If security deposit already been forfeited, it will not be refunded: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.100521 Hari Mohan Bishwas a Proprietorship firm through its Proprietor Hari Mohan Bishwas aged about 45 yrs.Son Son of Sri Sagam Lal Bishwas Resident of Village Bharra Post office Kalsar P.S. Dandkhora Anchal Hasanganj Distt Katihar 854337 Petitioner Bihar State Educational Infrastructure Development Corporation Ltd. A Govt. of Bihar Undertakingoffice at Shiksha Bhawan Bihar Rastrabhasa Prishad Campus Acharya Shivpujan Sahay Path Saidpur Patna 800004 through its Managing Director Sri Sanjay Kumar Singh The Managing Director B.S.E.I.D.C. at Patna The Chief Engineer B.S.E.I.D.C. at Patna The Executive Engineer B.S.E.I.D.C. Purnia the Junior Engineer B.S.E.I.D.C. Purnia 6. Manoj Kumar Pandey the then Executive Engineer B.S.E.I.D.C. Purnia 7. Mukesh Kumar the then Junior engineer B.S.E.I.D.C. Purnia Respondents For the Petitioner For the Respondents CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA Mr. Chiranjiva Ranjan Adv Mr. Girijish Kumar Adv Per: HONOURABLE THE CHIEF JUSTICE Date : 03 01 2022 The petitioner has prayed for the following reliefs “(i) To issue an appropriate writ(s) order(s) in the nature of writ of Mandamus holding and declaring that the action of the Respondents for rescinding the Contractof the petitioner vide notice memo letter no. BSIEDC TECH 135 2019 1005 dated 12.02.2021without giving any opportunity of hearing to the petitioner is in violation of Articles 14 16 and 19(I)(g) of the Patna High Court CWJC No.100521 dt.03 01 2022 Constitution of India and be pleased to quash and set aside the rescinding order as well as forfeiture of performance security issue vide letter no Vol I 1498 05.03.2021To issue a writ of prohibition in favour of the petitioner prohibiting the Respondents from taking any coercive action against the petitioner company without following the due process of law and without adhering to the principles of natural justice iii) Pending admission hearing and or final disposal of this petition this Hon’ble Court be pleased to stay the execution operation and implementation of the rescinding notice issue vide memo letter no BSIEDB TECH 135 2019 1005 dated 12.02.2021 issued by the Respondent no. 3 iv) Pending admission hearing and or final disposal of this petition this Hon’ble Court may be pleased to direct the respondent from taking any coercive action against the petitioner from rescinding terminating the contract of the petitioner without following the due process of law or without following the principles of v) Such other and further relief as this Hon’ble Court may deem just fit and expedient be granted in favour of From the paper book it is quite apparent that the impugned order communication dated 05.03.2021 was passed issued prior to the time stipulated in the notice to show Patna High Court CWJC No.100521 dt.03 01 2022 cause issued by the authority to the petitioner. Annexure 4 is the notice to show cause dated 12th February 2021 asking the petitioner to show cause as to why proceedings under Clause 3 of the contract be not initiated. However as is evident from the postal receiptthe said notice was received only on 27th of February 2021. Whether petitioner was having sufficient time to respond thereto or not without going into this issue we are of the considered view that the interest of justice would lie asking the authority to pass a fresh order after affording opportunity to the petitioner to place on record material in support of his defence and pass a fresh order after hearing all concerned As such we dispose of present petition on the following mutual agreeable terms a) Impugned order communication dated 5th of March 2021 is quashed and set aside b) Petitioner shall appear before the appropriate authority on 12th of January 2022 on which date petitioner shall place on record entire material in support of his defence c) Petitioner shall fully co operate and not take any unnecessary adjournment Patna High Court CWJC No.100521 dt.03 01 2022 d) Appropriate authority will consider and decide all questions of fact and law expeditiously and positively within a period of four weeks thereafter e) All questions of fact of law are left open and f) Liberty reserved to the petitioner to seek appropriate remedy before the appropriate forum a need if so arise Since the amount of security deposit already stand forfeited till such time a decision is taken the same shall not be refunded to the petitioner. Interlocutory application(s) if any also stand disposed Sanjay Karol CJ) ( Sanjeev Prakash Sharma J

Summary: As all questions of fact and law are left open, and the appropriate authority will consider and decide all issues of fact and law in a timely and positive manner and the security deposit since already been forfeited, it will not be refunded to the petitioner until a decision is reached  is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA in the case of Hari Mohan Bishwas a Proprietorship firm Vs. Bihar State Educational Infrastructure Development Corporation Ltd. (Civil Writ Jurisdiction Case No.10050 of 2021). Brief facts of the case are that the petitioner has requested the court to issue appropriate writs, orders, and declarations in the nature of writs of Mandamus, holding and declaring that the Respondents’ action of rescinding the petitioner’s contract via notice memo letter dated 12.02.2021 without giving the petitioner an opportunity to be heard is in violation of Articles 14, 16, and 19(I)(g) of the Constitution of India, and be pleased to quash and set aside the rescinding order and to issue a writ of prohibition in favour of the petitioner, barring the Respondents from taking any coercive action against the petitioner corporation without first going through the legal procedure and conforming to natural justice principles. Further, while this petition is pending admission, hearing, and/or final disposition, Hon’ble Court be pleased to stay the execution, operation, and implementation of the rescinding notice issued by the Respondent via memo letter dated 12.02.2021 and may be pleased to direct the Respondent from taking any coercive action against the petitioner from rescinding/terminating the petitioner’s contract without following the due process of law or the principles of natural justice. The challenged order/communication dated 05.03.2021 was clearly passed/issued prior to the time indicated in the authority’s notice to show cause sent to the petitioner, as evidenced by the paper book. However, the notice was only received on February 27, 2021, as evidenced by the mail receipt. Whether the petitioner had sufficient time to respond or not, we are of the considered opinion that it would be in the interests of justice to ask the authority to issue a new order after giving the petitioner an opportunity to place on record material in support of his defence and after hearing all parties involved. Dispose of the petition at hand, the contested order/communication of March 5, 2021 is quashed and set aside, and the petitioner must appear before the relevant authority on January 12, 2022, at which time he must provide all evidence in support of his defence. All questions of fact and law are left open, and the appropriate authority will consider and decide all issues of fact and law in a timely and positive manner. Since the security deposit has already been forfeited, it will not be refunded to the petitioner until a decision is reached and interlocutory applications, if any, are also dismissed.