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Jharkhand High Court · body

2015 DIGILAW 678 (JHR)

Ashok Kumar Malhotra v. State of Jharkhand

2015-05-22

SHREE CHANDRASHEKHAR

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ORDER : Aggrieved by the order contained in 27.04.2015 whereby, the petitioner has been placed in the list of contractors who have been debarred from participating in future tender floated by Rural Works Department, Jharkhand State Rural Road Development Authority (JSRRDA) and other agencies of Central Government working in the State of Jharkhand, the present writ petition has been filed. 2. The petitioner, a partnership firm, pursuant to advertisement issued in local newspapers participated in the tender floated for construction of road in L.H.G.17 N.P.CC 23 and L.H.G.13 N.P.C.C.24. Finally, works were allotted to the petitioner and the petitioner completed major part of the works in question. However, due to difficulties on account Naxal and Forest problems the work was hindered and therefore, the petitioner informed the Zonal Manager, NPCC Ltd., Ranchi. Accordingly, a meeting was held on 27.02.2013 in presence of the Principal Secretary, R.W.D. cumCEO, JSRRDA and other Government officials and the status and progress of work was reviewed. Vide letter dated 18.03.2013, the decision taken in the review meeting was communicated to the petitioner. However, the respondent Secretary, Rural Works Department, issued letter dated 27.04.2015 whereby, 72 Contractors/Agencies were debarred from participating in future tenders. The name of the petitioner appears at Sl. No. 8 in the list appended to letter dated 27.04.2015. 3. Mr. Anil Kumar Sinha, the learned Senior Counsel for the petitioner submits that review meeting held on 27.02.2013 was chaired by the Secretary, Rural Works Department and in his presence a decision was taken to close the package. The petitioner, who has been paid the entire amount for the work executed by him, has also been however, put in the list of the Contractors/Agencies which have been debarred from participating in future tender. It is further submitted that the tender notice was floated by National Project Construction Corporation (NPCC) Ltd. and the agreement with the petitioner was also executed by the NPCC Ltd. and therefore, the respondent Secretary, Department of Rural Works Department has no authority to debar the petitioner from participating in future tenders. 4. Per contra, Mr. Anil Kumar, the learned counsel for the respondent State of Jharkhand submits that the works in question were entrusted to the National Project Construction Corporation Ltd. which is the agency executing the work on behalf of the State of Jharkhand and therefore, the Secretary, Rural Works Department has authority to issue letter dated 27.04.2015. 4. Per contra, Mr. Anil Kumar, the learned counsel for the respondent State of Jharkhand submits that the works in question were entrusted to the National Project Construction Corporation Ltd. which is the agency executing the work on behalf of the State of Jharkhand and therefore, the Secretary, Rural Works Department has authority to issue letter dated 27.04.2015. It is further submitted that though, a decision was taken in the review meeting held on 27.02.2013, the petitioner was required to complete the road up to Grade III level which the petitioner failed to complete and therefore, his name has rightly been placed in the list of the Contractors/Agencies who have been debarred from participating in future tenders. 5. Letter dated 18.07.2011 indicates that the petitioner made a representation to the Zonal Manager, NPCC Ltd. to take a decision “before expiry of the scheduled completion period” mentioned in the agreement. Letter dated 18.07.2011 has not been denied by the respondents however, it is stated that work of Grade III level as mentioned in letter dated 18.07.2011 was not completed by the petitioner. A review meeting was held on 27.02.2013 in which a decision was taken to close the package and the decision taken in the review meeting was communicated to the petitioner by the Project Manager vide letter dated 18.03.2013. The review meeting mentioned in letter dated 18.03.2013 took stock of the situation about 20 months after the petitioner wrote letter dated 18.07.2011. The petitioner has taken a specific plea in paragraph no. 11 of the writ petition that work up to Grade III level was complete. The statement made in paragraph no. 11 of the writ petition has not been denied by the respondents. The contention raised on behalf of the respondents with reference to letter dated 18.07.2011 that the petitioner has not completed work up to Grade III level cannot be accepted. Letter dated 18.03.2013 when read with the specific stand taken by the petitioner in paragraph no. 11 of the writ petition makes it clear that construction of road upto Grade III level was complete. The stand taken by the petitioner in letter dated 18.07.2011 was not contradicted by the respondents and for the first time in the counter affidavit the respondents have stated that construction upto Grade III level was not complete. 11 of the writ petition makes it clear that construction of road upto Grade III level was complete. The stand taken by the petitioner in letter dated 18.07.2011 was not contradicted by the respondents and for the first time in the counter affidavit the respondents have stated that construction upto Grade III level was not complete. The petitioner has taken a stand that he has been paid the entire amount except, the security deposit for the work completed by him. The said statement has also not been denied by the respondents. Letter dated 27.04.2015 discloses that, if a contractor who has defaulted in completion of the work, completes the work and makes a representation on the recommendation of the Chief Engineer, JSRDA, his name would be deleted from the list appended to the letter dated 27.04.2015. It also reveals that the contractor would be debarred from participating in future tender, till the time it completes the work. Letter dated 18.03.2013 discloses that a decision was taken to close the package. The learned counsel for the respondents submits that by the said letter the petitioner was directed to complete the work immediately. The said contention is not tenable. Once the representation of the petitioner made way back on 18.07.2011 disclosing difficulties on account of Naxal problem has been accepted by the respondents and in the review meeting held on 27.02.2013, a decision was taken to close the package, the petitioner cannot be expected to complete the rest of the work. Though, letter dated 18.03.2013 mentions, “hence it is directed to complete the work immediately”, I am of the opinion that the direction if at all issued to petitioner must be ignored in view of the decision taken in the review meeting dated 27.02.2013 to close the package after the work up to Grade III and CD is complete. As noticed above, the petitioner has taken a specific stand in paragraph no. 11 of the writ petition that it has completed the work up to Grade III level and the said statement has not been denied by the respondents. I am of the opinion that the petitioner has erroneously been placed in the list of debarred contractors vide letter dated 27.04.2015. The learned Senior Counsel for the petitioner has raised a plea that before debarring the petitioner, no show cause notice was issued to the petitioner. I am of the opinion that the petitioner has erroneously been placed in the list of debarred contractors vide letter dated 27.04.2015. The learned Senior Counsel for the petitioner has raised a plea that before debarring the petitioner, no show cause notice was issued to the petitioner. A specific plea has been taken in the writ petition also however, the same has been denied by the respondents. However, without adverting to the said plea raised on behalf of the petitioner, I am of the opinion that in view of letter dated 18.03.2013 and the specific plea taken in paragraph no. 11 of the writ petition, the name of the petitioner must be excluded from the list appended to letter dated 27.04.2015. 6. In the result, the writ petition is allowed, to the extent that the name of the petitioner stands deleted from the list appended to letter dated 27.04.2015.