Jharkhand High Court
M/S National Printers vs State Of Jharkhand & Ors on 19 April, 2012
Author: Aparesh Kumar Singh
Bench: Chief Justice, Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 180 of 2012
with
W.P. (C) No. 961 of 2012
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M/s National Printers... ... .......Appellant/Petitioner
Vs.
The State of Jharkhand & Ors... ...Respondents in both cases
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE APARESH KUMAR SINGH
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For the Appellant/Petitioner : Mr. B. Poddar, Sr. Adv.
M/s Anil Choudhary, Darshana Poddar,
S. Berlia, Piyush Poddar, Advocates.
For the Respondents : M/s R. Krishna, Saurav Arun,
A. Sinha, J.C to A.G
Reportable Dated 19th April, 2012
Heard learned counsel for the parties.
2. The petitioner has challenged the part of letter
dated 14.02.2012 containing two parts; (i) debarring the
petitioner from participating in future tenders floated by
Jharkhand Education Project Council (in short 'JEPC) and
(ii) for showing cause why the petitioner may not be
black-listed. In the writ petition, though the petitioner
has challenged the said letter dated 14.02.2012
(Annexure-6) but has confined his relief to only that part
of the said notice by which he has been debarred from
participating in future tenders floated by 'Jharkhand
Education Project Council'.
3. According to learned counsel for the
petitioner/appellant, brief facts of the case are that, the
petitioner was successful bidder for printing and supply
of Text Books for the students in entire Jharkhand State
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for the students of Schools in 'Sarva Shiksha Abhiyan'
Project and last year he was successful bidder in the
tender invited by the respondents in the month of
October, 2010. He was given work order by letter dated
18.12.2010for printing and supply of total 70,01,338 nos. of Text Books, which constitute about 11.50 lakhs sets of books. The petitioner was to supply these 11.50 lakhs sets of books to 212 blocks of the State of Jharkhand. The time period for supply of these books was given in the contract was 100 days meaning thereby it was to be supplied by 28th March, 2011. In the contract, it was mentioned that in case of delay up-to four weeks, the supply can be accepted on payment of penalty and this extended period was up-to 28th April, 2011.
4. The petitioner's contention is that for the next academic session i.e., 2012-13, again the respondents issued a tender notice on 17th August, 2011, wherein the petitioner was allowed to submit the tender document and petitioner thereafter submitted the tender documents to the respondents. The petitioner's tender was considered in technical bid competition and was found successful in technical bid competition and thereafter the petitioner's bid was to be considered for financial bid. However, before consideration of that financial bid of the petitioner, the tender was cancelled on 13th January, 2012 and on the same day a decision was taken to float a notice for fresh tender. The petitioner then submitted his 3 tender documents and 15th February, 2012 was the date fixed for opening of the tender for examining the technical aspects of the tenders. But on 15th February, 2012, a letter dated 14th February, 2012, which is impugned in this petition, was served upon the writ petitioner on the day when the petitioner's tender was to be considered technically by the Committee.
5. The petitioner then immediately approached this Court by filing present writ petition (Single Judge) on 21st February, 2011, after serving copy of the petition to the respondents on 18.02.2012. The petitioner's writ petition was taken for consideration on 24th February, 2012 and it was adjourned to 27th February, 2012 and ultimately, it was taken for consideration on 20th March, 2012. The learned Single Judge of this Court on 20th March, 2012 admitted the writ petition for consideration but refused to grant any interim order. The petitioner being aggrieved by order dated 20th March, 2012 of learned Single Judge, preferred appeal being L.P.A No. 180 of 2012 before this Court wherein on 27th March, 2012, interim order was passed in favour of the writ petitioner directing the respondent to consider the petitioner's tender provisionally with a condition that no final decision be taken by the respondents without leave of the Court. The matter was again taken up on 2 nd April, 2012 and on that date it was informed that even second invitation for inviting tender dated 13th January, 2012 was 4 already cancelled way back on 15th March, 2012 i.e., before refusal of the interim order by learned Single Judge on 20th March, 2012 and much before the order dated 27th March, 2012 passed by Division Bench of this Court in L.P.A. No. 180 of 2012. Taking note of this conduct of the respondents, this Court vide order dated 2nd April, 2012, a fresh interim order was issued directing the respondents to provisionally issue fresh tender documents to the appellant-petitioner for the third process and accept its tender document upon submitting the requisite fee etc.
6. Therefore, the petitioner is now the bidder under the fresh invitation inviting tender by notice dated 20th March, 2012.
7. Being aggrieved against the order of this Court dated 2nd April, 2012, the State preferred S.L.P being S.L.P (Civil) No. 11935 of 2012, which was disposed of by the Hon'ble Apex Court by order dated 10th April, 2012. The Hon'ble Supreme Court after taking note of the interim order, disposed of the above S.L.P directing the Division Bench of this Court to hear the writ petition itself and decide it on 18th April, 2012. The order of the Hon'ble Supreme Court dated 10th April, 2012 was placed before this Court on 18th April, 2012 by learned counsel for the petitioner at about 4.00 pm and thereafter the Court called the record of this writ petition and also at the request of learned counsel for the parties, the writ 5 petition as well as the L.P.A are fixed for hearing today i.e., on 19th April, 2012.
8. Learned counsel for the writ petitioner vehemently submitted that the respondent has issued letter dated 14th February, 2012 on a flimsy ground, which is apparent from the facts which are not in dispute. The petitioner has been sought to be removed from the tender process, for the same job which he successfully completed for previous year, on the ground that he did not supply 230 sets of books, within the extended time of contract, out of about 11.50 lakhs of sets. According to learned counsel for the petitioner, there is only 3-4 days delay beyond the extended contract period i.e., beyond 28th April, 2011. Learned counsel for the petitioner also submitted that total period of supply of books was 100 days having last date on 28th March, 2011. The petitioner successfully completed the job of such huge quantity of books supply in extended period and once the contract has been completed in terms of the agreement entered between the parties, then the petitioner cannot be and could not have been debarred in any manner, in which he has been debarred in the subsequent tender process. For this, learned counsel for the petitioner drew our attention to the fact that letter dated 14th February, 2012 was served upon the writ petitioner only when the writ petitioner went to the Office of the respondents to know the fate of his bid in the Technical Committee meeting, 6 which was scheduled on 15th February, 2012 meaning thereby for the alleged mis-conduct of non supply of only 230 sets of books out of about 11.50 lacs sets of books, which the petitioner may have committed, in the month of April, 2011 or first week of May, 2011, has been sought to be disqualified from taking part in contract for same job, all of a sudden on 15th February, 2012. It is submitted that there is no proportional examination of the issue of alleged misconduct to the punishment sought to be given by the authority and so has been done ignoring the facts and the volume of the contract and its period of completion and delay in supply of books of 3-4 days. The authority has taken into consideration the totally insignificant trivial event for debarring the petitioner from taking part of the same contract of supply of huge number of books running in seventy lakhs plus numbers.
9. Learned counsel for the petitioner submitted that undisputedly and after the reply filed by the State Government admittedly the order of debarring the petitioner was passed without any show cause notice to the writ petitioner. Therefore, solely on this ground alone the part of the letter in the form of order debarring the petitioner from future tender process may be quashed as the order dated 14.2.2012 has dire civil consequences as it will totally define the petitioner from obtaining the contract for no reason.
10. Learned counsel for the writ petitioner 7 submitted that for any civil consequence whether it is in judicial side or in administrative side, the principle of natural justice applies fully in view of the judgment delivered by Hon'ble Supreme Court in the case of Sahara India (Firm), Lucknow Vrs. Commissioner of Income Tax, Central-I and another reported in (2008) 14 SCC 151. Learned counsel for the petitioner also vehemently submitted that no action could have been taken by the respondent for debarring the writ petitioner from taking part in subsequent tender process without giving a declaration of default of the writ petitioner. For that proposition, learned counsel for the petitioner relied upon a judgment delivered in the case of B.S.N. Joshi, Sons Ltd. Versus Nair Coal reported in (2006) 11 SCC
548.
11. Learned counsel for the respondents submitted that the petitioner has not given the complete facts which is apparent from the material placed by the respondents in the reply to the writ petition, which clearly indicate that the petitioner failed to supply huge number of 639743 sets of books on or before the fixed date of completion of supply of text books i.e., 28th March, 2011. Then the petitioner supplied 230 sets of books even after four weeks of extended last date for supply of books i.e, 28th April, 2011. Not only this, but the petitioner was given letters dated 15th February, 2011, 26th February, 2011, 4th March, 2011 and lastly on 1st April, 2011 8 pointing out the deficiency in the working of the writ petitioner. The petitioner was supposed to obtain the requisite stationary, which he did not obtain in time to full extent from stationery supplier/manufacturer. Therefore, in time, apprehension was brought to the notice of the petitioner that in that situation, he may not be in a position to supply the books and by 24th February, 2011, instead of obtaining 2000 M.T. stationary, he could obtain only 1004 M.T. of the stationary. The petitioner was reminded that he would not be in a position to supply the books in the prescribed time and for that a letter was given on 4th March, 2011. On 1st April, 2011 the petitioner was informed that he could supply only 37 % and 33 % of the books of Standard IV and VI classes, respectively. It appears from communication dated 13th April, 2011 that petitioner tried to explain the delay in supply of the books which was not accepted by the respondents as the petitioner took the plea that because of 'Holi' vacation and non-availability of the trucks, there was some delay. Learned counsel for the respondents submitted that the petitioner was not the only person who was served with such notice of debarring but others were also served with same notice and they have been debarred for the same default of non-supply of books in time.
12. Learned counsel for the respondent submitted that the earlier tender dated 17th August, 2011 was cancelled because of the reason that there was 9 apprehension of coterie of the stock holders and second tender dated 13th January, 2012 was cancelled because none of the bidders was found successful technically and, therefore, process was started by inviting tender on 20th March, 2012. Learned counsel for the respondents submitted that in view of the condition incorporated in the agreement between the parties, two actions could have been taken by the respondents. One, of debarring the writ petitioner from taking part in subsequent tender process of JPEC and second, to black-list the petitioner. So far as black-listing is concerned, letter dated 14th February, 2012 is a notice to show cause only and till any final action is taken under that notice for black-listing the petitioner the respondents had power to debar the petitioner from taking part in subsequent tender process. Therefore, the action taken and sought to be taken are within power of the respondent and there cannot be any malafide in the action of the respondents.
13. We have considered the submissions of learned counsel for the parties and perused the facts of the case. It is not in dispute that petitioner was successful bidder in earlier round of tender process and he was given order to supply 11.50 lacs sets of text books for the students which consists of total 70,01,338 numbers of Text Books. The petitioner was to supply about 70,01,338 books in 11.50 lakhs sets in the entire State of Jharkhand in 212 Blocks and time period for supply of the books was 100 10 days ending on 28th March, 2011 and extended period for supply with penalty, as per terms and conditions in the agreement, was 28th April, 2011.The petitioner's complete supply was accepted by the respondents including the alleged delayed supply of 639743 sets of books which was supplied within the extended period given in the agreement itself, for which the petitioner was asked to pay the penalty and according to learned counsel for the petitioner, the petitioner paid the penalty. Interestingly the petitioner is not sought to be debarred because of the delayed supply of these 639743 sets of books but is being sought to be debarred only for delayed supply of 230 sets of books, which were supplied beyond the last extended date given in the tender. That delay is also according to learned counsel for the petitioner is only about 3-4 days and that fact has not been controverted by the respondents. Therefore, on the face of it, it appears that petitioner is sought to be debarred from taking part in the tender process merely on a ground which has no proportionality with the wrong committed by the writ petitioner. There cannot be action absolutely in disproportion to the act. There must be determination of gravity of wrong. The late supply of books, i.e., beyond date for supply without penalty to the extent of more than 63 lacs no action was found necessary which may be due to reason that fact may not have affected the Schools working and, then the authority did not consider the 11 effect on non supply of only 230 sets of books out of 11.50 lacs sets of books. The authority also did not consider the extent of delay. How the delay of such small quantity of books, that too, of 3-4 days only can give cause of action too take action?
14. Therefore, in our opinion, the ground of debarring the petitioner from taking part in the tender process is non-existing ground.
15. The respondents' conduct is also seriously questionable. In fact, if the petitioner had committed any mistake in supply of the text books in the State of Jharkhand for academic Session 2011-12 and in the month of April-May, 2011 then it was certainly a serious issue which has been raised belatedly as well as at absolutely wrong time by respondent. If it was a serious issue, then it was a serious issue in the month of April, 2011 itself and the respondents did not find it to be serious in the month of April, 2011 and all of a sudden when petitioner twice was given the tender documents by the respondent and when he submitted the tender document and in first tender process he was successful technically, thereafter, in second tender process, on the day when his technical bid was to be considered by the committee, on that day, the petitioner's representative was served upon a notice dated 14th February, 2012. The respondent had full opportunity to take action against the writ petitioner, if there was any mis-conduct of the writ 12 petitioner in any manner, from 28th April, 2011 till issuance of the first tender notice and even if they did not take any action on that date, then also there was no reason to debar the writ petitioner on such flimsy ground at the time when the petitioner was given the tender documents in second process of tender process and he already submitted the tender documents. Therefore, the respondents had full opportunity to hear the writ petitioner before passing this order. For the reason best known to the respondent, they did not offer opportunity to show cause to the writ petitioner and thereby they grossly violated the principles of natural justice and consequence of debarring the writ petitioner is certainly of a civil consequence to a great taking to the extent and the volume of work as well as importance of work and furthermore, looking to the urgency of the work where the State was under obligation to provide text books to the students without any delay.
16. In view of the reasons mentioned above, the part of the order debarring the petitioner vide communication dated 14th February, 2012 is liable to be quashed and set aside, hence quashed and set aside.
17. Before parting, we are constrained to observe that in such a serious matter where if the books are to be provided to the students of the schools under 'Sarva Shiksha Abhiyan', the matter has been handled by the respondents totally carelessly and there may be some 13 force in the allegation of the writ petitioner that it was intended to favour some one. We do not appreciate the respondents for taking such a long period for finalizing the bid for supply of text books in the entire State of Jharkhand as the tender process started as back as on 17th August, 2011 and admittedly till today i.e.,19th April, the respondents could not finalize the bid and objecting to the non-supply of books by the petitioner which delayed by few days only. It is shocking that the schools are going to open for the next session i.e., academic year 2012-13 in no time. For last session, the last date for supply of text books was fixed on 28th March, 2011 and with penalty, extended date was 28th April, 2011 and today in the year 2012, 19 days of April, 2012 have already passed and according to learned counsel for the respondents, now, there will be 60 days time for supply of books, obviously, thereafter there may be extended period of supply of books, which may be of four weeks. How the State will be in a position to supply the books to the students, must not be known even to the State.
18. Therefore, we think it proper to observe that the matter is required to be considered by the Chief Secretary of the Government of Jharkhand at his own level that how the Department has handled the situation in such an important matter where every day for student is important and damage caused cannot be cured in the fact situation. Not only this, we are constrained to 14 observe that this Court was unnecessarily burdened because of the non-disclosure of facts to this Court at appropriate time. This Court (learned Single Judge) took the matter for consideration on 20th March, 2012 for admission and for consideration for grant of interim relief to the writ petitioner. Five days before that, tender process was cancelled but it was not informed to the learned Single Judge nor it was known to the writ petitioner. Therefore, the writ petitioner has approached this Court (Division Bench) by preferring present L.P.A No. 180 of 2012 on 22.03.2012. The Division Bench of this Court considered the matter on 27th March, 2012 and passed the interim order. On that day also, it was not informed to this Court that tender process has already been cancelled and withdrawn by the respondents. Not only this, the State has preferred S.L.P (Civil) No. 11935 of 2012 and dragged the writ petitioner to Hon'ble Supreme Court and matter was considered by the Hon'ble Supreme Court on 10th April, 2012. The order dated 10th April, 2012 was not placed by the respondent- State, who was appellant before the Hon'ble Supreme Court, in time so that the matter (W.P.(C) No. 961 of 2012) could have been taken up for consideration on 18th April, 2012 and because of that reason this Court could not decide the writ petition being W.P.(C) No. 961 of 2012 on the date fixed by the Hon'ble Supreme Court and the matter was adjourned as counsels also sought time. 15
It could have been avoided by the State by giving complete information to the Court in time, before 18th April, 2012.
19. Be that as it may be, the writ petition being W.P.(C) No. 961 of 2012 is allowed and order of debarring the writ petitioner vide communication dated 14th February, 2012 is quashed and set aside.
20. This Court deems it appropriate to direct the respondent-State to consider the bid of the petitioner in recently started tender process dated 20th March, 2012.
We hope that the process will be completed
expeditiously.
21. In view of the order passed in W.P.(C) No. 961 of 2012, L.P.A. No. 180 of 2012 has become infructuous. Hence, L.P.A No. 180 of 2012 is dismissed as infructuous, in view of the order passed in the writ petition allowing the writ petitioner to take part in the subsequent tender process.
22. Copy of this order be sent to Chief Secretary, Government of Jharkhand, who may take appropriate action against the erring officer. Copy of this order be also given to learned counsel for the State and Jharkhand Education Project Council.
(Prakash Tatia, C J) (Aparesh Kumar Singh , J) Alankar/Sudhir-