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High Court Of Delhi
S.N.ENGINIRING WORKS - Appellant
Versus
MAHANAGAR TELEPHONE NIGAM LIMITED - Respondent
Decided On : 04/12/1996
Held:
It is pertinent to note that the petitioners are not prohibited from carrying on, business activity of the nature involved in the contracts which they wish to enter with the MTNL. All that has been said is that MTNL would not deal with such contractors as have their relations of a defined category serving in the MTNL. The fundamental right to trade or business of the petitioners is not at all affected. The validity of the restriction so imposed has to be tested not by reference to Clause (6) of Article 19 of the Constitution but on the anvil of Article 14 of the Constitution. Since entering into the contract is not an employment the applicability of Article 16 of the Constitution is also not attracted.
The policy decision taken by the respondent MTNL of not entering into dealing with such persons as have relations of the specified categories serving in the MTNL has nothing unreasonable or arbitrary about it. Such exclusion is neither aimless nor insensible. There is a public purpose sought to be achieved. It aims at achieving high standard of public morality in contractual dealings of the MTNL. Nepotism and favourit is sought to be avoided, both at the stage of choosing the contractors while finalising the tenders and during the course of implementation of the work under the contract. Quality of work would be of higher standard if there be no one in the MTNL to favor the contractor performing the contractual obligations. Those relations who are serving in the MTNL would also be protected and would be able to serve the MTNL freely and fearlessly as there would be no possibility of their being accused of having shown favours or exercised their influence or misused their presence in MTNL in extracting favours for their relations. The policy would also ensure equitable distribution of work amongst the contractors. The category of relations has been defined. The restriction imposed on dealing with the relations of the employees of the MTNL is, thereforee, neither arbitrary, nor unreasonable nor excessive.
Words & Phrases - "Their corresponding in — laws" — Meaning of — Discussed.
The language is susceptible to two meanings. It may mean each and every in — laws of the relations listed in the declaration situated howsoever remotely or it may mean the relations listed and each of that relation prelisted — with in — law suffixed to it such as parent — in — law, grand parent — in — law, children — in — law &c.. Prima facie it appears that if all the in — law of the relations listed in the declaration were to be included in the prohibited degree without defining the extent and distance of relationship of the in — laws, then a remotest possible relationship which may not even be in the knowledge of the contractor would fall within the prohibition. That would be unreasonable. It is a settled canon of interpretation that if a language be susceptible of two meanings then one which would render it arbitrary and unreasonable and ultra virus has to be avoided and the other which would render it reasonable and inlra virus has to be accepted. An expression can also be read down or suitably restricted in its meaning if it would enable its constitutionality being upheld. In our opinion, the expression their corresponding in -laws should be assigned a restricted meaning so as to make it reasonable, sensible and definite. The expression their corresponding in laws must be read to mean in — laws of first degree only.
( 1 ) THIS order shall govern the disposal of CWPs 4686/95, 4687/95 and 4601/95. All the three petitions raising common questions of fact and law in the background of similar events were heard analogously.
( 2 ) IN C. W. P. No. 4686/95 M/s. S. N. Engineering Works, petitioner No. 1, is the sole proprietary firm of Shri Harish Kumar Bagchi, petitioner No. 2. The petitioner is on the approved list of contractors of Mahanagar Telephone Nigarn Ltd (hereafter MTNL, for short) from 1988 onwards. It has been getting annual rate contracts ever since 1988 in respect of the works of trenching and laying cables etc. The petitioner s elder brother - Shri M. K. Bagchi, is serving as Junior Telecom Officer in MTNL. On promotion he becomes Sub- Divisional Officer ( Training Co-ordination ). In all the tenders for the years from 1988 to 1991 the petitioner had made a mention of the fact of his brother working as Junior Telecom officer in MTNL. In subsequent years, from 1991 onwards also, the petitioner had declared that his elder brother was holding the post of Assistant Engineer (SDO, Training Co-ordination) in the MTNL, as the petitioner s brother was promoted from the post of Junior Engineer to the Post of Assistant Engineer; the post of SDO being equivalent to the post of Assistant Engineer.
2. 1 On 15. 9. 95, a notice was issued to the petitioner requiring him to show cause why he be not blacklisted as the petitioner s elder brother Shri M. K. Bagchi was working as SDO in the MTNL. The petitioner gave a reply stating that the said fact was not concealed by the petitioner but was rather made known to the respondent while submitting the tenders. It was also submitted that though Mr M. K. Bagchi the elder brother of the petitioner, was serving in MTNL he was not in any way connected or associated with the contract of the petitioner; he had no role to play either in inviting or finalising the tenders or in the execution of work thereafter and so this fact had no relevance nor did it disqualify the petitioner from bidding the tenders, nor did it vitiate the contract entered into by him.
2. 2 On 1. 12. 95, the Asstt General Manager (MM-II) of MTNL has passed an order, Annexure P-7, directing the petitioner to be removed from the approved list of the contractors and further debarring him for further award of the works. His all the existing contracts have also been cancelled. The ground for the impugned action, as stated in the order, is that the petitioner had incurred disqualification as per CI. J of NIT as also as per declaration Appendix-5 of NIT according to which a near relative of an employee in any capacity of MTNL/dot was disqualified from entering into contract with MTNL.
( 3 ) IN C. W. P. No. 4687/95 the petitioner No. l M/s S. N. Construction is the sole proprietory concern of Nishith Kumar Bagchi, the petitioner No. 2. Nishith Kumar Bagchi ( Petitioner No. 2), Harish Kumar Bagchi (petitioner No. 2 in CWP 4686/95) and M. K. Bagchi ( the official in MTNL) are real brothers.
3. 1 This petitioner had also made no secret and invariably declared in his tenders that his brother was serving as an official in the MTNL.
3. 2 The petitioner was served with a notice dated 15. 9. 95 issued by DGM (MM-I) requiring him to show cause why his further business with MTNL be not discontinued on account of his near relative working in MTNL. In spite of the petitioner having shown cause, the GM (MM- II) has passed an order dated 1. 12. 1995, (Annexure P7), debarring the petitioner from further award of works, removing him from the approved list of contractors and cancelling all his existing contracts with MTNL.
( 4 ) IN CWP No. 4686/95, works and the materials as to which the petitioner (M/s. S. N. Engineering Works) has been adversely affected are stated as under by the petitioner therein ( vide Annexure P/8) :-
( 5 ) IN CWP No. 4687/95 the details of the works and the material to which the petitioner (M/s. S. N. Construction) is likel
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