The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.14597 of 2023 (In the matter of an application under Article 226 of the Constitution of India, 1950) Bijaya Kumar Agarwala ....... Petitioner -Versus- Odisha Civil Supplies Corporation Limited & others ....... Opp. Parties Advocate for the parties For Petitioner For Opp. Party Nos.1 & 2 : Ms. S. Mohapatra, Advocate : Mr. S.K. Mishra, Sr. Advocate For Opp. Party Nos.3 & 4 : Mr. T.K. Biswal, Addl. Govt. Advocate ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 02.08.2024 Date of Judgment: 28.08.2024 --------------------------------------------------------------------------------- S.K. Mishra, J. This writ petition has been preferred by the Petitioner assailing the inaction of the Opposite Party No.1 for not releasing the security deposits and transportation charges on the ground of pendency of E.C Case No.3 of 2013 before the Collector, Khordha (Opposite Party No.4). 2. The brief facts, which led to the filing of the case, are that, the Petitioner was engaged as a L-I and L-II Transport Contractor and transported PDS wheat in Begunia and Bolagarh Block under Khordha District in the year 2013. After Petitioner’s repeated representations on different dates i.e. 10.03.2019 and 27.03.2019, the Opposite Party No.3- District Manager, Odisha State Civil Supplies Corporation (OSCSC) issued a letter intimating therein that some required documents to be submitted for release of his pending dues. In response to the same, the Petitioner submitted all the documents. However, as no action was taken by the Opposite Parties, again on 15.10.2020 the Petitioner deposited the bills and all other documents, as sought for by the Authorities. The Opposite Party No.3 requested the Managing Director, OSCSC (Opposite Party No.2) for releasing of pending dues of the Petitioner vide letter dated 07.01.2021, from which the Petitioner came to know about initiation of one case under the Essential Commodities Act, 1955, shortly, ‘the E.C. Act’, as no W.P.(C) No.14597 of 2023 Page 2 of 30 communication regarding such case has ever been received by the Petitioner from the Office of the Collector, Khordha. 3. Thereafter, the Petitioner approached this court in W.P.(C) No.15847 of 2021 for release of security deposit, which has been withheld by the Opposite Party No.2. Being directed by this Court to dispose of the representation of the Petitioner, the Opposite Party No.2 passed an order on 01.10.2021, which was communicated to the Petitioner vide letter dated 04.10.2021, indicating about the pendency of E.C Case No.03 of 2013. The Petitioner immediately participated in the said proceeding and filed a petition dated 07.10.2021 for disposal of the said case, which is pending since long. Though the hearing was started on 29.10.2021 and concluded on 08.04.2022, but no final order has been passed till date. 4. The Petitioner preferred W.P.(C ) No.4673 of 2023 seeking for direction to take final decision in E.C Case No.03 of 2013. While disposing of the said Writ Petition, the coordinate Bench directed the Opposite Party No.4-Collector, Khordha to dispose of the same within four weeks from the date of production of certified copy of the said order, with an W.P.(C) No.14597 of 2023 Page 3 of 30 observation, failing which it will be treated that the E.C Case No.03 of 2013 against the Petitioner has been terminated. Despite production of the order before the Opposite party No.4, no final decision has been taken in the matter, even if the hearing was concluded on 30.04.2022 so also written note of submission has been filed. Thus, in view of the order of this Court, the E.C. Case No.03 of 2013 has been terminated against the Petitioner and Opposite Parties are obliged to release the security deposit and all other unpaid transportation charges to the Petitioner. 5. It is also the case of the Petitioner that, one G.R Case No.388 of 2013, arising out of Khordha P.S Case No.94 of 2013, pending in the file of S.D.J.M., Khordha, has also been quashed by this Court vide order dated 09.09.2022 in the case of Prasanta Kumar Beuria Vs. State of Odisha. 6. Opposing to the prayer made in the Writ Petition, two Counter Affidavits have been filed, one by the Opposite Party No.3 i.e. District Manager, OSCSC and the other by the Opposite Party No.2 i.e. Managing Director, OSCSC. The Opposite Party No.3, denying the stand of the Petitioner in the Writ Petition, has stated in the Counter Affidavit that, sub- W.P.(C) No.14597 of 2023 Page 4 of 30 judice or the termination of the E.C. Case No.03 of 2013 in the Court of Collector, Khordha has no direct bearing upon the release of the security money and TC Bill of the Petitioner. Rather, the Petitioner has violated the condition of agreement dated 30.03.2012, vide clause No. 18 (xxx) & 18(xxxii), wherein it is stated that “failure to comply any or all of the conditions of the agreement shall render the H & T Contractor to liquidate damages on account of such failure in addition to forfeiture of the security money in full or in part. The corporation also reserves the right to take recourse to any legal action against the H & T Contractor in addition to forfeiture of security money & liquidated damage.” Further, it is the stand of Opposite Party No.3, as per the interim order, the amount recovered towards the sale proceeds are retained till disposal of the E.C. Case No.03 of 2013. As per the decision of Managing Director, OCSC, as at Annexure-9, it is revealed that the security money and TC Bill have not been withheld arbitrarily but as per the rules, terms and conditions
Facts
of the agreement executed between the parties. 7. Similarly, the Opposite Party No.2 i.e. Managing Director, OSCSC, in its Counter Affidavit has taken a stand W.P.(C) No.14597 of 2023 Page 5 of 30 by disclosing therein that, though a stock of Q.1456.52.980 of wheat was dispatched on 14.03.2013 in 14 numbers of trucks through the Petitioner, the Petitioner delivered only 5 numbers of trucks containing Q.524.97.280 wheat and out of the undelivered stocks of Q.931.55.700, the Petitioner delivered Q.929.03.150 of wheat through different trucks on 18.03.2013 leaving a balance of Q.2.52.550 wheat as shortage. As a result of which, an F.I.R., bearing Khordha P.S. Case No.94 of 2013, was lodged by the District Manager, OSCSC against the Petitioner. Consequently, G.R. Case No.388 of 2013 has been initiated as well as Charge-Sheet has been submitted against the Petitioner under section 120- B/407/409 and 109 of IPC vide Final Form No.498 dated 19.12.2014 and the case is pending before S.D.J.M., Khordha till date. 8. Further, it is the stand of the Opposite Party No.2 that, as per Clause-10(iii) of the agreement dated 30.03.2012, in case of defaulting H & T Contractor, the District Magistrate shall, without prejudice to other rights and remedies, have the right to recover by way of compensation from the Contractor a sum of such rupees as decided. As per Clause- W.P.(C) No.14597 of 2023 Page 6 of 30 18 (i), the H & T Contractor is required to keep continuous & close liaison with the In-charge of the Rice Receiving Centre- Cum-Departmental Storage Centre along with District Manager and other Officials of OSCSC in respect of programme of handling and transportation of stocks so also Clause 18 (xxx) & Clause 18 (xxxii), which have already been relied on by the Opposite Party No. 3 in its Counter Affidavit. 9. A further stand has been taken by the Opposite Party No.2 denying the contentions of the Petitioner as to non-release of the security money and TC Bill arbitrarily stating that, after lapse of about six years, the Petitioner (H & T Contractor) requested for release of security money and transportation bill vide letter dated 27.03.2019. The Petitioner was requested to submit the bills for consideration of his case vide letter No.9797 dated 30.12.2019. But the Petitioner has not submitted the complete bills in respect of L-I & L-II Handling & Transport Contractor, which resulted in non- arrival of the payable amount. It is also the stand of the Opposite Party No.2 that, the Petitioner filed W.P.(C) No.4673 of 2023, which was disposed of by directing the District Collector, Khordha (Opposite Party No.4) to consider the E.C. W.P.(C) No.14597 of 2023 Page 7 of 30 Case No.03 of 2013 within a period of four weeks, failing which it will be treated that the E.C. Case pending against the Petitioner has been terminated. Though the E.C Case could not be disposed of within the stipulated time, the Opposite Party No.2-Managing Director, OSCSC, shall not bear the consequential loss of non-disposal of E.C. Case within the stipulated time as the Petitioner preferred the said Writ Petition without arraying the Managing Director, OSCSC as a party. 10.
Legal Reasoning
and conditions of the agreement dated 30.03.2012 is ex facie illegal and arbitrary. 11. Per contra, Mr. S.K. Mishra, learned Senior Counsel for the Opposite Party No.2-Corporation, drawing attention of this court to Clause 10(iii), 18(i), 18(xxx), 18(xxxii) of the agreement dated 30.03.2012, submitted that the Petitioner, while working as a Handling and Transport Contractor, was found to be involved in diversion of PDS wheat lifted from storage Depot (FSD), FCI- Jatani during the month of March, 2013. An F.I.R., vide Khordha P.S. Case No.94 of 2013, corresponding to G.R Case No.388 of 2013, was registered against him under section 120-B, 407,409 and 109 of IPC and Charge-Sheet was also submitted. W.P.(C) No.14597 of 2023 Page 9 of 30 Mr. Mishra further submitted that though the Petitioner was called upon to submit the bills for consideration for release of the security money and transport bill, complete bill was not submitted by the Petitioner, for which the payable amount could not be arrived. Though the Collector, Khordha issued show-cause notice to the Petitioner on 26.03.2013, the Petitioner intentionally avoided to receive the same. Further, the Petitioner has not challenged the order dated 01.10.2021 passed by Opposite Party No.2 rejecting the representation of the Petitioner regarding release of arrears of dues. It is also submitted by the learned Senior Counsel for the Opposite Party No.2-Corporation that, W.P(C) No.4673 of 2023 was filed by the Petitioner without impleading the Corporation as a party with a prayer to quash the E.C. Case No.03 of 2013, in which the Collector, Khordha was directed to dispose of the E.C. Case within a stipulated time, failing which the E.C. Case shall be treated as terminated. Though the E.C. Case is to be treated as terminated in view of the order passed in W.P.(C) No.4673 of 2023, the same cannot be a bar for the Opposite Party No.2 to take action against the W.P.(C) No.14597 of 2023 Page 10 of 30 Petitioner in terms of the said clauses of the agreement dated 30.03.2012, as the Opposite Party No. 2 was not impleaded as a party in the said Writ petition. Learned Senior Counsel for the Opposite Party No.2-Corporation further submitted that the Petitioner has misled this Court by submitting that the criminal proceeding initiated against him for diversion of PDS wheat from the storage has been quashed showing the Order of this Court passed in CRLMC No.4079 of 2015, as it relates to one Prasant Kumar Beuria, not the Petitioner. 12. In view of the pleadings on record so also submissions made by the learned Counsel for the parties, the following points emerge to be answered by this Court. i) Whether the Opposite Party-Corporation is justified to withhold the security deposit and transportation charges of the Petitioner in terms of the stipulations made in the agreement dated 30.03.2012 without any order passed by the District Manager to the said effect? W.P.(C) No.14597 of 2023 Page 11 of 30 ii) Whether the Petitioner is justified to seek for a direction to the Opposite Party No.3 to release the security deposit and unpaid transportation charges in his favour within the stipulated period, in view of the order dated 23.02.2023 passed by the coordinate Bench in W.P(C) No.4673 of 2023? 13. Since both the aforesaid points are inter-related, are dealt with together for the sake of brevity and clarity. As is revealed from the F.I.R. dated 19.03.2013, lodged by the District Manager, Odisha State Civil Supplies Corporation Limited, Khordha, as at Annexure-B/2 series of the Counter filed by the Opposite Party No.2-Corporation, the Petitioner, being appointed as L-1 Handling & Transporting Contractor, as per the policy of the Corporation, lifted P.D.S. Wheat from FSD depot at Bhubaneswar/Khordha Road, Jatni/OSWC, Jatni for transportation of the same to the different RRC-Cum-DSC functioning in the district. On 14.03.2013, as per programme, the Lifting Officer at FSD, Khordha Road had lifted Q.1456.52.980 of APL Wheat & delivered in 14 numbers of trucks through the Petitioner- W.P.(C) No.14597 of 2023 Page 12 of 30 Contractor for delivery of the same to RRC-Cum-DSC Khordha. On the same day i.e. on 14.03.2013, five numbers of trucks had unloaded Q.524.97.280 APL Wheat stock at RRC-Cum-DSC, Khordha. Due to non-delivery of balance 9 (nine) tucks load of APL Wheat within the stipulated time, the administration started enquiring about the matter. While the matter stood thus, the Petitioner-Contractor effected delivery of Q.929.03.150 of APL Wheat in nine trucks on 18.03.2013. However, as per the report received from the Procurement Inspector, RRC-Cum-DSC, Khordha, the Contractor delivered the stock in the trucks different from the trucks quoted in the Gate Pass-cum-Dispatch Note dated 14.03.2013 by the Lifting Officer, FSD Khordha Road. As per Clause-18(i) of the agreement executed with the Petitioner-Contractor, he is required to keep continuous & close liaison with the In- Charge of Rice Receiving Center-Cum-Departmental Storage Center, District Manager and other officials of OSCSC in respect of programme of Handling and Transportation of stock. As per Clause-18(xxxii) of the said agreement, the contractor shall guarantee the transportation of assigned quantity within the stipulated time failing which, the entire W.P.(C) No.14597 of 2023 Page 13 of 30 security deposit or part of it may be forfeited at the direction of the District Manager. As the Petitioner-Contractor allegedly proved his intention of diversion of PDS stocks for black marketing, which is a criminal offence, the District Manager of the Corporation gave such intimation to the concerned I.I.C. to treat the same as F.I.R. against the Petitioner. 14. Admittedly, based on the said intimation, F.I.R. No.94 dated 19.03.2013 was registered against the Petitioner. The I.O. submitted the Final Form vide Charge-Sheet No.498 dated 19.12.2014 under section-120(B)/407/409/109 I.P.C. read with Section 7 of the E.C. Act. It is the specific stand of the Petitioner that vide the communication dated 16.09.2013 made by the Assistant Civil Supplies Officer, Khordha, addressed to the Civil Supplies Officer, Khordha, as at Anenxure-1, followed by letter dated 27.09.2013 of the Block Development Officer, Khordha to the Civil Supplies Officer, Khordha, utilization certificates were issued with regard to the seized stock of APL Wheat, which well demonstrates that the staid stocks were distributed amongst the consumers of Khurda Municipality/Khurda Block on payment of cash towards the sale proceeds. However, due to non-release of W.P.(C) No.14597 of 2023 Page 14 of 30 security deposit so also non-payment of the bills, the Petitioner gave a representation to the District Manager of the Corporation on 10.03.2019, followed by further representation dated 27.03.2019, clearly indicating therein that there was no misappropriation of stocks and the stocks lifted were delivered at the respective points, which were duly acknowledged and a false case has been instituted against him making allegation of change of stock which is incorrect. Accordingly, a prayer was made for release of security deposit amount of Rs.20,00,000/- and unpaid bill amount of Rs.35,00,000/-. In response to the said prayer, the District Manager of the Corporation, vide communication dated 30th December, 2019, requested the Petitioner to submit his L-1 Transport Charges Bill and L-2 Transport Charges Bill for the period, as detailed in the said communication. The contents of the letter dated 27.03.2019 addressed to the District Manager of the Corporation and reply thereof dated 30.12.2019, being relevant, are extracted below: Letter dated 27.03.2019 “To The District Manager, O.S.C.S. Ltd., Khordha W.P.(C) No.14597 of 2023 Page 15 of 30 Sub: Request to release Security Deposit & Transport Bill Amount against L-I & L-II contracts. Ref: (i) L-I (Khordha District) & L-II (Khordha, Begunia & Bolagarh) contract for the period 2012-13 (ii) My letter dt. 10.03.2019 sent by speed post. Dear Sir, I draw you kind attention that all my previous correspondence and personal approaches remained unattended by your office on the subjected matter. That there was no misappropriation of stock and stock lifted where delivered/acknowledged at respective points having no shortage. That a false case has been instituted on allegation of change of stock which are not based on full proof materials on record. That huge amount around security of Rs.20 Lakhs and bill amount around Rs.35 Lakhs are blocked without any specific court’s order for which I am sustaining heavy loss. It is therefore requested that steps may kindly be taken to release above amounts at your earliest convenience. Awaiting your favourable reply in the matter as ongoing loss sustained in this regard is unbearable. Khordha Dt: 27.03.2019 Yours faithfully, Sd/- Bijay Kumar Agarwalla Ex L-I & L-II Contractor Ramchandrapur Bazar, Jatni Mob-9861216364 Copy to : (i) Commissioner-Cum-Secretary, F.S. & C.W. Department, Odisha Secretariat Bhubaneswar (ii) Managing Director, O.S.C.S.C. Ltd. C/2 Nayapalli, Bhubaneswar For favour of kind information and necessary action.” (Emphasis supplied) W.P.(C) No.14597 of 2023 Page 16 of 30 Letter dated 30.12.2019 “OFFICE OF THE DISTRICT MANAGER ODISHA STATE CIVIL SUPPLIES CORPORATION LTD., KHORDHA Letter No.9797 To Date: 30.12.19 Sri Bijay Kumar Agarwalla, Ex-L-I & L-II Transport Contractor, Khordha Ramachandrapur Bazar, Jatni, Khordha Sub: Release of Security Deposit and transport charges bill for the period 2012-13 – regarding. Ref: Your letter No.Nil Date.27.03.2019. Sir, In inviting reference to your letter on the subject cited above I am to say that on verification of office records it is revealed that your L-I Transport Contractor bill of this district has been paid upto February, 2013 and L-I Transport Charges bill from March, 2013 onwards are pending for payment. Similarly your L- II Transport Charges bill of Begunia Block & Bolagarh Block have been paid upto December, 2012 and Khordha Block have been paid upto July, 2012. You have not submitted transport charges bill to this office till date as detailed below. 1. L-I Transport Charges Bill – From March, 2013 onwards 2. L-II Transport Charges Bill of Begunia & Bolagarh Block from January, 2013 onwards. 3. L-II Transport Charges Bill of Khordha Block from August, 2012 onwards. As such your above said transport charges bills in respect of L-I & L-II Transport Contractor of this district have not been paid by this office till date. Therefore you are requested to submit L-I T.C Bills & L-II T.C. Bills for above period to this office for further action at this end. Yours faithfully, Sd/- District Manager, O.S.C.S.C Ltd., Khordha” (Emphasis supplied) W.P.(C) No.14597 of 2023 Page 17 of 30 15. Admittedly, on being so communicated, as is revealed from Annexure-6, the Petitioner deposited the bills on 15.10.2020. Thereafter, the C.S.O-Cum-District Manager, vide letter dated 07.01.2021, made a request to the Managing Director of the Opposite Party-Corporation seeking instruction for taking necessary follow up action at his level for release of arrear dues to the tune of Rs.13,93,827/- so also the amount of Rs.20,00,000/- towards the security money for both L-1 & L-2 H & T Contractor. Relevant paragraphs of the said communication dated 07.01.2021 are extracted below: Letter dated 07.01.2021 “However the entire stocks of wheat (Q.1454.00.430) received in two phases have been issued under PDS as per instruction of Govt. in FS & CW Deptt., Odisha, Bhubaneswar (letter No.7950 dt. 23.04.2013) & Corporation Head Office (letter No.8794 dt. 02.05.2013). It of that is pertinent to mention here the transportation bill applicable to Sri Agarwalla has been held up and the security money deposited by him has not been released since the date of occurrence of diversion of PDS stocks. In for the meanwhile, Sri Agarwalla has requested to amounting his arrear dues payment Rs.13,93,827/- (Rupees Thirteen Lakhs Ninety Three Thousand Eight Hundred Twenty Seven) towards transportation charges as L-II H & T Contractor for his operation in Begunia, Bolagarh & Khordha Block/Mplty. It may not be out of place to mention here that an amount of Rs.20,00,000/- (Rupees Twenty Lakhs) was deposited by Sri Agarwalla towards security money for both L-I & L-II H & t Contractor, which has not yet been released in his favour. W.P.(C) No.14597 of 2023 Page 18 of 30 In view of this necessary instructions may kindly be communicated for taking necessary follow up action at this level.” (Emphasis supplied) 16. However, because of inaction of the Opposite Parties-Corporation, the Petitioner was constraint to approach this Court in W.P.(C) No.15847 of 2021, which stood disposed of vide order dated 25.06.2021 directing the Corporation to dispose of the representation of the Petitioner within the stipulated period. On being so directed, the Managing Director of the Corporation, vide order dated 01.10.2021, disposed of the representation of the Petitioner, referring to various clauses of the agreement entered into with the Petitioner-Company so also taking a plea therein as to pendency of the matter before the District Collector, Khordha under the E.C. Act. Relevant paragraphs of the said order dated 01.10.2021 are extracted below: Order dated 01.10.2021 “xxx xxx xxx However, the entire stocks of wheat (Q.1454.00.430) received in two phases have been issued under PDS as per instruction of Govt. in FS & CW Dept. (letter No.7950 (letter dt. 23.04.2023) & Corporation Head Office No.8794 dt. 02.05.2013). The sale proceeds of the wheat have been deposited in Corporation Account. xxx xxx xxx W.P.(C) No.14597 of 2023 Page 19 of 30 Further, in this regard a show-cause notice was issued letter No.765 dt. by the Collector, Khordha vide 26.03.2013 to you through registered post. But the notice could not be served as you have refused to receive the show-cause notice. The said letter was returned by the postal authority with the remark that the petitioner refused to receive the notice. Another step was taken to serve the show-cause notice to you through the Inspector of Supplies, Jatni vide District Office letter No.835 dt. 10.04.2013. But the said notice could not be served by Inspector of Supplies, Jatni due to your absence. However, the notice was displayed in your godown wall of through “Nataka” on the 11.04.2013 at 1.00 P.M. in presence of witness. But you did not respond to the show cause notice. Dist Manager, Khordha has further submitted that in course of hearing of E.C. Case No.03/2013, district Collector, Khordha on 12.07.2013, has passed an interim order wherein it has been instructed to retain the sale proceeds of said wheat stocks in OSCSC Ltd. account till final disposal of EC Case. (Q.1454.00385) Hence in view of this, we find no substance in your claim and further held that your security money and TC Bill have not been withheld arbitrarily but as per rule and as per the terms and conditions of the agreement executed by you. Since the matter is sub- judice under Essential Commodities Act before the District Collector, Khordha and no final order has been passed in this regard, the amount payable, if any, to you shall not be released. The order dated 25.06.2021 of Hon’ble High Court passé din W.P.(C) No.15847 of 2021 is herewith complied.” (Emphasis supplied) 17. The specific case of the Petitioner is that, he was not aware about the pendency of the E.C. Case No.03 of 2013 instituted against him under Section 6-A of the E.C. Act before the Collector, Khordha. Knowing about pendency of the said proceeding from the aforesaid communication dated 01.10.2021, he approached the Collector, Khordha to dispose W.P.(C) No.14597 of 2023 Page 20 of 30 of the said case at the earliest. On being so communicated, the Collector, vide order dated 29.10.2021, posted the matter to 26th November, 2021, followed by notice dated 30.03.2022 fixing the date to 8th April, 2022. Hearing of the said proceeding being concluded, the Petitioner also filed his written notes of submission on 30th April, 2022. As is revealed from the said written notes of submission, filed in E.C. Case No.03 of 2013, as at Annexure-13, the Petitioner took a plea before the Collector-Cum-District Magistrate, Khordha that there was only two days delay in delivering the APL wheat with regard to nine trucks loads of wheat because of intervening Saturday and Sunday and the entire allegation against the Petitioner is false. That apart, to demonstrate before this Court that no loss was caused to the Corporation for such delay in delivering of wheat, utilization certificates dated 16.09.2013 & 27.09.2013 have been annexed to the Writ Petition as Annexures-1 & 2. 18. Admittedly, no document has been appended to the Counter Affidavits filed by the Opposite Party Nos.2 & 3 nor any stand has been taken in the said Counter Affidavits regarding any loss caused to the Corporation because of the W.P.(C) No.14597 of 2023 Page 21 of 30 conduct of the Petitioner in delivering Q.929.03.150 of APL Wheat after four days of lifting the said Wheat. The only allegation made in the F.I.R. dated 19.03.2013 is regarding some alleged discrepancy with regard to differing of truck numbers in the Gate Pass-cum-Dispatch Note dated 14.03.2013 issued by the Lifting Officer, Khordha Road. The contents of the said F.I.R. are extracted below: “OFFICE OF THE DISTRICT MANAGER, OSCSC LTD, KHORDHA Letter No.725/Corpn Date: 19.03.13 To The Inspector-In-Charge. Town P.S., Khordha Sub: Diversion of PDS APL Wheat by Sri Bijaya Kumar Agrawalla, L-I H & T Contractor-Submission of FIR thereof. Sir, This is inform you that after introduction of Departmental Storage System w.e.f. 1.4.2012 one Sri Bijaya Kumar Agrawalla, S/o Late Motilal Agrawala, At-Ramachandrapurbazar, P.O-Jatni, Dist-Khordha has been appointed as L-1 Handling & Transporting Contractor in this district. As per Odisha State Civil Supplies Corporation policy Sri Agrawalla has been engaged in lifting of P.D.S. Wheat from FSD depot at Bbhubaneswar/Khordha Road, Jatni/OSWC, Jatni and transportation of same to the different RRC-Cum-DSC functioning in the district. On 14.03.2023 as per programme, the Lifting Officer at FSD, Khordha Road had lifted Q.1456,52,980 of APL Wheat & delivered in 14 Nos. of trucks ( a copy of report of ACSO, I/C of Lifting enclosed) through Sri B.K. Agrawalla, L-I H & T Contractor for delivery of the same to RRC-Cum-DSC Khordha. On the same day i.e on 14.03.2023 5 nos. of Trucks had unloaded Q.524,97,280 APL Wheat stock at RRC-Cum-DSC, Khordha. Due to non- delivery of balance 9 (nine) tuck loads of APL W.P.(C) No.14597 of 2023 Page 22 of 30 the time stipulated Wheat within the administration started enquiry about the matter. While the matter stood thus the L-1 H & T contractor effected delivery of Q.929,03,150 of APL Wheat in 9 trucks on 18.03.2013. But as per report received from the Procurement Inspector, RRC-Cum-DSC, in-charge, Khordha the Contractor delivered the stock in the trucks different from the trucks quoted in the Gate Pass-cum-Dispatch Note on dt. 14.03.2013 by the Lifting Officer, FSD Khordha Road. As per Clause-18(i) of the agreement executed with the H & T “The H & T Contractor is required to keep continuous & close liaison with the in- Charge of Rice Receiving Center-Cum-Departmental Storage, Center District Manager and other officials of OSCSC in respect of programme of Handling and Transportation of stock and Clause-18(xxxii) “The H & T Contractor shall guarantee transportation of assigned quantity within the stipulated time failing which the entire security deposit or part of it may be forfeited at the direction of the instruction of the District Manager. The above activity of Sri Bijay Kumar Agrawalla, L-I H & T Contractor prove his intention of diversion of PDS stocks for black marketing which is a criminal offence. the This may please be treated as F.I.R. against Sri Bijay Kumar Agrawalla, L-I H & T Contractor. Yours faithfully, Sd/- District Manager, O.S.C.S.C Ltd., Khordha Enclosed: Report of ACSO FSD, Khordha Road dtd. 19.03.2013. Report of P.I., RRC-Cum-DSC, Khordha dated 19.3.2013” (Emphasis supplied) 19. Admittedly, because of the inaction of the Collector, Khordha to dispose of the E.C. Case No.03 of 2013, the Petitioner was constraint to approach this Court in
Arguments
Ms. S. Mohapatra, learned Counsel for the Petitioner submitted that, though the allegation of diversion of PDS wheat was made in the year 2013 for which E.C Case No.03 of 2013 was initiated against the Petitioner, her client came to know about the case number so also pendency of the said case from the speaking order dated 04.10.2021 passed by the Managing Director, OSCSC (Opposite party No.2). It is further submitted that, in terms of Clause 18(xxxii) of agreement dated 30.03.2012, it is only the District Manager, who has the right to forfeit the security deposit. However, in the present case no order of forfeiture has been passed by the District Manager, Khordha. Instead, the Opposite Party No.3 W.P.(C) No.14597 of 2023 Page 8 of 30 has categorically mentioned that the security deposit and transport bill are withheld due to pendency of E.C Case No.3 of 2013. It is further submitted by the learned Counsel for the Petitioner that, from the Counter Affidavit filed by the Opposite Party No.2, it is revealed that there was no violation to the agreement as the Utilization Certificate was issued by the Competent Authority. Hence, plea of violation of terms
Decision
W.P.(C) No.4673 of 2023, which stood disposed of at the stage W.P.(C) No.14597 of 2023 Page 23 of 30 of admission on 23.02.2023 recording the submissions made by the learned Counsel for the Petitioner. Paragbraphs-3 to 8 of the said order passed in W.P.(C)No.4673 of 2023, being relevant, are reproduced below: “3. The present writ petition has been filed by the petitioner with a prayer to quash the E.C. Case No.03 of 2013 pending before the Collector, Khordha by concurrently holding the same as bad, illegal and not tenable in the eye of law. the petitioner approached before 4. Learned counsel for the petitioner, at the outset, submits that the proceeding is of the year 2013 and by filing an application on 07.10.2021, the same is still pending before the Collector, Khordha. After filing an application, the Collector, Khordha-Opposite Party No.2 and the said Opposite Party No.2 issue notice to the petitioner under Annexure-4. Thereafter, the notice has been issued by the petitioner under the said Opposite Party Annexure-5. She further submits that the petitioner has already filed a written note of submissions along with supporting documents. However, the matter is still pending before the said Opposite Party. to 5. Further, learned counsel for the petitioner contended that a criminal proceeding, which was initiated against the petitioner bearing G.R. Case No.388 of 2013 arising out of Kordha P.S. Case No.94 of 2013 has been quashed by this Court in CRLMC No.4079 of 2015 vide order dated 09.09.2022. 6. In such view of the matter, learned counsel for the petitioner submits that since the criminal case has already been quashed, the petitioner is unnecessarily being harassed by pending the E.C. Case. 7. Learned counsel for the State, on the other hand, submits that the writ petition can be disposed by directing the Collector, Khordha-Opposite Party No.2 to dispose of the C.E. Case No.03 of 2013 in accordance with law within a stipulated time and he has no objection to the same. 8. Considering the submissions made by the respective parties, this Court deems it proper to dispose of the writ petition by directing the Collector, Khordha- Opposite Party No.2 to consider the case of the petitioner and disposed of E.C. Case No.03.2013 by providing an opportunity of hearing to the petitioner along with supporting documents. Further, it is open for W.P.(C) No.14597 of 2023 Page 24 of 30 the petitioner to bring notice to the Opposite Party No.2 to the fact that the present case has already been quashed by this Court. The said Opposite Party No.2 shall do well to consider the case and dispose of the same expeditiously in accordance with law within a period of four weeks from the date of production of certified copy of this order, failing which it will be treated that the proceeding bearing E.C. Case No.03 of 2013 pending against the petitioner has been terminated. This order shall effect from the date of production of certified copy of this order before the Opposite Party No.2 within two weeks from today.” (Emphasis supplied) 20. As has been admitted in the Counters filed by the Opposite Party Nos.2 & 3, the Collector-Cum-District Magistrate, Khordha, though concluded the hearing in E.C. Case No.03 of 2013, but no final order has been passed till date. Hence, in view of the order dated 23.02.2013 passed by the coordinate Bench in W.P.(C) No.4673 of 2023, the proceeding bearing E.C. Case No.03 of 2013, pending against the Petitioner, stands terminated and this Court is of the view that, it is no more open for the Opposite Party No.2- Corporation to take a plea of pendency of E.C. Case No.03 of 2013 against the Petitioner so also interim order passed by the said Court to retain the sale proceeding of the said wheat stock (Q.1454.00385), which was ordered to be kept in the Corporation’s account till disposal of the E.C. Case. W.P.(C) No.14597 of 2023 Page 25 of 30 21. The Opposite Party No.2-Corporation has taken a stand in its Counter that, in view of Clause 18(xxxii) of the agreement, in case of failure to comply any or all of the conditions of the agreement, shall render the Petitioner- Contractor to liquidate damages on account of such failure in addition to forfeiture of the security money in full or in part and the Corporation also reserves the right to take recourse to any legal action against the Petitioner, in addition to forfeiture of security money and liquidated damages. Admittedly, no such action has been taken by the Opposite Party No.3 till date against the Petitioner to forfeit the security money on the ground of alleged failure to act in terms of the said agreement, thereby causing any loss to the Corporation. Similarly, though Clause 18(xxxiv) of the said agreement permits the District Manager of the Corporation to forfeit the entire security deposit or part of it and Clause 10(iii) of the agreement permits the District Manager to recover by way of compensation from the Petitioner-Contractor a sum of such rupees, as decided in case of default of the Petitioner, admittedly, the District Manager has not quantified the compensation, to be recovered from the Petitioner, for his W.P.(C) No.14597 of 2023 Page 26 of 30 default to deliver the part of the PDS stock after four days. To the contrary, on getting a request from the Petitioner, vide his representation dated 10.03.2019, followed by representation dated 27.03.2019, instead of exercising his discretion, the District Manager of the Corporation, vide communication dated 30.12.2019, the contents of which has already been extracted above, requested the Petitioner to submit his bills as indicated vide the said communication. Though the Petitioner acted in terms of such request vide his letter dated 15.10.2020, instead of acting in terms of the assurance given to the Petitioner, vide communication dated 30.12.2019 as At Annexure-5, the said prayer for refund of security money deposited and payment of unpaid bills was kept pending, for which the Petitioner was constraint to approach this Court in W.P.(C) No.15847 of 2021 seeking for a direction to release the arrear dues and refund of security deposit in terms of the letter dated 07.01.2021, as at Annexure-7, of the C.S.O-cum- District Manager of the Corporation, addressed to the Managing Director of the Opposite Party-Corporation. Only after a direction was given by this Court in W.P.(C) No.15847 of 2021, a communication was made to the Petitioner taking a W.P.(C) No.14597 of 2023 Page 27 of 30 plea therein as to interim order passed in E.C. Case No.03 of 2013 so also pendency of the said case before the Collector- cum-District Magistrate, Khordha. 22. Admittedly, though the District Manager is competent to take action against the Petitioner in terms of Clause 10(iii), Clause 18(xxxii) and Clause 18(xxxiv) of the agreement dated 30th March, 2012, no communication was ever made to the Petitioner by the District Magistrate exercising his right to forfeit the security money of the Petitioner on the ground of not delivering the assigned quantity within the stipulated time so also on the ground of causing any loss to the Corporation. Further, from the admitted facts and documents on record, this Court is of the view that no loss was caused to the Corporation for the alleged illegality committed by the Petitioner so also few days delay in delivering the lifted stock, as has been detailed above. This Court is of the further view that in terms of Clause 10(iii) of the agreement, though the District Manager, without prejudice to the other rights and remedies of the said agreement, have a right to recover by way of compensation from the Petitioner-Contractor, a sum of such rupees to be W.P.(C) No.14597 of 2023 Page 28 of 30 decided by him in case of failure on the part of the Petitioner- Contractor to perform any of the services mentioned vide the said agreement efficiently, no such communication was ever made by the District Manager of the Corporation to the Petitioner alleging his failure to perform any of the services mentioned vide the said agreement. 23. Hence, this Court is of the view that the conduct of the Corporation, in not releasing the unpaid bills of the Petitioner so also security amount, is unjustified in view of the correspondences made between the parties, as detailed above, so also the stand of the Corporation regarding the interim order passed by the Collector-District Magistrate, Khordha in E.C. Case No.03 of 2013 so also pendency of the said case, which can no more said to be pending, in view of the order passed by the coordinate Bench in W.P.(C) No.4673 of 2023, as extracted above. 24. This Court is of also of the view that, since the proceeding in E.C. Case No.03 of 2013 stood terminated against the Petitioner in terms of the order dated 23.02.2023 passed by the coordinate Bench in W.P.(C) No.4673 of 2023 and no action has yet been taken against the Petitioner in W.P.(C) No.14597 of 2023 Page 29 of 30 terms of the various provisions of the agreement, as detailed above, the prayer made in the Writ Petition seeking for direction to release the security deposit and transportation charges is justified. Accordingly, both the points, as detailed above, are answered in favour of the Petitioner. 25. The Opposite Party Nos.2 & 3 are directed to make the payment of the unpaid admitted unpaid bills of the Petitioner so also Rs.20,00,000/- deposited by the Petitioner towards security money with the Corporation within a period of six weeks from the date of production of the certified copy of this order. 26. Accordingly, the Writ Petition stands allowed and disposed of. No order as to cost. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack Dated, 28th August, 2024/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Aug-2024 11:50:08 Page 30 of 30 W.P.(C) No.14597 of 2023