Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1207 (MP)

Balaji Services v. Airport Authority of India

2014-09-24

J.K.JAIN, SHANTANU KEMKAR

body2014
JUDGMENT : Jarat Kumar Jain, J.:- This is an intra-Court appeal against the order passed by learned Single Judge in Writ Petition No. 3641/2014 on 12-8-2014 whereby dismissed the writ petition of the appellant/petitioner. Respondent No. 2 in the year 2008 issued Notice Inviting Tender (NIT) for grant of license for functioning and operating the commercial-cum-staff canteen at Civil Aerodrome, Indore. As per Clause 3 of the NIT, the participant was required to have two years' experience of running the good quality Restaurant/Fast Food, Joint/Cafeteria in his own name and having a minimum turn over equal to the amount of six months prescribed by MRLF. The appellant/petitioner submitted tender along with a certificate of experience issued by the Central Malwa Academy, Indore certifying that the appellant has an experience of one year and five months for running the Canteen. This certificate was signed by Mr. M.L. Laxkar. Clause 6 of the NIT provides that in case the information submitted by a party participating in a tender document is being incorrect, the respondents shall have the right to debar such participant for a period of three years. On 13-3-2008, the price bids were opened and the bid put forth by one Pinkesh Verma was accepted and granted license for functioning the Restaurant. Subsequently, on the basis of a complaint a report was lodged with the CBI and the CBI conducted the investigation and on that basis Mr. Pinkesh Verma has been debarred for a period of three years by order dated 15-9-2012. A show-cause notice was also issued against the appellant on 5-7-2012 and the appellant submitted a reply to the show-cause notice and thereafter an order was passed on 24-7-2012 blacklisting the appellant for a period of three years. The appellant-petitioner challenged this order before this Court in Writ Petition No. 7605/2012, vide order dated 4-7-2013 this Court has set aside the order dated 24-7-2012 and directed the respondents to hold an enquiry and to pass appropriate orders. Thereafter, the respondents have constituted a three-member enquiry Committee and the members of the enquiry Committee are General Manager, Joint General Manager and Airport Director-Mr. R.N. Shinde. The Committee found that the appellant has filed the forged experience certificate. Therefore as per Clause 6 of the NIT, the respondents vide order dated 28-4-2014 blacklisted the appellant for three years. 2. The appellant/petitioner has challenged the order dated 28-4-2014 in writ petition. R.N. Shinde. The Committee found that the appellant has filed the forged experience certificate. Therefore as per Clause 6 of the NIT, the respondents vide order dated 28-4-2014 blacklisted the appellant for three years. 2. The appellant/petitioner has challenged the order dated 28-4-2014 in writ petition. Learned Single Judge by the impugned order dismissed the writ petition. Being aggrieved the appellant has filed this writ appeal. 3. Learned Counsel for the appellant submits that in the writ petition, the appellant challenges the order of the respondents mainly on two grounds that Mr. R.N. Shinde was biased against the appellant as in earlier petition he was defended the action of the Department, therefore, for fair and transparent enquiry he should not made a member of the Committee and the second ground for challenge was that during enquiry, the Committee has not afforded an opportunity for cross-examination of the witness Mr. M.L. Laxkar. Learned Single Judge has not considered this aspect of the matter that the enquiry report is suffered from bias and unfair. 4. Learned Counsel for the appellant in support of his argument cited the judgment of Apex Court in the case of Kumaon Mandal Vikas Nigam Vs. Girija Shankar Pant, (2001) 1 SCC 182 and Rattanlal Sharma Vs. Managing Committee, Dr. Hariram (Co-education) Higher Secondary School and others, 1993 AIR SCW 2400. 5. Per contra, learned Counsel for the respondents supports the impugned order and submits that mere general statement is not sufficient for drawing inference that the decision is biased. In the writ petition, Mr. R.N. Shinde has not been made a party by name and any mala fides have not been alleged against him. In the three members Committee, Mr. R.N. Shinde was the junior member and therefore, it cannot be inferred that he has influenced the other two members of the Committee who are senior to him. The report of the Committee is based on the evidence of Mr. Laxkar, who deposed that he has not signed the experience certificate. 6. Learned Counsel for the respondents submits that there is no absolute rule that before passing an order of blacklisting of a contractor an opportunity of hearing should be given to the affected party for this purpose he relied upon the judgment of Apex Court in the case of Patel Engineering Limited Vs. Union of India, AIR 2012 SC 2342 . 7. Union of India, AIR 2012 SC 2342 . 7. Learned Counsel for the respondents further submits that Mr. R.N. Shinde being an Airport Director has defended the department in earlier writ petition and subsequently he was one of the members of the Committee only on this ground the recommendations of the Committee cannot be said to be suffered from bias or malice. For this purpose, he relied upon the judgment of Apex Court in the case of State of M.P. Vs. Ganekar Motghare, 1989 Supp (2) SCC 703. 8. After hearing learned Counsel for the parties, we have gone through the record. 9. The Writ Court has considered two grounds:-- (i) Whether Mr. R.N. Shinde was biased against the appellant. (ii) Whether the enquiry Committee has given fair and proper opportunity of hearing to the appellant. 10. Hon'ble Apex Court in the case of Kumaon Mandal Vikas Nigam (supra), held that:-- "the test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom in the event however, the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular Court, Tribunal or Authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case." 11. In the light of this principle, we have examined the facts and circumstances of this case. In the writ petition, Mr. R.N. Shinde was not made a party by his name and there is no specific allegation against him in regard to prejudice to the appellant only because Mr. R.N. Shinde being a Director of Airport Authority defended the action of department in earlier writ petition it cannot be inferred that he was biased with the appellant. 12. R.N. Shinde was not made a party by his name and there is no specific allegation against him in regard to prejudice to the appellant only because Mr. R.N. Shinde being a Director of Airport Authority defended the action of department in earlier writ petition it cannot be inferred that he was biased with the appellant. 12. It is evident that in the three members Committee R.N. Shinde was the junior member and there is no material on record for drawing the conclusion that he was in a position to influence other two members of the Committee who are senior to him. If there is an apprehension of bias then the appellant should have taken such objection in very inception when the Committee was constituted but the appellant has not taken any objection in this regard and he participated before the enquiry Committee proceedings. The Committee has given a report against the appellant then he has raised the objection that Mr. Shinde was biased against him. 13. Now, we have considered the other ground about affording proper opportunity of hearing to the appellant. The grievance of the appellant is that Committee has not given him opportunity to cross-examine the witness Mr. M.L. Laxkar. After examination of Mr. M.L. Laxkar the appellant himself appeared before the Committee but he has not expressed that he wanted to cross-examine the witness Mr. M.L. Laxkar. Such objection was raised in the argument before the Writ Court but no such ground was taken in the petition. 14. The enquiry Committee was to consider only the genuineness of the experience certificate which is filed by the appellant along with his tender and the certificate is purported to be signed by Mr. Laxkar. For this purpose, the Committee has examined Mr. Laxkar and Mr. Laxkar deposed categorically before the Committee that he has not signed the experience certificate. In these circumstances, we found that the report of Committee does not suffer from bias or malice. We are of the view that the judgment passed by the learned Single Judge is based on proper appreciation on facts and law and we do not find any ground to interfere in the judgment passed by the learned Single Judge. Thus, the appeal is dismissed.