Manipal Technologies Ltd. And Anr vs Union Of India And 3 Ors
2018 Latest Caselaw 1253 Bom

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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,

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(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

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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

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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

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(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

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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.

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26.            Mr. Singh waives notice of Rule.




(SARANG V. KOTWAL, J.)                      (B. P. DHARMADHIKARI, J.)




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