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2016 DIGILAW 535 (JHR)

Dev Multicom Pvt. Ltd. v. Bharat Coking Coal Ltd.

2016-03-30

APARESH KUMAR SINGH

body2016
ORDER : Heard learned counsel for the parties. 2. Petitioner is one of the partners of the joint venture firm Gopalka-Dev Joint Venture, Dhanbad, which participated in the tender for construction of up-gradation of colonies of Kusunda Area under Bharat Coking Coal Limited, Dhanbad (B.C.C.L) under N.I.T dated 23.4.2013. On account of submission of false certificate of experience by the other partner, Shashi Kant Gopalka, first party of the joint venture relating to execution of certain work under the Executive Engineer, Building Division, Banka used for the purposes of participating in the tender and award of the work under the advertisement floated by the respondent-B.C.C.L, a show cause was issued on 27.7.2013 to the joint venture firm (Annexure-2) in the following terms:- “In this respect, it is stated that you have submitted an affidavit in your bid document conveying the following:- 1. All information furnished by us in respect of fulfillment of eligibility criteria and qualification information of this Tender is complete, correct and true. 2. All documents/credentials submitted along with this Tender are genuine, authentic, true and valid. 3. If any information and document submitted is found to be false/incorrect any time, department may cancel my Tender and action as deemed fit may be taken against us, including termination of the contract, forfeiture of all dues including Earnest Money and banning/delisting of our firm and all partners of the firm etc”. As such, you are hereby requested to clarify as to why action should not taken against you as per the provisions made in the above referred affidavit ( forfeiture of all dues including Earnest Money & Banning/Delisting of your firm) submitted by you in your bid document for providing incorrect information/false certificate with your bid document”. 3. The reply to the show cause by the joint venture firm received on 21.8.2013 was found to be unsatisfactory and by order at Annexure-3 dated 27.11.2013, the original order of debarment was passed against the joint venture firm by the General Manager (Civil), B.C.C.L, Dhanbad. Petitioner and the other partner, Shashi Kant Gopalka were also debarred from participating in any tender of B.C.C.L for a period of 3 years. Petitioner alone challenged the order of debarment in W.P.C. No. 7455 of 2013. Petitioner and the other partner, Shashi Kant Gopalka were also debarred from participating in any tender of B.C.C.L for a period of 3 years. Petitioner alone challenged the order of debarment in W.P.C. No. 7455 of 2013. Taking into account the fact that petitioner had also preferred an appeal before the Chairman cum Chief Managing Director (C.M.D.), B.C.C.L, which was still pending against the impugned order dated 27.11.2013 of debarment, learned Single Judge by order dated 3.2.2014 passed the following order:- “Having heard learned counsel for the parties and considered the submission of learned counsel for the petitioner that the appeal against the impugned order is pending before the Chairman-cum-Managing Director, Bharat Coking Coal Limited, this writ petition as well as I.A. No. 636 of 2014 are disposed of, giving liberty to the petitioner to pursue its appeal before the Chairman-cum-Managing Director. If any appeal is filed or is still pending, the said authority shall consider the same and pass a reasoned order within three weeks from the date of receipt/production of a copy of this order”. 4. Petitioner's representation/ appeal is at Annexure-7 where he also requested for personal hearing. Admittedly the appeal was disposed of by a reasoned order at Annexure-8, originally impugned to the writ petition dated 24.2.2014 by the General Manager (Civil), B.C.C.L and not by the C.M.D, B.C.C.L. Petitioner has challenged the appellate order in the present writ petition during the pendency of the which, the respondents have recalled the reasoned order dated 24.2.2014 vide communication dated 19.3.2014, Annexure-IA-1 to I.A. No. 6686 of 2015 for the C.M.D to pass a reasoned order afresh on his appeal. The C.M.D, B.C.C.L. by a reasoned order dated 20.3.2014 also impugned in the same I.A. being Annexure-IA-2 has affirmed the order of debarment for a period of 3 years. 5. While assailing the reasoned order passed by the C.M.D, B.C.C.L during the pendency of the writ application, learned counsel for the petitioner submits that no opportunity of hearing was accorded despite the fact that the decision entails adverse civil consequence and the learned Single Judge of this Court in the previous writ petition had disposed of the said writ petition for the Chairman-cum-Managing Director to take a decision. The respondents have been acting in a casual manner in compliance of the directions of this Court as the earlier appellate order was passed by the authority lower than the C.M.D, B.C.C.L, who could not be appellate authority. On the second occasion, a predetermined order has been passed rejecting the appeal and affirming the order of debarment for a period of 3 years without taking the leave of the Court also. It is also submitted that the order of debarment would remain for a period of 3 years, which is to end sometime in 26.11.2016, but would always act as a stigma against the petitioner, though proper opportunity to defend is not afforded. It is submitted that petitioner undisputedly did not make any false affidavit of its experience of a particular work but has to suffer for the acts of the other joint venture partner, which would be onerous and harsh. The order of debarment of 3 years affirmed by the appellate authority has also not been issued after an independent show cause to the present petitioner, though such debarment would affect not only the joint venture company but individual partners of it also. In effect, the principles of natural justice has been violated. Therefore the matter may be remanded for reconsideration by the C.M.D, B.C.C.L after granting an opportunity of hearing. 6. Learned counsel for the respondent-B.C.C.L submits that the liabilities and obligation of the partners in a joint venture undertaking is joint and several. It was a fraudulent act on the part of the joint venture firm, even though false certificate may have been adduced by the other partner for award of important public work of high value regarding constructions of quarters at Dhanbad of the respondent-company. The respondents have therefore after consideration of the reply of the joint venture company found it unsatisfactory and order of debarment of the joint venture company as well as its two partner have been passed. Learned counsel for the respondent-B.C.C.L however has not been able to dispel the contention of the petitioner that reasoned order passed after disposal of W.P.C. No. 7455 of 2013 was not by the competent authority and the recall of the said order leading to passing of fresh appellate order affirming the order of debarment was done during the pendency of the writ application. He also does not dispute that no opportunity of hearing was given to the petitioner. 7. Having considered the submission of the parties and the relevant materials pleaded on record, it appears that for the act of the other partner, Shashi Kant Gopalka, the joint venture company has faced debarment and so are its two partners including the petitioner. The order of debarment entailing adverse civil consequence upon the petitioner-partner, who, as is evident from the record, had not produced any false certificate of experience to obtain the work would amount to a stigma. The C.M.D, B.C.C.L in appeal has affirmed the same without any opportunity of hearing to the petitioner. It also appears that no individual notice was issued upon the petitioner earlier to show cause against the proposed debarment for the period of 3 years. In any case, petitioner having invoked the provisions for making an appeal before the C.M.D, B.C.C.L, in the circumstances discussed here in above, ought to have been granted an opportunity of hearing before final decision in the matter was taken. This could have enabled the petitioner to place its case also on the question of period of debarment for which no separate show cause notice was issued upon it. The ingredients of notice of debarment require not only the substance of the imputations of misconduct to be replied to but also the penalty proposed for such blacklisting as has been held in a judgment rendered by the Apex Court in the case Gorkha Security Services Vs. Government (NCT of Delhi) and others reported in (2014) 9 SCC 105 , para 21 there of. 8. In view of the aforesaid discussion and the reasons recorded hereinabove and the position of law, the ends of justice would meet if the respondents are directed to reconsider the appeal of the petitioner by a fresh order after giving due opportunity of hearing. Accordingly, the appellate order dated 20.3.2014 sought to be impugned through I.A. No. 6686 of 2015 (Annexure IA-2 to the instant I.A.) is quashed. The matter is remanded to the respondent-Chairman cum Managing Director, B.C.C.L, Dhanbad to take a fresh decision in the matter after giving opportunity of hearing to the petitioner. Needless to say that it would be open to the petitioner to rely upon all such grounds of law and fact in its support. The matter is remanded to the respondent-Chairman cum Managing Director, B.C.C.L, Dhanbad to take a fresh decision in the matter after giving opportunity of hearing to the petitioner. Needless to say that it would be open to the petitioner to rely upon all such grounds of law and fact in its support. Let such decision be taken within a period of 10 weeks from the date of receipt of the copy of this order. 9. The writ petition is allowed in the manner and to the extent indicated herein above.