IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1055 of 2007 PURVOTTAR RAILWAY LOCO HANDLINING SHRAMIK SAHYOG SAMITI LTD., Muzaffarpur through its Secretary Ajit Kumar, son of Mohan Prasad Sinha, resident of Brahmpura, P S – Brahmpura, in the town and district – Muzaffarpur. Versus 1. THE UNION OF INDIA, Ministry of Railway, Rail Bhawan, New Delhi. 2. The Zonal Manager, East Central Railway, Hajipur, Bihar. 3. The Divisional Railway Manager, East Central Railway, Sonepur, Chapra. 4. The Senior Divisional Commercial Manager, East Central Railway, Sonepur, Chapra. 5. The Divisional Commercial Manager, East Central Railway, Sonepur, Chapra. 6. The Senior Divisional Financial Manager, East Central Railway, Sonepur, Chapra. ----------- For the petitioner : Mr. Manu Shankar Mishra. For the respondents : Mr. A. Amanullah. -------- 07. 7-11-2009 Issuance of a tender notice published in the local newspaper “Hindustan” dated 14.1.2007/15.1.2007 (Annexure-7) was the immediate provocation for the petitioner, said to be a registered labour co-operative society, to file the present writ application to restrain the respondent railway authorities for making settlement of work of porterage of goods and/or parcels at the platform and parcel office situated at Muzaffarpur Railway Station. They want quashing of the tender as well as extension of the agreement which was earlier entered between the petitioner’s society and the respondent railway authorities. Some of the facts which have been pleaded in the writ application is that petitioner’s society is a registered society representing a labour co-operative, with registration number being 8/Muz (East) dated 5.5.1984. With the object of encouraging as well - 2 - as keeping the welfare of the various labourers who are members of such labour contract society, the railway Board vide circular dated 21.9.1973 laid down guidelines in matter of award of handling contract of goods, parcels, coal, coal ashes, cinder picking, ash-pit cleaning etc. The circular is annexure-8 to the writ application. The Railway Board categorically laid down that all kinds and nature of work mentioned above should be awarded to genuine cooperative labour contract societies of actual workers without calling for tenders, irrespective of the value of the contract. It seems that the earlier circular had laid down a ceiling of 2 lacs which had been widened in ambit vide annexure-8. The circular contained in annexure-8 is one of the sheet anchor for challenging the tender notice which is annexure-7 to the writ application. Contention of the petitioner is that welfare of workmen and contract labourers having their own co-operative societies is paramount and have to be given work or contract indicated above. The conduct of the respondents has the effect of defeating the said policy. The respondent railway authorities are trying to award the contract to a private individual for reasons unexplained and in gross violation if not breach of the circular of the Railway Board. The circular being couched in emphatic words ought not to be given a goby to award a contract to an individual at the cost of denial to the members of the labour co-operative society. The initial agreement was entered between the parties in the year 1998 and the same has been continued, extended over the years. Last of the - 3 - extension lasted till 31.12.2005. Thereafter also work has been taken from the members of the petitioner’s society but all of a sudden a tender contained in annexure-7 came to be issued. The request or the demand of the society for extending the agreement has been brushed aside. When the writ application was filed on 24.1.2007, taking into consideration the basic submissions the High Court was pleased to stay the tender notice on 13.2.2007 with a direction upon the railway authorities to file a counter affidavit explaining the position. Counter affidavit on behalf of respondent railway authorities has come to be filed. Though some of the basic facts pleaded and urged at the bar is not denied but their stand is that the authorities were forced to issue a fresh tender under certain circumstances. One of the primary reasons assigned is that the working of the society has been far from satisfactory. The displeasure expressed, the imposition of fine and warnings did not improve the situation for the railway authorities. Lack of commitment of work by the members, short-fall of hands have led to detention of trains, throwing the punctuality out of gear. Huge stocks of parcel, packages at the railway platform created great inconvenience to passengers, free movement of goods and traffic. Besides the economic interest has been hit due to lack of efficient handling of the parcels, loading and unloading work of the division. In addition it is also stated that the society in question was not functioning properly. Railway authorities had received many a complaints from its members about - 4 - their irregular payment, discrimination and other complaints of exploitation. Matter even travelled before the Regional Labour Commissioner, (Central Patna). In other words, there was not only lack of efficient working by the Society but even problems and embarrassment for the railway administration due to mismanagement. All the above factors were the reasons for issuance of a fresh tender, which immediately came to be challenged in the present writ application. The respondent railway authorities have also brought on record a circular issued by the railway board dated 25.6.1987 which is Annexure-E to their counter affidavit. On review of things and the working of the various cooperative societies, the railways decided to make award of tenders of the kind a little flexible. The board in its circular stated that if the Divisional Railway Manager (DRM) was of the opinion that a co-operative society in a particular area is not functioning properly in the past or the rates being asked are unreasonable they had freedom to float open tenders for award of contracts though prior approval of the concerned department was required to be obtained. Annexure-E therefore has conferred power upon a division, by the railway board and it cannot be said that there is embargo on issuing tenders and making a fresh settlement. To the stand of the respondent railway authorities submission of the counsel for the petitioner is that this is only a ploy to oust the co-operative societies and deny them the benefit and create monopoly in favour of an individual. On a closure - 5 - questioning the counsel does not deny that there is some levity granted to the division concerned to go for open tenders if the situation of the kind existed. It is also a fact that there are other registered cooperative societies which have a right for consideration, instead of continuing it in favour of a certain society which acquired award of contract at some point of time in the past. The stand of the counsel for the petitioner thereafter is that if the respondents stick to awarding contract on a priority to a co-operative society he has no objection. Yet another aspect which has been urged at the bar is that after the stay of the notice for tender (annexure-7) no alternative arrangement has been made and the members of the society continued to render service but despite the same their accounts have not been settled and payments have not been made. Petitioner’s society, in fact, were compelled by such an attitude of the respondents to approach this court in yet another writ application namely CWJC No. 10081 of 2009 for settling the accounts and making payments for the work done. If the accounts are not settled, the Society cannot be thrown out and new arrangements cannot be made. The Court has perused the order dated 24.8.2009 which has been brought on record as annexure-11 to the writ application. A Bench of this Court has already issued certain direction for payment of dues of the society and to that extent the said dispute is not part and parcel of the present adjudication. In so far as the challenge to - 6 - the tender notice is concerned, keeping in mind the circular contained in annexure-E, it cannot be said that there is a bar or embargo on the respondents to go for an open tender for awarding a fresh contract. It can not be said by any stretch of imagination and interpretation that only the members of the present petitioner’s society have right to demand continuance of contract in their favour. The petitioner’s society is not barred or precluded from participation in such a tender. Since the initial tender, contained in annexure-7, was issued in the year 2007 and was stayed by the High Court, to that extent the said tender notice has become redundant and lost its meaning. The railway authorities therefore will have to decide afresh as to what would be their future course of action on this issue. By grant of stay order and pendency of the writ application the petitioner has succeeded in frustrating the tender notice now. Before parting, however, this Court is constrained to state that by virtue of the stay order, if the members of the petitioner’s society have continued to render service or work has been taken from them then they will be entitled for payment of their dues and it may not be open to railway authorities to deny such a claim only on the ground that the earlier contract had expired not extended or no fresh contract had been entered. The writ application stands disposed of with the above observation and findings. rkp (Ajay Kumar Tripathi, J)