RIDHI SIDHI TRANSPORT Vs. CENTRAL COALFIELDS LIMITED

JUDGEMENT

(1.) THE present appeal is directed against the order dated 15.4.2013 passed in W.P.(C) No. 2066 of 2012 dismissing the writ petition filed by the appellant and declining to quash the order dated 10.1.2012 imposing penalty upon the appellant for final settlement of transport bills of coal. The respondent -CCL had notified one tender, vide tender notice No. CGM (CMC) Kuju Area/2010/27 dated 13.7.2010 for the work of loading and transporting of coal from Pundi OCP stock to Kedla Washery for a period of one year. The petitioner was awarded the said tender and the work order was issued on 3.11.2010 for a distance 25 -28 k.ms. and the quantity to be transported had been 4,00,000 M.T. and the value of the contract work awarded to the appellant had been Rs. 387.04 lakh. Pursuant to the decision of the Tender Committee, Letter of Intent contained in Memo No. 225 dated 7.10.2010 was issued in favour of the appellant and the appellant had entered into an agreement with the respondent on 15.11.2010. The appellant was also awarded another contract from Pundi OCP Stock to NR Siding for a distance of 16.95 k.ms. vide N.I.T. No. CGM (CMC) Kuju Area/2010/28 dated 13.7.2010 and the work order was issued on 17.11.2010 for a period from 1.11.2010 to 31.10.2011 and quantity to be transported was 4,00,000 M.T. and the value of award was Rs. 255.36 lakhs. In terms of both the NIT and award of work, the appellant had to transport coal from Pundi OCP to Kedla Washery and NR Siding through the specified route as mentioned in the contract.

(2.) THE case of the appellant is that due to coal found in the route, the respondent themselves took decision to extract the coal from the open cast mine which falls enroute and disrupted the route. In terms of Clause 6.0 of the terms and conditions of the agreement, contractor's trucks should ply only on specified route/roads and in case plying of the trucks on any other route/roads becomes necessary due to any reasons, prior approval for the same shall be taken by the contractor from the Project Officer/General Manager and in case of violation of this provision, penalty may be imposed on the contractor and/or the contract terminated. According to the appellant they made representation to the Deputy General Manager/Agent seeking approval for the change of route and according to the appellant, by the change of route, actual difference is more than 1 k.m. Further, case of the appellant is that by letter dated 17.2.2011 the appellant consented to the transportation of the coal by the new proposed route from Pundi OCP to Kedla Washery and NR Siding and also consented not to claim any extra rate for the same. However, by letter dated 30.6.2011, the appellant informed CCL that they are not in a position to continue with the transportation work and that the existing route is very higher distance than the tendered route and the local hired tipper owners are not ready to transport the coal in long distance and discontinued the transportation from 25.4.2011 for NR Siding and from 21.6.2011 for Kedla Washery. The impugned order dated 10.1.2012 was passed by the respondent -CCL in respect of transportation of coal from Pundi OCP to Kedla Washery, whereas against the targeted quantity of 4,00,000 M.T. coal, the appellant had transported only 49,410.79 M.T. and a penalty of Rs. 30,90,989/ - was imposed. In so far as the transportation of coal from Pundi Stock to NR Siding, as against 4,00,000 M.T. coal, the appellant was said to have transported only 69,421 M.T. coal and the appellant was imposed penalty of Rs. 17,44,041/ -. Being aggrieved by the said order dated 10.1.2012 levying penalty, the appellant had preferred the writ petition.

(3.) LEARNED counsel for the appellant, Mr. Ajit Kumar submitted that though it is well settled that in case of non -statutory contracts, in case of violation of conditions of the contracts, the writ petition is not maintainable, but in those cases, where the orders suffer from arbitrariness and violation of natural justice, review under Article 226 of the Constitution of India is not precluded. Learned counsel further submitted that as per Clause 6.0 of the general terms and conditions of the contract, the route of transportation of the coal could not have been changed and in case of change of the route of transportation of the coal could only be after obtaining the approval of the authorities of the C.C.L. and without granting such approval for change of route, the respondents acted arbitrarily and in violation of principles of natural justice issued the impugned notice levying penalty of Rs. 30,90,989/ - (Rs. Thirty lacs ninety thousand nine hundred eighty nine) (in case of contract No. 1) and Rs. 17,44,041/ - (Rs. Seventeen lacs forty four thousand forty one) (in case of contract No. 2) and, therefore, the writ petition is maintainable. In support of his contention, learned counsel for the appellant relied upon the judgment rendered in the case of ABL International Ltd. & Another vs. Export Credit Guarantee Corporation of India Ltd. and Others reported in : (2004) 3 SCC 553 and in the case of Noble Resources Ltd. vs. State of Orissa and Another reported in : (2006) 10 SCC 236.