Bombay High Court
Madhukar Bhikaji Patil vs The Union Of India on 12 December, 2013
Bench: A.H. Joshi, R.V. Ghuge
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.
WP/8114/2010
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
WP/8114/2010
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
WP/8114/2010
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
WP/8114/2010
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
WP/8114/2010
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.
WP/8114/2010
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
WP/8114/2010
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
WP/8114/2010
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.)
...
khs/Dec.2013/WP8114_10
