M/S Bonn Nutrients Private ... vs Union Of India & Ors
2015 Latest Caselaw 8750 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 24th November, 2015

+              W.P.(C) 9873/2015 & CM No.23881/2015 (for stay)
       M/S BONN NUTRIENTS PRIVATE LIMITED
       & ANR                                      ..... Petitioners
                    Through: Mr. Neeraj Grover, Adv.
                         Versus
       UNION OF INDIA & ORS                             ..... Respondents

                    Through:          Mr. Arun Bhardwaj, Adv. for R-
                                      1&2/UOI.
                                      Mr. R.K. Gupta and Mr. M.K. Singh,
                                      Advs. for R-3/AIIMS.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition was filed impugning (i) the communication dated 24th

September, 2015 of the respondent No.3 All India Institute of Medical

Sciences (AIIMS) debarring the petitioners for a period of three years from

all dealings and participating in all contracts / tenders etc. with the

respondent No.3 AIIMS; and, (ii) the Tender Notification issued by the

respondent No.3 AIIMS pursuant to termination of the contract with the

petitioners.

2. Since as per the Roster of this Court tender matters are entertainable

by a Division Bench, the petition was listed before a Division Bench of this

Court and notice thereof issued. On 6th November, 2015, finding that the

Tender Notification had exhausted itself owing to no bids having been

received and the relief in that regard having thus become infructuous, the

petition was ordered to be listed before a Single Bench of this Court to

entertain the challenge to the debarment order.

3. The petition came up yesterday before this Bench when finding that

the pleadings had already been completed, the counsels were heard.

However during the hearing it was enquired, when the subject goods had

been received in the premises of the respondent No.3 AIIMS. The matter

was adjourned to today to enable the counsel for the respondent No.3 AIIMS

to verify the said aspect.

4. The counsel for the respondent No.3 AIIMS states that the subject

goods were received one day prior to the incident i.e. on 28th July, 2015.

5. The counsels including the counsel for the respondents No.1&2 Union

of India have been further heard.

6. The petitioner no.1 is inter alia manufacturer/producer of breads and

also manufactures and markets packs of two slices of high fibre brown bread

and which were being supplied since the year 2012 to the respondent No.3

AIIMS by the petitioner no.2 M/s Goyal Traders, a distributor of the

petitioner no.1.

7. On 29th July, 2015, one of such packs when served to a patient

admitted in the respondent No.3 AIIMS was found to contain a live rat.

Intimation thereof was immediately sent to the petitioner no.2 and

representatives of the petitioner no.2 as well as of petitioner no.1

immediately reached the respondent No.3 AIIMS and were informed of the

seriousness of the matter; they also expressed their shock, and after

discussions, the following observations were recorded:

(i) that the long sealing / bottom sealing of the subject pack was

found to have an almost 2-3 inch long puncture;

(ii) the rat must have entered through the opening, somewhere in

transit and there was a "need to investigate";

(iii) the petitioners represented having given pest control system

contract to M/s Pest Control India, leader in the field in India;

(iv) the petitioners invited the representative of AIIMS to visit their

factory to demonstrate that the petitioners take all care for

maintaining good quality of the product.

8. The respondent No.3 AIIMS immediately terminated the contract with

the petitioner no.2, being the distributor of the petitioner no.1 and issued a

notice dated 9th September, 2015 to the petitioners to show cause as to why

the petitioners should not be blacklisted and debarred from participation in

any tender at respondent No.3 AIIMS. The show cause notice also referred

to the proceedings of 29th July, 2015 when the sealed package with live rat

was shown to the representative of the petitioners.

9. The petitioners submitted a reply dated 17th September, 2015 to the

show cause notice setting out the good practices followed by them at their

factory including for pest control and further contending that it was highly

improbable that rat from an unknown source would crawl on the packing

table, remain un-noticed by 5-6 food handlers working around the table, get

wrapped along with two slices, survive high sealing temperature, remain

undetected inside the pack and remain alive for the next two days in the

sealed pack. It was further stated that "during our meeting, we had also

shown a small opening (about 1-1.5 inch) on the sealing of the pack, from

where it probably sneaked inside the pack." The petitioners further

impressed that they are in the business since 1995 and had been following all

good manufacturing standards but would still enquire, at what stage the live

rat crawled into the package. The petitioners again invited the representative

of the respondent No.3 AIIMS to their factory.

10. The respondent No.3 AIIMS has vide impugned communication dated

24th September, 2015 debarred the petitioner, as aforesaid, for a period of

three years for the reason of, the live rat having been found in the eatables

supplied by the petitioners and the petitioners having failed to submit a

satisfactory reply to the show cause notice and to address the quality concern

of the respondent No.3 AIIMS with patient safety issues.

11. The counsel for the petitioners has argued:

(i) that each packet is vacuum sealed and it is not possible that a

rat would survive inside the sealed pack;

(ii) that for sealing, the package is subjected to high temperature,

again ruling out the possibility of a rat, even if had entered the

package, surviving;

(iii) that the package, when inspected by the representative of the

petitioner on 29th July, 2015 admittedly had a 1-1.5 inch

slit/puncture therein, and the rat could have entered either at the

end of the distributor of the petitioner no.1 or in the premises of

the respondent No.3 AIIMS;

(iv) that there was a time gap between the time the packaged goods

left the premises of the petitioners and were served to the

patients in the respondent No.3 AIIMS and during which time

the packets contained in cartons remained with the transporter

or the distributor or in the store of the respondent No.3 AIIMS;

(v) the neglect could have been of the transporter/distributor or of

the employees of the respondent No.3 AIIMS and who have

attempted to make the petitioners a scape goat;

(iv) that there in fact is no proof that there was a live rat in the

package and the whole exercise could have been to cause harm

to the petitioners and to spoil the reputation of the petitioners

and their product;

(v) that the factory/plant of the petitioners where bread is

manufactured/produced and sliced and packaged is a state of

the art plant and no rat has been reported therein for months

prior to the incident;

(vi) the falsity of the incident is evident from the fact that a rat, even

if had got packaged, could not have remained alive without any

air and would have died;

(vii) again the rat, even if had entered the package, could not have

survived the high temperature to which the package is subjected

to for the purpose of sealing;

(viii) neither of the two slices of bread in the package was found to

have been bitten/damaged by the rat and which also falsifies the

incident, as a rat, even if had got packaged, would not have left

the bread slices untouched;

(ix) that besides the impugned communication, there is no order or a

reasoned decision for so debarring the petitioners;

(x) all that the respondent No.3 AIIMS has filed with its counter

affidavit is a file noting of 21st September, 2015 which also

merely records "the response for the show cause notice issued

to M/s Bonn Nutrients Pvt. Ltd. is not satisfactory. Process to

debar the Company from participation to be initiated"; there are

no reasons and no dealing with the reply of the petitioners to

the show cause notice; no Committee was constituted to enquire

into the incident;

(xi) no proper procedure for blacklisting has been complied with

and the order debarring the petitioner is in violation of the

principles of natural justice; and,

(xii) reliance is placed on Erusian Equipment & Chemicals Ltd. Vs.

State of West Bengal (1995) 1 SCC 70, Raghunath Thakur

Vs. State of Bihar (1989) 1 SCC 229, S.N. Mukherjee Vs.

Union of India (1990) 4 SCC 594, Mekaster Trading

Corporation Vs. Union of India 106 (2003) DLT 573 and G.D.

Tewari and Co. Vs. Delhi Development Authority 130 (2006)

DLT 675 and on the basis thereof it is argued that the order of

blacklisting is to be through a speaking order in as much as it

affects the business and business venture and also has civil

consequences for the future business and that the order of

banning/debarring/blacklisting in the present case is not a

speaking order within the meaning of the said judgments.

12. I have during the hearing enquired from the counsel for the petitioners

that if the package was being subjected to high temperature during sealing

thereof, how could the bread slices therein remain from being toasted.

13. The counsel for the petitioners could not explain.

14. The counsel for the petitioners during the hearing had also informed

that same/similar packages are also supplied by the petitioners to the Indian

Railways for serving to the passengers of Shatabdi trains. Having experience

of the same and having not found the same to have been vacuum sealed, it

was again enquired from the counsel for the petitioners. In fact today, the

counsel for the petitioners has also brought a sealed packet to the Court and

which is also not found to have been vacuum packed. I have further enquired

from the counsel for the petitioners whether not a certain amount of air is

trapped inside the package and would not the said air, besides the air trapped

in the slices of bread, be enough for the rat to breath and survive.

15. Again no answer is forthcoming.

16. I have yet further enquired from the counsel for the petitioners as to

what else could have been written/recorded by the respondent No.3 AIIMS

in the order banning/debarring the petitioners and whether not the facts of

the case res ipsa loquitur speak of the default of the petitioners.

17. The counsel for the petitioners though attempted but could not state as

to what other reasons in the circumstances could have been given by the

respondent No.3 AIIMS for so banning/debarring the petitioners to bring it

under the scope of a speaking order. In my opinion the requirement, in law

of giving of reasons has to vary from facts to facts and there may be

situations as the present one in which the facts speak for themselves and

with no other reasons being required to be given.

18. The counsel for the respondent No.3 AIIMS in this regard also

pointed out that the petitioners in the meeting on the same day, i.e. on 29th

July, 2015 and as recorded on that date, did not dispute/controvert a live rat

having been found in the packet supplied by the petitioners. It is argued that

the denial is coming for the first time today. Attention is drawn to the

handwritten letter dated 29th July, 2015 submitted by "Team Bonn C/o M/s

Bonn Nutrients Pvt. Ltd." comprising of Shri P.K. Goyal, Shri A.P. Chopra,

Shri Ravinder and Shri Arun Walia and who have therein stated as under:-

"Sub: Regarding rat in two slice bread packet. Dear Sir,

It is in regard to the discussion of a rat in two slice packet in the meeting. It is very serious. We are also shocked to see it and following are the observations for it:

 The long sealing/bottom sealing is punctured almost 2-3 inch long.

 Rat must have entered through this opening somewhere in the transit. Need to investigate.  We have awarded the pest control system contract to M/s Pest Control India who is leader in the field in our country.

You are our prestigious customer. We invite you to visit our factor which is one of the best facilities in the country in all respect. We are committing you utmost care in all respect. We are ISO22000 certified company and taking all care for manufacturing good quality of products."

19. The counsel for the respondent No.3 AIIMS has then invited attention

to the reply dated 17th September, 2015 of the petitioner to the show cause

notice where also the petitioners have stated as under:-

"This refers to your notice dt.09-09-2015 received by us on 15-09-2015 and our email dt.15-09-2015 on the aforesaid issue:-

As already discussed with your team during our last meeting on 29-07-2015, it is not justified to hold our manufacturing unit responsible for the presence of "live" rat in the two slice bread.

Once again, we request your to consider the following points:-

Ours is an ISO 22000.2005 certified and FSSAI approved manufacturing unit having stringent GMP and GHP systems in place.

1. Pest control operations in our unit are looked after by one of the most reputed and professional pest control agencies in India, i.e. PCI.

2. As per their guidelines rat bait boxes have been installed along the inside of walls in our plants including the packing halls.

3. Glue traps placed in the rat bait boxes are changed regularly. There are no gaps or holes, from where any rat or pest can sneak in. Regular monitoring is done by the PCI officer and our Utility Manager. Pest Activity in this area has never been observed.

Copy of our contract with PCI is attached.

4. The wrapping and sealing operations of two slice bread takes place simultaneously on a SS table, which is more than 3 ft. high. The sealing temperature is 170-180oC. It is highly improbable that:-

Rat from an unknown source had crawled on the packing table, un-noticed by 5-6 food handlers working around the table. Got wrapped along with two slices, survived high sealing temperature, and remained un-detected inside the pack. Surprisingly it remained alive for next two days in the sealed pack.

5. During our meeting, we had also shown you a small opening (about 1-1.5 inch) on the sealing of the pack, from where it probably sneaked inside the pack.

6. We are manufacturing since 1995 having all stringent GMP and GHP systems in place, still this matter is concern for us and debateable point how and at what stage a live rat crawled into packed.

Still if you so desire, your team is welcome to visit our manufacturing unit at Ludhiana to assess our stringent quality, GMP, GHP and pest control procedures placed in our plant, which are being regularly monitored by our team."

The counsel for the respondent No.3 AIIMS has highlighted that the

presence of the live rat in the packet is not disputed in the said reply also and

rather the petitioners had suggested that the rat "sneaked inside the pack"

from the small opening on the bottom sealing of the pack. The counsel for

the respondent No.3 AIIMS also states that cartons containing the packets

are not stored anywhere in the respondent No.3 AIIMS and are generally

served on the day of receipt and remain in the kitchen.

20. It is for this reason that the need to ask the respondent No.3 AIIMS to

verify whether the record thereof was available had arisen and in response

whereto it has been informed that the subject packet was received in the

respondent No.3 AIIMS only a day in advance.

21. I have further enquired from the counsel for the petitioners whether

not, a small opening on the seal of the pack, as suggested by the petitioners

in the reply dated 17th September, 2015 itself is a serious lapse when the

petitioners/their distributors have contracted to supply sealed packages

containing only two slices of bread meant for individual consumption and to

remain untouched by hand.

22. All that the counsel for the petitioners could state is that the said

puncture/slit on the packet could have been made by the employees of the

respondent No.3 AIIMS who are now shifting the blame to the petitioners

being sitting targets.

23. This was however never the case of the petitioners.

24. The respondent No.3 AIIMS along with its counter affidavit has inter

alia filed (i) the letter dated 29th July, 2015 of the Assistant Nursing

Superintendent, AB2 Ward to the Medical Superintendent of AIIMS

reporting finding of a rat in a sealed brown high fibre bread package with net

weight of 50 grams and use best before 31st July, 2015 endorsement in the

breakfast served to bed no.AB2/I occupied by one Sanjeev Sharma; (ii)

attendance sheet of a meeting convened in the respondent No.3 AIIMS on

29th July, 2015 itself in respect thereof; (iii) the writing aforesaid dated 29 th

July, 2015 of the representatives of the petitioners who had visited

respondent No.3 AIIMS on the same day; (vi) driving licence of Shri P.K.

Goyal, General Manager of the petitioner no.1 Company who was the first

signatory to the said writing; (v) internal file notings of the respondent No.3

AIIMS from 29th July, 2015 onwards in respect of the said incident and

which show that the representatives of the petitioners had reached

respondent No.3 AIIMS and were heard at 1130 hours.

25. Therefrom, I am satisfied that the decision to debar the petitioners is

in compliance of the principles of natural justice. An opportunity of personal

hearing was given to the petitioners within a couple of hours of the detection

of the live rat in the eatable supplied by the petitioners. Though the

petitioners had submitted a reply also on the same date but still formal show

cause notice was served on the petitioners, also intimating to them the action

proposed of debarring the petitioners. I am unable to fathom in the face of

the record as to what other analysis could have been done by the respondent

No.3 AIIMS. The petitioners, neither in their response dated 29th July, 2015

nor in their response dated 17th September, 2015 stated any such thing which

required any discussion or further in investigation/inquiry at the end of the

respondent No.3 AIIMS to be able to reach a conclusion whether to so debar

the petitioners or not. Once the petitioners had not disputed the existence of

the live rat in the packet and had merely suggested that the rat could have

entered from the opening in the packet, the reason given by the respondent

No.3 AIIMS of the reply being not satisfactory is sufficient. As aforesaid,

even if the petitioners had left a opening in the packet and had not sealed it

properly, enabling a rat to enter the packet, the respondent No.3 AIIMS is

still justified in debarring the petitioners for the same also. It is significant

that in the letter supra of the Assistant Nursing Superintendent, to the

Medical Superintendent the name of the patient to whom the subject packet

was served was mentioned. If the petitioners were disputing the incident, the

petitioners should have asked to examine the said patient. The petitioners did

not do so at that time. Even in the petition filed, no such case has been set

up. The petitioners in their response as well as before this Court have only

harped upon the good practices followed by them in their factory and/or the

pest control measures undertaken by them at their factory but in the face of

their admission of a rat nevertheless having found its way inside the packet,

the same are of no avail.

26. The requirement of the element of giving reasons while following the

principles of natural justice is a subjective one and the nature and the extent

of the reasons required to be given may vary facts to fact. Supreme Court, in

S.L. Kapoor Vs. Jagmohan (1980) 4 SCC 379 held that where admitted or

indisputable facts speak for themselves and only one conclusion is possible

or under law only one penalty is permissible, the arguments of natural justice

pale into insignificance. Put in other words, reasonableness does not require

reasons to be stated.

27. I am also of the opinion that the scope of judicial review of

administrative actions and particularly in matters relating to contracts is

confined to examining whether the executive authorities have acted in a fair

and transparent manner without any extraneous considerations and the action

is compliant with the procedure prescribed therefor and/or the principles of

natural justice and is not actuated by any extraneous considerations. It

cannot be forgotten that the Government/Governmental Authorities, just like

a private individual are free to choose with whom to contract. The only

difference is that while freedom of individual private persons is absolute

leaving them free to choose as per their whims and fancies, the exercise of

choice by the Government/Government Authorities is subject to judicial

review by the Court. Tested on the said anvil also, no ground for interference

in exercise of power of juridical review is made out. There are no pleadings

of the action against the petitioners being motivated or guided for any other

reasons. The principles of natural justice have been followed. The petitioners

have been given requisite opportunity. The respondent No.3 AIIMS cannot

be faulted for, upon finding a live rat in a eatable packet supplied by the

petitioners, initiating action for debarment of the petitioners. There was

nothing in the responses/replies of the petitioners which required any further

inquiry or investigation or giving of reasons by the respondents. The period

of three years for which the petitioners have been debarred is not such which

can be said to be disproportionate. None of the said actions of the respondent

No.3 AIIMS can be said to be unreasonable or illogical.

28. It cannot also be lost sight that the factual controversies which the

counsel for the petitioners, during the hearing and without any foundation in

the pleadings, sought to raise cannot be adjudicated in writ jurisdiction. The

counsel for the petitioners kept on harping that it is the reputation of the

petitioners which is at stake and the petitioners will be deprived of business

not only from the respondent No.3 AIIMS but also from the other

Governmental Agencies/Authorities. However, I do not see any reason as to

how inspite of a live rat being found in a package of bread slices supplied

and sealed by the petitioners, the petitioners can claim any such right.

Supreme Court as far back as in Ishar Das Vs. State of Punjab (1972) 3

SCC 65 reiterated in Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange

(1974) 1 SCC 167 in the context of food adulteration held that it is a menace

to public health and an anti-social evil. The same equally applies to present

fact situation. The petitioners, supplying eatables to be served to those

already ailing and admitted to a hospital ought to have shown greater

concern. Supreme Court, again in Centre for Public Interest Litigation Vs.

Union of India AIR 2014 SC 49 has emphasised that any food article which

is hazardous or injurious to public health is a potential danger to the

fundamental right to life guaranteed under Article 21 of the Constitution of

India.

29. There is no merit in the petition.

Dismissed.

I refrain from imposing costs on the petitioners.

RAJIV SAHAI ENDLAW, J

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