Calcutta High Court: While deciding a matter where the contractors had challenged certain Office Orders issued by WBSEDCL, which withhold work from contractors if there is an accident due to improper shutdown at the work sites where the contractors’ laborers are working for WBSEDCL, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., set aside the impugned Office Order and restrained WBSEDCL from taking penal action against contractors until the committee’s report is submitted.
The Court issued following directions:
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WBSEDCL cannot take penal action or blacklist contractors until the committee formed in the 05-10-2018 meeting submits its report.
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The committee should be constituted within a fortnight and submit its report within four weeks.
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An inquiry must be conducted into each accident due to improper shutdown, with a four-week time limit for completion.
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WBSEDCL can take appropriate action against contractors and its own officers based on the report’s findings.
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Show cause notice and a hearing should be provided to contractors before blacklisting them, based on the report.
Brief Facts
In the instant matter, the petitioners, who are the contractors working for the West Bengal State Electricity Distribution Co. Ltd. (WBSEDCL) preferred a writ petition challenging Office Orders issued by the WBSEDCL stipulating that work would be withheld from contractors if accidents occurred due to improper shutdown at the work sites where the contractors’ laborers were employed by WBSEDCL. The contractors argued that these Office Orders were biased and effectively blacklisted them for accidents that may not have been their fault.
Key Office Orders
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17-05-2013: Requires skilled labor for High Tension shutdown and one skilled and one unskilled labor for each 8-hour shift with proper expertise and experience.
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12-05-2017: Imposes penalties for fatal accidents due to improper shutdown, holding both WBSEDCL officers and contractors accountable.
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28-07-2022: Temporarily withholds work orders in case of fatal work accidents until findings of the Permanent Enquiry Committee or Departmental Enquiry are concluded, with no specified time limit.
Parties’ Contentions
The petitioners contended that the WBSEDCL officials are technically equipped and in charge of supervision at work sites, and contractors’ liability ends with laborers entering the site with proper PPEs. It was contended that the Office Orders will lead to indefinite blacklisting without proper investigation or due process. It was further contended that a committee was formed to address contractor’ grievances, and WBSEDCL agreed to maintain the status quo until the committee submitted a report.
The respondent contended that these matters were part of a policy decision to protect laborers and that contractors had a responsibility to ensure laborers’ compliance with safety rules. It was stated that the Office Orders do not constitute blacklisting but a temporary withholding of work until accident liability is determined, and final steps will be taken only after a proper inquiry. It was further contended that the WBSEDCL officials and employees are equally liable for accidents and face suspension during investigations.
Moot Point
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Whether the Office Orders issued by WBSEDCL were justified or biased against contractors?
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Could the contractors be blacklisted without a proper inquiry?
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What should be the extent of liability of contractors and WBSEDCL in case of accidents at work sites?
Court’s Assessment
The Court observed that there is no clear-cut division between the exact liabilities of the contractor and WBSEDCL in cases of accidents. It was observed that the Contractors have a duty to ensure their labor force complies with safety norms, and WBSEDCL is responsible for overall supervision.
The Court observed that the impugned Office Orders envisaged a co-equal liability of WBSEDCL officers and contractors for accidents, however the impugned Office Orders lack an outer time limit for completing inquiries, granting unilateral discretion to WBSEDCL.
“…one sticking point in the Office Orders is that although enquiry is contemplated therein to fix liability, there is no outer time limit of the completion of such enquiry, thus leaving it to the whims of the WBSEDCL and its enquiring body as regards the period for which the contractors would not be allotted work. Such unilateral vesting of discretion regarding the length of blacklisting cannot be countenanced in law, that too, without any proper opportunity of hearing.”
The Court held that the WBSEDCL could not take any penal action, including blacklisting, against contractors based on the impugned Office Orders until a report was submitted by the committee formed in the 05-10-2018 meeting between WBSEDCL officials and contractor associations.
The Court held that the committee was to be constituted within a fortnight, and its report was to be filed within four weeks of the court’s judgment. The Court mandated an inquiry into each accident resulting from improper shutdown at work sites, with a maximum limit of four weeks for each inquiry, including the submission of the report.
The Court held that the WBSEDCL had the authority to take appropriate actions against contractors and its own officers based on the committee’s report and its own guidelines. However, contractors should not be blacklisted or debarred from further work until the report is filed.
The Court further held that in the event WBSEDCL proposed blacklisting contractors based on the report, a show cause notice and a hearing were required to be provided to the contractors.
Court’s Decision
The Court set aside the impugned Office Order dated 28-07-2022, and established guidelines for the investigation of accidents and the potential blacklisting of contractors by WBSEDCL, ensuring a fair and transparent process.
[Nihar Kanti Rakshit v. State of W.B., 2023 SCC OnLine Cal 3051, order dated 25-09-2023]
*Judgment by Justice Sabyasachi Bhattacharyya
Advocates who appeared in this case :
Mr. Biswaroop Bhattacharya, Mr. Anindya Sundar Das, Mr. Shaunak Ghosh, Mr. Mansaram Mandal, Ms. Srijani Biswas, Counsel for the Petitioners
Ms. Amrita Panja Moulick, Counsel for the State
Mr. Sumit Kumar Panja Mr. Saurav Chaudhuri, Counsel for the WBSEDCL
