IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.53160 OF 2018 (GM-TEN) c/w WRIT PETITION NO.55536 OF 2018 (GM-TEN) In W.P.No.53160 of 2018:
BETWEEN:
M/s.SHARP WATCH INVESTIGATION AND SECURITY SERVICES, NO.17, 1ST FLOOR 8TH CROSS, KAMAKSHI HOSPITAL ROAD SARASWATHIPURAM MYSURU - 570 009 REPRESENTED BY ITS MANAGER SRI ARUN KUMAR.D., S/O LATE B.S.DASARATHI AGE 55 YEARS. ...PETITIONER (By Sri D.L.JAGADEESH, Sr.COUNSEL FOR Smt.RAKSHITHA.D.J., ADVOCATE) AND:
1. STATE OF KARNATAKA LABOUR AND WELFARE DEPARTMENT VIKASA SOUDHA BENGALURU - 560 001 REPRESENTED BY ITS SECRETARY.
2. THE DIRECTORATE EMPLOYEE STATE INSURANCE SCHEME (MEDICAL SERVICES), RAJAJIANGAR, BENGALURU - 560 010. ... RESPONDENTS (By Sri VIJAYKUMAR A.PATIL, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.11.2018 ISSUED BY THE R-2 AND LETTER DATED 20.11.2018 ISSUED BY R-1 PRODUCED AT ANNEXURES-J AND K TO THE WRIT PETITION AND DIRECT THE R-2 TO PERMIT THE PETITIONER TO TAKE PART IN THE TENDER VIDE TENDER NOTIFICATION DATED 16.11.2018 PRODUCED AT ANNEXURE-M TO THE WRIT PETITION.
In W.P.No.55536 of 2018:
BETWEEN:
M/s.SHARP WATCH INVESTIGATION AND SECURITY SERVICES, NO.17, 1ST FLOOR 8TH CROSS, KAMAKSHI HOSPITAL ROAD SARASWATHIPURAM MYSURU - 570 009 REPRESENTED BY ITS MANAGER SRI ARUN KUMAR.D., S/O LATE B.S.DASARATHI AGE 55 YEARS. ...PETITIONER (By Sri D.L.JAGADEESH, Sr.COUNSEL FOR Smt.RAKSHITHA.D.J., ADVOCATE) AND:
1. STATE OF KARNATAKA LABOUR AND WELFARE DEPARTMENT VIKASA SOUDHA, BENGALURU - 560 001 REPRESENTED BY ITS SECRETARY.
2. THE DIRECTORATE EMPLOYEE STATE INSURANCE SCHEME (MEDICAL SERVICES), RAJAJIANGAR, BENGALURU - 560 010.
3. MARS SECURITY AND ALLIED SERVICES, NO.11/8, 1ST FLOOR, 10TH MAIN, 4TH BLOCK, NANDINI LAYOUT, BENGALURU – 560 096.
REPRESENTED BY ITS SOLE PROPRIETOR, DEVIKA.S. ... RESPONDENTS (By Sri VIJAYKUMAR A.PATIL, AGA FOR R1 & R2;
vide order dated: 27.03.2019 service to R3 held sufficient) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ISSUED BY THE R-2 IN REJECTING THE TENDER BID OF THE PETITIONER PRODUCED AT ANNEXURE – ‘R’ TO THE WRIT PETITION AND DIRECT THE SECOND RESPONDENT NOT TO ISSUE WORK ORDER IN FAVOUR OF THE 3RD RESPONDENT.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In W.P.No.53160 of 2018:
Sri D.L.Jagadeesh, Senior Counsel for Smt.Rakshitha.D.J., learned counsel for the petitioner.
Sri Vijaykumar.A.Patil, learned Additional Government Advocate for respondents.
2. The petition is admitted for hearing. With the consent of the learned counsel for the parties, the same is heard finally.
3. In this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner interalia seeks for a writ of certiorari for quashment of the order dated 22.11.2018 passed by the second respondent and letter dated 20.11.2018 passed by the first respondent, by which, after considering the reply submitted by the petitioner to the notice has been found to be not satisfactory and the petitioner has been restrained from participating in the future tenders of Employee State Insurance (hereinafter referred to as ‘E.S.I.’ for short) for a period of one year.
4. The facts giving raise to this petition, briefly stated are that the second respondent invited tenders on 14.08.2017 for E-Procurement for out sourcing of Group ‘D’ and Drivers to E.S.I. Directorate, E.S.I. Hospitals and Dispensaries for a period of one year on rate contract basis for the Department of Employee State Insurance Scheme (hereinafter referred to as ‘E.S.I.S’ for short) Medical Services. The petitioner submitted its tender and was declared as successful bidder. On 24.11.2017, work order was issued in favour of the petitioner. It is the case of the petitioner that he has worked out contract to the entire satisfaction of the respondents. However, a show-cause notice dated 20.11.2018 and 22.11.2018 were issued to the petitioner by the first and second respondents. The petitioner submitted a detailed reply to the aforesaid show-cause notices. However, the second respondent has passed the order, which reads as under:
“The reply is not satisfactory. The contract includes maintenance of biometric devices and as the biometric devices are not working properly, there is clear breach of contract for which penalty should be imposed and action taken to bar this agency from future tender of E.S.I. for one year”.
5. I have heard the learned counsel for the petitioner as well as the learned Additional Government Advocate for the respondents and has perused the records.
6. Though the aforesaid order has not been challenged specifically in this writ petition, however, this Court in exercise of suo motu powers can take cognizance of the aforesaid order, which has been passed preceding the impugned letter dated 20.11.2018. The reply filed by the petitioner has been rejected in a cryptic and cavalier manner by a non-speaking order by the second respondent. It is well settled law that Supreme Court in the case of ‘S.N.Mukherjee v. Union of India’, (1990) 4 SCC 594 has held that the decision of this Court referred to above indicate that with regard to the requirement to record reasons, the approach of this Court is more in line with that of the American courts. An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration.
7. In the backdrop of the well settled legal position of law, the impugned orders dated 20.11.2018 and 22.11.2018 cannot be sustained in the eye of law. They are accordingly quashed and set aside. However, liberty is granted to the second respondent to pass a fresh order after assigning reasons.
With the aforesaid liberty, W.P.No.53160 of 2018 is disposed of.
In W.P.No.55536 of 2018:
Learned counsel for the parties submit that in view of the order passed today in W.P.No.53160 of 2018, W.P.No.55536 of 2018 does not survive for consideration. Accordingly, the same is dismissed.
Sd/- JUDGE DH