having his office    ]
                          
      at Rail Bhavan, New Delhi 110011            ]

      3. General Manager, Central Railways        ]
      having his office at Chattrapati Shivaji    ]
      Terminus Building, Mumbai-400 001           ]        ..      Respondents
        


                                      ***
     



      Mr.Yogendra Singh i/b. Auris Legal for the Petitioner.
      Mr.T.J. Pandian for Respondents.
                                      ***





                               CORAM :       V. M. KANADE, AND
                                             M. S. SONAK, JJ.

                               DATE      :   NOVEMBER 28, 2013.

      JUDGMENT :- (PER M.S.SONAK, J.)





      1]    This petition is directed against the communication dated 13 th

September 2013 issued by and on behalf of the Respondents down

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grading the credentials of the Petitioner alongwith its Allied/Sister

concerns/Partners for awarding work near running lines in Central

Railway (except Stabling Siding work etc. where work near running

line is not involved) for a period of six months.

2] Mr.Singh, learned counsel for the Petitioner has impugned the

aforesaid communication dated 13th September 2913 mainly on the

following two grounds:ig

(a) That there has been no compliance with

principles of natural justice and fair play prior to

issuance of the impugned communication; and

(b) That on merits there was absolutely no

justification for issuance of the impugned

communication. Particularly, as the Petitioner was not

at all involved with the work at Kurla site where the

incident leading to the issuance of impugned

communication is alleged to have been taken place.

3] There is no dispute that the Petitioner was awarded contract

bearing Contract Agreement No.CR/BB/MTP/S&T/C/S/05/2007

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dated 4th August 2008 for executing the works of indoor and outdoor

signaling and telecommunication including supply of the material for

the work of provision of panel interlocking (route setting type) at

Thakurli with alterations at Kurla, Ambernath, Vangni and Karjat

stations in connection with provisions of stabling siding in Mumbai

Division of Central Railway.

4] On 18th April 2012 at 00.02 hours a sudden and severe surge

of electricity resulted into extensive fire damage at both Kurla and

Vidyavihar RRI, which resulted in disruption to Suburban and Mail

Express Train between CSTM and Kalyan, apart from extensive

damage to railway property.

5] By notice dated 28th June 2012, the Petitioner was appraised

of the incident as also proposal to down grade credentials and

offered an opportunity to make representation to the authorities

within 10 days from the receipt of notice, failing which it was stated

that ex-parte decision will be taken in the matter.

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6] The Petitioner represented on 11th July 2012, pointing out that

they were in no manner concerned with the incident at Kurla. The

Petitioner invited attention to communication dated 6 th May 2011, by

which the Petitioner had recorded that the work in pursuance of

contract agreement dated 4th August 2008 had been successfully

completed and commissioned in so far as Thakurli, Vangni, Karjat

and Ambernath sites are concerned. In so far as Kurla site is

concerned, the same was neither ready, nor made available to the

Petitioner within the validity of the contract period. Therefore, by the

said communication dated 6th May 2011, the Petitioner had already

expressed inability to continue with a contract and requested to short

close the contract by making payments as per the final bill.

The Petitioner in the communication dated 6 th May 2011 also

made the following statement:

"work of Kurla Stabling lines (2 Nos.) will be done free of

costs as and when the site will be ready".

7] The record reveals that the Respondents obtained an inquiry

report into the incident of 18th April 2012 from the CSO, CSE and

CEDE, high ranking officials, which was the basis for issuance of

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notice dated 28th June 2012. Yet another show cause notice dated

16th July 2013 came to be issued to the Petitioner proposing

'banning of business' or 'down grading of credentials' so as to render

the Petitioner unfit to work any where near the running lines.

8] The Petitioner submitted response dated 12th August 2012

reiterating that they were not concerned with the Kurla incident and

the persons referred to in the inquiry report were not at all the

employees of the Petitioner.

9] In the meanwhile as the tenders submitted by the Petitioner for

fresh work were not being considered by the Respondents, the

Petitioner preferred W.P.(L) No.490 of 2013 before this Court. The

said petition was disposed of by judgment and order dated 13 th

August 2013 with the following directions:

(i) The respondents will give the petitioner an opportunity of personal hearing and thereafter take a decision on the show cause notice.

(ii) Till final decision is taken by the Competent

Authority on the show cause notice, the respondents will not prevent the petitioner from submitting any tender in response to the tender notice, which might have been issued or will be issued, and the concerned Authority will also consider the petitioner's tender in response to such

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tender notice.

(iii) In case the decision of the respondent Authority on the show cause notice is adverse to the petitioner, the petitioner will be at liberty to challenge the same

before the appropriate forum and the decision will not be implemented for a period of 2 weeks from the date of communication of the decision.

10] The material on record establishes that the representative of

the Petitioner was afforded opportunity of personal hearing. The

Petitioner also filed written submissions in response to the show

cause notices. Only thereafter, the impugned communication dated

13th September 2013 came to be issued downgrading the credentials

of the Petitioner for a period of six months.

11] In the light of the aforesaid, the contention that there was no

compliance with principles of natural justice and fair play is clearly

unfounded. The Petitioner was furnished show cause notice which

made reference to the charge as also the material on basis of which

the charge came to be levelled. The subsequent show cause notice

also indicated the proposed punitive action. Out of the penalties

proposed, the lighter of the two and that too restricted for a period of

six months came to be ultimately imposed. The Petitioner was

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afforded opportunity of personal hearing, submitting replies as well

as written submissions. The contention that there was no compliance

with principles of natural justice and fair play therefore fails.

12] As regards the second contention based upon the merits, at

the outset it needs to be stated that a Writ Court is basically

concerned with the decision making process and not the merits of

the decision, unless the same is established as being ex-facie,

absurd or unreasonable. Any adjudication upon merits of the

decision would involve seriously disputed questions of facts, which

cannot be gone into in exercise of extra ordinary jurisdiction under

Article 226 of the Constitution of India.

13] It is the case of the Respondents that the Petitioner consistent

with his offer in the communication dated 6 th May 2011 was indeed

involved with the work at Kurla when the incident of 18 th April 2012

took place. The Petitioner relying upon the very same

communication dated 6th May 2011 states that their contract with the

Respondents had been short closed and there is no material from

which it could be established that the Petitioner had resumed work at

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the Kurla site. The Petitioner also contended that the persons

referred to in the report and on account of whose negligence the

incident of 18th April 2012 may have taken place were not at all the

employees of the Petitioner. All these disputed questions of fact

cannot be raised or adjudicated in proceedings under Article 226 of

the Constitution of India.

14] In the contract agreement dated 4th August 2008 between the

Petitioner and the Respondents, there is a clause which provides for

settlement of disputes by resort to arbitration under the provisions of

Arbitration and Conciliation Act, 1996. Learned counsel for the

Petitioner relying upon the ruling of the Supreme Court in the case of

Union of India and ors. vs. Tantia Construction Pvt. Ltd. 1, however,

contends that the existence of arbitration clause in the agreement

between the parties does not bar entertaining of a writ petition under

Article 226 of the Constitution of India. It is true that mere existence

of arbitration clause does not fetter the jurisdiction of a writ Court

under Article 226 of the Constitution of India. In that sense, the

existence of an alternate and efficacious remedy is really not a bar to

1 (2011) 5 Supreme Court Cases 697

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exercise jurisdiction under Article 226 of the Constitution of India, but

the same is a self imposed restraint, particularly in a matter involving

disputed questions of fact, which cannot be effectively adjudicated in

summary proceedings under Article 226 of the Constitution of India.

Any observation made by us on the merits of the decision is likely to

prejudice the Petitioner, in case it chooses to invoke the arbitration

clause or take up any other proceedings as against the impugned

communication. Therefore, we refrain from making any observations

in the matter.

15] Suffice to state that there is no serious infirmity in the decision

making process. There has been adequate compliance with

principles of natural justice and fair play. Ultimate penalty imposed

does not appear to be shockingly disproportionate. In fact, penalty

proposed was baning of business or debarring the Petitioner from

working close to railway lines perhaps for all times to come. Instead

the lighter of the two penalties and that too restricted for a period of

six months came to be imposed upon the Petitioner.

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16] In the circumstances, we deem it inappropriate to interfere with

the impugned communication in exercise of writ jurisdiction. We

make it clear that the observations made in this judgment shall not

preclude the Petitioner from invoking remedies inter alia under the

Arbitration and Conciliation Act, 1996 or any other remedies as may

be available to the Petitioner.

17] The petition is, accordingly, dismissed. However, there shall

be no order as to costs.

    [M. S. SONAK, J.]                                   [V. M. KANADE, J.]
      


    Dinesh
   






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