Dismissed

Orion Security Solutions Pvt. Ltd. through Its Authorised Representative Mr Rajnish Kumar v. Bharat Sanchar Nigam Limited through Its General Manager

Jharkhand HC8 Sept 2023WPC/1141/2022

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition seeking to quash an order blacklisting the petitioner for non-payment of minimum wages and statutory dues. The Court held that the principal employer had jurisdiction to blacklist the contractor and that the decision-making process was lawful. It found no procedural illegality as the petitioner was given a notice to show cause.

What did the court decide?

Petitioner's writ petition is dismissed; no relief granted.

Orion Security Solutions Pvt. Ltd. through Its… — Company and Corporate | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 1141 of 2022

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Orion Security Solutions Pvt. Ltd. Through its authorized representative, Mr. Rajnish Kumar, 5E, 1^st Floor Jungi House Street No.5, Near BSES Power Station Shahpur JAT PO PS Hauz Khas, District South Delhi, New Delhi.

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… Petitioner

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Versus

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Bharat Sanchar Nigam Limited, through its General Manager, Shaheed Chowk, PO PS Kotwali, District Ranchi.

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… Respondent

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CORAM : SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J.

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For the Petitioner : Mr. Prem Mardi, Advocate For the Respondents : Mr. Arbind Kumar Jha, Advocate

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13/ 08.09.2023 Upon hearing the learned counsel for the parties, this Court passed the following (Per Ananda Sen, J.):-

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O R D E R

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1. In this writ petition, the petitioner has prayed to quash the order dated 01.02.2022, passed by the respondents, whereby the respondents have debarred/blacklisted the petitioner from participating in future tenders for a period of two years.

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2. The facts lie in a very narrow compass. An e-tender was issued by the respondents inviting offers from Companies for maintenance of telecom infrastructure of different telephone exchanges in Ranchi Zone. The petitioner participated and was found to be successful. The petitioner company was awarded the work for Zone I vide work order dated 27.03.2019 for Zone II to V vide work order dated 16.04.2019. Petitioner submitted the required bank guarantees. Thereafter formal agreements were entered into on 14.05.2019 for Zone I and on 30.08.2019 for Zone II to Zone V. It is the case of the petitioner that the petitioner commenced the work and performed the same. The petitioner claimed that the respondents did not pay the bills within time, but inspite of that petitioner continued the work. On 09.07.2021 a notice (Annexure 6) was issued to the petitioner mentioning therein that the petitioner did not pay minimum wages to the contract workers for the period May 2019 to March 2020 and for the period April 2020 to June 2020 in respect of Zone I and for the Zone II, III, IV and V from January 2020 to March 2021. Further, it was mentioned in the said notice that the petitioner did not submit the respective invoices in the office along with challan with payment of EPF and ESI to the beneficiaries for the above mentioned period. Respondents claim

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that due to non-payment of minimum wages and non submission of ESI’s and other amounts, the workers of the petitioner started creating problem and hindrance in proper functioning. The said notice is in fact notice to show cause as to why contract of the petitioner be not terminated and the petitioner be not blacklisted. Petitioner submitted their reply, which was not accepted by the respondents. Thereafter, vide the impugned order, petitioner’s agreement was terminated and the bank guarantees were revoked and the security deposit was forfeited and the petitioner was blacklisted for a period of two years, thus, was debarred from participating in future tenders for two years vide letter dated 01.02.2022.

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3. Counsel for the petitioner submitted that the entire fault lies with the respondent-BSNL and in fact BSNL did not pay the dues of the petitioner within time, thus, as a chain reaction, petitioner could not pay the amount to his workers and could not deposit the statutory amount. He submits that the impugned order is without application of mind and the respondents are trying to hide their own shortcomings by penalizing the petitioner. Counsel for the petitioner submits that whether minimum wages amount has been paid or not is an issue between the writ petitioner and its employees to which BSNL should not interfere, and the same cannot be a ground to blacklist the petitioner.

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4. Respondents had filed counter affidavit and based on the counter affidavit, counsel for the respondent argued that admittedly the petitioner did not pay the minimum wages to the workmen nor deposited the statutory dues like ESI and EPF. As the principal employer, respondents had to intervene and take this harsh decision. It has been submitted that due procedure has been followed, thus, this Court, while exercising jurisdiction under Article 226 of the Constitution of India, being not an appellate Court, cannot interfere with the impugned order.

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5. After hearing the parties, we find that the petitioner has approached this Court praying for a writ of certiorari. This Court, while exercising jurisdiction under Article 226 of the Constitution of India, in a writ of certiorari cannot sit as an Appellate Court. If there are flaws in the decision making process, this Court can interfere, and exercise jurisdiction under Article 226 of the Constitution of India.

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6. The Hon’ble Supreme Court in the case of State of Punjab versus Mehar Din reported in (2022) 5 SCC 648, at paragraph 27 thereof, has held as under: -

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27. … and in the given circumstances under the limited scope of judicial review under Article 226 of the Constitution, the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a court of appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal.

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7. In the case of Bharat Coking Coal Ltd. Versus AMR Dev Prabha reported in (2020) 16 SCC 759 , the Hon’ble Supreme Court at paragraph 28 thereof has held as under: -

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28. The scope of judicial review in tenders has been explored in-depth in a catena of cases. It is settled that constitutional courts are concerned only with lawfulness of a decision, and not its soundness. Phrased differently, the courts ought not to sit in appeal over decisions of executive authorities or instrumentalities. Plausible decisions need not be overturned, and latitude ought to be granted to the State in exercise of executive power so that the constitutional separation of powers is not encroached upon. However, allegations of illegality, irrationality and procedural impropriety would be enough grounds for courts to assume jurisdiction and remedy such ills. This is especially true given our unique domestic circumstances, which have demonstrated the need for judicial intervention numerous times. Hence, it would only be the decision-making process which would be the subject of judicial enquiry, and not the end result (save as may be necessary to guide determination of the former).

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8. In this case, we find that a notice to show cause was issued to the petitioner mentioning in detail the grounds on which the respondents want to take an action against the petitioner. The respondents have taken a specific ground that the petitioner has not paid the minimum wages nor the amount of statutory deductions were deposited. The period has also been mentioned. In the said show cause notice, respondents have also mentioned that they intend

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to blacklist the petitioner, which means the proposed punitive action has been intimated. Thus, we find that proper opportunity has been given to the petitioner. The principle of natural justice has, thus, been followed as notice contains the basis of the proposed action which the respondents intended to take against the petitioner. The petitioner replied to the said notice, which was considered by the respondents and thereafter the impugned order was passed debarring the petitioner from participating in the future tender for two years. We find no procedural illegality or irregularity in the entire process. The period of debarring is for two years, which cannot be said to be too harsh or disproportionate. The allegation against the petitioner is that he has not paid the minimum wages to the employees nor deducted the statutory dues like EPF, ESI. This is a very serious act on the part of the petitioner.

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9. The contention of the petitioner that the payment of minimum wages and statutory deductions from the wages are the disputes between the petitioner and his employees, which cannot be looked into by the respondent BSNL is not accepted. Admittedly, BSNL is the principal employer and they have a definite role as per the statute governing the field. Further, it is admitted that the agreement between the parties provided that the petitioner should perform its obligations so far as its employees are concerned. When the obligations have not been complied, BSNL being the principal employer, has taken a decision to blacklist the petitioner and proceeded to do so. There is no illegality in the action of the respondents. Thus, we find no merit in this writ petition. This writ petition is, accordingly, dismissed.

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10. There shall be no orders as to costs. Urgent certified copies of this order shall be issued as per the Rules.

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(Sanjaya Kumar Mishra, C.J.)

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(Ananda Sen, J.)

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Kumar/Cp-02

Orion Security Solutions Pvt. Ltd. through Its Authorised Representative Mr Rajnish Kumar v. Bharat Sanchar Nigam Limited through Its General Manager

Case brief

What is this about?

What did the court decide?

Orion Security Solutions Pvt. Ltd. through Its Authorised Representative Mr Rajnish Kumar v. Bharat Sanchar Nigam Limited through Its General Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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