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2004 DIGILAW 71 (GUJ)

CHEMBOND CHEMICALS LTD. v. INDIAN OIL CORPORATION

2004-02-11

J.N.BHATT, K.A.PUJ

body2004
K. A. PUJ, J. ( 1 ) THE petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside of the impugned decision dated 06. 01. 2004 of the respondent Corporation i. e. Indian Oil Corporation Limited, being unjust, illegal, arbitrary and violative of Articles 14, 19 (1) (g) and 21 of the Constitution of India. The petitioner has also prayed for direction to the respondent Corporation to consider the tender of the petitioner Company before finalisation of the contract with any other party and if the offer of the petitioner Company is found to be the lowest, to accept the same. The petitioner has also prayed for interim relief seeking stay against the execution, implementation and operation of the impugned decision dated 06. 01. 2004 and against further process of finalisation of the contract in respect of the treatment of the water cooling tower. ( 2 ) THE factual profile emerging from the petition is that the respondent Corporation published notice inviting Tenders for their various requirements on 06. 11. 2003 and one of the items for which the offers were invited was chemical treatment of cooling water for a period of two years. As per the notice inviting tenders, the duly filled up tenders were to be submitted to the respondent Corporation latest by 26. 12. 2003. Since the petitioner Company, before submitting its bid, volunteered and asked to have certain clarifications on technical side of the tender documents, wrote a letter dated 19. 12. 2003 informing that the technical team of the petitioner company would be visiting the plant of the respondent Corporation on December 22 and 23 of 2003. The said team visited the plant of the respondent Corporation on 22. 12. 2003 and upon instruction of the competent officer of the respondent Corporation, the security officer at the gate issued gate pass. The CISF officers have entered 12 bottles meant for drawing samples in the register at the time of preparing gate pass for the said team. The said team consisted of three persons i. e. Nitin Dambe of petitioner company, Gautam Kothari and Sandip of Seemaco-A. G. , who is the authorised agent of the petitioner company at Vadodara. They held meeting with the Officers and sought certain technical clarifications on various technical side of the treatment of the cooling tower. The said team consisted of three persons i. e. Nitin Dambe of petitioner company, Gautam Kothari and Sandip of Seemaco-A. G. , who is the authorised agent of the petitioner company at Vadodara. They held meeting with the Officers and sought certain technical clarifications on various technical side of the treatment of the cooling tower. ( 3 ) ONE of the basic issues communicated to the submission of tender by the petitioner Company was pertaining to quality of water, under the agreement with the respondent Corporation, the bidders were supposed to treat. Without knowing this vital technical data, it was not practicable to give their correct and proper bid. It is further submitted that Vasu Chemicals, being presently working as contractor has got distinct advantage of knowing the nature and characteristic of the water to be treated. The petitioner was, therefore, anxious to know the characteristic of the water to be treated. Under the authority of the officers of the respondent Corporation, the said team of the petitioner company was allowed to take samples of the water. In several cases of other Corporation, Companies and Public Sector Undertakings, the tender document itself contained complete specifications of the water to be treated and also provided for the pre-bid meeting for seeking clarification of technical aspects of the case. In most of the cases, before submitting the price bid, the bidders were also provided an opportunity to draw the samples of the water and inspection of the cooling water. The petitioner has produced copies of the extracts taken from the tender documents of the Mathura Refinery of IOCL, Barauni Refinary of IOCL, Haldia Refinary of IOCL, Steel Authority of India Limited, Rurkela plant, Andhra Pradesh Power Generation Corporation Limited, Rayalsima Thermal Power Plant and Vishakapattanam Steel Plant Rashtriya Ispat Nigam Limited. In all these tender documents, visit to the site and to get familiarize with the plant and treatment procedure of the water have been encouraged by the Companies inviting tenders. On the basis of these documents, it was contended that the visit of the technical team of the petitioner company was in consensus with normal practice in trade and commerce. It was also contended that inspection of Cooling Tower and drawing of sample of water under the verbal instructions from the competent officer of the respondent Corporation is also in conformity with the normal practice of trade and commerce. It was also contended that inspection of Cooling Tower and drawing of sample of water under the verbal instructions from the competent officer of the respondent Corporation is also in conformity with the normal practice of trade and commerce. ( 4 ) IT is further stated that respondent Corporation has four parties for the purpose of submission of tenders for item in question, out of which, the petitioner company and Vasu Chemicals are the registered small scale industries and, therefore, as per the terms of the tender documents, they are entitled to have 15% price preference over the price quoted by the other Non-S. S. I. Units. The petitioner company was, therefore, likely to get the contract for the treatment of the water of the cooling tower of the respondent Corporation. However, after having come to know about the clarification meeting held by the technical team of the petitioner company, the said Vasu Chemicals had made a totally false and concocted case against the petitioner company to see that the petitioners company is eliminated from the race and because of that, on 26. 12. 2003, a show-cause notice was issued by the respondent Corporation to the petitioner pointing out that after meeting of the technical team of the petitioner with the officers of the Corporation, the personnel of the said team visited several units and locations without prior permission and that the said personnels had also collected water samples from AU-V and GHC Cooling Tower and ETP area without approval from the Management and that Mr. Dambe and Mr. Sandip went to chemical lab and tried to collect chemical samples unauthorisedly and that they have obtained visitors pass clandestinely by concealing the actual identity of the persons concerned. The explanation of the petitioner company was sought for within 3 days from the receipt of the said notice and if the said explanation would not found to be satisfactory, the respondent Corporation would initiate necessary action as per rules in this regard against the persons concerned and the company, including putting the name of petitioner company on the holiday list for two years. ( 5 ) THE petitioner gave its detailed reply on 30. 12. ( 5 ) THE petitioner gave its detailed reply on 30. 12. 2003 denying the allegations made in the show-cause notice and submitted that as an intending tenderer, the representatives of the petitioner Company, with all valid terms and sanctions, entered to collect requisite information and collected water samples duly checked and cleared by the security personnels. It was further stated that in the process of entire tender, pre-bid meeting was missing and certain clarifications were necessary and the petitioner on its own volunteered to ask for certain clarifications which the petitioner was supposed to have, for preparing full and fair tender. ( 6 ) IT is further stated that 26. 12. 2003 was the last date for the submission of the tenders and opening of the technical bid. However, the respondent Corporation has postponed the opening of the technical bid and thereafter, on 06. 01. 2004, the respondent Corporation had issued the impugned communication stating that after considering the allegations made in the show-cause notice and the reply to show-cause notice, it has been decided that the petitioner company be placed on holiday list and debarred from entering into any contract with the respondent Corporation and/or be removed from the list of approved Venders for a period of two years effective from the date thereof. ( 7 ) IT is this decision which is under challenge in the present petition filed under Article 226 of the Constitution of India. ( 8 ) MR. S. B. Vakil, learned Senior counsel along with Mr. Asim Pandya, learned advocates appearing for the petitioner submitted that the impugned decision is unjust, illegal, arbitrary and violative of Articles 14, 19 (1) (g) and 21 of the Constitution of India and is based on extraneous considerations and legally not sustainable. The respondent Corporation has exceeded in its jurisdiction in linking up two separate issues i. e. opening of the tender and the allegations in the show cause notice. He has further submitted that the impugned decision dated 06. 01. 2004 is a cryptic, laconic and non-speaking order. The respondent Corporation has not at all expressed any reason whatsoever in arriving at a particular conclusion. The same is, therefore, required to be quashed and set aside on the ground of lack of any finding or any conclusion. He has further submitted that the impugned decision dated 06. 01. 2004 is a cryptic, laconic and non-speaking order. The respondent Corporation has not at all expressed any reason whatsoever in arriving at a particular conclusion. The same is, therefore, required to be quashed and set aside on the ground of lack of any finding or any conclusion. He has, therefore, submitted that the impugned order is passed in colourable exercise of power and appears to have been passed to achieve particular purpose i. e. to eliminate the petitioner from the participation in the bid. He has further submitted that the allegation in the show-cause notice that by the act mentioned in the show-cause notice, the petitioner company has violated the provisions of Official Secrets Act is also not tenable in law. According to Mr. Vakil, the provisions of Official Secrets Act are not at all attributed in the instant case as the visit of the technical team of the petitioner company to the plant of the respondent Corporation was made after pre-notifying this fact to the respondent Corporation by a fax and after obtaining visitors pass. The samples were drawn under the verbal instruction from the Competent Officer named in the show-cause notice. The bottles meant for drawing samples having been registered in the register maintained at the plant by the CISF officers and they themselves allowed the petitioner company to take out samples duly drawn by the technical team. Mr. Vakil has further submitted that there is no trespass committed by the petitioner company or its representative. Mr. Vakil has further submitted that the allegation that Mr. Dambe and Sandip went to chemical laboratory and tried to collect chemical samples unauthorisedly is also not correct as during the visit of the technical team, the members of the technical team had friendly conversation with the representative of the existing Contractor i. e. Vasu Chemicals. Mr. Vakil has submitted that this fact has been misrepresented by the representative of the existing Contractor to take undue advantage and made false representation before the respondent Corporation on the basis of which show-cause notice and impugned decision were taken. Mr. Mr. Vakil has submitted that this fact has been misrepresented by the representative of the existing Contractor to take undue advantage and made false representation before the respondent Corporation on the basis of which show-cause notice and impugned decision were taken. Mr. Vakil has, therefore, submitted that the impugned order passed by the respondent Corporation putting the petitioner company on holiday list and debarring the company from entering into any contract with respondent Corporation for a period of two years, is absolutely unjust, illegal, unlawful and violative of principles of natural justice and hence, deserves to be quashed and set aside. ( 9 ) IN support of his submission that the impugned order is a non-speaking order about its conclusions and no finding nor any reasoning is given and hence, it requires to be quashed and set aside, Mr. Vakil has relied on the decision of the Honble Supreme Court in the case of THE SIEMENS ENGINEERING and MANUFACTURING COMPANY OF INDIA LIMITED V/s. THE UNION OF INDIA AND ANOTHER, (1976) 2 S. C. C. 981 wherein it is held that"where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. " ( 10 ) MR. Vakil has further relied on the decision of the Honble Supreme Court in the case of SUBHASH CHANDRA CHOUBEY AND OTHERS V/s. STATE OF BIHAR AND OTHERS, (1998) 8 S. C. C. 714 wherein while quashing and setting aside the order and judgment passed by the Patna High Court, the Honble Supreme Court has held that "no reasons have been assigned by the High Court in support of its conclusions while dismissing the writ petition in limine. The absence of reasons has deprived the Supreme Court of knowing the circumstance which weighed with the High Court to dismiss the writ petition at threshold. It is an unsatisfactory method of disposal of the writ petition. Apart from informing the aggrieved party of the reasons which it may be able to demonstrate in the higher forum as erroneous or irrelevant, it also enables the higher forum to test the correctness of those reasons when the same are put in issue. The order of the High Court cannot therefore be sustained. Apart from informing the aggrieved party of the reasons which it may be able to demonstrate in the higher forum as erroneous or irrelevant, it also enables the higher forum to test the correctness of those reasons when the same are put in issue. The order of the High Court cannot therefore be sustained. The Honble Supreme Court has, therefore, set aside the order passed by the High Court and the writ petition was remanded to the High Court for fresh disposal on merits. " ( 11 ) MR. Vakil has further relied on the decision of the Honble Supreme Court in the case of MOHAMMAD JAFAR V/s. UNION OF INDIA, 1994 Supp. (2) S. C. C. 1 in support of his submission that duty to record reasons also includes duty to communicate such reasons to the affected party. The impugned decision passed by the respondent Corporation neither contains any reason nor such reason is communicated to the petitioner company. Mr. Vakil has relied on the observations made in para 12 by the Honble Supreme Court in this case. It is observed by the Honble Supreme Court that "it cannot be said that the expression "for reasons to be stated in writing" in proviso to Section 3 (3) means that the reasons have to be stated in the notification. It is not enough if the reasons are noted on the file of the case. The expression "to state" has a distinct connotation of informing the party for whom the statement is meant. No one makes a statement to himself. Hence, the Act requires that either it has to be stated in the notification or in a communication accompanying the notification or simultaneously issued with the notification or addressed to the affected association. Reasons which are "recorded" in file are not reasons which are stated for the benefit of the aggrieved party. The intention of the legislature is that the aggrieved party must know the reasons why the grave step of banning it is taken without giving it an opportunity to be heard. If the reasons are non-existent or irrelevant, the association has a right to challenge the same by showing cause against it. The fundamental right of the citizens and the associations cannot be taken away even temporarily for reasons which are not known to the individual or the association. " ( 12 ) MR. If the reasons are non-existent or irrelevant, the association has a right to challenge the same by showing cause against it. The fundamental right of the citizens and the associations cannot be taken away even temporarily for reasons which are not known to the individual or the association. " ( 12 ) MR. Vakil has further relied on the decision of the Honble Supreme Court in the case of OM KUMAR AND OTHERS V/s. UNION OF INDIA, (2001) 2 S. C. C. 386 for the proposition that the impugned order passed by the respondent Corporation is contrary to the well established principle of doctrine of proportionality. While explaining the word proportionality, the Honble Supreme Court has observed that "by "proportionality", it is meant that the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. " The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court to decide. That is what is meant by proportionality. " The Court has further observed that "in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying "proportionality" and is a primary reviewing authority. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying "proportionality" and is a primary reviewing authority. But where, an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. " Applying the above test to the facts of the present case, Mr. Vakil has submitted that the action taken by the respondent authority is absolutely arbitrary and hence, this Court should strike down the said action holding that it is contrary to the principles of proportionality and violative of Article 14 of the Constitution of India. ( 13 ) MR. Vakil has lastly relied on the decision of the Honble Supreme Court in the case of MOHINDER SINGH GILL AND ANOTHER V/s. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS, AIR 1978 SUPREME COURT 851 for the proposition that if the impugned order suffers from vice of non-speaking order or lack of reasons, the same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The Honble Supreme Court has held in this case that "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. " ( 14 ) MR. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. " ( 14 ) MR. Vakil has, therefore, strongly urged that the impugned order passed by the respondent Corporation deserves to be quashed and set aside on the various grounds as urged by the petitioner in appeal memo as well as the submissions made during the course of arguments and submitted that the petition be allowed. ( 15 ) MR. M. R. Bhatt, learned advocate appearing for the respondent Corporation while opposing the petition has submitted that after issuance of show-cause notice and after considering the submissions made by the petitioner company, the impugned decision dated 06. 01. 2004 was taken by the respondent Corporation and hence, the order is not violative of the principles of natural justice as alleged by the petitioner company. He has further submitted that the water treatment chemical programme is carried out on a continuous basis in the Refinery as a part of process requirement and as well to meet the norms for protecting the environment and pollution control. It is also essentially required to maintain healthy condition of process units. He has further submitted that the petitioner had sought permission to enter the Refinery premises i. e. technical building for obtaining clarifications on tender specifications and the petitioner was not supposed to carry any bottles inside the battery limits of the respondent. The tender documents do not stipulate or make it obligatory on the part of the respondent to provide water sample to all the intending bidders. None of the intending bidders has requested the respondent for providing water samples to quote against the tender except the petitioner. He has further submitted that if the petitioner felt that water samples are essentially required as a pre-requisite to quote against the tender, the petitioner should have made a formal request to the tender issuing authority of the respondent Corporation and the said request would have been examined and if so desired, the same would have been made available not only to the petitioner but as well to the other intending bidders by the tender issuing authority of the respondent. ( 16 ) MR. ( 16 ) MR. Bhatt has further submitted that the representative of the petitioner company visited the office of STSM and sought some technical clarifications regarding tender which were replied during discussion by CTSM Shri V. M. Ranalkar. After all the clarifications, at around 1. 00 p. m. , CTSM signed the gate pass and asked them to go back. Instead of leaving the premises, two persons from the technical team went to AU-V Cooling Tower and GHC Cooling Tower without any permission and took ETP water samples in five bottles 100 ml each. The Dy. Commandant, CISF Unit, IOCL (GR) reported this matter to the Executive Director (Officiating) stating that Mr. Sandip and Mr. Dambe tried to take samples of chemicals kept by M/s. Vasu Chemicals and it was objected by the employee of the said firm. After occurrence of this incident on 22. 12. 2003, the respondent Corporation thought not to open the technical bids on 26. 12. 2003 in the security interest of the respondent premises. The respondent was of the view that the petitioner after submitting the offer could have taken plea to visit the respondent premises for techno-commercial clarifications and jeopardize the safety of the respondent. Hence, it was decided to deal with the Show-cause notice first and thereafter only the formalities for tender opening to be observed. ( 17 ) MR. Bhatt has further submitted that on the basis of the Special Report, show-cause notice dtd. 26. 12. 2003 was issued to the petitioner. In view of the seriousness of charges, under office order dated 01. 01. 2004, a Committee comprising four Senior Officers of the respondent was constituted to study the matter and to recommend suitable action to be taken against the persons/company involved and to recommend suitable measures to be taken to avoid recurrence of such incidence in future. The said Committee, after considering reply of the petitioner and various evidences available on record, gave its report on 06. 01. 2004 recommending that the petitioner company should be put on Holiday List for a period of 2 years for the act of concealing their true identity, malafide intention of unauthorisedly collecting the samples and contravention of safety and security regulations. The Committee had further recommended that the Management may initiate criminal proceedings against trespassers in consultation with the Commandant, CISF. ( 18 ) MR. The Committee had further recommended that the Management may initiate criminal proceedings against trespassers in consultation with the Commandant, CISF. ( 18 ) MR. Bhatt has further submitted that on the basis of the Special report submitted by the fact-finding committee, the Management of the respondent Corporation agreed to all recommendations made by the Committee except initiating criminal proceedings. ( 19 ) MR. Bhatt has further submitted that installation at Gujarat Refinery is covered under the Official Secret Act. It is a vital installation catering to the needs of various important sectors of the Govt. of India including the defence. CISF is looking after the security of the installation which is an independent organisation and the incident in question was reported by CISF and hence, there cannot be any motive attributed to CISF of floating of such tender, tender specifications and conditions. There is no rational basis for making allegation regarding malafide. ( 20 ) MR. Bhatt has further submitted that Refinery installation of IOCL and more particularly the battery area is very sensitive from the angle of defence as well. No trespass or loitering around the premises is allowed by the CISF. After recent attack on Akshardham and other similar incidents, the installation is very heavily and carefully guarded. Even for the employees of IOCL, recently automated access control system has been introduced and keeping in mind this fact, the charges against the representatives of the petitioner were considered to be very serious in nature. ( 21 ) ON the basis of the facts found and the inquiry made and the report submitted by various authorities and the Special Report submitted, the respondent Corporation has taken the decision to put the petitioner Company on Holiday list for two years and accordingly, the impugned communication was sent to the petitioner. It cannot, therefore, be said that the impugned decision is in violation of the principles of natural justice or that it does not contain any finding or conclusion or that no reasons were recorded. As a matter of fact, the petitioner Company has given absolutely vague and evasive reply. ( 22 ) MR. It cannot, therefore, be said that the impugned decision is in violation of the principles of natural justice or that it does not contain any finding or conclusion or that no reasons were recorded. As a matter of fact, the petitioner Company has given absolutely vague and evasive reply. ( 22 ) MR. Bhatt has relied on the decision of the Honble Supreme Court in the case of GRONSONS PHARMACEUTICALS (P) LIMITED AND ANOTHER V/s. STATE OF UTTAR PRADESH AND OTHERS, AIR 2001 SUPREME COURT 3707 wherein the Honble Supreme Court has held that "the appellant has only contractual relationship with the State Government and the said relationship is not governed by any statutory Rules. There is no statutory rule which requires that an approved contractor cannot be blacklisted without giving an opportunity of show cause. It is true that an order blacklisting an approved contractor results in civil consequences and in such a situation in the absence of statutory rules, the only requirement of law while passing such an order was to observe the principle of audi alteram partem which is one of the facets of the principles of natural justice. The contention that it was incumbent upon the respondent to have supplied the material on the basis of which the charges against the appellant were based was not the requirement of principle of audi alteram partem. It was sufficient requirement of law that an opportunity of show cause was given to the appellant before it was blacklisted. It is not disputed that in the present case, the appellant was given an opportunity to show cause and he did reply to the show cause which was duly considered by the State Government. The Court was, therefore, of the view that the procedure adopted by the respondent while blacklisting the respondent was in conformity with the principles of natural justice. The Court has further observed that the High Court summons the entire record and found that elaborate reasons were recorded by the State Government while passing the order blacklisting the appellant. The High Court further recorded a positive finding that the State Government has passed the impugned order after recording elaborate reasons and summary of which is contained in the impugned order. The High Court further recorded a positive finding that the State Government has passed the impugned order after recording elaborate reasons and summary of which is contained in the impugned order. The Court has, therefore, negatived the contention raised by the appellant to the effect that the impugned order blacklisting the appellant does not contain any reason and, therefore, the order is valid. " ( 23 ) MR. Bhatt has further relied on the decision of the Honble Supreme Court in the case of CHAIRMAN AND MANAGING DIRECTOR, UNITED COMMERCIAL BANK AND OTHERS V/s. P. C. KAKKAR, A. I. R. 2003 SUPREME COURT 1571 wherein it is held that "the Court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. " ( 24 ) MR. Bhatt has further relied on the decision of the Honble Supreme Court in the case of SYED T. A. NAQSHBANDI AND OTHERS V/s. STATE OF JAMMU and KASHMIR AND OTHERS, (2003) 9 S. C. C. 592 wherein it is held that "the absence of reasons in the order rejecting the representations or the original resolution granting selection grade/super time scale, in the nature of proceedings themselves cannot be said to be an infirmity. The noting in the files dealing with those aspects would be sufficient record and the proceedings in the form of resolutions cannot be expected to be in the format of a judicial order dealing with each and every claim. " ( 25 ) BASED on the aforesaid judgments and the arguments canvassed at the time of hearing of this petition, Mr. " ( 25 ) BASED on the aforesaid judgments and the arguments canvassed at the time of hearing of this petition, Mr. Bhatt has urged that decision taken by the respondent Corporation cannot be said to be unreasonable or the action of putting the petitioner company on a Holiday list for 2 years cannot be considered to be disproportionate to the unauthorised and unlawful action of the petitioner company by way of collecting samples and/or entering into the premises and/or not disclosing their correct identity while seeking permission to allow the technical team for necessary clarification prior to submitting the bid for chemical treatment of Cooling Water for a period of two years. Mr. Bhatt has, therefore, submitted that the petition be summarily dismissed. ( 26 ) AFTER having given our anxious thoughts and considerations to the contentions raised and submissions made by the learned advocates appearing for the respective parties and after having gone through the respective pleadings and after perusing the necessary documents before us as well as considering the authorities cited before us, we are of the view that the challenge made by the petitioner in the present petition is not sustainable either on the facts or in law. The petitioners case is that the petitioner was wrongly put on the Holiday list for a period of 2 years and thereby the petitioner was thrown out of the zone of consideration and this action of the respondent Corporation is based on an extraneous consideration and it was taken only with a view to favour M/s. Vasu Chemicals, who is the existing Contractor dealing with the item in question. If this aspect of the matter and the allegation of malafide is considered in light of the text and tenor of the matter or on the basis of the factual profile which emerges, it is difficult to accept. There is no doubt about the fact that the representatives of the petitioner have visited the plant of the respondent Corporation on 22. 12. 2003. There is no dispute about the fact that the said representatives have collected the water samples. It is also found from the record that Mr. Sandip and Mr. Dambe of the technical team went to the chemical lab and they were restrained from collecting chemical samples by the person deputed there. 12. 2003. There is no dispute about the fact that the said representatives have collected the water samples. It is also found from the record that Mr. Sandip and Mr. Dambe of the technical team went to the chemical lab and they were restrained from collecting chemical samples by the person deputed there. The question which remains for consideration is that as to whether the said representatives of the petitioner Company were duly authorised or they were permitted by the respondent Corporation to do all these activities when they have visited the plant of the respondent Corporation. Before taking any action, the respondent Corporation has issued a specific notice dated 26. 12. 2003 making out the grounds on which the explanation of the petitioner Company was sought for. Instead of dealing with these specific grounds raised in the show-cause notice dated 26. 12. 2003, the petitioner Company has given a very vague and general reply vide its letter dated 30. 12. 2003 wherein a detailed history of the Company starting from its incorporation, the various Contracts executed by the Company and its intention to visit the plant of the respondent Corporation, etc. were given. However, it was not pointed out as to whether any permission was taken before collecting the samples from AU - V and GHC Cooling Tower and ETP area or as to whether Mr. Dambe and Mr. Sandip went to the chemical lab after taking necessary permission or in the company of any responsible officer of the respondent Corporation or that they have not tried to collect chemical samples. It appears that the petitioner Company has not seriously considered the fact that the respondent Corporation and more particularly Gujarat Refinery is a highly sensitive area from security point of view and any person trespassing to the operating area of Refinery without valid permission may cause very serious threat or danger to the Refinery and any lapse committed or attempt made by any one can be seriously viewed. After having gone through the entire record and the documents furnished before the Court along with the Affidavit-in-reply, we have found that the respondent Corporation has not deliberately taken any decision in the matter. A Special Committee was formed for this purpose. After having gone through the entire record and the documents furnished before the Court along with the Affidavit-in-reply, we have found that the respondent Corporation has not deliberately taken any decision in the matter. A Special Committee was formed for this purpose. A report was called for and that has been considered by the Management and detailed discussion and deliberation was taken place on the recommendations made by the Special Committee which interalia included to take criminal action against the persons involved and putting the petitioner company on a Holiday list for 2 years and, thereafter, the recommendation to file criminal proceedings was dropped. The Inquiry Committee has also suggested certain remedial measures to avoid such incidents in future and for that purpose, it was observed in the report that CISF should intensify their vigil and surveillance over the visitors who have entered the battery area and that while signing the visitors gate pass, visited officials must put the time out for visitors. CISF should ensure that no material is allowed to be taken out from the battery area without valid written permission. Employees are to be sensitized to keep more vigil on the movement and actions of strangers and report such incidents. After detailed discussion and deliberations, what the Inquiry Committee has found was narrated by them in their report which are as under :-THOUGH the visitors requested for the gate pass on the pretext of representing M/s. Chembond, as per statement at (e) above, the gate pass were secured in the name of M/s. Seemaco-AG, Baroda. Thus it indicates that intention on the part of the visitors to hide their true identity. *though the gate pass was signed by the officials at approx. 1. 00 p. m. of 22. 12. 2003 and the visitors ought to have vacated the premises immediately thereafter, they chose to visit the plant operational area unauthorizedly in contravention to safety regulations for visitors as printed on the reverse side of visitors gate pass. *it is observed that all the said visitors have admitted their fault in writing of visiting operational area and unauthorizedly collecting water and chemical samples, as could be seen from their written statements. It is felt that there could not be any personal motive of the visitors in view of the nature of items involved which did not have any intrinsic value per se. It is felt that there could not be any personal motive of the visitors in view of the nature of items involved which did not have any intrinsic value per se. Hence, it is felt that they were under direction from their employers to do so for obtaining some information through improper means in the context of their participation in the tender for water treatment programme. *it is not clear from the documents on record that from where and how, the visitors have obtained the empty sample bottles for collecting the above samples. *iocl, Gujarat Refinery is a Prohibited Area under Officials Secrets Act, 1923 and therefore, the act of said visitors tantamount to trespassing over the company properties which is punishable offence under the Officials Secrets Act, 1923. *the explanation of M/s. Chembond dated 30. 12. 2003 received against Show Cause Notice dated 26. 12. 2003 was found irrelevant and unsatisfactory as it is not addressing the basic question to why did their representatives try to enter the plant operational area without permission of Plant / Area Incharge and collected water and chemical samples unauthorizedly. " ( 27 ) AFTER making the aforesaid observations by the Committee, the following recommendations were made :-"* m/s. Chembond Chemicals Limited, Navi Mumbai and M/s. Seemaco-AG, Baroda should be put on holiday list for a period of two years for their act of concealing their true identity, malafide intention of unauthorisedly collecting the samples and contravention of safety and security regulations. * in view of the unsatisfactory explanation given by M/s. Chembond towards trespassing the prohibited area, management may initiate criminal proceedings against the trespassers in consultation with Commandant, CISF who is overall incharge of security arrangements. " ( 28 ) OUT of the above two recommendations, the Management has accepted the first recommendation and that was reflected in communication dated 06. 01. 2004. If the impugned decision is considered in light of this background, it cannot be said that the same does not contain any reason nor any finding or conclusion. " ( 28 ) OUT of the above two recommendations, the Management has accepted the first recommendation and that was reflected in communication dated 06. 01. 2004. If the impugned decision is considered in light of this background, it cannot be said that the same does not contain any reason nor any finding or conclusion. The course adopted by the respondent Corporation and which is being approved by this Court is supported by the decision of the Honble Supreme Court in the case of GRONSONS PHARMACEUTICALS (P) LIMITED AND ANOTHER V/s. STATE OF UTTAR PRADESH AND OTHERS, AIR 2001 SUPREME COURT 3707 (SUPRA) wherein also the Honble Supreme Court has observed that the High Court summons the entire record and found that elaborate reasons were recorded by the State Government while passing the order blacklisting the appellant. The High Court further recorded a positive finding that the State Government has passed the impugned order after recording elaborate reasons and summary of which is contained in the impugned order. The Honble Supreme Court has upheld the order of the High Court. Here in the present case also, after considering the entire facts and circumstances of the case and after following due procedure of law by issuance of show-cause notice and considering the reply tendered and after undertaking detailed inquiry in the matter, a conscious decision was taken by the Corporation and the same has been properly reflected in the order dated 06. 01. 2004. The said decision is, therefore, unassailable on the ground that it does not contain any reason. Even the recent judgment of the Honble Supreme Court in the case of SYED T. A. NAQSHBANDI AND OTHERS V/s. STATE OF JAMMU and KASHMIR AND OTHERS, (2003) 9 S. C. C. 592 (SUPRA) also takes the view that absence of reasons in the order cannot be said to be an infirmity. The noting in the files dealing with those aspects would be sufficient record and the proceedings in the form of resolutions cannot be expected to be in the format of a judicial order dealing with each and every claim. ( 29 ) WE do not accept the submission of Mr. Vakil that the impugned order is absolutely unjustified on the ground of doctrine of Proportionality. ( 29 ) WE do not accept the submission of Mr. Vakil that the impugned order is absolutely unjustified on the ground of doctrine of Proportionality. Looking to the serious nature of the matter and the security point of view, the sensitive area of the respondent Corporation must be protected and safe guarded from any unauthorised entry or unlawful trespass. The management has considered two recommendations out of which only one was accepted and hence, the same cannot be considered to be disproportionate to the unauthorised action alleged to have been done by the petitioner Company. ( 30 ) THE question raised about the alleged malafide on the part of the respondent Corporation also does not detain us much as there is no factual foundation to that effect nor it can be spelt out from the record and evidence produced before us. ( 31 ) BEFORE parting, we refer to the decision of this Court, delivered by one of us (J. N. Bhatt, J.) in the case of MAVJIBHAI MAGANBHAI PARMAR V/s. HINDUSTAN PETROLEUM CORPORATION LIMITED AND ANOTHER, 35 (2) G. L. R. 1027 wherein the Court has considered at great length the true nature and scope of the principles of natural justice. It is observed that the principles of natural justice cannot be imprisoned in a rigid formula. It must be stated that principles of natural justice must be observed, but its action mainly depend upon the facts and circumstances and the subject matter. The Court has reproduced the relevant extracts from the two decisions of the Honble Supreme Court as well as from a Classic book on Administrative Law by W. H. R. Wade. They are reproduced as under ;- * apex Court in A. K. KRAIPAK V/s. UNION OF INDIA (AIR 1970 S. C. 150) has observed :-"what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstance of that case, the frame work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. "* similarly, in R. S. DASS V/s. UNION OF INDIA (AIR 1987 S. C. 593) it is observed :-"it is well established that rules of natural justice are not rigid rules; they are flexible and their application depend upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. "* w. H. R. Wade has correctly summarised the law in this behalf in his book "administrative Law", 1988, pp. 529-35, as follows :"it is not possible to lay down rigid rules as to when the principles of natural justice are to apply; not as to their scope and extent. Everything depends on the subject-matter, the application for principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant, there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. " ( 32 ) IN light of the above discussion, we are of the view that the authorities relied on by Mr. Vakil,learned Senior advocate appearing for the petitioner do not render much assistance to the case of the petitioner and they are distinguishable on facts. As far as the case of THE SIEMENS ENGINEERING and MANUFACTURING COMPANY OF INDIA LIMITED (SUPRA) is concerned, the observations made by the Honble Supreme Court were in respect of the order to be passed by an authority while exercising quasi-judicial function. As far as the case of THE SIEMENS ENGINEERING and MANUFACTURING COMPANY OF INDIA LIMITED (SUPRA) is concerned, the observations made by the Honble Supreme Court were in respect of the order to be passed by an authority while exercising quasi-judicial function. More over, it was not the case before the Honble Supreme Court that before passing such order, a detailed inquiry and investigation was carried out and based on the report submitted by the Special Committee constituted for a specific purpose, a conscious decision was taken by the authority. As far as the case of SUBHASH CHANDRA CHOUBEY AND OTHERS (SUPRA) is concerned, the observations made by the Honble Supreme Court were in respect of a judicial order passed by the High Court. Here in the present case, the decision taken by the respondent Corporation cannot assume the character of any judicial order and hence the said observations cannot be pressed into service. As far as the case of MOHAMMAD JAFAR (SUPRA) is concerned, in that case, the whole emphasis was that the aggrieved party must know the reasons why the grave step of banning was taken without giving it an opportunity to be heard. Again, if the reasons are non-existent or irrelevant reasons, then only right accrues in favour of the aggrieved party. Here in the present case, notice issued by the respondent Corporation is self-explanatory wherein different grounds were mentioned and it was made clear that if no satisfactory reply is received, necessary action including putting the petitioner company on a Holiday list for the period of two years would be taken. After considering the reply of the petitioner company, the respondent Corporation has come to the conclusion that explanation is not satisfactory and the action proposed to be taken in the show-cause notice was taken which was duly communicated by letter dated 06. 01. 2004. As stated earlier, the said decision was based on a detailed and full-fledged inquiry made by the Special Committee and on the basis of the report submitted by that Committee. As far as the case of OM KUMAR AND OTHERS (SUPRA) is concerned, the observations made therein are found to have been applied to the facts of the present case as the decision cannot be said to be disproportionate to the gravity of the action undertaken by the petitioner company. As far as the case of OM KUMAR AND OTHERS (SUPRA) is concerned, the observations made therein are found to have been applied to the facts of the present case as the decision cannot be said to be disproportionate to the gravity of the action undertaken by the petitioner company. The decision of MOHINDER SINGH GILL AND ANOTHER (SUPRA) is also not applicable to the facts of the present case as the respondent Corporation has already constituted a Committee which has made a detailed inquiry and investigation and report was submitted by that committee and on the basis of the said report, the decision was taken. The decision was, therefore, not supplemented by fresh reasons in the shape of affidavit. The petitioner company has on the first available opportunity produced entire record before the Court and hence, it cannot be said that any additional ground was brought out by the respondent Corporation to get validated its decision taken on 06. 01. 2004. ( 33 ) FROM the foregoing facts and circumstances of the case and the law laid down by the Honble Supreme Court and this Court, we are of the view that the impugned decision taken by the respondent Corporation dtd. 06. 01. 2004 whereby the petitioner company was put on the Holiday List for 2 years does not call for any interference by this Court, while exercising its extra ordinary, prerogative, plenary and constitutional writ jurisdiction under Article 226 of the Constitution of India. The petition is, therefore, dismissed at the threshold. Notice discharged without any order as to costs. .