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1995 DIGILAW 50 (GAU)

Sambhupada Majumdar v. Union of India

1995-02-24

N.G.DAS, V.DUTTA GYANI

body1995
V.D.Gyani, J- This writ appeal is directed against the judgment and order dated 28.9.94 passed by the learned Single Judge of this Court in Civil Rule No.352of 1993. 2. A few basic facts need be noted. The respondent No.2 invited tenders for provision of lightning conductors for 2nd Bn. Assam Rifles, 23rd Bn. Assam Rifles, 26th Bn. Assam Rifles and Head Quarter A Range of the Assam Rifles. The writ petitioner-appellant submitted his tender for the said work. It was accepted by the respondent No. l vide letter dated 3rd of March, 1992. An work order was issued in his favour on 10th of June, 1992 fixing a period of 3 (three) months for completing the work. As the appellant failed to start the work and insisted for enhancement of the agreed amount for the work by 50%, the respondent No.3 by his letter dated 19.5.1993, Annexure 7 to the writ petition cancelled the contract for his failure to commence the work. By this letter the appellant was also informed that the amount of security deposit stood forfeited and other amounts due for payment to him on account of some other contract works done by the writ petitioner, were frozen to make good the loss suffered by the department. He was further informed that his name would be recommended for blacklisting. This led to the filing of the present civil rule which was dismissed by the learned Single Judge. Aggrieved by the same the writ petitioner has now preferred this appeal. 3. The learned counsel appearing for the appellant has raised the following points: (1) That the order terminating the contract was passed by an authority lower in rank to that who accepted the contract and the said authority was incompetent to terminate the contract; (2) That the order of freezing other payment due to the petitioner was wholly illegal and liable to be quashed; and (3) That the proposed blacklisting was violative of elementary rules of natural justice. 4. The learned counsel appearing for the respondents on the other hand submitted that the petitioner has been blacklisted as such. 4. The learned counsel appearing for the respondents on the other hand submitted that the petitioner has been blacklisted as such. All that he was communicated was that this name would be recommended to be blacklisted going through the impunged order as well, it would be seen that the learned Single Judge has also taken note of this fact and observed that before any such proposed blacklisting is done the petitioner should be afforded an opportunity of being heard against the proposed action of blacklisting. In view of this, no legitimate grievance can be made by the appellant, on this score we also hope that in the event of any such action of blacklisting as proposed by the respondents is to be done, the appellant would be afforded reasonable opportunity of being heard against the proposed action. 5. So far as the question of freezing other payment due to the petitioner/ appellant on account of other contract works done by him is concerned here again the learned Single Judge has observed that only such amount should be appropriated as may be found on assessment of actual loss suffered by the respondents and this actual loss, was not assessed. The learned counsel appearing for the appellant strenuously argued that the respondents may indulge in exaggerating the loss on account of his non performance of the contract. To avoid any such difficulty, to avoid any such inflated assessment of loss it would be open to the appellant to challenge the assessment of damage/loss caused to the respondents on account of appellant's non performance of contract either by invoking the arbitration clause or in the ordinary course of law. 6. As for, the termination of contract, by an authority not competent to do so, the learned counsel for the appellant invited our attention to Annexure 7 which provides for the extent of powers of different categories right from Commandant to the Inspector General. The fact that firstly this categorization is based on executive instructions/orders issued by the Directorate of Assam Rifles and have no statutory basis. As such they cannot be said to be justifiable and secondly because the authority competent to terminate, having acquired in the action of termination of contract, as is evident from the record, no legitimate grievance can be made on this account. As such they cannot be said to be justifiable and secondly because the authority competent to terminate, having acquired in the action of termination of contract, as is evident from the record, no legitimate grievance can be made on this account. Clause 10 of the contract read along with other terms and conditions, in face of the joint stand taken by the respondents, would not come in the way of termination of contract. 7. The case relied upon (AIR 1974 SC, 1265), is of no help to the appellant. It was an appeal arising out of arbitration proceeding and not a matter arising out of a writ proceedings under Article 226 of the Constitution. 8. The scope of interference in such contractual matter is rather narrow, more so when learned Single Judge having applied his mind and the findings as recorded by him, do not call for any interference. 9. This appeal, subject to the above observation is liable to be dismissed. It is accordingly dismissed.