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Madhya Pradesh High Court · body

2020 DIGILAW 816 (MP)

Satish Construction v. Northern Coal Fields Ltd.

2020-08-18

VISHAL DHAGAT

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ORDER : Vishal Dhagat, J. 1. Petitioner, which is a partnership firm registered on 21.11.17, has called in question order dated 13.06.2020. By said order petitioner company was banned for doing business dealings with Northern Coalfields Ltd. for a period of three years from date of issuance of letter. 2. A show-cause notice was issued to company on 14.08.2019. Petitioner company was asked to show cause against breach of condition stipulated in general terms and condition of contract. Petitioner company has uploaded document i.e. Completion Certificate for Annual sanitation up keeping of Dragline erection yard office regional store VTC at Nigahi Project issued by Dy. General Manager (Civil) from Nigahi Project dated 07.04.2018, which was forged. It is mentioned in the notice that in case reply was found unsatisfactory, department will initiate action including debarring from participation of tender and banning of business from company for three years. 3. Petitioner company filed reply to aforesaid show-cause notice on 03.09.2019 and stated therein that tender was filed by one Shravan Singh and petitioner company has no knowledge whether mistake was committed intentionally or unintentionally. Apology was tendered that no such mistake will occur in future. Thereafter, before passing impugned order, tender in question was awarded to subsequent L-1 bidder i.e. M/s. Shyam Murari Singh on 11.10.2019. Respondents had issued NIT dated 06.11.2018, which is awarded to petitioner company on 23.12.2019. Thereafter impugned order dated 13.06.2020 (Annexure P/9) was passed. 4. Impugned order dated 13.06.2020 is under challenge on the ground that after awarding of tender dated 22.04.2019, petitioner had made investment towards completion of tender work. After issuance of show-cause notice, petitioner has filed explanation to it. Same was accepted by the respondents and show-cause notice was waived, therefore, petitioner was awarded another contract on 23.12.2019. Since show-cause notice was waived, therefore, order of respondents banning petitioner Company's business for three years by impugned order is illegal and arbitrary in nature. 5. Respondents opposed the prayer made by petitioner. Counsel appearing for respondents submitted that NIT dated 22.04.2019 was never allotted to the petitioner, therefore, there is no question of making of investment for completion of tender work. Petitioner has filed the tender through D.S.C. i.e. digitally signed certificate which is an excellent and magnificent security to identify the person who is filing e-tender. Therefore, there is no question that petitioner has handed over D.S.C. to some other person. Petitioner has filed the tender through D.S.C. i.e. digitally signed certificate which is an excellent and magnificent security to identify the person who is filing e-tender. Therefore, there is no question that petitioner has handed over D.S.C. to some other person. Petitioner has also admitted the mistake and offered apology, therefore, no error has been committed in passing order dated 13.06.2020. It was also argued that show-cause notice dated 14.08.2019 was never waived by the respondents. No order was passed on show-cause notice and reply of petitioner was under consideration, therefore, NTT dated 06.11.2018 was awarded on 23.12.2019 to the petitioner. This does not show that show-cause notice has been waived. Contract was only awarded as no final order has been passed on show-cause notice given to petitioner. In view of said facts, counsel appearing for respondents prayed for dismissal of writ petition. 6. Considered the arguments of petitioner as well as respondents. 7. Document Annexure P/3 dated 22.04.2019 is a tender notice issued by respondents. Petitioner has referred to Annexure P/3 and stated that tender of petitioner is approved by NCL and approval notice is given on 22.04.2019 vide Annexure P/3. Said statement is found to be incorrect as Annexure P/3 is only NIT issued by respondents. Petitioner has not filed complete document and only first pages is filed along with this writ petition. Respondents had denied that tender dated 22.04.2019 was awarded to the petitioner and, therefore, there is no question of making investment by the petitioner. Petitioner has not filed any counter affidavit to deny such pleadings of respondents. Said facts show that tender dated 22.04.2019 was never awarded to petitioner company. 8. Though another tender was awarded to petitioner company on 23.12.2019, but, that does not go on to show that show-cause notice issued to petitioner dated 14.08.2019 was waived by the respondents. No order was passed on show-cause notice and reply of petitioner was under consideration and petitioner was not banned from doing any business when another tender was allotted to petitioner on 23.12.2019. Impugned order is passed subsequent to allotment of tender. In view of aforesaid circumstances, it cannot be said that show-cause notice was waived by respondents after considering the reply. 9. Respondents have categorically denied the fact that show-cause notice dated 14.08.2019 was waived. Impugned order is passed subsequent to allotment of tender. In view of aforesaid circumstances, it cannot be said that show-cause notice was waived by respondents after considering the reply. 9. Respondents have categorically denied the fact that show-cause notice dated 14.08.2019 was waived. Respondents have categorically stated that tender was submitted through D.S.C. i.e. digitally signed certificate, which ensures security and identity of the person who has filed e-tender. Petitioner has also apologized and admitted his mistake in reply to show-cause notice. Since general condition of contract was breached and there is finding that work completion certificate submitted by petitioner dated 03.09.2019 was forged and manipulated and petitioner has also admitted it, therefore, there is no error in passing the impugned order dated 13.06.2020. 10. In view of aforesaid, writ petition filed by the petitioner is dismissed.