Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(C) No. 4680 of 2011 Black Commandose, Ramgarh Cantt. Ramgarh Petitioner. Versus 1. State of Jharkhand 2. Additional Chief Secretary, Deptt. of Tourism, Jharkhand 3. Jharkhand Tourism Development Corporation Limited, Ranchi Respondent . ------ CORAM : THE HON'BLE MR. JUSTICE PRASHANT KUMAR ----- For the Petitioner : Mr. Rohit Roy For the Respondent: Mr. Sumeet Gadodia. ----- 07/24.06.2015. This application has been filed for quashing the order dated 29.04.2011( Annexure-9) passed by respondent no.2, whereby and where under, the claim of the petitioner rejected on the ground that during the contract period, the Jharkhand Tourist Development Corporation Ltd. suffered losses due to the negligence of the petitioner and/or his security personnel, thus petitioner is liable to compensate the Corporation. Petitioner further pray for a direction to the respondents to release the admitted dues in favour of the of the petitioner.
2. It appears that petitioner is a partnership firm and engaged in the business of Industrial Security and Detective Agency. Respondent no.3, Jharkhand Tourism Development Corporation Limited, entered into an agreement with the petitioner on 02.06. 2008 for providing security services to its Head Office at Ranchi and various other places vide Annexure-1. In the said agreement, it was stipulated that petitioner will submit bill at the rate of Rs. 2891/- per month for each security guard on 5th of every month and respondent no.3 will make payment of the said bill by 10th of every month. It is also stipulated that if the rate of minimum wages will increase in future then the petitioner will submit the bill on the increased rate and respondent no.3 will make payment accordingly. It appears that petitioner submitted different bills total amounting to Rs. 6,20,869=98, details of which given at paragraph no. 18 of the writ application. But the same has not been paid by the respondents, even after the repeated request -2- made by the petitioner. Thereafter, petitioner filed a writ application in this Court vide W.P. (C) No. 1392 of 2011, which was disposed of by a Bench of this Court vide order dated 02.05.2011 ( Annexure-7) and the respondent no.2 was directed to treat the writ application as a representation and decide the claim made by the petitioner within 16 weeks from the date of receipt of the order, after giving adequate opportunity of hearing to the petitioner and if the claim is decided in favour of the petitioner, then the concerned respondents are directed to make payment within a period of two weeks thereafter.
3. It appears that in view of the aforesaid order, respondent no.2 had fixed the case on 29.04.2011 for hearing and on that day, respondent no.2 after hearing the parties passed order as contained in Annexure-9, whereby respondent no.2 concluded that petitioner is entitled to receive Rs. 5,80,354=36, but the respondent no.2 refused to direct the Corporation for making payment, because during the contract period the Jharkhand Tourist Development Corporation had sustained loss of Rs. 6,61,899=53 due to theft and damage of its properties, caused due to negligence of petitioner and/or its employee. Therefore, the amount claimed by the petitioner is adjusted towards the said damages.
4. Mr.Rohit Roy, learned counsel for the petitioner submits that the aforesaid decision of the respondent no.2 is arbitrary and illegal. Learned counsel further submits that Jharkhand Tourist Development Corporation Ltd. has never lodged any first information report against the petitioner for alleged theft and damages. Learned counsel further submits that respondent no.3 never assessed value of the alleged stolen articles or property in presence of petitioner. No notice given to the petitioner for such assessment. Learned counsel for the petitioner further submits that there is no provision in the agreement that aforesaid amount will be adjusted from the wages of the security personnels, deployed by the petitioner. Accordingly, he submits that allegation of respondent nos. 2 and 3 in rejecting the claim of the petitioner is arbitrary, therefore, violative of Article 14 of the Constitution of India. -3- Thus, he submits that suitable direction be given commanding the respondents to make payment of aforesaid admitted amount.
5. On the other hand, Mr. Sumeet Gadodia, learned counsel for respondent no.3 submits that the claim of the petitioner is purely a contractual claim, therefore, the same cannot be granted by this court in the writ jurisdiction. Accordingly, he submits that the writ application may be dismissed as the same is not maintainable. He further submits that during the period of contract, the Corporation (respondent no.3 ) had suffered huge loss to the tune of Rs. 6,61,899=53, due to the negligence of the of the petitioner and its security guards. Therefore, respondent no.2 has directed to adjust aforesaid loss from the bill of the petitioner amounting to Rs. 5,80,354=36. It is submitted that after adjusting the aforesaid amount , the Corporation had given a letter to the petitioner for paying Rs. 81,545/- which Corporation is entitled after adjusting the bill amount. Accordingly, Mr. Gadodia submits that respondent no.2 is not liable to pay any amount to the petitioner, rather petitioner is liable to pay a sum of Rs. 81,545/- to the Corporation.
6. Having heard the submissions, I have gone through the records of the case.
7. Admittedly, there is an agreement between the petitioner and respondent no.3, which remain operative till July, 2010. It is also an admitted position that during the said period petitioner had given different bills claiming Rs. 5,80,354=36, which the petitioner had paid to security guards deployed by it in different premises of the respondent no.3. It is also an admitted position that the said bills have not been paid by the respondent no.3 on the pretext that during the existence of the agreement the respondent no.3 had suffered loss to the tune of Rs. 6,61,899=53 due to theft and damage of its properties, which according to respondent no.3 caused due to negligence of petitioner, thus petitioner is liable to compensate Respondent no.3. Learned counsel submits that there is no clause in the agreement on the basis of which petitioner can be held liable to compensate the Corporation -4- for any theft or damage of its property. In view of the aforesaid submission, I have gone through the agreement as contained in Annexure-1.From perusal of the terms and conditions of the agreement, I find that there is no stipulation on the basis of which the Corporation ( respondent no.3) could claim such compensation from the petitioner.
8. In the writ application, the petitioner specifically alleged that the assessment of the value of alleged stolen article or damaged property was not done in presence of the petitioner nor the petitioner was given any notice for the assessment. The aforesaid submission of the petitioner has not been denied by the respondents. In other words, respondent no.3 in its counter affidavit nowhere stated that the assessment was carried out in presence of the petitioner and it had been given opportunity of being heard. Respondent no.3 had stated in Annexure-B that it suffered loss of Rs. 6,61,899=53, but in that letter also the respondent no.3 had nowhere stated that the assessment was made in presence of the petitioner. Thus, I find substance in the submission of learned counsel for the petitioner that alleged unilateral assessment is arbitrary and against the principle of natural justice.
9. Annexure-B reveals that the respondents have admitted that petitioner is entitled to receive Rs. 5,80,354=36 towards various bills submitted. Thus, the claim of the petitioner has been admitted, but the respondent wants to adjust it towards the compensation amount assessed by it. There is no provision in the agreement which gives any right to the respondent no.3 to claim compensation for theft and/or damages caused to its property during the existence of contract. Under the said circumstance, non payment of admitted dues to the petitioner on the pretext of adjustment of unilaterally assessed compensation amount is arbitrary, hence violative of Article 14 of the Constitution of India, 10. It has been held by the Hon'ble Supreme Court in "ABL International Ltd. and another Vs Export Credit Guarantee Corporation of India Ltd. and others" reported in (2004) 3 SCC-553 that in an appropriate case, a writ -5- petition as against a State or an instrumentality of a State, arising out of a contractual obligation, is maintainable and a writ petition involving a consequential relief for monetary claim is also maintainable. At paragraph no.28 of the aforesaid judgment, their Lordships has further held that a High Court can issue prerogative writ in favour of the an aggrieved party, if the action of the State or its instrumentality is arbitrary and unreasonable so as to violative of the constitutional mandate of Article 14 of the Constitution of India.
11. In view of the aforesaid law laid down by their Lordships of Supreme Court, I find no merit in the preliminary objection raised by Mr. Sumeet Gadodia. Accordingly, the same is rejected and held that present writ application is maintainable because the claim of the petitioner has been admitted by the respondents and the grounds on which respondents are refusing to make payment are arbitrary and violative of the principle of natural justice.
12. It is worth mentioning that the claim of the respondent that they are entitled to claim compensation from petitioner has not been determined by any court and/or any other authority. In that view of the matter, denial of the admitted claim of the petitioner on the ground of adjustment of aforesaid self unilaterally assessed compensation amount is arbitrary and unreasonable, therefore, violative of the mandate of Article 14 of the Constitution of India.
13. In view of the discussions made above, this writ application is allowed and the order dated 29.04.2011 as contained in Annexure-9 is quashed.The respondent- Corporation is directed to pay Rs. 5,80,354=36 to the petitioner within Four Weeks from the date of production of this order by the petitioner.
14. However, the parties shall bear their own cost. ( Prashant Kumar,J.) Raman /