IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.6246/2019 (LB-BMP) Between:
Sri Ramaiah, S/o Sri Pillanjanappa, Aged about 55 years, M/s. Ajay Enterprises, No.36, Suraksha Layout, Gundur, Virgonagar Post, Bengaluru – 560 049. ... Petitioner (By Sri B. Chandrashekar, Advocate) And:
1. The Commissioner, Bruhat Bengaluru Mahanagara Palike, N.R. Square, Hudson Circle, Bangalore – 560 002.
2. The Joint Commissioner, Bruhat Bengaluru Mahanagara Palike, Mahadevapura Zone, BDA Complex, Opp. Phoenix City Mall, RHB Colony, Mahadevapura, Whitefield Road, Bengaluru – 560 048.
3. The Executive Engineer, BBMP, K.R. Puram Division, No.48, 2nd Cross, Devasandra Extension, K.R. Puram, Bengaluru – 560 036.
4. The Assistant Executive Engineer (SWM), BBMP, K.R. Puram Division, No.48, 2nd Cross, Devasandra Extension, K.R. Puram, Bengaluru – 560 036.
5. Sri R. Gangaraju, Age Major, R/at Near Cocon Market, Dapasandra, Chikkaballapura – 562 101. ... Respondents (By Sri Omkar Kambi, Advocate for R-1 to R-4; Sri Prasad B., Advocate of M/s. AV Law Associates for R-5) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 23.01.2019 passed by the respondent No.4 as per Annexure-B and etc.
This Writ Petition having been heard and reserved on 16.04.2019 and coming on for pronouncement of orders this day, the Court, made the following:
ORDER The petitioner, who is a contractor engaged in the business of disposal of Solid Waste Management was entrusted with the task of providing personnel and vehicles for transporting Solid Waste generated in Ward No.52, K.R.Puram Ward, Mahadevapura Zone. The work order came to be issued on 15.03.2017 as per Annexure-A. The work order did not stipulate any time period and the petitioner states that he has continued execution of work as per the work order till termination of the work order on 23.01.2019 at Annexure-B by the respondent–Bruhat Bengaluru Mahanagara Palike (BBMP).
2. The petitioner states that he has made substantial investment and though the initial work order specified providing for personnel and vehicles, subsequently the petitioner was asked to supply vehicles only. The petitioner states that on 30.01.2019, he received an order dated 23.01.2019 whereby, the work order was terminated with effect from 01.02.2019 citing unsatisfactory supply of Auto Tipper vehicles despite oral warnings. It is also stated that in view of unsatisfactory supply of Auto Tipper vehicles, the municipal Solid Waste Management was interrupted leading to complaints by the public consequently resulting in an adverse impact on public health.
3. The petitioner states that after the impugned order was communicated, he represented before the Authority requesting for withdrawal of the order dated 23.01.2019 putting forth his case that there was no fault on his side and at no point of time was there any notice by the BBMP with respect to the faulty execution of the work order and further sought for continuing of the arrangement till fresh tender was to be floated with respect to the work. However, there was no positive response.
4. It transpires that after cancellation of the work order, fresh work order has been issued in favour of Sri R.Gangaraju for supply of vehicles for transportation of Solid Waste generated in the Ward which hitherto was being performed by the petitioner.
5. The principal grievance of the petitioner was that he had performed as per the stipulation in the work order and there was no complaint in that regard. It is the further case that the impugned order was passed without any notice and without affording an opportunity of hearing. It has also been contended that under similar circumstances this Court has granted interim order staying the termination of work order in W.P.No.40495/2018 and petitioner has sought for parity by extension of the similar interim order.
6. The respondent – BBMP has filed statement of objections and has contended that the work order does not have any fixity of tenure. That numerous complaints were received from residents and despite several intimations to the petitioner, to rectify the deficiencies, there was no improvement. The respondent – BBMP has taken the stand that the petitioner was not using Auto Tippers and was using luggage Autos and that notice was issued on 03.12.2018.
7. The respondent – BBMP states that steps for cancellation have been taken and approval from all concerned Authorities including the Commissioner, BBMP has been obtained. It is further submitted that tenders for long term waste management with respect to the entire city is being finalized and the present arrangement are only as regards short-term requirements. Copy of the work order dated 31.01.2019 issued to respondent No.5 has been enclosed as Annexure-R1.
8. When oral arguments were advanced, the respondent – BBMP while replying to the contention of the petitioner that no principles of natural justice had been adhered to while passing the impugned order at Annexure-A dated 15.03.2017 had contended that the present matter and circumstances were such that no detailed adherence to principles of natural justice could be insisted upon. It was also pointed out that notice in fact had been served upon Venkatesh.G on 03.12.2018 and there was no obligation as such on affording a further opportunity of oral hearing.
9. The learned counsel appearing for the respondent – BBMP has relied on the judgment in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another v. Ramjee reported in (1977) 2 SCC 256 for the proposition that adherence to the principles of natural justice must be with reference to administrative realities and facts of the given case.
10. Insofar as the law laid down by the Apex Court in the case of Ramjee (supra), there is no dispute as regards the law laid down in the aforesaid case. However, the facts involved in the said case was that the shot firing certificate was cancelled by the Board of Mining Examination on the basis of recommendation of Regional Inspector without affording a personal hearing, wherein, regulation 26 conferred power on the Regional Inspector to suspend the certificate and the Board was conferred with the power to inquire into the matter and to confirm and modify the order of the Regional Inspector. While the Regulation provided that an opportunity be afforded to offer a written explanation, in the facts of the aforesaid case, the Revenue Inspector merely forwarded a recommendation to the Board and the aggrieved had submitted an explanation to the Board as regards the report of Regional Inspector. When the order of the Board was challenged, the Court has dealt with the contention of non adherence of principles of natural justice as follows:
“13…..Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and compliance with Regulation 26, in the circumstances, is complete. Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating…”
11. It is relevant to note that the aggrieved was afforded an opportunity before the Regional Inspector and the Court taking note of the explanation sent to the Chairman of the Board, has construed sufficient procedural adherence to the principles of natural justice. In the facts of the present case, it is undisputed that the petitioner was not served with the notice nor he has been afforded the opportunity of personal hearing and on such facts alone the judgment relied upon by the respondent-BBMP can be distinguished and is inapplicable.
12. The learned counsel appearing for the respondent – BBMP has also relied upon this Court’s order dated 30.05.2016 passed in W.P.No.23967/2016 c/w W.P.No.21491/2016 (LB-BMP) wherein, this Court has held that the contractors cannot claim any vested right in continuing with the work order for an indefinite period.
13. The petitioner has filed his rejoinder and has contended that the entrustment of work to the respondent No.5 is illegal, as the same has not been preceded with fresh tender in accordance with law. The petitioner, apart from denying the receipt of notice, has also pointed out that there was no impediment for issuing notice when previously complaints were said to have been made. Apart from denying the allegations made, the petitioner has specifically asserted that the notice was not served on the petitioner.
14. After having heard the learned counsel on both the sides, the only question that requires to be determined is:
“whether non-service of notice on the petitioner would violate principles of natural justice and vitiate the impugned order of termination of the work order issued to the petitioner?”
15. The facts being not in dispute, the petitioner has attacked the validity of the impugned order contending that the same is invalid, as there was no notice served on the petitioner nor any opportunity of personal hearing had been afforded to the petitioner.
16. It is the further contention that the alleged notice was served on one Venkatesh.G and the petitioner himself is not served with that notice. It is not in dispute that notice has not been served on the petitioner. There is no material forthcoming that Venkatesh.G was the authorized representative of the petitioner.
17. The respondent – BBMP has specifically asserted that service of notice on one Venkatesh.G, who is said to be an employee of the petitioner was sufficient and that insisting upon adhering to the principles of natural justice in the present facts was impracticable and the present facts had made out an exception where principles of natural justice need not be adhered to. It was also canvassed at the time of arguments that no purpose would be served by affording any opportunity of personal hearing in light of the consequences of non-execution of the work order being very grave.
18. No doubt, the work order itself was only till further orders without any fixity in tenure and the petitioner could not claim a vested right for the continuance of the work order. However, the manner of termination of the work order cannot be lost sight of.
19. In the present case, while terminating the work order, the observations made while setting out the reasons for termination of the work order was that despite oral warnings on a number of occasions calling upon the petitioner to provide stipulated number of vehicles, there was no appropriate response from the petitioner resulting in interruptions in the Solid Waste Management, eventually leading to an adverse impact on public health. Such observations in the impugned order results in affecting the civil rights of the petitioner and would have the effect of impacting his opportunities when future contracts are sought to be allotted.
20. While the Court would not venture into the correctness of the decision on its substantive merits, it is only on the basis of violation of the principles of natural justice that the order requires interference in exercise of power of judicial review. If the order terminating the work order of the petitioner were to be one which was simplicitor not attributing any fault on the part of the petitioner the Court may not have readily interfered in the matter. In light of stand taken above, the order dated 30.05.2016 passed in W.P.No.23967/2016 c/w W.P.No.21491/2016 (LB-BMP) is inapplicable. Further, it is to be noted in the facts of aforementioned case that notice was in fact issued before taking the decision and that the Court has also declined relief to the petitioner, since the petitioner had sought for the same relief in an earlier writ petition filed and said fact was not disclosed. Such of those facts would make the judgment inapplicable in the present case.
21. The prejudice caused to the petitioner by findings recorded in the impugned order is that it would result in adverse civil consequences and be held against him in considering awarding of work orders/contracts by the BBMP or local Authorities. This by itself is sufficient to vitiate the action for non-adherence to the principles of natural justice. The observation of the Apex Court in the case of Maharashtra State Financial Corporation v. M/s.Suvarna Board Mills and Another reported in (1994) 5 SCC 566, aptly lays down the test of necessity to adhere to principle of natural justice as follows:
“3. …all that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated…”
(emphasis supplied).
22. The manner of entrustment of the work to the respondent No.5 is not a matter of adjudication in light of setting aside of the impugned order whereby, the work order of the petitioner has been terminated. It is also to be noted that respondent-BBMP has initiated the process of long term tender. Without expressing any view on the merits of the matter including the allegations made out as regards the impugned order at Annexure-B dated 23.01.2019, the same is set aside reserving liberty to the respondent-BBMP if it so considers it appropriate, to take a decision after affording the petitioner an opportunity to reply to the notice containing the allegations. As the work order issued to the respondent No.5 is only a consequential order and same is set aside.
23. It is made clear that for the present, the respondent – BBMP to ensure work order is executed strictly in accordance with the requirements and taking note of the averments at para No.3 of the affidavit of the petitioner filed on 09.04.2019.
Subject to the above observations, this petition is disposed of.
Sd/- JUDGE VGR