The main legal point established in the judgment is that the issue of assignment of the contract or only assignment of works under the contract should be addressed by an arbitral tribunal, and the interim arrangement for the installation, operation, and maintenance of the weighbridges was permitted to continue in the public interest.

JUDGMENT

Subrata Talukdar, J. - Under challenge in this appeal is the Judgement and Order dated 4th of February 2021 in the writ petition being WPa 4795 of 2020 along with its connected applications. The writ petitioner, i.e. Hindustan Steelworks Construction Ltd. (for short HSCL), is the Respondent No.1 in this appeal. The Board of Trustees for the Port of Kolkata or, the Kolkata Port Trust (for short KoPT), the Respondent in the writ petition, is the appellant. One Fairfax Industries Ltd. (for short Fairfax) is the Respondent No.3 to this appeal. The Union of India through its Secretary, Ministry of Heavy Industry and Public Enterprises of the Department of Public Enterprises (for short hereinafter referred to only as the Ministry) is the Respondent No.2 to the appeal

The issue before the Hon'ble Single Bench was the termination of the contract for installation, operation and maintenance of weighbridges awarded to HSCL by KoPT for the Haldia Dock Complex (for short HDC). The termination of the contract was on the basis of the alleged assignment of the contract by HSCL in favour of Fairfax.

HSCL had argued before the Hon'ble Single Bench that it is a Government Company and therefore governed by regulations of the Ministry/other relevant regulations of the Union of India as issued from time to time. Such regulations forbid HSCL from engaging manpower on its own and also to directly avail of obligations imposed qua payment of Provident Fund and other statutory dues.

HSCL had pointed out before the Hon'ble Single Bench that it was however not barred from participating in a work of the nature as contemplated by the installation, operation and maintenance of weighbridges through tender called by KoPT. It was further submitted that KoPT was in knowledge of the fact that HSCL could perform the works under the contract through engagement of an appropriate agency, in this case Fairfax. The Hon'ble Single Bench was also apprised of the fact that the status of HSCL as a Government Company which could be the beneficiary of a tender through performance of the works by an agency of its choice was not only known to KoPT but, similar contracts for installation, operation and maintenance of weighbridges with respect to the Kolkata Dock Complex (for short KDC) had been earlier awarded by KoPT in favour of HSCL.

It was submitted before the Hon'ble Single Bench that the earlier contracts at the KDC were being successfully installed, operated and maintained by HSCL through appointment of an appropriate agency. KoPT had acted qua the earlier contracts with HSCL in a manner which recognized the role of HSCL as the sole awardee of the tender responsible for discharging all statutory obligations required by the tender contract. It was therefore urged before the Hon'ble Single Bench by the writ petitioner that with respect to a similar and the latter contract in respect of HDC, KoPT could not turn around and terminate the contract after issuing the Commissioning Certificate in favour of HSCL although KoPT was completely apprised of the fact that the contract was to be performed by an agency appointed by HSCL under its full control.

The above arguments also form the basis of the stand of HSCL before the appellate Court.

Per Contra, KoPT submitted before the Hon'ble Single Bench that the terms of the works to be performed by the agency, i.e. Fairfax qua the Memorandum of Understanding (MoU) entered into between HSCL and Fairfax, demonstrate that it is not merely an assignment of works/ services under the contract but an assignment of the contract itself. KoPT took the stand before the Hon'ble Single Bench that the assignment of the entire contract is barred by the terms of the contract itself entered into inter se KoPT and HSCL .

It is submitted that the installation, operation and maintenance of weighbridges at the KDC is altogether an earlier and different contract. The performance of an earlier and different contract cannot be pressed into service by HSCL qu