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2016 DIGILAW 320 (UTT)

Rajbhra Medicare Private Ltd. v. State of Uttarakhand

2016-07-08

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. These two petitions being connected, we are disposing of the same by a common judgment. 2. Writ Petition (MS) No. 3230 of 2015 is filed by M/s Rajbhra Medicare Private Ltd. seeking the following reliefs:- “A. Issue a writ, order or direction in the nature of Mandamus commanding the Director General, Medical Health and Family Welfare, State of Uttarakhand to take a decision on the remedial proposal submitted by the petitioner’s company pursuant to termination notice-1 dated 17.8.2015 within a stipulated period. B. Issue a writ order or direction in the nature of Mandamus directing the respondents to release the pending arrears of dues along with interest as per the terms and conditions of the concession agreement with immediate effect and in future make timely payments as per the terms of the agreement, so that the salary of 300 people engaged by the petitioner’s company in performing/delivering medical services in remote terrains as awarded through concession agreement without any delay. C. Issue a writ order or direction in the nature of certiorari quashing the decision as taken by the Secretary, Medical Health and Family Welfare, Uttarakhand (respondent no. 2) dated 1.12.2015 including any action taken pursuant to decision taken in the meeting dated 1.122015.” 3. Very briefly put, the case of the petitioner is as follows: The Government of Uttarakhand floated a request for proposal/tender documents for the operation and maintenance of Community Health Centres for 16 locations. According to the petitioner, petitioner and Ajit Gaba of Akash Hospital arrived at a consensus to participate in a tender for “Operating & Maintenance of Community Health Centre (CHC) for two packages, namely, package-2 and package-3”. The bid of the petitioner was accepted and a concession agreement dated 14.08.2013 was arrived into between the petitioner and the Director General. The writ petitioner carried out the work to the entire satisfaction of the Authority. Petitioner was served with a termination notice dated 17.08.2015 issued by the Director General. To the same, petitioner submitted a remedial proposal dated 19.09.2015. However, the Under Secretary to the Government issued a Circular to the Director General by saying that a meeting is called on 01.12.2015. The meeting culminated in the decision, which is impugned as being totally arbitrary and in violation of the concession agreement, and hence the writ petition. To the same, petitioner submitted a remedial proposal dated 19.09.2015. However, the Under Secretary to the Government issued a Circular to the Director General by saying that a meeting is called on 01.12.2015. The meeting culminated in the decision, which is impugned as being totally arbitrary and in violation of the concession agreement, and hence the writ petition. The learned Single Judge passed an order staying the operation of the said decision. In the meantime, Writ Petition (S/B) No. 71 of 2016 was filed before the Division Bench. This writ petition was filed by the Doctors and other staff of the 5th respondent in the writ petition, which is none other than the petitioner in Writ Petition (MS) No. 3230 of 2015. Therein, the prayers sought are as follows: “A. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to release the arrears of the petitioners with immediate effect without any delay and to pay the interest thereon. B. Issue a writ, order or direction in the nature of mandamus commanding the respondents to ensure the payment of salary of all the doctors and para medical staffs to be paid in time as per the terms of the concession agreement so that they may perform their duties in the interest of public at large, which includes the large number of patients. C. Issue a writ, order or direction in the nature of mandamus commanding the respondents not to curtail the facilities provided to the petitioners towards accommodation etc.” 4. We heard Sri Ashok Gupta, Advocate assisted by Sri Rakesh Thapliyal and Sri Sanjay Bhatt, learned counsel for the petitioners and, also, Sri A.S. Rawat, learned Senior Advocate, appearing on behalf of the respondents. 5. The substance of the contentions raised by the petitioner in Writ Petition (MS) No. 3230 of 2015 is that the concession agreement was entered into between the Director General on one hand and the petitioner. Clause 9.2 details the manner, in which termination of a contract is to be effected. It contemplates among other things; issuance of proposal of termination giving an opportunity to remove the deficiency, which course was, in fact, adopted by the Director General. Petitioner, accordingly, had submitted its proposal. It is while so that the Committee, headed by the Government Secretary, proceeded to hold the meeting and issued impugned communication. It contemplates among other things; issuance of proposal of termination giving an opportunity to remove the deficiency, which course was, in fact, adopted by the Director General. Petitioner, accordingly, had submitted its proposal. It is while so that the Committee, headed by the Government Secretary, proceeded to hold the meeting and issued impugned communication. According to the petitioner, there is violation of the contract and the impugned order is arbitrary, illegal and without jurisdiction. 6. Per contra, Sri A.S. Rawat, learned Senior Counsel, would submit that the impugned decision dated 01.12.2015 is actually a recommendation to terminate the contract. It is the case of the respondents that there is an arbitration clause and more importantly that actually no termination has been effected. According to the learned Senior Counsel, a decision is yet to be taken and they have approached the Court prematurely, and no interference is called for. In other words, the stand of the learned Senior Counsel is that as of today, there is no termination. He would also submit that the parties are not in issue that the payment has been effected till 31st December, 2015. For the period from January, 2016 to April, 2016, according to the petitioner, work has been done, bills have been signed and recommended, but they have not been paid. After 30th April, 2016, the work has come to a grinding halt. What we are concerned with in this case is that undoubtedly, the matter is relating to the rights arising from a contract. At the same time, we cannot also ignore the fact that it relates to a laudable object of providing medical services by outsourcing medical services from the private sector. We take note of the stand of the learned Senior Counsel for the respondents that the contract as such has not been finally terminated. Therefore, we would think that the interest of justice requires that the matter be not kept pending in this Court by staying the proceedings dated 01.12.2015. Proceeding on the basis that a final termination has not been effected, as is contended by the learned Senior Counsel for the respondents, we would dispose of the writ petitions as follows: A final decision will be taken in the matter arising out of the termination notices issued by the Director General within a period of two months from today. Proceeding on the basis that a final termination has not been effected, as is contended by the learned Senior Counsel for the respondents, we would dispose of the writ petitions as follows: A final decision will be taken in the matter arising out of the termination notices issued by the Director General within a period of two months from today. Before doing that, an opportunity must be afforded by the competent Authority to the petitioner in Writ Petition (MS) No. 3230 o 2015. It will be open to the petitioner in Writ Petition (MS) No. 3230 of 2015 to urge all contentions available to it in law before the competent Authority by placing all facts, including its contention that the decision dated 01.12.2015 was unauthorized, besides being not correct. The competent Authority will necessarily consider all the facts and also take a final decision in the matter, as held out, within a period of two months from today. In the meantime, in regard to the period from 1st January, 2016, till the date the staff has worked (this is for the reason that the learned Senior Counsel does not admit the contention raised by the petitioner that the staff has worked till 30th April, 2016), petitioner in Writ Petition (MS) No. 3230 of 2015 can produce material before the competent Authority and the competent Authority will take a decision at the earliest and if any amount is found due on the basis that they have worked during that period, the amount will not be withheld and will be released as per law. Regarding the period after April 30, 2016, even according to the petitioner, they have not worked, but we record the submission of the learned Senior Counsel that if they work, payment, as per law, will be released to them till a decision is taken by the competent Authority. We leave open all the contentions of the petitioner in Writ Petition (MS) No. 3230 of 2015. We notice the contention of the learned Senior Counsel for the respondents that actually there is no privity of contract in between the petitioners in Writ Petition (SB) No. 71 of 2016 and respondent nos. 1 to 4 and the privity of contract is between the petitioners and the fifth respondent therein. We notice the contention of the learned Senior Counsel for the respondents that actually there is no privity of contract in between the petitioners in Writ Petition (SB) No. 71 of 2016 and respondent nos. 1 to 4 and the privity of contract is between the petitioners and the fifth respondent therein. We make it clear that we have left open all the contentions of the writ petitioner in Writ Petition (MS) No. 3230 of 2015.