Poly Glass Fiber Industries private Ltd. v. The State of Bihar through its Principal Secretary, Water Resources
2012-01-12
S.N.HUSSAIN
body2012
DigiLaw.ai
Order This writ petition has been filed by the petitioner for the following reliefs: (i) For quashing letter no. 1/Kray4-04/2010-191 dated 24.6.2011 issued by the signature of Director, purchase, Store Material Management, Water Re• source Department, Bihar, Patna, who without considering the spirit of order passed by this Court in C.W.J.C. No. 14691 of 2009 vide order dated 12.5.2010 and order passed on 2.5.2011 in C.W.J.C. No. 12671/2010, passed the impugned order. (ii) For direction(s) to the respondents concerned to release the Bank guarantee in favour of the petitioner in terms and condition agreed by both the parties in NIT No. 2/2009-10 dated 1.5.2009. (iii) For other relief(s) which the petitioner is legally entitled. 2. Learned counsel for the petitioner submits that the petitioner is a reputed manufacturing and supplying industry of fibre glasses and is the biggest supplier of fibre glass boat to Indian Navy, Army, Air Force, ONGC for more than 31 years and is also largest into rated manufacturer and supplier of various fibre glass products to Ministry of Defence and Home Affair and is registered as a small scale industries unit in NSI, New Delhi. 3. Learned counsel for the petitioner also stated that earlier vide order dated 18.9.2009, respondent-authorities rescinded the award of contract for supply of F.R.P. Fibre glass boats with Out Boad Motors and other accessories as well as supply of 120 Inflatable Motor boats with Out Boad Motor and accessories and the petitioner was blacklisted and its performance guarantee was seized. Thereafter, on 16.10.2009 fresh tender in relation to the said supplies was called for. The said orders were challenged by the petitioner vide C.W.J.C. No. 14691 of 2009. The said writ petition was considered by a Bench of this Court and vide order dated 12.5.2010 (Annexure-1), the said writ petition was dismissed after arriving at a finding that though the situation in which the petitioner had reached was its own creation, but there were circumstances when situation spun out of the hands of a supplier. Hence the Water Resources, Government of Bihar was given liberty to reconsider the question of forfeiture of performance guarantee money and the Bank guarantee furnished by the petitioner as the direction for non-payment for the supply was a punishment enough to it.
Hence the Water Resources, Government of Bihar was given liberty to reconsider the question of forfeiture of performance guarantee money and the Bank guarantee furnished by the petitioner as the direction for non-payment for the supply was a punishment enough to it. So far the participation of the petitioner in future tender and its blacklisting are concerned, the Court refused to decide those issues giving liberty to the petitioner to first move the departmental authorities concerned and exhaust remedy provided under the rule. 4. In view of the aforesaid order, the authorities considered the matter and vide order dated 19.7.2010 (Annexure-2) allowed the petitioner to take part in the future tenders of the department, but refused to recall their order regarding forfeiture of performance guarantee and Bank guarantee. Hence, the petitioner challenged that part of the order vide C.W.J.C. No. 12671 of 2010 and the said writ petition was disposed of by a Bench of this Court vide order dated 2.5.2011 (Annexure-3) after coming to the conclusion that from a perusal of letter dated 14.6.2010, it transpired that it was only a proposal and on the basis of the said proposal, order dated 19.7.2010 had been passed and no other order had. been produced to show that any detailed order was passed by the authorities in compliance of the order of the High Court and hence the earlier order of this Court dated 12.5.2010 was not followed in its letter and spirit by the authorities concerned and hence the impugned order cannot be sustained in law. Accordingly, the said order dated 19.7.2010 was quashed and the Director, Purchase, Store and Material Management, Directorate of Water Resources Department, Government of Bihar was directed to pass a fresh and speaking order considering all aspects of the matter in accordance with law within two months from the date of re receipt production of a copy of the said order. 5. It further transpires that in compliance of the said order, the said Director passed order dated 24.6.2011 (Annexure4), which is under challenge in the instant writ petition. 6.
5. It further transpires that in compliance of the said order, the said Director passed order dated 24.6.2011 (Annexure4), which is under challenge in the instant writ petition. 6. Learned counsel for the petitioner argued that the reason given in the impugned order for forfeiture of the performance guarantee and Bank guarantee cannot be held to be a valid reason and no other reason has been given in the said order, which did not address to the issues of forfeiture as directed by this Court vide orders dated 12.5.2010 and 2.5.2011 as mentioned above. Learned counsel for the petitioner submitted that due to the aforesaid reason the petitioner has sustained huge loss, which is apparent from Annexure 4, which is a rough estimate of loss in supply order no. 91-92 dated 26.2.2009. In this regard, learned counsel for the petitioner relied upon three decisions of the Apex Court (i) in case of Uttar Pradesh Power Corporation Ltd & Ors. vs. Amausi Textile Mills Ltd. & Another, reported in (2010) 11 S.C.C. 90 ; (ii) in case of Santlal Gupta & Ors. vs. Modern Co-operative Group Housing Society Ltd. & Others, reported in (2010) 13 S.C.C. 336 , and (Hi) in case of Oryx Fisheries Pvt. Limited vs. Union of India & Ors., reported in (2010) 13 S.C.C. 427 . 7. On the other hand, learned counsel for the respondents submitted that the petitioner violated Clauses 33 and 37 of the NIT with respect to the payments, for which the authorities granted three extensions, but the petitioner failed to utilize even one of them and did not supply and in such circumstances the terms and conditions as enshrined in NIT/2009-10 dated 1.5.2009 (Annexure-5) provided forfeiture of the performance guarantee in Clause 8(3) thereof. In the said circumstances, the authorities had no option but to pass the impugned order dated 24.6.2011 on the basis of the said finding given in the penultimate paragraph thereof. 8. Learned counsel for the respondents also argued that the cancellation of purchase order is not a punishment and the punishment of blacklisting given earlier had been recalled. Thus, the only minimum punishment for such violation is forfeiture of the performance guarantee. Hence, he averred that there is no illegality in the impugned order of the authorities concerned, who had complied the directions given by this Court in the earlier orders. 9.
Thus, the only minimum punishment for such violation is forfeiture of the performance guarantee. Hence, he averred that there is no illegality in the impugned order of the authorities concerned, who had complied the directions given by this Court in the earlier orders. 9. Considering the facts and circumstances of the case as well as the pleadings of the parties and materials on record, it is quite apparent that the abovementioned three case laws, relied upon by learned counsel for the petitioners in case of Uttar Pradesh Power Corporation Ltd. (supra); in case of Santlal Gupta & Ors. (supra) and in case of Oryx Fisheries Pvt. Limited (supra), were in a situation, in which no reasons were assigned by the authorities concerned while passing the orders, which were under challenge in those cases, but in the instant case a detailed order has been passed by the authority, who had been directed to pass such order by this Court. Furthermore, before passing the said order, the authority concerned had given ample opportunity to the parties to place their respective cases, which have been considered in detail in the impugned order and specific findings have been given assigning reasons. Hence, the aforesaid case laws are not attracted to the facts and circumstances of this case. 10. It is also not in dispute that the earlier punishment of blacklisting has been recalled by the authorities concerned and the petitioner has been permitted to take part in the future tenders. Hence the only punishment for default and violation of the conditions prescribed can be the forfeiture of the performance guarantee as per Clause 8(3) of the Terms and Conditions of the NIT concerned, specially when the cancellation of purchase order due to the fault of the petitioner cannot be legally held to be a punishment. 11. From the facts of the case, it is quite apparent that the petitioner had violated Clauses 33 and 37 of the NIT and hence the authority concerned was quite justified in giving punishment as prescribed in the terms and conditions. Hence, this Court does not find any illegality in the impugned order of the authority concerned and, accordingly, this writ petition is dismissed.