Madhya Pradesh High Court
M/S Parmar Associates Station Road ... vs The State Of Madhya Pradesh on 19 February, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 19th OF FEBRUARY, 2025
WRIT PETITION No. 26861 of 2024
M/S PARMAR ASSOCIATES STATION ROAD DHOLPUR
(RAJSTHAN) THROUGH ITS PROPRIETOR RAKESH SINGH
PARMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri D.P.Singh - Advocate for the petitioner.
Shri Vijay Sundaram - Government Advocate for the respondent No.1/State.
Shri Deepak Khot - Advocate for the respondents Corporation.
ORDER
Per: Justice Anand Pathak
The present petition under Article 226 of the Constitution is
preferred by the petitioner seeking following reliefs:
"(i) That, the order impugned order
no.01/2024/2/10/Jan-Sampark/ 9632-9671 dated 04/
14th May, 2024 passed by the Respondent No.2
contained in Annexure - P/1 may kindly be quashed
with all consequential effects declaring the same illegal
and arbitrary, in the interest of justice.
(ii) That, the respondents be further commanded not to
black list the petitioner firm for three years with a
further to refund security deposit which has been
forfeited illegally, in the interest of justice.
(iii) That, the respondents be further commanded that
the security deposit amount, deposited by the petitioner
be refunded alongwith interest @ 18% p.a. interest, in
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the interest of justice.
(iv) Cost of the petition be awarded or any other order
or direction deemed fit in the circumstances of the case
be issued in the favour of the petitioner.
2. Precisely stated facts of the case are that the petitioner submitted
tender in pursuance to the e-tender process issued by the respondent
Corporation for doing catering work for 365 days. Being the lowest bidder,
the bid of the petitioner has been accepted and an agreement has been
executed on 16.03.2024 between petitioner and respondent No.2. Thereafter
petitioner has been directed to deposit security amount and EMD amount,
which was deposited by the petitioner. During Parliamentary Election, the
petitioner was directed to provide lunch packets on 06.05.2024 and
07.05.2024 for the employees engaged in the election work but vide letter
dt.15.04.2024, petitioner showed his inability to provide lunch packets.
Therefore, a show cause notice was issued to the petitioner on 15.04.2024 for
negligence in work and he was directed to file reply else security amount
was directed to be forfeited and blacklisting proceeding was directed to be
initiated. Thereafter, petitioner was directed to supply snacks and high-tea for
a meeting convened on 02.05.2024 at Election Office but quality of food
items was found to be below standard, therefore, a show cause notice was
issued on 03.05.2024. Thereafter, vide impugned order dated 04.05.2024 the
agreement executed between the parties on 16.03.2024 has been rescinded,
security deposit and EMD amount were forfeited and the petitioner is
saddled with liability of blacklisting for three years. Therefore, petitioner
filed the present petition.
3. It is the contention of the petitioner that detailed reply to the show
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cause notice was submitted by the petitioner denying the allegations lavelled
against the petitioner firm. Without considering the aforesaid reply and the
objections raised by the petitioner, the respondents terminated the agreement
and blacklisted the petitioner with further order of forfeiture of security
deposit amount and EMD amount. Before taking such action, no reasonable
opportunity of hearing was provided to the petitioner. The aforesaid order
being illegal, arbitrary and mala fide is liable to be quashed. In support of his
contention, learned counsel relied upon the judgment of Apex Court in the
case of Gorkha Security Services Vs. Government (NCT of Delhi) and others
- (2014) 9 SCC 105 so also the order passed by the Co-ordinate Bench of this
Court in Upto Mark Advertisement Pvt. Ltd. and Ors. Vs. Indore Municipal
Corporation and Ors - W.P.No.4059/2024 (MANU/MP/1599/2024).
4. Learned counsel for respondent corporation submits that petitioner
was directed to provide lunch packets on 06.05.2024 and 07.05.2024 for the
employees engaged in the election work but petitioner showed his inability
to provide lunch packets. Therefore, a show cause notice was issued to the
petitioner on 15.04.2024 for negligence in work and he was directed to file
reply else security amount and EMD amount was directed to be forfeited and
blacklisting proceeding was directed to be initiated. Since petitioner
consented that he will execute the work of election duty for supplying of
food packets with due diligence with quality items, therefore petitioner was
directed to supply snacks and high-tea for a meeting convened on 02.05.2024
at Election Office but the quality of the articles supplied was found to be
below standard and the food items which were required to be served were
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not served. Therefore, a show cause notice was issued to the petitioner on
03.05.2024. Only thereafter the impugned order has been passed. Learned
counsel placed reliance on the judgment of the Apex Court in the case of
Blue Dreamz Advertising Pvt. Ltd. and Another Vs. Kolkata Municipal
Corporation and others - 2024 SCC OnLine SC 1896 in support of his
contention. He prays for dismissal of the writ petition.
5. Heard learned counsel for the parties at length and perused
the documents appended thereto.
6. In the present case, the petitioner is taking exception to the order
dated 4.5.2024 whereby agreement executed between the parties on
16.03.2024 rescinded and the petitioner is saddled with liability of
blacklisting for three years.
7. It appears from the documents submitted by the petitioner that on
16.03.2024 petitioner stood successful in e-tendering for performing catering
work in Municipal Corporation Gwalior for complete one year. Agreement
conditions were categorical in this regard that if the petitioner is found unable
to perform the duties as assigned as per contract, then tender of the petitioner
would stand rejected and earnest money deposited would be forfeited.
Therefore, contractor is bound by the contract.
8. As per allegations, on 15.04.2024, petitioner showed inability to
provide lunch packets during election duties (6.5.2024 and 7.5.2024) and the
petitioner declined to provide food packets in writing. Later on, when a
meeting was convened on 02.05.2024 and the petitioner was directed to
supply snack and high-tea, then not only quality of the same was found to be
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below standard but the food items, which were required to be served, were
not served. Therefore, allegations against the petitioner appeared to be
serious in nature. If the quality of food stuff is not maintained, then certainly
authorities have power to rescind the contract.
9. So far as opportunity of hearing is concerned, show cause notice
was issued to the petitioner on 03.05.2024 incorporating issue of forfeiture of
earnest money deposit and of blacklisting. Show cause notice contains both
these aspects. On 04.05.2024, the petitioner replied the said show cause
notice but vide order dated 4.5.2024 (apparently sent on 14.05.2024), the
impugned order has been passed. Therefore, plea of opportunity of hearing is
not available to the petitioner.
10. Contention of the petitioner that respondent corporation sought
some food packets at some urgent note, which was beyond the capacity of
the petitioner, does not found favour on the ground that in election process
when hundreds of officers/employees of government machinery are
involved, then at times additional food stuff is required to be made available.
There is no arbitrariness in such action. A professional caterer is supposed to
be well-versed with such exigencies.
11. In the impugned order, respondents have mentioned poor quality
of food stuff and that aspect can not be ignored at all. At times caterers just
to maintain themselves in fray quote low rates to become successful bidder
but find difficult to maintain quality of such food stuff. At this juncture, it
would be difficult to assess the quality of food stuff supplied by petitioner at
that point of time. It is to be gathered from the documents and proceedings
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undertaken. Therefore, this Court does not intend to enter in the arena of
subjectivity. As such opportunity of hearing was provided and thereafter the
impugned order has been passed.
12. So far as judgments relied upon by the learned counsel for the
petitioner in the case of Upto Mark Advertising Pvt. Ltd. (supra) is
concerned, it does not support the case of the petitioner because in the
present case show cause notice was given.
13. Even in the case of Gorkha Security Services (supra) cited by the
learned counsel for the petitioner, Apex Court held as under :-
22. The High Court has simply stated that the purpose of show-
cause notice is primarily to enable the noticee to meet the grounds
on which the action is proposed against him. No doubt, the High
Court is justified to this extent. However, it is equally important to
mention as to what would be the consequence if the noticee does
not satisfactorily meet the grounds on which an action is proposed.
To put it otherwise, we are of the opinion that in order to fulfil the
requirements of principles of natural justice, a show-cause notice
should meet the following two requirements viz:
(i) The material/grounds to be stated on which
according to the Department necessitates an action;
(ii) Particular penalty/action which is proposed to be
taken. It is this second requirement which the High
Court has failed to omit.
We may hasten to add that even if it is not specifically mentioned
in the show cause notice but it can be clearly and safely be
discerned from the reading thereof, that would be sufficient to
meet this requirement.
14. Here show cause notice contains specific course of events, which
led to issuance of show cause notice and incorporates the grounds for which
action is necessitated. It also refers proposed penalty/action against the
petitioner. Therefore, relying upon the said judgments, it appears that no case
for interference is made out. The petition filed by the petitioner being bereft
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of merit is hereby dismissed.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
SP
