Delhi High Court
M/S S. Soni & Co. vs New India Assurance Co. And Anr. on 26 May, 2015
Author: Rajiv Shakdher
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2921/2015 and CM No.5232/2015
M/S S. SONI & CO ..... Petitioner
Through: Mr. Sachin Datta, Sr. Advocate with Mr.
Dinesh Sharma and Ms. Ritika Jhurani, Advocates
versus
NEW INDIA ASSURANCE CO. AND ANR. ..... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1
Mr. Nitya Sharma for Mr. Amit Mahajan, CGSC
for R-2
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 26.05.2015
1. Mr. Datta, the learned senior counsel for the petitioner confines his
challenge to the communication dated 09.03.2015, to one singular ground,
which is, that failure to issue show cause notice prior to the issuance of the
said communication, has rendered it unsustainable in law.
1.1 To be noted, the petitioner claims that he was empanelled by
respondent no.1, in the list maintained by it, for Marine Cargo Surveyors.
1.2 It is contended that on account of a vigilance enquiry carried out by
respondent no.1's own department, to which, the petitioner, was not a party,
the impugned communication, got issued.
1.3 The petitioner says that the impugned communication is stigmatic
and its emanation is in complete breach of the principles of natural justice.
2. In the counter affidavit, the stand taken by respondent no.1 in so far as
this issue is concerned, according to Mr. Seth, the learned counsel appearing
for respondent no.1, is articulated in paragraph 8. For the sake of
W.P.(C) 2921/2015 page 1 of 4
convenience, the said paragraph is extracted hereinbelow :-
"..That the deponent submits that it was purely an
administrative decision of the competent authority of
respondent No.1 based on the advice and instructions received
from the Vigilance Department which was communicated to the
concerned offices by email dated 09.03.2015. But the petitioner
managed to obtain a copy of the said email dated 09.03.2015
and also sent a detailed representation vide email dated
13.03.2015 disputing the aforesaid decision of respondent No.1.
On receipt of the representation dated 13.03.2015 from the
petitioner, the same was referred to the Head Office level
Committee formed by the competent authority to examine and
recommend appropriate action in the matter. But the petitioner
without waiting for the decision of the said Committee on the
said representation of the petitioner, filed the present writ
petition before the Hon'ble High Court on 19.03.2015.."
2.1 It is, therefore, the contention of Mr. Seth that it was in effect an
internal communication which the petitioner has somehow got access to, and
therefore, no writ can be maintained.
2.2 In order to appreciate Mr Seth's submission, it would be useful to
extract the communication itself.
"...Dear Sirs/Madams,
We have been informed by the Vigilance Dept. Head Office
that their investigations have revealed serious irregularities
and manipulations in the surveys and loss assessments of the
marine cargo losses done by the surveyors M/s. Soni & Co.,
New Delhi. They have advised us to take appropriate action
to de-panel the surveyors from the list of HO and all ROs.
We, therefore, request you to de-panel the surveyors M/s.
Soni & Co., New Delhi from your list of the marine cargo
surveyors and ensure that no marine cargo survey or any
other work related to the marine cargo department is given to
these surveyors. Please also arrange to advise all operating
offices under your control accordingly.
W.P.(C) 2921/2015 page 2 of 4
Regards,
Vikas Patil,
Dy. Manager,
MCTD, H.O.."
2.3 A perusal of the aforesaid communication would show that it has
emanated from the head office of respondent no.1 and has been sent to all
Regional offices and branch offices. By this communication, a direction is
issued by the Head Quarter to, not allocate, any work to the petitioner
pertaining to Marine Cargo Survey or any other work pertaining to Marine
Cargo Department. Furthermore, an explicit directive was issued to de-
panel the petitioner.
2.4 Undoubtedly, such a directive of the respondent entails civil
consequences for the petitioner, not only qua its dealings with respondent
no.1, but it could effect its business relations, perhaps, with other
organisations.
2.5 Therefore, the contention of Mr. Seth that it is an internal
communication which cannot impact the petitioner, is according to me, an
argument which cannot be accepted.
2.6 Both, in the counter affidavit as also, during the course of arguments,
it has been conceded on behalf of respondent no.1 that neither any show
cause notice nor any hearing was accorded to the petitioner prior to the
issuance of the impugned communication.
3. Mr. Seth has said that since a representation as received from the
petitioner, which is dated 13.03.2015, a "head office level committee" (in
short the committee) has been constituted to examine the representation of
the petitioner.
W.P.(C) 2921/2015 page 3 of 4
4. In my opinion, non-issuance of a show cause notice and failure to
accord a hearing to the petitioner has rendered the impugned communication
untenable in law.
4.1 It is not the case of respondent no.1 that the situation was emergent,
and therefore, a pre-decisional hearing could not have been given to the
petitioner. The facts of this case reveal that the petitioner is only entitled to
empanelment. The empanelment, by itself, cannot give access to work. In
these circumstances, the least, that respondent no.1 could have done is, to
put the petitioner to notice prior to issuance of the impugned
communication.
5. Having regard to the above, the impugned communication is set aside.
Since, the representation of the petitioner is pending before the
aforementioned committee, the said committee will consider the same and
pass a reasoned order. A copy of the reasoned order will be supplied to the
petitioner. The committee would also seek the presence of the petitioner,
and accord, an opportunity of hearing to the petitioner.
6. Consequently, the captioned petition and the pending application are
disposed of in terms of the aforementioned directions.
RAJIV SHAKDHER, J
MAY 26, 2015
yg
W.P.(C) 2921/2015 page 4 of 4
