Rajbhra Medicare Private Ltd. v. State of Uttarakhand
2016-11-24
K.M.JOSEPH, V.K.BIST
body2016
DigiLaw.ai
JUDGMENT : K.M. Joseph, C.J. Appellant is the writ petitioner. The writ petition is filed challenging the order dated 24.10.2016 passed by the Director General Medical Health and Family Welfare, State of Uttarakhand. Further prayers sought in the writ petition are as follows: “(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. (C) Permit the petitioner company to operate the four Community Health Centers to provide medical health to the rural people of the region and to instruct and direct the Director General, Medical Health & Family Welfare, Uttarakhand make timely payments as per law so that there is continuity and availability of the doctors in all the four Community Health centers.” 2. There was a concession agreement dated 14.08.2013 arrived at between the appellant and the Director General. It was essentially for providing of medical facilities. Appellant was before this Court on an earlier occasion in Writ Petition (M/S) No. 3230 of 2015 and by the judgment dated 8th July, 2016, a Bench of this Court disposed of the matter, inter alia, 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 of 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.
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 make it clear that we have left open all the contentions of the writ petitioner in Writ Petition (MS) No. 3230 of 2015.” 3. It appears that an order was passed thereafter. The said order was challenged before this Court by filing Writ Petition No. 2662 of 2016 (M/S) and the same was disposed of as follows: “4. Yesterday, this Court asked the learned Chief Standing Counsel to seek instructions in the matter. On instructions, the learned Chief Standing Counsel very fairly stated that the order impugned may be set aside but opportunity may be given to the Director General to pass a fresh order in the matter. 5. Since, the order does not appear to be reasoned order, the impugned order dated 06.09.2016 is quashed.
On instructions, the learned Chief Standing Counsel very fairly stated that the order impugned may be set aside but opportunity may be given to the Director General to pass a fresh order in the matter. 5. Since, the order does not appear to be reasoned order, the impugned order dated 06.09.2016 is quashed. Director General, Medical Health & Family Welfare is directed to pass a fresh reasoned and speaking order within a period of three weeks from today. With this observation, the writ petition is disposed of.” 4. It is pursuant to the same that the impugned order came to be passed on 24.10.2016. The learned Single Judge declined to entertain the writ petition under Article 226 of the Constitution of India taking the view that there is an arbitration clause available. 5. We heard Mr. Ashok Gupta, learned counsel for the appellant and Mr. A.S. Rawat, Senior Advocate appearing on behalf of the State. 6. Learned counsel for the appellant would submit that in passing the impugned order, the earlier direction given by the Division Bench in the earlier round, was flouted. It is submitted that the Director General has not afforded an opportunity of hearing to the appellant, instead a Committee was constituted and, though the submissions were made before the Committee on behalf of the appellant on 26.08.2016, it is noteworthy that the order, which was set aside in the earlier round, which we have adverted to, was passed by a different Director General, Medical Health and Family Welfare, than who had heard the appellant as the member of the Committee. He would further complain that the directions of this Court to pay the bills, which were presented by the appellant, have been violated. In this regard, he refers to Paragraph 1 & 2 of the order dated 24.10.2016, which read as under: “(1). On the issue of non-recoupment of the bill sent by Medical Superintendent, CHC, Rajpur through its letter dated 30th July 2016 within 15 days of its presentation for the months of January, February and April, 2016, it was observed that your firm was itself responsible for not presenting the bills in timely manner. Moreover the aforesaid bills were also not duly verified by the concerned Chief Medical Officer. On many previous occasions also, it was found that your firm has not submitted the bills on time.
Moreover the aforesaid bills were also not duly verified by the concerned Chief Medical Officer. On many previous occasions also, it was found that your firm has not submitted the bills on time. For instance the bills of CHC, Thatyur for the month of November 2015 were received by the Directorate office on 29-12-2015. Similarly the bills of CHC Raipur for the months of November and December 2015 were received by the Directorate office on 19-02-2016. In addition to this some of the bills were also vitiated by errors which were required to be rectified on your part. And thereafter the bills were processed as per applicable rules. Hence it was observed that in most of the instances your firm was solely responsible for delay in the recoupment of the bills. (2). On the issue of ineffective management of the CHCs and non-payment of salary and other dues due to delayed payments, it is to reiterate that your firm has not provided the medical health services as per the applicable norms and agreed terms in the different CHCs and any delay in the recoupment of the bills is solely attributable to you as mentioned ion the above Para 1.” 7. Per contra, the learned Senior Counsel for the State Sri A.S. Rawat would support the judgment of the learned Single Judge. In regard to non-payment of bills, it is submitted that is not as if the respondents have taken the stand that they will not pay the bills. The bills, which are presented properly, are being processed and the payments will be effected and as far as the bills, which are not paid, it is for the appellant to work out its remedies before the competent forum. 8. Interference in contractual matters in Article 226 of the Constitution of India is not prohibited. Article 14 is sufficiently wide to strike at any arbitrary action, be it even in the contractual arena. The basic concept is that the action must be impugned as being arbitrary. Article 226 cannot be converted for enforcement of contractual rights in the guise of invoking Article 14. 9.
Article 14 is sufficiently wide to strike at any arbitrary action, be it even in the contractual arena. The basic concept is that the action must be impugned as being arbitrary. Article 226 cannot be converted for enforcement of contractual rights in the guise of invoking Article 14. 9. In this case, we notice that while it is true that in the earlier judgment by the Division Bench, it was directed that the appellant would make its submissions, which imply a hearing, it cannot be in the region of dispute that such a right of hearing was afforded. It appears that the hearing was held by a Committee headed by a Director General, who was the then Director General and the order was passed. The order was, however, set aside and the matter was remitted back. We have already adverted to the terms of the said order. The learned Single Judge, one amongst us (Justice V.K. Bist) directed that a fresh order be passed within a period of three months by the Director General. It is not a case, where the hearing as such was not afforded at all as hearing was indeed afforded by the Committee. In the circumstances of this case, we would think that it may not be a ground for us to allow the appellant to bye-pass the remedy available to it under the terms of the contract, namely, by way of arbitration than to seek to have the matter investigated in Article 226 of the Constitution . We would think that we need not interfere with the decision of the learned Single Judge, by which the appellant has been relegated to work out remedy available to it. As far as the complaint regarding non-payment is concerned, we would think that it is sufficient that we record the submission of the learned Senior Counsel for the respondents and direct that the bills, which have been submitted by the appellant, which are found to be in order and duly verified, but not paid, will be processed and the payment will be made to the appellant as early as possible at any rate within a period of one month from today. As regard the bills, which are dishonoured, we leave it open to the appellant to seek appropriate remedy in the competent forum.
As regard the bills, which are dishonoured, we leave it open to the appellant to seek appropriate remedy in the competent forum. The Appeal is partly allowed to the above extent and the judgment of the learned Single Judge is modified to the above extent. 10. We make it clear that nothing contained in our judgment, in any way, will influence the decision making process, when the matter is taken up before the competent forum. 11. Let certified copy of this order be issued today itself.