Orissa High Court
3719/Pratap Ghose Security ... vs Union Of India & Others on 20 January, 2021
THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) No. 15740 OF 2020
(An application under Articles 226 & 227 of the Constitution of
India.)
3719/Pratap Ghose Security Agency ...... Petitioner
Versus
Union of India & Others ....... Opposite Parties
Advocate(s) who appeared in this case by Video Conferencing
mode:-
For Petitioner : Mr. Subrat Mishra, Advocate.
For Opposite Parties : Mr. D.P. Nanda, Senior Advocate
(for Opposite Party No.6),
Mr. P.K. Parhi, Assistant Solicitor General
(for Opposite Party Nos. 1 and 2),
Mr. Satyajit Mohanty, Advocate,
(for Opposite Party Nos. 3 to 5), and
Mr. L. Samantaray, Advocate
(for Opposite Party No. 7)
CORAM : THE CHIEF JUSTICE
JUSTICE S. K. MISHRA
JUDGMENT
20th January, 2021
Dr. S. Muralidhar, CJ.
1. The present writ petition filed by 3719/Pratap Ghose Security
Agency challenges the action of the Indian Oil Corporation Limited
(IOCL)-Opposite Party No.4 in not extending the Security Coverage
Contract agreement dated 23rd February, 2018 and the Fax of
Acceptance dated 19th January, 2018 for providing security services
at Paradip Refinery, Paradip.
2. The Petitioner is an Agency of a retired Army Captain, who is its
sole proprietor. The Petitioner is engaged in the business of
providing security services to Public Sector Companies of the
Government of India. The Petitioner was empanelled on 10th June,
2015 with the Directorate General of Resettlement (DGR), an
organization under Department of Ex-Servicemen Welfare, Ministry
of Defence, Government of India. It is stated that its empanelment
was further renewed on 3rd October, 2018.
3. A tender was floated by IOCL for providing security services at
Paradip Refinery, for which the Petitioner submitted a tender and it
was accepted. A Fax of Acceptance (FOA) was signed by the
Petitioner on 19th January, 2018. Subsequently, a Contract
Agreement was also signed on 23rd February, 2018 at Paradip,
Odisha. This was admittedly for a period of two years.
4. According to the Petitioner, he requested the Engineer-in-Charge
and Deputy General Manager, IOCL, Paradip Refinery (Opposite
Party No.5) by letter dated 31st December, 2019 that he was entitled
further extension of his contract which was ending on 17th March,
2020 for another period of two years. He relied on Clause-19 and
Clause 26(a) of the Office Memorandum dated 9th July, 2012 of the
Ministry of Defence (MoD).
5. The Petitioner contends that the IOCL has followed the usual
practice of generally extending the contract granted to other similarly
situated Security Agencies for two plus two more years. He has
given example of certain other agencies, which have been impleaded
as Opposite Party Nos. 6 to 9, and had been extended contract for
four years. However, when the Petitioner was issued an amended
work order by letter dated 3rd February, 2020, the period of contract
came to be extended only by three months. This led the Petitioner to
file W.P.(C) No. 11164 of 2020 before this Court. By order dated 5th
May, 2020 this Court disposed of the said writ petition directing the
IOCL to consider the Petitioner's representation.
6. By the impugned letter dated 12th June, 2020 the IOCL rejected
the representation of the Petitioner and extended the contract only for
three months from 18th April, 2020 till 18th July, 2020.
7. The Petitioner states that he also learnt that the IOCL is taking
steps to initiate fresh limited tender by seeking fresh empanelment of
DGR and it was for the work not materially different from the
Petitioner's tender. While the allocation of guard in the Petitioner's
tender was for plant and building and the strength of allocation was
104 guards, the total guards deployed by the petitioner as per his
contract was 158. However, in the proposed tender in question the
deployment of total number of guards would be 186. It is in the
above background that the Petitioner has challenged the letter by
which his contract was extended only for a limited period and not for
two years, and the action of the IOCL, seeking to float a fresh tender
for more or less a similar work.
8. When this writ petition was first listed for hearing on 15th July,
2020, notice was issued in the petition. Pursuant thereto, replies have
been filed by the Opposite Parties. On 14th October, 2020 prayer for
amendment of the writ petition was allowed and certain further
letters were permitted to be challenged.
9. In response to the writ petition, a counter affidavit has been filed
by IOCL, inter alia, pointing out that the Paradip Refinery is a
process driven Industry with technology being updated on
requirement of plant operations. Requirement of Security Guards as
envisaged at the start of contract in 2018 suddenly increased due to
expansion of Refinery of IOCL at Paradip. Accordingly, on 23rd
January, 2020 the IOCL requested the DGR to suggest the names of
six DGR Sponsored Agencies for providing Security Services at
various locations of Paradip Refinery. The DGR by email dated 14th
February, 2020 provided fresh sponsorship letters on the basis of
IOCL's requisition in two different scopes of work. One sponsorship
letter in name of three agencies covering 103 Security Guards and
another letter in the name of other three agencies covering 83
Security Guards.
10. As regards the Petitioner, it is pointed out that the DGR has not
issued any letter of re-sponsorship. It is further pointed out that
Clause 26(a) of the Office Memorandum dated 9th July, 2012
provides for dis-empanelment on the Ex-Servicemen (ESM)
attaining 60 years, subject to the rider that existing contracts would
be allowed to run till the date of completion. As far as the Petitioner
is concerned, the Security Agency contract with the Petitioner came
to an end on 18th January, 2020. No re-sponsorship has been issued
by the DGR in his favour.
11. As far as the extensions are concerned, it is pointed out by the
IOCL that extension for a consecutive period of three months each,
that is a total of six months up to 18th July, 2020 was only a stop gap
arrangement for providing uninterrupted security coverage to the
vital installations of Paradip Refinery until the empamelment of a
fresh security agency duly sponsored by the DGR. It is only because
of the pendency of the present writ petition, the work order could not
be issued to the successful agencies.
12. This Court heard the submission of Mr. S. Mishra, learned
counsel for the Petitioner, Mr. D.P. Nanda, learned Senior Advocate
for Opposite Party No.6, Mr. P.K. Parhi, learned Assistant Solicitor
General for the Union of India, Mr. Satyajit Mohanty, learned
counsel for IOCL and Mr. L. Samantaray, learned counsel for
Opposite Party No. 7.
13. In response to a query, whether in relation to extension of period
of a contract beyond stipulated period, a writ petition is maintainable,
Mr. Mishra, learned counsel for the Petitioner refers to several
decisions of the Supreme Court including State of U.P. v. Sudhir
Kumar Singh (judgment dated 16th October, 2020 in Civil Appeal
No. 3498 of 2020); and Surya Constructions v. State of Uttar
Pradesh, (2019) 16 SCC 794.
14. On merits, Mr. Mishra refers to the Clauses in the Office
Memorandum dated 9th July, 2012, prescribing Guidelines for
functioning of DGR Empanelled Ex-Servicemen for Security
Services', issued by the MoD. In particular, he refers to following two
clauses :
"19. Sponsorship/Re-sponsorship.
All sponsorships/re-sponsorships will be done in
cyclic order of seniority of registration for a
period of two years extendable by two years at a
time, available quota of guards and subject to
satisfactory performance report received from the
concerned Principal Employer. All
sponsorships/re-sponsorships will be done by duly
constituted Board of Officers (BOO) in
accordance with the guidelines. All new
sponsorship/re-sponsorship will be in individual
names of ESMs/ESM Corporations."
xxx xxx xxx
"21. Conclusion of Contracts
(a) The Principal Employers must ensure that the
contracts are concluded and finalized within three
months of issue of sponsorships by DGR.
(b) In an eventuality of all the DGR Sponsored
ESMs quoting the same rates the contract under
consideration should be allotted to the senior most
DGR sponsored ESM as per registration date with
DGR.
(c) In case the Principal Employer decides to
cancel the tender, then the sponsorship letter will
be treated as cancelled, and seniority of all the
sponsored ESMs will remain unchanged.
(d) Agreement between the Principal Employer
and the DGR sponsored ESM should be for a
period for which the DGR has sponsored the
ESM/ESM Corporation. Re-sponsorship will
follow the same procedure as sponsorship."
15. In response to a query whether the Petitioner already completed
60 years of age, Mr. Mishra answered in the affirmative, but sought to
rely upon the rider Clause 26(a) of the said OM, which reads thus:
"26. Dis-empanelment:
Security Agencies/Companies will be removed
from the active panel of DGR under the following
conditions:-
(a) When an Individual ESM has attained the
age of 60 years. The validity of empanelment of
the ESM will cease once the ESM attains 60 years
of age.
However existing contracts will be allowed to run
to completion. The list of such ESM will be
updated regularly by DGR on their website."
16. According to Mr. Mishra, on account of extensions granted on two
occasions of three months each, the contract of the Petitioner was an
'existing contract' and therefore, the above clause would apply. He
maintained that the Petitioner is entitled to further extension of two
years and that IOCL was not justified in declining to do so.
17. Mr. Mohanty, learned counsel for the IOCL referred to reply filed
by it and reiterated the stand taken therein. This was supplemented by
the counsel appearing for Opposite Party Nos. 6 and 7.
18. At the outset, the Court must observe that the prayer clause in the
present petition is perhaps the most complicated and indecipherable. It
reads thus:
"It is therefore humbly prayed, that this Hon'ble
Court, may graciously be pleased to admit the writ
application, calling upon the Opposite party Nos. 2
to 5 to show cause as to why letters dated 3-2-20 and
12-6-20 and Letter dated 22.8-20 issued by opposite
party no.4 extending contract from 19-1-20 till 18-4-
20 and till 17-10-20 the period of the contract which
was for two years (24 months) granted pursuant to
Fax of Acceptance (FOA) dated 19-1-18 the
Contract Agreement dated 23-2-18 read with Office
Memorandum no.28(3)/2012-D (Res-1) dt 9.7.12 of
the Ministry of Defence shall not be modified for
extending the period for another one and half years
from 18-7-20 and the opposite party no 2 to 5 be
injuncted from issuance of fresh limited tender for
security agencies and for acceptance of any fresh
tender by any security agency till the period of
tender of petitioner is over till February 2022 as per
Fax of Acceptance (FOA) dated 19-1-18, Contract
Agreement dated 23-2-18 read with office
Memorandum no 28(3)/2012-D(Res-1) dt 9.7.12 of
the Ministry of Defence and Letter dated 23.1.20,
Email dated 14.2.20 the Sponsorship Letters dated
14.2.209, the Notices Inviting Tender dated 16.5.20
and 26.5.20 and Letter dated 17-9-20 shall not be
quashed and Letter dated 22-8-20 be suitably
modified by extending the period of the petitioner's
contract till February 2022 and if the afore stated
opposite parties show false or insufficient cause, be
pleased to issue a writ/writs quashing the Letter
dated 23.1.20, Email dated 14.2.20 the Sponsorship
Letters dated 14.2.20, the Notices Inviting Tender
dated 16.5.20 and letter dated 17-9-20 and declaring
any action pursuant to Notices Inviting Tender dated
16.5.20 and 26-5-20 and Sponsorship Letters dared
14-2-20 as void and unenforceable in law and
directing the opposite party no3 to 5 to modify
Letters dated 3-2-20 and 12-6-20 and 22-8-20 by
extending the period of contract for another one and
half years, till February 2022 as per Fax of
Acceptance (FOA) dated 19-1-18, Contract
Agreement dated 23-2-18 read with Office
Memorandum no 28(3)/2012-D(Res-1) dt. 9.7.12 of
the Ministry of Defence."
19. To add to the confusion by allowing an amendment by the order
dated 14th October, 2020 more lines have been added to the above
extremely complicated prayer clause. Nevertheless, the Court has,
with the help of Mr. Mishra, learned counsel for the Petitioner, been
able to glean the essential grievance of the Petitioner, which is the
non-extension of the contract by the IOCL by two years instead of
restricting it to two extensions of three months each. The reasons
given by the IOCL for going in for a fresh contract, in view of the
changed scenario with the expansion of the Paradip Refinery, is
entirely reasonable. It is for the IOCL to take a call on whether it
should go for a fresh contract for the additional need of security
personnel.
20. As far as the Petitioner is concerned, with his having crossed 60
years of age, he cannot insist on extension of the contract beyond the
original period which admittedly expired on 18th January, 2020 and
even the further period of extension expired on 18th July, 2020. His
insistence that he should somehow be allowed to continue for further
two years with effect from 19th January 2020, is not, in the
considered view of the Court, legally tenable. There is no 'existing
contract' as on date. The question of issuance of a writ of mandamus
to extend the period of the contract does not even arise. Further, the
fact of the matter is that the DGR has not issued any re-sponsorship
as far as the Petitioner is concerned, which again is understandable,
considering that he has crossed 60 years of age.
21. Consequently, this Court finds no reason to grant any relief as
prayed for. The writ petition is accordingly dismissed.
22. As restrictions are continuing due to COVID-19 situation,
learned counsel for the petitioner may utilize the soft copy of this
judgment available in the High Court's official website or print out
thereof at par with certified copies in the manner prescribed, vide
Court's Notice No.4587 dated 25.03.2020.
............................
S. Muralidhar
Chief Justice
......................
S.K. Mishra
Judge
20th January, 2021
//A.Dash, Secretary//
