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Rajasthan High Court · body

2005 DIGILAW 1362 (RAJ)

Everyware Services v. Regional Commissioner, Employees Provident Fund Organisation

2005-05-09

K.S.RATHORE

body2005
Judgment K.S. Rathore, J.-This writ petition is directed against the order dated 23.07.2003 and order dated 211.2003 whereby the contract of the petitioner has been terminated. 2. Brief facts of the case are that the petitioner is a registered firm. Vide advertisement dated 12.03.2003 tenders were invited for computer AMC work for the year 2003-04 for Jaipur, Jodhpur, Udaipur and Kota. Work order was issued and the same was confirmed on the petitioner firm on 24.04.2003, which was made effective from 14.05.2004. 3. The controversy arise when the respondents passed the order dated 23.07.2003 whereby the contract of the petitioner was terminated. It is alleged by the petitioner that the termination order has been issued without issuing any show cause notice to the petitioner and clearly in violation of principle of natural justice. 4. The termination order is assailed by the petitioner in this writ petition on the ground that termination of the assigned work is arbitrary and violative of Article 14 of the Constitution of India. In support of the submissions, learned Counsel for the petitioner placed reliance on the Judgment rendered by Honble Supreme Court in case of Delhi Transport Corporation vs. DTC Mazdoor Congress, reported in AIR 1991 SC 101 . 5. The petitioner has also alleged the termination order was passed as a result of personal vindictive nature of the respondents and the respondents has adopted pick and choose to facilitate their person to fulfill the computer AMC work, contrary to principle of equity and natural justice. Reliance has been placed by the learned Counsel on the Judgment s rendered in cases of M/s Kasturi Lal vs. State of J&K, reported in AIR 1980 SC 1993, Mahabir Auto Stores vs. Indian Oil Corporation, reported in AIR 1990 SC 1031 . 6. The petitioner further assailed the termination order on the ground that the respondents has curtailed the right of the petitioner as provided under Article 19 of the Constitution of India. On account of termination of contract, the petitioner is unable to compete for any Government tender because they require the detailed satisfactory certificate of the last years performance report by the concerned department in their performa. Since, the termination order is stigmatic, therefore, the provisions of Article 19 of the Constitution has been curtailed. On account of termination of contract, the petitioner is unable to compete for any Government tender because they require the detailed satisfactory certificate of the last years performance report by the concerned department in their performa. Since, the termination order is stigmatic, therefore, the provisions of Article 19 of the Constitution has been curtailed. Reliance has been placed on the Judgment in case of Harbanslal Sahnia vs. Indian Oil Corporation, reported in 2003 (1) Supreme 446 . .7. With regard to maintainability of the writ petition in contractual matters, learned Counsel placed reliance on the following Judgment s:- 1. Central Inland Water Transport Corporation vs. Broja Nath Ganguly,1986 (3) SCC 161. 2. Vijay Kumar vs. State of Rajasthan, 2004(3) WLC 386. 3. Arawali Tax Operators Union vs. State of Rajasthan, 2004 (1) WLC 391 (Raj). 4. Whirlpool Corporation vs. Registrar of Trademark, 1998(8) SCC 5. 8. Per contra, learned Counsel for the respondents raised the preliminary objections regarding maintainability of the writ petition as it relates to termination of agreement and agreement contains arbitration clause, therefore, remedy of writ jurisdiction is not available to the petitioner. At the most, the petitioner can file the suit for compensation. The agreement was terminated by the respondents as the petitioner has not fulfilled the terms and conditions of the agreement and not repair/removed the faults of the computer installed at Jodhpur office. The dispute relating to the facts and breach of terms and conditions of the agreement, can only be decided on the basis of evidence, which is not available in the writ jurisdiction. 9. It is also submitted on behalf of the respondents that earlier also the petitioner filed a writ petition which was registered as S.B. Civil Writ Petition No. 257/2004, which was dismissed by this Court vide order dated 23.07.2004. Against that review petition was also stands dismissed on 03.09.2004. However, vide order dated 03.09.2004, the petitioner was given liberty to file fresh writ petition. 10. Heard rival submissions of the respective parties and carefully gone through the Judgment s referred before me as well as the relevant provisions of law. 11. It is no doubt that vide order dated 03.09.2004 passed in review petition, the liberty was given to the petitioner to file fresh writ petition, therefore, the petitioner has preferred this writ petition challenging the termination order. 12. 11. It is no doubt that vide order dated 03.09.2004 passed in review petition, the liberty was given to the petitioner to file fresh writ petition, therefore, the petitioner has preferred this writ petition challenging the termination order. 12. Since, the specific provisions are in the arbitration clause of the agreement, the petitioner can invoke the same and in contractual matters, this Court should not normally interfere while exercising power under Article 226 of the Constitution of India. 13. The Honble Supreme Court in case of Central Inland Water Transport (Supra), has held that in illegal termination of services remedy under Article 226 would be more efficacious than a civil suit. In the instant case, termination order dated 23.07.2003 has been passed by the respondents without issuing show cause notice and without giving any opportunity of being heard. This clearly indicates that the same has been issued clearly in violation of the principle of natural justice. I am fully convinced with the submissions made on behalf of the petitioner that prior to passing the termination order, minimum requirement is to follow the principle of natural justice. 14. In view of the aforesaid discussion, the termination orders dated 23.07.2003 and 211.2003 are hereby quashed and set aside. The respondents are directed to pass appropriate order after following the due process of law. 15. With the aforesaid observation, the writ petition stands allowed.