Disposed

E.Prakasan v. the Commandant, Defence Security Corps

Kerala HC4 Dec 2014WP(C)/28929/2013

Case brief

AI extract

What is this about?

The High Court of Kerala held that while the department did not commit premature termination by not renewing an expired contract due to performance issues, it failed to follow fair procedures including notifying guidelines favoring ex-servicemen when awarding a new contract to a civilian, though the current contract had expired.

What did the court decide?

Writ petition dismissed for non-maintenance of status quo; leave reserved for the department to enter new contracts following due process and guidelines indicating preference for ex-servicemen and war

E.Prakasan Vs the Commandant, Defence… — Contract and Commercial Disputes | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936

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WP(C).NO. 28929 OF 2013 (M)

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PETITIONER(S):

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E.PRAKASAN,AGED 52 YEARS S/O M. NARAYANAN, ERUMAL HOUSE, POST AZHIKODE KANNUR 670009

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BY ADVS.SRI.V.R.KESAVA KAIMAL

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SMT.C.S.RAJANI

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RESPONDENT(S):

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1. THE COMMANDANT, DEFENCE SECURITY CORPS KANNUR 670013

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2. THE GENERAL OFFICER COMMANDING IN CHARGE, HEAD QUARTERS KERALA AND KARNATHAKA SUB AREA CUBBAN ROAD, BANGALORE 560001

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3. MR. KISHAN LAL AGARWAL WET CANTEEN CONTRACOT, D.S.C. CENTRE, KANNUR 670013

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R-R1 & 2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1,R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).NO. 28929 OF 2013 (M)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE EX SERVICEMEN IDENTITY CARD

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EXHIBIT P2 TRUE COPY OF THE GUIDELINES DATED 03-01-1972 ISSUED TO THE HEAD QUARTERS OF THE SOUTHERN COMMAND, EASTERN COMMAND, WESTERN COMMAND AND CENTRAL COMMAND

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EXHIBIT P2(A) TRUE COPY OF THE COMMUNICATION DATED 06-01-1976

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EXHIBIT P3 TRUE COPY OF THE GUIDELINES DATED 21-05-1998

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EXHIBIT P4 TRUE COPY OF THE LETTER DATED 27-06-1998

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EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 10-04-2001 IN OP NO 9283/2001

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EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 22-03-2006

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EXHIBIT P7 TRUE COPY OF THE STAMP PAPER DATED 09-05-2006 ALONG WITH ITS ANNEXURES

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EXHIBIT P8 TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 01-09-2011

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EXHIBIT P9 TRUE COPY OF THE TERMINATION NOTICE DATED 03-09-2012

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EXHIBIT P10 TRUE COPY OF THE REPLY DATED 20-11-2012 ALONG WITH THE ACKNOWLEDGMENT CARD

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EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 27-03-2013 ALONG WITH THE ACKNOWLEDGMENT CARD

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EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 04-04-2013 ALONG WITH THE ACKNOWLEDGMENT CARD

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EXHIBIT P13 TRUE COPY OF THE ORDER DATED 12-04-2013

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EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED DATED 12-08-2013 ALONG WITH THE ACKNOWLEDGMENT CARD

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EXHIBIT P15 TRUE COPY OF THE REPLY DATED 26-08-2013

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EXHIBIT P16 TRUE COPY OF THE REPLY DATED 05-09-2013 ALONG WITH THE POSTAL RECEIPT

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EXHIBIT P17 TRUE COPY OF THE LETTER DATED 11-11-2013

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EXHIBIT P18 TRUE COPY OF THE REPLY DATED 14-11-2013 TO EXT P17

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EXHIBIT P19: TRUE COPY OF THE REPLY DATED 18.03.2014 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER

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EXHIBIT P20: TRUE COPY OF THE WEBSITE DOWNLOADED FROM THE OFFICIAL SITE

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RESPONDENT(S)' EXHIBITS:NIL

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//TRUE COPY//

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P.A.TO JUDGE

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A.K.JAYASANKARAN NAMBIAR, J.

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............................................................. W.P.(C).No.28929 of 2013

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............................................................. Dated this the 4^th day of December, 2014

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J U D G M E N T

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The petitioner is a an ex-serviceman, who had applied to the respondents for permission to run a cloth shop within the Cantonment area in Kannur. The request of the petitioner was based on Exts.P2 to P4 letters, issued at the instance of the office of the Quarter Master General in the Army Headquarters, which directed the various Command Officers to follow certain guidelines while allotting regimental shops by giving preference to warwidows and ex-servicemen. A perusal of the said instructions would indicate that the intention was to try and give some preference to ex-servicemen and war-widows while awarding contracts for running of various shops such as cloth shops, meat shops, canteen and refreshment shops, vegetable shops, general provision shops etc., within the Cantonments. The instructions also show that the units/formations had to communicate the details of existing business units, or new proposed units, to the Director General of Resettlement so as to enable him to sponsor the names of suitable disabled soldiers, war-widows, orphans and other exserviceman who would be interested in self employment through these avenues provided by the said instructions. The request of the

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W.P.(C).No.28929 of 2013

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petitioner was acceded to by the respondents, and by Exts.P6, P7 and P8 contracts that were awarded to him, he was given the right to run a tailoring shop, without the right to purchase cloth on his own, for a period of almost three years. The last of the formal contracts entered into with the petitioner was Ext.P8, the validity of which expired on 31^st August, 2012. The facts in the writ petition would disclose that there were issues that cropped up between the petitioner and the respondents, with regard to the manner in which the petitioner was performing his obligations under the contract. Under those circumstances, consequent to the expiry of the period of Ext.P8 agreement on 31.08.2012, the respondents chose not to renew the said contract with the petitioner. On representations being made by the petitioner however, he was allowed to continue on a temporary basis with the conduct of a tailoring shop, but one that was situated out side the DSC Centre though within the cantonment area. This arrangement was made through Ext.P13 communication dated 12.04.2013 and continues to be in force. The cause of action for filing the writ petition was the apprehension, by the petitioner, that even the said arrangement with the petitioner would be terminated. Further, the petitioner also came to know that the respondents had since awarded the contract, to run the tailoring shop within the DSC

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W.P.(C).No.28929 of 2013

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Centre, to the 3^rd respondent who was a civilian, without inviting any Notification prior to the award of the said contract. Thus, in the writ petition, while the petitioner seeks a direction to the respondents not to initiate any coercive steps against him for termination of the existing arrangement with him, there is also a prayer for a direction to the respondents to revoke the contract awarded to the 3^rd respondent and to reinstate the petitioner in the place of the 3^rd respondent, in the shop within the DSC Centre.

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A counter affidavit has been filed on behalf of respondents 1 and 2 wherein the sequence of events leading to the expiry of the validity of Ext.P8 contract, and the issuance of Ext.P13 order appointing the petitioner on temporary basis, is narrated. It is pointed out that the action against the petitioner was necessitated only on account of the unsatisfactory performance by the petitioner of his obligations under the contract, and on account of the difficulties that were faced by the respondents consequent to the officers and Jawans not getting their uniforms stitched according to the measurements that were taken. As regards the award of the contract to the 3^rd respondent, it is stated that the awarding of the contract to the 3^rd respondent was necessitated on account of vacating of the premises by the petitioner, and in a situation where

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W.P.(C).No.28929 of 2013

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there was an urgent need for the services of a tailor to cater to the requirements of the officers and the Jawans. The said reason is projected as a justification for appointing the 3^rd respondent, initially on temporary spells, as also for entering into a yearly contract with the 3^rd respondent for the said services. Ext.R1(l) is the agreement entered into between the 1^st respondent and the 3^rd respondent for running the tailoring shop in the DSC Centre, Kannur and a perusal of the same shows the agreement to be valid for a period of one year from 3^rd August, 2013 to 2^nd August, 2014. It is stated that, thereafter, the contract with the 3^rd respondent has not been formally renewed and he is permitted to continue on a temporary arrangement, in view of the interim order passed by this Court on 03.09.2014, which clarifies that the renewal of the contract, if any done by the respondents 1 and 2 during the pendency of the writ petition, shall be subject to the final outcome of the writ petition.

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I have heard Sri.V.R.K. Kaimal, the learned counsel appearing on behalf of the petitioner and Sri.N.Nagaresh, the learned Assistant Solicitor General, appearing on behalf of respondents 1 and 2. There is no appearance on behalf of the 3^rd respondent despite notice.

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W.P.(C).No.28929 of 2013

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On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I note that this is a case where the 1^st and 2^nd respondents had initially awarded the contract, for running the tailoring shop within the DSC Centre, to the petitioner as evidenced by Exts.P6, P7 and P8 agreements. Thereafter, pursuant to a dissatisfaction, expressed by the 1^st and 2^nd respondents, with regard to the performance by the petitioner of his obligations under the agreement, the 1^st and 2^nd respondents chose not to renew the contract with the petitioner. By Ext.P13 order, however, he was permitted to continue on a temporary basis and render tailoring services from premises that were situated outside the DSC Centre, though within the cantonment area. The 1^st and 2^nd respondents, thereafter, proceeded to fill the vacancy arising out of the termination of the contract with the petitioner, by temporarily appointing the 3^rd respondent to run the tailoring shop within the DSC Centre. What was begun as a temporary arrangement, however, was later regularised by entering into Ext.R1(l) agreement with the 3^rd respondent. It is not in dispute that as of today, the petitioner continues to function on the basis of the temporary arrangement pursuant to Ext.P13, from the premises outside the DSC Centre and, as far as the 3^rd respondent is

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W.P.(C).No.28929 of 2013

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concerned, he continues to function on a temporary basis from the premises within the DSC Centre, despite the expiry of the period mentioned in Ext.R1(l) agreement. On a consideration of the contentions in the writ petition with regard to the legality of the action initiated against the petitioner by the 1^st and 2^nd respondents, I find that the petitioner has not made out a case warranting the issuance of any direction to the 1^st and 2^nd respondents, to continue the arrangement that existed between them vide Ext.P8 agreement. Insofar as there was no premature termination of the said agreement, the petitioner has no cause for complaint. Any subsequent right that accrued to the petitioner could only be a right for consideration for the award of the contract and nothing more. Further, by virtue of Ext.P13 order, the petitioner is stated to be continuing on a temporary arrangement, and functioning from the premises outside the DSC Centre. Under the said circumstances, I am not inclined to grant the prayer in the writ petition, seeking a direction to the respondents not to initiate any coercive steps against the petitioner for terminating the arrangement with him, since there is nothing in the writ petition to suggest that the 1^st and 2^nd respondents are proposing any such action at present. As regards the award of the contract to the 3^rd respondent, however, I note that although the 1^st and 2^nd

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W.P.(C).No.28929 of 2013

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respondents had resorted to a temporary arrangement, in the wake of the expiry of the contract with the petitioner, to appoint the 3^rd respondent for running the tailoring shop within the DSC Centre, a regular contract for running the tailoring shop within the DSC Centre could be entered into only after following a fair procedure for award of the contract that took into account the mandate in Exts.P2 to P4 guidelines. I am of the view that it was not open to the 1^st and 2^nd respondents to pick and choose any person of their choice for the award of the contract, dehors their obligation to consider the case of war widows, orphans, disabled soldiers and other ex-servicemen who would be interested in self employment as indicated in the said instruction/guideline. That apart, it was also incumbent upon the 1^st and 2^nd respondents to give sufficient publicity to their proposal, with regard to the award of the contract in respect of shops within the cantonment area, so that even those persons who stood to benefit from Exts P2 to P4 guidelines, could respond to the notification calling for applications. Such a procedure would accord with the concept of fairness, and also rule out the possibility of any arbitrariness in the awarding of the contract by the 1^st and 2^nd respondents. In this view of the matter, while I do not deem it necessary to quash Ext.R1(l) contract awarded in favour of the 3^rd respondent on account of the period of

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W.P.(C).No.28929 of 2013

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the said contract having expired, I make it clear that if and when the 1^st and 2^nd respondents choose to enter into a formal contract with another person for running the tailoring shop in the DSC Centre, they would necessarily have to follow the procedure indicated in this judgment, by bringing their proposals to the notice of all concerned and in particular, the category of persons that have been specified in Exts.P2 to P4 guidelines.

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With these findings, the writ petition is disposed.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns

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W.P.(C).No.28929 of 2013 9

E.Prakasan v. the Commandant, Defence Security Corps

Case brief

What is this about?

What did the court decide?

E.Prakasan v. the Commandant, Defence Security Corps

Case brief

What is this about?

What did the court decide?

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