Dismissed

Col. Augustine Mangatteparambil (Retd.) v. the Unit Head, M/S Hindustan Insecticides (India) Ltd.

Kerala HC9 Mar 2021WA/429/2021

Case brief

AI extract

What is this about?

Writ appeal dismissed. Appellant, a retired Colonel, sought work order against Hindustan Insecticides Ltd. Single Judge dismissed original petition noting empanelment expired when equation filed and appellant exceeded 60 years age limit per govt guidelines.

What did the court decide?

Writ appeal dismissed; appellant fails to prove entitlement to work order.

Col. Augustine Mangatteparambil (Retd.) Vs the… — Public Procurement and Tenders | Kerala HC (2021)

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WA.No.429 OF 2021 -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

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WA.No.429 OF 2021

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AGAINST THEJUDGMENT IN WP(C) 15575/2020(V) OF HIGH COURT OF KERALA

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APPELLANT/S:

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COL. AUGUSTINE MANGATTEPARAMBIL (RETD.) AGED 60 YEARS PROPRIETOR, M/S. AUGUSTINE MANGATTEPARAMBIL SECURITY AGENCY, DOOR NO. 67/3078, PULLIKKAL ESTATE, BANERJI ROAD, ERNAKULAM - 682918.

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BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE

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RESPONDENT/S:

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1 THE UNIT HEAD, M/S HINDUSTAN INSECTICIDES (INDIA) LTD., UDYOGAMANDAL, ERNAKULAM - 683501.

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2 THE CHAIRMAN AND MANAGING DIRECTOR M/S. HINDUSTAN INSECTICIDES (INDIA) LTD, 2ND FLOOR, CORE - 6, SCOPE COMPLEX 7, LODHI ROAD, NEW DELHI - 110003.

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3 DEPARTMENT OF PUBLIC ENTERPRISES PUBLIC ENTERPRISES BHAWAN, CLOCK NO. 14, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110003.

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4 DIRECTOR (CHEM-1) MINISTRY OF CHEMICALS AND FERTILIZERS, SHASTRI BHAVAN, NEW DELHI - 110001.

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5 THE DIRECTOR GENERAL(RESETTLEMENT) GOVERNMENT OF INDIA, MINISTRY OF DEFENCE,

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DIRECTORATE GENERAL OF RESETTLEMENT, WEST BLOCK - IV, R.K. PURAK, NEW DELHI - 110066.

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OTHER PRESENT:

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R1 AND R2 BY SRI. M.GOPIKRISHNAN NAMBIAR (SC) R3-R5 BY SRI.M.N.MANMADAN (CGC) R3-R5 BY SRI. P. VIJAYAKUMAR, ASG

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA.No.429 OF 2021 -3-

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J U D G M E N T

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Dated this the 9^th day of March, 2021

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Shaji P. Chaly, J.

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The appeal is preferred by the petitioner in W. P. (C) No. 15575 of 2020 challenging the judgment dated 20.01.2021 whereby the learned Single Judge dismissed the writ petition holding as follows:-

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“9. The fact that respondents 1 and 2 have selected the petitioner for award of work, is not disputed. The stand of respondents 1 and 2 is that in order to reduce their expenditure, they sought the possibility of getting security personnel through GeM. No work orders are issued to the empanelled agencies, awaiting clarifications from Government of India. From the pleadings available in the writ petition, it is evident that the petitioner is seeking relief on the basis of his empanelment by DGR. But, the period of empanelment is already over.

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The petitioner himself has stated in paragraph 1 of the writ petition that the period of DGR empanelment is limited to 3 years or up to 60 years of age. Ext.P6 empanelment certificate produced by the petitioner would show that his period of empanelment ended on 24.05.2020. The writ petition itself is seen filed after the expiry of the period of empanelment. Therefore, a direction cannot be given to respondents 1 and 2 in

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this writ petition, to issue work orders to the petitioner.

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The petitioner would contend that he was selected for award of works before the expiry of his DGR empanelment and respondents 1 and 2 could have given work orders to him earlier, failure of which has resulted in monetary loss to the petitioner. Assuming that the argument is tenable, the claim of the petitioner would be a monetary claim involving disputed questions of fact and this Court cannot adjudicate the same in writ proceedings.

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In the circumstances, this Court finds that no relief can be given to the petitioner in this writ petition. The writ petition is therefore dismissed. The petitioner will be at liberty to resort to any appropriate legal proceedings for any monetary claim against respondents 1 and 2, if he is so advised.”

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It is thus challenging the legality and correctness of the judgment, the appeal is preferred.

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The basic facts required for the disposal of the appeal are as

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follows:-

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Appellant is a retired Colonel from the Indian Army and he has been operating a security agency by name M/s. Augustine Mangatteparambil Security Agency under the Director General of Resettlement (DGR) / MOD Scheme, intended to rehabilitate retired Military officers to provide security services. Providing security

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services to Central Public Sector Undertakings is one of such Schemes offered by the Central Government to rehabilitate retired Military, Navy and Air Force Personnel and as per the Scheme, retired commissioned officers are given self-employment opportunity by allotting a security agency in their name, to operate for a limited period of time. The period is limited to 3 years or 60 years of age, which is provided to give equal opportunity to other retiring officers. At the same time, the retired personnels below officers' rank are provided employment as security guard / supervisor, until they attain the age of 65 years.

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The Director General of Resettlement functioning under the Ministry of Defence, New Delhi is the controlling and co-ordinating agency for the Scheme. In order to regulate the smooth implementation of the Scheme, the Government of India had issued Ext. P1 office memorandum dated 04.02.1994, which was being revised periodically, and finally it was revised as per Ext. P1 (a) dated 09.07.2012.

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It is the specific case of the appellant that all the Public Sector Undertakings and Ministries are bound to follow the instructions as per Exts. P1 and P1 (a) scrupulously. According to the appellant, over

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a period of time, the Central Public Sector Undertakings have violated the above Government Orders and directions and started providing the security contract by open tenders to non DGR security agencies, avoiding the DGR circuit, absolutely overlooking the Government Policy to safeguard the interests of ex-servicemen community. It was also the case projected by the appellant that the Hon'ble Supreme Court as per its order dated 30.08.2017 directed the Government of India to take appropriate action in favour of the ex-servicemen community as evident from Ext. P2 order dated 30.08.2017 in W. P. (C) No. 426 of 2010.

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Anyhow, based on the order of the Hon'ble Apex Court, Exts. P3 and P4 were issued and as per Ext. P4, the Central Public Sector Undertakings have no other option than to follow the instructions contained in Ext. P1 office memorandum and to follow the procedure instructed to be followed in Ext. P1 (a) office memorandum, is the significant contention advanced.

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The grievance highlighted by the petitioner is that in response to the limited tender floated by the unit head, M/s. Hindustan Insecticides (India) Ltd., appellant submitted a quotation as per letter dated 13.12.2019 evident from Ext. P9. While submitting the tender,

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appellant had categorically stated that the limited tender floated by the said company has been issued in response to the DGR sponsorship letter dated 08.01.2019 and hence the Government O. M. dated 09.07.2012, namely Ext. P1 (a), was binding on the company.

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It is the case of the appellant that the company accepted this condition and the tender submitted by the appellant was opened on 16.12.2019 at 02:30 p.m. and found that all bidders quoted the same rate, however declared that the appellant's agency by virtue of being the senior most in the sponsorship letter is eligible for the contract. It is also submitted that the committee also intimated that the documents will be sent to the Chairman and Managing Director of the company for approval and work order will be issued after receiving the approval. It is pertinent to note at this juncture that, even though it is pleaded so, no documents are produced to establish the said contention.

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Anyhow, the grievance of the appellant in that regard is that in spite of completing all formalities towards implementing the Scheme as per the laid-down procedures, the company has not placed the work order to the appellant's agency, which otherwise was due from February, 2020. Other contentions are also raised.

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Anyhow, on the basis of the basic pleadings as is noted above, appellant sought a writ of mandamus commanding the company and the Managing Director, to forthwith award the work order to the appellant, in pursuance of Ext. P7 sponsorship letter submitted by the petitioner, and sought to declare that the said company and the Managing Director cannot award the contract to a non DGR sponsored agency, by violating the existing rules of the Government of India, promulgated in pursuance of the order of the Hon'ble Apex Court.

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The 1^st and 2^nd respondents have filed a detailed counter affidavit refuting the allegations and claims and demands raised in the writ petition. Among other contentions it is submitted that a tender was floated on 28.11.2019 for engaging security personnels sponsored by the 5^th respondent at the Udyogamandal unit of the Company. Only competitive limited enquiries were invited from the intercepted agencies as per DGR sponsorship norms. As per the guidelines issued by the Director General of Resettlement (DGR), the contract for deployment of security personnel has to be entrusted with the senior most agency. It is further submitted that HIL has not issued any Work Contract / Loi / Contract / Sponsorship in favour of the appellant and merely choosing the appellant as an eligible (L-1) suitable agency for

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the aforesaid work in a limited enquiry / tender process, would not bestow any right to issue the work order.

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It is also submitted that on 06.01.2020, a few CCTVs were installed in the premises of the Udyogamandal-Unit and considering the financial position of the company, the management decided to form a committee to consider the issue regarding reducing the number of security personnel at the Udyogamandal unit of the company. Further, it was decided to explore the possibility of hiring a security agency of ex-serviceman facility through GeM as per the DPE circular DPE-7(4)/2007-Fin. The said circular clearly states that all the procurement / services shall be through GeM only. By virtue of DPE circular, it was instructed that all PSUs have to make procurements / services through GeM (Government e-Marketplace). Accordingly, it was decided by HIL to explore the possibility of both the options i.e. hiring security personnel through DGR as well as GeM. After having compared agencies registered with the portals of the DGR and GeM, it was found that the agencies registered with GeM portal are far more economical when compared with the agencies registered with DGR, although in both the cases the deployment is for ex-servicemen only.

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It was also submitted that the order of the 3^rd respondent dated 16.05.2018 directing the PSUs to take security personnel through DGR sponsored security agencies was superseded by order dated 04.05.2020. By virtue of the office memorandum dated 04.05.2020, guidelines were issued to procure services of security agencies through GeM Portal.

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Denying the averments and allegations made in the writ petition it is contented that the company had till date procured services of security personnel through DGR sponsored security agencies only. But, by virtue of the circular no. DPE- 7(4)/2007-Fin, there arose a conflict in the matter. Accordingly, keeping the interest of the public money in the aforesaid circumstances and to bring clarity as a matter of policy decision, the company sought clarification from the 3^rd respondent vide their letter dated 16.07.2020 and the same is pending consideration before the 3^rd respondent.

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The petitioner had filed a reply and produced certain additional documents, however the learned Single Judge after appreciating the facts and circumstances of the case dismissed the writ petition basically holding that the appellant himself has stated in the writ petition that the period of DGR empanelment is limited to 3 years

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or up to 60 years of age, and Ext. P6 empanelment certificate produced by the appellant would show that his period of empanelment ended on 24.05.2020, and the writ petition itself was found to be filed after the expiry of the period of empanelment. Accordingly it was concluded that since the empanelment itself has expired, direction as sought for cannot be issued to the company and the Managing Director, to issue work order to the appellant .

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Along with the writ appeal, appellant has produced annexures 1 and 2 e-mails to canvas the preposition that even if the empanelment has expired, security agency was given to similarly situated persons as that of the appellant. On a perusal of annexures 1 and 2, it is clear and evident that the sponsorship granted by the DGR was in force, and in that background, in spite of expiry of the empanelment after a period of 3 years, the security agency was conferred to the agencies mentioned therein. However, in the case on hand, the sponsorship of the petitioner by the DGR itself expired even at the time of filing the writ petition, and therefore, the case of the petitioner cannot be treated as a similar or typical one as that of annexures 1 and 2.

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We have heard Mr. George Varghese Perumpillikuttiyil learned counsel for the appellant, Mr. M. Gopikrishnan Nambiar,

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learned counsel for respondents 1 and 2 and Mr. P. Vijayakumar, learned Assistant Solicitor General for the Departments of the Government of India and perused the pleadings and materials on record.

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The case projected by the petitioner centers around Ext. P1 (a) office memorandum issued by the Ministry of Defence, Department of Ex-service Welfare dated 09.07.2012. Various parameters are provided as guidelines for functioning of DGR empaneled ex-servicemen for security services. It is an admitted fact that petitioner has exceeded the age of 60, which is one of the eligibility criteria for empanelment. That apart, the DGR sponsorship secured by the petitioner as evident from Ext. P7 was valid for a period of 90 days from the date of issue, i.e. 08.11.2020, and thus up to 06.02.2020.

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Therefore, going by any standards, and the annexures produced by the appellant along with the appeal memorandum, the appellant was not qualified to get himself enrolled as a DGR sponsored security agency and secure contracts for the appointment of security agency. It was taking note of the aforesaid vital aspect, the learned Single Judge has arrived at the conclusions. In short, the

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learned Single Judge while considering the issue, has taken into account the memorandum issued by the Government of India, and was of the opinion that none of the requirements contained under the said guidelines is violated by respondents 1 and 2, and the appellant was not considered since he was not qualified in terms of the memorandum dated 09.07.2012.

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We have also come across paragraph 26 in the said memorandum dealing with dis-empanelment which reads thus:-

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“Security agencies / companies will be removed from the active panel on DGR under the following conditions:-

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a) When an individual ESM has attained the age of 60 years - the validity of empanelment of the ESM will cease once the ESM attains 60 years of age. However existing contracts will be allowed to run to completion. The list of such ESM will be updated regularly by DGR on their website.”

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Taking into account the provisions of the guidelines and other aspects put forth by the appellant, we find that the learned Single Judge was right in dismissing the writ petition after entering into the findings with respect to the disqualification of the appellant to get contracts on the basis of the guidelines issued by the Government of

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India produced as Ext. P1 (a) dated 09.07.2012. Thus considering an appeal by virtue of Section 5 of the Kerala High Court Act, 1958, this Court needs to look into only whether the learned Single Judge has committed any error of jurisdiction or the judgment is suffering from any other patent legal infirmities justifying interference.

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Having gone through the judgment and assimilating the factual and legal situations as discussed above, we are of the considered opinion that the appellant has not made out any case to interfere with the judgment of the learned Single Judge.

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Needless to say, the writ appeal fails. Accordingly it is dismissed.

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Sd/-

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S.MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

///TRUE COPY///

P. A. TO JUDGE

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APPENDIX

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RESPONDENT'S/S EXHIBITS:

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ANNEXURE 1 A TRUE COPY OF THE COMMUNICATION DATED 10.02.2021 ISSUED BY THE APPELLANT TO THE 5TH RESPONDENT DGR. ANNEXURE 2 A TRUE COPY OF THE EMAIL DATED 11.02.2021 ISSUED BY THE JOINT DIRECTOR OF 5TH RESPONDENT DGR TO THE APPELLANT.

Col. Augustine Mangatteparambil (Retd.) v. the Unit Head, M/S Hindustan Insecticides (India) Ltd.

Case brief

What is this about?

What did the court decide?

Col. Augustine Mangatteparambil (Retd.) v. the Unit Head, M/S Hindustan Insecticides (India) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

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