M.R.V. Constructions vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1522 Del

JUDGMENT

Anil Kumar, J.

1. The petitioner firm was enlisted in the approved list of contractors of Commander Works Engineer (Project), Head Quarters, Military Engineer Services, Delhi Cantt-10, respondent No. 2. The tender limit of the petitioner was upgraded from 'F' class to 'E' class entitling the petitioner firm up to Rs. 10 lakhs and giving a new index number E-39.

2. By order dated 16.11.2005 the petitioner firm was removed from the approved list of contractors to do the tender work in the department of MES and further ban has been imposed on him to do the work of the respondent No. 2.

3. The petitioner has impugned the order dated 16.11.2005 on the ground that though a case under FIR No. 250/99 is pending, however, Sh. Vinay Kumar Tomar, sole proprietor of petitioner firm has not been convicted. The other two cases, FIR No. 280/2001 and 14/2003 are also pending and he has not been convicted. Regarding the fake vouchers in respect of certain purchases from the market, petitioner contended that it has remained controversial as no case has been lodged against the petitioner firm in that respect. The allegations according to the petitioner, of production of fake vouchers is fabricated, is not correct because the respondents did not return the goods. The order of removing the petitioner firm from the list of approved contractors has also been challenged on the ground that no terms of enlistment has been violated and the letter dated 16.11.2005 removing the petitioner from the approved list of contractors is contrary to the settled law and against the principles laid down by Hon'ble the Supreme Court of India that no one can be debarred from earning his livelihood.

4. The petitioner filed the writ petition claiming quashing of order dated 16.11.2005 and direction to the respondents to allow the petitioner firm to participate in the tender process and for re-enlistment of the petitioner in the approved list of contractors.

5. The reply to show cause notice issued by this Court was filed by the respondents and despite opportunities no rejoinder has been filed by the petitioner refuting the pleas and contentions raised by the respondents.

6. The respondents contended that in order to get its building and roads work done in relation to military service certain categories of contractors are enlisted and the works by the contractors are undertaken even in the border areas and in sensitive areas/restricted areas. The respondents categorically stipulated that in August, 2000 a contract was awarded to the petitioner for construction of additional 10 laboratories at the base hospital, Delhi and the petitioner was to provide the best quality approved material for construction. To substantiate and justify the use of good quality material from approved dealers, the petitioner was required to provide the purchase vouchers of the material so as to establish the authenticity/genuineness/quality of the material used.

7. The petitioner had produced the vouchers of M/s. Delhi Construction Equipments and M/s. Kapoor Pesticides dated 12.2.2001 and 10.9.2000. As there was doubt about the vouchers produced by the petitioner an enquiry was conducted and a show cause notice dated 30.9.2002 was issued to the petitioner show cause as to why disciplinary action be not initiated against him. The respondents sought clarification/confirmation about the genuineness of the vouchers alleged to have been issued to the petitioner from M/s. Delhi Construction Equipments and M/s. Kapoor Pesticides. In response to the communication addressed to the said suppliers, they confirmed that the petitioner firm had forged the vouchers produced before the respondents. The respondents have produced the show cause notice given to the petitioner and the response received from the suppliers M/s. Delhi Construction Equipments and M/s. Kapoor Pesticides. On account of producing the fake and forged vouchers, a ban of six months was imposed on the petitioner from issuance of any further tender and the petitioner was given an opportunity to improve upon his performance and conduct.

8. After six months, after the expiry of period of ban imposed on account of use of forged bills of approved suppliers, the petitioner was again awarded another contract after the expiry of six months period. However, the petitioner did not improve his workmanship and the quality of material used by him nor the petitioner took interest in completion of the work and committed default leading to delay in the defense project.

9. The respondents relied on a show cause notice dated 27.1.2004 for taking appropriate action against him, however, petitioner did not reply to the show cause notice dated 27.1.2004 asking him to file a reply failing which it was to be presumed that the petitioner was unfit to be considered and handle further workload and future work of the respondent. No reply to the said show cause notice was filed by the petitioner rather petitioner committed default in other contracts to be executed at Gurgaon Air Force station. Even for the work executed at Gurgaon Air Force station petitioner did not take any initiative in order to rectify the defects or to answer the allegations made against him.

10. Ultimately a show cause notice dated 4.5.2005 was issued to the petitioner and finding his reply unsuitable the petitioner has been removed from the approved list of contractors of respondent No. 2 by the order dated 16.11.2005. The respondents have produced various communications addressed to the petitioner asking him to improve the quality of work executed by him and other documents along with their reply.

11. The pleas and contentions raised by the respondents have not been refuted by the petitioner nor any rejoinder was filed nor any other documents have been filed to impeach the veracity of the documents filed by and on behalf of respondents.

12. I have heard the learned Counsel for the parties. This cannot be disputed that petitioner had used fake vouchers of M/s. Delhi Construction Equipments and M/s.Kapoor Pesticides dated 12.2.2001 and 10.9.2000 for which the petitioner was debarred to execute any work of the respondent for six months. Even thereafter the work executed by the petitioner is not in accordance with the terms and conditions. The lapses on the part of the petitioner were specifically brought to his notice by a communication dated 27.9.2003. The relevant portion of the communication is as under:

It has been observed that due care is not being given by the contractor to the workmanship and quality of material used at site. He is not taking any interest regarding completion of works. Several notices have been issued to the contractor but taken it casually. Neither proprietor of the firm nor his accredited representative is attending this office for receiving instructions for completion of important works. As a result of that lot of problems are being faced from users side. In spite of the repeated instructions by Engineer-in-Charge contractor is not at all serious to remove the rejected materials but provided sub-standard materials at site, which have not been appreciated by this office.

In view of above, it may be seen that contractor cannot handle a more contract in different station at a time with equal efforts. Future loading to this firm will also deteriorate the progress of work. Hence in this situation, issue of tender to this firm may please be stopped in your area till the awarded works by this office are not completed by the firm with copy to others MES formations in the interest of the work.

13. The petitioner was, therefore, given a show cause notice as to why action should not be taken against him as the petitioner firm is not capable of handling the further workload and necessary action for the same be taken against him. It was categorically communicated to the petitioner that if he did not file any reply the necessary action as deemed fit shall be taken against him. The petitioner has not filed the reply to the said show cause notice dated 27.1.2004 nor has produced anything to refute the pleas and averments made against him in the reply.

14. By another communication dated 5.3.2004 it was brought to the notice of the petitioner that despite repeated verbal and written instructions neither he has attended the office for joint measurement nor has rectified the defects along with completion certificate. On verification of the antecedents of the petitioner the Cabinet Secretariat, Government of India has also brought to the notice that a number of cases have been pending against the petitioner. The addresses of the casual laborers employed by the petitioner could not be located and, therefore, the antecedents could not be verified. It was also noticed that Fakir Chand of M/s. Gulshan Kumar and Co. had been seeking permission for engagement of casual workers sometimes on behalf of M/s. Gulshan and sometimes on behalf of the petitioner firm though the petitioner is stated to be a proprietorship firm of Mr. Vinay Tomar.

15. In view of the various criminal cases pending against him a show cause notice dated 4.5.2005 was given to the petitioner and he was asked to show cause as to why he has not given the correct particulars of casual laborers employed

by him. In reply to the notice the petitioner only stated that one of the criminal cases on account of negligence is pending since December, 1999 when he was executing the work of sewerage and regarding the addresses of the casual laborers, according to him, his special power of attorney has been carrying out the work.

16. Another show cause notice dated 25.10.2005 had been given to the petitioner as to why the petitioner firm should not be completely blacklisted and removed from the approved list of contractors.

17. From the material produced by the respondents it is apparent that there was sufficient material before the respondents to remove the petitioner from the list of approved enlisted contractors. The petitioner was engaging casual laborers through his Special Attorney but that did not absolve him to give the correct addresses of the casual laborers. The petitioner has not provided the correct address and committed lapse. No reply was filed by the petitioner regarding other shortcomings pointed out as neither he completed the work nor quality of his workmanship was appropriate. The petitioner failed to produce any documents to refute the allegations made against him. Despite categorical communication to him that if he would not file reply to show cause notice, it will be deemed that he committed lapses, neither appropriate reply was filed nor any material produced by him to negate the allegations made against him.

18. The petitioner was given show cause notices. Reply filed by the petitioner was considered and found to be inappropriate. The petitioner has not been able to give sufficient justification for the lapses committed by him and the works not completed by him and the fake vouchers produced by him. After due consideration of the pleas of the petitioner the order dated 16.11.2005 has been passed.

19. In the totality of the facts and circumstances the order removing the petitioner from the approved list of contractors cannot be termed illegal nor any procedural irregularities have been pointed out. No such unreasonableness in the procedure adopted by the respondent and the order passed removing him from the list of approved contractors has been shown, which will entail an interference by this Court under Article 226 of the Constitution of India.

20. Consequently, the writ petition is without any merit and the same is dismissed.