Prakash Securities Services And Worker Contractor vs Gwalior Sunshine Labour And Security Pvt. Ltd. And Others

Sheel Nagu, J

The present review petition has been preferred by the petitioner seeking review of the order dated 04/05/2018 passed in W.A. No.561/2018 wherein

the appeal preferred by the appellant (respondent No.1) has been allowed in part by modification of order of learned Single Judge with a direction that

respondent No.4 of writ petition shall take appropriate steps to issue work order in favour of the petitioner/ appellant within two weeks from the date

of receipt of certified copy of the order.

Precisely stated facts of the case for adjudication are that present respondent No.1 (petitioner/ appellant) filed a writ petition before learned Single

Judge being aggrieved by the order dated 28/10/2017 passed by the respondents by which tender of security of District Hospital, Shivpuri has been

awarded in favour of respondent No.5 i.e. present review petitioner.

Learned Judge vide order dated 18/12/2017 stayed the effect and operation of the impugned order dated 28/10/2017. Reply was filed by the State

Government in which factum regarding constitution of committee was referred which examined the tender proceedings and found the award of

contract in favour of respondent No.5/ present petitioner suffering from arbitrariness and default by respondent No.5 in not depositing the security

amount as per the requirement of the contract. On the basis of stand taken by the respondents, learned Single Judge declined the relief for issuance of

work order in favour of the petitioner of writ petition on the ground that since the entire auction proceedings have been found vitiated and has been

cancelled therefore, relief sought by the petitioner cannot be granted.

In Writ Appeal, petitioner/appellant took the ground that contract which was given to respondent No.5 (of writ petition) has been withdrawn

because he was not L-1 and has not deposited any security amount as required by the tender condition and on the basis of default of respondent No.5

to deposit the amount, it could not have been concluded that the entire tender process has been vitiated. It prayed for issuance of work order.

Considering the said aspect, writ appellate Court came to the conclusion that the recommendation of committee do not contemplate any cancellation of

entire contract and the committee has not considered and adjudicated the prayer of petitioner/ appellant for grant of work order to it and said aspect

has not been dealt with by the learned Single Judge therefore, while maintaining the order of learned Single Judge and accepting the reply of the State

whereby the work order earlier issued in favour of respondent No.5 has been cancelled, direction was given by writ Appellate Court to respondent

No.4 to take appropriate steps to issue work order in favour of the appellant/ petitioner within two weeks from the date of receipt of certified copy of

the order.

The main ground raised by the present petitioner (respondent No.5 of the writ petition) is that petitioner was not eligible as per the tender submitted

by the petitioner as the low bid submitted by him could not have been accepted as it is in violation of award of the conditions of the tender. Similarly,

according to review petitioner, findings recorded by the learned Single Judge as well as that the work order issued in favour of respondent No.5 was

cancelled by the respondent/ authority was contrary to the record as on the date of order i.e. dated 04/05/2018, no order for cancellation of work was

issued, therefore, review petitioner at that point of time was working and since it was rendering its service in pursuance to the work order issued in its

favour therefore, the said findings were erroneous.

Another ground raised by the review petitioner is violation of principle of natural justice and without affording any opportunity of hearing, the

impugned order has been passed and the inquiry report relied upon by the petitioner is an ex-parte inquiry report prepared for prejudicing the rights of

the petitione and therefore, error is apparent on record and sufficient reasons exists for reviewing the order dated 04/05/2018.

Heard the learned counsel for the parties and perused the record.

The case in hand is initiated by respondent No.1 (petitioner) by filing writ petition against the order dated 28/10/2017 issued by respondent No.4 by

which work order has been issued in favour of the review petitioner. Learned Single Judge while considering the relief claimed and response filed by

the respondents/ State, dismissed the writ petition. Relevant extracts of reply filed by respondent No.4(State) was quoted by learned Single Judge in its

order dated 24/04/2018 which reads as under:-

“2. That, in the light of the same a committee has been constituted by the respondent No.4 and the said committee has examined the said tender

proceeding and found that, the contract was given in favour of the respondent No.5 which is not just and proper and the respondent No.5 has also not

deposited any security amount as required for completion of the contract therefore, the contract of the respondent No.5 given in the light of order

dated 28/10/2017 vide Annexure P-1 deserves to be rejected. Copy of the said proceeding of the committee dated 05/01/2018 is herewith marked as

Annexure R-3 in the light of the same and the interim order of this Hon'ble Court, the work order of respondent No.5 has been kept in abeyance on

05/01/2018 which is herewith marked as Annexure R-4.â€​

While considering the said response, learned Single came to the conclusion that entire auction proceeding is vitiated and has been cancelled

therefore, relief sought by the petitioner cannot be granted. In writ appeal, the Division Bench of this Court modified the order to the extent that

respondent No.4 shall take appropriate steps to issue work order in favour of the appellant within two weeks from the date of receipt of certified copy

of the order. The said observations were the bone of contention between the parties because according to the review petitioner (respondent No.5 of

the writ petition), at the time of passing of the order in the writ petition, the work order issued in favour of the petitioner was not cancelled therefore,

the terms on which the writ Court proceeded was based upon misrepresentation at the instance of respondents.

From the record, it also appears that present review petitioner was not served at writ Appellate stage. Since the review petitioner did not get

sufficient opportunity of hearing before the writ appellate Court therefore, it is imperative that the review petitioner must get the opportunity to

showcase its case. Thereafter, the controversy can be crystallized. Therefore, sufficient reasons exist for allowing the review petition and for

restoration of writ appeal No.561/2018 to its original number.

Resultantly, review petition is allowed and order dated 04/05/2018 passed by this Court in Writ Appeal No.561/2018 is hereby recalled and writ

appeal is restored to file. In the interest of justice and as equitable measure, status quo as it exists today, shall be maintained by the parties to the lis.

Review petition is allowed and disposed of in above terms.

Office is directed to restore the writ appeal and place it before appropriate bench for hearing on admission.