Gauhati High Court
M/S Dritu Enterprise vs The State Of Assam And 2 Others on 11 June, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010102962025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2731/2025
M/S DRITU ENTERPRISE
REP BY SAMIN HAZARIKA, KAMRUP METRO, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 OTHERS
REP BY THE COMMISSIONER AND SECRETARY, FINANCE DEPARTMENT,
GOVT OF ASSAM, GUWAHATI, ASSAM
2:THE ASSAM SOCIETY FOR COMPREHENSIVE FINANCIAL
MANAGEMENT SYSTEM
AS-CFMS
REP. BY THE PROJECT DIRECTOR
3:THE JOINT SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT AND I/C ADDL. PROJECT DIRECTOR
AS-CFM
Advocate for the Petitioner : B BURAGOHAIN, MS D DUTTA,MR. P J SAIKIA
Advocate for the Respondent : SC, FINANCE,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
11.06.2025
1. Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Mr. B.
Gogoi, learned Additional Advocate General, Assam for all the respondents.
Page No.# 2/5
2. The petitioner prays that a direction should be issued to the respondents
to cancel/rescind/withdraw the impugned debarment notice dated 09.01.2025
issued by the respondent no.3 or set aside the said notice, which debars the
petitioner firm from participating in all future procurements to be undertaken by
the Finance Department for a period of 3 (three) years.
3. The contents of the debarment notice dated 09.01.2025 is reproduced
hereinbelow, as follows :
"DEBARMENT NOTICE 09.01.2025
Subject: Debarment of M/s Dritu Enterprise, Survey, Beltola-Basistha Road,
Guwahati-781028, Assam, India for a period of three years u/s 11(3)(f) and
46(3) of APP Act. 2027.
It is brought to the notice of all that M/s Dritu Enterprise was selected in a
tendering process through GeM (Tender Reference No. GEM/2023/8/3574120)
for the Supply Scientific Instruments and Related Service for Modernization of
Assam Excise Chemical Laboratory at Guwahati Bio Tech Park for Package no. 1
and 8 for an amount of INR.63,58,281.13 (excluding taxes).
However, before signing the contract a complaint was received against M/s Dritu
Enterprise regarding the provision of a fake authorization certificate along with
the bid with a clear intention to mislead and deceive the Evaluation Committee.
In this context, an explanation was sought via letter number
ASPIRe/ECF/239653 and in response, M/s Dritu Enterprise tendered an apology
admitting the allegation of submission of fake certificate vide an emall.
This is found to be a clear case of breach of code of integrity as per Section
11(2)(a) (ii) & Section 11(2) (vill) (a) of APP Act, 2017.
Therefore, u/s 46(3) and 11(3)(f) of Assam Public Procurement Act, 2017, M/s
Dritu Enterprise, is hereby debarred from participating in all future procurement
to be undertaken by Finance Department for a period of 3 years from the date
Page No.# 3/5
of issue of the notice."
4. The petitioner's counsel submits that no reasonable opportunity was given
to the petitioner prior to issuing the debarment notice dated 09.01.2025. He
further submits that in terms of Section 46(5) of the Assam Public Procurement
Act, 2017 (hereinafter referred to as the "Act"), the State Government or a
procuring entity is mandatorily required to give a reasonable opportunity of
being heard to the petitioner prior to blacklisting/debarring a person/bidder.
However, as no prior notice was given to the petitioner, prior to debarring the
petitioner, the impugned debarment notice dated 09.01.2025 has to be set
aside.
5. Mr. B. Gogoi, learned Additional Advocate General, Assam, on the other
hand submits that the petitioner as a bidder was required to submit an
authorization letter for offering goods and services pursuant to the GeM bid no.
GEM/2023/B/3574120 dated 15.06.2023 in terms of Clause 21(ii)(b) of the
General Terms and Conditions on GeM 4.0 (Version 1.10). However, the
petitioner had submitted a fabricated authorization letter allegedly issued by
Agilent Technologies along with it's bid document. On learning that the
petitioner had submitted a fabricated document, an explanation letter dated
03.11.2023 was issued to the petitioner by the respondent no.1, requesting the
petitioner to provide an explanation with regard to the authorization letter
submitted by the petitioner, as Agilent Technologies had denied issuing the said
letter to the petitioner. The petitioner thereafter, vide it's reply dated
07.11.2023, had impliedly admitted that the authorization letter was fabricated,
Page No.# 4/5
inasmuch as, the petitioner submitted that they were unable to secure the
necessary authorization letter within the timeframe. Accordingly, when there has
been an admission by the petitioner that the petitioner submitted a fake
authorization certificate, the requirement of giving the petitioner an opportunity
of hearing prior to the issuance of the impugned debarment notice dated
09.01.2025 does not arise. Mr. B. Gogoi submits that no prejudice has been
caused to the petitioner by not issuing a notice for debarment prior to the
impugned debarment notice dated 09.01.2025.
6. I have heard the learned counsels for the parties.
7. The facts of the case show that the petitioner was issued a notice dated
03.11.2023, requiring the petitioner to explain the authorization letter allegedly
issued by Agilent Technologies to the petitioner, which Agilent Technologies had
denied issuing to the petitioner. The petitioner in it's reply dated 07.11.2023 had
admitted that they were unable to secure the necessary authorization letter
from Agilent Technologies. The debarment notice was thereafter issued, due to
the admission made by the petitioner for having submitted a fake authorization
certificate.
8. The question to be decided is whether the petitioner could have been
debarred in the absence of any notice being issued to the petitioner, stating that
there was a proposal to debar/blacklist the petitioner, after giving specific
reasons for the proposal that was sought to be made by the respondents.
Page No.# 5/5
9. On perusing the impugned notice/letter dated 03.11.2023, this Court finds
that no proposal or intention of the respondents can be made out, to the effect
that they intended to debar/blacklist the petitioner.
10. In the case of Gorkha Security Services vs Govt. of NCT of Delhi &
Others, reported in (2014) 9 SCC 105, the Supreme Court has held that in
order to fulfill the requirement of principles of natural justice pertaining to
debarment/blacklisting, a Show-Cause Notice should meet the following two
requirements, (i) the materials/grounds to be stated which according to the
department necessitates an action and (ii) particular penalty/action which is
proposed to be taken. In the present case, no prior notice was issued to the
petitioner to the effect that the penalty of debarment was being proposed to be
taken against the petitioner. Further, in the notice dated 03.11.2023, it cannot
be discerned that the penalty of debarment was going to be inflicted.
11. In view of the above reasons, the impugned debarment notice dated
09.11.2025 is not sustainable, as the same is not in consonance with the
requirements to be stipulated in a notice for debarment, in terms of the
judgment of the Supreme Court in the case of Gorkha Security Services
(supra). The same is accordingly set aside. However, liberty is given to the
respondents to issue a notice afresh to the petitioner, if they propose to inflict
the penalty of debarment against the petitioner.
12. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
