Uttarakhand High Court
AO/233/2021 on 23 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK
APPEAL FROM ORDER NO. 233 OF 2021
23rd NOVEMBER, 2021
Between:
Bharti Airtel Services Limited ...... Appellant
and
Directorate of Treasuries, Pension
and Entitlements ...... Respondent
Counsel for the appellant : Mr. A. S. Rawat, learned Senior
Counsel assisted by Mr. Pankaj
Tangwan, learned counsel
Counsel for respondent : Mr. B.S. Parihar, learned Standing
Counsel for the State
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
With the consent of the learned counsel for the
parties, this case is being decided at the admission stage
itself.
2. The appellant M/s Bharti Airtel Services
Limited has challenged the legality of the order dated
01.11.2021, passed by the Additional District Judge /
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Commercial Court, Dehradun, whereby the learned
Judge had dismissed the application filed by the
appellant under Section 9 of the Arbitration and
Conciliation Act, 1996 ("the Act", for short).
3. Briefly, the facts of the case are that the
respondent, Directorate of Treasuries, Pension and
Entitlements, had issued a tender notice. The appellant
had participated in the tender process; on the
completion of the tender process, the appellant was
declared as the lowest bidder (L-1).
4. After the finalization of the financial bid, M/s
Reliance Retail Limited, one of the bidders, submitted a
complaint on 06.04.2021, wherein it requested that M/s
Reliance Retail Limited should be declared as the lowest
bidder, and not the appellant. Notwithstanding the
complaint dated 06.04.2021, on 26.06.2021, the work
order was issued to the appellant by the respondent.
5. On 02.07.2021, another complaint was filed by
the respondent. Relying on the said complaints, the
respondent cancelled the work order by its order dated
21.08.2021. Therefore, the appellant filed an application
under Section 9 of the Act for staying the operation of
the order dated 21.08.2021. However, by the impugned
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order, the said application has been dismissed. Hence,
the present appeal before this Court.
6. Mr. A.S. Rawat, the learned Senior Counsel for
the appellant, submits that neither the complaint dated
06.04.2021, nor the complaint dated 02.07.2021, were
ever brought to the notice of the appellant. Therefore,
without giving an opportunity of hearing to the
appellant, the order dated 21.08.2021 was passed by
the respondent. According to the learned Senior
Counsel, once civil rights are adversely affected, no
order can be passed without giving an opportunity of
hearing. Therefore, the order dated 21.08.2021 suffers
from non-application of mind, and suffers from a
colourable exercise of power. However, these points
have not been noted by the learned Commercial Court.
Therefore, the order dated 01.11.2021, deserves to be
set aside.
7. After the cancellation of the work order, by
order dated 01.11.2021, the respondent has issued a
tender notice, and invited tenders from the prospective
persons. Since the very foundation of cancellation of the
work order is illegal, the issuance of a tender notice by
the respondent is legally unsustainable. Hence, even the
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subsequent steps taken by the respondent should be
stayed.
8. This Court has asked a pointed query to the
learned counsel for the respondent, namely whether any
opportunity of hearing was given to the appellant prior
to the passing of the order dated 21.08.2021? The
learned counsel for the State has frankly conceded, and
in the opinion of this Court rightly so, that no such
opportunity of hearing was granted to the appellant by
the respondent.
9. The importance of principles of natural justice
cannot be over emphasised. It is, indeed, a settled
principle of law that no adverse order can be passed
against a party, without giving that party an opportunity
of hearing. Admittedly, in the present case, the
appellant was declared as the lowest bidder; the work
order was issued to it on 26.06.2021. Yet, without
giving an opportunity of hearing, the work order has
been cancelled by order dated 21.08.2021. Thus, prima
facie, the said order is patently illegal.
10. Therefore, the appellant has a strong, prima
facie, case in its favour; since the work order was issued
to the appellant, the balance of convenience also lies in
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favour of the appellant. In case, the work order were to
be cancelled, and that too without giving the opportunity
of hearing, an irreparable loss will be caused to the
appellant. Therefore, this Court sets aside the order
dated 01.11.2021, and stays the operation of the order
dated 21.08.2021.
11. Consequently, any steps taken by the
respondent for issuing of a fresh tender notice, and
inviting tender bids are, hereby, stayed.
12. With these directions, the appeal stands
allowed.
13. Let a certified copy of this order be issued to
the learned counsel for the parties, on payment of the
prescribed charges, today itself.
_______________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
____________________
NARAYAN SINGH DHANIK, J.
Dt: 23rd NOVEMBER, 2021
Negi
