M/S Aai Tuljabhawani Transport, ... vs Union Of India, Thr. Secy., ...
2021 Latest Caselaw 14327 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                         WRIT PETITION NO.3857 OF 2021

  M/s Aai Tuljabhawani Transport,
  A partnership firm having its Registered
  office at Near Harba Talim, Parsha khunt,
  Ahmednagar, Maharashtra-414001,
  through its Partner, Gaurav s/o Bhagwan Harba,
  Aged about 33 years, Occ. Business,
  R/o 3215, Near Harba Talim,
  Parsha Khunt, Ahmednagar, Maharashtra-414001                .... PETITIONER

                  // VERSUS //

  1) The Union of India,
  Through its Secretary,
  Ministry of Consumer Affairs,
  Food and Public Distribution, New Delhi.

  2) State of Maharashtra,
  through Secretary, Department of Labour,
  Mantralaya, Mumbai 440 032.

  3) Central Warehouse Corporation
  (A Government of India Undertaking),
  Regional Office, 20, Turbhe Railway Station,
  Washi, New Mumbai - 400703,
  through its Regional Manager, Ph.No.022-27840863,
  [email protected]

  4) Central Warehouse Washim
  C/o Rabia Logistic Pvt. Ltd.
  Pusad -Ansing Road, Dagad Umra Fata,
  Washim - 444505
  Mob. No.9763430060, 8708898787
  Email - [email protected]

  5) Akola-Washim-Buldhana
  District Mathadi Unprotected Labour Board,
  Akola, Through its President, Post held by
  Assistant Labour Commissioner, Akola,
  Shraddha House, Gorakshan Road,
  Near Income Tax Square, Akola.
  Mob. No.07242458560.
  E-mail - [email protected]




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  6) Sublime Warehousing Pvt. Ltd
  Through its Director Kapil Lalsingh Thakur
  Office At: Harekrishna Enclave,
  Opposite HDFC Bank, Shankar Nagar, Nagpur.                   .... RESPONDENTS


  Shri Sunil Manohar, Senior Advocate, assisted by Shri Quazi, Advocate for
  petitioner
  Ms. Munshi, learned Advocate for respondent No.1/Union of India
  Shri S.M Ukey, Addl.GP for the respondent Nos.2/State
  Shri N.C. Phadnis, Advocate for respondent Nos.3 and 4
  Shri S.P. Dharmadhikari, Senior Advocate, assisted by Shri R.R. Dawda,
  Advocate for respondent No.6
  ________________________________________________________________

                               CORAM         : SUNIL B. SHUKRE AND
                                               ANIL S. KILOR, JJ.

DATE : 04th OCTOBER, 2021.

ORAL JUDGMENT: [PER:SUNIL B. SHUKRE, J.]

Heard Shri Sunil Manohar, learned Senior Advocate for the

petitioner, Ms. Munshi, learned counsel for respondent No.1/Union

of India, Shri Ukey, learned Addl. GP for respondent No.2/State,

Shri N.C. Phadnis, learned counsel for respondent Nos.3 and 4 and

Shri S.P. Dharmadhikari, learned Senior Advocate for newly added

respondent No.6.

2. Rule. Rule made returnable forthwith. The matter is heard

finally with the consent of the learned counsel for the parties.

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3. Newly added respondent No.6 is the contractor, who has been

awarded the present contract after the contract awarded to the

petitioner was terminated by the impugned order.

4. The contract awarded to respondent No.6 is the same

contract and as submitted across the bar, this contract would come

to an end in January 2022.

5. At this stage, Shri Manohar, learned Senior Advocate, on

instructions, makes a statement that the petitioner does not claim

any relief against newly added respondent No.6 and the only relief

that the petitioner is pressing for is as regards the impugned

termination order which in the opinion of the petitioner, is a non-

speaking and un-reasoned order and has been passed in violation of

principles of natural justice.

6. We have gone through the show-cause notice and also the

impugned order. We find that there is great substance in the

argument of learned Senior Advocate appearing for the petitioner in

that, the impugned order appears to be un-reasoned and non-

speaking order and that it does not take into consideration the

detailed reply filed to the show-cause notice by the petitioner, in any

manner, except for stating that the reply of the petitioner was not

satisfactory. Besides, as rightly submitted by the learned Senior

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Advocate, no opportunity of hearing was granted to the petitioner,

despite the fact that the same was claimed by the petitioner. An

order of termination of a contract leads to adverse civil

consequences for the contractor, whose contract has been

terminated and therefore, it is a settled law that, before such a

drastic step is taken, appropriate opportunity of hearing is granted

to the person likely to be affected by the decision, which in the

present case has not taken place.

7. Shri N.C. Phadnis, learned counsel for respondent Nos.3 and

4 submits that the alternate remedy is available as the agreement

provides for arbitration clause and the petitioner must be relegated

to the alternate remedy.

8. Shri Manohar, learned Senior Advocate submits that as this

case involves violation of principles of natural justice, the petition

can be entertained by this Court and it must be entertained by this

Court. He relies upon the case of Harbanslal Sahnia and another Vs.

Indian Oil Corpn. Ltd. and others, reported in (2003) 2 SCC 107.

9. In the aforestated case, relied upon by the learned Senior

Advocate for the petitioner, the Apex Court has held that in an

appropriate case, in spite of availability of the alternative remedy,

the High Court may still exercise its writ jurisdiction in at least three

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contingencies: such as, where the relief claimed is for enforcement

of any of the Fundamental Rights; or where there is a failure to

follow the principles of natural justice, or where the orders or

proceedings which are impugned in the petition are wholly without

jurisdiction or where the vires of an Act are challenged. The

relevant observations as they appear in the paragraph No.7 are

reproduced as under:

"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."

10. We have already found that the impugned order is un-

reasoned and has been passed without following principles of

natural justice and therefore, in our considered view, the dispute

involved in this petition is squarely covered by the aforestated case

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of Harbanslal Sahnia (supra) and therefore, we further find no

substance in the objection taken in this regard by the learned

Advocate for respondent Nos.3 and 4.

11. In view of above, the petition is partly allowed. The

impugned order is hereby quashed and set aside.

12. Respondent Nos.3 and 4 are at liberty to take a fresh decision

in the matter in accordance with law, if they choose to do so, in

which case, fresh decision may be taken after giving due

opportunity of hearing to the petitioner.

13. The petition stands dismissed as regards the other relief,

seeking quashing and setting aside E-Tender-2020, dated

23.05.2020, as the same is not pressed.

14. It is made clear that no order against respondent No.6 has

been passed herein above and this order does not deal with the

contract already awarded to respondent No.6 in any manner.

15. Rule accordingly. No costs.

                           JUDGE                                    JUDGE

nd.thawre