Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 646 (AP)

G. S. G. Krishna v. Govt Of A. P.

2020-10-06

NINALA JAYASURYA

body2020
ORDER : (Heard and pronounced through Blue Jeans App(virtual) mode, since this mode is adopted on account of prevalence of COVID-19 Pandemic). 1. Heard Smt. Santhi Sree Vallabhaneni, learned counsel for the petitioner and learned Government Pleader for Irrigation appearing for respondents and with their consent the matter is disposed of at the stage of admission. 2. The present Writ Petition is filed aggrieved by the action of the respondents in placing the name of the petitioner/tender of the petitioner in Black Listed Tenders by displaying in Andhra Pradesh e-Procurement Portal i.e., the Tender I.D.No.326015, Tender No.JTO-2/15/2020-21 dated 09.04.2020 as Black-Listed Tender, which was done in furtherance of a Notice No.507M, dated 30.05.2020 served on the petitioner on 05.06.2020 without affording any opportunity as illegal, arbitrary, violative of Articles 14, 16 and 19 of the Constitution of India and consequently direct the 4th respondent to remove/delete the name of the petitioner from the display in Andhra Pradesh e-Procurement Portal in respect of petitioner’s Tender i.e. I.D.No.326015, Tender No.JTO-2/15/2020-21 dated 09.04.2020, as Black-Listed Tender and pass such other orders. 3. The brief facts as per the averments in the writ petition are as follows: 4. The petitioner is a Class-I(Civil) Contractor and having all certificates necessary for competing the bids with the Government Departments. Pursuant to e-Procurement Tender Notice No.15/2020-21 dated 09.04.2020 for the work of O & M such as Removal of Weed Growth on Ramarajupalem channel and its branches under the Irrigation Section, Machilipatnam for the year 2020-21, the petitioner submitted his bid and after evaluation of the bids, the petitioner was declared as successful bidder and a work order dated 01.05.2020 was issued in his favour. In terms of the said work order dated 01.05.2020, the petitioner was required to attend the office of the 4th respondent and submit the original hard copies of uploaded and attached certificates/documents and Demand Draft towards Earnest Money Deposit/Bid security/ASD fee on or before 06.05.2020, failing which or in the event of any variation, the petitioner shall be suspended from participating in the tenders on e-Procurement platform for a period of three(3) years as per G.O.Ms.No.174 of I&CAD(PW-Reforms) Department, dated 01.09.2008. In view of the urgency and limited working period available to enable smooth water regulation of Khariff, 2020, the petitioner was asked to commence work immediately. The said work order dated 01.05.2020 was served on 4th or 5th of May, 2020. In view of the urgency and limited working period available to enable smooth water regulation of Khariff, 2020, the petitioner was asked to commence work immediately. The said work order dated 01.05.2020 was served on 4th or 5th of May, 2020. Due to COVID-19 and the consequent lock down prevailing in Vijayawada, strict restrictions were imposed on the movement of public. Therefore, necessary documents could not be produced and the petitioner could not attend before the respondent No.4 on or before 06.05.2020. Subsequently, through a notice dated 30.05.2020, the petitioner was requested to attend office of the respondent No.4 along with DD/challans, stamp papers and other documents within two days from the date of receipt of the said notice. It was informed that failure on the part of the petitioner will be viewed seriously and action for Black Listing/Debarment will be initiated as per rules in force. Thereafter, the petitioner was black listed and name of the petitioner/tender of the petitioner was placed in Black Listed Tenders by displaying in Andhra Pradesh e-Procurement Portal as Black Listed Tender. Aggrieved by the said action, the petitioner filed the present Writ Petition. 5. Learned counsel for the petitioner submits that the action of the respondents in placing the petitioner/tender of the petitioner in Black Listed Tenders in the e-Procurement Portal, pursuant to the notice dated 30.05.2020 is illegal, unjust, arbitrary and violative of principles of natural justice and that the same is liable to be set aside. She submits that in view of the situation prevailing in Vijayawada due to COVID-19 and lock down restrictions, the petitioner could not attend the office of the respondent No.4 as directed and conclude the agreement within the stipulated time in terms of the work order dated 01.05.2020. The petitioner was under a bonafide impression that taking into consideration the pandemic and the lock down restrictions, the petitioner would be granted time for concluding the agreement. The petitioner was under a bonafide impression that taking into consideration the pandemic and the lock down restrictions, the petitioner would be granted time for concluding the agreement. The learned counsel states that the authorities without taking the alarming situation due to spread of COVID-19 into account and without affording adequate opportunity to the petitioner had placed his tender as Black Listed in the Andhra Pradesh e-Procurement Portal and thereby violated the petitioner’s rights guaranteed under Article 19(1) (g) of the Constitution of India, that the action of the respondents in placing the name of petitioner/tender of the petitioner as black listed in the prevailing circumstances is not justified. The learned counsel contends that the petitioner was not afforded any opportunity for submitting its explanation before the action to Black List the petitioner has been resorted to. The learned counsel states that in respect of another work for which the petitioner is a successful bidder, notices were issued to the petitioner. However, in the present case, the petitioner was placed under Black Listed Tenders even before the time granted for the petitioner was expired. The learned counsel while drawing the attention of this Court to notice dated 30.05.2020 submits that in the said notice, the petitioner was requested to attend the office of the respondent No.4 along with DD/challans, stamp papers and other documents within two days from the date of receipt of the said letter/notice. The learned counsel states that the notice dated 30.05.2020 was posted on 02.06.2020 as is evident from the postal receipt on the cover Ex.P2 filed along with the Writ Petition, that the same was received by the petitioner on 05.06.2020(Friday) and contends that two days time would be 6th and 7,th as 7th being a Sunday, time is available to the petitioner till 08.06.2020(Monday) for submitting the documents before the respondent No.4. However, without even waiting for the submission of the relevant documents and DDs, and even before completion of the two days time granted, the petitioner was placed as Black Listed Tender on 05.06.2020 itself. However, without even waiting for the submission of the relevant documents and DDs, and even before completion of the two days time granted, the petitioner was placed as Black Listed Tender on 05.06.2020 itself. The learned counsel for the petitioner submits that the authorities having granted time to the petitioner to comply with the requirements i.e., submission of DDs and documents within the time granted to him had placed the petitioner/tender of the petitioner in Black Listed Tenders in an arbitrary, unjust and hurried manner, even without issuing any show cause notice as to why he shall not be black listed. The learned counsel states that the action of the respondents is liable to be declared as illegal on this ground alone and they should be directed to delete/remove the name of the petitioner/tender of the petitioner as Black Listed Tender in the display of Andhra Pradesh e-Procurement Portal. The learned counsel also states that the bonafides of the petitioner in obtaining DDs on 06.06.2020 would manifest that the petitioner is interested in execution of the works pursuant to the tender awarded to him. The learned counsel submits that in respect of another tender No.10, notice/intimation though not a show cause notice, was issued to the petitioner but in the present case, the respondents displayed the name of the petitioner in the Black Listed Tender, without any notice. Under the above said circumstances, the learned counsel seeks the reliefs as prayed for. 6. The learned Government Pleader on the other hand contends that the petitioner had committed default in complying with the tender conditions and after giving due opportunity to the petitioner, the name of the petitioner/tender is placed under Black Listed Tender as per the procedure. The learned Government Pleader while referring to the relevant clauses in the agreement argued that the plea of the petitioner that due to lock down restrictions the petitioner could not submit the documents is not tenable, in as much as the Banks are working even during the lock down period and further that the documents on the basis of which the petitioner had bid for tender could as well be submitted without any delay. She submits that the petitioner purchased the stamp paper on 26.05.2020 and nothing prevented him from submitting the relevant documents for concluding the agreement. She submits that the petitioner purchased the stamp paper on 26.05.2020 and nothing prevented him from submitting the relevant documents for concluding the agreement. The learned Government Pleader also submits that the works in question are urgent works and therefore they cannot be delayed. However in the interest of works, the petitioner, though there was no obligation on the part of the respondents was afforded an opportunity through the said letter dated 30.05.2020 to conclude the agreement and proceed with the works, but the petitioner failed to avail the same. Under those circumstances, the Department has no other alternative except to cancel the tender awarded in favour of the petitioner and to entrust the works by issuing a second call under the tender notice. Accordingly, tenders were again called on 05.06.2020, opened on 15.06.2020 and after evaluation, works were awarded to M/s.Sri Mandali Enterprises as its Bid was lowest. The learned Government Pleader submits that in order to protect the interest of the farmers of around 20,000 acres ayacut, the tender of the petitioner was cancelled due to lapses on his part and the work was entrusted to the new tenderer. The learned Government Pleader further submits that there is no necessity to issue a separate notice, since whole process of e-Procurement tendering, award of works and intimation to the Bidder is through on-line only and there is no need to give manual notices to the bidder/successful tenderer. However, keeping in view the importance and urgency of the work, the respondents have issued a notice dated 30.05.2020, since the petitioner failed to avail the opportunity afforded to him, the respondents having no other alternative, placed the petitioner/tender of the petitioner in Black Listed Tender in A.P. e-procurement Platform. The learned Government Pleader contends that the action of the respondents is justified in the facts and circumstances of the case and is in accordance with the procedure in vogue. The learned Government Pleader also contends that since the petitioner failed to submit the original documents before the due date, in view of the unique system in the e-Procurement Platform, on default of any participants/defaulting contractors, they would be Black Listed automatically in the e- Procurement Platform. The learned Government Pleader also contends that since the petitioner failed to submit the original documents before the due date, in view of the unique system in the e-Procurement Platform, on default of any participants/defaulting contractors, they would be Black Listed automatically in the e- Procurement Platform. The learned counsel also submits that the petitioner is obligated to submit the original documents within the due date, failed to submit the same even after granting further time and lock down restrictions is nothing but lame excuse to cover up his lapses. She points out that other successful bidders in respect of other works have successfully proceeded with their works and that the same would establish that the petitioner for his own reasons is not interested in proceeding with the works. The learned Government Pleader submits that under the said circumstances, the petitioner is not entitled to any relief from this Court and that the writ petition is liable to be dismissed. 7. On consideration of the rival submissions, the point that arises for determination by this Court is : “Whether the action of the respondents in placing the name/tender of the petitioner as Black Listed on the A.P. e-Procurement Portal in the facts and circumstances of the case is tenable or not?” 8. The facts with regard to awarding of works and placing work order on 01.05.2020 in favour of the petitioner are not in dispute. While, it is the case of the petitioner that though the work order was issued in favour of the petitioner, he could not conclude the agreement within the stipulated time in view of the lock down restrictions imposed due to COVID-19, the respondents on the other hand contends that the action is justified as there is failure on the part of the petitioner despite granting time. As seen from the work order dated 01.05.2020, the petitioner is under an obligation to submit the original hard copies of the uploaded and attached certificates and demand draft towards EMD/Bid Security/ASD Fee on or before 06.05.2020 and in the event of failure it was mentioned that the petitioner would be suspended from participating in the tenders of e-Procurement Platform for a period of three(3) years, as per G.O.Ms.No.174, I and CAD(PW-Reforms) Department, dated 01.09.2008. The petitioner could not comply with the said requirement, within the stipulated time i.e., on or before 06.05.2020. The petitioner could not comply with the said requirement, within the stipulated time i.e., on or before 06.05.2020. Though there is no requirement to issue any further notice, by way of notice/letter dated 30.05.2020 the petitioner was granted two days time from the date of receipt of the said communication to attend the office of respondent No.4 for submission of D.Ds/Challans, Stamp papers and other documents. As contended by the learned counsel for the petitioner and as evident from the postal receipt, it is clear that the said notice was sent through registered post on 02.06.2020 though the notice is dated 30.05.2020. In this regard, the contention of the learned counsel for the petitioner that the said notice was received on 05.06.2020 has not been disputed in the counter-affidavit. In view of the same, the two days time as granted in the communication dated 30.05.2020 has to be reckoned from the date of receipt of the said letter on 05.06.2020. In this regard the contention of the learned counsel for the petitioner that two days time would expire by 07.06.2020 and it being Sunday, the petitioner had time up to 08.06.2020 deserves to be accepted. Thus, even before expiry of time, the name of the petitioner/tender of the petitioner has been placed as a Black Listed Tender on 05.06.2020, that too without issuing any show cause notice. It may be pertinent to refer here that the works which were awarded to the petitioner in respect of Removal of Tape Grass and Nachu in Bandhar canal, the petitioner was issued two e-mails dated 02.06.2020, that action will be initiated and e-mail dated 04.06.2020 cancelling the tender. However, insofar as the present case is concerned, no such notice/communication(in any form) in respect of cancellation of the tender in question was issued. The only notice as per the contention of the learned counsel for the petitioner which is not disputed, is the notice dated 30.05.2020. Though the learned counsel for the petitioner contended that the placing of the name of petitioner/tender of the petitioner in respect of the present tender as Black Listed Tender is not tenable for the contentions urged above, it is fairly stated that the works were awarded to another contractor subsequent to the filing of the Writ Petition and as such the petitioner is not interested in questioning the award in favour of the new bidder. However, the petitioner is aggrieved by the action of the respondents in continuing the name of the petitioner/tender of the petitioner in the Black Listed Tenders on the e- Procurement Poral in furtherance of notice dated 30.05.2020. In this regard, the learned counsel for the respondents submits that failure to submit the necessary documents would entail the consequences of Black Listing automatically in the e-Portal system. The same needs to be examined. 9. Admittedly, in the present case, the petitioner pursuant to the work order dated 01.05.2020 was required to submit the documents and conclude agreement on or before 06.05.2020. However, the time limit as per the work order could not be adhered to, which appears to be due to the present prevailing circumstances of COVID-19 and therefore the petitioner was issued a communication/notice dated 30.05.2020 wherein he was called upon to attend the office of the respondent No.4, within two days from the date of receipt of the said letter along with the requisite D.Ds/Challans, stamp papers etc., Thus, it can be safely presumed that the authorities have waived penal action as proposed in the work order dated 01.05.2020. In such circumstances, the respondents have to abide by the subsequent notice/letter dated 30.05.2020, wherein the petitioner was granted two days time to attend and submit the documents and DDs from the date of receipt of the said letter i.e., by 08.06.2020 (as the letter was received on 05.06.2020 and 07.06.2020 being a Sunday), but placed the tender as black listed on 05.06.2020. The basis for the said action, as per the counter affidavit is G.O.Ms.No.174, I & CAD(PW-Reforms) Department, dated 01.09.2008. The relevant portion of the above said G.O., reads as follows: Vi) If any successful bidder fails to submit the original Hard Copies of uploaded certificates/Documents, DD/BG towards EMD within the stipulated time or if any variation is noticed Between the uploaded documents and the hard copies submitted By the bidder, the successful bidder will be suspended from Participating in the tenders on e-Procurement platform for a Period of 3 years. The e-Procurement system would deactive The used ID of such defaulting successful bidder based on the Trigger/recommendation by the Tender Inviting Authority in the System. The e-Procurement system would deactive The used ID of such defaulting successful bidder based on the Trigger/recommendation by the Tender Inviting Authority in the System. Besides this, the Department shall invoke all Processes Of law including criminal prosecution of such defaulting bidder as An act of extreme deterrence to avoid delays in the tender Process for execution of the development schemes taken up by The Government. The information to this extent may be displayed In the e-procurement platform website. 10. Thus, as seen from the above clause, the successful bidder will be suspended from participating in the tenders of e-Procurement Platform for a period of three(3) years in the event the successful bidder fails to submit the original hard copies of uploaded certificates/documents, DD/BG towards EMD within the stipulated time. 11. In the present case, as discussed earlier, the time for submission of the DDs/documents have been extended by notice/letter dated 30.05.2020. In terms of the time fixed as per the said letter, the petitioner is required to submit the documents and DDs within two days from the date of receipt of the letter which is undisputedly from 05.06.2020 i.e., 08.06.2020(07.06.2020 being a Sunday). Therefore, the contention of the learned Government Pleader that as the documents/DDs have not been submitted within the stipulated time, the petitioner has been automatically placed as Black Listed in the e-Procurement Platform cannot be accepted. Further, the said clause do not prescribe any specific time limit of 30 days as sought to be projected in the counter-affidavit. As the respondents have themselves issued a notice dated 30.05.2020 requiring the petitioner to attend the office of the respondent No.4 for submission of documents within two days from the date of receipt of the said communication, any action taken by them before expiry of stipulated time would amount to violation of principles of natural justice. Therefore, the action of the respondents in displaying the tender in question as Black Listed tender is not sustainable, since stipulated time for submission of documents has not expired. However, in view of the subsequent developments of entrustment of the works to another contractor, which is not challenged, no relief in this regard can be granted. Therefore, the action of the respondents in displaying the tender in question as Black Listed tender is not sustainable, since stipulated time for submission of documents has not expired. However, in view of the subsequent developments of entrustment of the works to another contractor, which is not challenged, no relief in this regard can be granted. But, continuation of the petitioner as Black Listed and the resultant suspension to participate in any tender on A.P. e-Procurement Platform for a period of three (3) years on the ground of non-submission of documents/DDs within the stipulated time, in the light of the conclusions arrived at above, would be unjust. 12. It may be pertinent to mention here that Black Listing of contractor results in serious consequences. Therefore, before placing a contractor under Black Listing, Law requires affording an opportunity, not mere opportunity, but adequate opportunity has to be afforded. In the present case, though notice dated 30.05.2020 contemplates the action of Black Listing, no independent notice has been issued calling upon the petitioner to show cause as to why he shall not be placed under Black Listing. In this regard, the contention of the learned Government Pleader that e- Procurement system would deactivate the user ID of successful bidder on default based on the trigger/recommendation by the Tender Inviting Authority in the system and that the digital platform has automatically suspended the petitioner from participating in the tenders on e-Procurement Platform for a period of three(3) years in terms of G.O.Ms.No.174 dated 01.09.2008 referred to supra cannot be appreciated. Issuance of a show cause notice in cases of Black Listing cannot be dispensed with under any circumstances, much-less by referring to some technical aspects which cannot whittle down the requirement of Law, lest it would lead to arbitrary actions by the authorities. The consequence of such an action of black listing, in the present case, is suspension of the petitioner from participating in the tenders on the e-Procurement Platform for a period of three (3) years. Though, it is not permanent in nature, in the considered opinion of this Court, the suspension for a period of three (3) years results in serious consequences, penal in nature and under such circumstances, the action should be preceded by issuance of notice and adequate opportunity to submit explanation. 13. Though, it is not permanent in nature, in the considered opinion of this Court, the suspension for a period of three (3) years results in serious consequences, penal in nature and under such circumstances, the action should be preceded by issuance of notice and adequate opportunity to submit explanation. 13. In the present case, no show cause notice, much-less an opportunity has been afforded to the petitioner before displaying name of the petitioner/tender of the petitioner as black listed on A.P. e- Procurement Portal. As concluded earlier, the petitioner’s tender is placed in the e-Portal as Black Listed even before the expiry of time granted for submission of documents, that too without issuing any show cause notice. The said action of the respondents amounts to arbitrary exercise of power and violation of principles of natural justice as also petitioner’s rights guaranteed under Article 14, 19(1)(g) of the Constitution of India. 14. Therefore, in the facts and circumstances of the case, this Court is of the considered view that there is no justification in placing the petitioner/tender of the petitioner as Black Listed, resulting in suspension of the petitioner from participating in the e-Procurement Platform for a period of three(3) years and continuation of the name of the petitioner/tender of the petitioner as black listed on e-platform is unjust, unsustainable, and the same is hereby declared as illegal. 15. Consequently, the respondents are directed to remove/delete the name of the petitioner from the display in the A.P. e-Procurement Portal in respect of petitioner’s e-Tender I.D.No.326015, Tender JTO-2/15/2020-21 dated 09.04.2020 as Black Listed Tender consequent to notice dated 30.05.2020, within a period of four(4) weeks from the date of receipt of copy of the order. 16. The writ petition is allowed to the extent indicated above. There shall be no order as to costs of the Writ Petition. 17. Consequently, Miscellaneous Petitions pending, if any, in the Writ Petition shall stand closed.