Bengal Taxi Association & Anr. vs The State of West Bengal and Ors.

The petitioners have filed the writ petition challenging order dated

May 3, 2016 passed by Mr. Alapan Bandyopadhyay, the Principal

Secretary to the Government of West Bengal, Transport Department

as persona designata in pursuance of the order dated June 30, 2015

passed by Learned Single Judge of this Court in W.P. No.13801(W) of

2015.

The applicant S. M. L. Smart Technologies Pvt. Ltd. and its

authorised agent have prayed for leave to intervene in the present

writ petition, though the said applicant has already approached this

Court by filing W.P. No.31313(W) of 2014 by challenging notice

inviting tender no.WEBEL/EOT/COMM/14-15/031 dated October

27, 2014. Similarly, the applicant Smart I. T. Services Pvt. Ltd. and

its authorised agent have also prayed for leave to intervene in the

present writ petition, though the said applicant also approached this

Court by filing W. P. No.31311(W) of 2014 challenging notice inviting

tender no.WEBEL/EOT/COMM/14-15/030 dated August 28, 2014.

Both the above writ petitions filed by the applicants are pending for

adjudication before this Court. While the applicants have challenged

the tender notice dated October 27, 2014 and dated August 28, 2014

respectively, the writ petitioners in the present writ petition have challenged the order passed by persona designata on May 3, 2016 in

terms of the order passed in W.P. No.13801(W) of 2015. The writ

petitioners have no right to get any relief against the applicants in the

present writ petition. Moreover, the applicants have no right to get

opportunity of hearing in the present writ petition which can be

effectively decided in the absence of the applicants. Accordingly, I

cannot persuade myself to grant leave to the applicants to intervene

in the present writ petition. Both the CAN 4277 of 2017 and CAN

4278 of 2017 are, thus, dismissed.

By CAN 3977 of 2017 the writ petitioners/applicants have prayed for

extension of the interim order and by CAN 826 of 2017 the

respondent no.5/applicant has prayed for vacating the interim order.

Naturally, both the above applications will be disposed of along with

disposal of the present writ petition by this common order.

The first petitioner Bengal Taxi Association is a society registered

under the Societies Registration Act, 1961 and the second petitioner

is the Secretary of the first petitioner. The West Bengal Electronics

Infrastructure Development Corporation Ltd. (in short "WEBEL")

published two notices inviting tender dated August 28, 2014 and

October 27, 2014 for implementation of the Smart Card Project for issuance of Smart Card based driving licenses and registration

certificates from the offices of the Transport Department in various

districts of West Bengal (excluding PVD Kolkata) and from the Public

Vehicles Department, Kolkata respectively for a period of 5 years.

The Transport Department of Government of West Bengal entrusted

WEBEL to conduct the bid on behalf of the Transport Department.

The Transport Department constituted a Tender Committee

comprising senior officers of the Transport Department and some

officers of WEBEL. The respondent no.5 submitted its techno

commercial bid and financial bid in response to the Notice Inviting

Tenders (in short "NIT"), which were evaluated by the Tender

Committee. The respondent no.5 was found to be the lowest bidder

in both the tenders by the Tender Committee. However, the

respondent no.5 relinquished its right in respect of implementation of

the Smart Card Project in the Public Vehicles Department, Kolkata,

and accepted cluster no.1 and 2 as the area of operation by issuing

letter dated February 2, 2015. The agency agreement was executed

between the respondent no.5 and WEBEL in respect of cluster no.1

and 2 after furnishing of appropriate bank guarantee by the

respondent no.5 on February 24, 2015.

The Transport Department, Government of West Bengal received

complaint from the second petitioner which was forwarded to the

Managing Director of WEBEL for consideration. On June 1, 2015 the

Tender Committee deliberated on the complaint made by the second

petitioner against the respondent no.5. The allegations levelled

against the respondent no.5 by the second petitioner is that the

respondent no.5 suppressed the material information about

blacklisting of the said respondent by the Government of Rajasthan

in violation of the terms and conditions of NIT, though the said order

of blacklisting was set aside by the Jodhpur Bench of Rajasthan High

Court on July 26, 2005. The Tender Committee decided to terminate

the agency agreement of the respondent no.5 by majority decision,

though the convenor of the Tender Committee, representative of

WEBEL gave his note of dissent against the views of majority

members of the Tender Committee. The said decision of the Tender

Committee was communicated to the respondent no.5 by a letter

dated June 17, 2015.

The order of termination of agency agreement of the respondent no.5

was challenged before the High Court by filing W.P. No.13801(W) of

2015. On June 30, 2015 Learned Single Judge of this Court disposed of the said writ petition by setting aside the order of

termination of agency agreement of the respondent no.5 on the

ground of violation of the principles of natural justice. The parties to

W.P. No.13801(W) of 2015 agreed to a fresh decision on tender by Mr.

Alapan Bandyopadhyay, Principal Secretary to the Government of

West Bengal, Transport Department. As a result, Learned Single

Judge directed Mr. Alapan Bandyopadhyay to act as persona

designata to decide the issue whether the agency agreement of the

respondent no.5 requires to be terminated for the alleged suppression

of facts made by the said respondent no.5. The Court directed Mr.

Bandyopadhyay to put the respondent no.5 on notice and proceed to

give final decision as early as possible by assigning reasons. Learned

Single Judge has categorically observed that he has not examined the

points involved in the writ petition on merit and kept all points open

for decision of Mr. Bandyopadhyay.

The order passed by Mr. Alapan Bandyopadhyay (hereinafter referred

to as "the persona designata") on May 3, 2016 in compliance with the

direction given by Learned Single Judge is under challenge in the

present writ petition. By the impugned order the persona designata

has set aside the order of termination of agency agreement of the respondent no.5 by concurring with the views expressed by Learned

Single Judge on the basis of facts and circumstances disclosed in the

said order and on the basis of the submission made by the

respondent no.5 and recommendation made by WEBEL in the letter

dated December 2, 2015. The question for consideration of this

Court is whether the persona designata passed the impugned order

in compliance with the direction given by Learned Single Judge on

June 30, 2015 in W.P. No.13801(W) of 2015.

Mr. Anindya Kumar Mitra, Learned Senior Counsel appearing on

behalf of the petitioners has assailed the order of the persona

designata on the following grounds: (i) that the order of the persona

designata is not supported by reasons, (ii) that the persona designata

abdicated his responsibility to WEBEL for deciding the issue whether

suppression of facts with regard to blacklisting of the respondent

no.5 by the Government of Rajasthan requires termination of agency

agreement of the respondent no.5, (iii) that the order passed by the

persona designata is not in consonance with the direction given by

Learned Single Judge in W.P. No.13801(W) of 2015 and (iv) that the

persona designata has violated the principles of natural justice by not

giving the petitioners an opportunity of hearing, though the agency agreement of the respondent no.5 was terminated on the basis of the

complaint filed by the second petitioner. Mr. Mitra has elaborated his

argument by referring to the report of Comptroller and Auditor

General of India (in short "CAG") being report no.3 of 2015 of

Government of Punjab wherefrom it appears that the respondent no.5

collected Rs.14.50 lakh as charge of delivering driving licence and

registration certificate to the citizens by courier during the year 2011-

2014, but not a single driving licence/registration certificate was sent

to anyone by courier. The respondent no.5 is further indicted by the

said CAG report for avoiding payment Rs.3.22 crore as penalty as per

terms of agreement with Government of Punjab for making delay in

delivery of registration certificate and driving licence to the citizens.

By referring to the allegations of use of old smart card in army

canteen for purchase of subsidised goods and articles in Chennai,

Bengaluru and Kadappa resulting in financial gain of about Rs.16

crore to the respondent no.5 published in Times of India on June 29,

2016, Mr. Mitra argues that Central Crime Branch of Chennai police

has already started investigation in pursuance of the allegations

published in the media. The specific submission of Mr. Mitra is that

these facts should have been placed by the petitioners before the persona designata for consideration, had the opportunity of hearing

been given to the petitioners by the persona designata. Mr. Mitra

also argues that the persona designata has not taken public interest

into consideration by cancellation of order of termination of agency

agreement of the respondent no.5.

Mr. Abhratosh Majumder, Learned Additional Advocate General

representing the State respondents including persona designata

contends that the persona designata had to act within the ambit of

the order passed by Learned Single Judge of this Court. He further

contends that there was no direction given by Learned Single Judge

to give an opportunity of hearing to the petitioners and as such the

persona designata had no authority to give notice to the petitioners in

connection with the hearing in question. He further submits that the

order of blacklisting of the respondent no.5 by Government of

Rajasthan was set aside by Jodhpur Bench of Rajasthan High Court

on July 26, 2005 and thereby non-disclosure of the order of

blacklisting of the respondent no.5 by the Government of Rajasthan

in the tender documents cannot be considered as material

suppression of fact for the purpose of termination of agency

agreement of the respondent no.5. By referring to the order dated July 26, 2005 passed by Jodhpur Bench of Rajasthan High Court Mr.

Majumder has urged this Court to consider that though the order of

blacklisting of the respondent no.5 was set aside for violation of the

principles of natural justice, the Government of Rajasthan did not

pass any order subsequently for blacklisting of the respondent no.5

after giving the respondent no.5 an opportunity of hearing. Mr.

Majumder has relied on two decisions of the Supreme Court reported

in (1984) 1 SCC 43 and (2010) 13 SCC 255 in support of his

contention that the principles of natural justice have not been

violated by the persona designata in passing the impugned order

under challenge in this writ petition.

Mr. Chakraborty, Learned Counsel representing the respondent no.5

has defended the order passed by the persona designata by

concurring with the views of Learned Single Judge for setting aside

the order of termination of agency agreement of the respondent no.5.

He submits that the petitioners have no locus standi to challenge the

impugned order passed by the persona designata by filing this writ

petition. He further submits that the petitioners may file public

interest litigation before the Hon''ble Chief Justice to espouse the cause of public, but this Bench cannot entertain the present writ

petition in its present form.

The first question which calls for decision of this Court is whether the

petitioners have locus standi to challenge the order of the persona

designata by filing this writ petition. Admittedly, the second

petitioner filed the complaint before the Transport Department of

Government of West Bengal on the basis of which agency agreement

of the respondent no.5 was terminated. The first petitioner is a

society registered under the Society Registration Act, 1961. The

memorandum of association of the first petitioner indicates that the

first petitioner has the responsibility to guide and protect the interest

of its members engaged in automobile transport business and to

disseminate knowledge on matters pertaining to motor transport

services. Since, the NIT was floated for smart card project for

issuance of smart card based driving licences and registration

certificates from the offices of the Transport Department in various

districts of West Bengal and from the Public Vehicles Department,

Kolkata, I am of the view that the interest of the petitioners will be

affected if the State of West Bengal enters into an agreement with an

unscrupulous company, which will make money by exploiting common people including the members of the association of the first

petitioner. Accordingly, I am unable to accept the contention made

on behalf of the respondent no.5 that the petitioners have no locus

standi to challenge the order of the persona designata by filing this

writ petition.

I would like to discuss the decisions cited by Learned Additional

Advocate General before dealing with the rival contentions made by

Learned Counsel of the respective parties. In "K. L. Tripathi V. State

Bank of India " reported in (1984) 1 SCC 43, the Supreme Court has

laid down the criteria for deciding violation of the principles of natural

justice in paragraph 31 of the judgement, which is as follows:

"31. Wade in his Administrative Law, Firth Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."

The above proposition indicates that there cannot be any

straightjacket formula of the principles of natural justice. The

question whether the principles of natural justice have been violated

will depend entirely on the facts and circumstances of a particular

case. The Court will consider whether real prejudice is caused for

violation of the principles of natural justice. The report cited above

relates to service law, but the principles laid down in paragraph 31

need to be followed for deciding the dispute in the present case. The

above principles laid down in the administrative law is reiterated by

the Supreme Court in paragraph 26 of " Natwar Singh V. Director of

Enforcement " reported in (2010) 13 SCC 255, which is as follows:

"26. Even in the application of the doctrine of fair play there must be real flexibility. There must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth. Can the courts supplement the statutory procedures with requirements over and above those specified? In order to ensure a fair hearing, courts can insist and require additional steps as long as such steps would not frustrate the apparent purpose of the legislation."

In the above report the Supreme Court held that if relevant materials

are not disclosed to noticee, there is prima facie unfairness

irrespective of whether material in question arose before, during or

after the hearing. The facts dealt with by the Supreme Court in the

said report are in connection with the provisions of Foreign Exchange

Management Act, 1999 and Foreign Exchange Management

(Adjudication Proceedings & Appeal) Rules, 2000, but the proposition

laid down in paragraph 26 of the judgement is relevant for our case.

Now, I would like to decide whether the persona designata has

violated the principles of natural justice by not issuing notice to the

petitioners. Admittedly, agency agreement of the respondent no.5

was terminated on the basis of the complaint lodged by the second

petitioner. It is true that Learned Single Judge did not give any

direction to the persona designata for giving opportunity of hearing to

the petitioners, but there was no prohibition in the order of Learned

Single Judge from giving opportunity of hearing to the petitioners.

The persona designata not only considered the report submitted by

the Managing Director, WEBEL on December 2, 2015, but also gave the representative of WEBEL an opportunity of hearing on October 1,

2015 along with the representative of the respondent no.5 in spite of

absence of any direction from Learned Single Judge for giving

opportunity of hearing to the representative of WEBEL. The persona

designata decided in his wisdom to give the representative of WEBEL

an opportunity of hearing and ultimately decided the entire issue of

termination of agency agreement of the respondent no.5 on the basis

of the report submitted by the Managing Director, WEBEL. By

applying the touchstone of equality, I am of the view that the persona

designata should have given the petitioners also an opportunity of

hearing, particularly when the opportunity of hearing was given to

the representative of WEBEL. Since the second petitioner espoused

the public interest by bringing into notice of the concerned authority

the previous activities and credentials of the respondent no.5, the

public interest will be jeopardised and thereby prejudice will be

caused to the said petitioner if the said petitioner does not get the

opportunity to place the previous activities and credentials of the

respondent no.5 before setting aside the order of termination of

agency agreement. Learned Single Judge has observed in

unambiguous term that all other points except the point of violation of the principles of natural justice are left open for being urged before

the persona designata for his decision. Had the opportunity of

hearing been given to the second petitioner by the persona designata,

the second petitioner would have brought to the notice of the persona

designata about CAG report of Government of Punjab which indicted

the respondent no.5 for obtaining undue financial benefit at the cost

of the common citizen of the country. In view of my above

observation, I would like to accept the submission made on behalf of

the petitioners that the persona designata has violated the principles

of natural justice by not giving the second petitioner an opportunity

of hearing before setting aside the order of termination of agency

agreement of the respondent no.5.

The next question for decision of the Court is whether reasons have

been assigned by the persona designata in passing the impugned

order under challenge in the writ petition. On consideration of the

impugned order, I find that the persona designata has quoted the

submission made on behalf of the respondent no.5 and relied on the

report submitted by the Managing Director, WEBEL on December 2,

2015 for coming to the conclusion that the order of termination of

agency agreement of the respondent no.5 needs to be set aside. On close scrutiny of the entire order of the persona designata I don''t find

that the persona designata has assigned any reason for accepting the

submission made on behalf of the respondent no.5. Nor has he given

reasons for accepting the decisions cited on behalf of the respondent

no.5. It is pertinent to point out that the Tender Committee was

constituted by some senior officers of the Transport Department,

Government of West Bengal and some officers of WEBEL. Even at the

initial stage when the complaints received from the second petitioner

was forwarded to the Managing Director, WEBEL by the Transport

Department, Government of West Bengal and the Tender Committee

decided to terminate the agency agreement of the respondent no.5,

the representative of WEBEL gave his note of dissent against the

majority members of the Tender Committee. Under the above

circumstances it was incumbent upon the persona designata to

assign adequate reasons in order to call for a report from the

Managing Director of WEBEL and for giving the representative of

WEBEL opportunity of hearing for deciding whether order of

termination of agency agreement of the respondent no.5 needs to be

set aside. No reasons have been assigned by the persona designata

for allowing WEBEL to reconsider the decision of termination of agency agreement of the respondent no.5 dated June 17, 2015. Nor

has the persona designata assigned any reason for relying upon the

report submitted by the Managing Director, WEBEL in connection

with suppression of fact of blacklisting of the respondent no.5 by the

Government of Rajasthan. In view of my above observations, I would

like to hold that the persona designata has not assigned reasons for

passing the impugned order and thereby the persona designata has

not acted in accordance with the direction given by Learned Single

Judge of this Court. The observations made by me hereinabove also

lead me to accept the submission made on behalf of the petitioners

that the persona designata has abdicated his responsibility to

WEBEL which is beyond the ambit of the order passed by Learned

Single Judge of this Court.

In view of my above findings, the impugned order dated May 3, 2016

passed by the respondent no.3 in pursuance of the order dated June

30, 2015 passed in W. P. No.13801(W) of 2015 is set aside. The

respondent no.3 is directed to decide the issue afresh whether the

agency agreement of the respondent no.5 requires to be terminated

after giving opportunity of hearing to all concerned and after taking

into consideration all the points to be urged before him for decision. The respondent no.3 must complete the entire exercise and pass the

order as early as possible preferably within a period of 12 weeks from

the date of communication of the order. With the above direction writ

application is disposed of. Consequently, CAN 3977 of 2017 and CAN

826 of 2017 stand disposed of.

Urgent certified photostat copy of the judgment and order, if applied

for, be given to the parties as expeditiously as possible after

compliance with necessary formalities.