w w w . L a w y e r S e r v i c e s . i n



Shourya Impex v/s Bharat Heavy Electrical Ltd. & Others

    Writ Petition (M/S) No. 542 of 2022

    Decided On, 26 May 2022

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE SHARAD KUMAR SHARMA

    For the Petitioner: Ramji Srivastava, Advocate. For the Respondents: V.K. Kohli, Senior Advocate, Kanti Ram Sharma, Advocate.



Judgment Text

The petitioner in the present Writ Petition has modulated his reliefs in the following manner:-

“(i) issue a writ, order or direction in the nature of certiorari, quashing the impugned order dated 11-2-2022 passed by respondent authorities (Annexure No. 14 to this writ petition.)

(ii) issue a writ, order or direction in the nature of certiorari, quashing the impugned order dated 9-3-2022 passed by respondent authorities (Annexure No. 17 to this writ petition).

(iii) issue a writ, order or direction in the nature of certiorari, quashing the impugned auction notice issued by respondent no.3 (Annexure No.19 to this writ petition).

(iv) issue a writ, order or direction in the nature of mandamus, commanding/directing the respondent authorities to permit the petitioner to deposit the remaining instalments in respect to the 4th, 5th & 6th lots; and further, to issue delivery orders accordingly, after adjusting the security amount.

(v) pass such other or further orders, which this Hon’ble Court may deem , fit and proper in the facts and circumstances of the case.

(vi) award the cost of petition to the petitioner.

2. Primarily, certain factual backdrops, which are required to be considered and referred to are, that as a consequence of issuance of e-tender notices on 30th November, 2019, for the purposes of disposal of ferrous, turning and boring scraps, the petitioner on 2nd January, 2020, had participated in the auctioning process and he was ultimately declared as a successful bidder and a letter of acceptance was issued in this favour. It was thereafter, he submits, that he was permitted to lift the first lots, the petitioner had made the payment for the 2nd lot, however, he was not permitted to lift the same, as a consequence of an order of 11th February, 2020. The reason assigned for his inability to lift the 2nd, lot was on account of the unfortunate prevalent situation due to covid-19.

3. There has been a change of schedule, which was permissible by the respondents for the purposes of lifting of the scrap lots, as settled by the letter of acceptance, which was issued in favour of the petitioner on 2nd January, 2020, but since, there was an obstruction which was being raised in granting permission to lift the lot, despite of the fact, that he had made the payments for the lifting of the 2nd and 3rd lot, the petitioner consistent request for lifting of the subsequent lots, i.e. 4th, 5th and 6th were not acceded to till the respondents proceeded to pass the impugned order dated 11th February, 2022, as a consequence of which, it was observed that since the petitioner has failed to adhere to the payment schedule for lifting of 4th , 5th and 6th lots, due to increase of rates of ferrous turning and boring scraps, the BHEL has decided to “cancel the contract”, and as a consequence thereto, the security deposit of Rs.25,65,840/- was forfeited.

4. The petitioner had earlier preferred a Writ Petition, being Writ Petition (M/S) No. 325 of 2022, Shourya Impex Vs. Bharat Heavy Electrical Limited and another, wherein, the following reliefs were prayed for :-

“I. Issue a writ, rule, order or direction in the nature of certiorari quashing the impugned order dated 11.02.2022 issued by respondent no.2 (contained as Annexure No.1 to this writ petition) or to mould the relief appropriately, kee petition. in view the facts highlighted in the body of writ

II. Issue a writ, rule, order or direction in the nature of mandamus directing the respondent authorities to permit the petitioner to deposit the remaining installment with delayed interest in respect to 4th, 5th and 6th lots of material Code: SCP510000010 by extending /rescheduling the date as mentioned in the acceptance/ sale orders detail dated 02.01.2020 for 4th, 5th and 6th lots by issuing delivery order in favour of the petitioner”

5. The Co-ordinate Bench of this Court, while considering the then challenge as given by the petitioner, to the order of 11th February, 2022, giving a challenge to the cancellation of his contract and the consequential forfeiture of security deposit, had decided the Writ Petition, by making an observation to the following effect, as contained in para 7, which reads as under:-

“7. In such view of the matter, writ petition is deposed of with liberty to petitioner to make fresh representation to the Competent Authority in B.H.E.L. within one week from today. It shall be open to the petitioner to make such representation through e-mail. The Competent Authority shall consider the representation submitted by petitioner and pass appropriate order as per law, as early as possible, but not later than two weeks from the date of receipt of representation. For a period of three weeks or till decision on petitioner’s representation, whichever is earlier, status-quo as on today shall be maintained.”

6. The petitioner submits, that as a consequence of the decision rendered by the Co-ordinate Bench, disposing of the Writ Petition by the judgement of 21st February, 2022, he agitated his grievances by filing a representation before the BHEL, and the same has been rejected by the respondents by virtue of the impugned order, which is now under challenge in the present Writ Petition.

7. This Court posed a question to the petitioner, that what would be the effect of incorporation of the first relief while giving a challenge to the earlier order of 11th February, 2022, whether the principles of constructive res judicata will apply or not, since the same was also a subject matter of consideration in the earlier Writ Petition, which was preferred by the petitioner and was not addressed to by the Court on its merit and the petitioner was relegated to file a representation, which has been decided against him by the impugned order of 9th March, 2022.

8. The learned counsel for the petitioner submits, that the consequential effect of passing of an order of 9th March, 2022, would be, that under the principle of merger, it will give him altogether a fresh cause of action, to file a Writ Petition and the implications of the impugned order of cancellation of the contract, and its ultimate forfeiture of the security by an order 11th February, 2022, will become inconsequential because the direction contained in para 7 was to decide the matter “afresh”.

9. The interpretation given to the word “afresh” is being interpreted by the petitioner, as if, that would be mitigating the impact of an order of 11th February, 2022, as agitated by the petitioner before the Court in its earlier judgement rendered in Writ Petition (M/S) No. 325 of 2022.

10. With all due reverence at my command, I am not in agreement with the arguments extended by the learned counsel for the petitioner, because of the fact that merely because the Court has granted a liberty to decide the matter afresh, considering the representation, its amplitude may not be extended to be interpreted as if, it was diluting or mitigating the impact of an order dated 11th February, 2022, resulting into a cancellation of contract or ultimate forfeiture of the security deposit, and that too particularly when, the Court has not whispered even a single word on interpreting the propriety of the order of 11th February, 2022.

11. Hence, merely a liberty being granted to decide the representation, will not result into a revival of a fresh cause for the petitioner to put a challenge to the order of 11th February, 2022, because this Court is of the view, that once a litigant claims certain reliefs before the Court, and ultimately, while adjudicating the lis, the Court confines to issue a certain direction without disturbing the logic or reasoning assigned in the impugned order, that itself, will amount to that the Court has not ventured into on merits, to address on the propriety of the order, which was ultimately having a consequences of deciding a civil rights of the petitioner, qua the contract, which was executed in his favour.

12. Hence, the interpretation given by the petitioner, that by passing the order of 9th March, 2022, on his representation will be opening a new chapter altogether for him to re-agitate an issue, which has already been settled due to non decision of the Court in the earlier phase of litigation in its judgement dated 21st February, 2022, is not accepted by this Court in view of the principles laid down by the Hon’ble Apex Court in a judgement reported in (2001) 1 SCC 73, State Bank of India Vs. Ram Chandra Dubey and others. Relevant para is extracted hereunder:-

“8. The principles enunciated in the decisions referred by either side can be summed up as follows:

Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will h

Please Login To View The Full Judgment!

ave to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the awardv of reinstatement itself conferred right for claim of back wages.” 13. In view of the aforesaid, the decision of 9th March, 2022, would not be a fresh decision at all which could be put open to a challenge to an order of 11th February, 2022, but rather would be only a decision, which has to be read now in furtherance of an affirmation of an order of 11th February, 2022. 14. In view of the aforesaid, this Court is of the view that this Writ Petition would be a second Writ Petition, for the same cause of action and the concept and philosophy of merger due to the decision taken on the representation because of the latitude extended by the Court in its judgement of 21st February, 2022, will not sustain the second the Writ Petition. 15. Hence, Writ Petition lacks merits and the same is accordingly dismissed.
O R