HI6H COURT OF CHHATTIS6ARM AT BILASPUR DIVISION BENCH: HON. MR. DHIRENDRA MI5HRA <& HON. MR. R.N. CHANbRAKAR. JJ W.P. [Cl N0.215/2009 ^' PETmONER C.G. Transport Company vs RESPQNDENTS; Food Corporation of India & others JUbSMENT FORCOJMSI&ERATION V/ HON'BLE MR, JUSTICE R.N. CHANDRAKAR Sd/-. i Dhu'endra Mishra \ Judge |i L Oa^lAS—' Sdf-; 4 R.N. Chandrakar Judge —^- POST FOR JUD6MENT ON Q5--OS-2009 JUE)6E 0^.05.2009 HI6H COURT OF CHHATTIS6ARH AT BILASPUR OIVISION BENCH: HON. MR. DHIRENbRA MISHRA. & HON. MR. R.N. CHAN&RAKAR.JJ Writ Petition (c) No.215 of 2009 (Petition under Article 226 of the Constitution of India) Petitioner Respondents C.6. Transport Company, Raja Manzil, 1 Floor, Lalita Chowk, Mominpara, ftaipur (C.6.) having its Registered Office at Zoheb Complex, II Floor, Raza Manzil, Mominpara, Raipur (C.G.) Through its Partner Syed Haider Raza Kazmi. Versus 1. Food Corporation of India, Head Office- Khodia Sadan, 16-20, Barakhamba Lane, New Delhi, through its CM&. 2. General Manager, Food Corporation of India, Regional Office, Vidhan Sabha Road, P.0. Pandri, Kapa, ftaipur (C.6.) 3. Area Manager, Food Corporation of India, Regional Office, Madina Building, Kutchery Chowk, Raipur (C6) 4. Area Manager, Food Corporation of tndia, Regional Office, Vyapar Vihar Marg, Bilaspur (C.6.) 5. Area Manager, Food Corporation of India, Regional Office, t)hamdanaka, burg (CG) Present: Mr. Manindra Shrivastava, Sr. Advocate with Mr. Ashish Shrivastava & Mr. Amrito Das, Advocate for the petitioner. Mr. B.P. Supta, Advocate for the respondents. OR& ER (Passed on ^:.5.2009) Per Dhirendra Mishra. J; 1. By the instant petition the petitioner has prayed for quashing of tetters dated 26.12.2008 (Annexure P-1) & 27.12.2008 (Annexure P-2) whereby four different contracts awarded to the petitioner have been terminated, security deposit has been forfeited and fresh notice inviting fender (NIT) has been published at the risk and cost of the petitioner. °)S' 2. Briefly stated, case of the petitioner is that the petitioner is engaged in the transportation business, he participated in the tender process initiated by the respondent-Food Corporation of India and accordingly, four work orders were issued to the petitioner vide Annexure P-4. The petitioner commenced transportation work smoothly without any complaint. As per consistent practice, 250 bags were to be loaded in the transport vehicle, however, all of sudden, respondent No.4 issued letter dated 9.9.2008 (Annexure P-5) and directed the petitioner and other contractors to stop overloading of trucks without giving any specific details. In response to the memo of Annexure P-5, the contractors vide their joint representation of Annexure P-6 stated that they are not overloading the trucks and transportation is being done as per terms and conditions agreed between the parties. However, respondent No.4 again issued letter dated 23.9.2008 (Annexure P-7) annexing memo of the Regional Transport Officer (Annexure P-8) and issued similar instructions regarding overloading, as before. When the petitioner's representation for withdrawin9 the instructions of Annexure P-6 & P-7 did not evoke any response, the petitioner and other contractors filed writ petition before the High Court and the same was disposed of vide order dated 17.12.2008 (Annexure P-9) as withdrawn with liberty to them to pursue representation filed by them. The petitioners were also given liberty to approach the Court again in case their grievance survives after the decision on the representation. The petitioner submitted yet another representation of Annexure P-10 dated 22.12.2008, however, the contract itself was terminated and fresh notice inviting tender at the risk and cost of the petitioner was issued by the respondents vide Annexure P-l & P-2 without deciding the representation of the petitioner. 3. The respondents in their reply to the writ petition have taken a preliminary objection that the petitioner after filing the petition has filed a review petition on 19.1.2009 before the Executive Director of Food Corporation of India vide Annexure R-l and since the review petition is pending, the instant petition is not maintainable. The ll^ petitioner did not make any representation after writ petition filed by the petitioners was disposed of vide order dated 17.12.2008. Subject matter of W.P. (e) No.6366/08 was in connection with overloading, whereas, by the instant petition the petitioner has impugned the cancellation of his four contracts. The petitioner was served with 16 notices whereby he was asked to improve his work, however, the petitioner without making any improvement in his working virtually refused to work vide his memo of Annexure P-10 dated 17.12.2008. Letter of Annexure P-5 was issued to all the contractors directing them not to overload the trucks and comply with the directions of the Hon'ble Supreme Court issued in W.P. No.136/2003 (Paramjeet Bhasin Vs. Union of India) as also in compliance of directions issued in CWP No.9897/2006 (Jagtar Singh Vs. State of Punjab) by the High Court of Punjab & Haryana. Since the petitioner did not improve his working despite various notices/information issued to him in this regard, the respondents were compelled to issue fresh tender notice vide Annexure P-2 at the risk <& cost of the petitioner after canceling all his contracts as per terms and conditions mentioned in tender document of Annexure P-3. Terms and conditions of Annexure P-3 are binding on the petitioner. Representation of the petitioner dated 20.9.2008 was decided on 29.9.2008 vide Annexure R-2. In reply to Annexure R-2 the petitioner had served with a legal notice of Annexure R-3 dated 18.10.2008. The petitioner vide letter of Annexure P-10 dated 22.12.2008 had in fact informed the respondents that he is not willing to perform the work of contract and therefore, the same cannot be construed to be representation, however, the same was immediately replied on 23.12.2008 (Annexure R-4). The petitioner had also requested vide letter dated 18.11.2008 (Annexure P-5) not to place indents for rack loading till the petition is finally decided by the High CourT, though there was no interim order in favour of the petitioner till that date. In reply to the communication of Annexure R-5, the petitioner was served with notice dated 20.12.2008 and called upon to resume the tcansportation work as 'f^ the same was malafidely stopped by the petitioner, failing which action was contemplated as per terms and conditions of the contract. 4. In the rejoinder to the return, the petitioner has averred that representation to the Executive Director of the respondent Food Corporation of India is non-statutory and the petitioner has learnt that such representations are never considered by the respondents and no decision has been taken by the respondents on the petitioner's representation till date. The petitioner had also submitted representations on 20.12.2008 and 22.12.2008 in the office of the respondents vide Annexure P-12. 5. Mr. Shrivastava, learned Senior Advocate for the petitioner contended that the respondents have not only terminated four contracts of the petitioner but also issued fresh tender notice at the risk and cost of the petitioner after forfeiting the security deposits of the petitioner. Entire action has been taken against the petitioner with malafide intention as the petitioner had filed writ petition along with other contractors against the respondent Corporation. The action of the respondents has resulted in civil consequences upon the petitioner and the same has been taken without any notice to the petitioner as also without affording any opportunity of hearing, which is not permissible as per settled law. Letter of Annexure R-4 dated 23.12.2008 was never communicated to the petitioner and even letter dated 29.9.2008 was never served upon the petitioner. He further argued that even in the absence of any specific provisions in the statute or rules for showing show cause against the action proposed to be taken against an individual wheresuch action affects rights of the individual, issuance of show cause notice is imperative before action is taken. Reliance is placed on the judgments of the Hon'ble Supreme Court in the matter of Smt. Maneka Sandhi Vs. Union of India & another'and Canara Bank and others Vs. Debasis bas and others . ' (2003) 4SCC 557 2 AIR 1978 SC 597 'ns 6. On the other hand, Mr. Supta, learned counsel for the respondents submits that work orders issued to the petitioner are governed by the terms <& conditions enumerated in the tender document of Annexure P-3. Clause X (b) of the terms and conditions confers power of summary termination of the contract upon the Seneral Manager of the Food Corporation of India. In the instant case the petitioner was served with as many as 16 notices, as detailed in the order of termination of Annexure P-1, however, when the petitioner failed to discharge his contractuat obligation under the agreement resulting into huge financial loss to the respondent Corporation, thecontracts were terminated as per provisions contained in Clause X (b) of the terms and conditions of the contract and security deposits were forfeited. Fresh tender for remaining work has been issued at the risk and cost of the petitioner, as per conditions of contract, and thereafter, the work has already been finalized. bispute raised by the petitioner is purely civil in nature which is arising out of a contract and therefore, the same cannot be adjudicated in a writ proceeding. 7. We have heard learned counsel for the parties. We have perused pleadings of the respective parties and documents annexed with the pleadings. 8. Undisputed facts of the case are that the petitioner was awarded four transportation works. In view of the orders of the Hon'ble Supreme Court and the Punjab & Haryana High Court, the petitioner was served with the instructions by the respondent-Corporation against overloading of trucks. The petitioner and other contractors aggrieved by the said instructions filed a writ petition before the High Court, which was disposedof with liberty to them to pursue their pending representation before the respondents and also to file fresh petition, if their grievances still survives after representation is decided. The petitioner vide memo of Annexure P-10 dated 22.12.2008 requested the respondents not to place indents for rack loading in view of the orders passed by the High Court (Annexure P-9). Even prior to representation of Annexure P-10 the petitioner had requested not to place indent vide memo dated 18.11.2008 of Annexure R-5. From the documents of Annexure R-2 dated 29.9.2008 the Food Corporation of India advised all its H&T contractors to resume transportation work as per terms and conditions of the contract failing which action, as contemplated under the provisions of the contract, was threatened. The respondents have also claimed in their return as also in the final notice that the petitioner was repeatedly asked to improve the working and resume the work though the above assertion has been denied by the petitioner in his rejoinder. 9. Clause-X(b) of the terms and conditions of the contract under which the contract has been terminated reads as under:- "X. Summarv Termination: a. Omitted. b. The General Manager shall also have without prejudice to other rights and remedies, the right, in the event of breach by the contractors of any of the terms and conditions of the contract to terminate the contract forthwith and to get the work done for the unexpired period of the contract at the risk and cost of the contractors and/or forfeit the security deposit or any part thereof for the sum or sums due for any damages, losses, charges, expenses or costs that may be suffered or incurred by the Corporation due to the contractor's negligence or unworkman like performance of any of the services under the contract." It is also not in dispute that period of tender No. 5 <& C/13/RH-H&TC/EX Kurud to Balod/2006 (18/12/2006) is already over on 17.3.2009 and remaining three contracts for which tenders were invited have already been opened. 10. It is settled law that even if there is no specific provisions in the statute or rules of issuance of show cause notice against action proposed,a show cause notice is to be issued where action proposed is punitive or damaging aetion, as held in Smt. Maneka Sandhi's case . Similarly, itis also settled '5W; Rosha law that rule of natural justice is required to be followed eyen before taking ahy administrative action agaihst any individual which involves civil consequences. 11. In the instant case, the respondents have claimed that before terminating contract of the petitioner, the petitioner was served with several notices in this regard and only on virtualdenial to execute the work the contract was terminated. In any case, the contract stands terminated and new agency has been finalized on the basis of fresh tender notice issued by the respondents. 12.Looking.to the fact that dispute in the presentcase relates to a contractual dispute between the parties and also considering that after terminating the contract new agency has been recruited by the respondents for execution of remaining work, the reliefs claimed by the petitioner in the instant petition cannot begranted as the petitioner can claim damages, if any, for- the alleged breach of the contract by the respondents by way of filingciyil suit against the respondents. IS.With the aforesaid observations, the instant petition is dismissed as not maintainable. No order as to costs. Sd/- Dhirendra Mishra Judge ||, Sd/- R.N. Chandrakar Judge '^».