Dismissed

Miss N Parvathi v. the Commissioner

Karnataka HC29 Sept 2021WP/6090/2021

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a temporary work order holder challenging her non-issuance of notice before restoration of the main contractor. The court held the temporary order created no indefeasible right, though the petitioner could seek representation for expenses incurred.

What did the court decide?

Petitioner's reliance on indefeasible rights for notice is rejected, but she is permitted to make a representation to the BBMP regarding expenses.

Miss N Parvathi Vs the Commissioner — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.6090 OF 2021 (LB-BMP)

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BETWEEN

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MISS.N.PARVATHI D/O NAGARAJ AGED ABOUT 26 YEARS, R/AT: NO.88, 7^TH CROSS, 1^ST MAIN ROAD, J.J.R NAGAR MAIN ROAD BENGALURU – 560 011.

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... PETITIONER

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(BY SRI LEELADHAR H.P., ADVOCATE (PHYSICAL HEARING))

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AND

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THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE (BBMP) HAVING ITS OFFICE AT: HUDSON CIRCLE BENGALURU – 560 002.

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THE EXECUTIVE ENGINEER GANDHINAGAR (BBMP) OFFICE AT SOUTH CENTRAL STREET BASHYAM PARK SESHADRIPURAM BENGALURU – 560 020.

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THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE (BBMP) SOLID WASTE MANAGEMENT CELL GANDHINAGARA, TULASITHOTA BALEPET, BENGALURU – 560 053.

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SRI SANTOSH KUMAR M/S S.R.ENTERPRISES MAJOR IN AGE R/AT: NO.366, 16^TH MAIN ROAD V.S.GARDEN BENGALURU – 560 023.

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THE STATION HOUSE OFFICER ULSOOR GATE POLICE STATION BANGALURU – 560 002.

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... RESPONDENTS

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(BY SRI K.N.PUTTEGOWDA, ADVOCATE FOR R1 TO R3 (VIDEO CONFERENCING); SRI B.VIJAY SHETTY, ADVOCATE FOR R4; SRI NITHYANANDA K.R., HCGP FOR R5 (PHYSICAL HEARING))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS DTD 21.01.2021 AND ALSO RECORDS IN DTD 01.03.2021 FROM THE OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, SOLID WASTER MANAGEMENT (GANDHINAGAR), BBMP AND ALSO IN THE OFFICE OF THE EXECUTIVE ENGINEER (GANDHINAGAR), BBMP AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question an order dated 01.03.2021 by which the petitioner was put back in terms of the contract for renovation and maintenance of pay and use toilets on the OTC road.

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Brief facts of the case leading to filing of the petition as borne out from the pleadings are as follows:

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The BBMP issued a notice inviting tenders for the purpose of renovation and maintenance of the pay and use toilets on the OTC road. The 4^th respondent who emerged successful bidder was awarded the said contract by drawing up a contract on 05.05.2016. The contract was to be in operation for a period of 15 years which was to be renewed at an interval of 5 years. When things stood thus, and the 4^th respondent being in possession and execution of the work in terms of the contract, alleging certain complaints against the 4^th respondent, the 3^rd

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respondent cancelled the contract without issuance of any notice on the ground of deficiency in service.

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This was called in question by the respondent No.4 before this Court in W.P.No.2161/2021. This Court by an order dated 16.02.2021 read down the said order to be treated as a show cause notice and directed the 4^th respondent who was petitioner in W.P.No.2161/2021 to submit his reply to the said show cause notice and the BBMP to pass orders in accordance with law.

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It transpires that the contract awarded to the 4^th respondent was cancelled on 19.1.2021 which was the subject matter of the aforesaid writ petition, within two days, the petitioner in the subject writ petition was issued the work order. The work order indicated that the order would be in operation until further orders being passed and was purely temporary. The justification of the BBMP is, such an order had to be passed in the light of the writ petition (supra) pending consideration at the hands of this Court.

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On consideration of the show cause notice and the reply

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given by the 4^th respondent, the BBMP restores the 4^th respondent in terms of the contract on 01.03.2021. It is this order that is called in question by the petitioner.

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Heard Sri.Leeladhar.H.P., learned counsel appearing for petitioner, Sri.K.N.Puttegowda, learned counsel appearing for respondent Nos.1 to 3, Sri.B.Vijay Shetty, learned counsel appearing for respondent No.4 and Sri.Nithyananda.K.R., learned High Court Government Pleader appearing for respondent No.5.

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Learned counsel appearing for petitioner submits that the petitioner since was issued a work order and was executing the work right from 21.01.2021, she ought to have been issued a notice prior to the restoration of the 4^th respondent due to which act, the petitioner is now non-seated.

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On the other hand, learned counsel appearing for the 4^th respondent would submit that since the order passed in favour of petitioner was temporary in the light of the writ petition pending, the petitioner did not derive any right.

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The afore-narrated facts not being in dispute are not reiterated. The contract of the 4^th respondent was unilaterally cancelled by the BBMP on account of certain complaints with regard to maintenance of pay and use toilets on the OTC road. Since it was an order which was passed in violation of principles of natural justice, this Court directed the impugned order of such cancellation to be treated as a notice and directed the 4^th respondent who was petitioner in W.P.No.2161/2021 to submit his reply.

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On consideration of the reply, the possession of the 4^th respondent is rendered status quo ante by restoration of his possession as it stood prior to the passage of the order of cancellation. This order was passed on 01.03.2021. Therefore,

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between the period from 21.01.2021 to 01.03.2021 is where the petitioner springs into action.

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The petitioner was issued a work order in ward No.109

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of the OTC road on 21.1.2021. The order reads as follows:

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“DzÃ±É À

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ªÉÄÃ°£À ¥Àæ¸ÁÛªÀ£ÉUÉ ¥ÀÆgÀPÀªÁV, WÀ£ÀvÁådå ¤ªÀðºÀuÁ PÉÆÃ±À,

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UÁA¢ü£ÀUÀgÀ ªÁå¦ÛAiÀÄ ªÁqïð ¸ÀASÉå:109-aPÀÌ¥ÉÃmÉ ªÁå¦ÛUÉ M¼À¥ÀqÀÄªÀ dlPÁ ¸ÁÖöåAqï ºÀwÛgÀ, £ÀUÀvÀð¥ÉÃmÉ (J.JA.¯ÉÃ£ï, ¸ÀAVÃvÁ ªÀiÁPÉðmï N.n.¹. gÀ¸ÉÛ) E°è ©©JA¦ ªÀw¬ÄAzÀ ¤ªÀiÁðtªÁVgÀÄªÀ ¸ÁªÀðd¤PÀ ±ËZÁ®AiÀÄzÀ ¥Àæw¢£ÀzÀ ¸ÀéZÀÒvÁ ¤ªÀðºÀuÉUÁV ¥Á°PÉ¬ÄAzÀ AiÀiÁªÀÅzÉÃ DyðPÀ £ÉÃgÀªÀ£ÀÄß ¤jQë¸ÀzÉÃ §¼ÀPÉzÁgÀjAzÀ¯ÉÃ ±ÀÄ®ÌªÀ£ÀÄß ¥ÀqÉzÀÄ, Pay

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and Use ªÀiÁzÀjAiÀÄ°è ±ËZÁ®AiÀÄPÉÌ CUÀvÀå«gÀÄªÀ J¯Áè zÀÄgÀ¹Ü PÁAiÀÄðUÀ¼À£ÀÄß ªÀiÁrPÉÆAqÀÄ ¸ÀéZÀÒ ¸ÀªÉÃðPÀëuÉAiÀÄ°è w½¹gÀÄªÀ ªÀiÁ£ÀzÀAqÀUÀ½UÉ (NrJ¥sï++) C£ÀÄUÀÄtªÁV J¯Áè ªÀÄÆ®¨sÀÆvÀ ¸ËPÀAiÀÄðUÀ¼ÉÆA¢UÉ ±ÀÄavÀé PÁ¥ÁrPÉÆAqÀÄ ¤ªÀð»¸À®Ä PÉ¼ÀPÀAqÀ µÀgÀvÀÄÛ ªÀÄvÀÄÛ ¤§AzsÀ£ÉUÀ½UÉ M¼À¥ÀlÄÖ ºÁUÀÆ ©©JA¦ PÁ®PÁ®PÉÌ ¤ÃqÀÄªÀ J¯Áè DzÉÃ±À ªÀÄvÀÄÛ ¸ÀÆZÀ£ÉUÀ¼À£ÀÄß ¥Á°¸ÀÄªÀ µÀgÀvÀÄÛUÀ½UÉ M¼À¥ÀlÄÖ vÁvÁÌ°PÀªÁV PÁAiÀiÁðzÉÃ±À ¤ÃqÀ¯ÁVzÉ. F DzÉÃ±ÀªÀÅ ªÀÄÄA¢£À DzÉÃ±ÀzÀªÀgÉUÉ ZÁ°ÛAiÀÄ°ègÀÄvÀÛzÉ.

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µÀgÀvÀÄÛUÀ¼ÀÄ ªÀÄvÀÄÛ ¤§AzsÀ£ÉUÀ¼ÀÄ

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ªÀµÀð «ÄÃjgÀ¨ÁgÀzÀÄ ºÁUÀÆ DgÉÆÃUÀå ªÀÄvÀÄÛ ¸ÀzÀÈqsÀ

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PÁ«ÄðPÀgÀ£ÀÄß ªÀiÁvÀæ £ÉÃ«Ä¸ÀvÀPÀÌzÀÄÝ. 18 ªÀµÀð ªÀAiÀÄ¹ìVAvÀ

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PÀrªÉÄ ªÀAiÀÄ¹ì£À AiÀiÁªÀÅzÉÃ ªÀåQÛAiÀÄ£ÀÄß PÉ®¸ÀPÉÌ £ÉÃ«Ä¹PÉÆ¼Àî¨ÁgÀzÀÄ.

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¥Á°PÉAiÀÄ £ËPÀgÀgÀ£ÀÄß F PÉ®¸ÀPÉÌ ¤AiÉÆÃf¹PÉÆ¼Àî¨ÁgÀzÀÄ.

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PÉ®¸ÀUÁgÀjUÉ £ÉÃgÀ¼É §tÚzÀ ªÉÄÃ®ÄºÉÆ¢PÉ (K¥Áæ£ï), ªÀÄÄR UÀªÀZÀ, ºÁåAqïUËè¸ï, µÀÆ ºÁUÀÆ CUÀvÀå ¸ÀÄgÀPÀëvÁ ¸À®PÀgÀuÉUÀ¼À£ÀÄß MzÀV¸ÀvÀPÀÌzÀÄÝ.”

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A perusal at the order would unmistakably indicate that it was

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until further orders and temporary. The justification of the BBMP sounds acceptance, as by then the writ petition filed by the 4^th respondent was pending consideration before this Court.

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The petitioner operated in terms of the contract between 21.01.2021 and 01.03.2021. Having operated for 40 days, the petitioner now cannot contend that a notice ought to have been issued to her prior to restoration of the 4^th respondent.

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It is to be noticed that the petitioner was brought into picture temporarily when the unilateral cancellation of the contract of the 4^th respondent happened. There was no contract

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entered into with the petitioner as is done in the case of the 4^th respondent, which mandated that the 4^th respondent would be in possession of the execution of work in terms of the contract for a period of 15 years, which was renewable at an interval of 5 years. This itself would indicate that the work order issued to the petitioner was temporary and was until further orders.

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The petitioner did not accrue any right, much less, indefeasible right for him to continue in the execution of the said work, for the BBMP to issue notice to the petitioner and then restore the 4^th respondent who was the holder of a contract at the hands of the BBMP. The position of the petitioner and the 4^th respondent are altogether different, as observed hereinabove.

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Learned counsel for petitioner Sri.Leeladhar.H.P., would submit that the petitioner for the 40 days that she was in possession of the execution of work, has spent several lakhs for renovation purpose of the pay and use toilets. If that be so, it is for her to make an appropriate representation to the BBMP

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which this Court has no reason to believe that the BBMP would not consider the same. The petitioner does not have any right to contend that she should be continued in terms of the work order or a notice had to be issued to her prior to restoration of the 4^th respondent, but, sthe BBMP shall consider the representation to be given by the petitioner, in accordance with law and appropriate orders be passed, as expeditiously as possible.

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With the aforesaid observations, the writ petition stands

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dismissed.

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Sd/JUDGE

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bkp CT:MJ

Miss N Parvathi v. the Commissioner

Case brief

What is this about?

What did the court decide?

Miss N Parvathi v. the Commissioner

Case brief

What is this about?

What did the court decide?

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