M/S Somnath Developers vs Gujarat State Civil Supplies ...
2021 Latest Caselaw 1870 Guj

       C/SCA/15233/2019                                             ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 15233 of 2019
                           With
       R/SPECIAL CIVIL APPLICATION NO. 15430 of 2019
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                  M/S SOMNATH DEVELOPERS
                           Versus
      GUJARAT STATE CIVIL SUPPLIES CORPORATION LTD.
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
PRANAV U RAVAL(9475) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE R.P.DHOLARIA
                    Date : 09/02/2021
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. The issue involved in this petitions are similar and the prayers prayed are also similar and therefore, both the petitions were heard together and dealt with and disposed of by this common judgment and order.

2. Heard Mr. Bharat Rao, learned advocate for the petitioner in SCA No. 15233 of 2019 and Mr. H.R. Prajapati, learned advocate for the petitioner in SCA No. 15430 of 2019, Mr. Mehul S. Shah, learned senior advocate assisted by Mr. Pranav U Raval, learned advocate for respondents no.1, 3 and 4 in SCA No. 15233 of 2019 and for respondents no. 1, 2 and 3 in SCA No. 15430 of 2019 and Ms. Manisha L. Shah, learned Government Pleader assisted by Mr. Tirthraj Pandya, learned AGP for respondent no.2 in SCA No. 15233 of 2019

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and for respondents No. 2,4,5 and 6.

3. In both these petitions under Article 226 of the Constitution of India, the challenge is to the order dated 23.08.2019 passed by the General Manager of Respondent No.1 whereby the petitioners were debarred from acting as contractor in transporting the essential commodities and came to be blacklisted.

4. Various allegations were made against the officers of respondent no.1 in the petition and even at the time of hearing at the admission stage. This Court while admitting the matter passed the following order ­

"1. Challenge in these two petitions is made to two separate but identical orders passed by the respondent Gujarat State Civil Supplies Corporation Ltd. both dated 23.08.2019, whereby both the petitioners, who were working with the Corporation as Transport / Labour Contractors are black listed, they are debarred from participating in any tender / auction proceedings of the Corporation in future and their security deposit is forfeited. The said orders are stated to have been issued under the orders of the Managing Director of the respondent Corporation.

2. Heard Mr. B.T. Rao, learned advocate for the petitioner of Special Civil Application No. 15233 of 2019, Mr. H.R. Prajapati, learned advocate for the petitioner of Special Civil Application No. 15430 of 2019 and Mr. Pranav Raval, learned advocate for the respondent Corporation.

3. The matter requires consideration.

4. Learned advocates for the petitioners have

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addressed the Court at length and have extensively taken this Court through the material on record. It is contended on behalf of the petitioners that, not only the impugned orders are illegal, arbitrary and unsustainable in law on merits, on more than one grounds, the very foundation of the proceedings in question is the complaint filed by the petitioner of Special Civil Application No. 15430 of 2019 to the Anti Corruption Bureau of the State, that some officer of the respondent Corporation is asking bribe from him and needful be done. It is submitted that pursuant to the said complaint, a trap was laid by the Anti Corruption Bureau on 08.08.2019, the said trap was successful and the officials of the Corporation, against whom complaint was made, were red handed trapped. An offence in this regard is registered by the ACB authorities being CR No. 15 of 2019 with Surat City ACB Police Station. The Directorate of ACB, informed about this to the Managing Director of the respondent Corporation on 14.08.2019, inter­alia requesting therein (vide Para­3 thereof) that it be ensured that the complainant is not harassed in any manner by the officers of the Corporation. It is this proceedings, which has instantly culminated into the impugned orders (dated 23.08.2019) against the petitioners, including the whistle blower himself.

5. Mr. Pranav Raval, learned advocate for respondent Corporation has drawn the attention of this Court to the contents of the affidavit­ in­reply filed on behalf of respondent No.1, sworn by the Deputy District Manager (Grade­2), Surat dated 13.10.2019 and has contended that no interference be made by this Court. It is also submitted that there was due compliance of the principle of natural justice.

6.1 Mr. Raval, learned advocate for respondent No.1 has, under instructions, further stated that two employees of the respondent Corporation are terminated from service. He has further submitted that, on the basis of the inquiry report, it was 'assumed' by the authorities that the alleged malpractice could not be the job of only some employee(s) of the

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Corporation and some actions were required against the petitioners as well. 6.2 Since the above noted two additional submissions (as noted in Para­ 6.1 above) made on behalf of the respondent Corporation are not pleaded in the affidavit­in­reply, learned advocate for the respondent is specifically asked to confirm the same, which he has confirmed.

7. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.

7.1 The contents of the impugned orders dated 23.08.2019 make it clear that the same were passed after taking into consideration four documents :­ (i) Letter of the General Manager (Personnel) dated 14.08.2019 (ii) Inquiry report dated 20.08.2019 (iii) Letter of the General Manger (Vigilance) dated 23.08.2019 and

(iv) orders of the Managing Director of the Corporation dated 23.08.2019 on the file.

7.2 The above would show that, not only it is the case of the petitioners that no notice was given to them, it is the case of the respondent No.1 as well, on record that no notice was given to the petitioners for the impugned action. The reference to telephonic intimation by the authorities of the Corporation dated 22.08.2019 to the petitioners (at Vapi) to contact the respondent authorities on 23.08.2019 at 11:00 a.m. at Gandhinagar, with regard to a vigilance case, according to us can not be said to be notice to the petitioners, as required under the law, for the impugned actions. Reference in this regard can be made to the decision of the Supreme Court of India in the case Gorkha Security Services Vs. Government (NCT of Delhi) reported in (2014) 9 SCC 105.

7.3 The impugned orders also record that the authority has 'prima­facie found that' some illegality is committed by the petitioners. Thus, the satisfaction recorded by the respondent with regard to illegality by the petitioners is prima facie in nature, while the impugned action is final in nature, which

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include blacklisting, forfeiture of security deposit etc.

8. Since this Court is not finally disposing the matters, recording any further finding or observation at this stage may prejudice the case of either of the parties, the same is not done, and further, we are satisfied that, the above noted reasons are sufficient for the purpose of the order, which we intend to pass.

9. For the reasons recorded above, the following order is passed.

9.1 Rule.

9.2 It is directed that the impugned orders dated 23.08.2019 (in both the petitions) shall remain stayed till further orders.

9.3 It is further directed that, the position with regard to the amount of security deposit of the petitioners, which is forfeited, shall be restored by the respondent authorities.

9.4 The Managing Director of the respondent No.1 Corporation is directed to file affidavit, dealing with the contentions of the petitioners. It is further ordered that in the said reply, complete details with regard to 'the termination of two employees of the Corporation', as claimed by the learned advocate for respondent No.1 as referred to in Para­6.1 and 6.2 above, shall also be given. Copies of such termination orders, if any passed, be also placed on record.

10. There is one more dimension of the matter. If any citizen is penalized by the State Authorities for approaching the ACB organization with the grievance that some Government Official is asking for bribe and needful be done, what corrective and punitive actions should be taken by the State, is also an aspect on which the stand of the higher Authorities of the State also needs to be on record. For this reason, the following three authorities are ordered to be added as party respondents No. 4 to 6 in Special Civil Application No. 15430 of 2019.

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4. The State of Gujarat, Notice to be served through the Additional Chief Secretary, Home Department, New Sachivalaya Complex, Gandhinagar.

5. The State of Gujarat, Notice to be served through The Secretary, Food, Civil Supply & Consumer Affairs Department, New Sachivalaya Complex, Gandhingar.

6. The Director, Anti Corruption Bureau, Gujarat State, Bungalow No.17, Dafnala, Shahibaug, Ahmedabad­380004.

11. Issue Notice to the newly added respondents returnable on 28.11.2019.

Direct Service is permitted."

5. During the pendency of these petitions, the newly added parties as well as respondent no.1 filed affidavit­in­reply. The affidavit filed by respondent no.6 in SCA No. 15430 of 2019 indicates that a successful trap was conducted by the ACB Department, Surat on 08.08.2019 and two officers of respondent no.1 Corporation were caught red­handed. One of the major grievances raised by the petitioners in both the petitions was that as they were whistle blowers, they were subjected to the impugned order of blacklisting. In the affidavit filed by the Managing Director of respondent no.1 Corporation, it has been averred thus ­

"(3) I say and submit that ACB Trap was conducted on 08/08/2019 in which two

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employees of Corporation

(1) Mr. Ashok Suchak, (I/c Deputy District Manager­II, Surat­Tapi) and

(2) Shri R.M. Patel, (Assistant Depot Manager) were caught at Surat (Navagam Godown) and under imprisonment and hence they were put under suspension vide order dated: 09/08/2019.

Further, during surprised checking drive conducted across the state on 19th August, 2019, huge shortfall of stock at Vyara Godown amounting to Rs. 61,49,539/(Rupees Sixty­One Lacs Forty Nine Thousand Five Hundred Thirty nine) was found. In this regard, two employees of Corporation

(1) Shri Alpesh B. Chaudhari (Depot Manager)Vyara Godown, a fix salaried employee's services were brought to an end vide order dated 23/08/2019 as per Government Resolution dated 20/10/2015 and

(2) Shri Ashok Suchak who was already under suspension orders and in imprisonment, had been terminated vide order dated: 23/08/2019.

Shri Ashok Suchak was common employee in both the cases. The copies of which are annexed herewith and marked as Annexure I

(4) I also further state that it transpires from the record that it was on 19/8/2019 itself that a surprise checking was conducted across the State pursuant to the approval given on file dated: 13/08/2019 and order dated: 14/08/2019 and thereupon, on finding the irregularities and upon consideration of the report prepared in that connection, an opinion was formed leading to passing of the impugned order.

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I say that the office of the present deponent received the copy of the letter dated 14/08/2019 of the Anti­Corruption Bureau on 19/08/2019 having inward no. 1191 and therefore it appears that the surprise checking conducted across the state including the premises in question was already commenced on 19/8/2019 which was not pursuant to the letter of ACB dated 14/08/2019.

The copy of the order for carrying out surprise checking is annexed herewith and marked as Annexure II.

(5) Pursuant to the order dated: 20/1 1/2019 of this Hon'ble Court, compliance has been made and Memorandum Dated : 27/11/2019 has been issued under which the following actions have been taken:

(a) The security deposit of the Petitioner has been restored. (b) The order dated: 23/08/2019 for blacklisting the Petitioner has been revoked with effect from its inception.

(c) The Petitioner has been re­assigned the work under the contract.

(d) The withheld amount of bills of the Petitioner has been directed to be paid immediately.

The copy of the said memorandum issued dated: 27/11/2019 is annexed herewith and marked as Annexure III."

6. The aforesaid stand of the respondent no.1 shows that the main grievance ventilated by the petitioners in both the petitions stand redressed.

7. The State Government is further directed to

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follow the directions issued by this Court in its order dated 20.11.2019 and disposal of these petitions shall not in any manner, affect the criminal proceedings pending before the competent Court. As the impugned order dated 23.08.2019 are already quashed and that the petitioner is restored back to the original position in the contract, which is already been over, hence no further orders are required.

8. The State as well as the ACB authorities shall ensure that no whistle blower is targeted and that the authorities shall take appropriate action as stated in the affidavit filed by the respondent no.6 in SCA No. 15430 of 2019.

9. Mr.Bharat Rao, learned advocate for the petitioner in SCA No. 15233 of 2019 raised the grievance that even though the contract was restored and that the petitioner has completed his work, the payment is not being made. The said contention is beyond the scope and ambit of the present petition. However, it is expected that the respondent authorities shall take appropriate decision and act in accordance with law. The petitions are disposed of accordingly. However, there shall be no order as to costs.

sd/­ (R.M.CHHAYA, J)

sd/­ (R.P.DHOLARIA, J) BIJOY B. PILLAI