Neutral Citation No. - 2024:AHC-LKO:86565-DB
Court No. - 6
Case :- WRIT - C No. - 11479 of 2024
Petitioner :- M/S Shivam Enterprises Sahabganj Thru. Partner Anoop
Singh Sombanshi
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of
Medical Health And Family Welfare Lko And 7 Others
Counsel for Petitioner :- Dwijendra Mishra,Vandana Singh,Vishva
Deep Pandey
Counsel for Respondent :- C.S.C.,Puneet Chandra
Hon'ble Alok Mathur,J.
Hon'ble Brij Raj Singh,J.
1. Heard Sri Dwijendra Mishra and Sri Vishva Deep Pandey, learned
counsel for the petitioner as well as Sri Rahul Mishra, learned
Additional Chief Standing Counsel for respondent nos. 1, 2, 3, 5, 6, 7
and 8 and Sri Puneet Chandra, learned counsel for respondent no. 4.
2. The petitioner has moved an application for urgency in the present
case which has been allowed and consequently matter has been heard
during the winter recess of this Court. With the consent of learned
counsel for the parties, present writ petition is heard and decided at
the admission stage itself. Instructions received from Chief Medical
Superintendent, District Women Hospital, Barabanbki are taken on
record.
3. The petitioner has approached this Court being aggrieved by order
dated 20.12.2024 passed by the Chief Medical Superintendent,
District Women Hospital, Barabanki whereby contract of petitioner
has been terminated which was granted to the petitioner firm on
30.08.2018 for the purpose of providing diet to pregnant women under
the National Health Mission Programme.
4. It is submitted by learned counsel for the petitioner that petitioner
firm had participated in the tender process issued by the Chief
Medical Officer, Barabanki and the petitioner being lowest bidder was
granted the said contract by means of letter dated 31.07.2018. An
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agreement was also executed between the petitioner and respondent
no. 7 on the same day, according to which tender was to be operative
for a period of one year and was to expire on 30.03.2019. It was
further provided that the contract can be extended on satisfactory
performance of service by the petitioner after getting approval and
sanction from the competent authority. It is the case of the petitioner
that he has been continuously performing under the said contract till
passing of the impugned order and his services have been satisfactory.
Learned counsel for the petitioner has fairly submitted that no order
was issued in the meantime for extension of the contract dated
30.08.2018, nor was any letter or certificate issued to the petitioner
with regard to satisfactory performance of his duties under the said
contract.
5. It has been next submitted by learned counsel for the petitioner that
the respondents have terminated the contract of the petitioner and
asked him to vacate the premises by 31.12.2024, as another work
order has already been issued in favour of the lowest bidder from the
GEM Portal maintained by the State Government. The fresh contract
is to commence from 01.01.2025. Learned counsel for the petitioner
has fairly submitted that the contract awarded to him was for a period
of one year and there is no order in writing with regard to extension of
the said contract which may indicate that he has any right to continue
under the said contract. It is noticed that petitioner has already worked
for the last six years under the said contract. The petitioner has argued
at length assailing the procedure adopted by the respondents for grant
of the fresh contract, but in absence of any prayer being sought inthis
regard, we do not find it fit to proceed to consider the said submission
on merits.
6. Learned Additional Chief Standing Counsel on the other hand has
opposed the writ petition on the ground of maintainability and further
submits that after due consideration of the entire facts, decision was
taken to invite fresh bids for running the canteen services and also to
provide food services to the pregnant women and other patients. In
this regard, it is stated that a Committee was constituted by the
District Magistrate, Barabanki which consisted number of officials
including Chief Medical Superintendent, District Women Hospital,
Barabanki. The said Committee duly considered the entire conspectus
of the matter and also held that diet/food can be given to the persons
for an amount of Rs.150/- per day as per latest guidelines issued by
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the National Rural Health Mission Programme. Recommendations of
the Committee were duly accepted by the District Magistrate and in
pursuance to which steps were taken to float fresh tender for inviting
bidders for grant of new contract.
7. It is next submitted by learned Additional Chief Standing Counsel
that petitioner was aware of the process undertaken by the
respondents. The petitioner is a partnership firm and one of the partner
had duly submitted earnest money through cheque under the
signatures of one of the partner of the petitioner firm in favour of
Chief Medical Superintendent, District Women Hospital, Barabanki
amounting to Rs.4,40,100/- drawn on the ICICI Bank which was
submitted on behalf of Namo Caterer, Barabanki. This clearly
demonstrates that even the petitioner firm/partner was fully aware of
the fresh process which has been commenced by the respondents for
appointment of new contract to run the canteen and they never
objected or assailed the said proceedings before any forum including
this Court. The respondents have awarded the fresh contract in favour
of one M/s Narendra Industry, Nizamuddinpur Ganeshpur,
Bahramghat Ramnagar, Barabanki for a period from 31.01.2025 to
31.12.2025.
8. It is in the aforesaid circumstances, this Court has been called upon
to consider the validity of the impugned order dated 20.12.2024.
9. Heard learned counsel for the parties and perused the record.
10. It is noticed firstly that there is no material on record to indicate
that the contract of the petitioner was extended any time beyond the
period prescribed in the contract dated 30.08.2018. It is not the case of
the petitioner that the said contract was in perpetuity. The petitioner
firm had already worked for six years and after change of policy of
the State Government and subsequently, GEM Portal having come
into existence it was thought fit to invite fresh tenders after enhancing
money for per diet by the committee that fresh tenders were invited.
11. The prayer made in the writ petition is with regard to setting aside
impugned order dated 20.12.2024, terminating the contract of the
petitioner and also seeks direction to the respondents to permit the
petitioner to continue to make supply of diet for pregnant women
under the NRHM Scheme at The District Women Hospital, Barabanki.
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12. With regard to prayer no. 2 [prayer ‘b)’ in the writ petition], it is
noticed that prayer for injunction to permit the petitioner to continue
supply of diet cannot be granted as it is clearly contrary to the
provisions of Specific Relief Act. The contract of the petitioner was
for providing food and canteen services is a contract for personnel
service which cannot be specifically enforced as per the provisions of
Section 14(b) of the the Specific Relief Act, 1963. Even otherwise, as
per Section 41(e) of the Specific Relief Act, 1963 injunction in favour
of petitioner firm in this regard cannot be granted. This issue even
otherwise has been interpreted by the Hon’ble Supreme Court in the
case of Nandganj Sihori Sugar Co. Ltd. v. Badri Nath Dixit, (1991)
3 SCC 54, the Apex Court has observed as under :-
8.
“ In Halsbury's Laws of England (4th edn., Volume 44, at para 407)
it is stated:
407. Contracts for personal work or services.— A judgment for
“
specific performance of a contract for personal work or services is
not pronounced, either at the suit of the employer or the employee.
The court does not seek to compel persons against their will to
maintain continuous personal and confidential relations. However,
this rule is not absolute and without exception. It has been held that
an employer may be restrained from dismissing an employee in
breach of contract if there is no loss of confidence between employer
and employee or if (at least in a contract of employment to carry out a
public duty) the employee has been dismissed in a manner which does
not comply with statutory or contractual regulations governing
dismissal. No court may, whether by way of an order for specific
performance of a contract of employment or an injunction restraining
a breach or threatened breach of such a contract, compel an
employee to do any work or attend at any place for the doing of any
work.
This principle applies not merely to contracts of employment,
but to all contracts which involve the rendering of continuous services
by one person to another, such as a contract to work a railway line
….”
9.
As stated by this Court in Executive Committee of Vaish Degree
College, Shamli v. Lakshmi Narain, (1976) 2 SCC 58:-
“… a contract of personal service cannot ordinarily be specifically
enforced and a court normally would not give a declaration that the
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contract subsists and the employee, even after having been removed
from service can be deemed to be in service against the will and
consent of the employer. This rule, however, is subject to three well
recognised exceptions — (i) where a public servant is sought to be
removed from service in contravention of the provisions of Article 311
of the Constitution of India; (ii) where a worker is sought to be
reinstated on being dismissed under the Industrial Law; and (iii)
where a statutory body acts in breach or violation of the mandatory
provisions of the statute.
10.
A contract of employment cannot ordinarily be enforced by or
against an employer. The remedy is to sue for damages. The grant of
specific performance is purely discretionary and must be refused
when not warranted by the ends of justice. Such relief can be granted
only on sound legal principles. In the absence of any statutory
requirement, courts do not ordinarily force an employer to recruit or
retain in service an employee not required by the employer. There are,
of course, certain exceptions to this rule, such as in the case of a
public servant dismissed from service in contravention of Article 311
of the Constitution; reinstatement of a dismissed worker under the
Industrial Law; a statutory body acting in breach of statutory
obligations, and the like. (S.R. Tiwari v. District Board, Agra [AIR
1964 SC 1680] ; Executive Committee of U.P. State Warehousing
Corporation v. C.K. Tyagi [(1969) 2 SCC 838] ; Executive Committee
of Vaish Degree College, Shamli v. Lakshmi Narain [(1976) 2 SCC
58].
11.
On the facts of this case, the High Court was clearly wrong in
issuing a mandatory injunction to appoint the plaintiff. Even if there
was a contract in terms of which the plaintiff was entitled to seek
relief, the only relief which was available in law was damages and not
specific performance. Breach of contract must ordinarily sound in
damages, and particularly so in the case of personal contracts.
Assuming that a contractual relationship arose consequent upon the
letters addressed by defendant 3 to defendant 1, the plaintiff was a
total stranger to any such relationship, for, on the facts of this case,
no relationship of a fiduciary character existed between the plaintiff
and defendant 3 or other defendants. Neither on principles of law or
equity nor under any statute did the plaintiff acquire an enforceable
right by reason of the letters exchanged between defendants 1 and 3.
The plaintiff had no privity of any kind to their relationship. No
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collateral contract to which the plaintiff was a party did arise on the
facts of this case. At no time was defendant 3 acting as an agent of the
plaintiff. There is no express or implied contract which is enforceable
by the plaintiff.”.
The other aspect of the matter is with regard to maintainability of the
writ petition under Article 226 of the Constitution of India.
13. In the present case apart from the contract awarded to the
petitioner firm on 30.08.2018, there is no document indicating that
petitioner firm has satisfactorily performed the contract for the last six
years or that the said contract was extended any time beyond
31.03.2019.
14. It is in the aforesaid circumstances that above are the disputed
questions of facts and same cannot be adjudicated in writ proceedings
under Article 226 of the Constitution of India. Even the Apex Court in
number of decisions have stated that such disputed questions of fact
arising out of contract cannot be adjudicated by the writ Court under
Article 226 of the Constitution of India. This aspect was also
considered by the Apex Court in the case of State of Kerala &
Others Vs. M.K. Jose, AIRONLINE 2015 SC 448, wherein the
Apex Court has observed as under :-
“13. A writ court should ordinarily not entertain a writ petition, if
there is a breach of contract involving disputed questions of fact. The
present case clearly indicates that the factual disputes are involved. In
State of Bihar v. Jai Plastics and Chemicals Ltd., a two-Judge Bench
reiterating the exercise of power under Article 226 of the Constitution
in respect of enforcement of contractual obligations has stated:-
“It is to be reiterated that writ petition under Article 226 is not the
proper proceedings for adjudicating such disputes. Under the law, it
was open to the respondent to approach the court of competent
jurisdiction for appropriate relief for breach of contract. It is settled
law that when an alternative and equally efficacious remedy is open
to the litigant, he should be required to pursue that remedy and not
invoke the writ jurisdiction of the High Court. Equally, the existence
of alternative remedy does not affect the jurisdiction of the court to
issue writ, but ordinarily that would be a good ground in refusing to
exercise the discretion under Article 226.” In the said case, it has
been further observed:-
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“It is true that many matters could be decided after referring to the
contentions raised in the affidavits and counter-affidavits, but that
would hardly be a ground for exercise of extraordinary jurisdiction
under Article 226 of the Constitution in case of alleged breach of
contract. Whether the alleged non-supply of road permits by the
appellants would justify breach of contract by the respondent would
depend upon facts and evidence and is not required to be decided or
dealt with in a writ petition. Such seriously disputed questions or rival
claims of the parties with regard to breach of contract are to be
investigated and determined on the basis of evidence which may be
led by the parties in a properly instituted civil suit rather than by a
court exercising prerogative of issuing writs.”
14. In National Highways Authority of India v. Gaga Enterprises, the
respondent therein had filed a writ petition before the High Court for
refund of the amount. The High Court posed two questions, namely,
(a) whether the forfeiture of security deposit is without authority of
law and without any binding contract between the parties and also
contrary to Section 5 of the Contract Act; and (b) whether the writ
petition is maintainable in a claim arising out of breach of contract.
While dealing with the said issue, this Court opined that:-
“It is settled law that disputes relating to contracts cannot be agitated
under Article 226 of the Constitution of India. It has been so held in
the cases of Kerala SEB v. Kurien E. Kalathil, State of U.P. v. Bridge
& Roof Co. (India) Ltd. And Bareilly Development Authority v. Ajai
Pal Singh. This is settled law. The dispute in this case was regarding
the terms of offer. They were thus contractual disputes in respect of
which a writ court was not the proper forum. Mr Dave, however,
relied upon the cases of Verigamto Naveen v. Govt. of A.P. and
Harminder Singh Arora v. Union of India. These, however, are cases
where the writ court was enforcing a statutory right or duty. These
cases do not lay down that a writ court can interfere in a matter of
contract only. Thus on the ground of maintainability the petition
should have been dismissed”.
15. Having referred to the aforesaid decisions, it is obligatory on our
part to refer to two other authorities of this Court where it has been
opined that under what circumstances a disputed question of fact can
be gone into. In Gunwant Kaur v. Municipal committee, Bhatinda, it
has been held thus:-
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“14. The High Court observed that they will not determine disputed
question of fact in a writ petition. But what facts were in dispute and
what were admitted could only be determined after an affidavit-in-
reply was filed by the State. The High Court, however, proceeded to
dismiss the petition in limine. The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226 merely because
in considering the petitioner’s right to relief questions of fact may fall
to be determined. In a petition under Article 226 the High Court has
jurisdiction to try issues both of fact and law. Exercise of the
jurisdiction is, it is true, discretionary, but the discretion must be
exercised on sound judicial principles. When the petition raises
questions of fact of a complex nature, which may for their
determination require oral evidence to be taken, and on that account
the High Court is of the view that the dispute may not appropriately
be tried in a writ petition, the High Court may decline to try a
petition. Rejection of a petition in limine will normally be justified,
where the High Court is of the view that the petition is frivolous or
because of the nature of the claim made dispute sought to be agitated,
or that the petition against the party against whom relief is claimed is
not maintainable or that the dispute raised thereby is such that it
would be inappropriate to try it in the writ jurisdiction, or for
analogous reasons.
15. From the averments made in the petition filed by the appellants it
is clear that in proof of a large number of allegations the appellants
relied upon documentary evidence and the only matter in respect of
which conflict of facts may possibly arise related to the due
publication of the notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was not
justified in dismissing the petition on the ground that it will not
determine disputed question of fact. The High Court has jurisdiction
to determine questions of fact, even if they are in dispute and the
present, in our judgment, is a case in which in the interests of both the
parties the High Court should have entertained the petition and called
for an affidavit-in-reply from the respondents, and should have
proceeded to try the petition instead of relegating the appellants to a
separate suit.” [Emphasis added]
16. In ABL International Ltd. v. Export Credit Guarantee Corpn.of
India Ltd., a two-Judge Bench after referring to various judgments as
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well as the pronouncement in Gunwant Kaur (supra) and Century
Spg. And Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, has held
thus:-
“19. Therefore, it is clear from the above enunciation of law that
merely because one of the parties to the litigation raises a dispute in
regard to the facts of the case, the court entertaining such petition
under Article 226 of the Constitution is not always bound to relegate
the parties to a suit. In the above case of Gunwant Kaur this Court
even went to the extent of holding that in a writ petition, if the facts
require, even oral evidence can be taken. This clearly shows that in
an appropriate case, the writ court has the jurisdiction to entertain a
writ petition involving disputed questions of fact and there is no
absolute bar for entertaining a writ petition even if the same arises
out of a contractual obligation and/or involves some disputed
questions of fact.
xxxxx xxxxx xxxxx
27. From the above discussion of ours, the following legal principles
emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an
instrumentality of a State arising out of a contractual obligation is
maintainable.
(b) Merely because some disputed questions of fact arise for
consideration, same cannot be a ground to refuse to entertain a writ
petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim
is also maintainable.
While laying down the principle, the Court sounded a word of caution
as under:-
“However, while entertaining an objection as to the maintainability of
a writ petition under Article 226 of the Constitution of India, the court
should bear in mind the fact that the power to issue prerogative writs
under Article 226 of the Constitution is plenary in nature and is not
limited by any other provisions of the Constitution. The High Court
having regard to the facts of the case, has a discretion to entertain or
not to entertain a writ petition. The Court has imposed upon itself
certain restrictions in the exercise of this power. (See Whirlpool
Corps. v. Registrar of Trade Marks.) And this plenary right of the
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High Court to issue a prerogative writ will not normally be exercised
by the Court to the exclusion of other available remedies unless such
action of the State or its instrumentality is arbitrary and unreasonable
so as to violate the constitutional mandate of Article 14 or for other
valid and legitimate reasons, for which the Court thinks it necessary
to exercise the said jurisdiction”.”
15. In the impugned order it has been stated that the contract was
initially awarded in favour of the petitioner on 30.08.2018, and he has
worked under the said contract till date. Due to the fact that the
decision has been taken to review the rates, process for grant of fresh
contract has been undertaken and contract has been awarded and
therefore the petitioner has been directed to vacate the kitchen by
31.12.2024.
16. It is clear that the contract of the petitioner has been determined by
the impugned order. The rights if any of the petitioner, which are
allegedly violated are out of contract, and no argument has been raised
on behalf of the petitioner that any of his fundamental rights protected
under Part III of the Constitution of India or any statutory provision
has been violated rendering the impugned order illegal and arbitrary.
17. It is in the aforesaid circumstances that this Court has considered
entire facts of the present case where a contract which was initially
awarded for a period of one year, continued for six years, in the
meanwhile the State Government has issued another policy with
regard to supply of diet to the pregnant women and to other patients
coming to the District Women Hospital, Barabanki, for which better
facility has been sought to be provided and for the said purpose
amount of money per diet has been enhanced. As per procedure
provided fresh tenders were invited from the GEM Portal and the
entire exercise has been concluded and contract has been awarded to
another firm. The petitioner on coming to know of this fact, has
chosen not to assail the proceedings of the State Government which
resulted in grant of fresh contract to another firm namely M/s
Narendra Industries and hence no such relief as argued by the
petitioner can be granted in absence of impleading necessary parties in
the present writ petition, and making a specific prayer in this regard.
18. We have also given our anxious consideration to the arguments of
the petitioner and find that there is no illegality in the impugned order.
The issue of breach of contract and the remedy of seeking
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compensation can be raised by the petitioner before the appropriate
forum, but we do not deem it fit and proper to exercise the
extraordinary remedy under Article 226 of the Constitution of India in
the facts of the present case.
19. In the aforesaid facts and circumstances, we are not inclined to
grant the relief as claimed by the petitioner in the present writ petition.
The writ petition being devoid of merits is dismissed.
Order Date :- 30.12.2024
A. Verma
(Brij Raj Singh, J.) (Alok Mathur, J.)
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Digitally signed by :-
ANURAG VERMA
High Court of Judicature at Allahabad,
Lucknow Bench