WP(C) 1724/2008 BEFORE HON’BLR MR. JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (ORAL) Although in Misc. Case No.1471/2008 filed by the respondent-Corporation, the pra yer made is to vacate the interim order dated 7.5.2008 passed in the writ petiti on, instead of hearing the matter on that and as agreed to by the learned counse l for the parties, the writ petition itself is decided on merit. 2. The writ petition pertains to the Annexure-’S’ order dated 26.4.2008 by which the contract in question, earlier awarded to the petitioner, has been canc elled at the risk and cost of the petitioner as per the provisions of the contr act agreement. The contract involved is transportation of foodgrains/sugar/allie d materials from Ex-Railway Siding /FSD Dhemaji to FCI godown at Daporijo includ ing handling works at Daporijo on regular basis for two years. 3. Pursuant to the NIT etc. the petitioner was awarded with the contract v ide Annexure-’B’ letter dated 19.11.2007. 4. By Annexure-’Q’ Final Show Cause Notice dated 16.4.2008, the petitioner was asked to show cause within 23.4.2008 as to why the aforesaid contract woul d not be terminated and the work should not be done at the risk and cost in term s of clause X (b) of the contract agreement. As per the said notice, there was failure on the part of the petitioner to perform the contractual obligation by way of transportation of foodgrains. Admittedly, the petitioner did not furnish any reply. However, the explanation furnished by the petitioner is that the sho w cause notice was received by the petitioner only on 23.4.2008. Further conten tion of the petitioner is that at that point of time, he was suffering from illn ess. 5. The respondent-Corporation terminated the contract by the aforesaid impu gned order dated 26.4.2008 (Annexure-’S’ to the writ petition). During the cour se of hearing, it was submitted that pursuant to the impugned order, the Corpo ration has initiated the fresh tender process for the same job at the risk and cost of the petitioner. Further submission made is that today is the date for opening the tenders. 6. Writ petition was entertained by order dated 7.5.2008 and in the interim , it was provided that the tenders should not be opened without the leave of t his Court. It was further provided that the respondent-Corporation should not t ransport the foodgrains by engaging any private contractors. However, liberty wa s granted to approach this Court for modification of the interim order. Accordi ngly, the respondent-Corporation has filed Misc. Case No.1471/2008 praying for vacating the said interim order. 7. I have heard Mr. A.K. Goswami, learned Sr. counsel assisted by Mr. S.K. Kejriwal, learned counsel for the petitioner as well as Mr. P.K. Roy, learne d Standing Counsel, Food Corporation of India. 8. I have gone through the materials on record. As noticed above, the cont ract was awarded to the petitioner by Annexure-’B’ letter dated 19.11.2007 and i t was indicated that the petitioner would be solely responsible and liable for a ny failure to carry out the transportation works of assigned quantity of foodgr ains/sugar etc. within the specified time period and in the event of any failure , the authority would within its jurisdiction get the transportation works done at its own risk and cost to maintain public distribution system intact. 9. By Annexure-’E’ letter dated 18.1.2008, the Area Manager of the Corporat ion directed the petitioner to make arrangement for dispatching 400 MT of rice within 30.1.2008. In the letter, it was indicated that daily indent for suppl y of trucks would be furnished in writing with acknowledgement properly in ord er to save railway demurrage charge and upon failure of the petitioner to transp ort the foodgrains, the responsibility in respect of demurrage charge should be fixed on it. The letter was addressed to the Depot Incharge, Dhemaji and the co py of the same was endorsed to the petitioner with a request to complete the al lotted stock within the validity period. It was also requested to fulfil the dai ly truck programme of the Deport Incharge. 10. According to the petitioner, as per the indent furnished, he had suppli ed two trucks on 22.1.2008 and another two on 25.1.2008 for transportation of ri ce to FSD Daporijo after observing necessary formalities. 11. In paragraph 21 of the writ petition, the petitioner has stated about th e purported difficulties faced by him towards transportation of foodgrains, such as non-fixation of rent of the godown at Daporijo, non-installation of electron ic weighing machine etc. In the meantime, the Area Manager of the Corporation by his Annexure-’H’ letter dated 1.3.2008 addressed to the Depot Incharge, Dhemaji intimated about the extension of the programme upto 30.3.2008 towards completi on of the work. A copy of the said letter was endorsed to the petitioner intima ting that the petitioner had completely failed to dispatch the stock as per the Movement Order of 400 MT within a period of two months. A request was made to the petitioner to complete the movement order within 30.3.2008 without fail. It was also intimated that the terms and conditions of contract would remain same during the period in question. It was further intimated that upon failure, the petitioner would be treated as defaulter and alternative arrangement would be ma de at its risk and cost. 12. There is nothing to show that the petitioner had responded to the said l etter dated 1.3.2008. However, the petitioner by his Annexure-I letter dated 14 .3.2008 made a grievance against the weighbridge at Daporijo as according to it, the officials at Daporijo had arbitrarily declared some quantity of stocks so d espatched by the petitioner as received short. 13. The petiioner was once again intimated by Annexure-’J’ letter dated 13. 3.2008 about his failure to transport the stock as per the movement order of 400 MT within 3 months. In the letter, it was indicated that the petitioner did not take any interest for transportation of foodgrains during the month of Febru ary, 2008 and till the date of issuance of the letter except 47 MT during the month of January, 2008. Accordingly, the petitioner was directed to complete th e movement order of 400 MT without fail. As in the earlier letter, it was also intimated that on failure of the petitioner to carry out the stocks as per the contract agreement, it will be treated as a defaulter and alternative arrangem ent would be made at its risk and cost. 14. In the meantime, the Area Manager by his Annexure-’K’ letter dated 17.3. 2008 addressed to the General Manager, Food Corporation of India intimated about the request of the petitioner for installation of Electronic Weighing Machine at Daporijo. However, in the letter, it was also intimated that irrespective o f Electronic Weighing Machine, the works relating to receipt of stocks had been going on with the weightment facility of beam scale. Further intimation was made that the petitioner had transported only 48 MT rice to Daporijo on the plea of non-availability of the Electronic Weighing Machine. The copy of the letter wa s endorsed to the petitioner to complete the movement order for dispatch of foo dgrains to Daporijo within 30.3.2008. 15. The aforesaid letter was followed by Annexure-’L’ letter dated 31.3.2008 issued by the Area Manager to the Assistant General Manager, FCI indicating tha t the petitioner had transported only 47.333 MT rice to Daporijo as against the movement order of 400 MT. 16. After the aforesaid development, the authority of the Corporation issued Annexure-’M’ letter dated 1.4.2008 extending the movement period up-to 29.4.2 008 intimating the petitioner to complete the dispatch order. While endorsing c opy of the order of extension to the petiioner, it was indicated that the petiti oner had totally failed to execute transportation work as per the movement ord er dated 18.1.2008 of 400 MT within a period of 3 months. The petitioner was req uested to complete the movement order within 29.4.2008 to meet up the PDS alloc ation to Daporijo as there was no stock available at FSD/Daporijo. As in the e arlier letter, the petitioner was informed that upon its failure to make despatc h of foodgrains, it will be declared as a defaulter and in such eventuality, the work will be executed at its risk and cost. 16. By Annexure-’N’ letter dated 31.3.2008/2.4.2008, the petitioner was int imated about his poor performance in execution of works. Accordingly, the petit ioner was once again requested to improve the performance immediately. The said letter was followed by the Final Show Cause Notice dated 16.4.2008 and the impu gned order dated 26.4.2008 (Annexure-’Q’ and ’S’ to the writ petition) respectiv ely. 17. The stand of the petitioner as could be gathered from the writ petition has been enumerated in Para-4 of the Misc. Case No.1471/2008. Each of the plea of the petitioner has been dealt with in Para-5 of the said Misc. Case. During the course of hearing, Mr. Goswami, learned counsel for the petitioner submitte d that because of failure to provide facilities, the authority also failed to pl ace indent as a consequence of which, the petitioner could not execute the work . This plea has been dealt with by the respondents in the Misc. Case. According to the respondent-Corporation, the Depot Incharge, Dhemaji had issued indents f or supply of 106 Nos.of trucks during the period from 3.2.2008 to 29.2.2008, 113 Nos. of trucks for the period from 1.3.2008 to 31.3.2008 against which the pet itioner did not supply even a single truck. It is the stand of the respondent-C orporation that as against the movement programme of 400 MT per month, the peti ioner could transport and supply only 47.333 MT. The aforesaid stand of the res pondent-Corporation finds mention in Para 5 (g) of the Misc. Case as well as in the affidavit-in-opposition filed in the writ petition. The respondents have al so placed on record the copies of the indents in the affidavit-in-opposition. 18. As against the aforesaid plea of the respondent-Corporation, it is the s tand of the petitioner that he was not placed with requisite indent, but for whi ch he could have executed the works by way of transportation of foodgrains. 19. Clause X of the Technical Bids dealing with the duties and responsibilit ies of the contractor provides that the contractors shall advise the General Man ager (Region) and officers authorized to act on his behalf, the name of one or more responsible representative(s) authorized to act on their behalf in day to d ay working of the contract. It shall be the duty of those representative(s) to c all at the office of the General Manager (Region), or an officer acting on his behalf, everyday and generally to remain in touch with them to obtain informatio n about the programme of arrivals and dispatches to various recipients and othe r godown activities and to report the progress of loading/unloading/transport wo rk etc. and generally to take instructions in the matter. 20. It is the admitted position that the authorized agents of the petitioner is one Onkarmal Sharma. At this stage, the learned counsel for the petitioner submits that, apart from Shri Onkarmal Sharma, there is another agent namely, Sh ri Banowarilal Sharma. Thus, in terms of the above quoted clause X of the cont ract, it was the duty of the petitioner to monitor the road movement programme i n collaboration with the Depot Incharge. Having regard to the nature of job invo lved, if the plea of the petitioner that no transportation could be made in abse nce of indents then in that case, for each and every indent, the officials of th e F.C.I. will have to run after the agents of the petitioner for furnishing inde nts. The petitioner was placed with the movement order on 18.1.2008 with the req uest to complete the allotted stock i.e. 400 MT within the validity period. He w as also requested to fulfil the daily truck programme in collaboration with the Depot Incharge at Dhemaji. The petitioner has himself admitted that it supplied foodgrains of two or four trucks even without indent and the indent was issued at subsequent dates. The respondent-Corporation has indicated that the dates o f indents during the period from 21.2.2008 to 26.4.2008. Annexure-’C’ series ar e the indents pursuant to the movement order dated 18.1.2008. It was the duty of the petitioner and/or his agents to report to the Deport Incharge, Dhemaji for transportation of foodgrains. 21. As noted above, the petitioner was intimated from time to time about his poor performance and failure to transport foodgrains to which there was no repl y from the petitioner. In respect of reply to the show cause notice, the plea o f the petitioner is that the show cause notice dated 16.4.2008 was received by h im on 23.4.2008, it is the categorical stand of the respondent-Corporation that the notice was duly received by said Shri Onkarmal Sharma on 18.4.2008. The re spondent-Corporation has annexed copy of the acknowledgement receipt on 18.4.200 8. Although it has been contended by the petitioner that the letter in respect of which the acknowledgement receipt has been annexed is in respect of some oth er subject and not pertaining to Annexure-’Q’ Show Cause Notice dated 16.4.2008, the acknowledgement receipt itself indicates that the same is pertaining to Ann exure-’Q’ Show Cause Notice dated 16.4.2008. 22. The petitioner did not reply to the Show Cause Notice and so also, other letters issued to him from time to time about which mention has been made abov e. 23. After the termination of the contract, the petitioner has taken the plea of receipt of the Show Cause Notice dated 16.4.2008 only on 23.4.2008 and thus, there was no time left to reply. Further stand of the petitioner is that sinc e he was suffering from illness, he could not furnish reply. The petitioner nev er intimated the respondent-Corporation about his illness. However, this aspect of the matter need not detain us when the acknowledgement receipt clearly indica tes that the Show Cause Notice was received by the petitioner on 18.4.2008. 24. The contract awarded to the petitioner has been terminated as per the t erms and conditions of agreement. The contract had to be terminated upon failur e of the petitioner to transport foodgrains as per the movement order issued on 18.1.2008. After termination of the contract, the respondent-Corporation has flo ated fresh tender at the risk and cost of the petitioner. Today is the last dat e for opening the tender. This Court by order dated 7.5.2008 had not stayed the termination of the contract but only provided that the tender may not be finaliz ed without the leave of the Court. 25. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed. Interim order dated 7.5.2008 stands vacate d.