CAPT RAJIB LOCHAN DEY Vs. UNION OF INDIA

JUDGEMENT

(1.) WHETHER or not public law remedy of writs would be available to the petitioner, in the given set of facts, is the core question involved in this writ petition.

(2.) CERTAIN facts are not in dispute. The petitioner is a retired Air Force officer. After his retirement from service, the petitioner had made an application and was sponsored by the Ministry of Defence for being appointed as Toll collection Agent at Garui near Asansol on National Highway No. 2 in the state of West Bengal between Barwa Adda in Jharkhand and Panagarh in west Bengal. Contract was executed by and between the National Highways authority of India (hereafter NHAI) and the petitioner on 6. 6. 06 appointing his proprietorship firm Prahari Security Service for the purpose of collection of user fees of the concerned stretch of the highway with effect from 16. 6. 06. After the petitioner took over the work of collection of user fees, he faced several problems in collecting such fees which were reported to the NHAI as well as to the local police authorities praying for remedial action. The NHAI had also urged the local administration to look into the problems faced by the petitioner and to do the needful. In due course, the NHAI on detecting that realization of user fees was not at par with its expectation had issued a show-cause notice dated 12. 9. 06 by which the petitioner was informed that user fee collection amount was decreasing day by day and he was asked to show-cause as to why his engagement in terms of the contract shall not be discontinued. The petitioner replied by his fetter dated 18. 9. 06 citing various grounds for which there had been decrease in collection of user fees. By another letter dated 27. 9. 06, the petitioner was asked to further show-cause as to why his contract for user fee collection at Garui Toll Plaza shall not be terminated in view of the report submitted by the agency appointed by the nhai which reflected that between 25. 6. 06 and 30. 6. 06 a number of users had been successful in crossing the toll plaza after paying lesser amount without issuance of any receipt. The said notice was replied to by the petitioner by his letter dated 6. 10. 06 explaining therein the circumstances for which there had been decrease in collection of user fees and that remedial steps had taken by him to realize maximum fees. The NHAI by its letter dated 12. 10. 06 conveyed to the petitioner that an amount of Rs. 52,777/- had been assessed as penalty arising out of his poor performance which he was required to deposit within a period of seven days from date of issuance of the same. It was further informed that NHAI reserved the right to take further action. The petitioner had duty deposited the amount assessed on account of penalty, on 28. 10. 06. However, by its letter dated 8. 1. 07, the NHAI on invoking power conferred by Clause 35 of the contract conveyed "notice of termination" of the said contract with effect from 8. 00 hours on 1. 2. 07. The petitioner was requested to hand over charge of the toll plaza at Garui free from all encumbrances on the stipulated time and date along with necessary documents, as indicated therein.

(3.) THE notice dated 8. 1. 07 issued by the NHAI terminating the contract forms the subject matter of challenge in this writ petition.