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2012 DIGILAW 1228 (JHR)

Vinayka Traders v. State of Jharkhand

2012-08-16

APARESH KUMAR SINGH

body2012
ORDER Heard learned counsel for the parties. 2. Petitioner being aggrieved by the letter no. 126 dated 19.02.2007 issued by District Programme Officer, Hazaribag (respondent no. 3) has moved this Court in the present writ petition whereunder work order issued in his favour vide Memo No. 745 dated 15.09.2006 has been cancelled. He has further sought for quashing the memo no. 144 dated 22.02.2007 issued by the same respondent whereby the petitioner's firm has been black listed. 3. According to the petitioner, he had participated in the tender for supply of utensils in approved Angan Bari Centres under the Child Development Programme under District-Hazribag in July, 2006 and deposited Rs. 80,000/-as the security deposit by way of bank draft bearing numbers 348685 and 348685 dated 19.07.2006 for Rs. 40,000/-each in favour of the Zila Programme Padadhikari, Hazaribag. By the work order dated 15.09.2006 (Annexure-1) petitioner was asked to supply utensils to the concerned project within 25 days in accordance with terms and conditions of the agreement. It is the case of the petitioner that samples of utensils were finally approved by the Purchase Committee as well as by the respondent no. 3 on 25.01.2007. Thereafter, the petitioner started supply of utensils after 30.01.2007. However, petitioner was surprised to receive letter no. 126 dated 19.02.2007 whereunder his work order dated 15.09.2006 has been cancelled on the ground that as per the condition of the said work order the utensils had not been supplied within 25 days. It is the case of the petitioner that he has never received any show cause notice as stated by the respondent vide letter no. 842 dated 04.11.2006. However, it is further submitted on the part of the petitioner that by another order contained at Annexure-5 dated 22.02.2007, petitioner has been black listed without any show cause notice. 4. On the other hand, on the basis of their counter affidavit, learned counsel for the respondents-state submits that as per the agreement of the tender dated 25.07.2006 Annexure-A and also work order dated 15.09.2006 Annexure-B, the terms and condition of supply of utensils clearly stipulated that if utensils will not be supplied within 25 days from the issuance of the work order and on failure to do so, the agreement shall be treated to be cancelled and the security amount would be forfeited and the firm of the petitioner would be black listed. It is further stated by the counsel for the respondents that utensils were required on urgent basis for which the supply time period was of 25 days and notices were also issued as it related to Integrated Child Development Scheme (in short I.C.D.S) for the beneficiaries of children in the age group of 0-6, pregnant, lactating mothers and the adolescent girls of BPL families. The description of the utensils were also shown in Annexure-B and petitioner failed to make the supply within 25 days. He was given show cause notice vide Memo No. 842 dated 04.11.2006 (Annexure-D) wherein it was asked to furnish a reply within three days as to why the agreement itself be not cancelled and the security amount be not forfeited as well as why not steps be taken for black listing of the firm of the petitioner. By referring to the said show cause vide Annexure-D and dispatch extract of the dispatch register Annexure-E, the statement has been made in para-23 of their counter affidavit that the allegation of the petitioner that he did not receive letter no. 842 dated 04.11.2006 regarding show cause is false. However, it is stated on behalf of the respondents that inspite of show cause given to the petitioner, he did not file response or made the supply of the utensils within stipulated time. It is admitted case that he submitted utensils on 25.01.2007 for approval, thereafter it was approved and the supply were required to be completed within 25 days. Since the petitioner had failed to make the supply within time, the impugned orders were issued which are annexed as Annexures-3 and 5 to the writ petition. 5. Petitioner has thereafter filed a rejoinder disputing the contention of the respondents that he had made supply by referring to Annexure-6 & 6/A. However, from perusal of the Annexure-6 & 6/A itself it shows that while other supplier had submitted its sample of utensils for approval by November, 2006, the petitioner himself had submitted for approval the samples of utensils on 25.01.2007 and thereafter the petitioner started supplying utensils to the concerned projects. Even Annexure-7 indicates that the petitioner was issued show cause notices dated 04.11.2006 , but petitioner has not replied within stipulated time. 6. Even Annexure-7 indicates that the petitioner was issued show cause notices dated 04.11.2006 , but petitioner has not replied within stipulated time. 6. I have heard counsel for the parties and after going through the record including impugned orders, it appears that the terms and conditions of the tender notice contained at Annexure-A to the counter affidavit stipulated that the supply of utensils was to be done within 25 days for I.C.D.S. Project. The work order contained at Annexure-B dated 15.09.2006 also stipulates that the said supply is to be made within 25 days and it was required upon the part of the petitioner to seek approval of sample of utensils. The terms and conditions contained in the notice as well as the work order stipulated that on failure to supply the work order not only the agreement would be cancelled but also the security amount deposited by the petitioner would be forfeited and petitioner's firm would be black listed. Admittedly, the petitioner did not get the sample approved before 25.01.2007. The respondent choose to issue show cause notice at Annexure-D dated 04.11.2006. However, petitioner did not file the reply to the said show cause notice or submitted utensils for approval thereafter till his sample were submitted for approval on 25.01.2007. The impugned order dated annexed as Annexures-3 and 5 dated 19.02.2007 and 22.02.2007 respectively disclose that the petitioner was issued show cause notice in relation to the proposed impugned action including that of black listing and the show cause at Annexure-D also disclose that the proposed action of black listing was contemplated in the terms of the work order and show cause notice. It is apparent from the facts on records that the petitioner kept on violating the terms of I.C.D.S as well as the work order and after almost four months took steps for approval of utensils by submitting before the respondents on 25.01.2007. In those circumstances, when the relationship between the petitioner and the respondent arises out of the agreement or work order and the fact that the respondents have taken steps for issuance of show cause before passing the impugned order, the stand of the writ petitioner that the impugned order has been passed without show cause notice cannot be sustained. The petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of M/s Erusian Equipment & Chemicals Ltd. Vs. The petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of M/s Erusian Equipment & Chemicals Ltd. Vs. State of West Bengal and Another reported in 1975 (1) SCC 70 that the respondents' action should be fair and opportunity to show cause is required before passing of order of blacklisting which affects not only the fundamental right of the petitioner under Article 19(1) (g), but also causes stigma on the petitioner's reputation. However, in the facts of the case as stated hereinabove it is apparent that the respondents have taken due steps, evidence of which has been brought on record to show that before passing the impugned order show cause notice was sent to the petitioner but the petitioner conduct was not satisfactory in a matter of supply of utensils in relation to work order for Integrated Child Development Scheme Project the beneficiaries of which are children in the age group of 0-6, pregnant, lactating mothers and the adolescent girls of BPL families. 7. In the wake of all aforesaid facts, there is no reason to interfere with the impugned orders and accordingly, this writ petition stands dismissed.