The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 20893 OF 2024 (An application under Article 226 of the Constitution of India) * * * * Security and Detective Services (India), Cuttack …. Petitioner -versus- Cuttack Development Authority, Cuttack …. Opp. Party Advocates appeared: For Petitioner : Mr. Sudarshan Nanda, Advocate For Opp. Party : Mr. Dayananda Mohapatra, Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA --------------------------------------- Heard and disposed of on 31.08.2024 --------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Letter No. 6717 dated 16th August, 2024 (Annexure-6) issued by the Secretary, Cuttack Development Authority, Cuttack (for short ‘CDA’) is under challenge in this writ petition, whereby the Petitioner is requested to disengage/ withdraw security guard provided by it with effect from 1st September, 2024 positively. 3. Mr. Nanda, learned counsel submits that the case of the Petitioner has a checkered history. The Petitioner had approached this Court on several occasions for redressal of its Page 1 of 7 // 2 // grievances. It is his submission that the Petitioner-Agency has been engaged to provide security services to the CDA. It was engaged on 31st March, 1999 and subsequent agreements were executed renewing its contract as service provider. Although there is a specific provision in the agreement to give one month notice to disengage the Petitioner, but, Annexure-6 clearly indicates that only fifteen days notice has been given to the Petitioner to withdraw/disengage the security guard it has provided. The Petitioner has also not been paid its arrear dues as a service provider, which is more-fully stated at Annexure-7 series. 3.1. It is his submission that initially the Petitioner had approached this Court in W.P.(C) No.3765 of 2009, which was disposed of on 14th May, 2009 with the following direction: “Let the CDA Authorities take a final decision on the claim of the Petitioners and if the Petitioners are entitled to get the amount, the same be paid to them within a period of two months from the date of communication of this order. Interim order dated 23.03.2009 shall continue till a decision is taken by the CDA Authorities in this regard. The writ application and the misc. case are disposed of accordingly.” 3.2. In the said writ petition, this Court vide order dated 23rd Macy, 2009, as an interim measure, directed that tender in pursuance of the tender call notice under Annexure-10 should not be given effect to till the next date. Further, the Petitioner had approached this Court in W.P.(C) No.6951 of 2018, which was disposed of on 4th November, 2020 with the following direction: Page 2 of 7 // 3 // “xxx xxx xxx In that view of the matter, we dispose of the writ petition, without commenting upon the merits of the claim of the petitioner, directing the petitioner to submit a copy of this order along with fresh copy of Annexure-8 before the CDA authorities within a period of 10 days. On such event, the authorities of CDA will afford a reasonable opportunity of hearing to the petitioner and to produce the documents and after submitted into consideration documents, shall dispose of its representation by a reasoned and speaking order in accordance with law within 21 days from the date of production of soft copy of this order. If the petitioner is found entitled to the amount claimed, it shall be released in his favour the disposal of his within representation.” two months of taking the 3.3 Mr. Nanda, learned counsel submits that till date, arrear dues of the Petitioner has not been settled by the CDA in spite of specific directions of this Court in W.P.(C) No. 3765 of 2009 and W.P/ (C) No. 6951 of 2018. Instead the CDA issued notice under Annexure-6 to disengage the Petitioner to provide security guard. He, therefore, submits that the CDA Authorities should comply with the terms of the agreement providing one month prior notice to the Petitioner for its disengagement before engaging any other agency to provide security services. 3.4 It is further submitted that unless and until the arrear dues of the Petitioner is settled, it should not be disturbed. In support of his submission, Mr. Nanda, learned counsel for the Petitioner relied upon the decision in the case of Kumari Shrilekha Vidyarthi etc. etc. –v- State of U.P. and others, reported in AIR 1991 SC 537, wherein it is held that the State activity in contractual matters also within the purview of judicial Page 3 of 7 // 4 // review. He refers to paragraphs-35 and 48 of Kumari Shrilekha Vidyarthi (supra), which read thus: “35. It is now too well-settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. xxx xxx xxx 48. In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two in M/s Dwarkadas Marfatia recent decisions and Sons, (supra) and Mahabir Auto Stores & Ors., (supra) also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power.” 3.5 He also relied upon the case of Madras Aluminium Co. Ltd. –v- Tamil Nadu Electricity Board and another, reported in Page 4 of 7 // 5 // AIR 2023 SC 3353, wherein the Hon’ble Supreme Court at paragraphs-31 and 32 reiterated the principles laid down in the case of Kumari Shrilekha Vidyarthi (supra). 3.6 He, therefore, submits that this Court has ample jurisdiction to entertain the writ petition in contractual matters. When there is patent illegality and arbitrariness in terminating the contract of the Petitioner without complying with its terms and conditions, the disengagement notice itself is per se illegal and is liable to be set aside. 4. Mr. Mohapatra, learned counsel for CDA vehemently objects to the same. It is his submission that if there is any outstanding dues of the Petitioner, it may approach the CDA Authorities detailing its grievances and the same shall be considered within two months. He further submits that pursuant to the tender call notice, another agency has already been selected to provide security services to the CDA. Hence, further continuance of the Petitioner will be improper. He, therefore, submits that the writ petition should be dismissed. 5. Taking note of the submissions made by learned counsel for the parties, this Court finds that grievance of the Petitioner is with regard to non-compliance of the terms of the agreement by giving one month notice to the Petitioner for its disengagement and that it has some arrear dues outstanding against CDA. 5.1 Petitioner had approached this Court earlier for clearance of its arrear dues and it is stated to be pending with the authorities. There is no material on record to prima facie form an opinion that the Petitioner has any outstanding dues on the CDA, which was directed to be cleared in terms of the earlier Page 5 of 7 // 6 // two writ petitions referred to above, save and except the statement provided under Annexure-7 series. The same requires consideration by the CDA referring to the concerned record available with it. Thus, in absence of any material to test the veracity of statement under Annexure-7 series, it is very difficult to accept the submission of Mr. Nanda, learned counsel for the Petitioner. 5.2 Further it appears that at present there is no subsisting contract with the CDA to provide security personnel by the Petitioner. Thus, question of violation of any terms of contract by CDA, as alleged by the Petitioner, does not arise at all. Further, there is no sufficient material on record to substantiate the allegation of the Petitioner with regard to violation of any of the terms of the agreement save and except the submission of Mr. Nanda, learned counsel for the Petitioner. Although Annexure-6 prima facie discloses that a fifteen days notice is given to the Petitioner to disengage it to provide security guard to the CDA, but the fact remains that violation of any of the terms of the agreement is a matter of adjudication of facts basing upon material on record. In absence of any material on record to substantiate that there is any subsisting contract of the Petitioner with CDA to provide security personnel, this Court is constrained to hold that the Petitioner has failed to establish violation of any of the term of agreement, as alleged. 6. There is no quarrel for the case law cited by Mr. Nanda, learned counsel for the Petitioner, but, in view of the fact that pursuant to the tender call notice, one agency has already been selected to provide security personnel, further continuance of the Page 6 of 7 // 7 // Petitioner in providing security guard to the CDA will not be proper, more particularly when the tender call notice pursuant to which a fresh service provider is selected has not been challenged. 7. Taking into consideration the submission made by Mr. Mohapatra, learned counsel for CDA, this Court holds that if an application is filed within a period of two weeks hence for release of arrear dues of the Petitioner, the same shall be considered within a period of two months therefrom, providing opportunity of hearing to the Petitioner. If it is found that the Petitioner has any outstanding dues to be paid by CDA, the same shall also be released within the period, as aforesaid. 8. With the aforesaid observation and direction, the writ petition is disposed of. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated the 31st August, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Sep-2024 17:52:48 Page 7 of 7