Chattisgarh High Court

M/S Techno Prints vs Chhattisgarh Textbook ... on 28 January, 2022

                                                                         AFR


           HIGH COURT OF CHHATTISGARH, BILASPUR

                     Order Reserved on : 01.12.2021

                     Order Passed on :      28/01/2022
                    Writ Petition (Civil) No. 1305 of 2021



   M/s Ramraja Printers And Publishers Through Deepak Kapoor S/o Late
    R.S. Kapoor, Aged About 62 Years, Partner At M/s Ramraja Printers And
    Publishers Office At Behind Banjari Mata Mandir, Near Heera Steel,
    Rawabhata Industrial Area, Raipur Chhattisgarh

                                                               ---- Petitioner

                                   Versus

1. Chhattisgarh Textbook Corporation Through Its Managing Director-
    Chhattisgarh Textbook Corporation, Premises Of C.G. Board Of
    Secondary Education, Pensionbada, Raipur (Chhattisgarh)

2. General Manager, Chhattisgarh Textbook Corporation, Premises Of
    C.G.    Board     Of    Secondary    Education,   Pensionbada,    Raipur
    (Chhattisgarh)

                                                             ---- Respondent

Writ Petition (Civil) No. 1286 of 2021

 M/s Pragati Printers Through Smt. Charu Kapoor W/o Shri Viaks Kapoor, Aged About 46 Years, Partner At M/s Pragati Printers Office At Behind Banjari Mata Mandir, In Front Of Jai Ambey Dharamkata, Rawabhata Industrial Area, Raipur Chhattisgarh

---- Petitioner

Versus

1. Chhattisgarh Textbook Corporation Through Its Managing Director Chhattisgarh Textbook Corporation, Premises Of Chhattisgarh Board Of Secondary Education, Pensionbada Raipur Chhattisgarh

2. General Manager Chhattisgarh Textbook Corporation, Premises Of C.G.

Board Of Secondary Education, Pensionbada Raipur Chhattisgarh

---- Respondent

Writ Petition (Civil) No. 1325 of 2021

 M/s Techno Prints Through Vikas Kapoor, S/o Late R.S. Kapoor, Aged About 53 Years, Proprietor M/s Techno Prints Office At Behind Banjari Mata Mandir, Near Heera Steel, Rawabhata Industrial Area, Raipur, Chhattisgarh

---- Petitioner

Versus

1. Chhattisgarh Textbook Corporation Through Its Managing Director-

Chhattisgarh Textbook Corporation, Premises Of C.G. Board Of Secondary Education, Pensionbada Raipur, C.G.

2. General Manager Chhattisgarh Textbook Corporation, Premises Of C.G.

Board Of Secondary Education, Pensionbada Raipur, C.G.

                                                                       ---- Respondents

For Petitioners                   :     Mr. A.V. Shridhar, Advocate.
For respondent                     :    Dr. N.K. Shukla, Sr. Advocate with Mr. Arijit
                                        Tiwari and Ms. Deepa Jha, Advocates.

Hon'ble Shri Justice Rajendra Chandra Singh Samant C A V ORDER

28/01/2022

1. These petitions have been brought under Article 226 Constitution of

India praying for quashment of impugment order No.3045/ ik-iq-fu-

@[email protected]&[email protected] dated 02.01.2021 in W.P.C. No.1305/2021,

3049/[email protected]@2020&[email protected] dated 02.01.2021 in W.P.C.

No.1286/2021, 3051/[email protected]@2020&[email protected] dated 02.01.2021 in

W.P.C. No.1325 of 2021.

2. It is submitted that the petitioners in all three cases are engaged in

printing and publishing business. The respondent corporation issued e-

tender notice No.P-3/2020-21 for printing, binding and distribution of

text-books on all India basis in the academic year 2020-21. The bid of

the petitioners in all three cases were accepted and they got alotment of

work orders in their favours which is dated 18.02.2020, 18.02.2020 and

17.01.2020 in W.P.C. No.1305/2021, 1286/2021 and 1325/2021

respectively. Time limitation for completion of work was 90 days from the

date of receipt of C.D./positives and work orders. It is submitted that the

positives for carrying out the printing work were not provided to the

petitioners. Petitioners in all three cases submitted the request for

providing positives and also the release orders of the printing papers in

the month of March 2020. Later on, due to the pandemic conditions, the

petitioners in all three cases were compelled to close their printing press

with effect from 22.03.2020 regarding which an intimation was sent to

the respondent authorities on 24.03.2020. Further, due to the lock-down

and the continuation of the pandemic situation, the work could not be

completed. Non-supply of the positives and the release order were also

the reason for the non-completion of the work in time. Later on, the

petitioners in all three cases have completed the work. Petitioner in

W.P.C. No.1305/2021 completed the work on 25.07.2020. The petitioner

in W.P.C. No.1286/2021 completed on 11.07.2020 and petitioner in

W.P.C. No.1325/2021 completed on 22.06.2020. It is submitted that

without issuance of any show cause notice and without complying any

lawful process, petitioners have been blacklisted by the impugned

orders passed by the respondents in their respective cases.

3. It is submitted that the delay in completion of the work is very much

attributable to the respondent authorities.

4. Reliance has been placed on the judgment of Supreme Court in the

case of Nasir Ahemed vs Assistant Custodian General, Evacuee

Property, U.P., Lucknowa reported in (1980) 3 SCC 1 on the point of

show cause notice.

5. Reliance has also been placed on the judgment of this Court in the case

of Sharda Offset Printers Pvt. Ltd. Vs. Chhattisgarh Textbook

Corporation & Anr. in W.P.(C.) No.1297 of 2021 decided on 08.09.2021,

it was a similar case in which the relief was granted to the petitioner.

6. Learned Senior counsel for the respondents opposes the submissions

and submits that time limit was presribed in the work orders. On prayer

made by the petitioners, extention of time was also granted time to time.

The petitioners are making pretext of non-availability of positives,

whereas the fact is this that the petitioners in all the cases did not

approach to collect the positives. The C.D. was already provided to the

petitioners. All three petitioners have not completed the work in full and

they have performed partially. It is further submitted that it is a dispute

between the petitioners and the respondents, which could have been

referred for arbitration as the petitioner and the respondents had agreed

to the arbitration clause in the agreement.

7. It is further submitted that in the present case, time was the essence of

contract. Hence, the petitioners have no entitlement for any relief,

therefore, petitions may be rejected.

8. In reply, learned counsel for the petitioners submitted that in the present

case, time was not the essence of contract, therefore, the respondent

authorities have granted extension. It is also submitted that the C.D. has

never been supplied by the respondents to the petitioners, which is one

of the important reasons, why the work could not be completed in time.

9. Heard learned counsel for both the parties and perused the documents

present on record.

10. Considered on the submissions. There is no such submission and

argument and reply by the respondent side, that any show cause notice

for black-listing was ever served upon the petitioners before passing the

order of black-listing against them. It is a submission of the respondents'

side that the clause 16.9 of the notice inviting tender was invoked.

11. The Clause 16.9 of the notice inviting tender is as follows:-

"16.9 - If the tenderer is awarded to the lowest rate printer on the basis of L-

1 rate of group/groups and Nigam allots the printing works to the tenderer on

the basis of his L-1 rate (Lowest Tenderer) of group/groups then also if the

tenderer refuse to do the printing work or work not completed, in this

condition Nigam has right to put the tenderer in BLACK LIST for 3 (Three)

years and security deposit and EMD will be forfeited."

12. It is a statement in reply that the petitioners were served with show

cause notice which has been duly suppressed by the petitioners. The

notice is dated 13.04.2020 vide Annexure-R/5 in W.P.(C.) No.1305/2021

which has been replied by the petitioner vide Annexure-P/10. The copy

of notice in W.P. No.1325/2021 is Annexure-R/4 which has been replied

by the petitioner and the same document has been filed by the petitioner

as Annexure-P/10 which was replied by annexure-P/12. In W.P.C.

No.1286, the copy of notice is annexure-R/5, which has been filed by

the petitioner as Annexure-P/9 and the reply submitted is Annexure-

P/10. The question is whether the above mentioned documents can be

regarded as an issuance of show cause notice before the passing of

order of black listing. The last and relevant paragraph of the letter dated

13.04.2020 is common in all the above mentioned documents which is

reproduced as under:-

"3. laiw.kZ fu;e 'krksZa ds lkFk gh vkidks eqnz.k dk;Z vknsf'kr fd;k x;k gSA fuxe }kjk [email protected]'kr eqnz.k dk;Z dks djus ls euk djus vFkok vleFkZrk O;Dr djus dh fLFkfr esa fuxe fufonk dh dafMdkvksa 16-3] 16-9] 19-1 ,oa 19-3 ds rgr dk;Zokgh gsrq Lora= gksxkA"

13. The words of the above mentioned paragraph in the letter dated

13.04.2020 commonly issued to the petitioners in all three cases are on

this point that in case the petitioners deny to complete the work or show

inability to complete the work, in that case, the respondent authorities

shall have the liberty to proceed under clause 16.9 of the notice inviting

tender. The body of the letter of 13.04.2020 emphasizes on completion

of the printing work and nowhere it mentions that this letter was a notice

for consideration on the black listing of the petitioners.

14. In the case of Gorkha Security Services Versus Government (NCT of

Delhi) reported in (2014) 9 SCC 105, it is held in paragarph 33 :-

"33.When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned ASG. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting, the appellant in the show cause notice has not caused any prejudice to the appellant. Moreover, had the action of black listing being specifically proposed in the show cause notice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to black list the appellant. Therefore, it is not at all acceptable that non mentioning of proposed blacklisting in the show cause notice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant."

15. In the case of U.M.C. Technologies Private Ltd. Vs. Food Corporation of

India reported in (2021) 2 SCC 551. The Supreme Court has observed

in paragraph 18 and 19 as follows:-

"18.This Court in Gorkha Security Services Versus Government (NCT of Delhi) has described blacklisting as being equivalent to the civil death of a person because blacklisting is stigmatic in nature and debars a person from participating in government tenders thereby precluding him from the award of government contracts. It has been held thus:

"16. It is a common case of the parties that the blacklisting has to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as "civil death" of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts."

19. In light of the above decisions, it is clear that a prior show cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. In these cases, furnishing of a valid show cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto."

16. In view of the discussions made hereinabove, it is very much clear that

no specific notice was ever served upon the petitioners before passing

the impugned orders of black listing them by an invoking clause 19.3 of

the notice inviting tender. Although this clause empowers the

respondent to black list the person concerned but as per the clause, the

case law cited the principle of natural justice has to be followed before

passing such order, which has extreme consequences. The issuance of

letter dated 13.04.2020 commonly to all the petitioners is not a specific

notice making a clear proposition to black list the petitioners. The main

emphasis in this letter is for completion of the alloted work and the last

paragraph of the letter mentions of the consequences, which may be

faced by the petitioners in case they could not complete the work or