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Madhya Pradesh High Court · body

2009 DIGILAW 663 (MP)

Sunita Himmatramka v. Northern Coal Fields Ltd.

2009-05-15

DIPAK MISRA, R.K.GUPTA

body2009
ORDER Misra, J. -- 1. By this writ petition, preferred under Article 226 of the Constitution of India, the petitioner has prayed for issue of a writ of Certiorari for quashment of the notice dated 5.8.2008, Annexure P-5, and the order dated 30.3.2009, Annexure P-12 and further to issue a writ of Mandamus commanding the respondents to deal with the tender submitted by the petitioner without debarring him from the same. 2. Sans unnecessary details, the facts which are requisite to be stated are that the petitioner is engaged in manufacturing of various spare parts and registered as a Small Scale Industry with the National Small Scale Industries Corporation. It is also registered with the District Industrial Centre at Sidhi. It has an ancillary unit of M/s Basant Enterprises which had come into existence in the year 2001. 3. As pleaded, M/s Basant Enterprises was served with a show cause notice as per Annexure P-5 dated 5.8.2008 alleging that its representative namely Mr. Y.N. Sharma had come to the office of the Chief General Manager (Excavation) at Khadia Project after the scheduled date and time of submission of tender document. As the tender box was already sealed, Mr. Sharma to red the seal of the said tender box and dropped the tender which was a gross misconduct. The show cause notice warranted the petitioner to explain why he shall not be banned from doing business for a period of three years in view of the misconduct of its representative. 4. After the show cause notice was issued, the petitioner preferred this writ petition. This Court on 3.3.2009 had passed the following order: "Heard Mr. Rajendra Tiwari, learned Senior Counsel with Mr. Kapil Patwardhan, learned counsel for the petitioner and Mr. Greeshm Jain, learned counsel for the respondents. In this writ petition, the petitioner has challenged the show-cause notice dated 5.8.2008 issued by the Chief General Manager (Escavation) Northern Coalfields Limited to the petitioner to show-cause why the Northern Coalfields Ltd., shall not ban business dealings with the petitioner for a period of three years, in view of the misconduct and for breach of terms and conditions of the tender by the representative of the petitioner. A reply to the show-cause notice is yet to be filed by the petitioner. A reply to the show-cause notice is yet to be filed by the petitioner. Before we take up final hearing of the case, we direct that the petitioner shall file her reply to the show-cause notice of the Chief General Manager (Excavation) Northern Coalfields Limited within a week and the Competent Authority will consider the reply and pass orders within 15 days after the receipt of the reply. The order finally passed will be communicated to the petitioner and will also be filed by the respondents along with an affidavit. The petition will thereafter be heard. -. This matter be listed on 26th March, 2009. C.C. as per rules." 5. Thereafter, the petitioner filed reply to the show cause and the authorities vide Annexure P-12 passed an order. The relevant part of the order reads as follows: ." 4. The reply-clarification submitted by you is not found satisfactory, therefore, it is hereby rejected. Your contention that manual for Civil Engineering works is applicable is misconceived and liable to be rejected. It is to be noted that as no specific manual for the Excavation and E & M works have been prepared at CIL level, but since the NIT in question was related to purchase manual, therefore, competent authority has agreed that purchase manual is only applicable in the present situation and proceeding to be taken as per purchase manual. 5. That, as the guilt of mis-conduct by your representative has been admitted and your reply is not satisfactory, therefore, looking to the seriousness of mis-conduct committed, you are hereby banned for a period of 3 (three) years to do any business in any project of NCL. Accordingly, your representation-reply of show cause is disposed off and is hereby rejected." 6. It is contended in the petition that prior to the same, the respondents had passed an order contained in Annexure P-1 dated 26th127th November, 2007 which reads as under: "M/s. Basant Enterprises is hereby banned for doing any business at Khadia Project for a period of six months effective from 7.9.2007 due to forcibly broken the seal of the tender box at Khadia Project. Hence forth, Shri Y.N. Sharma, Representative of M/s Basant Enterprises shall not be allowed in any of the project of NCL for doing any business/negotiations/dropping of tender etc. on behalf of M/s. Basant Enterprises." 7. It is submitted by Mr. Hence forth, Shri Y.N. Sharma, Representative of M/s Basant Enterprises shall not be allowed in any of the project of NCL for doing any business/negotiations/dropping of tender etc. on behalf of M/s. Basant Enterprises." 7. It is submitted by Mr. Tiwari, learned senior counsel for the petitioner that once the petitioner had been visited with the punishment of ban for six months, there was no justification to proceed again and impose another punishment. It is urged by him that in pursuance of the order passed by this Court, the petitioner filed reply to the show cause stating all the aspects but the same have not been adverted to and the order has been passed. It is canvassed by him that banning of three years is not permissible under the relevant rules. 8. Mr. Greeshm Jain, learned counsel appearing for the respondents placing reliance on the return and the documents brought on record and supported the action of the respondents. 9. In course of hearing, learned counsel for the parties really restricted to a singular stand whether such an order could have been passed by taking recourse to the rules, regulations or circulars in the field. It was not disputed before this Court that the petitioner was engaged in the maintenance work. The tender was for repairing 17 Teeth of Bull Gear of Shakti Shovel. The action was taken against the petitioner treating the same as a repair contract. As is evident from the note-sheet, the Managing Director had approved the same. 10. Two sets of Manuals were brought to our notice, one is Purchase Manual of Coal India Limited. Clause 4.7.10 deals with procedure of banning. It empowers the authority to pass an order of banning of business dealings with the Firm for a specified period. As has been indicated earlier, the ban was imposed for six months and the same was approved by the Managing Director. The approval of the competent authority has been provided on the Manual. Thus, the respondents have taken recourse to the Purchase Manual and had imposed the punishment. Submission of Mr. Tiwari is that same is applicable as it is a repair contract and the punishment has already been imposed. 11. Per contra, Mr. Greeshm Jain, learned counsel for the respondents has placed reliance on the Manual for Civil Engineering Works. Thus, the respondents have taken recourse to the Purchase Manual and had imposed the punishment. Submission of Mr. Tiwari is that same is applicable as it is a repair contract and the punishment has already been imposed. 11. Per contra, Mr. Greeshm Jain, learned counsel for the respondents has placed reliance on the Manual for Civil Engineering Works. On a perusal of the same, we find there are details of Civil Engineering Works. On a query being made from Mr. Jain, he could not point out from the same which clause of the said Manual would apply to a repair contract. In fact, there is nothing which would cover a repair contract. Thus, there is no shadow of doubt that the Manual for Civil Engineering Works is not applicable. It is urged by Mr. Jain that regard being had to the gravity of misconduct, the ban was imposed. Any adverse action has to have the sanction of law. Where there is a specific Manual dealing with the repairs and providing for punishment and six months ban had been imposed, in our considered opinion the same should hold the field and matter should be allowed to rest. Recourse cannot be taken to Civil Engineering Manual. 12. In view of the aforesaid, the writ petition is allowed and the order dated 30.3.2009, Annexure P-12 is quashed. However, in the factual backdrop of the facts and circumstances of the case, there shall be no order as to costs.