Dismissed

All India Transormeer Manufactures Association and Another v. State of U.P. and 2 Others

Allahabad HC11 Nov 2019WRIC/20776/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Government Order laying down guidelines for transformer quality checks and black listing. The bench held that the Order acts as guidelines supplementing contracts rather than modifying them, is not arbitrary, and upheld its validity despite Article 14 claims.

What did the court decide?

The writ petition was consigned to records without interference in the Government Order.

All India Transormeer Manufactures Association and… — Service and Employment | Allahabad HC (2019)

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AFR

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Court No. - 1

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Case :- WRIT - C No. - 20776 of 2019

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Petitioner :- All India Transormeer Manufactures Association And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vivek Saran Counsel for Respondent :- C.S.C.,Krishna Agarawal

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Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.

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1. Heard Sri Vivek Saran, learned counsel for the petitioners Sri Krishna Agrawal, learned counsel appearing for respondent Nos.2 and 3-Corporation and learned Standing Counsel for respondent No.1.

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2. By means of this writ petition under Article 226 of the Constitution of India the petitioner has challenged the Government Order dated 23.05.2019 whereby certain guidelines have been provided for qua quality check of transformers and on inspection such transformers, if detected be defective, certain actions have been further provided for.

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3. Assailing the Government Order the grievance raised by the petitioner is that the Government Order directly affects each individual contract entered between the tenderer and the Corporation qua the supply of product and, therefore, no separate directions can be issued as they would amount to modification of the conditions under the agreement between the two parties. He has taken us to the relevant provisions of notice inviting tender subject to which the supply has to made and in which various stages of inspections have been provided for. He further submits that since under the contract there is specific provision for maintenance in case of supply of the transformers and also there are certain guarantees that stand qua the transformers installed, it amounts to specific precautions to check quality control. He, therefore, submits that there was no occasion to issue a Government Order over and above the terms and conditions subject to which tender was accepted and agreement reached.

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4. He has further assailed the order on the ground that the time period prescribed for black listing as minimum three years is also not in public interest. He submits that each individual case is to be tested and if the transformer supplied are found to be defective one and the terms of contract have been found to be violated, obviously it will lead to penal action. Thus, he submits that each case should be tested on its facts particular to that case and then only any order should be passed.

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5. Per contra, the argument advanced by learned Standing Counsel as well as learned counsel appearing for the Corporation is that the Government Order has been issued only

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providing guidelines and these guidelines not in derogation to the agreement entered into between the parties. He, therefore, submits that challenge to the Government Order is an absolutely misplaced grounds. He further submits that these are only by way of precautionary measures that have been adopted for by the Government and it cannot under any circumstance be read as eroding the principles governing privity of contract between the parties.

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6. Having heard learned counsel for the parties and having perused the records and having gone through specific provisions of the Government Order, we find that the Government Order lays down certain conditions for the purposes of testing and inspection of the transformers and provides certain measures to be adopted so that the transformers supplied are qualitative one. In fact, the Government Order is only by way of a measure for quality control.

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7. There is always presemption of legislative action being valid and lawful and so also in respect of a Government Order if it is issued in the field not already covered by any legislation.

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8. A Government Order providing law in a field not already occupied by any Act or Rule would fall in the category of primary legistation (Nawal Kishor Mishra Vs. High Court of Judicature at Allahabad, (2015) 5 SCC 479).

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9. Constitution too vide Article 13(3)(a) defines laws as an Ordinance Order, by-laws, regulation, notification etc. If legislature has not enacted law and executive government issues any Government Order, it raises presumption of its validity. In the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, (1991) Suppl (1) Sec 600 the Apex Court laid down a very broad test qua judicial review of a legislative action while its constitutional validity is under challenge vide para 255 thus:

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" 255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible — one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to

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strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so."

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10. Applying the above test to the provisions contained under the Government Order, we do not find any ambiguity in the language and the intention behind it.

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11. On pointed query being made to learned counsel for the petitioner as to what malice in law can be detected if the Government Order is to be tested on the testing anvil of Article 14 of the Constitution, learned counsel for the petitioner only submitted that it is encroaching upon the field of an agreement which is governed by the principles of privity of contract between the two parties and thus, Government Order virtually amounts to modifying the terms of contract.

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12. Under the Government Order in its very first paragraph it indicates that it is in the form of guidelines and so we would be holding that these guidelines are to be read in acclamation to terms and conditions provided under each agreement between the parties.

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13. Thus, we do not find any merit in the arguments advanced by learned counsel for the petitioner that the Government Orders suffers from an illegality as such so as to hold it bad. Neither the exercise in issuing such Government Order is found arbitrary nor content thereof in any manner are found to be against the public policy and/or public interest. We do not find it to be in any manner vitiated for any bias or perversity in providing for a period black listing. Thus, we decline to interfere in the present writ petition.

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14. However, we hastened to add that every agreement has its own sanctity which is to be maintained and in case if the terms and conditions are violated and during inspection the transformers are found to be defective the action shall be taken strictly in accordance with law within the four corners of the terms and conditions entered between the parties qua the contract. And we may further observe that in case, if the individual has been visited with the penalty of black listing, it is always open for such individual to approach this Court against the order of the black listing and each case is to be tested on its own facts.

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15. The writ petition, with the aforesaid observations, is consigned to records.

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Order Date :- 11.11.2019 Nitin Verma

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(Ajit Kumar, J.) (Ramesh Sinha, J.)

All India Transormeer Manufactures Association and Another v. State of U.P. and 2 Others

Case brief

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All India Transormeer Manufactures Association and Another v. State of U.P. and 2 Others

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