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Madhya Pradesh High Court

M/S Arvind Prakashan vs The Registrar on 2 August, 2017

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR

Case No.                             WP. No.3093/2017
Parties Name                                   M/s. Arvind Prakashan
                                                            Vs.
                                            The Vice Chancellor & Others
Date of Judgment                     02/08/17
Bench Constituted                    Single Bench
Judgment delivered by                Justice Sujoy Paul
Whether approved for reporting No
Name of counsels for parties         Petitioner:Shri Lalji Kushwaha, Adv.

                                     Respondents: Smt. Shobha Menon, Senior

Counsel with Shri Rahul Choubey, Adv.

Law laid down                                             -
Significant paragraph numbers                             -

                                     (Order)
                                    02.08.2017

This petition filed under Article 226 of the Constitution takes exception to the order dated 14-01-2017 (Annexure P/1) whereby the respondent University has placed the name of the petitioner in the black list upto 13-01-2018.

2. Shri Kushwaha, learned counsel for the petitioner submits that pursuant to N.I.T. dated 27-06-2016 (Annexure P/3), the petitioner submitted his bid. The respondents were kind enough to accept the petitioner's bid. The conditions of N.I.T. are mentioned in the document namely "Tender for the Procurement of Books" (Page 21). It is submitted that the petitioner received a letter dated 05-09- 2016 (Annexure P/5) wherein the University directed him to enter into an agreement within seven days from 05-09-2016, failing which his earnest money will be forfeited.

3. Shri Kushwaha further submits that although in the document dated 05-09- 2016 (Annexure P/5), it was mentioned that copy of agreement is enclosed but no such agreement was actually enclosed with the said letter. The petitioner by communication dated 08-09-2016 (Annexure P/6) informed the respondents that

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the agreement was not enclosed with the letter dated 05-09-2016. The petitioner requested the University to provide the agreement to enable him to execute the same expeditiously. Reliance is placed on the communication dated 23-09-2016 (Annexure P/7) whereby the petitioner informed the University that the agreement is received by him on 20-09-2016 and with some alterations he is supplying it to the University.

4. The petitioner is aggrieved by order dated 14-01-2017 whereby his name is placed in the black list for the sole reason that the petitioner has not executed the agreement. Accordingly, petitioner's name is placed in the black list for a period of one year i.e. from 13-01-2017 to 13-01-2018. Learned counsel by placing reliance on Clause 19 of the tender document submits that the termination of contract or action of black listing can be done only for twin grounds mentioned in the said clause. The reason for which petitioner's name is black listed is not one of those reasons mentioned in Clause 19.

5. Shri Kushwaha further submits that before black listing him, no opportunity of hearing was given to him. The action proposed by Annexure P/5 was only to forfeit his earnest money and not to black list him. The action is beyond the purview of Clause 19 and it runs contrary to the principles of natural justice because (i) opportunity of hearing was not given; and (ii) action taken is beyond the action proposed. In support of his contention, he relied on (2014) 9 SCC 105 (Gorkha Security Services vs. Government (NCT of Delhi) & Others).

6, Per contra, Smt. Menon, learned Senior Counsel opposed the said contention. She placed heavy reliance on the return. As per the averments of Para 4, learned Senior Counsel submits that it is averred that copy of agreement was enclosed with the letter dated 05-09-2016. The petitioner has not chosen to file any rejoinder and rebut the said contention of the respondents. Accordingly, there is no reason to disbelieve the averments of the return. Thus, it is clear that the petitioner had received the agreement alongwith the letter dated 05-09-2016. Since the petitioner has not executed the agreement, the respondents have rightly placed him in the black list.

7. No other point is pressed by the parties.

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8. I have heard the parties at length and perused the record.

9. Before dealing with rival contentions, it is condign to quote Clause 19 of the tender document which is reads as under:-

"Termination:-

The Indian Publishers/Suppliers/Distributors/Vendors may be terminated/ dropped/black-listed from the panel of vendors at the occurrence of any of the following-

* Poor supply against the purchase order of books. * If at any time found that the information provided by the book vendor in any form about publications, services, cost and related matters are incorrect/false and result in loss to the institute in any form."

10. A plain reading of this provision makes it clear that the action of termination or black listing can be taken for twin reasons (i) Poor supply of books or (ii) at any time it is found that information given by book vendor is incorrect, false or result into loss to the institution. The petitioner is black listed for a different reason, namely for not executing the agreement. This is not one of the reasons mentioned in Clause 19. Apart from this, the action proposed in the letter dated 05-09-2016 was to forfeit the earnest money and not to black list him. Thus, I find substance in the arguments of Shri Kushwaha that the action taken for black listing is beyond the purview of Clause 19 as well as it is against the proposed action. In addition, the petitioner was admittedly not given any opportunity of hearing before black listing him. In Gorkha Security Services (supra), the Apex Court after taking into account the earlier judgments opined as under:-

"34. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court does not decide the issue in the correct perspective. The impugned Order dated 11-9-2013 passed by the respondents blacklisting the appellant without giving the appellant notice thereto, is contrary to the principles of natural justice as it was not specifically proposed and, therefore, there was no show-cause notice given to this effect before taking action of blacklisting against the appellant. We, therefore, set aside and quash the impugned action of blacklisting the appellant. The appeals are allowed to this extent. However, we make it clear that it would be open to the respondents to take any action in this behalf after complying with the necessary procedural formalities delineated above. No costs"

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11. Since the petitioner is black listed without affording any opportunity, the impugned order dated 14-01-2017 cannot sustain judicial scrutiny. So far as the contention of respondents based on the return is concerned, in my view, the said contention even in absence of rejoinder will not cut any ice. The document (Annexure P/6) shows that the petitioner promptly informed the respondents that the copy of agreement was not enclosed with the document dated 05-09-2016. The genuineness of the document dated 08-09-2016 is not doubted by the respondents by filing reply. In this view of the matter, it is clear that the petitioner could make out a case that the copy of agreement was not enclosed with the document dated 05-09-2016. For aforementioned cumulative reasons, the impugned order dated 14-01-2017 cannot be countenanced. The same is accordingly set aside.

12. The petition is allowed. No cost.

(SUJOY PAUL) JUDGE mohsin