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2013 DIGILAW 881 (CAL)

C . Rajendra Pillai v. State of West Bengal

2013-12-02

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. The facts and some of the legal issues have already been referred to and covered in the order passed at the ad interim stage on October 3, 2013. 2. Under an agreement of May 23, 2013, the Islampur Regulated Market Committee engaged the proprietorship concern of the petitioner for deploying security guards at different collection points under such market committee. The agreement was for a period of one year with effect from June 1, 2013 which the market committee could extend with one month's notice to the security agency. 3. Clause 17 of the agreement of May 23, 2013, provides as follows: "17. The Authority' will reserve the right to terminate the Agreement of Contract' and cancel the Work-Order to Agency' without assigning any reason to the Agency'." 4. The agreement also required the security personnel deployed by the petitioner to wear uniforms and carry licenced arms. There is a dispute between the market committee and the petitioner as to whether the personnel deployed by the petitioner wore uniforms or took appropriate steps to guard the posts manned by such personnel. 5. The grievance of the petitioner is that the market committee issued a notice dated September 4, 2013 by which the agreement has beer cancelled and the petitioner directed to withdraw the petitioners security personnel from all premises of the market committee by the end of the month of September, 2013. The petitioner points out that there was a notice inviting tender that had been made ready on behalf of the market committee that was issued on the same day, September 4, 2013, inviting offers in respect of the same work. According to the petitioner, there was no explanation sought by the market committee, far less any show cause notice issued, prior to the order of termination of September 4, 2013 being passed. The petitioner alleges mala fides on the part of the committee and, particularly, its secretary; and claims that the move to cancel the contract was predetermined as would be evident from the circumstances and, especially, from the fact that the notice inviting tender was ready for circulation on September 4, 2013 itself. 6. At the time that the petition was received at the ad interim stage, the market committee had relied on a show cause notice dated June 17, 2013 said to have been issued to the petitioner. 6. At the time that the petition was received at the ad interim stage, the market committee had relied on a show cause notice dated June 17, 2013 said to have been issued to the petitioner. It was claimed on behalf of the market committee that a private courier service has been engaged to deliver the show cause notice and the courier service reported that the postal article had not been taken delivery of by the addressee as the endorsement on the envelope read: "Party not received". The Court disbelieved such notice at the ad interim stage on two primary grounds: that the show cause notice did not find any reference in the order of termination of September 4, 2013; and, that the market committee had chosen a private courier service to deliver the postal article without relying on the regular Government service for the purpose. 7. An affidavit has been used by the market committee affirmed by its secretary. In addition to the purported show cause notice of June 17, 2013, there is a copy of a second show cause notice of July 2, 2013 which has been relied upon by the market committee in the affidavit. The second purported show cause notice lends further credence to the petitioner's case and discredits not only the obvious dishonest stand on the part of the market committee but also adds substance to the petitioner's charge of the personal interest of the secretary in the matter. 8. If the first show cause notice had been issued on June 17, 2013 and had been received by the petitioner or on his behalf as suggested by the market committee, there was no occasion to issue the subsequent show cause notice. At any rate, if the first show cause notice had been issued and served, the second show cause notice, at the very least, should have referred to such fact and indicated that it was a second opportunity which was afforded to the petitioner upon the petitioner not availing of the first. There is no reference to the first show cause notice of June 17, 2013 in the second notice of July 2, 2013. 9. Neither the notice of July 2, 2013 nor the notice of July 17, 2013 have been referred to in the letter of termination of September 4, 2013. There is no reference to the first show cause notice of June 17, 2013 in the second notice of July 2, 2013. 9. Neither the notice of July 2, 2013 nor the notice of July 17, 2013 have been referred to in the letter of termination of September 4, 2013. It is inconceivable that a process would be started by an authority by the issuance of a show cause notice and would be culminated by a letter of termination without the fact as to the issuance of the show cause notice being referred to in the letter of termination. The market committee's stand is disbelieved and it is evident that the show cause notices were neither issued to the petitioner nor were they received by or on behalf of the petitioner. 10. In any event, the stand taken on behalf of the market committee, both at the ad interim stage and today, militate against the issuance of any show cause notice prior to the notice of termination being served on the petitioner. The market committee refers to Clause 17 of the agreement of May 23, 2013 that permits the market committee to terminate the contract without assigning any reasons. For the same reasons as indicated in the ad interim order of October 3, 2013, such argument has to be cast aside with scorn whenever made by any authority answering to that description under Article 12 of the Constitution. Notwithstanding the unilateral latitude that is reflected in Clause 17 of the agreement between the parties herein, an authority is obliged to act fairly, reasonably and upon affording a person on whom some stigma is sought to be attached to present such person's version of things before any action is taken. Even if every term of the agreement of May 23, 2013 contained a clause as the one reflected in Clause 17, it would not have altered the position at law. 11. The conduct of the market committee and its secretary is aggravated by the events that happened subsequent to the issuance of the ad interim order and before the petition being taken up for final hearing. In the secretary's eagerness to beat the ad interim order, a show cause notice was issued in the month of October, 2013 to the petitioner. The conduct of the market committee and its secretary is aggravated by the events that happened subsequent to the issuance of the ad interim order and before the petition being taken up for final hearing. In the secretary's eagerness to beat the ad interim order, a show cause notice was issued in the month of October, 2013 to the petitioner. The petitioner replied to such show cause notice by asserting at several places that the secretary of the market committee had a personal interest in the matter, was biased against the petitioner and such official had sought a bribe which the petitioner had not condescended to. The petitioner's response to the show cause notice issued in October, 2013 referred to "cut money" being sought by the secretary of the market committee and a fresh process being initiated to ensure that the secretary would obtain the "cut money" at the time of the fresh agreement being executed. 12. In the light of the dishonest conduct of the market committee and the affidavit of the secretary being disbelieved, the ad interim order of October 3, 2013 is made absolute and the letter of termination of September 4, 2013 is set aside. The notice inviting tender dated September 4, 2013 is also set aside as a consequence. 13. Nothing in this order will prevent the market committee from issuing any fresh show cause notice to the petitioner on cogent grounds. However, any reply by the petitioner to such show cause notice has to be dealt with by the entire market committee with specific reference to the petitioner's allegation that the secretary may have a personal bias against the petitioner and may be interested in dislodging the petitioner for extraneous considerations. Any decision taken by the market committee on any future show cause notice issued to the petitioner would be only upon the market committee satisfying itself that the apprehension expressed by the petitioner against the secretary is without basis. Any decision of the market committee to dislodge the petitioner or terminate the contract must also be informed by reasons with cogent evidence in support thereof and such decision may not be taken by the secretary alone on behalf of the market committee. 14. WP No.30029 (W) of 2013 is allowed as above with costs assessed at Rs. 50,000/- to be paid to the petitioner by the market committee, preferably by the secretary personally. 14. WP No.30029 (W) of 2013 is allowed as above with costs assessed at Rs. 50,000/- to be paid to the petitioner by the market committee, preferably by the secretary personally. Petition is allowed.