WP(C)/5404/2020
2021 Latest Caselaw 2448 Gua

GAHC010175692020




                    THE GAUHATI HIGH COURT
          (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

                                         WP(C) No. 5404/2020

                      Sri Saurav Jyoti Baruah,
                      S/o Late Kuled Baruah,
                      Proprietor of M/s Saurav Jyoti Baruah
                      having its office at Old Amulapatty,
                      P.O., P.S. and District - Sivasagar, Assam,
                      Pin - 785640
                                                                        ............................Petitioner

                      -Versus-

                   1. Oil and Natural Gas Corporation Ltd.
                       A Government of India Enterprise Duly Incorporated Under
                      The Companies Act, 1956
                      Having its Registered Office
                      at Pandit Deen Dayal Upadhyaya Urja Bhavan,
                      5, Nelson Mandela Marg, Vasanta Kunj,
                      New Delhi 110070 and Regional Office at Nazira
                      In The District of Sivasagar, Assam
                      Represented by the Executive Director,
                      Eastern Region, ONGCL, Nazira, Assam, Pin - 785684.

                   2. The Chief General Manager (MM)
                      Logistics Contract Cell,
                      Central Stores, Sivasagar, Assam.

                   3. The General Manager (MM)
                      Logistics Contract Cell,
                      Central Stores, Sivasagar, Assam.

                   4. The General Manager
                      I/C Logistics Logistics Section,
                      Assam Assets, ONGC, Sivasagar, Pin - 785640.


                                                                        ...................Respondents

Advocates :

              For the petitioner                     : Mr. P.J. Saikia, Advocate
              For the Respondents                    : Mr. G.N. Sahewalla, Senior Advocate
                                                     : Mr. N.A. Singh, Advocate
              Date of Hearing                        : 26.08.2021
              Date of Judgment                       : 07.10.2021


                                  BEFORE
                   HON'BLE MR. JUSTICE MANISH CHOUDHURY
                            JUDGMENT & ORDER

The writ petition invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India has been preferred by the petitioner seeking setting aside of a letter dated 26.05.2020 and a letter dated 27.05.2020 issued by the respondent no. 2 and the respondent no. 4 respectively, who are officials of the respondent no. 1 i.e. Oil and Natural Gas Corporation Ltd. ['the ONGC' and/or 'the Corporation', for short]. By the letter dated 26.05.2020, the respondent ONGC authorities had withdrawn all the jobs awarded to the petitioner under a Contract Agreement dated 13.03.2020 with immediate effect and till further orders. By the letter dated 27.05.2020, the petitioner was intimated that the two water tankers belonging to him, would be withdrawn w.e.f. 28.05.2020 in consequence of the letter dated 26.05.2020.

2. In order to appreciate the issues raised in this writ petition, a brief narration of the events leading to the issuance of the afore-stated two impugned letters appears necessary.

2.1. The petitioner carries on business in the name of his sole proprietorship concern, M/s Saurav Jyoti Baruah. The petitioner stated to have executed a number of contract works under the respondent Corporation. The respondent Corporation in order to hire 9 KL water tanker services for carrying out its operation, floated an e-Tender and the petitioner participated in the said competitive bidding process. After evaluation of the techno-commercial bids and the price bids, the petitioner was informed vide a Notification of Award [NoA] dated 28.11.2019

that he was selected for hiring of 2 [two] nos. of 9 KL water tanker services for a period of 3 [three] years. It was further intimated that the contract would be valid for a period of 3 [three] years from the date of deployment of water tankers on duty after satisfactory inspection and the mobilization period was 40 [forty] days from the date of issuance of the NoA.

2.2. Accordingly, the petitioner placed 2 [two] nos. of water tankers before the respondent Corporation on 23.12.2019 for deployment. After inspection, the respondent authorities had accepted the two water tankers for deployment. The two water tankers had thereafter, been deployed by the respondent authorities w.e.f. 26.12.2019. A Contract Agreement dated 13.03.2020 was executed between the respondent Corporation and the petitioner incorporating the terms and conditions of the contract.

2.3. It is the case of the petitioner that he was earlier awarded a contract of hiring of 1 [one] drinking water tanker for a period of 3 [three] years w.e.f. 28.12.2016 vide NoA dated 13.10.2016 pursuant to a bidding process floated in the year 2016. A Contract Agreement was also executed between the parties in respect of the said contract work awarded vide NoA dated 13.10.2016. According to the petitioner, he submitted a bill dated 06.03.2020 in terms of the fair wage policy contained in the said Contract Agreement. The said bill was kept pending at the table of one particular official of the respondent Corporation. The petitioner and his representatives made regular visits to the said official for requesting him to process the bill expeditiously. It has been projected by the petitioner that the said official had delayed the processing of the bill under one pretext or another and when the petitioner visited the said official on 18.03.2020, the said official demanded some amount as gratification for passing the bill. With regard to the said issue, an altercation took place between the petitioner and the said official of the respondent Corporation.

2.4. With regard to the said incident of altercation, the petitioner stated to have informed the Contractors' Association of which he is a member, immediately on 18.03.2020 and the said Association lodged a complaint before the respondent no. 3 against the particular official of the respondent Corporation. On the other hand, the said official also informed his higher authorities on 18.03.2020 about the incident with the allegation that he was assaulted by the

petitioner for not clearing the bill. The respondent ONGC authorities had also informed the Commandant, APBN unit, ONGC at Sivasagar in writing on 18.03.2020 alleging manhandling of the official and requesting to ensure adequate security in and around the ONGC premises. The respondent no. 4 on 19.03.2020 also wrote to the Superintendent of Police, Sivasagar intimating about the incident of alleged manhandling of the official during the course of discharging his official duties by the petitioner on 18.03.2020 with the request to take necessary action. A copy of the complaint filed by the said official was also forwarded therewith. The Superintendent of Police, Sivasagar had, in turn, forwarded the same to the Officer In-Charge, Sivasagar Police Station vide his letter dated 20.03.2020 for taking necessary action as per law. Pursuant thereto, a case being Sivasagar Police Station Case no. 365/2020, came to be registered under Sections 448/323/506/353, Indian Penal Code [IPC]. During the course of investigation, the police arrested the petitioner and after interrogation, he was released on bail.

2.5. Thereafter, a show cause notice dated 23.03.2020, issued under the hand of the respondent no. 2, was served upon the petitioner asking him to show cause on or before 02.04.2020 as to why the Contract Agreement dated 13.03.2020 should not be terminated for violation of Clause no. 12.0 read with Clause no. 18.4 of the Contract Agreement. On receipt of the said show cause notice, the petitioner submitted his reply in writing on 01.04.2020. By the impugned letter dated 26.05.2020, it was informed to the petitioner that his reply dated 01.04.2020 was examined at the end of the respondent Corporation and his explanations/counter allegations were found to be in the nature of afterthought in order to cover up his own criminal acts. It was further informed that since the police case was under investigation, the respondent Corporation was not terminating the contract but considering the security and safety concerns of the employees of the respondent Corporation, the job awarded to the petitioner under the Contract Agreement dated 13.03.2020 had been withdrawn with immediate effect and till further orders by invoking Clause 3.4 of the Contract Agreement. By the impugned letter dated 27.05.2020, the petitioner was informed that his two water tankers deployed for services under the Contract Agreement dated 13.03.2020 stood withdrawn w.e.f. 28.05.2020.

3. Heard Mr. P.J. Saikia, learned counsel for the petitioner and Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. N.A. Singh, learned counsel appearing on behalf of the respondent ONGC authorities.

4. Mr. P.J. Saikia, learned counsel for the petitioner has submitted that after receipt of the NoA dated 28.11.2019 whereby he was given 40 [forty] days therefrom to mobilise the water tankers, the petitioner purchased 2 [two] nos. of water tankers at a price of Rs. 16,00,850/- each on loan from the State Bank of India. After obtaining the registration, permits, etc., the petitioner placed both the water tankers before the respondent Corporation on 23.12.2019 and after necessary inspection, both the water tankers were deployed in the operation of the respondent Corporation. He has submitted that the petitioner is earning his livelihood from the income received by offering services of the said 2 [two] water tankers.

4.1. The rights, duties, responsibilities and obligations of the parties as regards water tanker services are governed by the Contract Agreement dated 13.03.2020. It is his submission that the action taken by the respondent authorities through the impugned letter dated 26.05.2020 and the impugned letter dated 27.05.2020 are not in conformity with the terms and conditions of the Contract Agreement. The withdrawal of job vide the impugned letter dated 26.05.2020 was taken purportedly under Clause 3.4 of the Contract Agreement. Prior to 26.05.2020, the petitioner was served a show cause notice on 23.03.2020 purportedly under Clause 18.4 read with Clause 12.0 of the Contract Agreement in an illegal and arbitrary manner.

4.2. According to Mr. Saikia, Clause 12.0 cannot be pressed into service by the respondent Corporation against a contractor like the petitioner, as it is applicable only against a contractor's employees. Clause 18.4 mentions about termination of the contract for unsatisfactory performance after serving a notice in writing by giving the detail about the cause of such dissatisfaction and termination can be effected only in the event the contractor fails to comply with the requisitions contained in the notice.

4.3. The petitioner submitted a bill to the respondent Corporation on 06.03.2020 under the fair wage policy of the respondent Corporation which pertained to a contract executed in the year 2016. But the said bill was not processed for reimbursement by a particular official of the respondent Corporation despite regular visits made by the petitioner. When request was made to the official to process the bill the said official asked for a gratification in cash to process the bill when the petitioner visited his office on 18.03.2020. There was an altercation between them and the official by refusing to process the bill, had returned the bill to the petitioner. The show cause notice and the subsequent impugned letters are counter-blast to the said incident. The official projecting a completely different version about the said incident, was instrumental in initiating the impugned actions. On being misled by the said official, a first information report [FIR] was also lodged against the petitioner by the respondent no. 4 resulting into registration of a criminal case against the petitioner. The petitioner has contended that the police after investigation, had submitted a final report in the case on 31.08.2020. By referring to the above, Mr. Saikia has submitted that there was no basis behind issuance of the impugned letters against the petitioner and as such, the same are liable to be set aside.

4.4. It is his further submission that the actions taken vide the impugned letters being arbitrary and vindictive, are violative of Article 14 and Article 21 of the Constitution of India as the impugned actions have adversely affected the livelihood of the petitioner. On withdrawal of the job, the petitioner has defaulted in paying the loan instalments in time. The respondent authorities have been deliberately prolonging the matter and the impugned action though appears to be interlocutory, has taken the shape of a final order of termination. To buttress his above submissions, he has placed reliance in the decisions in Amar Nath and others vs. State of Haryana and others, reported in AIR 1977 SC 2185, Para 6; Harbanslal Sahnia and another vs. Indian Oil Corporation and others, reported in [2003] 2 SCC 107, Paras 7 & 8; ABL International Ltd. and another vs. Export Credit Guarantee Corporation of India and others, reported in [2004] 3 SCC 553, Paras 10/23/24/27/28; Uttar Pradesh Power Transmission Corporation Ltd. and another vs. CG Power and Industrial Solutions Limited and another, reported in AIR 2021 SC 2411, Paras 67 & 68.

5. Mr. Sahewalla, learned Senior Counsel appearing for the respondent ONGC authorities has seriously objected to the contentions made on behalf of the petitioner and has reaffirmed the statements made in the affidavit-in-opposition filed on behalf of the respondent ONGC authorities. He has submitted that all the actions, assailed in this writ petition, have been taken in reference to a Contract Agreement signed between the respondent Corporation and the petitioner on 13.03.2020 for hiring of 9 KL water tanker services for a period of 3 [three] years. He has emphasised that the respondent Corporation has hired the services of 2 (two) water tankers with crew, not the water tankers, and there are differences between the two.

5.1. He has submitted that the genesis of the incident dated 18.03.2020 was with regard to processing of a bill, submitted by the petitioner on 06.03.2020, under the fair wage policy of the respondent Corporation. The petitioner had earlier entered into a contract for hiring of water tanker services with the respondent Corporation on 18.04.2016 for a period of 3 [three] years. Against the said contract, the petitioner earlier submitted a bill for the period from February, 2017 to May, 2019 without the requisite supporting documents. In view of non- submission of requisite supporting documents, the bill amount towards the fair wage policy was not processed and the balance amount was paid to the petitioner. On 06.03.2020, the petitioner submitted some invoices relating to fair wages pertaining to the amount withheld for the afore-mentioned period. It is the stand of the respondent Corporation that the petitioner had failed to pay fair wages to the drivers and khalasis during the period from February, 2017 to May, 2019. On receipt of the invoices on 06.03.2020, the bill was being scrutinised and processed.

5.2. It is his contention that as per Clause 7.4 of the Contract Agreement dated 18.04.2016, the respondent Corporation was to process and make payment for the bill within 21 [twenty- one] calendar days from the date of receipt of the bill. But the petitioner since the date of submission of the bill for the fair wage policy on 06.03.2020, was visiting the office of the respondent Corporation repeatedly and pressurising the officials of the respondent Corporation for early payment of the bill. There was no cause of action for the petitioner to make visits repeatedly to press for payment. On 18.03.2020 when the period of 21 [twenty- one] days had not elapsed, the petitioner forcefully barged into the respondent Corporation's

office. The petitioner threatened and manhandled the concerned ONGC official, a Senior Transport Officer, on duty. Due to manhandling by the petitioner, the Senior Transport Officer sustained injury. The said Senior Transport Officer had reported the incident alleging his manhandling by the petitioner to the higher ONGC authorities on 18.03.2020 itself. The incident was immediately reported to the Commandant, APBN Unit, ONGC on 18.03.2020 and to the Superintendent of Police, Sivasagrar on 19.03.2020. A criminal case being Sivasagar Police Station Case no. 365/2020, was registered on 21.03.2020 for offences under Sections 448/323/506/353, IPC.

5.3. Finding the acts of the petitioner objectionable, the notice dated 23.03.2020 was served upon the petitioner asking him to show cause as to why the Contract Agreement dated 13.03.2020 shall not be terminated for violation of Clause 12.0 read with Clause 18.4 and the petitioner was asked to submit his reply on or before 02.04.2020. The petitioner submitted his reply on 01.04.2020 stating that the allegation of assault by him was falsely created and concocted by the Senior Transport Officer to shield his crime of demand for bribe for passing the bill. The petitioner had himself admitted that his bill for fair wages was pending in the table of the Senior Transport Officer since 06.03.2020 and he made regular visits to request to process the bill, when the time period for processing the bill had not expired. The petitioner's such repeated visits were totally unwarranted. The petitioner in his said reply had further alleged that on 18.03.2020, the Senior Transport Officer demanded a bribe of Rs. 5,000/- from the petitioner for passing the bill. Referring to a letter submitted on 15.06.2020 by the petitioner to the respondent no. 4, Mr. Sahewalla has submitted that by the said letter, the petitioner had himself apologised for the trouble caused to the Senior Transport Officer and the respondent authorities by him. The petitioner had also admitted therein the Senior Transport Officer did not make any demand for bribe. It is, thus, apparent that the whole issue with regard to demand for bribe has been falsely projected and concocted by the petitioner.

5.4. It is his further contention that finding the reply of the petitioner to the show cause notice unsatisfactory; considering the fact that the investigation of the criminal case was not completed and considering also the security and safety concern of the employees of the

respondent Corporation, it was decided by the competent authority to withdraw from the petitioner all the jobs under the Contract Agreement dated 13.03.2020 with immediate effect and until further orders invoking Clause 3.4 of Annexure-II of the Contract Agreement. Accordingly, the impugned letter dated 26.05.2020 was issued to the petitioner. The impugned letter dated 27.05.2020 was issued in consequence of the impugned letter dated 26.05.2020. All these actions are transient in nature for the purpose of probing into the matter in a just and fair manner.

5.5. The further contention is that the petitioner without waiting for the decision to be taken on the show cause notice, has rushed to this Court by this writ petition. As the dispute has arisen out of the Contract Agreement dated 13.03.2020 and an adequate alternative and efficacious remedy has been provided for therein, the writ petition is not maintainable. As the contract is not a statutory one, the petitioner can only allege violation of his contractual rights, if any. There is neither any violation of the fundamental rights of the petitioner nor there has been violation of the principles of natural justice. He has submitted that the final decision on the show cause notice has not been taken by the respondent authorities till date in view of the pendency of the writ petition which itself is not maintainable. It has been submitted by him that the respondent Corporation is ready to take the final decision and in the event the petitioner is aggrieved by such final decision, he can take recourse to the remedy provided for in the contract. His further submission is that none of the decisions, referred to by the petitioner, assists the case of the petitioner. He has, thus, submitted that the writ petition is a premature one.

5.6. He has further submitted that the allegations and counter allegations regarding the alleged incident dated 18.03.2020 have given rise to disputed questions of facts. It came to the knowledge of the respondent ONGC authorities only during the pendency of the writ petition that a final report has been submitted by police in connection with Sivasagar Police Station Case no. 365/2020. It has been asserted that no notice regarding submission of final report has ever been received by the respondent ONGC authorities. Having learnt that the final report had been submitted purportedly on the ground of amicable settlement, the respondent no. 4 had immediately wrote to the Officer In-Charge, Sivasagar Police Station

questioning the genuineness of the final report and also regarding the statement therein about the alleged amicable settlement, by clarifying that there was no amicable settlement arrived at between the parties with regard to the matter. The learned Senior Counsel for the respondents has submitted that the petitioner has resorted to falsity in order to extricate himself out of the criminal liability and to mislead the investigating authority. As such, the petitioner is not entitled to any relief for not approaching the Court with clean hands and for suppression of material facts.

6. I have duly considered the rival submissions advanced by the learned counsel for the parties and also perused the materials on record brought on record by the parties through their respective pleadings. I have also gone through the decisions cited by the learned counsel for the petitioner.

7. The issues which have been canvassed in this writ petition pertain to the petitioner's relationship with the respondent Corporation which has originated from the Contract Agreement dated 13.03.2020. The respondent Corporation was desirous of hiring services of 9 KL of water tankers for carrying out its operations as per the scope of work formulated by it. The respondent Corporation floated a Tender no. R16KC19011 in this connection inviting bids from interested bidders for providing the required services in accordance with the terms and conditions set out therein. It may be iterated that the petitioner submitted his bid in response to the Tender no. R16KC19011. After evaluation, the respondent Corporation had accepted the bid of the petitioner and had placed the NoA dated 28.11.2019 to him. By the NoA, the petitioner was asked to mobilise the two water tankers within the mobilisation period of 40 [forty] days therefrom. The petitioner placed two water tankers before the respondent Corporation on 23.12.2019. On being so placed, the respondent Corporation after inspection, had accepted the two water tankers for deployment w.e.f. 26.12.2019 and the same was communicated to the petitioner vide its letter dated 24.12.2019. Thereafter, the Contract Agreement dated 13.03.2020 was executed between the respondent Corporation and the petitioner by setting forth the terms and conditions therein which would govern their relationships. As per the Contract Agreement, the duration of the contract is for a period of 3 [three] years from 26.12.2019 to 25.12.2022. The scope of work/job specified therein has

mentioned that the water tanker services is on fixed rate basis for transportation of water to installations/sites of the respondent Corporation. The work/job includes, but not limited to, loading, transportation and disposal of water of the ONGC from one surface installation/well site to another surface installation/well site or to the water treatment plant for which the contractor has to provide minimum 9 KL capacity water tanker(s) along with crew. The contractor is to provide water tanker services operated by their own personnel as per requirement of the respondent ONGC.

8. As references have been made to Clause 12.0 and Clause 18.4 of the Contract Agreement and also Clause 3.4 of the Scope of Work, Special Conditions of Contract and Technical Specifications of Water Tankers [Annexure-II to the Contract Agreement] the said clauses are quoted herein for ready reference :-

"12.0 DISCIPLINE:-

CONTRACTOR shall carry out operations hereunder with due diligence and in a safe and workman like manner according to good international oilfield practice. CONTRACTOR shall maintain strict discipline and good CONTRACT among its employees and its SUB-CONTRACTOR's employees and shall abide by and conform to all rules and regulations promulgated by the CORPRATION governing the operations. Should CORPORATION feel that the conduct of any of CONTRACTOR/ SUB- CONTRACTOR's employees is detrimental to CORPORATION's interest, the CORPORATION shall have the unqualified right to request for the removal of such employee either for incompetence, unreliability, misbehavior, security reasons etc. while on or off the job. The CONTRACTOR shall comply with any such request to remove such personnel at CONTRACTOR's expense unconditionally. The CONTRACTOR will be allowed a maximum of 15 working days to replace the person by competent qualified person at CONTRACTOR's cost.

18.4 Termination for unsatisfactory performance If the ONGC considers that the performance of the CONTRACTOR is unsatisfactory or, not upto the expected standard, the ONGC shall notify the CONTRACTOR in writing and specify in detail the cause of such dissatisfaction. The ONGC shall have the option to terminate this Agreement by giving 30 days' notice in writing to the CONTRACTOR,

if, CONTRACTOR fails to comply with the requisitions contained in the said written notice issued by the ONGC.

3.4 ONGC shall have the right to withdraw any job in part or in full from the Contractor without assigning any reason and at any stage of work. Payment to the contractor in such cases shall be restricted to the actual job done by him and the amount payable shall be decided by the Head of Logistics and shall be binding on the contractor."

9. The petitioner is a sole proprietorship concern. The erstwhile Oil and Natural Gas Commission was converted into a statutory body by an Act of Parliament viz. the Oil and Natural Gas Commission Act, 1959. The Parliament had brought in another Act viz. the Oil and Natural Gas Commission [Transfer of Undertaking and Repeal] Act, 1993 to provide for the transfer and vesting of the Undertaking of Oil and Natural Gas Commission to and in the Oil and Natural Gas Corporation Limited [the ONGC], a company incorporated under the Companies Act, 1956, and for matters connected therewith or incidental thereto and also to repeal the Oil and Natural Gas Commission Act, 1959. The said Act was deemed to have come into force on 02.07.1993. There is no dispute at the bar that the respondent Corporation being a Government Company, is an instrumentality of the State for the purpose of Article 12 of the Constitution of India.

10. In Harbanslal Sahnia (supra), it has been observed that the rule of exclusion of writ jurisdiction on 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 is challenged. The decision in Harbanslal Sahnia (supra) has followed the decision titled Whirlpool Corporation vs. Registrar of Trademarks, reported in (1998) 8 SCC 1.

11. In ABL International Limited (supra), the first respondent i.e. the Export Credit Guarantee Corporation of India Limited repudiated a claim of the appellants stating that the

appellants had changed the terms of the contract of payment without first consulting it and, therefore, it had no obligation to compensate the appellants for the loss suffered by it. In that case, the question that arose as to whether the first respondent, an instrumentality of the State, was discharging a public duty or a public function while repudiating the claim of the appellants arising out of a contract. The Hon'ble Court took note of the fact that the first respondent is a company registered under the Companies Act, 1956 and it is wholly owned by the Government of India. The Hon'ble Court also noticed the objects enumerated in the Memorandum of Association of the first respondent at para 10 which was "to undertake such functions as may be entrusted to it by the Government from time to time, including grant of credits and guarantees in foreign currency for the purpose of facilitating the import of raw materials and semi-finished goods for manufacture or processing of goods for export" and also at para 11 which was "to act as agent of the Government, or with the sanction of the Government on its own account, to give the guarantees, undertake such responsibilities and discharge such functions as are considered by the Government as necessary in national interest". Noticing the above two objects of the first respondent apart from the fact that it is wholly a Government-owned company in paragraph 23, the Hon'ble Supreme Court, in paragraph 24 of the judgment, held that the first respondent discharges the functions of the Government and acts as an agent of the Government even when it gives guarantees and it has a responsibility to discharge such functions in the national interest. In that background, it has been observed that it would be futile to contend that the actions of the first respondent impugned in the writ petition did not have a touch of public function or discharge of public duty and the writ petition was held to be maintainable.

12. In paragraphs 27 and 28 in ABL International Limited (supra), the Hon'ble Supreme Court considered the question as to whether a money claim can be granted in a writ petition under Article 226 of the Constitution of India. After discussing a number of earlier judgments, it has been observed as under :

27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition :

(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claim is also maintainable.

28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.

13. The scope of judicial review under discretionary jurisdiction of Article 226 of the Constitution of India in matters arising out of contracts entered into by the State/public authority with private parties came for consideration in Joshi Technologies International INC vs. Union of India and others, reported in (2015) 7 SCC 728. A host of decisions including Whirlpool Corporation (supra) and ABL International Limited (supra) were considered. Therein, the Supreme Court has observed as under :

69. The position thus summarized in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion :

69.1. The Court may not examine the issue unless the action has some public law character attached to it.

69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.

70. Further legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to the contracts entered into by the State/public Authority with private parties, can be summarized as under :

70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.

70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations.

70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.

70.4. Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.

70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of

contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.

70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.

70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.

70.8. If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.

70.9. The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.

70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non- arbitrariness.

70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.

14. In Uttar Pradesh Power Transmission Corporation Ltd. (supra), the Hon'ble Supreme Court, in paragraphs 67 and 68, has reiterated the same principles as has been highlighted in Whirlpool Corporation (supra) and Harbanslal Sahnia (supra).

15. Article 226 of the Constitution of India, which deals with powers of the High Courts to issue certain writs inter alia stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III of the Constitution of India and for any other purpose. If an authority/body is 'State' within the meaning of Article 12 of the Constitution of India, a writ petition under Article 226 of the Constitution of India is maintainable against such an authority/body for the aforesaid purposes. The definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. The provisions of Article 12 of the Constitution of India have provided that 'the State' includes the Government and Parliament of India and the Government and Legislature of each States as well as 'all local or other authorities within the territory of India or under the control of the Government of India'. If an authority/body falling under the purview of 'other authority' as per Article 12 of the Constitution of India violates the fundamental rights of any person or citizen, a writ petition can be filed under Article 226 of the Constitution of India invoking the extra-ordinary jurisdiction of the High Court seeking appropriate direction, order or writ. Thus, under Article 226 of the Constitution of India the power of the High Court is not limited to the Government or authority which qualifies to be 'State' under Article 12 of the Constitution of India but is extended for issuing directions, orders or writs 'to any person or authority' also.

Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also 'for any other purpose'. Thus, the power of the High Court takes within its sweep more authorities than stipulated in Article 12 of the Constitution of India and the subject matter which can be dealt with under Article 226 of the Constitution of India is also wider in scope. The words 'any person or authority' used in Article 226 of the Constitution of India are not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or authority/body performing public duty and it is the nature of duty imposed on the authority/body which is relevant. The guiding factor is the nature of duty imposed on such an authority/body, namely, public duty to make it covered under the ambit of Article 226 of the Constitution of India. The term 'authority' used in Article 226 of the Constitution of India has to receive wider meaning than the very term used in Article 12 of the Constitution of India.

16. If a person or an authority is 'State' within the meaning of Article 12 of the Constitution of India, admittedly a writ petition under Article 226 of the Constitution of India would lie against such a person or an authority. But even in such cases writ would not lie to enforce private law rights. It is the basic principle of judicial review of an action under the administrative law. The reason is private law is that part of the legal system which is part of common law that involves relationships between individuals, such as law of contract or torts. Thus, even if a writ petition is maintainable against an authority, which is 'State' under Article 12 of the Constitution of India, before issuing writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. Ordinary private law remedies are not enforceable through extra-ordinary writ jurisdiction. More particularly, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. It is also settled that even if a person or an authority does not come within the sweep of Article 12 of the Constitution of India, but is performing public duty, a writ petition can lie and a writ of mandamus or appropriate writ can be issued. Such a private body should either run substantially on State funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any statute, to compel it to perform such a

statutory function [K.K. Saksena vs. International Commission on Irrigation and Drainage and others, [2015] 4 SCC 670].

17. The principle of judicial review prima facie governs the activities of bodies performing public functions. It has been observed in Ramakrishna Mission and another vs. Kago Kunya and others, reported in [2019] 16 SCC 303, that only functions which are similar or closely related to those that are performed by the State in its sovereign capacity qualify as public functions or a public duty. A writ under Article 226 of the Constitution can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty. It has been observed that although it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The scope of mandamus is limited to enforcement of public duty. Contracts of a purely private nature would not be subject to writ jurisdiction.

18. It has been held in Kerala State Electricity Board and another vs. Kurien E. Kalathil and others, reported in [2000] 6 SCC 293, that a contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. It has been held that a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Disputes arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract. Such activities may not raise any issue of public law. The disputes relating to interpretation of the terms and conditions of a non-statutory contract cannot be agitated in a writ petition under Article 226 of the Constitution of India. Such kind of matter is to be adjudicated by a civil court or in arbitration if provided for in the contract.

19. In M/s Radhakrishna Agarwal and other vs. State of Bihar and others, reported in [1977] 3 SCC 457, it has been held that after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Article 14 or any other Constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State or its agents in the contractual field which is apart from the contract. Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about pure alleged breaches of such contract by the State no writ or order can be issued under Article 226 of the Constitution in such cases "to compel the authorities to remedy a breach of contract pure and simple".

20. It has neither been pleaded nor urged on behalf of the petitioner that the work/job of loading, transportation and disposal of water from one surface installation/well side of the respondent Corporation to its another surface installation/well side or to the water treatment land of the respondent Corporation by providing water tanker services with crew is relatable to any statutory or public activity. Merely because the respondent Corporation has entered into the Contract Agreement dated 13.03.2020 with the private entity like the petitioner the same has not made the said contract a statutory one or with any kind of public element. In view of the scope of work under the Contract Agreement dated 13.03.2020, this Court is of the clear view that the respondent Corporation in so far as hiring of the services of water tankers from the petitioner is concerned, has not done so in discharge of any kind of statutory functions or public functions. The Contract Agreement dated 13.03.2020 is not a statutory contract nor it is controlled by any statutory provision. The petitioner has been providing the water tanker services to the respondent corporation only for commercial consideration on payment of hiring charges. Such hiring of water tanker services is not relatable to any public activity. In such view of the matter, the relationship between the petitioner and the respondent ONGC authorities is not governed by any constitutional or statutory provisions but

by the rights and obligations laid down inter se in the Contract Agreement dated 13.03.2020. Thus, the Contract Agreement dated 13.03.2020 between the petitioner and the respondent corporation is a contract in the realm of private law and an ordinary contract governed by the laws of contract. The petitioner has not been able to show and has not urged in any manner that the impugned action of the respondent corporation is against any kind of public interest. As such, it is not open for the petitioner to allege violation of fundamental right under Article 14 of the Constitution of India and seek any enforcement of his fundamental right in this writ petition. None of the decisions relied on by the learned counsel for the petitioner goes to assist the case of the petitioner. Thus, the writ petition fails on that count.

21. From the averments in the writ petition and the submissions of the learned counsel for the petitioner as well as from the averments made in the affidavit-in-opposition and the submissions made by the learned Senior Counsel for the respondent authorities, it is clear that the genesis of the dispute between the parties is relatable to the incident dated 18.03.2020 occurred in the office of the respondent Corporation involving the petitioner on one hand and a Senior Transport Officer of the respondent Corporation on the other. The incident involved the matter of processing a bill dated 06.03.2020 submitted by the petitioner under the fair wage policy of the respondent Corporation contained in clause 7.4 of a Contract Agreement dated 18.04.2016. As per the said clause 7.4, "Invoices with duly supporting documents duly countersigned by Corporation's representative/Engineer wherever applicable will be submitted monthly by the contractor to Corporation and payment shall be made within 21 calendar days from the date of receipt at above office". The situation under which the bill under the fair wage policy had to be submitted by the petitioner is mentioned in the preceding paragraph 5.1 above. When the alleged incident occurred on 18.03.2020, the period of 21 days from 06.03.2020 had not expired. There is clear admission on the part of the petitioner to the effect that he had paid a number of visits to the office of the respondent Corporation, prior to 18.03.2020, to request for processing of his bill. The stand of the respondent Corporation is that such visits before expiry of 21 days, were unwarranted and there was no occasion for the petitioner to visit the office on 18.03.2020.

22. In respect of the alleged incident dated 18.03.2020, the petitioner projected one version whereas the Senior Transport Officer of the respondent Corporation projected another version. The alleged incident led to submission of a complaint by the Contractor's Association against the Senior Transport Officer on 18.03.2020. The Senior Transport Officer had, at the same time, also filed a complaint about the incident before his higher authorities on 18.03.2020 with the allegation that he was assaulted by the petitioner for not clearing the bill. The alleged incident had also resulted in registration of Sivsagar Police Station Case No. 365/2020 for offences under Sections 448/323/506/353, IPC on the basis of a complaint lodged by the respondent no. 4 for the respondent Corporation. An investigation ensued and a final report being Final Report no. 755/2020 stood submitted on 31.08.2020 on the ground that the case was amicably settled during the investigation. The fact of submission of final report is stated to be not within the knowledge of the respondent Corporation, as averred in the affidavit-in-opposition. The respondent Corporation has strongly negated it by stating that no amicable settlement had been arrived at any time in the matter and no notice regarding submission of final report had been received by the respondent Corporation from the Court of learned Chief Judicial Magistrate, Sivasagar. The stance of the respondent Corporation is that the petitioner had knowingly submitted a fake report, which the petitioner has denied. The respondent Corporation had written to the Officer In-Charge, Sivasagar Police Station on 24.12.2020 requesting him to confirm about the genuineness of the final report while denying about any amicable settlement. It is trite law that a final report has to be accepted by the jurisdictional court and such acceptance can be only after issuance of a notice to the complainant. It is not known whether there has been acceptance of the final report by the Court as on date. Such disputed questions of facts are not possible to be decided in a writ petition like the present one, as it would require adjudication on the basis of evidence led by the parties.

23. This Court has already come to a conclusion, from the discussion made above, that the Contract Agreement dated 13.03.2020 is not a statutory contract and does not contain any public element involving any obligation on the part of the respondent Corporation to discharge any public duty. By a notice dated 23.03.2020, the petitioner was called upon to show cause as to why the Contract Agreement dated 13.03.2020 shall not be terminated for

violation of clause 12.0 r/w clause 18.4 of the said Contract Agreement. Reference has been made in the said notice about the incident dated 18.03.2020 wherein the Senior Transport Officer of the respondent Corporation was allegedly assaulted in his office during the course of discharge of his duties by the petitioner and also about the lodgement of the FIR by the management of the respondent Corporation. Terming the incident to be an act of indiscipline and impropriety on the part of the petitioner, the petitioner was asked to submit his reply. In his reply dated 01.04.2020, the petitioner had alleged demand of a sum of Rs. 5,000/- as bribe by the Senior Transport Officer on 18.03.2020. The respondent Corporation has brought on record a letter dated 15.06.2020 of the petitioner which is stated to have been submitted to the respondent no. 4. By the said letter, the petitioner had informed that no demand for bribe was made by the Senior Transport Officer of the respondent Corporation to him and it was the result of miscommunication and subsequent misunderstanding caused by his employee. The petitioner by tendering his formal apology for the trouble caused by him to the Senior Transport Officer and the respondent Corporation, stated that he had withdrawn his complaint. In his affidavit-in-reply, the petitioner had, however, averred that he was compelled to withdraw his complaint as he was under the belief that if the complaint was withdrawn by him, the FIR lodged against him and the letter dated 26.05.2020 would also be withdrawn. The petitioner has further asserted that the show cause notice was issued with the sole motive to exert pressure upon him so as to compel him to withdraw his complaint. The petitioner is seen to have taken different stances at different points of time and taking of such vacillating stances, incompatible to each other, has not convinced this Court to hold a view that the petitioner is entitled to any equitable relief.

24. The notice to show cause dated 23.03.2020 appears to be a step in the process of taking a final decision by the competent authority as to whether the Contract Agreement dated 13.03.2020 is to be terminated or not. The said show cause notice dated 23.03.2020 has not been put to challenge by the petitioner. It is stated in the impugned letter dated 26.05.2020 that since the FIR filed by the respondent Corporation was under investigation and upon considering the security and safety concern of the employees of the respondent Corporation a decision had been taken to withdraw all the jobs awarded to the petitioner under the Contract Agreement dated 13.03.2020 would stand withdrawn with immediate effect and till

further orders. The impugned letter dated 27.05.2020 is only consequential in nature as deployment of the two water tankers was, thereby, withdrawn w.e.f. 28.05.2020. The impugned letter dated 26.05.2020 is stated to have been issued in view of clause 3.4, quoted above. The impugned letter dated 26.05.2020 and the impugned letter dated 27.05.2020 are clearly transient in nature and are measures taken in pursuance of the show cause notice dated 23.03.2020. While not challenging the show cause notice the petitioner has approached this Court assailing the transitory measures. Since the show cause notice constitutes only a step in the process of taking a final decision in the matter and the petitioner has been asked to show cause it cannot be said that no opportunity has been provided to the petitioner before taking a final decision in the matter of termination of the contract, initiated by the respondent Corporation. Even a writ petition challenging a show cause notice is treated to be premature as only a final decision is amenable to judicial review if the relationship between the parties have any public element or governed by any statutory contract and the subject-matter falls in the sphere of public law. From the said perspective, the present petitioner challenging the actions which are merely transient steps pursuant to a show cause notice can only be treated as premature when no final decision has been taken on the show cause notice by the authority concerned, notwithstanding the fact that the relationship between the parties does not have any public element and the subject-matter does not fall in the sphere of public law.

25. On perusal of the terms and conditions of the Contract Agreement dated 13.03.2020, it is noticed that it contains an arbitration clause in clause 27 - Arbitration. It is also the stand of the respondent authorities, taken in paragraph 9 of the affidavit-in-opposition, that the petitioner has an alternative remedy of arbitration as per clause 27 and the petitioner ought to have taken recourse to the said alternative remedy available in the form of arbitration against the decision of the respondent Corporation authorities to suspend the jobs under the contract till the outcome of the police investigation. As the contract between the petitioner and the respondent Corporation, an instrumentality of the State, is under the realm of a private law and there is no element of public law, the only course for the petitioner who has alleged breach of contract, is to invoke the remedies provided under ordinary civil law rather than approaching this Court under Article 226 of the Constitution of India and invoking its extra- ordinary jurisdiction. In such view of the matter, the petitioner who has alleged that the

impugned actions taken under the shelter of clause 12.0, clause 18.4 and clause 3.4, quoted above, are in breach of the Contract Agreement dated 13.03.2020, may sue for specific performance of the contract if the contract is capable of being specifically performed or otherwise, he may sue for damages. The dispute relating to interpretation of the terms and conditions of the Contract Agreement dated 13.03.2020 cannot be agitated in this writ petition, as it is a matter either for arbitration as provided by the contract or for the civil court, as the case may be. The decision in Amar Nath (supra) is not found of any relevance to the case in hand as the same pertains to availability of revisional jurisdiction and/or inherent jurisdiction of the High Court or not under the Code of Criminal Procedure, 1973 in respect of an interlocutory order.

26. For all the reasons mentioned above, this Court has found the writ petition to be misconceived and not maintainable in law. Consequently, it is liable to be dismissed and it is accordingly ordered. It may be open to the petitioner to raise a dispute and to take resort to remedy available under the law. There shall be no order as to cost.

JUDGE

Comparing Assistant