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2014 DIGILAW 392 (MP)

Raj Kumar Gangwani v. M. P. State Civil Supplies

2014-04-07

A.K.SHARMA, RAJENDRA MENON

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ORDER 1. Petitioner has filed this writ petition under Articles 226 and 227 of the Constitution and calls in question the act of the respondent/Corporation in cancelling the tender and work allotted to the petitioner for the year 2012-2013; de-barring and black-listing the petitioner for a period of 10 years; prohibiting the petitioner from participating in the process of tender for the year 2013-2014; and, further proposing to recover a sum of Rs.60,37,259/- from him. The orders in this regard passed by the General Manager (Transportation) of the respondent/Corporation are impugned in this writ petition and they are filed as Annexures P/6, P/8, P/11 and P/25 (new Annexure A/1) respectively. 2. Facts in nutshell go to indicate that the respondent/Corporation invited tenders for transportation of food grains from various warehouses and godowns to remote areas in the State of Madhya Pradesh. The transportation contract for the year 2012-2013 was awarded to the petitioner, as the petitioner’s offer was found to be the lowest. In support of the same, the petitioner has filed various documents to say that the petitioner was granted the contract on the basis of the lowest tender submitted by him and after evaluating his merit. It is said that the petitioner was carrying out the work with utmost satisfaction and without any hindrance when all of a sudden impugned action was proposed to be taken by contending that the work of the petitioner is not satisfactory and as the procurement of food grains and its distribution is being adversely affected, it was indicated that the work would now be granted to M/s Bhatia Roadlines, Itarsi - the intervener, at the risk and cost of the petitioner. 3. Shri D.K. Dixit, learned counsel, contended that these allegations against the petitioner was not correct and he invites our attention to various documents filed vide Annexure P/15 onwards to say that petitioner’s work in Itarsi area was much better compared to the work of other contractors, who were given work in Pipariya and various other areas. By comparing the percentage of performance shown by the petitioner, as is indicated in various documents filed as Annexures P/15, P/16, P/12 etc, Shri Dixit, learned counsel, tried to emphasize that these documents do indicate that petitioner’s performance was upto the mark and better than other contractors. By comparing the percentage of performance shown by the petitioner, as is indicated in various documents filed as Annexures P/15, P/16, P/12 etc, Shri Dixit, learned counsel, tried to emphasize that these documents do indicate that petitioner’s performance was upto the mark and better than other contractors. In spite thereof, it was indicated that the work would be given to M/s Bhatia Roadlines, Itarsi at the risk and cost of the petitioner. 4. That apart, on the ground that the petitioner has received an advance of Rs.60,37,259/- and has not performed work for the advance granted, it was proposed to be recovered from the petitioner. It was indicated to the petitioner that on the aforesaid ground his offer for the year 2013-2014 is proposed to be rejected and petitioner debarred from participating in the tender process. Petitioner filed the writ petition challenging the same and during the pendency of the writ petition as the impugned action has been taken, the petition has been amended and the relief sought for. 5. Shri D.K. Dixit, learned counsel for the petitioner, took us through the documents and material available on record and argued that petitioner’s work was satisfactory, in accordance to the requirement of the agreement, there was no deficiency in the work of the petitioner and, therefore, a arbitrary decision has been taken to give the contract to the intervener at the risk and cost of the petitioner. That apart, it is stated that for the advance received all the work has been done by the petitioner and therefore, recovery of Rs.60,37,259/- is unsustainable. It was also emphasized by Shri D.K. Dixit that the petitioner is being debarred and blacklisted for a period of 10 years and recovery is being affected from him without giving him proper opportunity of hearing and in an arbitrary manner. Inter alia contending that the action of the respondents is arbitrary, only a device to prevent the petitioner from carrying out the work, the writ petition has been filed. 6. Shri Dixit took us through various documents, relied upon the judgment of this Court in the case of B.B. Verma and another v. State of MP and another, (FB) 2008 RN 52 = 2008(1) MPHT 17 , to say that the action of the respondents in recovering the amount from the petitioner is unsustainable and cannot be upheld. 6. Shri Dixit took us through various documents, relied upon the judgment of this Court in the case of B.B. Verma and another v. State of MP and another, (FB) 2008 RN 52 = 2008(1) MPHT 17 , to say that the action of the respondents in recovering the amount from the petitioner is unsustainable and cannot be upheld. That apart, placing reliance on the following judgments namely – Gronsons Pharmaceuticals (P) Limited and another v. State of UP and others, AIR 2001 SC 3707 ; and, M/s B.S.N. Joshi and Sons Limited v. Nair Coal Services Limited and others, AIR 2007 SC 437 , the blacklisting ordered is also challenged on the ground that it is without giving opportunity to the petitioner, without hearing him and in violation to the principles of natural justice. Learned counsel for the petitioner emphasized that the right of the petitioner to carry out the work in pursuance to the contract given for the year 2012-2013 is being withdrawn arbitrarily and his right to participate in the further process of tendering is unsustainable. 7. Shri Shobhitaditya, learned counsel for the respondents, refuted the aforesaid and took us through the various submissions made in the return, the show-cause notices issued to the petitioner, the advance granted to the petitioner- available from Annexure R/1 onwards, and emphasized that after taking advance from the corporation in accordance to the agreement and after availing of the facilities, the petitioner did not perform his work, as a result the distribution of food grains in various areas was adversely affected, there was public outcry and in public interest the impugned action is taken. 8. Shri Shobhitaditya emphasized that show-cause notices were given to the petitioner, his reply invited and then only the impugned action has been taken. Learned counsel submitted that it is a case where the petitioner has failed to perform his contract in accordance to the requirement of the agreement and as action is taken after issuing show-cause notice and hearing the petitioner, there is no error in the same. Learned counsel further emphasized that a writ petition challenging the dispute which arises out of an execution of contract, is not maintainable. Learned counsel further points out that the contention of the petitioner is not correct and has tried to demonstrate from the return that the action taken is in accordance to the requirement of law. 9. Learned counsel further emphasized that a writ petition challenging the dispute which arises out of an execution of contract, is not maintainable. Learned counsel further points out that the contention of the petitioner is not correct and has tried to demonstrate from the return that the action taken is in accordance to the requirement of law. 9. Shri V.K. Shukla, learned counsel appearing for the intervener, only submitted that the intervener has been awarded the contract in accordance with law, the work order has been executed and now no further indulgence into the fresh grant of contract is called for. 10. We have heard learned counsel for the parties at length and perused the records. 11. The impugned dispute in this writ petition is two folded. The first is with regard to grant of contract to the intervener for the year 2013-14; and, the second limb is with regard to black listing of the petitioner and proposing to recover from him the sum of Rs.60,37,259/-. 12. As far as award of contract to the intervener for the year 2013-2014 is concerned, the contract has been awarded to this firm based on a decision taken by an Appropriate Committee, wherein it was found that the previous year i.e… 2012-2013, the work of the petitioner was not upto the mark, there were various disputes and, therefore, based on the same for the next year the contract has been awarded to M/s Bhatia Roadlines – the intervener. In this regard, now as the contract has already been awarded and as the material available on record is not sufficient enough to show as to what is the arbitrariness or the illegality in awarding the work to the intervener and without challenge being made to the said award of contract by pointing out specific violation of rules of law and justice in awarding this contract, we are not inclined to interfere into the matter. That apart, the question of performance by the petitioner and the allegations and counter-allegations made are all disputed questions of fact and cannot be adjudicated in this petition. 13. If on the subjective satisfaction arrived at by the Appropriate Committee, based on the previous performance of the petitioner, if the work for the next year is granted to the intervener, we see no reason to interfere into the matter in this writ petition, based on the material available on record. 13. If on the subjective satisfaction arrived at by the Appropriate Committee, based on the previous performance of the petitioner, if the work for the next year is granted to the intervener, we see no reason to interfere into the matter in this writ petition, based on the material available on record. If the petitioner feels that the decision for awarding the contract to the intervener has been made in an illegal manner, he may assail the same separately afresh in accordance with law. 14. In granting the contract to the intervener for the year 2013-2014, various disputed questions of fact are involved, which pertain to performance of the petitioner for the previous years, the justification or otherwise of the allegations leveled and the rival contentions. These are all disputed questions of fact. In this writ petition, no specific decision on these grounds can be granted. That being so, we are not inclined to interfere into this aspect of the matter. 15. As far as black listing of the petitioner for a period of 10 years and proposing to recover from him a sum of Rs.60,37,259/- is concerned, even though the respondents have indicated that show-cause notices were issued to the petitioner and he was heard, but a perusal of the impugned orders passed in this regard show that the decision is taken in a very casual and mechanical manner without adverting to consider the dispute and explanation of the petitioner in its right perspective. The orders passed black-listing the petitioner and proposing to recover a sum of Rs.60,37,259/- has penal consequences and, therefore, if an action in this regard is to be taken, which is adverse to the petitioner, apart from grant of opportunity to the petitioner, the orders impugned should show application of mind, consideration of the defence and explanation of the petitioner, and reasons for rejecting the same. In the impugned orders, except for saying that the petitioner has committed default and, therefore, the action is proposed to be taken, there is nothing to show that the proposed black-listing and recovery is after application of mind. Reasons for rejecting the explanation of the petitioner and even material to show the manner in which his explanation and defence was considered is not available. 16. Reasons for rejecting the explanation of the petitioner and even material to show the manner in which his explanation and defence was considered is not available. 16. That apart, the impugned action for black listing the petitioner and proposing to recover Rs.60,37,259/- from him is in violation to the principles of natural justice and to that effect some relief has to be granted. 17. Accordingly, in the matter of black listing and recovery of Rs.60,37,259/- from the petitioner, as rules of natural justice have not been followed, the impugned action is liable to be quashed and the matter remanded back to the respondent/Corporation with a direction to take action for black-listing of the petitioner and proposing to recover the amount afresh in accordance with law, if they so desire. If the respondents do not initiate action in this regard within a period of 60 days from the date of receipt of certified copy of this order, petitioner’s black-listing shall be deemed to have been quashed and petitioner permitted to participate in the further process of grant of contract. 18. With the aforesaid observations, the petition stands allowed in part and disposed of.