Permanent Employees Union & Ors vs Union Of India & Ors
2021 Latest Caselaw 736 Cal

29.1.2021               WPA 8958 of 2020
 sl.28,ct.7
     sk          Durgapur Ferro Scrap Nigam Limited
                 Permanent Employees Union & Ors.
                             -vs-
                     Union of India & Ors.

              Mr. Anindya Kumar Mitra, Sr. Adv.
              Mr. Biswaroop Bhattacharyya
              Mr. Jishnu Chowdhury
              Mr. Deepan Kumar Sarkar
              Mr. Ratul Das
              Mr. Souradeep Banerjee
                        ...for the petitioners.

              Mr. Y.J.Dastoor, Sr.Adv.
              Mr. Siddhartha Lahiri
              Mr. Ravi Ranjan Kumar
                   ...for the respondent nos. 1 & 2.

Mr. Ranjan Bachwat, Sr. Adv.

Mr. Aritra Basu Ms. Pallavi Gogdi ...for the respondent nos.5 & 6.

Mr. Mitra, learned Senior Counsel mentioned

this matter, praying for taking it up out of turn as the

last date of submission of offer pursuant to the tender

floated by Steel Authority of India Limited (for short

'SAIL') is 02-02-2021 and the date of opening of

quotation is 03-02-2021. Considering the urgency

involved in the matter, the same is taken up for

consideration out of turn.

Affidavit of service filed in Court today be kept

with the records. In spite of service, none appears for

the respondent nos. 3, 4 and 7.

On the prayer of Mr. Mitra, learned Senior

Counsel leave is granted to the writ petitioners to add

Steel Authority of India Limited as a party respondent

in the instant writ petition.

On the prayer of Mr. Mitra, leave is granted to

the writ petitioners to file the supplementary affidavits,

copies of which have already been served upon the

respondents.

It is the case of the writ petitioners that Ferro

Scrap Nigam Limited (for short 'FSNL') is specialized in

hotslag handling, scrap recovery and processing and

provides diverse services to Steel Plants.

The writ petitioners further claimed that work-

orders were issued on nomination basis in favour of

FSNL being the respondent no. 5 herein by various

steel plants under the control of the Ministry of Steel,

Union of India as per the policy decision.

The writ petitioners have challenged the decision

taken in the meeting of the respondent no. 7 held on

September 4, 2020, whereby a decision has been

taken to switch over to competitive bidding process

instead of nomination to FSNL.

Mr. Mitra, learned senior Counsel refers to an

order dated August 28, 2002 issued by the

Government of India, Ministry of Steel and submits

that a decision was taken that FSNL, a PSU under the

Ministry of Steel, will continue to be awarded the work

of metal scrap recovery and other allied work like slag

processing etc. on nomination basis by other PSUs

under the Ministry of Steel. He draws the attention of

the Court to the order dated 01.04.2019 passed by the

Hon'ble Division Bench of this Court in FMA No. 265

of 2019 and submits that the Hon'ble Division Bench

observed that the existing system of awarding work to

FSNL on nomination basis shall continue till the

disposal of the appeal.

On a query of this Court, Mr. Mitra submits that

the said appeal is still pending. Mr. Mitra refers to the

minutes of the meeting of the Inter-Ministerial Group

held on September 4, 2020 and submits that the said

decision is contrary to the long standing policy

decision of the Union of India to award contracts in

favour of FSNL on nomination basis. He also submits

that the said decision is also in violation of the order

passed by the Hon'ble Division Bench in FMA No. 265

of 2019.

Mr. Mitra refers to the documents annexed to

the supplementary affidavit and submits that the Steel

Authority of India Limited has floated a tender in

violation of the long-standing policy decision of the

Government of India. Mr. Mitra prays for an interim

order.

The learned Additional Solicitor General draws

the attention of the Court to the order dated January

22, 2021 and submits that his name along with the

names of his assisting counsel were wrongly recorded

indicating that they represented the respondent nos.

3,4 & 7 also. He submits that he along with his

assisting Counsels are appearing only for the

respondent nos. 1 and 2. Let such mistake in the

order dated 22.01.2021 be corrected.

Mr. Dastoor, learned Additional Solicitor General

draws the attention of the Court to the order dated

April 1, 2019 passed in FMA No. 265 of 2019 and

submits that SAIL preferred the appeal and the

Hon'ble Division Bench passed an order on such

appeal that the existing system of awarding work to

FSNL on nomination basis shall continue till the

disposal of the appeal. He does not dispute that such

appeal is still pending. Mr. Dastoor, in his usual

fairness, submits that the Steel Authority of India

Limited could not have floated such a tender in

violation of the order passed by the Hon'ble Division

Bench. He does not also oppose the prayer made by

Mr. Mitra for passing of an interim order.

Mr. Bachawat, learned senior Counsel appears

for the respondent no. 5 and 6 and also placed his

reliance upon the judgment of the Hon'ble Division

Bench in FMA No. 265 of 2019. He submits that there

exists a policy of the Government to award works

contract to FSNL on nomination basis.

I have heard the learned Advocates for the

respective parties and have perused the materials on

record.

It is recorded in the minutes of the meeting of

the Inter-Ministerial Group (IMG) i.e. the respondent

no. 7 that the present works contract between SAIL

and FSNL is valid till March 2021. Furthermore, the

order dated 01.04.2019 was passed by the Hon'ble

Division Bench in an appeal being FMA 265 of 2019

preferred by SAIL directing that the existing system of

awarding work to Ferro i.e. FSNL on nomination basis

shall continue till the disposal of the appeal. The said

order is still subsisting, as uniformly submitted by the

learned Advocates for the parties. Thus, floating a

tender by SAIL is in breach of the contract, which is

valid till March 2021, and the same is also in violation

of the order dated 01-04-2019.

The learned Solicitor General representing the

Union of India did not dispute that the work order was

issued in favour of FSNL in terms of the policy of the

Government of India as well as in accordance with the

order passed by the Hon'ble Division Bench.

From the notice issued by the SAIL inviting

offers it is evident that the last date of submission of

offers is February 02,2021 and the date of opening of

quotation is February 3, 2021. As such there is

urgency in the instant matter.

The appeal is pending. It is not disputed by the

Union of India that work orders were issued in favour

of FSNL on nomination basis. The contract between

SAIL and FSNL is valid till March 2021. As such there

shall be an interim order directing that the system of

awarding work to FSNL on nomination basis shall not

be disturbed for a period of six weeks from date or

until further orders whichever is earlier.

Let affidavit-in-opposition be filed within a

period of three weeks from date. Reply thereto, if any,

be filed within a week thereafter.

Liberty to mention before the appropriate bench

after the expiry of the period for exchange of affidavits.

The petitioners shall serve a copy of the writ

petition, supplementary affidavits as well as the copy

of the order upon the added respondent by 2nd

February, 2021.

( Hiranmay Bhattacharyya,J)