WP/8114/2010
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8114 OF 2010
Madhukar Bhikaji Patil,
Age 60 Years, Occ. Business,
R/o Vithal Mandir, Bhusawal,
Daluka Bhusawal, Dist.Jalgaon. ..Petitioner
Versus
1. The Union of India,
Through the Secretary,
Ministry of Railway,
New Delhi.
2. The Principal,
Zonal Railway's Training
Institute, Bhusawal,
District Jalgaon.
3. Zonal Railway's
Training Institute
of Central Railway,
Bhusawal,Dist.Jalgaon. ..Respondents
...
Shri Mukul S. Kulkarni, Advocate for petitioner &
Shri M. N. Navandar, Advocate for Respondents.
...
CORAM : A.H.JOSHI AND
RAVINDRA V. GHUGE, JJ.
Reserved on: December 9, 2013
Pronounced on: December 12, 2013
JUDGMENT:
(Per Ravindra V. Ghuge, J.) :-
1. By an order dated 18.10.2010, this Court had admitted the writ petition.
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2. The contention of the petitioner in this petition was that:-
(a) the respondent No.3 had floated a tender for supply of sugar.
(b) The petitioner was a successful bidder and was allotted the tender.
(c) However, since the prices of sugar touched sky high, the petitioner was constrained to follow the due procedure as prescribed in the contract for termination of the contract and issued notice of termination dated 20.1.2009.
(d) The respondents accepted the notice by their communication dated 28.1.2009 and refunded the security deposit of the petitioner in view of the satisfactory completion of tender work till the date of termination.
(e) On 12.3.2009, another tender was floated by the respondents for the period of 8.5.2009 to 7.5.2010.
(f) The petitioner participated in the tender process. The petitioner's tender ::: Downloaded on - 23/12/2013 20:34:43 ::: WP/8114/2010 3 was accepted and the contract for supply was allotted to the petitioner.
(g) Even on this occasion, unfortunately, due to the increase in price of sugar/ grocery, the petitioner issued a notice of termination dated 25.5.2009.
(h) The respondent No.2, by it's communication dated 3.6.2009, accepted the notice of termination and directed the petitioner to continue to supply the sugar for a period of two months.
3. After the above said termination of the contract by the petitioner, the respondents resorted to a fresh bid process and a person by name Ravi Pancham became a successful bidder in the process. Since he also terminated his contract, within the contract period, fresh tender process was initiated.
4. The petitioner submitted his bid on 16.7.2009. By communication dated 22.9.2009, the petitioner was informed that he has been debarred from bidding in the future tenders of ::: Downloaded on - 23/12/2013 20:34:43 ::: WP/8114/2010 4 the respondents for a period of two years as he had adopted a practice of accepting the contract and then interrupting supplies and creating grave hurdle in day to day working of the hostel. The petitioner contends that no opportunity of hearing was given to him before issuing order of black listing.
5. This communication dated 22.9.2009 was challenged by the petitioner in Writ Petition No.6790 of 2009. By the order dated 3.3.2010, this Court disposed the writ petition with direction that the respondents shall give an ex-
post facto hearing, to the petitioner on the impugned communication.
6. The petitioner approached the Honourable Apex Court by filing Special Leave Petition (Civil) No. 15172 of 2010 for challenging the order of this Court. The said order was stayed on 14.5.2010. However, by an order dated 5.7.2010, the Honourable Apex Court dismissed ::: Downloaded on - 23/12/2013 20:34:43 ::: WP/8114/2010 5 the SLP of the petitioner and granted him liberty to approach the respondent No.2.
7. The petitioner received a communication from the respondent No.2, by which he was called for hearing on 7.7.2010. The petitioner attended the hearing and furnished his written submissions.
8. By a communication dated 7.7.2010, the petitioner was informed that personal hearing is over and the report of the hearing will be submitted to the Honourable Supreme Court as per it's order dated 5.7.2010.
9. By a communication dated 14.7.2010, the petitioner submitted a representation to the respondent No.2. By a communication dated 15.7.2010, the respondent No.2 informed that the decision of debarring the petitioner from participating in the contract process as per order dated 22.9.2009 is maintained and the ::: Downloaded on - 23/12/2013 20:34:43 ::: WP/8114/2010 6 submissions of the petitioner are rejected.
10. In these premises, the petitioner has filed this Writ Petition for challenging the order dated 15.7.2010, on the following grounds:-
(a) The order of debarring the petitioner is baseless.
(b) The hearing on his representation, pursuant to the order of the Honourable Supreme Court was rendered a farce.
(c) The order of debarring the petitioner, in view of the acceptance by the respondent No.2 of all termination notices, without any objection, clearly indicates that the impugned action was vindictive in nature.
(d) When notices of termination of contracts were received and accepted by the respondent No.2, no blame could have been placed on the petitioner so as to debar him from conducting any business for two years with the respondents.::: Downloaded on - 23/12/2013 20:34:43 :::
WP/8114/2010 7
11. We find from the fact situation emerging from the petition paper book and after going through the affidavit-in-reply filed on behalf of the respondents that the petitioner was given an opportunity of hearing pursuant to the orders of the Honourable Apex Court. However, order dated 22.9.2009 appears to be a stigmatic order.
12. After giving an opportunity of hearing to the petitioner, as observed above, the petitioner was heard. Thus, as is seen from the petition paper book that a detailed order on the personal hearing running into three pages has been supplied to Shri A.K.Sharma, learned Additional Solicitor General of India, New Delhi by the respondent No.2 along with it's covering letter dated 7.7.2010, however, copy of the report was not given to the petitioner.
13. Letter dated 15.7.2010 is addressed to the petitioner, wherein, reference to the personal hearing dated 7.7.2010 and the report ::: Downloaded on - 23/12/2013 20:34:43 ::: WP/8114/2010 8 having been submitted to the learned Additional Solicitor General of India, is made.
14. In our view, the said report is an order passed by the respondents, which ought to have been supplied to the petitioner. Though we find that the said order is a well reasoned order and the factors resulting in grave hardships caused to the respondents are considered in the said order, it was incumbent upon the respondents to supply the copy of the said report to the petitioner.
15. In the said communication, the decision of debarring the petitioner for two years is reiterated.
16. The copy of the said order is on record at pages 84 to 86 of the petition paper book.
In the event, the petitioner feels aggrieved by the same, he is at liberty to take recourse to such a remedy, as may be available to him in law ::: Downloaded on - 23/12/2013 20:34:43 ::: WP/8114/2010 9 against said speaking order dated 7.7.2010.
17. Now, the period of debarring the petitioner is already over and the petition is rendered infructuous. Therefore, we are not inclined to consider the legality and the merits of the said order in this petition. Since a copy of the said report of the personal hearing was not served upon the petitioner and since it has not been challenged in the petition, we refrain from entering into the legality or correctness of the said order.
18. In the light of the above, Writ Petition No. 8114 of 2010 is dismissed. Rule stands discharged. Parties are directed to bear own costs.
(RAVINDRA V. GHUGE, J.) (A.H.JOSHI, J.) ...
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