Bombay High Court
M/S. H. D. Enterprises, Thr. Its ... vs Western Coal Field Limited (Wcl), Thr. ... on 30 November, 2023
Author: A.S. Chandurkar
Bench: A. S. Chandurkar
2023:BHC-NAG:16598-DB
WPs 5900-23 & 6197-23 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5900/2023
M/s H.D. Enterprises, A registered partnership firm,
through its Partner Harilal S/o Devji Patel, aged
about 63 yrs, Occ.Business, Off at : 501-503, Siddharth
Complex, R.C. Dutt Road, Vadodara, Gujarat. PETITIONER
.....VERSUS.....
Western Coalfields Limited (WCL), Through its
General Manager (CMC), Office at: Coal Estate,
Civil Lines, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 6197/2023
M/s Gaurav Contracts Co., 122, Pooja Complex,
Station Road, Bhuj Kutch, Gujarat - 370 001. PETITIONER
.....VERSUS.....
Western Coalfields Limited (WCL), Through its
General Manager (CMC), Office at: Coal Estate,
Civil Lines, Nagpur. RESPONDENT
Shri Sunil Manohar, Senior Advocate with Shri Rohan Deo, counsel for the
petitioner in Writ Petition No. 5900/2023.
Yashowardhan Sambre, counsel for the petitioner in Writ Petition No.6197/2023.
Shri Chaitanya Samudra, counsel for the respondent in both the writ petitions.
CORAM : A. S. CHANDURKAR AND MRS VRUSHALI V. JOSHI, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD : SEPTEMBER 26, 2023
DATE ON WHICH JUDGMENT IS PRONOUNCED : NOVEMBER 30, 2023
JUDGMENT (PER : A.S. CHANDURKAR, J.)
RULE. Rule made returnable forthwith and heard the learned
counsel for the parties.
2. Since the challenge raised in both the writ petitions is to the
order of blacklisting, they are being decided together by this common
judgment.
WPs 5900-23 & 6197-23 2 Common Judgment
3. Petitioner-M/s H.D. Enterprises (for short, 'HDE') in Writ
Petition No. 5900 of 2023, a registered partnership firm entered into a joint
venture/consortium agreement with the petitioner-M/s Gaurav Contracts
Company (for short, 'GCC') in Writ Petition No. 6197 of 2023 on
23.05.2018. The said joint venture agreed to submit a bid for the work
advertised by the respondent no.1-Western Coalfields Limited (for short,
'the WCL'). It was stated in the said agreement that the joint venture would
continue till the project in question was completed including the defects
liability period. On the basis of this joint venture, a work order dated
03.01.2019 came to be issued and the joint venture undertook such work.
Thereafter on 06.04.2023 the WCL issued E-Tender notice No.3/24 inviting
bids for undertaking expansion of its mines at Chandrapur area. The bids
were to be submitted by 24.04.2023 at 11.00 a.m. HDE responded to the
said bid on 24.04.2023 and uploaded its bid at 10.37 a.m. By publishing a
corrigendum the last date for submission of bids was extended to
04.05.2023. Alongwith the tender documents HDE submitted an
undertaking as prescribed by Annexure-P in the tender notice. As per said
undertaking, it was stated the if HDE had relationship with another bidder
either directly or through common third parties that would put HDE in a
position to have access to information about or influence on the bid of
another bidder it would be disqualified in the tender. The undertaking
submitted by HDE was dated 15.04.2023.
WPs 5900-23 & 6197-23 3 Common Judgment
4. Prior to the last date of submission of bids, GCC submitted its bid at
18.50 p.m. on 03.05.2023. The technical bids were thereafter examined and on
evaluation, the bids of HDE as well as GCC were held to be disqualified. On
21.06.2023, the WCL issued a show cause notice to HDE as well as GCC
stating therein that in terms of Clause 4.2(d)(e) both the bidders had failed to
disclose the entering into of a joint venture agreement on the basis of which the
work order dated 03/05.01.2019 had been issued to it and that work was in
progress. It was stated that the entities did not make a correct disclosure in
Annexure-P and had thus furnished a false undertaking. They were called upon
to show cause as to why action in the form of forfeiture of Earnest Money
Deposit (for short, 'EMD') as well as debarment for a period of twelve months
from participating in future tenders of the WCL be taken. HDE submitted its
reply to the show cause notice on 03.07.2023 and denied the grounds raised
in the show cause notice. It was stated that the joint venture had been entered
into only for the earlier tender notice that resulted in issuance of a work
order dated 03/05.01.2019. It stated that there was no functional integrity
between two entities that were independent partnership firms. It was further
stated that HDE be granted an opportunity of personal hearing. GCC submitted
its reply to the show cause notice on 05.07.2023 and denied the statements
made in the show cause notice. Since there was no bar for a member of the
joint venture to participate in the subsequent tender process in its individual
capacity there was no breach of Clause 4.2 of the tender notice. An
additional reply was also submitted by GCC on 11.06.2023.
WPs 5900-23 & 6197-23 4 Common Judgment
5. The WCL thereafter granted personal hearing to both the entities
and by the order dated 26.08.2023 it proceeded to forfeit the EMD that was
furnished by both the entities. Similarly they were also de-barred from
participating in any future tenders of the WCL for a period of twelve
months. The said orders dated 26.08.2023 are the subject matter of
challenge in these writ petitions.
6. Shri Sunil Manohar, learned Senior Advocate for HDE submitted
that the impugned communication dated 26.08.2023 inflicting the penalty
of forfeiture of the EMD as well as debarment was without assigning any
reason. In reply to the show cause notice HDE had submitted a detailed
reply and had relied upon various documents to urge that the penalty
proposed could not be inflicted on it. Though an opportunity of personal
hearing was granted to HDE, the impugned communication did not reflect
due consideration of the stand taken by HDE nor were any reasons
indicated in the said communication as to why its stand was not accepted.
Since the order of debarment had been passed without considering the reply
to the show cause notice and was thus a non-speaking order it was liable to be
set aside. In this regard reliance was placed on the decision in Oryx Fisheries
Private Limited Versus Union of India & Others [(2010) 13 SCC 427]. It
was further submitted that HDE had not furnished any false undertaking in
the form of Annexure-P inasmuch as the said undertaking was signed on
15.04.2023 and submitted alongwith with the technical bid. HDE had
WPs 5900-23 & 6197-23 5 Common Judgment
submitted its bid on 24.04.2023 and at that point of time it was correctly
stated that the firm did not have any relationship with another bidder either
directly or through a common third party so as to attract disqualification.
Since GCC submitted its bid much later on 03.05.2023 it could not be
expected of HDE to state in the undertaking at Annexure-P that it had
entered into a joint venture with GCC at an earlier point of time. It
therefore could not be said that the undertaking at Annexure-P was false in
any manner whatsoever. This was one of the considerations in issuing the
impugned communication as there was no foundation for holding Annexure-P
to be false undertaking, the impugned communication was vitiated.
As regards the action of debarment is concerned it was
submitted that the WCL proceeded to assume that HDE and GCC did not
appear to be "at arms length" with regard to the tender in question. All
business relationships of a bidder with another entity were not required to
be disclosed inasmuch as Clause 4.2(d) required disclosure of only such
business relationship that would put a bidder in a position to have access to
information about or influence the bid of another bidder. Despite a specific
stand taken by HDE in that regard, this aspect was not considered at all by
the WCL. There were various categorical assertions in the reply filed by
HDE which were not taken into consideration. Reference in that regard was
made to paragraph 4(e) to (h) of the reply to the show cause notice dated
03.07.2023 and it was urged that the order of blacklisting on this premise
was vitiated. It was also not the stand of the WCL that HDE was aware of
WPs 5900-23 & 6197-23 6 Common Judgment
the fact that GCC would subsequently participate in the tender process in
which it had already submitted its undertaking. On this premise it was
submitted that the action of blacklisting taken by the WCL was unwarranted
in the facts of the case. The same was therefore liable to be set aside.
7. Shri Yashowardhan Sambre, learned counsel for GCC adopted
the submissions as urged on behalf of the learned Senior Advocate for HDE.
He referred to the reply submitted to the show cause notice on 05.07.2023
and 11.08.2023 to urge that the impugned action forfeiting the EMD as well
as debarment was uncalled for in the facts of the present case. He too
prayed that the impugned communication dated 26.08.2023 be set aside.
8. Shri Chaitanya Samudra, learned counsel for the WCL opposed
the aforesaid submissions. According to him, all contentions raised by both
the petitioners had been duly considered and after granting them sufficient
opportunity of hearing, the impugned action had been taken. The
conclusion recorded in the communication dated 26.08.2023 was arrived at
after due consideration of the stand taken by the petitioners and merely
because the same did not refer to all the deliberations in detail it could not
be said that the impugned communication was a non-speaking one. He
invited attention to the proceedings as recorded while considering the reply
of both the petitioners and submitted that the decision making process was
fair and transparent. Since the principles of natural justice had been duly
WPs 5900-23 & 6197-23 7 Common Judgment
complied with and all material on the basis of which the impugned action
was taken was brought to the notice of the petitioners it could not be said
that the said action was liable to be interfered with on the ground that
reasons were not indicated in the communication dated 26.08.2023. The
deliberations undertaken indicated the decision making process and the said
action was not liable to be interfered with on that count. Reference in that
regard was made to the decisions in Punya Coal Roadlines & Others Versus
Western Coalfields Limited, Nagpur & Another [2015 SCC OnLine Bom
2941] and Hindustan Trade Overseas Pvt. Ltd. Versus General Manager
(C.M.C.), Western Coalfields Limited & Another [2022 SCC OnLine Bom
1062] The learned counsel invited attention to the undertakings submitted
by both the bidders as per Annexure-P and Annexure-C. Referring to
Clauses 4.1 and 4.2 of the tender notice, it was submitted that each bidder
could submit only one bid either in the individual capacity or as a partner of
the partnership firm or as a member of the joint venture. Similarly the
likelihood of having a conflict of interest amongst bidders was sought to be
treated as a disqualification under Clause 4.2. The joint venture between
both the bidders continued to operate since the work under earlier work
order dated 03/05.01.2019 was ongoing. The parties therefore had
business relationship with each other and they were not 'at arms length' in
their course of business. There was no arbitrariness in the decision taken by
the WCL in forfeiting the earnest money and debarring both the petitioners.
The WCL as the principal was empowered to decide the manner in which it
WPs 5900-23 & 6197-23 8 Common Judgment
could undertake its business dealings and the scope for interference in such
decision was limited. The learned counsel referred to the decisions in
Jagdish Mandal Versus State of Orissa & Others [(2007) 14 SCC 517],
Central Coalfields Limited & Another Versus SLL-SML (Joint Venture
Consortium) & Others [(2016) 8 SCC 622], Afcons Infrastructure Limited
Versus Nagpur Metro Rail Corporation Limited & Another [(2016) 16 SCC
818] and Silppi Constructions Contractors Versus Union of India &
Another [(2020) 16 SCC 489] in that regard. It was thus submitted that
since the impugned action had been taken by following the due procedure
of law and in compliance with the principles of natural justice no
interference with the same was called for.
9. We have heard the learned counsel for the parties at length and
with their assistance we have perused the relevant material on record. At
the outset, we may consider the challenge raised by the petitioners to the
impugned communication dated 26.08.2023 debarring the petitioners from
participating in future tenders and forfeiting the EMD on the premise that
this has been done by a non-speaking order. Perusal of the impugned
communication indicates that it refers to the show cause notice in detail and
thereafter states that after observing the principles of natural justice and
granting an opportunity of hearing it was found that the explanation
furnished by the noticees was not satisfactory. By stating so, the impugned
action of debarment has been taken.
WPs 5900-23 & 6197-23 9 Common Judgment
It is true that the impugned communication merely states that
the matter was deliberated and it was thereafter found that the explanation
offered was not satisfactory. If the impugned communication is considered
in isolation it could be easily stated that the same does not contain any
reason whatsoever and it merely states that the explanation furnished by
the noticees was not satisfactory. It is however to be noted that the WCL
alongwith its reply has placed on record the minutes of the proceedings held
on 17.07.2023 as well as the deliberations that took place thereafter
preceding issuance of the impugned communication. The said material
indicates the manner in which the decision of visiting the petitioners with
penalty was arrived at. In this regard it may be stated that this material in
the form of a note-sheet containing deliberations undertaken by the
principal prior to taking any action would be significant while considering
the challenge as raised. If it is seen from the record that is produced before
the Court that the impugned action has been taken after due consideration
of the reply to the show cause notice by granting due opportunity of hearing
to the parties, then the impugned communication would not be liable to be
set aside only on the ground that it did not contain reasons. In other words,
if the reasons in support of the ultimate conclusion are placed on record
that are in the form of deliberations that have preceded the decision making
process, then it would not be possible to hold that merely on the ground
that the impugned communication does not refer to all the deliberations
that took place earlier, a non-speaking order has been passed.
WPs 5900-23 & 6197-23 10 Common Judgment
10. In this regard, we may refer to the observations in paragraph 2
of the decision in Grosons Pharmaceuticals (P) Ltd. & Another Versus State
of U.P. & Others [(2001) 8 SCC 604]. A somewhat similar contention was
also raised in the aforesaid case and the Hon'ble Supreme Court observed
that since elaborate reasons were found to have been recorded while
passing the order of blacklisting the same could not be questioned on the
count that the ultimate order was unreasoned. The Hon'ble Supreme Court
held as under :-
"2. ............ It is true that an order blacklisting an
approved contractor results in civil consequences and in such
a situation in the absence of statutory rules, the only
requirement of law while passing such an order was to
observe the principle of audi alteram partem which is one of
the facets of the principles of natural justice. The contention
that it was incumbent upon the respondent to have supplied
the material on the basis of which the charges against the
appellant were based, was not the requirement of the
principle of audi alteram partem. It was sufficient
requirement of law that an opportunity of show-cause was
given to the appellant before it was blacklisted. It is not
disputed that in the present case, the appellant was given an
opportunity to show cause and it did reply to the show-cause
which was duly considered by the State Government. We
are, therefore, of the view that the procedure adopted by the
respondent while blacklisting the appellant was in
conformity with the principles of natural justice."
The aforesaid decision has been thereafter followed in Civil Appeal No.1083
of 2022 [State of Odisha & Others Versus M/s Panda Infraproject Limited ]
decided on 24.02.2022 by the Hon'ble Supreme Court. In these facts
therefore, the ratio of the decision in Oryx Fisheries Private Limited (supra)
WPs 5900-23 & 6197-23 11 Common Judgment
cannot be applied to the case in hand. We thus find that merely for the
reason that the impugned communication dated 26.08.2023 does not
contain reasons it is not liable to be set aside. As the conclusion recorded is
sought to be supported by the material placed on record, the same would be
sufficient to turn down the contention raised on behalf of the petitioners
that the impugned communication was liable to be set aside as it did not
contain any reasons.
11. Having found that the impugned communication dated
26.08.2023 can be sustained in view of the fact that the reasons in support
of the conclusion recorded in the said communication are available on
record, it would be necessary to consider the challenge to the action taken
by the WCL against the petitioners. In the show cause notice issued to HDE
as well as GCC reference has been made to Clause 4 of the Instructions to
Bidder of the tender notice and especially Clauses 4.2(d) and (e). The said
clauses read as under:
"4.2 Conflict of Interest.
A Bidder may be considered to have a conflict of
interest with one or more parties in this bidding process, if:
(d) They have business relationship with each other,
directly or through common third parties, that puts them in a
position to have access to information about or influence on
the bid of another Bidder; or
(e) A Bidder or any of its affiliate participated as a
consultant in the preparation of the design or technical
specification of the contract that is the subject of the Bid; or"
WPs 5900-23 & 6197-23 12 Common Judgment
It has been stated that in view of the Joint Venture between HDE and GCC
under which the work order dated 03/05.01.2019 was being undertaken,
the said parties had business relationships with each other which could not
be construed 'at arms length' in the usual course of business. By stating that
the parties had not made correct disclosure in Annexure-P and had
furnished a false undertaking it was proposed to forfeit the EMD and also to
de-bar both the entities and its partners for a period of twelve months.
Annexure-P reads as under :-
"Name of Work : .............
Tender No: .............
Tender Id: .............
I/We, ................. proprietor/partner/Legal Attorney/
Directed/Accredited Representative of M/s ..........., solemnly
undertake that:
1. I/We am/are submitting Bid for the work .........
against Bid Notice no. ........ dated ......... and I/We offer to
execute the work in accordance with all the terms, conditions
and provisions of the bid.
2. I/We undertake that if I/We have relationship with each
other, directly or through common third parties, that puts I/
We in a position to have access to information about or
influence on the bid of another Bidder;
or
I/We or any of our affiliate participated as a consultant
in the preparation of the design or technical specification of
the contract that is the subject of the Bid; shall be disqualified
in the tender.
Signature of the Bidder
(Signature of all partners in case of Partnership firm/Joint
Venture)
Dated ............................."
WPs 5900-23 & 6197-23 13 Common Judgment
12. Since the WCL has sought to justify the action of de-barment by
relying upon Clause 16 of the Conditions of Contract which contain
guidelines for banning of business it would be necessary to refer to the said
Clause which reads as under :-
"16. Guidelines for Banning of Business
CIL and its Subsidiary Companies shall follow the following
guidelines for effecting 'Banning of Business' with a
contracting entity in respect of Works and Services Contracts.
2. The contracting entity may be banned in the following
circumstances:-
b. On termination of contract.
vi) Wilful suppression of facts or furnishing of wrong
information or manipulated or forged documents by the
Agency or using any other illegal means. (In this case the
bannings/unfair shall be for a minimum period of 05(Five)
years."
The same indicates that in case of wilful suppression of facts or furnishing of
wrong information, banning of business consequent upon termination of the
contract could follow. The show cause notice states that both the entities
had not made a correct disclosure in Annexure-P and had furnished a false
undertaking.
The reply to the aforesaid show cause notice was given by HDE on
06.07.2023 and by GCC on 05.07.2023. It was denied that the said entities
were liable to be de-barred for the reasons stated in the show cause notice.
Reference was made to the fact that both the entities had distinct legal existence
and that there was no functional integrity between the said entities.
WPs 5900-23 & 6197-23 14 Common Judgment
13. In this regard it would be necessary to refer to certain
undisputed facts on record. In response to the tender notice, HDE had
submitted its bid on 24.04.2023. Alongwith all requisite documents, it also
submitted its undertaking dated 15.04.2023 as per Annexure-P. This would
indicate that as on the date of the undertaking HDE submitted that if it had
any relationship with another bidder directly or through common their
parties that would put it in a position to have access to information about or
influence the bid of another bidder or if any of its affiliates participated as a
consultant in the preparation of the relevant documents which is the subject
of the bid, it would be disqualified. The undertaking submitted by GCC as
per Annexure-P is dated 18.04.2023. The same reiterates the statements
referred to in the printed format. GCC submitted its bid documents on
03.05.2023. The aforesaid would indicate that though the undertaking as
required in Annexure-P was submitted by HDE on 15.04.2023 and that by
GCC on 18.04.2023 till that date neither HDE nor GCC had submitted their
bid documents. Their bids were submitted on 24.04.2023 and 03.05.2023
respectively. These facts would therefore be required to be considered in
the context of the conclusion recorded by the WCL that the information
furnished in Annexure-P was incorrect and that a false undertaking had
been submitted. Another relevant fact insofar as HDE is concerned is that
on the date when it submitted its bid document which was 24.04.2023, GCC
had not entered the fray. HDE was therefore not expected to have
knowledge of the fact that GCC, a distinct entity would be participating in
WPs 5900-23 & 6197-23 15 Common Judgment
the tender process. Similarly on the date when GCC executed its
undertaking which was 18.04.2023, HDE had still not uploaded its bid
documents which exercise was undertaken thereafter on 24.04.2023.
In our view these aspects would have material bearing on the
action taken against the said entities especially since the action of banning
has been resorted to in view of Clause 16(2)(b)(vi) which refers to wilful
suppression of facts or furnishing of wrong information. The position as
prevailing on the date of submitting the undertaking as per Annexure-P
would be relevant before concluding as to whether the disclosure made
therein was incorrect and that a false undertaking had been submitted.
14. Coming to the aspect of forfeiting of EMD, such action is
permissible if conflict of interest as per clause 4.2(d) and (e) is found. The
stipulation prescribed is that a bidder must have business relationship with
another, directly or through common third parties, due to which access to
information as regards the other's bid is possible. The fact that the Joint
Venture between the HDE and GCC that was undertaken on 24.05.2018
with regard to an earlier tender notice issued by the WCL is not in dispute.
The work thereunder is ongoing. In the show cause notice, the aspect of
both bidders not being "at arms length" has been emphasised. The reply
given by HDE and GCC to the show-cause notice specifically disputes this
aspect by indicating their separate legal status and distinct identity. We find
on a perusal of the notings made during the course of hearing the bidders
that this specific aspect has not been considered in detail. Merely on the
WPs 5900-23 & 6197-23 16 Common Judgment
basis of the fact that the work under the earlier joint venture was
continuing, it has been concluded in Note 58 that HDE and GCC did not
appear to be "at arms length" insofar as the present work was concerned.
Since the reason for blacklisting both the bidders emanates from non-
disclosure of business relationship between HDE and GCC in Annexure-P,
we are of the considered opinion that even the matter leading to forfeiture
of EMD requires re-consideration at the hands of the WCL. This is for the
reason that civil consequences would follow on adjudication of the show-
cause notice against the petitioners and hence due consideration of all
material aspects is warranted.
15. For aforesaid reasons, we are of the view that the WCL should
re-consider the reply submitted by HDE and GCC to the show-cause notice
issued to them in the light of observations made hereinabove and take a
decision afresh. Accordingly, the following order is passed :-
(I) The communication dated 26.08.2023 issued by the WCL is
quashed to enable re-consideration of the show-cause notice
dated 21.06.2023 issued to HDE and GCC afresh. It is clarified
that the communication dated 26.08.2023 was issued after
complying with the principles of natural justice and the same is
being set aside only to enable re-consideration of the entire
matter afresh in the light of observations made hereinabove.
(II) The action with regard to forfeiture of EMD and de-barment of
HDE and GCC would remain in abeyance until fresh adjudication
is undertaken by the WCL.
WPs 5900-23 & 6197-23 17 Common Judgment
(III) The WCL shall re-consider the show-cause notice dated
21.06.2023 in accordance with law within a period of six weeks
from today.
(IV) All points on merits of the challenge raised by both the sides are
kept expressly open.
16. Rule is disposed of in aforesaid terms with no order as to costs.
(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 30/11/2023 18:04:15
