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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.R.GAVAI & INDIRA K.JAIN, JJ.
C-5 Facility and Security Services, Nagpur – Petitioner
versus
Bharat Sanchar Nigam Limited – Respondents
WRIT PETITION NO. 1891/2015
Decided On : 14.07.2015.
Corrigendum - Contractual Dispute - Agreement Clause (6) - Notifications dated 18th September, 2008 and 8.10.2014 - The court discussed the contractual dispute and the unilateral modification of terms and conditions of the agreement by the respondent. The court referred to the agreement clause (6) and notifications to support the petitioner's contention, ultimately quashing the corrigendum and directing the respondent to refund the recovered amount.
Fact of the Case:
The petitioner, a security services provider, entered into an agreement with the respondent to deploy security guards. The respondent unilaterally issued a corrigendum changing the category of urban to rural area for certain locations, leading to recovery of excess payment from the petitioner.
Finding of the Court:
The court found the corrigendum issued by the respondent to be illegal and arbitrary, quashing it and directing the respondent to refund the recovered amount to the petitioner.
Issues: The issues involved contractual dispute, unilateral modification of terms, and recovery of excess payment based on the corrigendum.
Ratio Decidendi: The court held that the respondent's unilateral modification of the agreement terms was illegal and arbitrary, and directed the refund of the recovered amount to the petitioner.
Final Decision: The corrigendum issued by the respondent was quashed, and the respondent was directed to refund the recovered amount to the petitioner.
INDIRA K. JAIN, J.
Rule. Rule made returnable forthwith. Heard finally with consent.
2. By way of present petition, the petitioner impugns corrigendum dated 17th November 2014, issued by the sole respondent BSNL, Nagpur.
3. The facts giving rise to the petition may be stated in nutshell, as under :
The petitioner is a proprietary concern registered with Directorate General of Resettlement (DGR), an attached Office of the Ex-servicemen Welfare Department, Ministry of Defence under the Union Government. The petitioner is engaged in providing security services throughout the State of Maharashtra to the CPSUs/ CPSEs and also to the Defence Establishment.
4. On 11th February 2013, the petitioner was sponsored by DGR authorities to provide Security Guards to the respondent. On the basis of sponsorship, petitioner participated in the tender process for deployment of Security Guards in urban and rural areas under the Nagpur Telecom District headed by respondent. The petitioner’s tender was approved and vide communication dated 3rd April, 2013 petitioner was informed to execute an agreement within seven days from the receipt of communication. Accordingly, on 25th April, 2013 agreement to provide Security Guards/Gunmen was executed between petitioner and respondent. This agreement was executed for the period of one year commencing from 1st May, 2013 to 30th April, 2014. The payment of service charges and contract was agreed to be as per the terms and conditions framed, finalised and approved by DGR, New Delhi.
5. On execution of agreement work order was issued to the petitioner on the same day. As per the work order, petitioner was required to provide services of 34 Security Guards to the respondent including the Guards in Koradi Exchange and CSD Stores. Petitioner deployed seven unarmed Guards and three armed Guards in Koradi Exchange and Stores.
6. On 1.5.2014 IInd work order was issued to petitioner to deploy Security Guards from 1st May, 2014 to 30th April, 2015. In both the work orders, Koradi Exhange and CSD Stores were shown in urban areas. Accordingly, the petitioner paid the wages and other benefits from 1st May, 2013 to October, 2014 to the Guards who were deployed as per the work orders.
7. It is the grievance of petitioner that on 17.11.2014 respondent issued a corrigendum and informed the petitioner regarding change in the category of urban to rural area in respect of Koradi Exchange and CSD Stores and further mentioned that DGR wages as per area ‘C’ would be applicable to Koradi Exchange and CSD Stores retrospectively, with effect from 1st May 2013. On the basis of corrigendum respondent started making recovery of the excess amount from the petitioner. Hence this petition.
8. It is the contention of petitioner that respondent has no power to amend the DGR wages as the said exercise is within the domain of the authority concerned. It is submitted that as per the terms and conditions in the agreement, petitioner had paid wages and other statutory benefits to his employees as per the norms of DGR. The contributions from the wages of employees were also regularly deducted and the same were deposited with the concerned authorities of Provident Fund and ESIC. Even the statutory dues till October, 2014 were paid to the employees. Petitioner vide communication dated 26.11.2014 lodged his protest and informed the respondent that no retrospective effect can be given as mentioned in the corrigendum dated 17th November, 2014. Petitioner was then informed vide communication dated 12.2.2015 that corrigendum issued was based on audit paras.
9. Learned counsel for petitioner submitted that respondent had recovered more than an amount of Rs. 9 lacs towards excess payment in view of the corrigendum dated 17th November, 2014 despite protest lodged by the petitioner and the said recovery is arbitrary and illegal. Learned counsel also submitted that the recovery is punitive in nature and without any fault on the part of petitioner. It is submi
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