Shashi Thomas v. Cochin Shipyard Ltd. and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** ## **WP(C).No. 25351 of 2018** ## **PETITIONER:** ## **SHASHI THOMAS** **COLONEL (TS), INDIAN ARMY (RETIRED),PROPRIETOR, SHASHI THOMAS SECURITY AGENCY,DGR EMPANELMENT NO.3891,RESIDING AT MULLAMANGALAM, RP LANE,KOWDIAR P.O., THIRUVANANTHAPURAM - 695 033.** **BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** ## **RESPONDENTS:** |**1**|**COCHIN SHIPYARD LTD.**| |---|---| ||**ADMINISTRATIVE BUILDING,P.O.BAG NO.1653,**| ||**PERUMANOOR P.O.,KOCHI - 682 015,REPRESENTED BY**| ||**ITS MANAGING DIRECTOR.**| |**2**|**MANAGING DIRECTOR**| ||**COCHIN SHIPYAR LTD.,ADMINISTRATIVE BUILDING**| ||**P.O.,BAG NO.1653, PERUMANOOR P.O.,KOCHI - 682**| ||**015.**| |**3**|**KERALA STATE EX-SERVICEMEN DEVELOPMENT AND**| ||**REHABILITIATION CORPORATION**| ||**TC 14/2014, RESSCOTE LANE**| ||**VAZHUTHACAUD,THIRUVANANTHAPURAM - 695 010.**| ||**BY ADV. SMT.LATHA ANAND**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.25351/18 2 ## **JUDGMENT** - 1.Petitioner has approached this Court seeking the following prayers:- - i)declare that the petitioner's agency is entitled to be granted contract for security service in the 1[st] respondent in view of Ext.P4 sponsorship issued by DGR. ii)Issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to act in furtherance of Ext.P4 sponsorship and grant contract for security service in favour of petitioner. iii)Issue a writ in the nature of mandamus or any other appropriate writ direction or order restraining the respondents 1 and 2 from engaging the 3[rd] respondent or any other security agency in the 1[st] respondent in respect of the security work covered under Ext.P4 sponsorship.” - 2.Heard learned counsel for the petitioner and the learned standing counsel for respondents 1 and 2 as well as the learned standing counsel appearing for the 3[rd] respondent. - 3.The petitioner is an ex-serviceman, who had suffered disability on account of a mine blast injury. He runs a Directorate General of Resettlement ('DGR' for short) sponsored W.P.(C).No.25351/18 3 empanelled agency for providing auxiliary security services to Government and Government owned Public Sector undertakings. It is stated that Exhibit P2 guidelines have been issued by the DGR for the purpose of empanellment of secutiry agencies which contains provisions with regard to wages as also service charges to be paid to them. It is submitted by the learned counsel for the petitioner that the petitioner is bound by Exhibit P2 guidelines and cannot deviate from the rates prescribed in the same. It is stated that by Exhibit P3, all Public Sector Enterprises were directed to obtain direct contract security services either from the DGR or from State ESM Corporations, who were sponsoring exservicemen/security agencies on their panel. It is stated that on the basis of Exhibit P3, the 1[st] respondent had entrusted the DGR for sponsorship and the petitioner's agency had been sponsored. However, on the ground that the State agency had quoted a lower rate of service charge, the respondents have taken steps to prefer the State agency over the DGR sponsored agency. The contention of the learned counsel for the petitioner is that having opted for a DGR sponsored W.P.(C).No.25351/18 4 agency, the 1[st] respondent cannot alter its stand and require the petitioner to meet the rates quoted by the 3[rd] respondent which is not bound by Exhibit P2 guidelines. Relying on the decision of the Apex Court in **Union of India v. Anglo Afghan Agencies** [AIR 1963 SC 718], **M/s.Motilal Padampat Sugar Mills Co.Ltd. v. The State of Uttar Pradesh and others,** [AIR 1978 SC 621] and **Jamshed Hormush Wadia v. Board of Trustees** [(2004) 3 SCC 214]., it is contended that the 1[st] respondent, being the instrumentality of the State, cannot alter its stand and require the petitioner to meet the rates quoted by State ESM Corporation. 4.A detailed counter affidavit has been placed on record by respondents 1 and 2 wherein it has been stated that the issue raised is in the realm of contracts and the 1[st] respondent being a Public Sector Enterprise is duty bound to enter into a contract which is more financially viable. It is stated that the respondents have not permanently opted either for DGR sponsored agency or State Government ESM Corporation and W.P.(C).No.25351/18 5 that the request for sponsorship was submitted to the DGR on 21.2.2018, which was answered only on 11.6.2018. It is stated that DGR had sponsored only the petitioner's agency and that the State Government sponsored ESM had quoted much lower rate of service charges which would be more financially viable. It is further contended that the petitioner had offered to reduce service charges from 14% to 12% and that therefore it is clear that the rates provided in Exhibit P2 are also liable to be reduced in appropriate cases. It is stated that the guidelines do not prohibit respondents 1 and 2 from considering the proposal submitted by the 3[rd] respondent, since the 3[rd] respondent is also intended for upliftment of Exservicemen and the 3[rd] respondent is providing similar services to other Central Government and Public Sector Undertakings in the State. 5.The learned counsel for the 3[rd] respondent would contend that no decision has been taken as of now to engage the 3[rd] respondent and that the 3[rd] respondent had quoted to carry out the work at 5% service charges. W.P.(C).No.25351/18 6 - 6.A reply affidavit has also been filed on behalf of the petitioner contending that the petitioner is an ex-serviceman wounded in a Battle Casualty and suffered a mine blast injury on both his hands and that the contention that the petitioner's period of validity of registration would expire during the period of the contract is also not sustainable, since Exhibit P2 contains a specific provision that the registration would be valid till the term of the contract expires. - 7.I have considered the contentions advanced on either side. It is clear from the pleadings and materials on record that the respondents had chosen to send a requisition to the Director General of Resettlement for sponsoring a Security Agency for the purpose of providing auxilliary security services. Exhibit P4 sponsorship is duly forwarded by the DGR. The said sponsorship was sent on 11.6.2018 and the sponsored agency was required to establish contact with the employer on or before 26.7.2018, failing which the sponsorship is liable to be cancelled. It is stated that the petitioner had approached the W.P.(C).No.25351/18 7 1[st] respondent by Exhibit P5 dated 22.6.2018. In the above view of the matter, the contentions raised by respondents 1 and 2 that the sponsorship had expired on 26.7.2018 is absolutely untenable. Further the contention of the respondents is to the effect that the service charge quoted by the petitioner is higher than what is provided by the sponsored ESM and as such, respondents 1 and 2 are free to accept the rate quoted by the 3[rd] respondent, which is lower. 8.Considering the facts and circumstances of the instant case, I am of the opinion that after having sent a requisition to the DGR and required the DGR for a sponsorship and after entertaining the sponsorship forwarded by the DGR, it is not open to respondents 1 and 2 to contend that the rates of service charges quoted by the petitioner's agency is higher than what is provided by the 3[rd] respondent. It is the specific case of the petitioner that service charges are fixed by Exhibit P2 guidelines and cannot be reduced by the petitioner. The very purpose of providing for a Scheme for engagement of exservicemen for the conduct of auxiliary services in W.P.(C).No.25351/18 8 Government and Public Sector undertakings is to provide rehabilitation for ex-servicemen. The petitioner, who is an officer disabled in combat has been duly sponsored by the DGR. There is no contention raised that the petitioner has quoted any rate which is an excess of the guidelines as provided in Exhibit P2. In the above view of the matter, I am of the opinion that the contention that there has to be competitive tender as between the petitioner and the 3[rd] respondent cannot be accepted in view of the fact that the very terms under which the agencies function are different and the petitioner cannot deviate from the guidelines as provided in Exhibit P2. I am of the opinion that after having obtained sponsorship from the DGR, respondents 1 and 2 cannot now go back and contend that a competitive selection between a DGR sponsored agency and a State sponsored agency like the 3[rd] respondent is required to be conducted. I am of the opinion that since the petitioner has approached respondents 1 and 2 in pursuance of Exhibit P4 sponsorship, respondents 1 and 2 are duty bound to go ahead with the selection on the basis of the same. W.P.(C).No.25351/18 9 The writ petition is therefore allowed. There will be a direction to respondents 1 and 2 to act in furtherance of Exhibit P2 sponsorship in the matter of award of contract of auxillary security services. Appropriate action will be taken without delay. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** ## **sj** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF EMPANELMENT CERTIFICATE DATED 10/02/2016 ISSUED TO THE PETITIONER BY DGR.** **EXHIBIT P2 A TRUE COPY OF OFFICE MEMORANDUM FOR FUNCTIONING OF DGR EMPANELLED SECURITY AGENCIES ISSUED ON 09/07/2012.** **EXHIBIT P3 A TRUE COPY OF OFFICE MEMORANDUM DATED 04/10/2005 ISSUED BY THE MINISTRY OF HEAVY INDUSTRIES AND PUBLIC ENTERPRISES.** **EXHIBIT P4 A TRUE COPY OF SPONSORSHIP LETTER NO.2112/SA/2018/KERALA/3891/EMP DATED 11/06/2018 ISSUED BY THE DGR.** W.P.(C).No.25351/18 10 **EXHIBIT P5** **EXHIBIT P6** **EXHIBIT P7** - **EXHIBIT P8** **EXHIBIT P9** - **EXHIBIT P10** **EXHIBIT P11** **EXHIBIT P12** **A TRUE COPY OF SUBMISSION OF AGENCY DETAILS VIDE LETTER NO.STSA/CSL01/2018 DATED 22/06/2018.** **A RUE COPY OF TRAIL MAIL ISSUED BY OFFICE OF THE DGR TO THE 2ND RESPONDENT.** **A TRUE COPY OF REPRESENTATION SENT BY THE PETITIONER TO THE 2ND RESPONDENT.** - **A TRUE COPY OF EMAIL DATED 19/07/2017 RECEIVED FROM THE 2ND RESPONDENT.** **A TRUE COPY OF REPLY SENT TO THE 2ND RESPONDENT.** - **A TRUE COPY OF CERTIFICATE SHOWING BATTLE CASUALTY DETAILS.** - **A TRUE COPY OF E-MAIL MESSAGE RECEIVED FROM THE OFFICE OF 2ND RESPONDENT.** **A TRUE COPY OF RELEVANT PAGES OF STATUS REPORT PUBLISHED BY DGR AS ON 03 OCT 17 ALONG WITH RELEVANT PAGE OF OPERATIONAL STATUS AS ON 03/03/2016.** True copy PS to Judge