Ranjit Kumar Jha Vs. Union of India & Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/796
CourtDelhi High Court
Decided OnNov-14-2014
JudgeV.K.SHALI
AppellantRanjit Kumar Jha
RespondentUnion of India & Ors.
Excerpt:
* high court of delhi at new delhi + w.p. (c) no.7812/2014 decided on :14. h november, 2014 ranjit kumar jha through: ..... petitioner mr. ashish mohan, mr. chetan wahi & ms. mehak, advocates. versus union of india & ors. through: ..... respondents mr. jagjit singh, advocate. coram: hon’ble mr. justice v.k. shali v.k. shali, j.(oral) c.m. no.18338/2014 (for exemption) allowed, subject to the deficiency being rectified. the application stands disposed of. w.p. (c) no.7812/2014 & c.m. no.18337/2014 (for stay) 1. issue notice of the writ petition as well as the stay application. mr. jagjit singh, the learned counsel accepts notice on behalf of the respondents.2. i have heard the learned counsel for the petitioner as well as the learned counsel for the respondents on the question of grant of stay. in the instant case, the legality and the validity of the order dated 29.10.2014 has been challenged by the petitioner on account of the fact that the same is in violation of the principles of natural justice inasmuch as in para 2.4, the respondents have observed as under :“on scrutiny of the record available it came to notice that both the leased slr’s allotted to you were reweighed at destination station on 14.5.2014 and both the slr’s were overloaded by 1030 and 32 kg. therefore, in any case you have committed four defaults of overloading irrespective of the fact of volume of overloading and liable for penal action as per the terms and conditions of the agreement.” 3. it is contended by the learned counsel for the petitioner that the aforesaid order has been passed by the respondents in response to the show cause notice dated 27.5.2014 wherein it was alleged against the petitioner that he has committed four violations of overloading the front wagon in fslr-2nd in train no.2416, ex hnzn to indb. the petitioner had contested the aforesaid allegation in the show cause notice to the extent that there were only three violations. the factum of the petitioner having committed three violations was accepted by the respondents in their order dated 29.10.2014, yet they observed that the petitioner’s slr was reweighed at the destination on 14.5.2014 and both the slr’s were found to be overloaded to the tune of 1030 and 32 kg and consequently, that was treated to be fourth default resulting in passing of the impugned order.4. it is the contention of the learned counsel that the material which has been made the basis of the fourth default on the part of the petitioner was never put to the petitioner in the show cause notice and in any case, this was additional material which could not form the basis for passing the order dated 29.10.2014 as it tantamounts to denial of principles of natural justice to the petitioner to respond to the same.5. it has also been contended by the learned counsel for the petitioner that in terms of the agreement between the parties, two clauses have been relied upon in the impugned order. these clauses are 7.4 and 13.4, which read as under :“7.4 if the registration of a leaseholder is cancelled as a punitive measure, either for reasons of repeated over loading or for repeated failure to start loading after award of contract, or for attempt to deliberately defraud railways or for repeated violation of any of the existing stipulations where cancellation of registration has been legislated as the penalty, then the entire registration fee would be forfeited. in addition to forfeiture of registration fee, all his existing leasing contracts being operated from that division would also be cancelled. however, contracts can be cancelled/terminated by the railways with the approval of tender accepting authority. in addition to cancellation, such a leaseholder would be debarred from fresh registration for a period of 5 years. xxxxxxxxxxxxxxxxxxxxx 13.4 in addition to the above penalty, railway may terminate the contract and cancel the registration of the leaseholder in case of 4 th (fourth) default.” 6. it is contended by the learned counsel for the petitioner that so far as clause 7.4 is concerned, that is only a consequence in the event of the respondents having proceeded against the petitioner under clause 13.8, which reads as under :“13.8 in case of cancellation of lease on account of overloading for 2 separate contracts (minimum of 8 violations in all), registration of the leaseholder would also be cancelled as mentioned under para 7.4”7. it is the contention of the learned counsel for the petitioner that clause 13.8 comes into operation only when there are eight minimum violations against the petitioner which will not only result in cancellation of his contract but also cancellation of the registration of the lease as well as blacklisting, while as in the instant case, the aforesaid procedure in terms of the contract has not been followed.8. the learned counsel has also relied upon three interim orders passed by this court where a similar submission was made and a stay was granted against the operation of the impugned order. copies of the three orders passed in writ petition (civil) nos.2045/2014, 3517/2014 and 5431/2014 have been handed over to the court, where a similar point was urged and the said bench had been pleased to stay the operation of the impugned order in those cases. w.p. (c) no.7812/2014 accordingly, it is prayed that the page 4 of 8 operation of the impugned order may be stayed till the next date of hearing and the present writ petition be tagged along with the said batch of writ petitions.9. mr. jagjit singh, the learned counsel for the respondents has raised an objection with regard to the grant of an ad interim order at this stage by raising two fold objections.10. firstly, that the petitioner is guilty of concealment of fact, inasmuch as he had immediately on receipt of show cause notice, written a letter in the month of july, 2014 itself invoking arbitration clause and this fact has not been disclosed by him in the entire petition.11. secondly, it has been contended that in terms of the contract, clause 7.5 provided a right of appeal in case the petitioner feels aggrieved on account of any order having been passed by the respondents and, therefore, that has to be construed as an alternate efficacious remedy available to the petitioner which has to be invoked rather than filing of the present writ petition. accordingly, on the basis of the aforesaid two submissions, it has been stated that the petitioner is not entitled to any ad interim order at this stage.12. i have carefully considered the submissions made by the learned counsel for the parties. no doubt, availability of a right to file an appeal has to be treated as an alternative efficacious remedy available to the petitioner but that is a matter of convenience. the principle which the court follows is that an appeal will be treated as an alternative remedy only if the basic principles of natural justice are not violated by the respondents. in the instant case, the very foundation of the case of the petitioner is based on violation of the principles of natural justice so far as fourth allegation of the wagon having been found to be overloaded to the tune of 1030 and 32 kg on reweighing is concerned, it is the contention of the learned counsel that they have relied upon the material which was not the basis of the original show cause notice and, therefore, by having not given an opportunity to respond to the new material, the petitioner has been denied the principles of natural justice. this contention seems to carry some merit. accordingly, i feel that the availability of an alternative efficacious remedy by way of an appeal cannot be treated as a ground to oust the jurisdiction of this court or the party being relegated to avail of the appeal.13. so far as the question of invocation of arbitration clause is concerned, it has been contended by the learned counsel for the petitioner that the letter was written by the petitioner in the month of july, 2014 on receipt of the show cause notice. it is not denied by the respondents that till the time the impugned order was passed, the respondents did not appoint any arbitrator. had the respondents appointed an arbitrator perhaps this would have been a valid contention that having invoked the arbitration clause, the writ court would have kept its hands off. similarly, in case the arbitrator is not appointed and this factum is not disclosed by the petitioner, i do not consider it to be concealment of material fact so as to disentitle the petitioner to the consideration of the writ petition on its merit or disentitlement to the grant of interim relief. even if this fact of having sought an appointment of an arbitrator was disclosed, the very fact that no arbitrator had been appointed and yet impugned order was passed, would have gone against the respondents rather than against the petitioner. i feel that this contention of the learned counsel for the respondents also, at this stage, cannot be a ground for denying the relief of staying the operation of the impugned order.14. in view of the aforesaid reasons, i feel that the petitioner has been able to make out a prima facie case, the balance of convenience is in favour of the petitioner and the petitioner will suffer an irreparable loss in case the operation of the impugned order is not stayed till the next date of hearing when the other batch of three other writ petitions are coming up. i, accordingly, stay the operation of the impugned order, till the next date of hearing.15. at this stage, mr. jagjit sinigh, the learned counsel for the respondents has drawn the attention of the court to clause 4.2 of the impugned order (at page51) wherein, it has been contended that so far as the contract, which is mentioned at serial no.5 is concerned, that has already expired and the present stay need not be extended to the said expired contract.16. as regards the contract mentioned at serial no.2, it has been stated that the petitioner is already enjoying the interim protection granted by the high court and, therefore, this protection may not be extended to the said contract.17. i have considered the submissions made by the learned counsel for the respondents. so far as ad interim stay which has been granted herein above is concerned, that will certainly not extend to the contract, details of which are mentioned at serial no.5 of the impugned order; however, notwithstanding the fact that the petitioner is having an ad interim stay in respect of the contract mentioned at serial no.2 is concerned, the petitioner shall continue to enjoy the ad interim stay in respect of the same under the present order also; however, it shall be open to the respondents to file appropriate application for vacation of the stay in the said case if they feel such an occasion arises.18. with these observations, list the matter on 9th february, 2015.19. dasti. v.k. shali, j.november14 2014 ‘aa’
Judgment:

* HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) No.7812/2014 Decided on :

14. h November, 2014 RANJIT KUMAR JHA Through: ..... Petitioner Mr. Ashish Mohan, Mr. Chetan Wahi & Ms. Mehak, Advocates. versus UNION OF INDIA & ORS. Through: ..... Respondents Mr. Jagjit Singh, Advocate. CORAM: HON’BLE MR. JUSTICE V.K. SHALI V.K. SHALI, J.

(ORAL) C.M. No.18338/2014 (for exemption) Allowed, subject to the deficiency being rectified. The application stands disposed of. W.P. (C) No.7812/2014 & C.M. No.18337/2014 (for stay) 1. Issue notice of the writ petition as well as the stay application. Mr. Jagjit Singh, the learned counsel accepts notice on behalf of the respondents.

2. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondents on the question of grant of stay. In the instant case, the legality and the validity of the order dated 29.10.2014 has been challenged by the petitioner on account of the fact that the same is in violation of the principles of natural justice inasmuch as in para 2.4, the respondents have observed as under :

“On scrutiny of the record available it came to notice that both the leased SLR’s allotted to you were reweighed at destination station on 14.5.2014 and both the SLR’s were overloaded by 1030 and 32 kg. Therefore, in any case you have committed four defaults of overloading irrespective of the fact of volume of overloading and liable for penal action as per the terms and conditions of the agreement.”

3. It is contended by the learned counsel for the petitioner that the aforesaid order has been passed by the respondents in response to the show cause notice dated 27.5.2014 wherein it was alleged against the petitioner that he has committed four violations of overloading the front wagon in FSLR-2nd in train No.2416, Ex HNZN to INDB. The petitioner had contested the aforesaid allegation in the show cause notice to the extent that there were only three violations. The factum of the petitioner having committed three violations was accepted by the respondents in their order dated 29.10.2014, yet they observed that the petitioner’s SLR was reweighed at the destination on 14.5.2014 and both the SLR’s were found to be overloaded to the tune of 1030 and 32 kg and consequently, that was treated to be fourth default resulting in passing of the impugned order.

4. It is the contention of the learned counsel that the material which has been made the basis of the fourth default on the part of the petitioner was never put to the petitioner in the show cause notice and in any case, this was additional material which could not form the basis for passing the order dated 29.10.2014 as it tantamounts to denial of principles of natural justice to the petitioner to respond to the same.

5. It has also been contended by the learned counsel for the petitioner that in terms of the agreement between the parties, two clauses have been relied upon in the impugned order. These clauses are 7.4 and 13.4, which read as under :

“7.4 If the registration of a leaseholder is cancelled as a punitive measure, either for reasons of repeated over loading or for repeated failure to start loading after award of contract, or for attempt to deliberately defraud railways or for repeated violation of any of the existing stipulations where cancellation of registration has been legislated as the penalty, then the entire registration fee would be forfeited. In addition to forfeiture of registration fee, all his existing leasing contracts being operated from that division would also be cancelled. However, contracts can be cancelled/terminated by the Railways with the approval of tender accepting authority. In addition to cancellation, such a leaseholder would be debarred from fresh registration for a period of 5 years. xxxxxxxxxxxxxxxxxxxxx 13.4 In addition to the above penalty, Railway may terminate the contract and cancel the registration of the leaseholder in case of 4 th (fourth) default.”

6. It is contended by the learned counsel for the petitioner that so far as clause 7.4 is concerned, that is only a consequence in the event of the respondents having proceeded against the petitioner under clause 13.8, which reads as under :

“13.8 In case of cancellation of lease on account of overloading for 2 separate contracts (minimum of 8 violations in all), registration of the leaseholder would also be cancelled as mentioned under para 7.4”

7. It is the contention of the learned counsel for the petitioner that clause 13.8 comes into operation only when there are eight minimum violations against the petitioner which will not only result in cancellation of his contract but also cancellation of the registration of the lease as well as blacklisting, while as in the instant case, the aforesaid procedure in terms of the contract has not been followed.

8. The learned counsel has also relied upon three interim orders passed by this court where a similar submission was made and a stay was granted against the operation of the impugned order. Copies of the three orders passed in writ petition (civil) Nos.2045/2014, 3517/2014 and 5431/2014 have been handed over to the court, where a similar point was urged and the said bench had been pleased to stay the operation of the impugned order in those cases. W.P. (C) No.7812/2014 Accordingly, it is prayed that the Page 4 of 8 operation of the impugned order may be stayed till the next date of hearing and the present writ petition be tagged along with the said batch of writ petitions.

9. Mr. Jagjit Singh, the learned counsel for the respondents has raised an objection with regard to the grant of an ad interim order at this stage by raising two fold objections.

10. Firstly, that the petitioner is guilty of concealment of fact, inasmuch as he had immediately on receipt of show cause notice, written a letter in the month of July, 2014 itself invoking arbitration clause and this fact has not been disclosed by him in the entire petition.

11. Secondly, it has been contended that in terms of the contract, clause 7.5 provided a right of appeal in case the petitioner feels aggrieved on account of any order having been passed by the respondents and, therefore, that has to be construed as an alternate efficacious remedy available to the petitioner which has to be invoked rather than filing of the present writ petition. Accordingly, on the basis of the aforesaid two submissions, it has been stated that the petitioner is not entitled to any ad interim order at this stage.

12. I have carefully considered the submissions made by the learned counsel for the parties. No doubt, availability of a right to file an appeal has to be treated as an alternative efficacious remedy available to the petitioner but that is a matter of convenience. The principle which the court follows is that an appeal will be treated as an alternative remedy only if the basic principles of natural justice are not violated by the respondents. In the instant case, the very foundation of the case of the petitioner is based on violation of the principles of natural justice so far as fourth allegation of the wagon having been found to be overloaded to the tune of 1030 and 32 kg on reweighing is concerned, it is the contention of the learned counsel that they have relied upon the material which was not the basis of the original show cause notice and, therefore, by having not given an opportunity to respond to the new material, the petitioner has been denied the principles of natural justice. This contention seems to carry some merit. Accordingly, I feel that the availability of an alternative efficacious remedy by way of an appeal cannot be treated as a ground to oust the jurisdiction of this court or the party being relegated to avail of the appeal.

13. So far as the question of invocation of arbitration clause is concerned, it has been contended by the learned counsel for the petitioner that the letter was written by the petitioner in the month of July, 2014 on receipt of the show cause notice. It is not denied by the respondents that till the time the impugned order was passed, the respondents did not appoint any arbitrator. Had the respondents appointed an arbitrator perhaps this would have been a valid contention that having invoked the arbitration clause, the writ court would have kept its hands off. Similarly, in case the arbitrator is not appointed and this factum is not disclosed by the petitioner, I do not consider it to be concealment of material fact so as to disentitle the petitioner to the consideration of the writ petition on its merit or disentitlement to the grant of interim relief. Even if this fact of having sought an appointment of an arbitrator was disclosed, the very fact that no arbitrator had been appointed and yet impugned order was passed, would have gone against the respondents rather than against the petitioner. I feel that this contention of the learned counsel for the respondents also, at this stage, cannot be a ground for denying the relief of staying the operation of the impugned order.

14. In view of the aforesaid reasons, I feel that the petitioner has been able to make out a prima facie case, the balance of convenience is in favour of the petitioner and the petitioner will suffer an irreparable loss in case the operation of the impugned order is not stayed till the next date of hearing when the other batch of three other writ petitions are coming up. I, accordingly, stay the operation of the impugned order, till the next date of hearing.

15. At this stage, Mr. Jagjit Sinigh, the learned counsel for the respondents has drawn the attention of the court to clause 4.2 of the impugned order (at page

51) wherein, it has been contended that so far as the contract, which is mentioned at serial No.5 is concerned, that has already expired and the present stay need not be extended to the said expired contract.

16. As regards the contract mentioned at serial No.2, it has been stated that the petitioner is already enjoying the interim protection granted by the High Court and, therefore, this protection may not be extended to the said contract.

17. I have considered the submissions made by the learned counsel for the respondents. So far as ad interim stay which has been granted herein above is concerned, that will certainly not extend to the contract, details of which are mentioned at serial No.5 of the impugned order; however, notwithstanding the fact that the petitioner is having an ad interim stay in respect of the contract mentioned at serial No.2 is concerned, the petitioner shall continue to enjoy the ad interim stay in respect of the same under the present order also; however, it shall be open to the respondents to file appropriate application for vacation of the stay in the said case if they feel such an occasion arises.

18. With these observations, list the matter on 9th February, 2015.

19. Dasti. V.K. SHALI, J.

NOVEMBER14 2014 ‘AA’