Jharkhand High Court
M/S Bajrangi Transport Having Its ... vs Bharat Coking Coal Limited Through Its ... on 16 January, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1830 of 2020
M/s Bajrangi Transport having its registered office at Salanpur, Katrasgarh,
Dhanbad represented through its proprietor Shobha Devi
..... Petitioner
Versus
1. Bharat Coking Coal Limited through its Chairman-cum-Managing Director
having its registered office at Koyla Bhawan, Dhanbad, Jharkhand
2. The Director (Personnel), Bharat Coking Coal Limited, having its registered
office at Koyla Bhawan, Dhanbad, Jharkhand
3. The General Manager (Admn), Bharat Coking Coal Limited having its
registered office at Koyla Bhawan, Dhanbad, Jharkhand
4. The Senior Manager (P), CTP (Central Transporting Pool), Bharat Coking
Coal Limited, having its registered office at Koyla Bhawan, Dhanbad,
Jharkhand ..... Respondents
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CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay
Hon'ble Mr. Justice Deepak Roshan
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For the Petitioner : Mrs. Jasvindar Majumdar, Advocate
Mrs. Neeharika Roy Majumdar, Advocate
For the Respondents : Mr. Anoop Kr. Mehta, Advocate
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06/ 16.01.2024 Heard Mrs. Neeharika Roy Majumdar, learned counsel
appearing for the petitioner and Mr. Anoop Kumar Mehta, learned counsel
appearing for the respondents.
2. In this writ application, the petitioner has prayed for quashing the
memo No. BCCL/HOD (Admn/CTP/2020/1345 dated 27.03.2020 issued by
the respondent No.3, whereby and where under the bid security/EMD
deposit amounting to Rs. 71,400/- has been forfeited and the petitioner has
been debarred from participating in future bids of respondents for a period of
12 months.
3. It has been submitted by learned counsel appearing for the petitioner
that the impugned letter dated 27.03.2020 amounts to blacklisting of the
petitioner without any show cause notice. It has further been submitted that
such blacklisting has obstructed the future prospects of the petitioner
especially with respect to the other public sector enterprises.
Learned counsel has also submitted that in the various
correspondences which were issued by the respondents to the petitioner it
has not been mentioned in categorical terms that in case the petitioner fails to
fulfill the requirements in terms of clause 4.1 and 4.2 of the instructions to
bidders they will take resort to clause 4.3 of the said instruction which
entails debarring defaulting contractor from participating in the future bids
for a minimum period of 12 months.
4. Mr. A.K. Mehta, learned counsel appearing on behalf of the
respondents has submitted that clause 4.3 of the general terms and conditions
of the contract is the consequence of non-performing the guidelines of clause
4.1 and 4.2. It has further been submitted by referring to the counter affidavit
that various correspondences were made to the petitioner requesting him to
deposit the performance security deposit as well as additional performance
security apart from the other requirements; but in spite of the acceptance of
the prayer of the petitioner for grant of some more time in complying with
the said requirements it was not adhered to and therefore the respondent
BCCL did not have any option but to invoke clause 4.3 of the terms and
conditions of the contract.
Learned counsel has further submitted that the period of 12 months
has since expired and the petitioner has been given work orders with respect
to different other works.
The petitioner is the proprietor of M/s Bajrangi Transport and is doing
business with the respondent company since the year 1990. The petitioner
had responded to e-NOTICE INVITING TENDER for hiring of new Bolero/
Sumo/ Eqv with 02 Drivers for 24 hours engagement for use of CISF, BCCL,
hiring of new Bolero Camper/ Tata Xenon/ Eqv (Two-Cabin, minimum
carrying capacity 700 Kg) with 02 Drivers (with staggered rest) and 24 Hrs.
Engagement for use of CISF, BCCL and hiring of new Maruti Eeco/ Eqv.
(A.C) with 02 Drivers (with staggered rest) and 24 Hrs. Engagement for use
of CISF, BCCL and the petitioner was found to L-1.
Consequent to the same, the petitioner was accordingly given a letter
of acceptance vide BCCL/HOD (Admn) CTP/ 2020/ 1001 dated 27.01.2020
and as per the terms and conditions of the contract the petitioner was
required to deposit the performance security deposit and additional
performance security deposit within 28 days from the date of receipt of letter
of acceptance along with other terms and conditions.
5. It appears from the instant writ application that several letters
followed by reminders were sent to the petitioner to comply with the
requirements and it was also indicated therein that failure on the part of the
petitioner would result in penal action which includes forfeiture of the bid
security amount and the debarment from participating in future bids for a
minimum period of 12 months. The petitioner had prayed for some time and
also communicated with the respondent BCCL, however, since the petitioner
failed to follow the directives as enumerated in the contract, the letter of
acceptance was cancelled and the bid security amount of Rs.71,400/- was
forfeited. The petitioner was also debarred from participating in the future
bids for a period of 12 months.
6. In course of the submission Mrs. Majumdar, learned counsel
appearing for the petitioner has referred to the case of NMC Technologies
Private Limited versus Food Corporation of India and another reported in
(2021) 2 SCC 551 while submitting that the blacklisting of the petitioner
was done by violating the principle of natural justice as the show cause
notice did not explicitly mention that in case of failure on the part of the
petitioner to adhere to the terms and conditions of the contract it will be
blacklisted for a period of 12 months. The relevant portion of the judgment
noted above reads as under:
"24. A plain reading of the notice makes it clear that the
action of blacklisting was neither expressly proposed nor
could it have been inferred from the language employed by
the Corporation in its show-cause notice. After listing 12
clauses of the "Instruction to Bidders", which were part of
the Corporation's bid document dated 25-11-2016, the notice
merely contains a vague statement that in light of the alleged
leakage of question papers by the appellant, an appropriate
decision will be taken by the Corporation. In fact, Clause 10
of the same Instruction to Bidders section of the bid
document, which the Corporation has argued to be the
source of its power to blacklist the appellant, is not even
mentioned in the show-cause notice. While the notice
clarified that the 12 clauses specified in the notice were only
indicative and not exhaustive, there was nothing in the notice
which could have given the appellant the impression that the
action of blacklisting was being proposed. This is especially
true since the appellant was under the belief that the
Corporation was not even empowered to take such an action
against it and since the only clause which mentioned
blacklisting was not referred to by the Corporation in its
show-cause notice. While the following paragraphs deal with
whether or not the appellant's said belief was well-founded,
there can be no question that it was incumbent on the part of
the Corporation to clarify in the show-cause notice that it
intended to blacklist the appellant, so as to provide adequate
and meaningful opportunity to the appellant to show cause
against the same.
25. The mere existence of a clause in the bid document,
which mentions blacklisting as a bar against eligibility,
cannot satisfy the mandatory requirement of a clear mention
of the proposed action in the show-cause notice. The
Corporation's notice is completely silent about blacklisting
and as such, it could not have led the appellant to infer that
such an action could be taken by the Corporation in
pursuance of this notice. Had the Corporation expressed its
mind in the show-cause notice to blacklist, the appellant
could have filed a suitable reply for the same. Therefore, we
are of the opinion that the show-cause notice dated 10-4-
2018 does not fulfil the requirements of a valid show-cause
notice for blacklisting. In our view, the order of blacklisting
the appellant clearly traversed beyond the bounds of the
show-cause notice which is impermissible in law. As a result,
the consequent blacklisting order dated 9-1-2019 cannot be
sustained."
7. The case which has been referred to by the learned counsel for the
petitioner is clearly distinguishable from the facts of the present case in view
of the fact that repeatedly respondent BCCL intimated the petitioner for
complying with the requirements of the terms and conditions of the contract
which has been enumerated in clause 4.1 and 4.2 and failure on the part of
the petitioner to adhere to such terms and conditions will result in debarment
from participating in future bids for a period of 12 months. In fact, the time
for complying the clause 4.1 and 4.2 of the contract seems to have been
extended at the behest of the petitioner but in spite of the same, the
requirements were not complied with by the petitioner which ultimately led
to the issuance of the impugned letter whereby the letter of acceptance
granted to the petitioner was cancelled followed by forfeiture of his security
deposit and debarment from participating in future bids for a period of 12
months.
The aforesaid clearly indicates that the petitioner was made aware
about the consequences which can occur in case of his failure to fulfill the
terms and conditions as indicated in clause 4.1 and 4.2 of the contract and it
has been explicitly mentioned in several correspondences to that effect but in
spite of the same, the petitioner did not fulfill the terms and conditions as
required and therefore the consequences followed. It cannot therefore be said
that debarment of the petitioner for a period of 12 months was in violation of
the principle of natural justice.
8. In view of what we have noted above, we are not inclined to entertain
this application. Accordingly, the instant application stands dismissed.
Pending I. A. stands closed.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Pramanik/
