Universal Tele Service vs The Chief General Manager ...
2023 Latest Caselaw 1139 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
    WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                        WP(C) NO. 280 OF 2023
PETITIONER:

          UNIVERSAL TELE SERVICE,
          AGED 48 YEARS
          ST. GEORGE BUILDING, PULAMON (P.O)
          KOTTARAKKARA, KOLLAM DISTRICT, PIN- 691506,
          REPRESENTED BY ITS PROPRIETOR,
          RAJESH BABU,AGED 48 YEARS, S/O M.V.BABU,
          PROPRIETOR, UNIVERSAL TELESERVICES,
          ST. GEORGE BUILDING, PULAMON (PO),
          KOTTARAKKARA, KOLLAM DISTRICT , PIN - 691531

          BY ADVS.
          R.REJI
          M.V.THAMBAN
          THARA THAMBAN
          B.BIPIN
          ARUN BOSE



RESPONDENTS:

    1     THE CHIEF GENERAL MANAGER (TELECOM)
          BHARAT SANCHAR NIGAM LIMITED,
          KERALA CIRCLE, DOORSANCHAR BHAVAN,
          PMG JUNCTION, THIRUVANATHAPURAM
          PIN - 695033

    2     THE PRINCIPAL GENERAL MANAGER,
          BHARAT SANCHAR NIGAM LIMITED,
          BSNL BHAVAN, KALATHIPARAMBIL ROAD,
          ERNAKULAM PIN - 682016

    3     THE DEPUTY GENERAL MANAGER
          BHARAT SANCHAR NIGAM LIMITED,
          BSNL BHAVAN, KALATHIPARAMBIL ROAD, ERNAKULAM
          PIN - 682016
 W.P.(C).280/2023
                                    2

      4       THE ASSISTANT GENERAL MANAGER,
              BHARAT SANCHAR NIGAM LIMITED,
              BSNL BHAVAN, KALATHIPARAMBIL ROAD, ERNAKULAM
              PIN - 682016

      5       THE DIVISIONAL ENGINEER TELECOM,
              BHARAT SANCHAR NIGAM LIMITED,
              ALUVA, ERNAKULAM DISTRICT
              PIN - 683101

              BY ADV MATHEWS K.PHILIP KALAPPURACKAL PHILIPOSE



OTHER PRESENT:

              SR. ADV. RAMESH CHANDER




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).280/2023
                                        3




                                  JUDGMENT

Dated this the 18th day of January, 2023

This writ petition is filed aggrieved by Ext.P21

order, interdicting the petitioner from

participating in the tenders of the BSNL for

Ernakulam Business Area for three years. The

challenge is primarily on the ground that the

impugned order was passed without affording

sufficient opportunity to the petitioner. For this

purpose, learned Senior Counsel drew attention to

Ext.P11 interim order of this Court directing the

competent among the respondents to consider the

explanation offered by the petitioner, to the show

cause notice proposing to black list the petitioner,

and take a reasoned decision thereafter. It is

submitted that in purported compliance of the interim

order, Ext.P17 notice was issued, directing to appear W.P.(C).280/2023

for a personal hearing either online or offline at

12:00 p.m on 27.12.2022. On the same day, the

petitioner sent Ext.P18 reply pointing out his

inability to appear for the personal hearing as his

daughter was undergoing pediatric treatment.

Thereupon, the respondent issued Ext.P19

communication intimating that the hearing is

adjourned to the next day i.e 28.12.2022. The

petitioner again sent a reply (Ext.P20) explaining

his inability to appear and requesting to fix the

hearing to a date after 05.01.2023. In spite of the

request for adjournment based on a valid ground, the

impugned order was passed, blacklisting the

petitioner. It is submitted that if an opportunity is

granted, the petitioner will be able to prove that

it was not at fault and the contract ought to be

continued.

2. Learned Standing Counsel for the BSNL

submitted that sufficient opportunity was granted to W.P.(C).280/2023

the petitioner. Further, the medical certificate

furnished by the petitioner is suspicious, since it

is issued on Christmas day.

3. It is settled law that, black listing being

the harshest of punishments, the principles of

natural justice should be scrupulously followed. As

far as the instant case is concerned, even though the

BSNL had granted a days' adjournment on the

petitioner's request, that the petitioner having

sought a longer adjournment on the ground that his

daughter was undergoing pediatric treatment, the

request ought to have been considered

sympathetically, rather than proceeding to blacklist

the petitioner without hearing. Hence, I am

compelled to quash Ext.P21 order on the ground of

violation of the principles of natural justice.

In the result, the writ petition is allowed.

Ext.P21 Order is quashed. The petitioner shall appear

before the third respondent at 10:30 a.m., on W.P.(C).280/2023

31.01.2023 for the personal hearing. If the

petitioner fails to appear at the time and date

mentioned above, the 3rd respondent can take a

decision in the matter, without affording further

opportunity to the petitioner.

Sd/-

V.G.ARUN JUDGE Dxy W.P.(C).280/2023

APPENDIX OF WP(C) 280/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE RELEVANT PORTION OF THE TENDER NO.PLG/EXTERNAL PLANT MTNCE TENDER/TU10/1 BY THE 4TH RESPONDENT

Exhibit P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 22.11.2022

Exhibit P3 TRUE COPY OF THE REPLY SENT BY THE PETITIONER DATED 23.11.2022

Exhibit P4 TRUE COPY OF THE NEWSPAPER REPORTED APPEARED IN DESHABHIMANI DAILY DATED 11.11.2022

Exhibit P5 TRUE COPY OF THE LETTER ISSUED BY THE 4THRESPONDENT DATED 24.11.2022

Exhibit P6 TRUE COPY OF THE REPLY DATED 28.11.2022

Exhibit P7 TRUE COPY OF THE NO. DET.ALY/22-23/7 DT.

29.11.2022 OF THE DIVISIONAL ENGINEER OF THE BSNL, ALUVA

Exhibit P8 TRUE COPY OF THE SHAW CAUSE NOTICE BEARING NO: KLEKM-17/18/(19)/2/2022-PLG EKM KRL/33 DATED 12.12.2022 ISSUED BY THE 4TH RESPONDENT

Exhibit P9 TRUE COPY OF THE REPLY DATED 17.12.2022

Exhibit P10 TRUE COPY OF THE STATEMENT FIELD BY THE RESPONDENTS 1 TO 5 IN W.P(C) NO.39973/2022

Exhibit P11 TRUE COPY OF THE INTERIM ORDER DATED 21.12.2022 IN W.P(C).NO.39973 OF 2022 (V)

Exhibit P12 TRUE COPY OF THE LETTER SENT BY THE PETITIONER DATED 23.12.2022

Exhibit P13 TRUE COPY OF THE B.S.N.L SAP ERP ROLL OUT W.P.(C).280/2023

VENDER MASTER DATA TEMPLATE

Exhibit P14 TRUE COPY OF ONE OF THE LETTERS ISSUED BY ONE GIRISH KUMAR P.P DATED 20.12.2022

Exhibit P15 TRUE COPY OF THE REPRESENTATION SUBMITTED BY BSNL CONTRACTORS DATED 05.09.2022

Exhibit P16 TRUE COPY OF THE REPLY AFFIDAVIT IN W.P(C) NO.39973/2022

Exhibit P17 TRUE COPY OF THE E-MAIL DATED 24.12.2022 ISSUED BY THE 4TH RESPONDENT

Exhibit P18 TRUE COPY OF THE REPLY MAIL DATED 26.12.2022

Exhibit P19 TRUE COPY OF THE E-MAIL LETTER DATED 27.12.2022

Exhibit P20 TRUE COPY OF REPLY MAIL SENT BY THE PETITIONER DATED 27.12.2022

Exhibit P21 TRUE COPY OF THE SPEAKING ORDER NO:KL EKM-

17/18(19)/2/2022-PLG EKM KRL/59 DATED 31.12.2022

Exhibit P22 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 25.12.2022 ISSUED BY DR.ANIL.K.THARIAN

RESPONDENT EXHIBITS

Exhibit -R1(a) Exhibit-R1(a) : True copy of the tender notice dated 30.4.2022 published in June 2022

Exhibit-R1(b) Exhibit-R1(b) : True copy of the agreement dated 24.8.2022 between the petitioner and BSNL

PETITIONER EXHIBITS

Exhibit P23 True copy of the letter dated 28.06.2021 submitted by BSNL External Plan Maintenance W.P.(C).280/2023

Contractors' Association before the CFA Director, BSNL, New Delhi

Exhibit P24 True copy of the letter dated 23.03.2021 submitted by the petitioner before the 2nd respondent