High Court
Case Details
W.P.(C) No. 24424 of 2013 Present : Mr. A. Patnaik, Adv. for the petitioner. Mr. B.M. Patnaik, Sr.Adv. for O.P.Nos.1 to 3. Mr. S.K.Mishra, Adv. For O.P. Nos. 5 & 6. 05. 20.11.2013 This petition has been filed with the following prayer : “(i) admit this writ application, (ii) Issue notice of Rule Nisi as to why the letters dated 23.10.2013 and 27.10.2013 under Annexure-1 Series shall not be declared as illegal and inoperative in the eye of law, (iii) Set aside and quash the impugned letter dated 23.10.2013 and 27.10.2013 under Annexure-1 series. (iv) Direct the opp. party Nos. 1 to 3 not to deduct any penalty for shortfall by invoking Clause 6.2 of the General Terms and Conditions of the contract, (vi)
Legal Reasoning
We find that main question raised in this petition, in effect, is whether there is justification for the petitioner not to execute the contract or there is breach of contract. Prayers (ii) to (iv) involve going into the question of validity of action of opposite parties 1 to 3 under a contract. It will not be appropriate to decide such a question in writ proceedings. Disputes arising out of a commercial contract have to be worked out in appropriate civil proceedings and not in a writ court. 6. Undoubtedly jurisdiction under Article 226 is very wide but there are self imposed limitations on its exercise unless there is no alternative to public law remedy. Reference may be made to Sanjana M. Wig Vs. Hindusthan Petroleum Corporation Ltd., (2005) 8 SCC 242 laying down: “12. The principal question which arises for consideration is as to whether a discretionary jurisdiction would be refused to be exercised solely on the ground of existence of an alternative remedy which is more efficacious. Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefor the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application. (See Titagarh Paper Mills Ltd. v. Orissa -4-
Arguments
(v) Direct the opp.party No.4 to provide police protection for smooth execution of the contract work pursuant to NIT 669 dt.20.05.2013, at Bhubaneswari OCP, Issue instructions to O.P. No.5, Sri Braja Kishore Pradhan, MLA, Talcher and O.P. No.6, Sri Narahari Sahoo, Secretary, Mahanadi Coalfields Contractual Transport workers Union and others who are obstructing the works not to instigate the miscreants and to remove the tent from railway siding No.III & IV and vacate the worksite to make it free from encrumbrances and hindrances, (vii) To bar the entry of unauthorized persons to provide normal working conditions to the petitioner company, (viii) To issue instructions to the opp. parties No.1 to 3 to pay compensation of Rs.227088/- per day being occurred as working loss to petitioner company till the work is forcibly stopped by these miscreants. (ix) Declare the action of the opp. parties as illegal.” -2- 2. Case of the petitioner is that the petitioner- company entered into a contract for transportation of coal into Railway Wagons at Spur Siding Nos.III & IV of Bhubaneswari OCP, Jagannath Area at Talcher for a period of 3 years. It commenced the work on 08.10.2013 by deploying the machineries and man power at the worksite, but the work was obstructed by some miscreants on account of demand of the workers for engaging them in the execution of the work. The engagement of the contract labour is prohibited under Section 10(1) of the Contract Labour (Regulation & Abolition) Act, 1970 and further Clause No.11(xv) of the General Terms and Conditions provides that the contractors have to execute the work by using machine as specified with his regular workmen only. While the petitioner is unable to execute the work due to such problem, the opposite party-MCL issued the impugned letters requiring the work to be executed as per the assigned target failing which legal action will be taken. 3. Stand of the opposite party Nos. 1 to 3 the contractee company is that the site was duly handed over to the petitioner. On 8.10.2013 & 17.10.2013 the petitioner executed certain work, but thereafter it is not carrying out the work. Some outsiders created disturbance on 8.10.2013 and FIRs have been lodged, but it is for the petitioner to complete the work as per the terms and conditions of the contract. 4. The stand of the opposite party Nos. 5 & 6 the MLA and the Workers’ Union is that the workers are being exploited by the Company by paying them below -3- the Minimum Wages notified by the State Government and though the workers are working continuously, they are wrongly shown as contract workers. On abolition of Contract Labour, they have a right to be engaged. After serving for about 22 years, the workers have been disengaged, against which they are raising their grievance. 5.