Indira K. Jain, J.
1. Rule. Rule made returnable forthwith. Heard finally with consent.
2. By way of present petition, the petitioner impugns corrigendum dated 17th November 2014, issued by the sole respondent BSNL, Nagpur.
3. The facts giving rise to the petition may be stated in nutshell, as under:
The petitioner is a proprietary concern registered with Directorate General of Resettlement (DGR), an attached Office of the Ex-servicemen Welfare Department, Ministry of Defence under the Union Government. The petitioner is engaged in providing security services throughout the State of Maharashtra to the CPSUs/ CPSEs and also to the Defence Establishment.
4. On 11th February 2013, the petitioner was sponsored by DGR authorities to provide Security Guards to the respondent. On the basis of sponsorship, petitioner participated in the tender process for deployment of Security Guards in urban and rural areas under the Nagpur Telecom District headed by respondent. The petitionerâ™s tender was approved and vide communication dated 3rd April, 2013 petitioner was informed to execute an agreement within seven days from the receipt of communication. Accordingly, on 25th April, 2013 agreement to provide Security Guards/Gunmen was executed between petitioner and respondent. This agreement was executed for the period of one year commencing from 1st May, 2013 to 30th April, 2014. The payment of service charges and contract was agreed to be as per the terms and conditions framed, finalised and approved by DGR, New Delhi.
5. On execution of agreement work order was issued to the petitioner on the same day. As per the work order, petitioner was required to provide services of 34 Security Guards to the respondent including the Guards in Koradi Exchange and CSD Stores. Petitioner deployed seven unarmed Guards and three armed Guards in Koradi Exchange and Stores.
6. On 1.5.2014 IInd work order was issued to petitioner to deploy Security Guards from 1st May, 2014 to 30th April, 2015. In both the work orders, Koradi Exhange and CSD Stores were shown in urban areas. Accordingly, the petitioner paid the wages and other benefits from 1st May, 2013 to October, 2014 to the Guards who were deployed as per the work orders.
7. It is the grievance of petitioner that on 17.11.2014 respondent issued a corrigendum and informed the petitioner regarding change in the category of urban to rural area in respect of Koradi Exchange and CSD Stores and further mentioned that DGR wages as per area â˜Câ™ would be applicable to Koradi Exchange and CSD Stores retrospectively, with effect from 1st May 2013. On the basis of corrigendum respondent started making recovery of the excess amount from the petitioner. Hence this petition.
8. It is the contention of petitioner that respondent has no power to amend the DGR wages as the said exercise is within the domain of the authority concerned. It is submitted that as per the terms and conditions in the agreement, petitioner had paid wages and other statutory benefits to his employees as per the norms of DGR. The contributions from the wages of employees were also regularly deducted and the same were deposited with the concerned authorities of Provident Fund and ESIC. Even the statutory dues till October, 2014 were paid to the employees. Petitioner vide communication dated 26.11.2014 lodged his protest and informed the respondent that no retrospective effect can be given as mentioned in the corrigendum dated 17th November, 2014. Petitioner was then informed vide communication dated 12.2.2015 that corrigendum issued was based on audit paras.
9. Learned counsel for petitioner submitted that respondent had recovered more than an amount of Rs. 9 lacs towards excess payment in view of the corrigendum dated 17th November, 2014 despite protest lodged by the petitioner and the said recovery is arbitrary and illegal. Learned counsel also submitted that the recovery is punitive in nature and without any fault on the part of petitioner. It is submitted that petitionerâ™s bread and butter is adversely affected in view of the impugned corrigendum issued by respondent, without giving any opportunity to the petitioner.
10. Per contra, learned counsel for respondent vehemently contended that in view of specific clause in the agreement, it was obligatory on the part of petitioner to approach the sole Arbitrator. Learned counsel submitted that P and T (Audit), Nagpur, during audit inspection of BSNL, Nagpur, in the month of September/October 2014, raised a query that at Koradi Exchange and Koradi Stores if BSNL staff were getting HRA at 10% then how HRA at 30% rate was being paid to DGR Security Guards. It is submitted that after scrutinising the facts and circular of Deputy Chief Labour Commissioner regarding the revised rates of minimum wages, it was noticed that Koradi Exchange and Koradi Stores were changed from urban to rural and a separate notification was issued by Deputy Chief Labour Commissioner specifying the areas â˜Aâ™ â˜Bâ™ â˜Câ™. The learned counsel submitted that as pointed out in Audit Report, corrigendum was issued by the respondent pertaining to Koradi Exchange and CSD Stores.
11. According to the respondent, excess payment of Rs. 11.2 lacs was made by BSNL to the Security Agencies and so recovery was ordered calculating wages as per area â˜Câ™ instead of area â˜Aâ™ with effect from 1.5.2013. The respondent submitted that under the contract security employees were relegated to the employees in area â˜Câ™, in view of the audit objection and other agency did not challenge the recovery of excess amount. It is submitted that the revised order/corrigendum is a timely action and no illegality as such can be attributed.
12. We have heard at length the learned counsel for the parties.
13. On perusal of copy of agreement dated 25th April, 2013 executed between the petitioner and respondent it can be seen from Clause (6) that in the event of any dispute or difference the same shall be referred to the sole arbitrator specified therein. Referring to Clause (6) of the agreement, learned counsel for respondent strenuously submitted that the present petition is not maintainable as an alternative remedy to initiate the arbitration proceedings is available to the petitioner.
14. Issue raised in the present case relates to contractual dispute. We are aware that Courts should not generally exercise its jurisdiction under Article 226 of the Constitution of India in case of contractual disputes even if â˜Stateâ™ is involved. If a term of a contract is violated ordinarily remedy is not available under Article 226.
15. We are also aware that the existence of an effective alternate remedy is a good ground for the Court to decline to exercise its extraordinary jurisdiction under Article 226. But every general rule has an exception. Here it would be advantageous to refer the decisions of the Honâ™ble Apex Court in (i) Harbanslal Sahnia and another vs. Indian Oil Corporation Ltd. and others (AIR 2003 Supreme Court 2120) and (ii) ABL International Ltd. And another vs. Export Credit Guarantee orporation of India Ltd. and others {(2004) 3 Supreme Court Cases 553}.
In the case of Harbanslal Sahania (supra), Writ Petition was filed against cancellation of petroleum dealership of the petitioner. An objection was raised that an alternative remedy of initiating arbitration proceeding was available and Writ Petition was not maintainable. In this context, it was held by the Honâ™ble Supreme Court that rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case inspite of availability of alternative remedy powers can be exercised in writ jurisdiction by the High Court at least in three contingencies â“
(i) where the Writ Petition seeks enforcement of any of the fundamental rights;
(ii) where there is failure of principles of natural justice; or,
(iii) where the orders or proceedings are wholly without jurisdiction or the vires of an act is challenged.
The Honâ™ble Supreme Court noted that petitionersâ™ dealership which was their bread and butter came to be terminated for an irrelevant and non-existent cause and in such circumstances, observed that relief should have been granted to the petitioners instead of relegating them to initiate arbitration proceedings.
In ABL International Limited (supra), it was observed by the Honâ™ble Apex Court that in an appropriate case the writ Court has jurisdiction to entertain a Writ Petition involving disputed questions of fact and there is no absolute bar in regard thereto.
16. In the present case, respondent does not dispute that an agreement was executed between petitioner and BSNL on 25th April, 2013 and as per the terms and conditions of the agreement, petitioner was to provide security services to the respondent. It is also not in serious dispute that corrigendum dated 17th November, 2014 was issued by the respondent unilaterally. The reasons assigned by the respondent for issuance of corrigendum would not be enough to unilaterally modify the terms and conditions of the agreement, particularly when petitioner deployed the Security Guards exclusively within the framework of agreement.
17. The petitioner has placed on record notifications dated 18th September, 2008 issued by the Ministry of Labour and Employment and Deputy Chief Labour Commissioner (Central) Nagpur dated 8.10.2014. On the basis of these notifications, we find substance in the contention of petitioner that Koradi Exchange and Stores being within the distance of 15 kms. From the territory/boundary of Nagpur city, would fall in area â˜Aâ™. In any case, parties were bound by the agreement. The respondent ought not to have modified part of the terms of agreement unilaterally.
18. In this premise, the corrigendum dated 17th November, 2014 issued by the respondent being illegal and arbitrary, is quashed and set aside.
It is further directed that respondent shall refund the amount to the petitioner recovered on the basis of corrigendum dated 17th November, 2014. The same shall be done within a period of four months from today.
No order as to costs.