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2025 DIGILAW 640 (HP)

Hem Raj v. State of Himachal Pradesh

2025-04-04

AJAY MOHAN GOEL

body2025
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs: “(a) That necessary order, direction and writ may please be issued thereby quashing the impugned order dated 31.12.2004 (Annexure P-1) and further direction may please also be issued to decide the matter afresh by affording an opportunity of being heard to the petitioner. (b) To issue necessary direction, order or writ thereby directing the respondents to allow the petitioner to perform his contractual obligations as per agreement dated 30.03.2024 (Annexure P-2).” 2. The case of the petitioner is that in terms of Annexure P-2 dated 30.03.2024, an agreement was entered into between him and respondent No.2 through its Area Manager qua the transportation of essential commodities from the wholesale godown of respondent No.2 at Ramshehar District Solan to the identified distribution centres. The grievance of the petitioner is that despite the fact that he did not violate any of the terms and conditions mentioned therein, yet, in terms of Annexure P-1 dated 30.12.2024, this agreement was rescinded and the security amount of Rs.80,000/- was ordered to be forfeited and he was blacklisted from participating in future bids. Learned Senior Counsel for the petitioner submitted that the impugned order dated 30.12.2024 is based on show cause notice dated 07.11.2024 copy whereof is appended as Annexure R-11 with the reply filed by the respondents. He submitted that perusal thereof would demonstrate that it was mentioned therein that the petitioner was mandated to provide 5 vehicles fitted with GPS/VTS for the purpose of the transportation and as he failed to do so, therefore, he was called upon to show cause why the tender be not rescinded and the security amount be not forfeited. Learned Senior Counsel argued that a perusal of the impugned order demonstrates that the same has not been passed on the basis of the contents of the show cause notice, but on considerations beyond the content of the show cause notice. Learned Senior Counsel argued that a perusal of the impugned order demonstrates that the same has not been passed on the basis of the contents of the show cause notice, but on considerations beyond the content of the show cause notice. Learned Senior Counsel further submitted that though it is a matter of record that the petitioner did not file any reply to the show cause notice nor he appeared before the Authority, but the same could not prejudice the case of the petitioner for the reason that there was no such condition signed by the petitioner, as would be evident from agreement Annexure P-2, in terms whereof, the petitioner was mandated to provide 5 vehicles fitted with GPS/VTS, as was mentioned in the show cause. He argued that adequate number of vehicles were provided as were required, duly fitted with GPS/VTS. Accordingly, he submitted that as the impugned order is per se bad in law and not sustainable in the eyes of law, the writ petition be allowed, as prayed for. 3. Learned Additional Advocate General vehemently argued that there is no merit in the writ petition as there is no infirmity in the order impugned. He submitted that the tender was invited in the year 2023 for 2 years, though, agreements were entered annually. Learned Additional Advocate General referred to the reply filed by the respondents and submitted that the petitioner was a habitual offender and there was always dereliction of duty on his part and several complaints were filed by the stakeholders. All these facts were holistically taken into consideration by the Authority while passing the order of termination of contract. Learned Additional Advocate General further submitted that termination of contract was done in larger public interest and, therefore, as the petition is without merit, the same be dismissed. 4. On 25.03.2025, this Court allowed the petitioner to participate in the bid subject to the final outcome of the writ petition. Thereafter, this Court directed the respondents to provide the result of the bids in a sealed cover. The record has been made available for the perusal of the Court and the same demonstrates that the petitioner is L-1 as far as HPSCSC Whole Sale Centre Ramshahar to concerned FPS is concerned. 5. Thereafter, this Court directed the respondents to provide the result of the bids in a sealed cover. The record has been made available for the perusal of the Court and the same demonstrates that the petitioner is L-1 as far as HPSCSC Whole Sale Centre Ramshahar to concerned FPS is concerned. 5. I have heard learned Senior Counsel for the petitioner and also learned Additional Advocate General and have also carefully gone through the pleadings as well as the record that has been produced for the perusal of the Court. 6. A perusal of Annexure P-2 demonstrates that this agreement was entered into between the petitioner and the respondents on 30.03.2024. In terms of the contents of the agreement, the same was valid for 1 year, as per Clause No.19 i.e. from 01.04.2024 upto 31.03.2025. Further, in terms of Clause 14 thereof, though, the vehicles which were to be provided by the petitioner were required to be GPS/VTS fitted, but, there is no mention in the agreement that a minimum fleet of a 5 vehicle was mandatorily to be provided by the petitioner fitted with GPS/VTS. 7. Be that as it may, in terms of the impugned order dated 31.12.2024, the contract of the petitioner has been rescinded and he has been blacklisted and further the Security has been ordered to be forfeited, inter alia, on the ground that since August, 2023 on various occasions, it was pointed out to the petitioner that he was not performing his duties in terms of the contract, yet, he did not mend his ways. It is also mentioned in the impugned order that show cause notices were issued on 14.08.2023, 07.11.2024 and 30.11.2024 etc. Petitioner did not provide adequate number of vehicles or labour, as a result whereof, the essential commodities could not reach the destination in time. It is further mentioned in the impugned order that the petitioner used to dilly dally the providing of essential items. There is also reference to various complaints made against him by individuals mentioned in the impugned order. It is further mentioned in the impugned order that the petitioner used to dilly dally the providing of essential items. There is also reference to various complaints made against him by individuals mentioned in the impugned order. It is also mentioned in the order that as despite show cause notice having been issued and despite opportunities granted to the petitioner as he did not mend his ways and as he chose not to appear or file reply to the show cause notice, the contract was being rescinded, security was being forfeited and the petitioner was being blacklisted for a period of 3 years. 8. In the considered view of this Court, the impugned order per se is not sustainable in law. The show cause notice which is the foundation of the impugned order is appended as Annexure R-11 with the reply filed by the respondents. A perusal thereof demonstrates that the show cause was issued to the petitioner on one ground only and this was that the petitioner was not providing 5 vehicles fitted with GPS/VTS for the supply of essential goods, which was mandatory. A perusal of the agreement clearly demonstrates that there was no such condition mentioned therein that the petitioner was bound to provide mandatorily 5 vehicles fitted with GPS/VTS. That being the case, the contents of the show cause notice obviously were contrary to the agreement entered into between the petitioner and the respondents. Not only this, even if it is to be assumed that the petitioner was bound to supply 5 vehicles fitted with GPS/VTS and this was the base on which the show cause notice was issued, the final order ought to have been confined to this issue only. In other words, the other considerations, which weighed with the Authority while passing the impugned order, could not have been taken into consideration by the Authority. All this, vitiate the order and in fact, the impugned order in these circumstances is per se bad and not sustainable in the eyes of law. 9. There is a rational as to why before any action which has civil consequences is taken against a person, a show cause notice is issued to him. All this, vitiate the order and in fact, the impugned order in these circumstances is per se bad and not sustainable in the eyes of law. 9. There is a rational as to why before any action which has civil consequences is taken against a person, a show cause notice is issued to him. The reason and the rational is that a person is put to caveat that as an action is being proposed against him, the grounds are being made available for his perusal and for his response, so that he can respond thereto. When a show cause is issued, the final order has to be stricto sensu inconsonance with the contents of the show cause. If orders like the impugned one are allowed to stand, then, the very purpose of issuing show cause notices would be frustrated and show cause notices will be issued by the Authority on one issue and a person will be non-suited on a totally different issue. 10. Accordingly, in the light of above observation, this writ petition is allowed. Order dated 31.12.2024, in terms whereof, the agreement entered into between the petitioner and the respondents dated 30.03.2024 (Annexure P-2) was rescinded is set aside. The order passed by the Authority of blacklisting the petitioner for a period of 3 years is also held to be bad and the order in terms whereof the security has been forfeited is also set aside. In the light of this decision, it goes without saying that the respondents can now take the fresh tender to its logical conclusion in accordance with law in which petitioner also participated. 11. Pending miscellaneous applications, if any also stand disposed of accordingly.