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2017 DIGILAW 1159 (ORI)

Abhiram Caretaking and Expert Services v. Bharat Sanchar Nigam Limited

2017-10-16

B.R.SARANGI, VINEET SARAN

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JUDGMENT : VINEET SARAN, J. The opposite party-Bharat Sanchar Nigam Limited issued a tender call notice on 07.08.2015 inviting sealed tenders for providing security guards. The bid of the petitioner was lowest and thus the contract was awarded in favour of the petitioner for a period of one year with effect from 01.12.2015 to 30.11.2016. There is no dispute about the fact that the petitioner carried out the work under the contract for the scheduled period of one year and thereafter, without there being any request on the part of the petitioner for extension of the period of contract, the opposite party-Bharat Sanchar Nigam Limited, vide order dated 19.12.2016, extended the contract period for a further period of 3 months with effect from 01.01.2017 to 31.03.2017 or till finalization of new tender, whichever was earlier. The extension was on the same terms as per the agreement executed between the parties. 2. After the extension was accorded by the opposite party, on 20.01.2017 the opposite party issued notice to the petitioner to show cause as to why action should not be taken against it for violation of the terms and conditions of the tender, and also as to why the contract be not cancelled and Earnest Money Deposit (EMD) forfeited. It was also mentioned in the said communication that why the petitioner agency be not blacklisted and barred from participating in any kind of tender in future. In response to the same, petitioner submitted its reply on 27.01.2017 and, thereafter on 23.02.2017, the impugned order has been passed, whereby the agreement has been terminated with effect from 01.03.2017 and the petitioner has been blacklisted for a period of 3 years with effect from 01.03.2017. Challenging the same, this writ petition has been filed. 3. Pleadings between the parties have been exchanged and with the consent of learned counsel for the parties the matter is being finally disposed of at the admission stage. 4. The submission of Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. Sumit Lal, learned counsel for the petitioner is that there was no provision of blacklisting in the agreement executed between the petitioner and the opposite party, nor was there any such provision in the notice inviting tender. 4. The submission of Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. Sumit Lal, learned counsel for the petitioner is that there was no provision of blacklisting in the agreement executed between the petitioner and the opposite party, nor was there any such provision in the notice inviting tender. It is also contended that there was no complaint with regard to the working of the petitioner during the period of agreement, which expired on 30.11.2016 and the grievance of the opposite party started only after the period of agreement was unilaterally extended by the opposite party, without there being any request for the same made by the petitioner. It is further contended that the impugned order has been passed without considering the reply of the petitioner dated 27.01.2017 and without assigning any reason, except for saying that there has been violation of the terms and conditions of the tender/agreement, and that salary to the security guards has not been paid for several months and certain irregularities found in Employees Provident Fund (EPF)/Employees’ State Insurance (ESI) contribution. 4.1 The submission of the learned counsel for the petitioner is that no specific violation of the terms and conditions of the tender/agreement has been mentioned in the impugned order as it was not stated as to for which period the security guards have not been paid by the petitioner or the period for which the EPF/ESI contributions have not been deposited by the petitioner. Learned counsel for the petitioner contends that the impugned order has been passed on general grounds, without assigning any specific reason for cancelling the agreement, and as such neither there was any justification for cancelling the agreement, nor was there any occasion for blacklisting the petitioner, for which there is no provision in the tender call notice or the agreement. 5. Per contra, Mr. D.C. Mohanty, learned Senior Counsel appearing along with Mr. R.N. Acharya, learned counsel for the opposite party has contended that the blacklisting order could be passed even if there was no such provision in the agreement and in support thereof he has relied upon a decision of the apex Court in the case of M/s. Kulja Industries Limited v. Chief Gen. Manager, W.T. Proj., BSNL, AIR 2014 SC 9 . Manager, W.T. Proj., BSNL, AIR 2014 SC 9 . It is further stated that though the show-cause notice had been given to the petitioner on 20.01.2015, the reply submitted by the petitioner on 27.01.2017 was unsigned. However, with regard to the reply of the petitioner, in paragraph-6 of the counter affidavit it is further stated that “clarifications made thereunder were not convincing and satisfactory”. 6. It is noteworthy that neither in the counter affidavit, nor in the impugned order, has the opposite party explained as to why the clarifications given in the reply were not convincing or unsatisfactory. A perusal of the impugned order dated 23.02.2017 would go to show that general allegations have been made against the petitioner, without specifying as to what violation has been committed by the petitioner. By having granted extension of the contract for a further period of three months (without even being asked for), there would be a presumption that the conduct and work of the petitioner was good and to the satisfaction of the opposite party. 7. In the counter affidavit it is stated that in response to the notice dated 20.01.2017, the reply dated 27.01.2017 was unsigned, and in the same breath it is stated that the clarifications made therein were not convincing or satisfactory. The opposite party seems to be blowing hot and cold at the same time. Once it has taken the reply dated 27.01.2017 into consideration, it cannot turn around and say that same was unsigned and could thus not be considered. Even otherwise, the alleged unsigned letter dated 27.01.2017 said to be submitted by the petitioner has not been filed along with the counter affidavit, even though singed copy of the letter has been filed by the petitioner as Annexure-5 to the writ petition. Further, we are of the opinion that even in case the reply dated 27.01.2017 (which was submitted within 7 days of issuance of notice) was unsigned, the opposite party could have asked the petitioner to submit a proper signed reply, as from the record it is clear that it is not a case where the decision was taken by the opposite party immediately within few days of the submission of the reply, as the impugned order is dated 23.02.2017, which was nearly four weeks after the submission of the reply. From the above facts, it is clear that the impugned order has been passed without assigning any reason and also without considering the reply of the petitioner given to the show cause notice. 8. As regards blacklisting, it is admitted by the opposite party that there was no provision of blacklisting, either in the tender call notice, or in the agreement. However, the apex Court in the case of M/s Kulja Industries Limited (supra) has in paragraph 17 held that there was no need for any such power being specifically conferred by statute or reserved by contractor because blacklisting simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. 9. However, even if it is accepted that the opposite party had the power/authority to blacklist the petitioner, but the same could have done after assigning valid reason for doing so in the impugned order, which ought to have been after considering the reply of the petitioner. A perusal of the reply dated 27.01.2017 would show that the petitioner had given response to all the queries raised by the opposite party in the show cause notice, but by the impugned order a general expression has been made that the petitioner has not complied with the terms, and hence the agreement is cancelled. No specific reason for blacklisting has also been assigned in the impugned order. 10. Franz Schubert said- “Reason is nothing but analysis of belief.” In Black’s Law Dictionary, reason has been defined as a- “faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions.” It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. 10.1 In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. 10.1 In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915 , Patitapaban Pala v. Orissa Forest Development Corporation Ltd., 2017 (I) OLR 5 ; and Banambar Parida v. Orissa Forest Development Corporation Limited, 2017 (I) OLR 625. 11. In S.N. Mukherjee v. Union of India (1990) 4 SCC 594 the apex Court held that keeping in view the expanding horizon of principles of natural justice, the requirement to record reasons can be regarded as one of the principles of natural justice which governs exercise of power by administrative authorities. Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority is required to record reasons for its decision. 12. In Menaka Gandhi v. Union of India, AIR 1978 SC 597 the apex Court observed that the reasons, if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the court; or else, the wholesome power of a dispassionate judicial examination of executive orders could, with impunity, be set at naught by an obdurate determination to suppress the reasons. The above questions were considered by one of us (Dr. Justice B.R. Sarangi), while sitting single, in W.P.(C) No. 5147 of 2004 (Saroj Kumar Mishra v. Chairman, Coal India Ltd.) disposed of on 02.05.2017; and in W.P.(C) No. 5092 of 2008 (Narottam Pati v. North Eastern Supply Company) disposed of on 03.05.2017. 13. The above questions were considered by one of us (Dr. Justice B.R. Sarangi), while sitting single, in W.P.(C) No. 5147 of 2004 (Saroj Kumar Mishra v. Chairman, Coal India Ltd.) disposed of on 02.05.2017; and in W.P.(C) No. 5092 of 2008 (Narottam Pati v. North Eastern Supply Company) disposed of on 03.05.2017. 13. For the aforesaid reasons, as also for the reason that the opposite party had extended the period of the agreement, without there being any request so made by the petitioner and without expressing its discontent or dissatisfaction with regard to the working of the petitioner, we are of the opinion that after the period of contract had expired, the passing of the impugned order, in the manner as has been done in the present case, cannot be justified. 14. As such, the writ petition stands allowed and the order dated 23.02.2017 passed by the opposite party is quashed. However, passing of this order would not come on the way of the opposite party in passing fresh orders in accordance with law. No order to cost.