Madhya Pradesh High Court
M/S Shubham Awasthi Caterers vs West Central Railway on 22 April, 2022
Author: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22nd OF APRIL, 2022
WRIT PETITION No. 8755 of 2022
Between:-
M/S SHUBHAM AWASTHI CATERERS THROUGH
THE PARTNER SHUBHAM AWASTHI S/O
RAMAKANT AWASTHI PROPRIETRO M/S
SHUBHAM AWASTHI CATERERS 73 GANDHI
NAGAR NEAR BALAJI TEMPLE ASTHA WARD
DIST. ITARSI MP (MADHYA PRADESH)
.....PETITIONER
(BY SHRI KUNAL THAKRE, ADVOCATE)
AND
1. WEST CENTRAL RAILWAY THROUGH ITS CHIEF
COMMERCIAL MANAGER WEST CENTRAL
RAILWAY JABALPUR MP (MADHYA PRADESH)
2. THE SENIOR DIVISIONAL COMMERCIAL
MANAGER WEST CENTRAL RAILWAY JABALPUR
MP (MADHYA PRADESH)
3. THE DIVISIONAL RAILWAY MANAGER BHOPAL
WEST CENTRAL RAILWAY BHOPAL MP (MADHYA
PRADESH)
4. THE DIVISIONAL COMMERCIAL MANAGER WEST
CENTRAL RAILWAY BHOPAL MP (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI CHANDRA MOHAN TIWARI, ADVOCATE FOR RESPONDENTS)
T h is petition coming on for admission this day, the court passed the
following:
ORDER
The present petition has been filed challenging the order dated 31.03.2022
(Annexure P-8), passed by the respondent no.4; whereby, the application for
renewal of the petitioner's contract for providing catering services at Itarsi Railway
Station has been rejected on the ground that the petitioner has been imposed with
fine/warning for more than five occasions and in terms of the conditions of the
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agreement, the same cannot be continued if the imposition of fine/warning has
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given on more than five occasions as per Clause-17.1 of the Catering Policy.
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It is argued that the petitioner is a partnership firm providing catering
services by selling food and beverages on the Railway Station, Itarsi, through the
Unit allotted by the Railway Board. Petitioner, who was being eligible and fulfilling
all the requisite qualification submitted its technical and financial bid for the said
tender. After evaluation the petitioner was declared as a Selected Bidder. on
07.06.2016 the letter of acceptance for awarding license for providing catering
services on General Minor Unit No.C-17 at Platform Nos.6 and 7, Itarsi Railway
Station was given to the petitioner. In pursuance to the acceptance letter, an
agreement was entered into on 08.07.2016 and the petitioner has commenced the
operation in functioning of the work. It is argued that Article 3.2 of the agreement
provides that the tenure of the license shall be initially for a period of five years
with a further provision for renewal for a period of three years on satisfactory
performance of the licensee and payment of all dues and arrears and withdrawal of
the court case, if any. It was also provided that the application for renewal of
license must be made within six months in advance before the expiry of the
contract period. Thereafter, the contract period of the petitioner was valid up to
04.07.2021. On petitioner's submitted an application dated 01.02.2021 for renewal
of contract along with all the required documents, in terms of Article 3.2 of the
agreement, requesting for renewal for a further period of three years. The renewal
application of the petitioner has been rejected by the impugned order on the
ground that Clause 17.1 of the Catering Policy provides that in the event of
imposition of fine/warning on more than five occasions, the application for renewal
cannot be accepted. It is argued that the order rejecting the application for renewal
is an stigmatic order and without even providing an opportunity of hearing to the
petitioner and without even making him aware of the complaints, which have been
made against him, his application has been rejected. It is argued that only on the
basis of some complaints made on Twitter, which appears to be vague complaints
the application has been rejected. It is argued that in terms of the Catering Policy of
2010 which is applicable to the case of the petitioner one of the condition for
renewal of license was satisfactory performance of licensee during the tenure of the
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contract. The imposition of fine/warning on more than five occasions has been
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inserted subsequently; therefore, the same is not applicable to the petitioner. It is
argued that the authorities have considered the subsequent Policy for renewal
despite of the fact that the petitioner's case was covered with the Policy of 2010.
Per contra, counsel appearing for the respondents has vehemently opposed
the prayer and submitted that the decision has been taken by the authorities not to
continue the contract of the petitioner because his performance was not found to
be satisfactory and he was imposed with fine and warning for more than five
occasions. It is argued that there is no illegality in the order. The initial contract was
granted to the petitioner, but at the time of renewal the performance of the
petitioner was required to be analyzed and it was found that there were several
complaints against the petitioner which were made by the passengers traveling in
the train and the customers regarding non satisfactory performance of the
petitioner. Twitter is a social platform; wherein, the complaints, which have been
made could be taken into consideration for appraisal of the satisfactory work of
the petitioner. Now a days the Railway Department has floated a Policy that the
passengers traveling in the vehicles and train can made complaints on the Twitter
regarding the dis-satisfactory performance or any problem in the train during
traveling, which has to be addressed with immediate effect. Eight complaints were
made against the petitioner for which the petitioner was sometimes fines and
sometimes given warning and the Committee at the time of consideration of the
renewal application of the petitioner found the performance to be unsatisfactory;
therefore, rejected the application for renewal. He has brought to the notice of this
Court the judgment passed by the Division Bench of this Court in identical
circumstances in the case of M/s R.N. Vyas Sons Vs. West Central Railway
and another being Writ Petition No.4484/2022 decided on 22.03.2022; wherein, in
similar circumstances the writ petition was dismissed. It is argued that it is totally a
contractual matter for which the remedy available to the petitioner is to approach
the concerning civil courts for redressal of his grievances. The scope of judicial
review, in respect of contracts entered into on behalf of the authorities is very
limited. It is only limited to the decision making process whether it was reasonable,
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rational or arbitrary and is violative of Article 14 of the Constitution of India. In the
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present case, no such condition is available to the petitioner; therefore, no
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interference is required and prays for dismissal of the writ petition.
Heard the learned counsels for the parties and perused the record.
From the perusal of the record, it is not disputed that earlier the contract was
provided to the petitioner for supply of food and beverages at Railway Station,
Itarsi. He continued for a period of five years and a renewal application was filed
within time by the petitioner. The renewal application has been considered by the
Committee and finding the petitioner's work to be not satisfactory and also finding
that the petitioner has been fined and warned on more than five occasion regarding
his work; therefore, has taken a decision not to renew the contract work of the
petitioner for a further period of three years. It is not a case that the contract of the
petitioner has been put to an end prior to completion of his work period, but the
fact remains that on an unsatisfactory performance of the petitioner his work
cannot be continued. Specific reason has been assigned by the authorities while
passing the impugned order. The Division Bench of this Court in the case of M/s
R.N. Vyas Sons (supra) has considered the similar issue and has held as under:-
6. So far as the arguments made by the petitioner on the basis of Clause-
20 of the agreement is concerned, the same would also not help the petitioner for
the reason that the said clause provides that in the event of any interpretation of
the provision of the agreement between the parties, the documents shall be read
in the order of precedence as mentioned therein i.e. railway latest policies as
applicable from time to time; the Articles of the Agreement; the contents of
Annexure(s) to the agreement; licencee’s response to the Bid; and the Bid.
Firstly, there does not arise any question of interpretation of the provision of
agreement as the terms of the agreement are unambiguous with respect to the
tenure and renewal of license. The tenure of license shall be initially for a period
of five years as the provision of further renewal for a period of three years on
satisfactory performance and payment of all dues and with other terms and
conditions. There is no clause which provides for any automatic extension of
tenure or renewal of license. After expiry of five years period, there has to be an
order of renewal of license for a further period or its extension.
7. The scope of judicial review, in respect of contracts entered into on
behalf of the State, has been considered by the Hon’ble Supreme Court in
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various decisions. In the matter of Sterling Computers Limited Vs. M/s M. & N
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Publications Limited and others, the Hon’ble Supreme Court has held that by
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way of judicial review, the Court cannot examine the details of the terms of the
contract which have been entered into by the public bodies or the State. Courts
have inherent limitation on the scope of any such enquiry. The scope of enquiry is
limited to whether “decision making process†was reasonable, rational, not
arbitrary and violative of Article 14 of the Constitution. In another decision, in
the matter of State of U.P. and others Vs. Bridge & Roof Co. (India) Ltd. , the
Hon’ble Supreme Court has held that the contract between the parties is a
contract in the realm of private law. It is not a statutory contract. It is governed
by the provisions of the Contract Act or, may be, also by certain provisions of the
Sales of Goods Act. Any dispute relating to interpretation of the terms and
conditions of such a contract cannot be agitated and could not have been
agitated, in a writ petition. That is a matter either for arbitration as provided by
the contract or for the Civil Court as the case may be. The aforesaid principles
have been reiterated in various other decisions including in the case of Silppi
Constructions Contractors Vs. Union of India and another.
8. In the instant case, the license has not been renewed after five years, but
the same has been extended finally upto 31.03.2022. Therefore, it cannot be said
that the present agreement involves any interpretation of any provision.
Secondly, the intra department communication cannot be construed to be the
policies so as to get an automatic extension or renewal on the basis of those intra
departmental communication.
From the perusal of the aforesaid dictum by the Division Bench, it is
apparently clear that the very limited scope of interference in the impugned order is
made out because there is very limited scope of judicial review in contractual
matters. The authorities have passed a reasoned order for not renewing the license
of the petitioner for a further period of three years. If aggrieved, the petitioner is
having a remedy to approach before the concerning Courts having civil jurisdiction
for redressal of his grievances.
The order impugned is just and proper does not call for any interference in
the present writ petition.
Petition sans merits and is hereby dismissed.
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Date: 2022.04.23 16:15:12 IST (VISHAL MISHRA)
JUDGE
taj
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Date: 2022.04.23 16:15:12 IST
