Uttarakhand High Court
Rms Technosolutions (India) Pvt. Ltd vs State Of Uttarakhand & Others on 7 March, 2024
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE SRI JUSTICE RAKESH THAPILYAL
WRIT PETITION (M/S) NO. 2752 OF 2022
RMS Technosolutions (India) Pvt. Ltd. .....Petitioner.
Versus
State of Uttarakhand & others ....Respondents.
Counsel for the Petitioner : Ms. Meenakshi Arora, learned
Senior Counsel assisted by Mr.
Sahil Mullick, learned counsel.
Counsel for the State : Ms. Mamta Bisht, learned Deputy
Advocate General.
Counsel for the Respondent No.2 : Mr. Nitin Tiwari, proxy counsel
for Mr. C.K. Sharma, learned
counsel.
Judgment Reserved on: 28.02.2024
Judgment Delivered on: 07.03.2024
The Court made the following:
JUDGMENT:
(per Hon'ble The Chief Justice Ms. Ritu Bahri)
Petitioner has approached this Court seeking a writ
to quash the debarment order dated 23.09.2022, passed by
respondent no.2, pursuant to criminal proceedings initiated
against the petitioner-company by Special Task Force (for
short "STF"), pertaining to alleged involvement of the
petitioner- company in leakage of question papers of the
State Selection Commission Examination held on 04.12.2022/
05.12.2022 and Secretariat Guard Examination held on
26.09.2021.
2. Petitioner has placed on record the Certificate of
Incorporation dated 30.09.2010 (Annexure-1) to show that
the petitioner is a Private Limited Company incorporated
under the erstwhile Companies Act, 1956 with Certificate of
Incorporation dated 30.09.2010. The petitioner has its
registered office at Jankipuram, Lucknow, U.P. The main
objects of the petitioner is to provide manpower, placement,
recruiting, selecting, intervening, training and employing
workers and executives for various Government, Public &
Private Sector Undertakings.
3. Pursuant to the MoU (translated copy, Annexure-2),
petitioner was awarded the contract by respondent no.2 to
execute the works of "Pre and Post Examination Works
relating to the Uttarakhand Subordinate Services Selection
Commission Examination". As per Clause 6 of the MoU, the
printing work for the Commission was to be done in the
present and in front of the Commission's representative/
officers only after the sample and draft of the OMR sheet to
be printed is approved.
4. Criminal proceedings were instituted qua in FIR
No.0289 dated 22.07.2022 against unknown persons (initially
lodged u/s 420 IPC at P.S. Raipur, Dehradun) by respondent
no.2; and in the Final Report, namely Charge-sheet No.1
dated 19.09.2022, 18 persons have been charged u/s 420,
467, 471, 34 & 120-B IPC and Section 3/ 4/ 5/ 6/ 9/ 10 of
the U.P. Public Examination (Prevention of Unfair Means) Act,
1998. Thereafter, another FIR No.0351 dated 25.08.2022,
under Sections 409, 420, 468, 471 & 120-B IPC and Section
9/10 of the U.P. Public Examination (Prevention of Unfair
Means) Act, 1998, was lodged. Subsequently, supplementary
charge-sheet, namely charge-sheet No.2, dated 04.10.2022
and charge-sheet no.3, dated 19.10.2022, were filed.
5. As per the allegations set out in the First
Information Reports, erring employees were immediately
terminated by the petitioner- company. Copy of the
termination letters of Jaijeet Das, Abhishek Verma, Vipin
Bihari and Pradeep Kumar are Annexure-4 (collectively) to
this writ petition.
6. Petitioner was issued a show-cause notice by
respondent no.2 on 01.09.2022 (Annexure-5) to show-cause
as to why the petitioner- company should not be blacklisted
for the irregularities concerning the question paper leak by
two of its employees, namely, Jaijeet Das and Abhishek
Verma.
7. Another FIR No.0362, dated 04.09.2022 was
lodged under Section 2/3 of the U.P. Gangster and Anti-
Social Activities (Prevention) Act, 1986, wherein it has been
alleged that leakage of examination papers has been
clandestinely conducted with the active connivance of Shri
Rajesh Kumar Chauhan (Director of petitioner-company),
with other employees of petitioner- company and with the
active participation of the State Government employees and
outside agencies, by making a chain amongst themselves,
which would attract the provisions of Sections 2 and 3 of the
U.P. Gangsters and Anti- Social Activities (Prevention) Act,
1986, Uttar Pradesh Public Examination (Prevention of Unfair
Means) Act, 1998, and Prevention of Corruption Act, 1988.
Copy of the FIR is Annexure-6.
8. Petitioner- company gave its reply dated
07.09.2022 (Annexure-7) to the show-cause notice
(Annexure-5) taking the plea that the Directors/ Management
had no knowledge of the alleged leak, nor did they have any
involvement in the printing/ publication and issuance of the
question papers and it was the officers of respondent no.2-
Commission, in whose control and supervision, the question
papers were published/ printed and issued, and no officer or
Director of the company had any involvement, interference
or presence in the same. However, vide impugned order
dated 23.09.2022 (Annexure-8), the petitioner- company was
debarred from all works related to respondent no.2-
Commission on the grounds that five employees of the
petitioner- company, including the Director, Shri Rajesh
Kumar Chauhan and his brother Shri Sanjeev Kumar, have
been arrayed as accused in FIR No.289 and three employees
including the Director- Shri Rajesh Kumar, have been arrayed
as accused in FIR No.351. The paper was printed in the
Printing Press of the petitioner- company, the petitioner could
not take a stand that they had not involvement in the alleged
offence. While issuing the above said impugned order,
respondent no.2 did not consider the fact that their own
officers/ State Government officials were at the helm of the
printing affairs and it was these officers who had deep,
pervasive and absolute control, supervision and authority
over the printing of such question papers. Petitioner has
placed on record the appreciation letters issued by various
Government Agencies, who hired the petitioner- company, as
Annexure-9 collectively.
9. On notice in this writ petition, one counter-affidavit
dated 02.02.2023, has been filed by the Director (Training),
Training & Employment, Uttarakhand, taking the plea that the
answering respondent is neither a proper party nor a
necessary party for the adjudication of this present writ
petition. Another counter-affidavit dated 07.06.2023 has been
filed by the Inspector, Special Task Force, Dehradun. In
Paragraph No.5 of the said counter-affidavit, it is stated that
after registration of the FIR No.289/2022, under Sections
420, 467, 468, 471, 409, 120-B, 34 IPC and Sections 3, 4, 5,
9 and 10 of the Uttar Pradesh Public Examination (Prevention
of Unfair Means) Act, 1998, sufficient evidence were found
against the named persons, and the charge-sheet has been
submitted before the lower Court. Another case, i.e. Case
Crime No.362 of 2022, was registered under Sections 2/3 of
the Gangster Act, at P.S. Raipur, Dehradun. As per the
evidence collected, one Abhishek Verma, an employee of the
said company, while printing the question paper in the
printing press of RMS Technosolutions Pvt. Ltd. before the
examination, took photos of the question paper from his
mobile and sent a copy of the question paper through
Telegram to other co-accused/ employee of the company,
namely, Jaijeet Das. Thereafter, the question paper was
leaked before the exam under criminal conspiracy at various
levels and in lieu of which property worth crores of rupees
has been earned by earning illegal money from the
candidates, about 98,69,200/- cash and many blank cheques
were from the accused and the question paper leaked by
them in the said UKSSSC examination were found from the
possession of the accused, handwritten and electronic
evidence of candidates were also collected from mobile
phones, laptops etc. and original educational documents of
many candidates have also been recovered from the
possession of the accused from various levels. A copy of the
leaked paper was also provided to the accused Kendrapal by
Rajesh Kumar Chauhan. Sufficient evidence was found
against the accused Rajesh Kumar Chauhan and charge-sheet
has been submitted before the learned Court below.
10. With respect to the investigation in Case Crime
No.351 of 2022, under Sections 409, 420, 467, 468, 471,
120-B IPC and 4/10 of the Uttar Pradesh Public Examination
(Prevention of Unfair Means) Act, 1998, the Investigating
Officer in presence of the accused Pradeep Pal and the CCTV
cameras installed in the printing hall of Uttarakhand
Subordinate Selection Service Commission, it would found
that during the printing of the written question paper of the
Secretariat Security Cadre Recruitment Examination on
21.09.2021 by the employee/ accused Pradeep Pal of the said
RMS company who was present in the printing hall, is trying
to do some work at about 12:39:40 in the laptop by placing
white paper on the keyboard of the laptop for about 02
minutes till 12:41:37. In this regard, on inquiry to the
accused, it was told by the accused that he had copied the
written question paper of the Secretariat Security Cadre
Examination by putting a pen drive in the laptop and on the
night of 21.09.2021, the accused Jaijeet Das was given the
pen drive to the accused Rajesh Kumar Chauhan in the Palm
city flat of the company, before handing over the said pen
drive to accused Jaijeet Das by the accused Pradeep Pal, he
had written the copied question paper in some pages in his
handwriting by putting a pen drive in the old laptop of the
company, which was recovered from the flat in Palm City at
his behest. Accused Jaijeet Das gave the said pen drive to
accused Rajesh Kumar Chauhan when he copied the question
paper of the Secretariat Security Cadre from the laptop of
Commission to another pen drive, which was recovered from
his house in a broken condition at his behest. The case of was
registered against the accused Rajesh and other 24 gang
members in Case Crime No.362/22, under Sections 2/3
Gangster Act, P.S. Raipur, Dehradun, and the investigation is
in progress. During the investigation of many cases, it has
come to light that total five persons of the petitioner-
company, namely, Jaijeet Das, Abhishek Verma, Vipin Bihari,
Pradeep Pal, including the owner of the RMS Company,
namely, Rajesh Kumar Chauhan, at various levels before
examinations are involved in scam of paper leak.
11. Learned counsel for the petitioner has argued that
as per the judgment of the Hon'ble Supreme Court in the
case of Kulja Industries vs. Chief General Manager,
Western Telecom Project BSNL, (2014) 14 SCC 731, the
Supreme Court held that permanent blacklisting of the
Contractor is against the principles of reasonableness and
proportionality. The quantum of the period of debarment
should be balanced by the offence of the delinquent
contractor, and no permanent debarment/ blacklisting shall
be ordered by the ordered by the Authority in any
circumstances.
12. Learned counsel for the petitioner- company has
referred to another judgment of High Court of Calcutta in the
case of Auroma Coke Limited & another vs. Coal India
Limited & others, 2023 SCC OnLine Cal 2110, wherein
the Calcutta High Court held that if the period of trial had not
come to an end, and in that case, as per the clause, if a
person was found to be guilty/ convicted, banning from
participation will continue for a period of 5 years effective
from date of commencement of last suspension/ date of
conviction, whichever is earlier. Since the trial even after
eleven years, the trial was continuing and there was no delay
on the part of the petitioner, and the period had extended the
maximum period of five years of ban, the writ petition was
allowed and ban imposed against the petitioner was set-
aside.
13. The facts of the above case are not applicable to
the facts of the present case, as in the present case only
charge-sheet had been filed, and there was no mention of
maximum period of ban in the contract.
14. Another judgment referred to by learned counsel
for the petitioner is Daffodills Pharmaceuticals Ltd. &
another vs. State of Uttar Pradesh & another, (2020)
18 SCC 550. In that case also, the blacklisting order was
passed without hearing the appellants, and on account of
certain actions which were taken by the erstwhile Director
who had left the company long back. Instead of remanding
the matter back, the Supreme Court proceeded to decide to
matter, and quashed the adverse order. Pursuant to the
contract, the appellants were made the supplies of medicines
to various hospitals. As inquiry was pending against the
appellants for serious offences, the blacklisting order was
passed since a criminal case was registered against the
erstwhile Director, who did not have any connection with the
appellant from 22.02.2012. Another fact, which the Supreme
Court took note of was that as per the order dated
21.08.2015, no show-cause notice had been issued, and no
opportunity of hearing had been given to the appellants, and
the banning order was for indefinite duration. The debarring
order was made for a period of four years, and period of four
years and three months had gone by the time when the
matter was heard, and without giving an opportunity of
hearing to the appellants, debarring a person permanently
from entering into the contract with the U.P. Government, the
impugned order was set-aside.
15. In the present case, as the show-cause notice was
given (Annexure-5), to which, reply has been furnished by
the petitioner (Annexure-7), and debarment order was
passed by respondent no.2 on 23.09.2022 (Annexure-8), the
only question for consideration in the present writ petition is,
whether even if a show-cause notice has been given, and
reply to the same has been furnished, can the petitioner-
company be debarred permanently.
16. Learned counsel for the petitioner has further
referred to the General Financial Rules, 2017, issued by
Ministry of Finance, Department of Expenditure, Government
of India. Rule 151 relates to debarment from bidding, and the
same reads as follows:-
"Rule 151 Debarment from bidding.
(i) A bidder shall be debarred if he has been convicted
of an offence-
(a) under the Prevention of Corruption Act, 1988;
or
(b) the Indian Penal Code or any other law for the
time being in force, for causing any loss of life or
property or causing a threat to public health as
part of execution of a public procurement
contract.
(ii) A bidder debarred under sub-section (i) or any
successor of the bidder shall not be eligible to
participate in a procurement process of any procuring
entity for a period not exceeding three years
commencing from the date of debarment. Department
of Commerce (DGS & D) will maintain such list which
will also be displayed on the website of DGS & D as well
as Central Public Procurement Portal.
(iii) A procuring entity may debar a bidder or any of its
successors, from participating in any procurement
process undertaken by it, for a period not exceeding
two years, if it determines that the bidder has breached
the code of integrity. The Ministry/ Department will
maintain such list which will also be displayed on their
website.
(iv) The bidder shall not be debarred unless such bidder
has been given a reasonable opportunity to represent
against such debarment."
17. Learned counsel for the petitioner has also referred
to the judgment of the High Court of Punjab & Haryana, in
the case of Par Veen Kumar @Praveen Kumar Kataria vs.
Union of India, 2019 SCC OnLine P&H 7405, decided on
30.01.2019, whereby the blacklisting order dated 29.09.2014
(Annexure P-10), and the order dated 29.10.2014 (Annexure
P-11), whereby the petitioner had been delisted from
approved list of contractors in perpetuity, was set-aside, and
reference was made to the judgment of the Hon'ble Supreme
Court in the case of Gorkha Security Services vs.
Government of NCT of Delhi, (2014) 9 SCC 105, and;
Kulja Industries Ltd. vs. Chief General Manager W.T.
Proj. BSNL, (2014) 14 SCC 731.
18. In the facts of the present case, show-cause notice
was given before passing the impugned order. However, the
only question for consideration in the present writ petitioner
is, can the petitioner be debarred permanently.
19. In the facts of the present case, the impugned
order has been passed on the basis of the charge-sheet filed
against the Director, and other four co-accused/ employees of
the petitioner- company, and there is no conviction or
conclusion of the investigation, as per the counter-affidavit
filed by respondent nos.3 and 4. In this backdrop, as per the
judgment of the Hon'ble Supreme Court, in perpetuity, the
petitioner- company cannot be blacklisted. The role of the
Director will be examined during the course of trial, and other
things which are required to be examined during trial whether
the officers/ officials of the Commission, as per the contract
were personally involved in the leakage of papers, and what
was the role of the officers/ officials of the Commission, who
were present during the time of printing the question papers,
as per the condition of the contract, and the presence of the
representatives of the Commission was not procedural, but
was a substantive as per Clause 6 of the MoU entered into
between the petitioner- company and respondent no.2.
20. In any case, as per Rule 151 of the General
Financial Rules, 2017, issued by the Ministry of Finance,
Department of Expenditure, the maximum period prescribed
is not exceeding three years from the date of debarment, and
a bidder can only be debarred if he has been convicted of an
offence under the Prevention of Corruption Act, 1988; or any
other provision of Indian Penal Code.
21. In the facts of the present case, there is no
conviction as such. Only charge-sheet has been submitted,
and the maximum period, as per Rule 151(ii), three years
and under Rule 151(iii) is for two years.
22. In the present case, the impugned order was
passed on 23.09.2022, and till February, 2024, one year and
five months have already gone by, and there is no conviction
against any of the employees of the petitioner- company,
keeping in view the above General Financial Rules, 2017, as
reproduced above, the writ petition is allowed, and the
impugned order dated 23.09.2022 is set-aside.
23. Pending application, if any, also stands disposed of.
(RITU BAHRI, C.J.)
(RAKESH THAPLIYAL, J.)
Dated: 07th March, 2024
NISHANT
