Expert Aryan Security Services vs South Eastern Coalfields Ltd ... on 8 December, 2011

Chattisgarh High Court

WRIT PETITION NO 1775 OF 2005

Expert Aryan Security Services

...Petitioners

Versus

South Eastern Coalfields Ltd & Another ...Respondents

! Shri Anand Dadariya Advocate for the petitioner

^ Shri P S Koshy Advocate for the respondents

CORAM: Honble Shri Satish K Agnihotri J

Dated: 08/12/2011

: Judgement

ORDER

(Passed on this 08th day of December, 2011) (Writ Petition under Article 226/227 of the Constitution of India)

1. By this petition, the petitioner seeks a direction to

the respondents to clear all the recoveries/unauthorized

deductions made from monthly bills of the petitioner, and

also release payment pertaining to all extra duty bills

pending with the respondents No.1 & 2. The total amount due

to petitioner is more than Rs. 19,39,089/- (Nineteen lakh,

thirty nine thousand and eighty nine only) and the same may

be released within prescribed time with interest.

2. The case of the petitioner is that the petitioner entered into an agreement with the respondent No.1 to provide security services to S.E.C.L. Kusmunda Area, District Korba, on 24.11.2003. Thereafter, it was again renewed. The respondents began deducting monthly wage bills and also extra duty wage bills. Thus, this petition for recovery of the amount, as according to the petitioner amount is all admitted.

3. Learned counsel appearing for the respondents dispute the amount, which was sought to be paid to the petitioner on account of different heads as under : (a) Extra Duty Wage Bill (May 03-Aug 04) - Rs.3,60,000/-

(b) Extra Duty Wage Bill (Sep-Oct 04) - Rs.2,04,648/-

(d) Addl Wage Bill for January 05 - Rs. 1,60,151/- on account of Panchayat Elections (C.G.).

(e) Addl Wage Bill for January 05 - Rs. 1,09,567/- on account of Kusmunda Area internal extra deployment.

(f) Addl Wage Bill for January 05 - Rs. 649/- on account of Kusmunda Area internal extra deployment.

(g) Addl Wage Bill for January 05 - Rs. 53,758/- on account of Kusmunda Area internal extra deployment.

(h) Addl Wage Bill for December 04 - Rs. 1,33,987/- on account of Kusmunda Area internal extra deployment.

(i) Amount withheld without any valid ground - Rs. 1,42,469/- (Wage Bill Sep 04) (j) Amount withheld/deducted (not clear) from Wage Bill of Dec 2004 - Rs. 1,87,000/-

(k) Amount withheld/deducted (not clear) from Wage Bill of Jan 2005 - Rs. 1,50,000/-

(l) Total forced recovery/ deduction on account of Group Insurance / ESIC (over the period Sep. 03 - Feb 05) - Rs. 3,24,000/-

4. Shri Dadariya, learned counsel appearing for the

petitioner submits that since the amount are not in dispute.

Thus, the writ petition is maintainable and a direction to

that effect may be issued against the respondents.

5. On the other hand, Shri Koshy, learned counsel appearing for the respondents submits that the writ petition amounts to suit for recovery of money, as several items are disputed and there is no settled amount, as claimed by the petitioner. Shri Koshy, further submits that it is well settled principles of law that for recovery of money, the petitioner may not invoke extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

6. Without going into the merits of the case, on perusal of the pleadings, it appears that there is a disputed facts with regard to several issues, which cannot be settled by this Court in exercise of its writ jurisdiction.

7. The Supreme Court in N.T. Abraham v. State of Kerala & Others1 observed as under :

"3. The High Court has rightly come to the conclusion that the dispute between the parties is of a civil nature which has to be agitated in an appropriate forum. Whether there has been a bona fide mistake or not in paying the excess amount to the appellant and whether the appellant is entitled to retain the said amount of Rs 1,59,939.75 or not, are all matters which have to be decided under civil law and these disputes cannot be decided under Article 226 of the Constitution of India."

8. In ABL International Ltd. & Another v. Export Credit

Guarantee Corporation of India Ltd. & Others2 relied on by

the learned counsel for the petitioner, the Supreme Court

held as under :

"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.

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.

9. In P.R. Murlidharan & Others v. Swami Dharmananda

Teertha Padar & Others3, the Supreme Court observed that :

"12. ..A person could not approach the High Court for the purpose of determining such disputed questions of fact which are beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it is also involved determination of disputed questions of fact..

13. Furthermore the jurisdiction of the civil court is wide and plenary in a case of this nature, a writ proceeding cannot be a substitute for a civil suit."

10. In Nobel Resources Ltd. v. State of Orissa & Others4,

while making the above position more clear, observed as

under :

"18. It may, however, be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and, thus, for determination thereof, examination of witnesses would be necessary; it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India."

11. In Kisan Sahkari Chini Mills Limited & Others v. Vardan

Linkers & Others5 the Supreme Court held as under :

"18. Ordinarily, the remedy available for a party complaining of breach of contract lies for seeking damages. He will be entitled to the relief of specific performance, if the contract is capable of being specifically enforced in law. The remedies for a breach of contract being purely in the realm of contract are dealt with by civil courts. The public law remedy, by way of a writ petition under Article 226 of the Constitution of India, is not available to seek damages for breach of contract or specific performance of contract. However, where the contractual dispute has a public law element, the power of judicial review under Article 226 of the Constitution of India may be invoked."

12. In the instant case, as aforestated, all the facts are

disputed and the proper course for recovery of money, if

any, would be a competent jurisdictional Civil Court.

13. In ABL International Ltd. & Another (supra), the Supreme Court, while elaborating power of the High Court under Article 226 of the Constitution, laid down that the High Court can go into all the disputes, even if it is required, oral evidence can also be taken. However, the said exercise may be done only in an appropriate case. If all the cases, wherein, disputed question of facts are involved and entertained by the High Court in exercise of its jurisdiction, the well laid down procedure for determination of the disputes as provided under the Code of Civil Procedure and other relevant statutes would be irrelevant. Thus, in exceptional circumstances, as has been held by the Supreme Court also in ABL International Ltd. & Another, the writ jurisdiction may also be invoked.

14. In the case on hand, it is purely a contractual matter, wherein, the dispute with regard to the amount is writ large on every heads. Thus, this writ petition is not maintainable, as observed by the Supreme Court in P.R. Murlidharan & Others, Nobel Resources Ltd, & Kisan Sahkari Chini Mills Limited & Others (supra).

15. For the reasons mentioned hereinabove, the writ petition is dismissed, as not maintainable. However, liberty is reserved to the petitioner to take recourse to appropriate forum that may be available under the provisions of law.

16. No order asto costs.

JUDGE