N.C. Kapoor vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 126 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. In this Writ Petition the Petitioner who is a Civil Contractor registered in Class III (B&R) with the C.P.W.D. (Central Public Works Department) has sought the quashing of Office Order No. 160/2001 dated27.2.2001 and Show Cause Notice No. C44/3068-III(B&R)/NDZ.m/960 dated 13.11.2000 and all other nothings remarks and other actions based thereupon. The Petitioner has also sought a direction in the nature of mandamus directing the respondents to permit the petitioner to revalidate the enlistment of the petitioner with the CPWD for a further period of five years from 1.4.2001 and to permit him to participate in future tenders. By the impugned Office Order dated 27.2.2001 the Petitioner's enlistment has been withdrawn for two years by the Respondents with immediate effect. It is the Petitioner's contention that this Office Order is arbitrary and has been passed without a proper application of mind to the materials on record.

2. Learned Counsel for the Petitioner submitted that the previous order of revalidation of enlistment of the Petitioner as a Contractor inCategory III (B&R) was issued on 26.9.1995 and that the same was for five years and was expiring on 30.9.2000. Accordingly, the Petitioner made an application for revalidation on 31.8.2000 and that the Petitioner fulfillled all the criteria necessary for the revalidation as prescribed in the appropriate rules of enlistment in the CPWD. After having applied for revalidation, as the Petitioner had not heard anything from the Respondents, he sent a letter dated 22.9.2000 wherein he reiterated his request for renewal of his registration before the expiry of his existing enlistment i.e. before 30.9.2000. Then again on 29.9.2000 the Petitioner addressed a letter to the Chief Engineer NDZ m CPWD, Seva Bhawan, R.K. Puram, New Delhi reiterating his request for revalidation which was pending since 31.8.2000. On this letter there is a noting by Mr. D.R. Parihar, Finance Officer NDZ III, CPWD, R.K. Puram, New Delhi to the following effect:

"his case is under consideration of this office. Tender may be issued up to 30.11.2000."

Once again the Petitioner sent a letter (undated) to the Chief Engineer requesting him to let the Petitioner know the position of his revalidation application at an early date. On this letter there is a noting dated 14.11.2000 once again of the same Mr. D.R. Parihar to the following effect:

"his revalidation case of enlistment is under process of this office. Tender may be issued up to 31.12.2000."

3. On 14.12.2000 an Office Order No. 85/2000 was issued by the said Mr. D.R. Parihar to the effect that the application for revalidation of the Petitioner was under consideration and that in the meantime it had been decided to extend his enlistment up to 31.3.2001 only, and accordingly tenders could be issued to the Petitioner on the basis of his existing enlistment up to 31.3.2001.

4. In the meanwhile, the same Mr. D.R. Parihar had on 13.11.2000 issued a Show Cause Notice to the Petitioner requiring him to show cause as to why appropriate action should not be taken against him on the basis of the allegations contained therein. In the said Show Cause Notice dated 13.11.2000 it is alleged that the Petitioner submitted a tender on 15.4.2000 at a margin of 17.94% for the work "A/A to 'B' Block at CGO Complex, Lodhi Road, New Delhi (SH: Renovation of Central Corridor of 13th Floor at HQ NSG Aluminium work)". The Petitioner's bid was the lowest. It is further alleged that the Petitioner expressed his inability to execute the said work and that as a result of this his earnest money was forfeited on 12.6.2000. It is alleged in the said Show Cause Notice that on reinviting tenders, the Petitioner submitted tender at a higher rate and that accordingly his tender was rejected because he did not agree for negotiation.

5. The Petitioner submitted a Reply dated 22.12.2001 to the said Show Cause Notice controverting the allegations contained therein. Thereafter, the impugned non-speaking order dated 27.2.2001 was issued by the said Mr. D.R. Parihar whereby the enlistment of the Petitioner has been withdrawn for two years with immediate effect.

6. Learned Counsel for the Petitioner has taken us through the pleadings and the relevant documents to demonstrate that the allegations contained in the said Show Cause Notice dated 13.11.2000 were not supported by the facts. Firstly, he was able to demonstrate that contrary to the allegation contained in the said Show Cause Notice, the Petitioner had not expressed his inability to execute the work of renovation of Central Corridor at 13th Floor, NSG Headquarters and providing aluminium windows but that from time to time deviations were desired by the Executive Engineer from the existing scope of work and that the deviations were to such an extent that a revised NIT was issued. The learned Counsel for the Petitioner drew our attention to the original NIT and the revised NIT to bely the allegation contained in the said Show Cause Notice that tenders were invited again for the same work. Even the heading of the work was different. The work in the original -NIT was as under: "A/A to 'B' Block at CGO Complex, Lodhi Road, New Delhi (SH: Renovation of Central Corridor at 13th Floor of H.Q. NSG- Aluminium work)" whereas the work in the revised NIT was "A/A to 'B' Block at CGO Complex, Lodhi Road, New Delhi (SH: Replacement of steel glazed window by Al. Glazed window at 13th floor Corridor for Deptt. of NSG)".Furthermore, there were other differences in the nature and quantum of work under the two NITs. Under the first NIT anodised aluminium work for doors, windows, ventilators etc. for the fixed portion was for 505 kgs. whereas in the second NIT the same description of work for the fixed portion was for 320 kgs. Item 1(b) in the second NIT which was for "shutters of doors, windows and ventilators including providing and fixing hinges/pivots and making provision for fixing of fittings wherever required including the cost of PVC/neoprene gasket required" and was for a quantity of 265 kgs. However, there was no such item in the first NIT. This, to our mind clearly demonstrates that the terms of the NIT had been clearly altered and the deviations were of such a magnitude that a fresh NIT had been issued. In the light of these facts, we would tend to agree with the submission of the Counsel for the petitioner that the petitioner did not leave the work but was compelled to do by completely changing the scope of work. Insofar as the second aspect of the matter is concerned, i.e. that for the second NIT the tender submitted by the petitioner was high and, therefore, his tender was rejected cannot be any ground for refusal to revalidate the enlistment of the Petitioner. At best the Respondents could have, as they did, reject the tender submitted by the Petitioner. The refusal of the Petitioner to negotiate a lower price could only result in the rejection of his bid and could not be held against him when the question of revalidation of his enlistment was to be considered.

7. In reply the learned Counsel for the Respondents submitted that the order impugned in the present writ petition is not a final order and that the matter was still under consideration. As such, he submitted, the writ petition was premature and was liable to be dismissed. We are unable to agree with this submission for two reasons; firstly, this point that the writ petition was premature has not been taken in the counter affidavit filed by the Respondent and secondly it is amply clear from the facts and circumstances stated above that the impugned order is the final order. A Show Cause Notice dated 13.11.2000 was issued, the Petitioner replied to the same vide his reply dated 22.12.2000 and an Order dated 27.2.2001 (i.e. the impugned order) was passed thereon. The impugned order clearly mentions the Show Cause Notice as well as the reply and the final conclusion of withdrawal of enlistment for two years with immediate effect.

8. The Counsel for the Respondents took us through the counter affidavit filed on behalf of the Respondents and in particular paragraph 14 thereof and submitted that the petitioner was a habitual non-performer and set out another example for non-performance of work by the Petitioner. The Respondents cannot rely on this alleged instance at this stage to justify the impugned order as, the Show Cause Notice made no mention of such allegation and the petitioner had no opportunity to controvert the same before the impugned order dated 27.2.2001 was passed.

9. We have given due consideration to the arguments advanced by the Counsel for the Petitioner and the Respondents and have gone through the pleadings and other relevant documents and find thatthe impugned order has been passed without a proper application of mind and cannot be sustained in the facts and circumstances referred to and discussed above. Accordingly we allow the petition and quash the impugned Office Order No. 160/2001 dated 27.2.2001. We further direct that the Petitioner's enlistment be revalidated after following the procedure prescribed in the Rules for Enlistment of Contractors in CPWD, 2001. There will be no order as to costs.