Patna High Court
Galaxy Press Pvt. Ltd vs The State Of Bihar & Ors on 19 May, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.25151 of 2013
===========================================================
Galaxy Press Pvt. Ltd., Amar Bhawan, House No. 539 K/ 152, Kassila Faizabad
Road, Lakhnow- 226016 through Its Managing Director, Pankaj Gupta.
.... .... Petitioner/s
Versus
1. The State Of Bihar Through Secretary, Department Of Social Welfare,
Government Of Bihar, Patna.
2. The Director, Integrated Child Development Services ( ICDS) Department Of
Social Welfare, Second Floor, Indira Bhawan R.C. Singh Road, Patna.
3. The Procurement Officer, Second Floor, Department Of Social Welfare Indira
Bhawan, R.C. Singh Road, Patna.
4. Inspector General of Police, Economic Offences Research Unit, Govt. of Bihar,
Patna.
.... .... Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. Rajesh Prasad Choudhary, Adv.
For the State : Mr. P.N. Shahi, Sr. Adv., AAG-X
For the EOU :
Mr. Akhileshwar Prasad Singh, Sr. Adv.
Mr. Rajeev Ranjan Prasad, Adv.
===========================================================
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 19-05-2015
The present case is a classic example of a combined
effort of a defiant and resolute bureaucracy joining hands with an
equally dishonest and ever obliging business house systematically
indulging in the misappropriation of public fund. The manner in
which the government officials of the Social Welfare Department of
the State of Bihar have concertedly connived with the petitioner for in
their personal welfare awarding contract to the petitioner for supply
Patna High Court CWJC No.25151 of 2013 2
of stationary in the Directorate of Integrated Child Development
Schemes (hereinafter referred to as 'the I.C.D.S.') at the cost of
government exchequer worth Rs.4, 21, 64,000/- (Four crores twenty
one lacs sixty four thousand) can only be described as one of more
scam which this State has been witnessing in the present times.
2. The only redeeming feature of this case is that such
huge sum of money could not be pocketed by the petitioner as also
officials of Social Welfare Department because of a timely
interference of surprisingly an honest minister and the whole issue
becoming subjudice before this Court, though all possible efforts,
even till last date of hearing of this case, was made both by the
petitioner as also officials of Social Welfare Department of the
Government of Bihar to obtain a stamp of this Court in its decision to
award such contract to the petitioner. As a matter of fact had this
Court not been approached surprisingly by the petitioner itself at a
point of time when it found winds blowing against it on account of
timely interference by the minister, the State Exchequer by now could
have easily been systematically siphoned by way of "bandarbant"
between the corrupt officials of the I.C.D.S. Directorate in the Social
Welfare Department and the ever obliging supplier i.e. the petitioner.
3. From the records that have been either filed by the
parties by way of their pleading or supplied in course of
Patna High Court CWJC No.25151 of 2013 3
hearing by the officials of the Social Welfare Department and the
police officials of the Economic Offence Unit, it would transpire that
for effective monitoring of the Schemes of I.C.D.S. at Anganbari
Centres all over Bihar, the Government of India in the ministry of
Female and Child Development vide its letter no. 4-2/2004-ME (Vol.
IV) dated 28.03.2012 read with its another letter no. 4-2-2004-ME
dated 2-5-2012 had directed the Incharge/Directors of all the States
including the State of Bihar that records of such Anganbari Kendra be
maintained through a new Management Information System
(hereinafter referred to as 'the MIS) and it had also laid down the
prescribed standard and procedure for printing, supply and
distribution of new registers where in sample C.D. was also made
available so that printing, supply and distribution work at the level of
each and every block must be completed by 31st July 2012.
4. On receipt of the aforesaid letters of the Government
of India, one Manoj Kumar Choudhary, an officer of Bihar Civil
Services, and on deputation to I.C.D.S. Directorate to work as
Procurement Officer was made the Nodal Officer on 15.05.2012 and
though the scheduled time limit for supply and distribution of new
registers to monitor MIS program had already been over by the date
of 31.07.2012, surprisingly the I.C.D.S. Directorate of Bihar had
issued a Notice Inviting Tender on 11.04.2013 for supply of printed
Patna High Court CWJC No.25151 of 2013 4
9,84,000 registers and 82000 six years calendar consisting of
Age/Birth/Education Department. D. calculation tables
5. The petitioner, a company, registered under the
Companies Act, 1956, had also participated to the Notice Inviting
Tender (N.I.T.) dated 11.4.2013 issued by the Director, Integrated
Child Development Services (I.C.D.S.), Department of Social
Welfare. The offers under such N.I.T. was invited from the registered
Printers for content development, designing, printing and supply of
twelve registers and a six year calendar. The prescribed tender
documents had contained the nature, requirement and scope of work.
Table -1 of the N.I.T. quantity of each of the 12 types of registers was
82000 and, therefore in all the total supply of 984000 registers, apart
from calendars of a six year program, were to be made as per the
technical specification laid down by the Ministry of Women and
Child Development, Government of India in its aforesaid letter dated
28.03.2012.
6. The specifications for printing each of twelve of registers with the details of formats of each of the twelve registers and a calendar with corresponding pages were separately specified in the Table-1 of N.I.T. which, for the sake of clarity and convenience, is quoted herein below:-
Table 1: Specifications for Printing of AWC Registers-Details of Formats per Register and Corresponding Pages Patna High Court CWJC No.25151 of 2013 5 Sl. Register Covers Binding Format No. and No. of PagesIndividuals/page Expected First Page Last Total Total Leaves Suggestions No. Sequence Copie life Pages functional Pages counted for State s of pages after level the binding adoptations forma t 1 Reg. 1:Family Hard Centre F1 10 facing 1 family/sheet (101 At least Second 1 Blank 202 204 102 Number of Details 1 pages, families per 5 years Title registers to pg2-203 register) be printed will depend upon the number of AWC of each size expected,-
Upto 90 housholds (500-1000 population) 2 registers -190- households (1000+popu lation):3 registers 2 Reg.2:Supplem Soft Side 12 consecutive sets of the 12 months F21 (each sheet 60 120 60 1. Use either entry Food following (facing pages). has one side format F22a Planner and blank) (without Stock daily balance) of F22b (with daily balance), as required in the state.
F21 (Planner) 1 page 1 1 month/sheet 2. It is estimated that in most cases, two sheets (of F22a or F22b) will be needed each month.
However, If
F22a or b (stock 1 page 2 1 month/sheet commoditie
record) s used at the
AWC
exceed the
number of
commoditie
s covered in
two F22a or
F22b
formats per
F22a or b duplicate 1 page 2 1 month/sheet month, one
(Suplica additional
te/Perfor sheet (with
ated) the
correspondi
ng duplicate
sheet) may
be included
for each
month
F22a or b (stock 1 Page 3 1 month/sheet (Total pages
record) per register
will increase
to 144)
F22a or b 1 Page 3 1 month/sheet
duplicate (Duplica
te/perfor
ated)
Similar sets on pages 4-6, 7-9, 10-12, 13-15, 16- 18, 19-21, 22-24, 25-27, 28-30, 31-33, 34-36, (along with respective duplicate sheets) 3 Reg.3: Hard Centre 12 consecutive sets of the 12 Second 3 Blank 288 292 146 None Supplementary following (facing pages). months Title Food Distribution Patna High Court CWJC No.25151 of 2013 6 F31a(pregnant) 1 Pages- 30 Ind/sheet 2-3 F31b(lactating) 1 Pages-4-5 30 Ind/sheet F32a(6m-3y girls) 2 Pages- 30 Ind/sheet 6-7, 8-
9 F32b (6m-3y boys) 2 Pages-10- 30 Ind/sheet 11,12-13 F33a (3-6y girls) 2 Pages- 30 Ind/sheet 14- 15,16- 17 F33b(3-6y boys 2 Pages- 30 Ind/sheet 18- 19,20- 21 F34a (Temp Resi) 1 Pages- 30 Ind/sheet 22-23 F34b 1 Pages- 30 Ind/sheet (Temp 24-25 Resi)
Similar sets on pgs 26-49, 50-73, 74-97, 98-121, 122-145, 146-169, 170-193, 194-217, 218-241, 242-265, 266-289) Sl. Register Covers Binding Format No. No. of Copies Pages Individuals/page Expected First Last PagesTotal Total Leaves Suggestions Suggesti No. and Sequence of the format life Page functional Pages counted for State ons for pages after level State binding adoptations level adoptati ons 4 Reg.4:Pre Hard Centre 12 consecutive sets of the following 12 months Seco 3 Blank 192 196 98 None school (facing pages). nd Education Title F41a (girls 3- 1 pages 30 Ind/sheet 4y) 2-3 F41b(girls 4- 1 pages 30 Ind/sheet 5y) 4-5 Patna High Court CWJC No.25151 of 2013 7 F41c(girls 5- 1 pages 30 Ind/sheet 6y) 6-7 F42a(boys 3- 1 Pages 30 Ind/sheet 4y) 8-9 F42b(boys 4- 1 Pags 30 Ind/sheet 5y) 10-11 F42c(boys 5- 1 Page 30 Ind/sheet 6y) 12-13 F43(Gemp 1 Page 14-15 F44(PSE 1 Page Activity 16-17 Record) Similar sets on pages 18-33, 34-49, 50-65, 66-81, 82- 97, 98-113, 114-129, 130-145, 146-161, 162-177, 178-193) 5 Reg.5: Hard Centre F5 (facing pages) 17 Page-2-35 15 ind/sheet At least 5 Second 1 34 36 18 Pregnancy years title Blank None & Delivery 6 Reg.6 Hard Centre F61 (Immunization 20 Page-2-41 15 ind/sheet At least 5 Second 1 Blank 67 68 34 None Immunization record) (facing pages) years Title & VHND F62(VHND 12 Page-42-65 6 record)(facing pages) months/sheet Calendar (facing 1 Page,66-67 6yrs/2pages pages) 7 Reg.7:Vitamin Hard Centre F7(facing pages) 19 pages 2-39 15ind/sheet At least 5 Second 1 Blank 38 40 20 None ABi-Annual years title 8 Reg.8:Home Hard Centre F81 (Pregnancy-24 37 Pages 2-75 6ind/sheet At least 5 Second 1 Blank 94 96 48 None Visits Planner months) (facing pages years title F82(severely 9 Pages 76-93 6ind/sheet underweighty) (facing pages) Checklist of 1 pages-94-95 Messages (facing pages) 9 Reg.9:Referrals Hard Centre F91(Children) 12 Pages-2-29 15 ind/sheet At least 5 Second 3 Blank 45 48 24 None (facing pages) years title F92(PregLactating) 4 Pages 30-37 15 ind/sheet F93(Others) (facing 4 Pages38-45 15 ind/sheet pages) 10 Reg.10Summar Hard Centre F51(HH list) (facing 15 Pages 2-31 20 ind/sheet At least 5 Second 1 Blank 106 108 54 None ies (Monthly & pages) years title Annual) F52 (disabled) (facing 2 Pages 32-35 20 ind/sheet pages) F53(Annual 1 Pages 36-37 6 years/sheet summary) (facing pages) F54(Mon Summ) 6 Pages 38-49 1 year/sheet (facing pages) Patna High Court CWJC No.25151 of 2013 8 F55 (Supple. food 24 Pages 50-73 1 year/4 monthly sum) (1 page pages per format) F56 (PSE mon summ) 12 Pages 74-97 1 year/4 (facing pages) pages F57(imm mon summ) 1 Pages 98-99 6 years/sheet (facing pages) F58 (Record of 4 Pages 100- 30 ind/sheet Deaths) (facing 107 pages) 11 Reg.11:Weight Hard Centre F11 (facing pages) 29 pages 2-59 14 ind/sheet At least 5 Second 1 Blank 58 60 30 None Record of years title Children 12 Tools for Soft Centre Calendar 2012-17 1 Page-2-3 2 years/page 6 years Second 1 Blank 17 18 9 None AWWs:6 year (facing page) title Calendor, Table1A:Age 1 Page-4- 1 year/page Age/Birth calculation sheet 5(facing colculation and 2012 pages) EDD tables Table 2A:year of 1 1 year/page birth calcualtino sheet, 2012 Table 1B:Age 1 Page6- 1 year/page calculation sheet 7(facing 2013 pages) Table 2B:Year of 1 1 year/page birth calculation sheet, 2013 Table 1C:year of birth 1 Page 8-9 1 year/page calculation sheet, (facing 2014 pages) Table:2C:Year of 1 year/page birth calculation sheet, 2014 Table 1D:Age 1 Page-10- 1 year/page calculation sheet 11(facing 2015 pages) Table 2D:year of 1 1 year/page birth calculation sheet, 2015 Table 1E: Age 1 Page 12-13 1 year/page calculation sheet (facing pages 2016 Table 2E:year of birth 1 1 year/page calculation sheet, 2016 Table 1F: Age 1 Page 14- 1 year/page calculation sheet 15(facing 2017 pages Table 2F:year of birth 1 1 year/page calculation sheet, 2017 Table 3:EDD 1 Page 16-17 1 year/page Calculation (facing pages) 13 Data transfer stapled For one time use 1 4 separate None sheet during training of pages in A3 AWWs size (underlining for emphasis)
7. What is still more significant to be noted here itself is that the technical specification of paper, printing and preparation of 12 types of registers and a calender of five year was also separately prescribed in Table-2 of the N.I.T. which reads as follows:-
"Table2: Technical Specification of Paper, Printing and Production of AWC Registers Sl. Register's Name Specifications No Binding Size Paper
1. Register No.2 Soft Cover Cover:300 gsm mart with (supplementary Food Stock) Side stiching 1/2 1/4 matt lamination Inside:80 A3 (16 x 13 ) gsm Maplitho
2. All Other Registers Section Sewing and Inside :80 gsm Maplitho (1,3,4,5,6,7,8,9,10,11) Hard Bound Binding 1/2 1/4 Cover:130 gsm art paper
8 x 13 with matt limination and Hard bound binding-
2mm card board & cover pasted on board 3 Tools for AWWs:6 year Soft cover Full Scape Cover:300 gsm matt with Calendar and Age/Birth/EDD Centre Stitching matt lamination Calculation Tables Inside:80 gsm Maplitho Patna High Court CWJC No.25151 of 2013 9
8. This has also to be kept in mind that one of the mandatory terms and conditions of such tender as specifically incorporated in Clause-5.8 of the General Bid and Eligibility Conditions was that all the intending tenderers had to supply the samples of the papers and the board to be used for the registers and calendar alongwith their technical bid, which reads as follows:-
"5.8 All the papers and board. (use in register as per sample available in ICDS office) an as per specification available in bid documents should be submitted in technical bid."
(underlining for emphasis)
9. It is a matter of record that till last date and time of receipt of tender documents i.e. 13th of May, 2013, only six tenders of the following firms including that of the petitioner were received, namely,
(i) National Printers, Ranchi.
(ii) Puja Printech Pvt. Ltd., Patna.
(iii) Galaxy Press Pvt. Ltd. (the petitioner).
(iv) Y.S. Hitech, Hyderabad.
(v) Patna Offset Press, Patna.
(vi) New Ratan Priya, Patna.
10. The Tender Committee constituted by Ms. Vandana Preyashi, Director of I.C.D.S., consisting of five members, namely, (1) Shri Radha Raman Jha, Joint Director, I.C.D.S., (2) Shri Amarnath Mishra, Internal Financial Advisor, DSW, (3) Shri Manoj Kumar Patna High Court CWJC No.25151 of 2013 10 Choudhary, Procurement Officer, I.C.D.S., (4) Shri Kumar Pankaj, F.M.S. (NMU) and (5) Superintendent, Gulzarbag Printing Press, had thereafter allegedly on 13.05.2013 itself made evaluation of the technical bids of all the six offers of the aforesaid six tenderers in the following manner as stands recorded in procedings of the meeting of Tender Committee dated 13.05.2013:-
"Evaluation A two-stage procedure was adopted in evaluating the proposals with the technical evaluation being carried out prior to opening of any financial proposals. The technical proposals were evaluated using the following criteria:
S. No. Criteria Details required along with the Technical bid 1 Tender fee Bank Draft of Rs. 10,000 drawn in favour of Directorate of ICDS, Govt. of Bihar payable at Patna 2 EMD Bank Draft of Rs. 16 lakhs in favour of Directorate of ICDS, Government of Bihar payable at Patna 3 Sales Tax registration Copy of certificate along with copies of up to date Sales Tax return 4 Average annual turnover Certified copy of the audited of at least 5 Crore in last statement of accounts for the FY three Finance Years 2011-12, 2010-11, 2010-11 & ending on 31-Mar-2012 2009-10 or 2012-13, 2011-12 & 2010-11 with relevant income Tax returns as proof along with copy of PAN card Patna High Court CWJC No.25151 of 2013 11 5 Bidder should not be Self-declaration certificate on the under a declaration of Firm letter head ineligibility for corrupt and fraudulent practices issued by Government of India/State Governments 6 Authorization letter Letter to contain name of person signing the documents related to this Tender on the firm's letter head letter as well as the name of the person to be present during evaluation & negotiation (in case from different from the one authorized to sign the Tender document) and will be present during evaluation & negotiation during the Tender period.
7 Experience in handling Copy of work order and payment similar kind of work with certificate contract amount not less than 2 Crores in last three years 8 Samples of papers and Samples required board (underlining for emphasis)
11. The Tender Committee, on the basis of aforesaid eight parameters had claimed to have made evaluation of the technical bids of the aforesaid six tenderers, had rejected the technical bid of the two of bidders, namely, New Ratan Priya, Patna on the ground of its turnover of the year 2009-10 and self declaration not provided by it. Patna High Court CWJC No.25151 of 2013 12 At this place it also must be noted here that technical bid of M/s. Y.S. Hitech, Hyderabad was rejected only because the samples of papers and board as prescribed in Table-2 of Tender document were not provided by it along with tender documents.
12. The Tender Committee, having rejected the aforesaid technical bid of the aforesaid two bidders, had declared the technical bids of the rest of the four tenders namely National Printers, Puja Printech Pvt. Ltd, Galaxy Press Pvt. Ltd. and Patna Offset Press, Patna to be in order and, thereafter, their financial bids were opened in course of which the petitioner, namely, M/s Galaxy Press Pvt. Ltd. was declared to be the lowest bidder (L-1). This would become more clear from the extract of the proceedings of meeting of the Tender Committee held on 13.5.2013, relevant portion whereof reads as follows:-
"Technical evaluation was carried out in presence of the bidders who wished to be present. Details of Technical evaluation against above mentioned parameter has been attached as per Annexure-B Technical evaluation. No objection was raised regarding the Technical evaluation and the present bidders agreed with the evaluation being carried out & duly signed the evaluation sheet. After Technical evaluation the following 4 bidders out of 6 have been found to be eligible:-
S. Name and address of the firm
No.
1 National Printers, (Prop. Apex Products Pvt.
Ltd.) 8 H & 8 1 Namkum Industrial Area,
Ranchi- 834010. PH. No-2261902/949
Patna High Court CWJC No.25151 of 2013 13
2 Puja Printech Pvt. Ltd. C-1, Patna Industrial
Estate, Patliputra, Patna- 800013
3 Galaxy Press Pvt. Ltd. Mrs. Niharika Gupta
Amar Bhawan H.No. 539K/152, Kassaila,
Faizabad Road, Lucknow- 226016, Uttar
Pradesh (INDIA) Ph.- 0522-4068181, 82 Ext.20, Fax-0522-4068181,82 Ext-27, Mob-
=+919839220822, e-mail:
[email protected]
4 Patna Offset Press, Near Dharahra Kothi, Naya
Tola, Patna-800004
Two bidders who were found not eligible are as:- 1. New Ratan Priya, Patna, - for turn over of 2009-10 and self declaration not provided. 2. Y.S. Hitech, Hyderabad- Samples of papers and board are not provided.
Financial bids of the only the above eligible bidders were opened in presence of the bid evaluation committee and the authorized representative of the bidders who chose to be present Financial bids of ineligible bidder shall be returned unopened.
Post opening of the Financial bids and declaration of M/s Galaxy Press Private Limited as L1, an objection was raised by the representative of M/s Patna Offset Press that L1 does not have the Technical competence to carry out the work. This objection was overruled by the evaluation committee since the Technical competence was dully assessed during the Technical evaluation. Financial Evaluation is enclosed as Annexure C. Sd./- Sd/- Sd./-
13.5.13 13.5.13 13.5.
FMS (NMU) Sptd.G'bag Govt. press P.O., ICDS
Sd./- Sd./-
13.5.13 13.5.13
Internal Financial Advisor, DSW Joint Director,
ICDS"
(underlining for emphasis)
Patna High Court CWJC No.25151 of 2013 14
13. From the aforesaid proceeding, it becomes very clear that the requirement of Clause 5.8 of General Bid and Eligibility conditions was not complied in course of technical evaluation of bids because the tender committee did not verify the samples of the quality of papers and board furnished by the petitioner and three others as per the specification prescribed in Table-II of the N.I.T. even though an objection was raised by one of the competiting firm namely Patna Offset Press.
14. It has to be kept in mind that for examining the technical bids, the Tender Committee had to follow the provisions laid down in Bihar Financial Rules and guidelines issued by Central Vigilance Commission (C.V.C.) wherein a maticulous procedure for examination of technical bid has been prescribed as per which the samples of papers and Board furnished by all the tenders had to be subjected to process of verification as to whether they had not the prescribed size and quality as per Table-2 of the N.I.T.
15. The statutory rules prescribed for purchase of materials under Bihar Financial Rules in this regard, under Rule-131R (x) (xi)
(xii) clearly lays down as follows:-
131.R. Transparency, competition, fairness and elimination of arbitrariness in the procurement process: All government purchases should be made in a transparent, competitive and fair manner, to secure best value for money. This will also enable the prospective bidders to formulate and send their competitive bids with confidence.Patna High Court CWJC No.25151 of 2013 15
Some of the measures for ensuring the above are as follows:-
(x) Bids received should be evaluated in terms of the conditions already incorporated in the bidding documents; no new condition which was not incorporated in the bidding documents should be brought in for evaluation of the bids. Determination of a bid's responsiveness should be based on the contents of the bid itself without recourse to extrinsic evidence.
(xi) Bidders should not be permitted to alter or modify their bids after expiry of the deadline for receipt of bids.
(xii) Negotiation with bidders after bid opening must be severely discouraged. However, in exceptional circumstances where price negotiation against an ad-hoc procurement is necessary due to some unavoidable circumstances, the same may be resorted to only with the lowest evaluated responsive bidder."
(underlining for emphasis)
16. As a matter of fact since this purchase was being made as per the fund being made available by the Government of India the norms of Central Vigilance Commission(CVC) in its manual and therefore had to be also followed in letter and spirit, have been again flouted in an openly and brazen manner under 'Chapter-VI MODES OF PURCHASE, RECEIPT AND OPENING OF TENDERS', clearly lays down as follows:-
"The technical bids are to be opened in the first instance, at the prescribed time & date and the same will be scrutinized and evaluated by the competent committee/authority with reference to parameters prescribed in the tender documents and the offers received from the tenderers. Thereafter, in the second stage, the financial bids of only the technically acceptable offers (as decided in the first stage above) are to be opened for further scrutiny, evaluation, ranking and placement of contract."Patna High Court CWJC No.25151 of 2013 16
Further in Chapter-XI of the C.V.C manual under the heading EVALUATION OF TENDER, FORMULATION OF PURSHCASE, PROPOSAL AND PLACEMENT OF CONTRACT, it has also been laid down:-
"All the tenders are to be evaluated strictly on the basis of the terms & conditions incorporated in the tender enquiry document (based on which offers have been received) and the terms, conditions etc. stipulated by the tenderers in their tenders. Similarly no tender enquiry condition (specially the significant/essential ones) should be over looked while evaluating the tenders. Aim should be to ensure that no tenderer gets undue advantage at the cost of other tenderers and/or at the cost of the purchaser."
17. At this stage it has to be also made clear that the Respondents have produced the original tender papers filed by the petitioner on 13.05.2013 before this Court and that this Court has itself examined the 246 pages of tender documents of the petitioner submitted by it on 13.05.2013 and has also found that they did not meet the specification, at least of the size as mentioned in Table-2 of the N.I.T.
18. On the production of such tender documents of the petitioner, it has been found by this Court that the petitioner had filed its tender papers on 13.05.2013 in a bunch of 246 pages with 27 heads and serial no 27 was "sample paper Hastarakshit dinank 13.05.2013 (Prishtha 241-246)". From perusal of Page nos. 241, 242, 243, 244, Patna High Court CWJC No.25151 of 2013 17 245 & 246, it transpires that there are the only six specimen copy of the paper and board which were furnished by the petitioner.
19. Let it be noted that size of paper for Register No.2 as per the technical specification was prescribed as A3 (16 1/2 " X 13 1/4 "
with Cover- 300 GSM mart with matt lamination and Inside- 80 GSM Maplitho. This Court however finds that page 241 of the tender document supplied by the petitioner was a piece of paper claimed to be Century Crystal 80 GSM Maplitho and had measured 11" X 8 1/2"
only in place of 16 1/2 " X 13 1/4 ". Likewise the paper for rest of eleven register 1, 3 to 12 was required to be 8½" x 13¼" 80 GSM maplitho and the cover was to be 130 GSM art paper with matt lamination and hard bound binding 2mm card board and cover pasted on board but Page 242 submitted by the petitioner was again a piece of paper described to be "Bindle 80 GSM Maplitho" which measurement is found 11" X 8 1/2" in place of 8 1/2" X 13 1/4". The third page of the sample paper at page 243 given by the petitioner was described by it to be "century 80 GSM Maplitho" which too measures 11"X 8½". Similarly, Page 244 of sample paper described as Art Paper 130 GSM measures 8¾"x8½" and likewise page 245 of sample paper of 300 GSM measures 9¾"x10" and the last page 246 is said to be 2mm card board cover measuring 10"x9½". Patna High Court CWJC No.25151 of 2013 18
20. It thus becomes clear that whatever six samples of papers and Board in size was given by the petitioner alongwith tender documents on 13.05.2013 did not meet the specific requirement of technical specification as prescribed in the Table-II by the N.I.T. as quoted in paragraph no. 6 of this judgment. This would become clear from the following comparative table as with regard to the prescribed specification as per table-2 of the specification and the samples supplied by the petitioner along with standard documents.
Sl. Register's Name Specifications laid down in N.I.T. (Table-2) Sample of petitioner
No
Binding Size Paper Size Paper
1. Register No.2 Soft Cover A3(16 ½ " x 13 ")
1/4
Cover:300 gsm mart (11 x 8 ½ ) " Century
(supplementary Side stiching with matt lamination crystal 80
Food Stock) Inside:80 gsm GSM
Maplitho 9¾ " x 8 ½" Maplitho 300
GSM
2. All Other Section Sewing and 8½ " x 13 ¼" Inside :80 gsm 11" x 8 ½" Bindle 80 GSM
Registers Hard Bound Binding Maplitho Maplitho,
(1,3,4,5,6,7,8,9, Cover:130 gsm art
10,11) paper with matt 8 ½" x 8 ½" Art paper 130
limination and Hard GSM
bound binding-2mm
card board & cover
10" x 9½" Card Board
pasted on board 2mm
3. Tools for Soft cover Full Scape Cover:300 gsm matt 11" x 8 ½" Century 80
AWWs:6 year Centre Stitching with matt lamination GSM
Calendar and Inside:80 gsm
Age/Birth/EDD Maplitho
Calculation
Tables
21. Thus, on the scrutiny and analysis of the samples given by the petitioner at the time of submission of its tender document by this court, it is beyond any doubt that they did not meet the specification as clearly mentioned in Table-2 prescribing the technical specification of size of paper as extracted in paragraph no.6 of this judgment. Thus, in all fairness, the Tender Committee ought to have not even held the petitioner technically qualified and the offer of the petitioner had to be rejected in the same manner in which the offer of the Hyderabad firm, namely, M/s. Y.S. Hitech, Hyderabad was Patna High Court CWJC No.25151 of 2013 19 rejected because there could be in fact no difference in law in giving effect to the provisions of aforesaid clause-5.8 of the terms and conditions of General Bid and Eligibility Condition of the N.I.T. between the Hyderabad firm not supplying the sample of papers and board as per specification in Table-2 and a firm like petitioner supplying paper and board in Tender Papers but not strictly as per the technical specification in Table-2 of the N.I.T.
22. The records however would go to show that pursuant to the aforesaid decision dated 13.5.2013 of the Tender Committee, one of the member of the Tender Committee, namely, Manoj Kumar Chaudhary, also the Procurement Officer, on the next day itself on 14.05.2013, had put a proposal in the file for seeking approval of the Secretary of the Social Welfare Department for award of contract to the petitioner which can be found in the connected main file being File No. ICDS/25030/7-2012, which reads as follows:-
^^izks0 ink0 iwoZ fu/kkZfjr izfdz;k ds rgr u;s MIS iaft;ksa ds eqnz.k gsrq izdkf'kr fufonk ds vkyksd esa fu/kkZfjr vof/k fnukad 13-05-13 ds vijkg~u 2 cts rd izkIr dqy N% fufonk dks dz; lfefr ds }kjk vijkg~u 4 cts [kksyk x;kA loZizFke rduhdh fufonk dk ewY;kadu fd;k x;k vkSj mifLFkr fufonknkrkvksa ds gLrk{kj bu ij izkIr fd;s x,A rduhdh :i ls lQy pkj fufonknrkvksa dh foRrh; fufonk [kksyh xbZA rduhdh ,oa foRrh; fufonk ewY;kadu izi= dz; lfefr dh cSBd dh dkjZokbZ ds lkFk 395&389@i0 ij voyksdukFkZ jf{kr gSa funs'kd egksn;k }kjk bls foHkkxh; csolkbZV ij upload djus dk ekSf[kd funs'kd fn;k x;k gSA funs'kd egksn;k ls bldh vuqefr izkIr djrs gq, dz; lfefr dh cSBd dh dkjZokbZ ,oa fpfUgr L1 Agency ds lkFk vxzsrj dkjZokbZ gsrq lfpo egksn; dk vuqeksnu izkIr fd;k tkuk visf{kr gSaA d`i;kA Patna High Court CWJC No.25151 of 2013 20 g0@& eukst dqekj pkS/kjh 14@05@13 la;qDr funs'kd fn0 13-0-5-13 dks MIS vurxZr u;s iaft;ksa ds eqnz.k ,oa vkiwfrZ gsrq vkeaf=r fufonk dk Technical Bid ,oa financial Bid ds vk/kkj ij L1 dk pkVZ voyksdu fd;k tk ldrk gSA bls I.C.D.S. ds Site ij upload djrs gq, vxzsrj dkjZokbZ dk vkns'k fn;k tk ldrk gSA g0@& 14@5@13 funs'kd g0@& 14@5@13**
23. What would immediately meet the eye of any prudent person is even before the proceedings of tender committee was approved, Ms Vandana Preyashi, the Director, I.C.D.S. had allegedly given a direction to Mr. Choudhary, the Procurement Officer, to make it public by uploading on the web site of the department. From reading of the notesheet of the file at pages-51-52 of the aforesaid notesheet, it also becomes very clear that the order of the Secretary to the Social Welfare Department approving the proposal of the Tender Committee to award contract to the petitioner though sought to be obtained was intercepted and scuttled at the stage of Directorate level by R.R. Jha the then Joint Director and Ms. Vandana Preyasi, the then Director, I.C.D.S. who went to approve the decision of the tender Committee to declare the petitioner the lowest bidder (L1) and award contract to it by way of uploading the proceedings.Patna High Court CWJC No.25151 of 2013 21
24. It has to be kept in mind that Mr. R.R. Jha, the Joint Director, was also the member of the Tender Committee and thus his effort to scuttle the proposal for seeking approval of the departmental Secretary and its being also approved by Ms. Vandana Preyashi, the Director, I.C.D.S., in the light of earlier oral direction to Mr. Manoj Kumar Choudhary to upload the decision of the tender committee on the departmental website, would go to show the things were being processed in hurry and that right from inception some forces were working in favour of the petitioner to award contract to it and that is how the settled norms of receiving approval of the recommendation of the tender committee by the competent authority was deviated by not even allowing the matter to be placed before the Head of the Department namely the then Secretary who too under the Rules of Executive Business had to essentially obtain the approval of the State Government of awarding contract valuing Rs. 4,21,64,400/-.
25. The matter, in fact, was surprisingly given a further twist by Mr. Manoj Kumar Choudhary, the Procurement Officer and a member of Tender Committee who after receiving the approval of Ms. Vandana Preyashi, the Director, on 14.05.2013, declaring the petitioner lowest bidder surprisingly gave a proposal on 15.05.2013 to obtain the new samples from the petitioner by way of 40 sets of registers, which was in teeth of the terms of N.I.T. The N.I.T., as Patna High Court CWJC No.25151 of 2013 22 noted above, in its Clause 5.8 prescribed only for samples of paper and board and not registers. Mr. Choudhary probably by this time had became aware of the paper and Board furnished by the petitioner where not as per prescribed specification in Table-II and that is how he had evolved this strategy to help the petitioner as would become more clear from his noting dated 15.5.2013, who surprisingly on his own, had recorded as follows:-
^^ikj i`"B fuEuka'k ij dk;Zokgd lgk;d dh fVImi.kh voyksduh; d`i;kA MIS iaft;ksa ds eqnz.k gsrq izdkf'kr fufonk ds ewY;kaduksijkar L1 Agency ls mDr iaft;ksa ds 40 lsV uewuk ds rkSj ij izkIr djus dk funs'k gSa funs'kkuqlkj mDr ,tsalh ls eksckbZy ij okrkZ dh xbZA 09839220822 ij okrkZ djus ij Hkkjr ljdkj ls izkIr iaft;ksa dk uewuk ,oa Print ready CD miyD/k djkus dk vuqjks/k mDr agency }kjk fd;k x;k vkSj okafNr uewus muds }kjk ,d lIrkg esa miyC/k djk nsus dh ckr crk;h xbZA mDr ds vkyksd esa funs'kd egksn;k dh vuqefr d`i;k izkIr djuk pkgsxa sA g0@& 15-5-13 eukst dqekj pkS/kjh la;qDr funs'kd P.O. dh mijksDr fVIi.kh d`i;k g0@& 15@5 jk/kk je.k >k ** funs'kd g0(viBuh; ) 15@5
26. Thus, this Court will have no difficulty in holding that the very screening of the offer of the petitioner to be technically qualified by the Tender Committee and declaring it fit to be awarded contract on the ground of its being lowest bidder was contrary to the terms and conditions of the N.I.T. Patna High Court CWJC No.25151 of 2013 23
27. As a matter of this inherent and incurable deficiency was sought to be removed by Mr. Manoj Kumar Choudhary who on the basis of his mobile phone with the representation of the petitioner on 15.05.2013 had submitted a proposal for obtaining fresh 40 sets of sample registers from the petitioner though there was no such prior decision of any officer of the department to obtain fresh samples in forms of forty sets of registers from the petitioner. As noted above the samples of only paper and Board in terms of N.I.T had to be examined by the Tender Committee only on the basis of samples of papers and Boards submitted with tender documents and that too in course of technical evaluation of the offers but some how a unique mode contrary to the terms of N.I.T., was invented by Mr. Chaudhary a member of Tender committee and also approved by Mr. Jha, the Joint Director, yet another member of Tender Committee as well as Ms. Preyashi, the Director for obtaining 40 sets of fresh sample registers from the petitioner. What would really shock this Court is that Mr. Chaudhary on his own had not only contacted representative of the petitioner on his mobile phone but had also recorded that such samples on supply of C.D. to the petitioner after being supplied by him Mr. Chaudhary could be made available by the petitioner to the department within a week. What has further surprised this Court is that how could Mr. Patna High Court CWJC No.25151 of 2013 24 Chaudhary get phone (mobile) number of the representative of petitioner specially when in 246 pages of tender documents of the petitioner there is no trace of such mobile number.
28. It is thus obvious that Mr. Chaudhary was personally in touch with the representative of the petitioner and wanted to bestow favour to it by changing the rules of the game by providing an additional opportunity to the petitioner to furnish new samples after it was declared lowest bidder (L-1) on the basis of the tender documents at pages 241 to 246 of its tender documents. Surprisingly, this dubious proposal of Mr. Chaudhary was also approved Mr. R.R. Jha, Joint Director, ICDS and also a member of tender committee and even Ms. Vandana Preyasi, the then Director became a party to the design of Mr. Chaudhary. Thus, the manner in which whole process of procurement of fresh sample from the petitioner after declaring it the lowest bidder (L-1) was evolved and acted upon by three officials namely, Mr. Choudhary, Mr. Jha and Ms. Preyashi, contrary to the terms of N.I.T, clearly smacks malafide on their part and would require further probe by any independent agency because the police officials of Economic Offence Unit (E.O.U.) have miserably failed to investigate in its proper perspective as would also become evident from the discussions made hereinabove.
29. In fact from the perusal of records, it also transpires Patna High Court CWJC No.25151 of 2013 25 that on 16.5.2014, the same member of the Tender Committee, namely, Manoj Kumar Chaudhary, the Procurement Officer had also placed a draft copy of the letter which was proposed to be sent to the petitioner for producing 40 set of sample registers. The consequential letter sent to the petitioner on 16.5.2013 had read as follows:-
^^i=kad&ICDS/25030/7-2012/2340 @fnukad 16@5@13 isz"kd] eukst dqekj pkS/kjh] fc]iz]ls-
izksD;ksjesaV inkf/kdkjhA lsok esa] Jherh fugkfjdk xqIrk xSyDs lh izsl izk-fy-
vej Hkou] gkml ua0 539K/152 dlSyk] QStkckn jksM] y[kum@2260116 mRrj izn's kA fo"k;& MIS iaft;ksa ds 40 lsV uewuk ds rkSj ij miyC/k djkus ds laca/k esaA egk'k;] funs'kkuqlkj u;s MIS iaft;ksa ds eqnz.k gsrq pyHkk"k ij gq, okrkZuqlkj mDr MIS iaft;ksa dk Hkkjr ljdkj ls izkIr ewy uewuk dh izfr fizUV jsMh lh0Mh0 lfgr layXu dj Hkstk tk jgk gsA mDr iaft;ksa dk 40 lsV uewuk ,d lIrkg ds vUnj ewy izfr lfgr miyC/k djkuk lqfuf'pr djsAa fo'oklHkktu g0@& 16@05@13 ¼eukst dqekj pkS/kjh½ vuq0%& ;FkksifjA izksD;ksjesaV inkf/kdkjh Kkikad& ICDS/25030/7-2012/2340. @fnukad 16@05@13** (Underlining for emphasis)
30. Having written this letter on 16.05.2013 to the petitioner for supply of fresh samples by the petitioner contrary to the terms of N.I.T., the file was again processed by the same member of Tender Committee, namely, Mr. Manoj Kumar Chaudhary, the Patna High Court CWJC No.25151 of 2013 26 Procurement Officer, now for giving approval to the proceedings of the Tender Committee dated 13.05.2013 and to that extent, it would be relevant to quote the noting in the file from 17.5.2013 to 25.5.2013, which reads as follows:-
^^lafpdk i`0 396@i0 ij fuxZr ,oa jf{kr i= la0 2340 fnukad 16-5-2013 nz"VO;
d`i;k lafpdk i`0 52&51@fV0 ij fn;s x;s izLrkokuqlkj lafpdk i`0 395&391@i0 ij jf{kr dz; lfefr dh cSBd dh dkjZokbZ ij lafpo egksn; dk vuqeksnu izkIr djus dh dkjZokbZ fd;k tk ldrk gsA lafpdk vuqorhZ dkjZokbZ gsrq miLFkkfir A vkns'kkFkZ g0@& 17-05-13 ¼deys'oj dqekj flag½ ys[kkiky lg HkaMkjiky izks0 ink0 fufonk ewY;kadu izfrosnu 395391@i0 ij lfpo egksn; dk vuqeksnu izkfFkZr gSA d`i;kA g0@& eukst dqekj pkS/kjh laa;qDr funs'kd g0@& 17@05@13 Hkkjr ljdkj ds funsZ'k ds vkyksd esa MIS varxZr vkaxuokM+h dsUnzkas esa 12 izdkj dh iaft;ksa dh vkiwfrZ ds fy, fufonk vkeaf=r dh xbZ FkhA fufonk esa L1 dk pquko lfefr }kjk fd;k x;k gSA iwoZ esa foHkkxh; LFkk;h foRr lfefr dh lgefr rFkk foRr foHkkx dh lgefr&33@fV0 ij izkIr gSa foHkkxh; ea=h }kjk&35@fV0 ij eqnz.k vkns'k nsus ls igys lafpdk voyksdu gsrq Hkstus dk vkns'k gSA rnuqlkj lafpdk fufonk ds vuqeksnu gsrq lfpo egksn; dks Patna High Court CWJC No.25151 of 2013 27 i`"Vkafdr fd;k tk ldrk gS] vuqeksnu ds mijkar voykasdu gsrq ea=h egksn;k dks Hkstk ldsxkA g0@& 17@5 la;qDr funs'kd jk/kk je.k >k funs'kd g0@& 17-5-13 lfpo ea=h g0@& 20@5@13 jkftr iqugkuh ¼A½ vkiwwfrZ djus ds iwoZ vkiwfrZ dRrkZ dks ;g funs'k fn;k tk, fd dz; dh tk jgh printed lkexzh dk iw.kZ lsV] vkiwfrZ vkns'k ds vuqlkj] ,d ea=h] ,d lfpo] rhu funs'kky;] 38 ftyk esa izksxzke inkf/kdkfj;ksa ds fy, rFkk lHkh iz[k.Mkas es cky fodkl ifj;kstuk inkf/kdkfj;ksa dks Hkstus gsrq funs'kky; esa tek djsxa As ¼AA½ funs'kkky; blds xq.koRrk ls larq"V gksus ds mijkUr gh lHkh lac} dks Hkstuk lqfuf'pr djok;sxa As ¼AAA½ vkiwfrZ dRrkZ dks Hkqxrku] lacfa /kr C.D.P.O. ls izfrosnu ds i'pkr~ gh fd;k tk,xkA ijohu vekuqYykg 25-5-13** (Underlining for emphasis)
31. From the aforesaid noting, it becomes very clear that approval of the competent authority to award contract to the petitioner by way of receiving supply from the petitioner was taken in a concealed manner without apprising either the Secretary or the Minister that samples submitted by the petitioner alongwith the tender Patna High Court CWJC No.25151 of 2013 28 documents were never compared in the light of specification in the N.I.T. and now those 40 sets of sample registers to be furnished by the petitioner in view of letter dated 16.05.2013 of Mr. Choudhary had been made the basis for obtaining supply not only in complete defiance of the terms and conditions of the N.I.T. but also in teeth of the provisions of the Bihar Financial Rules as well as the guidelines of Central Vigilance Commission already quoted above.
32. Thus, it was only after the file had returned from the Minister of the Department that Ms. Vandana Preyasi, the then Director, I.C.D.S. had now written a buff sheet addressed to Mr. Rajit Punhani, the Secretary to the Social Welfare Department that in terms of the communication made with the petitioner on 16.5.2013, by the department, 40 sets of sample registers were received from the petitioner in course of which the representative of the petitioner had himself admitted that the sample of register no.2 in the 40 sets of sample registers, was different both in size and specification and paper for such register could be purchased by the petitioner itself only after issuance of the supply order and/or execution of the agreement by the Department.
33. This Court is of the considered view that the Director, I.C.D.S. having thus acquired knowledge of violation of terms and conditions of N.I.T at least on 29.05.2013 after receipt of 40 sets of Patna High Court CWJC No.25151 of 2013 29 fresh samples from the petitoner, had no option but to nip the whole thing in bud by cancelling the bid of the petitioner but instead of doing that she had gone to place two copies of the two sets out of 40 sets of samples of register, one each for perusal of the Minister and another for perusal of the Secretary only with a view of the change the very basis of N.I.T. under which the papers and boards enclosed with the tender documents alone were to be examined for award of contract. This buff sheet contained in xSj ljdkjh izs"k.k la[;k 612 dated 29.5.2013 at page-397 of the Main File being relevant is quoted as follows:-
^^xS0l0iz0l0 612@29-5-13 ihr i= ds cnys esa New MIS Register ds eqnz.k gsrq fufonk ewY;kadu esa L1 Agency M/s Galaxy Press Pvt. Lucknow,-
226016] Uttar Pradesh (INDIA) ls efgyk ,oa cky fodkl ea=ky;] Hkkjr ljdkj ls izkzIr mDr iaft;ksa ,oa ,d dSyUs Mj ds uewus ds vuq:i eqfnzr gksus okys iaft;ksa ds 40 lsV uewus miyC/k djkus dk vuqjks/k fd;k x;k Fkka M/s Galaxy Press ls mDr uewuksa dh 40 izfr izkIr gS ftlesa Register No.-2 ds laca/k esa muds }kjk crk;k x;k fd bl iath dk size A3 Paper ls Hkh dqN vyx gS vkSj Colourful gS ftls dk;kZn's k vFkok ,djkjukek ds i'pkr~ dz; fd;k tk;sxkA vr% Galaxy Press Lucknow ls iazkIr New MIS iaft;ksa ds nks lsV uewus ewy uewuk izfr ds lkFk ekuuh; ea=h egksn;k ds voyksdukFkZ ,oa Hkonh; dks"kkax gsrq miyC/k djk;k tk jgk gSA d`i;kA vuqyXud%& 23 iathA $ 11 iathA g0@& 29@5@13 ¼oUnuk izs;"kh½ funs'kd vkbZ-lh-Mh-,l- funs'kky;Patna High Court CWJC No.25151 of 2013 30
lfpo] lekt dY;k.k foHkkx] fcgkj] iVukA** (underlining for emphasis)
34. It is at this stage very important to note here that on 3.6.2013, the the Cabinet Minister, on receipt and perusal of the one set of register, had directed the Secretary of the Social Welfare Department to constitute a Committee for examining the quality of supply of registers as per prescribed specification in the N.I.T. She in her such direction had made it clear that this Committee would verify the registers to be supplied by the petitioner with the samples supplied by the petitioner at the time of submission of its tender documents i.e. Pages 241 to 246 of the tender documents submitted by the petitioner on 13.05.2013 and only on its quality being declared to be , as per the specification in the N.I.T., such samples of register were to be sent to each of the project at all the block level in all the district and the supply of the registers from the petitioner were to be taken at their level only on verification from such approved sample copy of the registers by the Quality Control Committee.
35. This buff sheet of the then Minister contained in xSj ljdkjh izs"k.k la[;k 1414 dated 3.6.2013 received in the Department on 4.6.2013 at page no. 415 of the concerned file has a vital bearing on the issue involved in this writ application, inasmuch as, from the further analysis to be made in this judgment it would become Patna High Court CWJC No.25151 of 2013 31 absolutely clear that the samples supplied by the petitioner at the time of submission of its tender document at pages 241 to 246 were never looked into for complying the aforesaid clear order of the minister.
This buff sheet of the then minister dated 03.06.2013 reads as follows:-
^^ea=h lekt dY;k.k foHkkx ihr i= ds cnys esa fcgkj] iVuk xS0l0iz0l0 1414 fnukad 3-06-13 lfpo lekt dY;k.k foHkkx vkbZ0lh0Mh0,l0 funs'kky; }kjk jkT; ds lHkh vkaxuokM+h dsUnzksa ds fy, fizafVx ds lkFk jftLVj dh vkiwfrZ djkus gsrq fufonk fudkyh xbZ gSaA fufonk eas fu/kkZfjr fof'kf"V;ksa ds vuq:i fizfVx ds lkFk jftLVj dh vkiwfrZ gks] blds fy, mudh xq.koRrk dh tkap gsrq dfefV dk xBu gksuk furkur vko';d gSA vr% funs'kky; Lrj ls ,d xq.koRrk tkap dfefV dk xBu djk;k tk; tks Hkkjr ljdkj }kjk vuqeksfnr fof'k"V rFkk U;wure fufonknkrk }kjk fufonk ds lkFk fn;k x;k uewuk ls feyku dj fu/kkZfjr fof'k"V ds vuq:i izkIr gksus ls lacaf/kr izek.k nsxkA mlds mijkar gh lHkh ftyk ,oa ifj;kstuk esa bls uewuk ds :i esa Hkstk tk;A Lohd`r uewuk ds vuqlkj vkiwfrZdRrkZ }kjk jftLVj dh vkiwfrZ fd;s tkus ij gh lHkh ifj;kstukvksa ds fy, vkiwfrZ yh tk;A ijohu vekuqYykg 3-6-13 ¼ijohu vekuqYykg½** (underlining for emphasis)
36. From perusal of records, it also becomes absolutely clear that when Ms. Vandana Preyashi, in the light of the orders of the then Minister is buffsheet dated 03.06.2013, became aware that even 40 sets of the samples registers furnished by the petitioner, after opening of the tender, were not as per the specification in the N.I.T. Patna High Court CWJC No.25151 of 2013 32 much less in the tender documents filed by the petitioner on 13.05.2013, containing six pages of papers and boards, which had not fulfilled the requirement, a letter was surprisingly again written to the petitioner by Mr. Manoj Kumar Choudhary, the Procurement Officer on 03.06.2013 asking it to supply another 587 sets of fresh sample of registers. It has to be kept in mind that Ms. Vandana Preyasi, Director had already reported on 29.05.2013 to the Secretary of the department that even the 40 sets of fresh samples of the registers furnished by the petitioner, in response to the self serving letter of Mr. Manoj Kumar Choudhary dated 15.05.2013 contrary to the requirement laid down in the N.I.T., was not found as per specification and, therefore, Mr. Choudhary, in the name of complying the order of the minister, had sought to give a fresh lease of life to the petitioner by asking it to supply 587 sets of fresh samples of registers. This would become more clear from the letter of Mr. Manoj Kumar Choudhary, the Procurement Officer, dated 03.06.2013 which reads as follows:
^^fcgkj ljdkj lesfdr cky fodkl laoxZ ICDS funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry bafnjk Hkou jke pfj= flag iFk iVuk&800001 i=kad&ICDS/25030/7-2012/2711 @fnukad 3@06@2013 izs"kd] eukst dqekj pkS/kjh fc iz ls izksD;ksjesuV inkf/kdkjh Patna High Court CWJC No.25151 of 2013 33 lsok esa] Jherh fugkfjdk xqIrk xSyDs lh izsl izk0fy0 vej Hkou] gkml ua0 539k/152 dlSyk QStkckn jksM] y[kum&226016 mRrj izns'kA fo"k;& MIS iaft;ksa ds fgUnh 587 lsV dk uewuk miyc/k djkus ds lac/a k esaA egk'k;] funs'kkuqlkj eqnz.k fd;s tkus okys u;s MIS iaft;ks ds iw.kZ lsV ¼izfr lsV 12 iath½ dk 587 lsV dk uewuk ¼fgUnh esa½ 'kh?kz gh vkbZ -lh-Mh-,l- funs'kky; esa miyC/k djk;sAa mYys[kuh; gS fd ,rnlaca/kh fu"ikfnr fufonk esa vkidh Agency L1 ik;h xbZ gS] vr% ,djkjukek ds iwoZ i= izkfIr ds ,d lIrkg ds vUnj Performace Guarantee Hkh 587 lsV uewuk ds lkFk miyC/k djuk lqfuf'pr fd;k tk;sA fo'oklHkktu g0@& ¼eukst dqekj pkS/kjh½ izksD;ksjesaV inkf/kdkjh**
37. In fact the whole thing got conveniently manipulated from this very stage by Mr. Manoj Kumar Chaudhary, the Man Friday of the petitioner, who did not send the samples of papers and board submitted by the petitioner along with tender document at pages 241 to 246 on 13.05.2013 to Gulzarbagh Government press for verification as directed by the then Minister in her order dated 03.06.2013, and had selectively sent only the samples of eleven registers in the lot of 40 sets registers received on or around 29.05.2013 as claimed by the Director in her note to the Secretary to Gulzarbagh Press vide his letter no. 3012 dated 19.06.2013. It has to be kept in mind that it was Mr. Manoj Kumar Choudhary, the Patna High Court CWJC No.25151 of 2013 34 Procurement Officer and also a member of Tender Committee who by his letter dated 16.05.2013 after having his private conversation on mobile phone with the representative of the petitioner had obtained such 40 sets of samples of registers which were examined and commented upon by Ms. Vandana Preyashi, the Director on 29.05.2013, to be not meeting the prescribed requirement as per the admission of the representative of the petitioner. This was again in fact done by Mr. Chaudhary with a purpose to shield and bestow favour to the petitioner because had those six pages of samples of the tender documents furnished by the petitioner at Pages 241 to 246 were sent to the Gulzarbagh Government Press, as also was directed by the minister on 03.06.2013, the whole thing could be easily exposed but Mr. Choudhary in league with Ms. Preyashi had ensured that improved samples of 40 registers submitted by the petitioner on or around 29.05.2013 much after opening of tender and could only become the basis for evaluation of quality of registers.
38. The fact that Mr. Manoj Kumar Choudhary, the Procurement Officer, had never sent the six pages of the samples of the papers and boards furnished by the petitioner along with the tender documents on 13.05.2013 and had only sent registers out of 11 sets of samples received in and around on 29.05.2013 from the petitioner in response to his private conversation on mobile phone followed by his Patna High Court CWJC No.25151 of 2013 35 letter dated 15.05.2013 is absolutely visible from the reading of the letter which was sent by Mr. Choudhary to the Superintendent, Guljarbagh Government Press on 19.06.2013 wherein he had very conveniently sought to change the very basis of verification of the sample by placing only the set of registers furnished by the petitioner in response to his letter dated 15.05.2013. Though, in this letter, Mr. Choudhary had also claimed that Ms. Vandana Preyashi, the Director, I.C.D.S. had made some conversation with the Superintendent but nothing of this sort is at least available in the file. Be that as it may, the letter no. 3012 dated 19.06.2013 of Mr. Choudhary, the Procurement Officer sent to the Superintendent, will itself leave nothing for speculation that only subsequent sample registers (not papers and press submitted by the petitioner along with tender documents on 13.05.2013) were sent for verification and submission of report, which reads as follows:
^^fcgkj ljdkj lesfdr cky fodkl laoxZ ICDS funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry bafnjk Hkou jke pfj= flag iFk iVuk&800001 i=kad&ICDS/25030/7-2012/3012 @ fnukad 19@06@2013 izs"kd] eukst dqekj pkS/kjh izksD;ksjesUV inkf/kdkjh lsok esa] v/kh{kd] jktdh; eqnz.kky; xqytkjckx] iVukA Patna High Court CWJC No.25151 of 2013 36 fo"k;& Hkkjr ljdkj ls izkIr u;s MIS iaft;ksa ¼11½ ds vk/kkj ij xSyDs lh izsl ls uewuk iaft;ksa ds feyku ds laca/k esaA egk'k;] mi;qZDr fo"k;d funs'kd] vkbZ-lh-Mh-,l- ls gqbZ vkidh okrkZ ds vkyksd esa funs'kkuqlkj vkt iwokZg~u fo"k;xr ekeys ij vkils okrkZ dh x;hA vkids }kjk crk;k x;k fd vkt fdlh cSBd esa vki O;Lr gSa vr% fo"k;xr iaft;ksa dks vkids voyksdukFkZ ,oa izfrosnukFkZ vkils gq, foe'kZ ds vkyksd esa Jh fer jatu ?kks"k dk gLrxr djkus gsrq Hkstk tk jgk gSa d`i;k izkfIr Lohdkj dh tk;A fo'oklHkktu g0@& 19@06@13 izkIr fd;k ¼eukst dqekj pkS/kjh½ g0@& vLi"V izksD;ksjesaV inkf/kdkjh 19@6@13** (underlining for emphasis)
39. Thus when such 11 copies of the sample registers (and not 12 as required) i.e. without Register 2 as is clear from the notesheet dated 29.05.2013 of Ms. Vandana Preyashi to the departmental Secretary as also in complete disregard to the order of the then minister dated 3.06.2013 were sent to the Superintendent, Bihar Secretariat Press, Guljarbagh for verification of the samples, a report of Guljarbagh Press was submitted on 27.6.2013 that 11 sample registers furnished by the petitioner though had contained the printing and binding as per the specification of the Government of India but size thereof was not in consonance with as prescribed in the N.I.T. and as per the Government of India specification, inasmuch as, there was a variance in the finished and text of size of the samples. The In-
charge Superintendent of Guljarbagh Press had also given his opinion that the quality of paper and the board used in the samples of registers Patna High Court CWJC No.25151 of 2013 37 received from the petitioner was required to be examined by the Central Pulp Paper Research Institute, Saharanpur (hereinafter referred to as 'the C.P.R.I.') for determination as to whether the same was as per specification laid down in the N.I.T. and as per instruction of the Government of India. The aforesaid letter of the Superintendent of Guljarbagh Press dated 27.6.2013 reads as follows:-
fcgkj lfpoky; eqnz.kky; xaqytkjckx] iVuk&800007 i=kad 1236 fnukad 27@6@13 izs"kd lq'khy dqekj izHkkjh v/kh{kd] fcgkj lfpoky; eqnz.kky;] xqytkjckx] iVuk&7 lsok esa] Jh eukst dqekj pkS/kjh] izksD;ksVesaV inkf/kdkjh lesfdr cky fodkl lsok,a] fcgkj] iVukA fo"k;& Hkkjr ljdkj ls izkIr u;s ,e0vkbZ0,l0 iaft;ksa ¼AA½ ds vk/kkj ij xSyDs lh izsl ls uewuk iaft;ksa ds feyk ds lEcU/k esaA izlax& vkidk i=kad 3012] fnukad 19-6-2013A egk'k;] mi;qZDr fo"k; vkids izklkafxd i= ds }kjk xSyDs lh izsl ls izkir ,e0vkbZ0,l0 iaft;ksa ds 11 uewuksa dk feyku Hkkjr ljdkj ds uewuksa ls fd;k x;kA xSyDs lh izsl ls izkIr uewuksa dk eqnz.k ,oa ckbfUMax Hkkjr ljdkj ds uewuk ds vuq:i gS ysfdu lkbZt uewuk vuq:i ugha gSA xSyDs lh izsl ls uewuk dk fQuhLM ,oa VsDLV dk lkbZt esa fHkUurk ;kuh de gSA xSyDs lh izsl ls izkIr uewuk esa iz;qDr dkxt ,oa cksMZ] Hkkjr ljdkj ds uewuk vuq:i gS ;k ugha bldh tkap dsUnzh; yqXnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj ls djk;k tk ldrk gSA fo'oklHkktu g0@& 27-6-13 ¼lq'khy dqekj½ izHkkjh v/kh{kdA (underlining for emphasis) Patna High Court CWJC No.25151 of 2013 38
40. The aforesaid opinion of the Superintendent of Government Gulzarbagh Press proves two things, first that the fresh samples of registers supplied by the petitioner were not meeting the specification of size as prescribed by the Government of India and the N.I.T. and secondly the quality of papers and boards could not be tested by him and the same was required to be examined at C.P.R.I., Saharanpur. It has to be kept in mind this Superintendent of Government Press, Gulzarbagh was also a member of Tender Committee who had participated in the meeting of the Tender Committee on 13.5.2013 while evaluating the Technical bid and thus when he also was not in position to find out as to whether the quality of paper and Board supplied by the petitioner had met the specification of 80 G.S.M., 130 G.S.M., 300 G.S.M. as presented in Table-2 of N.I.T. nothing remains for speculation that the Tender Committee on 13.05.2013 did not examine the fulfilment of specification by any of tenderer including the petitioner.
41. It is equally important to note here itself that while the sample of papers and boards supplied by the petitioner either at the time of submitting its offer in terms of the N.I.T. on 13.05.2013 or the samples of registers submitted by it subsequently in response to the letter of Mr. Chaudhary dated 16.5.2013 on or around 29.05.2013 were yet to be verified in terms of aforesaid report of Superintendent, Patna High Court CWJC No.25151 of 2013 39 Gulzarbagh Press dated 27.06.2013 by sending them to C.P.R.I. Saharanpur, Ms. Vandana Preyasi, Director of I.C.D.S. on 29.6.2013 had surprisingly approved another proposal of Mr. Chaudhary the Procurement Officer and Mr. Jha, the Joint Director dated 28.06.2013 firstly to apprise the petitioner with regard to deficient report of the Superintendent, Government Guljarbagh Press dated 27.6.2013 and secondly for making payment to the petitioner only after verification of the quality of random samples from the Central Pulp Paper Research Institute, Saharanpur. This would also become evident from page no. 62 and 63 of the note-sheet of the file which reads as follows:-
^^ikj i`"B ij Hkonh; funs'k ds vuqikyu esa fnukad 19-6-13 dks v/kh{kd jktdh; eqnz.kky;] xqytkj dks Hkkjr ljdkj ls izkIr MIS iaft;ksa ds ewy uewuk ,oa xSyDs lh izsl ls izkIr uewuk voyksdukFkZ ,oa nksuksa dk feyku dj izfrosnu gsrq miyc/k djk;k x;k FkkA lEizfr izHkkjh v/kh{kd] fcgkj lfpoky; eqnz.kky;] xqytkjckx ls ,rn~laca/kh izfrosnu izkir gS ¼422@i- nz"VzO;½A ftlesa vafdr gS fd xSyDs lh izsl ls izkIr uewuk Hkkjr ljdkj ds uewuk ds vuq:i gS ysfdu lkbt uewuk vuq:i ugha gSa vkSj lkbt de gS tcfd blesa iz;qDr dkxt ,oa cksMZ Hkkjr ljdkj ds uewuk ds vuq:i gS ;k ugha bldh tkap dsUnzh; yqXnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj ls djkus dks dgk x;k gSA oLrqfLFkfr ls funs'kd egksn;k dks voxr djkrs gq, vxzsrj dkjZokbZ gsrq d`i;k funs'k izkIr djuk pkgsx a sA g0@& 28@06@13 eukst dqekj pkS/kjh la;qDr funs'kd 62 fV0 ls yxkrkj P.O. dh fVIi.kh d`i;k fu.kZ; fy;k tk ldrk gSA g0@& 28@6 jk/kk je.k >k Patna High Court CWJC No.25151 of 2013 40 ^^funs'kd ¼1½ Report ls Glaxy Printers dks voxr djk,a ftlls supply esa lq/kkj dj ldsA ¼2½ Hkqxrku djus ds iwoZ Saharanpur ls random sampling ds vk/kkj ij xq.koRrk dh tkap djk,aA g0@& oUnuk izs;"kh½ 28@6
42. A question would arise here itself as to where was the occasion for the Director (Ms. Preyashi) to take a decision for receiving supply or making the payment to the petitioner as on 28.06.2013 when even the supply order was not issued to the petitioner nor even agreement with the petitioner was entered into and the order of Minister dated 03.06.2013 and observation of Superintendent, Guljarbag Press for sending the samples to C.P.R.I., Saharanpur dated 27.06.2013 for testing the quality of paper and board submitted by the petitioner along with tender documents on 13.05.2013 as well as those sample registers supplied by the petitioner subsequently on or around 29.05.2013, was yet to be completed?
Things however were tailor made to suit and serve the interest of the petitioner and pursuant to the aforesaid decision of Ms. Vandana Preyashi, the Director, I.C.D.S. dated 29.06.2013 a letter was sent to the petitioner on 02.07.2013 by Mr. Manoj Kumar Chaudhary, the Man Friday, who was behaving like a true friend, philosopher and guide of the petitioner informing it that the size of the samples of registers furnished by the petitioner was not as per requirement in the Patna High Court CWJC No.25151 of 2013 41 N.I.T. inasmuch as its size was less and thus different.
43. The petitioner, by the aforesaid letter dated 02.07.2013, in fact now was asked by Mr. Manoj Kumar Choudhary, the Procurement Officer, to remove the aforesaid deficiency and in course of supply 587 sets of samples of registers in terms of his earlier letter dated 3.6.2013. The petitioner, who was yet to be issued letter of award of the contract or the supply order was surprisingly also informed that its payment shall be made only after obtaining test report in respect of the paper and board used by it from Central Pulp Paper Research Institute (C.P.R.I), Saharanpur. It has to be kept in mind that the requirement of sending samples of the petitioner to C.P.R.I., Saharanpur had arisen in view of the observations of Superintendent, Gulzarbagh press dated 27.06.2013 and thus while the samples of registers and boards furnished by the petitioner along with the tender documents on 13.05.2013 and the subsequent set of 40 registers on or around 29.05.2013 were yet to be approved a new base by way of fresh supply of 587 sets of registers was provided by Mr. Chaudhary, the Procurement Officer and Ms. Preyashi, the Director to award the contract to the petitioner as would be clear from his letter dated 2.7.2013 communicated to the petitioner, which reads as follows:-
^^i=kad ICDS/25030/7-2012/...3165 fnukad 02@07@2013 izs"kd] eukst dqekj pkS/kjh] fc-iz-z ls-
izksD;ksjesVa inkf/kdkjhA Patna High Court CWJC No.25151 of 2013 42 lsok esa] Jherh fugkfjdk xqIrk xSyDs lh izsl izk0 fy0 vej Hkou gkml ua0 539 K/152 dlSyk] QStkckn jksM] y[kum&226016 mRrj izn's kA fo"k;& Hkkjr ljdkj ls izkIr u;s MIS iaft;ksa ds vk/kkj ij xSyDs lh izsl ls uewuk iaft;ksa ds feyku ds dze esa ik;s x;s =qfV;ksa esa lq/kkj ds laca/k esaA izlax& izHkkjh v/kh{kd fcgkj lfpoky;] eqnz.kky; xqytkjckx] iVuk dk i=kad 1236 fnukad 27-06-2013 egk'k;] funs'kkuqlkj izklkafxd i= ds vkyksd esa vkidks lwfpr djuk gS fd vkids izsl ls izkIr uewuksa dk eqnz.k ,oa okbZafMax Hkkjr ljdkj ds uewuk ds vuq:i gS ysfdu lkbZt uewuk vuq:i ugha gSa vkids izl s ds uewuk dk fQfuLM ,oa VsDLV dk lkbZt esa fHkUurk ;kfu deh gSA mDr deh dks nwj djrs gq, bl dk;kZy; dk i= la0&2711 fnukad 03- 06-2013 }kjk ekaxs x;s 587 lsV uewuk miyC/k djkuk lqfuf'pr fd;k tk;A Hkqxrku ds iwoZ ,oa uewuk vkiwfjr lkexzh esa iz;qDr dkxt ,oa cksMZ dh tkaap dsUnzh; yqxnh ,oa dkxt vuqla/kku] laLFkku lgkjuiqj ls djk;k tk;sxkA fo'oklHkktu g0@& 01@07@13 vuq0&;FkksifjA ¼eukst dqekj pkS/kjh½ izksD;ksjesaV inkf/kdkjh** (underlining for emphasis)
44. What is still really shocking and surprising to this Court is that even before the petitioner could respond to the aforesaid decision of the directorate of I.C.D.S. dated 2.7.2013, which was signed by Mr. Choudhary on 01.07.2013, steps were immediately taken by him by putting again yet another proposal on the same day that an agreement for supply of registers should be executed with the petitioner. Though the same was opposed by one Poonam Kumari, the Patna High Court CWJC No.25151 of 2013 43 Training officer in her note dated 10.7.2013 but one of the members of the Tender Committee namely, Mr. Radha Raman Jha also being the Joint Director had overruled her and Ms Vandana Preyasi, the Director, I.C.D.S. on 17.7.2013 under her order in the note-sheet on 17.7.2013 had gone to pass an order that the agreement should be executed with the petitioner and steps as proposed by Poonam Kumari, Training Officer for examination of the sample of the petitioner by the Quality Control Committee set up at the directorate level under the order of Minister dated 03.06.2013 could be done simultaneously and if there was any discrepancy in the quality of the samples, the agreement could be cancelled. This becomes very clear from pages 64 to 66 of the note-sheet of the file which reads as follows:-
ikj i`"B ij funs'kd egksn;k ds funs'kA izHkkjh v/kh{kd] fcgkjm lfpoky; eqnz.kky; xqytkjckx ls izkIr izfrosnu ,ao funs'kd egksn;k ds funs'k ds vkyksd esa xSyDs lh izsl dks lacksf/kr i= izk:i vuqeksnu gsrq i=kpkj Hkkx ij jf{kr gS ftlesa vafdr gS fd okafNr 587 uewus esa mDr dfe;ka nwj dh tk;A xSyDs lh izsl ds lkFk Agreement fd;s tkus ds fcUnq ij Hkh fu.kZ; fy;k tkuk visf{kr gS D;ksfa d Hkkjr ljdkj ds funs'k ds vkyksd esa u;s MIS iaft;ksa dk 'kh?kz Roll out vko';d gSA ;g Hkh mYys[kuh; gS fd fcuk ,djkjukek fd;s work order nsuk mfpr ugha gSa lkFk gh fufonk lwpuk ¼7-4½ ¼346@i- na"VO;½ ds vkyksd esa vkiwfrZdRrkZ dks ,djkjukek dh frfFk ls 60 fnuksa esa iaft;ksa dh vkiwfrZ lHkh CDPO dk;kZy;ksa esa djuh gh gksxhA vr% Agreement djrs gq, work order fuxZr djus ij fu.kZ; fy;k tkuk vko';d gSa d`i;kA g0@& 01@07@13 eukst dqekj pkS/kjh Patna High Court CWJC No.25151 of 2013 44 la;qDr funs'kd ikj i`"B ij Hkonh; funsZ'k ds vkyksd esa i= izk:i vuqeksnukFkZ g0@& 11@7 jk/kk je.k >k funs'kd g0@& g0@& g0@& g0@& g0@& 1@7@13 1@7 1@7@13 Jh deys'k lafpdk i`0 423@i0i= la0 3165 fnukad 2-72013 fuxZr ,oa jf{krA d`i;k bl dk;kZy; dk i= la0 3165 fnukad 2-7-13 xSyDs lh izsl izk0 fy0 ds bZ esy ij Hkst fn;k x;k gSA lk{; Lo:i lafpdk i`0 425&424 i0 nz"VO;
xSyDs lh izsl izk0 fy0 }kjk 587 lsV MIS iath dk uewuk fnukad 12-7-2013 ds izkr^% miyC/k djkus dh lwpuk eksckby ls izkIr gSa ftyk izksxzke inkf/kdkfj;ksa dh cSBd Hkh mlh frfFk dks fu/kkZfjr gSa uewuk bl frfFk ds forj.k fd;k tk;sxk ;k ckn esa fu.kZ; fy;k tk ldrk gSaA blh laca/k esa lafpdk i`0 415@i0 ij lfpo l0d0fo0 ds Mk;jh la0&340¼M½ fnukad 4-6- 13 ls izkIr ekuuh; ea=h l0 d0 ds ihr i= esa vknsf'kr gS fd funs'kky;
Lrj ls ,d xq.koRrk tkap dfefV dk xBu djk;k tk; tks Hkkjr ljdkj }kjk vuqeksfnr fof'k"V rFkk U;wure fufonknkrk }kjk fufonk ds lkFk fn;k x;k uewuk ls feyku dj fu/kkZfjr fof'k"V ds vuq:i izkIr gksus ls lacaf/kr izek.k nsxkA mlds mijkUr gh lHkh ftyk ,oa ifj;kstuk esa bls uewuk ds :i esa Hkstk tk;A izkIr gksus ij 587 lsV uewuk viuk ?kj esa j[kokus dk vkns'k izkIr fd;k tk ldrk gSa 82000 lsV ds vUrxZr 587 lsV jgsxk ;k vyx ;g Hkh fu.kZ; fy;k tk ldrk gSA uewuk izkIr gksus ds i'pkr ,djkjukek djus dk i= Hkh L1 ,tsalh xSyDs lh izsl izk0 fy0 dks nsuk gksxkA ,djkjukek dk izk:i vuqyXud lfgr laafpdk ds i=kpkj ekax ij j[kk x;k gS dk vuqeksnu djkus ij fopkj fd;k tk ldrk gSA lafpdk vuqorhZ dkjZokbZ gsrq miLFkkfirA vkns'kkFkZ g0@& 10&7&2013 ¼deys'oj dqekj flag½ ys[kkiky&lg&HkaMkjiky izks0 ink0 d`i;k mijksDr dk;kZy; lgk;d dh fVIi.kh voyksduh;A Hkonh; voxr gS fd xSyDs lh izsl izkbZosV fyfeVsM y[kum dks ,e0vkbZ0,l0 iath uewuk ds 587 lsV vkiwfrZ djus ds fy, funs'k fn;k x;k gSA eksckbZy ls lwpuk feyh gS fd fnukad 12-07-2013 ds izkr% mDr Patna High Court CWJC No.25151 of 2013 45 uewuk miyC/k djk;k tk;sxkA ikjnf'kZrk dks cuk;s j[kus gsrq u;s ,e0vkbZ0,l0 iaft;ksa ds uewuk dks Hkkjr ljdkj ds uewuk ls feyk ,oa tkap funs'kky; Lrj ij xfBr xq.koRrk fu;=.k lfefr ls tkapksijkUr lgh ik;s tkus ds i'pkr gh ftyk ,oa ifj;kstuk dk;kZy; dks uewuk vkiwfrZ fd;k tkuk lehphu izrhr gksrk gSA vkiwfrZ gksus okys uewuk vkbZ-lh-Mh-,l- funs'kky; esa LFkku [kkyh ugha jgus ds dkj.k viuk ?kj esa j[kokus dk vkns'k fn;k tk ldrk gSa xSyDs lh izsl izkbZosV fyfeVsM dks izHkkjh v/kh{kd] xqytkjckx ls izkIr deh dks nwj djus gsrq i= la[;k 3165 fnukad 02-07-2013 ls lwpuk fn;k tk pqdk gSA i`"B 423@i0 nz"VO;A uequk lgh ik;s tkus ds i'pkr gh ,djkjukek djuk lehphu izrhr gksrk gSa izk:i lafpdk ds i=kpkj Hkkx ij j[kk x;k gSa mijksDr ds vkyksd esa vkns'kkFkZ d`i;kA g0@& 10&7&13 ique dqekjh izf'k{k.k inkf/kdkjh la;qDr funs'kd &63@fV0 ij Hkonh; funsZ'k ds vkyksd esas izD;ksjesUV inkf/kdkjh }kjk ,djkjukek dk izk:i i=kpkj Hkkx ij fn;k x;k gSA xSyDs lh izl izk0 fy0 dks Hkkjr ljdkj ds ekud ds vkyksd esa fcgkj lfpoky; eqnz.kky;] xqytkjckx ds izHkkjh v/kh{kd ls izkIr izfrosnu ds vkyksd esa lq/kkj gsrq i= izksD;ksjesUV inkf/kdkjh }kjk Hkstk tk pqdk gS ¼&423@i0½ ijUrq izksD;ksjesUV inkf/kdkjh ds izf'k{k.k esa gksus ds dkj.k izf'k{k.k inkf/kdkjh dh fVIi.kh esa vlgefr izdV dh xbZ gS] ftlls eSa lger ugha gwWA pwfa d ;g Hkonh; funsZ'k ds vuq:i ugha gSA vr% vkiwfrZ fd;s x;s sample esa ikbZ xbZ =qfV esa lq/kkj djrs gq, uewuk vkiwfrZ djrs gq, ,djkjukek dk vkns'k fn;k tk ldrk gS vU;Fkk iaft;ksa ds vkiwfrZ esa vuko';d foyEc gksxkA g0@& la;qDr funs'kd jk/kk je.k >k funs'kd discuss g0@& 12@7@13 foe'kZ gqvk 'A' rFkk agreement nksuksa lkFk&lkFk fd;k tk ldrk gSA ;fn 'A' esa dksbZ xM+cM+h gqb rks agreement cancel Hkh fd;k tk ldsxkA g0@& 17@7@13** Patna High Court CWJC No.25151 of 2013 46
45. It thus becomes very clear that under a concerted effort and design of Mr. Chaudhary, the Procurement Officer, Mr. Jha, the Joint Director and Ms. Preyasi, the Director, a dubious decision was taken to award contract to the petitioner on 17.07.2013 by way of asking it to execute the agreement even when the orders of the minister dated 03.06.2013 and the observation of the Superintendent of Gulzarbagh Government Press dated 27.06.2013 and the compliance by the petitioner in view of the letter dated 2.07.2013 were yet to be made.
46. What has made this Court to be believe of a racket committed in the whole deal is that Mr. Manoj Kumar Chaudhary, one of the member of the Tender Committee and the Procurement Officer on 23.07.2013 had again on his own put a note in the file that though the petitioner had already been acquainted with the report of the Superintendent, Gulzarbagh Government Press dated 27.06.2013 by his letter dated 02.07.2013 and had been asked to furnish fresh samples of 587 sets of registers, he had himself claimed to have made measurement by scale of the length and breadth of the papers of registers supplied by the petitioner by scale and to him it appeared that they were as per specification of N.I.T. and thus the decision taken for executing of the agreement on 17.7.2013 by Ms. Vandana Preyashi, the Director, ICDS, could be acted upon which also as Patna High Court CWJC No.25151 of 2013 47 would be evident from his following note:-
66@fV0 ij funs'kd egksn;k dk funs'k ,oa 67@fV0 dh dk;kZy; fVIi.kh d`i;k voyksdu;hA funs'kkuqlkj xq.koRrk fu;a=.k lfefr esa v/kh{kd] jktdh; eqnz.kky; xqytkjckx dks j[ks tkus ds i'pkr xSyDs lh izsl ls izkIr uewuksa dh tkap muls djk;h xbZA ,rn~laca/kh izfrosnu izkIr ¼422@i0nz"VO;½ gksus ds i'pkr QykQy ls xSyDs lh izsl dks voxr djkrs gq, iqu% uewus dh ekax dh xbZA izkIr uewus dks fufonk esa vafdr rduhdh fof'kf"V;ksa ds vuqlkj iaft;ksa ds yackbZ pkSM+kbZ dh eki Ldsy lh dh xbZA ;g fof'kf"V;ksa ds vuq:i gh izrhr gksrs gS ftldh lEiqf"V dh tk ldrh gSaA 66@fV0 ij funs'kd egksn;k ds funs'k ds vuqikyu esa xSysDlh izsl dks lacksf/kr vkQj i= ,oa ,djkjukek dk izk:i vueksnu gsrq i=kpkj Hkkx ij jf{kr gSA d`i;kA g0@& eukst dqekj pkS/kjh 23@07@13 laa;qDr funs'kd 66@fV0 ij Hkonh; vkns'k ds vkyksd esa P.O. dh mijksDr fVIi.kh d`i;k va'k ^d* vuqeksnukFkZA g0@& 23@7 jk/kk je.k >k ^^funs'kd g0@& oUnuk izs;"kh 27@7@13 funs'kd egksn;k ds mi;qZDr vkns'k ds vkyksd esa xSyDs lh izsl dks lacksf/kr vkQj i= gLrk{kfjr fuxZr djk;sAa 27@07@13 Jh deys'k**
47. The picture thus which would emerge that samples of paper and Board furnished by the petitioner at the time of submitting tender documents on 13.05.2013 was never tested and when subsequent 40 sets of samples of registers supplied by the petitioner on the basis of telephonic conversation with the representation of the petitioner followed by letter of Mr. Chaudhary dated 16.05.2013 on its receipt on 29.05.2013 were also found to be deficient, a certificate Patna High Court CWJC No.25151 of 2013 48 was sought to be given by Mr. Chaudhary on 23.07.2013 that he had himself measured the fresh samples of registers and the size of paper and Board of the register, were found by him to be in order.
48. A question would arise at this place which samples were measured by Mr. Choudhary on 23.07.2013 inasmuch as there is no proof of the date of receiving of 587 sets of registers as had been subsequently found by the Sleuth of E.O.U. on 15.05.2014 which would be discussed by this Court a bit later at an appropriate place in this judgment. Thus, it is not difficult for this Court to envisage that the scope of the verification of the samples of six papers of tender documents dated 13.05.2013 was replaced by 40 sets of registers on 15.05.2013 and again on 03.06.2013/02.07.2013 by 587 set of registers all under the guiding spirit of Mr. Chaudhary, the Man Friday of the petitioner with the help and assistance of Mr. Jha, Joint Director and Ms. Preyashi, the Director to award the contract to the petitioner even when the samples of the petitioner were yet to be approved by the department in terms of the order of the then Minister dated 03.06.2013. Thus, the whole decision to award contract to the petitioner clearly smacks of malafide on the part of the officials of the I.C.D.S. Directorate and in more particularly of Mr. Manoj Kumar Choudhary, the Procurement Officer and Mr. Vandana Preyashi, the Director, ICDS.
Patna High Court CWJC No.25151 of 2013 49
49. It was, in fact, in this dubious manner that the petitioner was sent letter no. 3752 dated 27.7.2013 declaring it to be the lowest bidder and also inviting it to execute the agreement between 27.7.2013 to 2.8.2013 wherein it was also guardedly mentioned that the registers should be as per the specification in the N.I.T. failing which the agreement could be cancelled. This letter dated 27.7.2013 is Annexure-4 to the writ application and reads as follows:-
^^fcgkj ljdkj lesfdr cky fodkl laoxZ ICDS funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry bafnjk Hkou jke pfj= flag iFk iVuk&800001 i=kad&ICDS/25030/7-2012/3752 fnukad 27@07@13 izs"kd] eukst dqekj pkS/kjh fc iz ls izksD;ksjesuV inkf/kdkjh lsok esa] Jherh fugkfjdk xqIrk xSyDs lh izsl izk0fy0 vej Hkou] gkml ua0 539k/152 dlSyk QStkckn jksM] y[kum&226016 fo"k;& Hkkjr ljdkj ls izkIr u;s MIS iaft;ksa ds vk/kkj ij xSyDs lh izsl ls izkIr iaft;ksa dk feyku djus ,oa ,djkjukek gsrq mifLFkr gksus ds laca/k esa egk'k;] MIS iaft;ksa ds eqnz.k gsrq izdkf'kr fufonk ds vkyksd esa vkids ,atsl a h rduhdh fufonk esa lQyksijkUr foRrh; fufonk eas 1-1 ik;h x;h gSA vr% ,djkjukek gsrq vkidks vkeaf=r fd;k tkrk gSA fnukad 27-07-2013 ls 02-08-2013 rd funs'kky; esa mifLFkr gksdj ,djkjukek djuk lqfuf';r Patna High Court CWJC No.25151 of 2013 50 djsAa ,djkjukek dh frfFk ls 60 fnukaas ds vUnj eqfnzr iaft;ksa dh vkiwfrZ okafNr LFkyks ftldh lwph ,djkjukek ds le; miyC/k djk;h tk;sxh] djuk lqfuf'pr fd;k tk;A eqfnzr iaft;ka fufonk esa vafdr fof'kf"Vr;ksa ds vuq:i gksuh pkfg,A blesa deh gksus ij ,djkjukek jn~n fd;k tk ldrk gSA vuq0& ;FkksifjA fo'oklHktu g0@& 27-07-13 ¼eukst dqekj pkS/kjh½ izksD;ksjesUV inkf/kdkjh Kkikad&ICDS/25030/7-2012/ 3752 / fnukad 27@07@13a** (underlining for emphasis)
50. Pausing for a minute, this Court has not been able to find as to why and which register was measured again by Manoj Kumar Chaudhary as has been recorded in his noting dated 23.7.2013 when there was already a clear report of the Superintendent of Guljarbagh Press dated 27.06.2013, quoted above, that sample of the petitioner were not as per specification. Let it be noted that 40 sets of samples supplied by the petitioner pursuant to the letter dated 16.5.2013 of Mr. Chaudhary had not satisfied the authorities of I.C.D.S. and that is how it was directed to furnish fresh 587 sets of samples of registers. It must be kept in mind that the decision for entering into agreement could not have been taken on the basis of either 40 sets of registers or 587 sets of registers obtained subsequently after declaring the petitioner lowest bidder (L-1) on 13.05.2013, inasmuch as, the decision to award contract was to be Patna High Court CWJC No.25151 of 2013 51 taken only on the basis of the papers and Board furnished by the petitioner along with tender documents on 13.05.2013, at its pages no. 241 to 246 which in fact was never tested as per specification of N.I.T despite an objection by a competing other tenderer.
51. Be that as it may, an agreement with the petitioner was executed on 1.8.2013 in terms of the aforesaid order of the Director, I.C.D.S. dated 27.7.2013 specifying the award of contract to the petitioner for a sum of Rs. 4,21,64,400/- which reads as follows:-
CONTRACT AGREEEMNT THIS AGREEMENT made on the 01.08.2013 between Directorate of ICDS, Government of Bihar, having its office at 2nd floor Indira Bhawan, R C Singh Path, Patna (hereinafter "the ICDS") of the one part and Galaxy Press Pvt. Ltd, Amar Bhawan, House No. 539K/152, Kasaila, Faizabad Road, Lucknow (hereinafter called "the Printer") of the other part:
WHEREAS the ICDS vide Letter No. 3752 dated 27.07.2013 intimated the Printer of being successful bidder in the tender process for Printing and Distribution of News MIS Register's under the following terms and conditions of the contract:- NOW THIS AGREEEMNT WITNESSETH AS FOLLOWS:-
1. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract referred to.
2. The following documents shall be deemed to form and be read and construed as part of this Agreement, viz.:
(a) Bid/tender documents and different terms and conditioned mentioned therein;
(b) The Description of various New MIS Register's as detailed in bid/tender document;
3. In consideration of the payments to be made by the Patna High Court CWJC No.25151 of 2013 52 ICDS to the Printer as hereinafter mentioned, the Printer hereby covenants with the ICDS to provide the goods and services and to remedy defects therein in conformity in all respects with the provisions of the Contract.
4. The ICDS hereby covenants to pay the printer in consideration of the provision of the goods and services and the remedying of defects therein, the Contract Price or such other sum as may become payable under the provisions of the Contract at the times and in the manner prescribed by the Contract.
5. The printer shall print and deliver the registers to the Child Development Officers (544) Office in the requisite quantities as specified by the ICDS Directorate within 60 days of this contract. In case of failure of the Printer to get the work completed within the time limit, a penalty of 2% of total contract value for delay upto one week and 3% for the second week will be impose. If the delay is more than two weeks penalty will impose @ 5% of total contract value.
6. Brief particulars of the various New MIS Registers which shall be printed and supplied bythe Printer are given as annexure A of this agreement, including the value of the contract.
7. The total value of the contract is Rs. four crore, twenty one lacs, sixty four thousand four hundred only, which shall be paid to the Printer on successful completion of contract and fulfillment of all the terms and conditions, as specified in the bid/tender document and in this contract. IN WITNESS whereof the parties hereto have caused this Agreement to be executed in accordance with their respective laws the day and year first above written.
Signed, Sealed and Delivered by the Said ................ (For the ICDS) Sd./- 01/08/13 in the presence of SD./- 1.8.2013 Signed, Sealed and Delivered by the Said ................. (For Printers) Sd./- 01/08/2013 Patna High Court CWJC No.25151 of 2013 53 in the presence of Sd./- 1.8.2013"
(underlining for emphasis)
52. It is revealing to note here that after the agreement was executed, Mr. Choudhary had gone to claim that he had received fresh samples of registers. These fresh samples of registers as may be kept in mind were called for from the petitioner by Mr. Choudhary vide letter dated 03.06.2013 and 02.07.2013 and were not received as per the findings subsequently arrived at by the police officials of the E.O.U till execution of the agreement by the petitioner i.e. 01.08.2013. Though there is no definite proof of the date of receipt of such 587 sets of fresh samples of registers from the petitioner but the cat has come out from the bag from a buff sheet written by Mr. Choudhary, on 05.08.2013 wherein he had placed two sets of samples of registers out of those 587 sets supplied by the petitioner in compliance of the telephonic instruction of the departmental Secretary. From the file, it appears that on 03.08.2013, Mr. Rajeet Punhani, the Secretary to the Social Welfare Department, had telephonically instructed Mr. Choudhary to send two samples of registers, one for the Cell of the minister and other for the Cell of the Secretary, whereafter, the buff sheet, contained in xSj ljdkjh izs"k.k la[;k 881 dated 5.8.2013 preserved at page-445 of the file had been sent to the Secretary of the Social Welfare Department, which reads as follows:Patna High Court CWJC No.25151 of 2013 54
^^xS0l0iz0l0 881@5-8-13 ihr i= ds cnys esa Hkonh; }kjk fn;s x;s nwjHkk"kh; funsZ'k ds vkyksd esa u;s MIS iaft;ksa dk xSyDs lh izsl izk0fy0 }kjk miyD/k djk;s x;s uewuk nks izfr;ksa esa ewy izfr ds lkFk voyksdukFkZ miyC/k djk;k tk jgk gSA vuqyXud %& ;FkksDrA g0@& izksD;ksjesUV inkf/kdkjh lfpo] vkbZ-lh-Mh-,l- funs'kky;
lekt dY;k.k foHkkx** (Underlining for emphasis)
53. It appears that thereafter one of the sets of 587 fresh samples of registers was made available to the Minister whereafter the Minister in her buff-sheet contained in xSj ljdkjh izs"k.k la[;k 2138 dated 7.8.2013 had recorded that the sample received from the petitioner on being compared with the register prescribed by the Government of India were found to be not as per specification of the N.I.T. and, as such, a technical enquiry should be conducted as with regard to the samples received from the petitioner and action should be taken against the petitioner in accordance with law. The said buff-sheet of the Minister at page no. 448 of the file reads as follows:-
^^ea=h] lekt dY;k.k foHkkx fcgkj] iVuk xS0l0iz0l0 2138 ihr i= ds cnys esa fnukad 07-08-13 lfpo lekt dY;k.k foHkkx vkaxuokM+h dsUnzksa ds fy, eqfnzr djk;s x;s jftLVjksa dk Hkkjr ljdkj ls izkIr jftLVj ls feyku fd;k x;k vkSj ik;k x;k fd vkiwfrZdRrkZ ds }kjk tks uewuk fn;k x;k gS og fufonk dh fof'k"V;ksa ds vuq:i ugha gSA d`i;k miyC/k djk;s x;s uewus dh rduhdh tkap djkbZ tk; vkSj Patna High Court CWJC No.25151 of 2013 55 lacaf/kr vkiwfrZdRRkZk ds fo:n~/k fu;ekuqlkj vko';d dkjZokbZ dh tk;A g0@& 7-8-13 ¼ijohu vekuqYykg½**
54. Surprisingly after the minister had already directed on 07.08.2013 to take action against the petitioner, an admission of the petitioner also came on the next day i.e. on 8.8.2013 in the department by a letter written by the Managing Director of the petitioner who in his letter addressed to the Procurement Officer, I.C.D.S. (Mr. Manoj Kumar Chaudhary) had conveniently explained that the sample of Register-2 with regard to specification of paper to be used of 80 GSM Maplitho had not been furnished by him either at the time of submitting its offer along with the tender documents in terms of the N.I.T. on 13.5.2013 or in the sample of 40 sets of registers furnished by him pursuant to the department letter dated 16.5.2013 or even in 587 sets of sample registers submitted by him pursuant to the order dated 02.07.2013 because in the market, the color paper was only available of 44 to 56 GSM Maplitho. The further explanation of the M.D. of the firm petitioner in this respect was that if the department wanted paper for Registere-2 of more than 56 GSM Maplitho, an order had to be placed by the petitioner to the factory in advance because the factory did not accept an order of less than 10 tonnes.Patna High Court CWJC No.25151 of 2013 56
55. This letter of the petitioner preserved in the file at page-447 infact has also been brought on record by way of Annexure-
8 to the writ petition with a only change that in the letter sent to department by the petitioner there is no date whereas the one produced before this Court bears the date of 6.8.2013. The absence of any date in the letter at page 447 of the file in fact had a purpose which would be found a bit later in this judgment while discussing the findings of E.O.U. but none the less the same either without date or in the date of 06.08.2013 by itself is a pointer to the fact that the petitioner had not even furnished the sample of the paper in respect of Register-2 as per the specification of 80 GSM Maplitho at the time of submitting its tender documents or even in the samples of 40 sets or 587 sets supplied later on and had wanted to meet its fatal shortcoming only after being awarded contract by way of execution of agreement on 1.8.2013. The said letter of the Managing Director of the petitioner was however received in the Directorate of I.C.D.S. on 8.8.2013 and has been preserved at page-447 of the file is reproduced herein below:-
^^lsok esa] izksD;ksjesUV vkWfQlj] vkbZlhMh,l f}rh; ry] bfUnjk Hkou jke pfj= flag iFk iVuk&800001 fo"k;& jftLVj la[;k 2 ds laca/k esaA egksn;
vkidks voxr djkuk gS fd mDr jftLVj esa xqykch jax dk tks isij yxk;k x;k gS mldk th-,l-,e- 80 xzke gS fdUrq ekdsZV esa dyj isij 44 Patna High Court CWJC No.25151 of 2013 57 xzke ls ysdj 56 xzke rd dk gh miyC/k gksrk gSA ;fn 56 th ,l ,e ls T;knk dk dyj isij pkfg, rks QSDVzh dks vkWMj nsdj cuok;k tkrk gS fdUrq QSDVzh nl Vu ls de dk vkWMj Lohdj ugha djrh gSA gekjs }kjk miyC/k djk;s x;s jftLVj la[;k 2 esa tks xaqykch dyj dk tks isij yxk;k x;k gS og 56 xzke dk gSA tc vki bldk dk;kZn's k nsaxs rc ge QSDVzh dks 80 th ,l ,e xqykch dyj ds dkxt dk vkWMj djsxa s vkSj rHkh ge vkidks jftLVj la[;k 2 esa 80 th ,l ,e dk dyj isij ij miyC/k djk ldsaxsA vr% vkils lknj vuqjks/k gS fd gesa tYn ls tYn dk;kZn's k iznku djus dh d`ik djsAa vkidh egrh d`ik gksxhA lknj /kU;okn ! Hkonh;
g0@& iadt xqIrk eSusftx MkbZjsDVj xSyDs lh izsl izk0fy0 9839120822** (underlining for emphasis)
56. What would immediately meet the eye of any prudent person as to why the petitioner's representative, namely, Pankaj Gupta, claiming to be the Managing Director of the petitioner, had found the necessity of writing this letter, as quoted above?. There was no communication made to the petitioner or after execution of the agreement on 01.08.2013 nor the petitioner was asked to explain the reason for not supplying papers in the samples of 587 sets of registers which were already under scrutiny by way of technical enquiry on the orders of the minister dated 07.08.2013. The only obvious answer that would emerge from the circumstances is that after the two samples of registers of the lot of 587 registers were sent by Mr. Choudhary to the departmental Secretary on 05.08.2013, as explained above, in view of Patna High Court CWJC No.25151 of 2013 58 the Secretary's telephonic conversation on 03.08.2014 with Mr. Choudhary that the representative of the petitioner came to know that its samples of registers were having been no found as per prescribed specification in course of scrutiny before the minister, who had taken a decision to take action against the petitioner, this letter written was by Mr. Pankaj Gupta, the Managing Director of the petitioner to Mr. Choudhary, the Procurement Officer, which itself is a clear proof of a conspiracy because the manner in which this letter of the petitioner was received in the department and was sought to be antedated by sharing its receipt on 05.08.2013 itself will definitely bring not only Mr. Choudhary but many other officials/employees including Ms. Vandana Preyashi, the Director, ICDS, in the zone of committing criminal misconduct, an aspect which the officials of E.O.U. have gone only in a half hearted manner, as would become more clear in course of discussion on this aspect in the later part of this judgment.
57. This much is however obvious that when Mr. Manoj Kumar Chaudhary, the Procurement Officer ,who on the basis of his own measurement of samples of registers on 23.07.2013, had given a certificate that samples furnished by the petitioner was as per prescribed specification in the N.I.T., had now found himself in troubled water's on account of the aforesaid observation and direction of the Minister dated 07.08.2013 for taking action against the Patna High Court CWJC No.25151 of 2013 59 petitioner on the ground that the samples of registers were not supplied as per specification prescribed in the N.I.T. by the petitioner which stood confirmed in view of the clear admission of the petitioner in its letter that paper of Register-2 of pink colour was only of 56 GSM Maplitho
58. Thus, Mr. Choudhary, the Procurement Officer, the Man Friday of the petitioner had now placed his double meaning note in the file on 20.08.2013 as to whether the sample given by the petitioner should be firstly sent to Central Pulp Research Institute, Saharanpur or supply should be taken from the petitioner even before receipt of the report of the Central Pulp Research Institute, Saharanpur. This clever proposal of Manoj Kumar Chaudhary, a member of the Tender Committee though being in teeth of the order of Minister dated 07.08.2013 already holding samples of the petitioner to be not as per specification and also taking action against the petitioner was surprisingly approved by another member of the Committee Mr. Radha Raman Jha, the Joint Director, on the same day i.e. 20.08.2013 with an order that supply should be taken from the petitioner on a condition that the payment shall be made to the petitioner only after samples being declared to be in consonance with the prescribed specification in the N.I.T.. These facts are again recorded at Page-71 of the note-sheet which was also approved by the Patna High Court CWJC No.25151 of 2013 60 Ms Vandana Preyashi, the Director, I.C.D.S. on 21.08.2013 and the same reads as follows:-
^^448@i0 ij jf{kr vkSj lfpo egksn; dks lacksf/kr ekuuh; ea=h ds ihr&i= ,oa dk;Zokgd lgk;d dh mi;qZDr fVIi.kh voyksduh;A xSyDs lh izsl ls u;s MIS iaft;ksa ds izkIr uewus dh izfr funs'kkuqlkj ekuuh; ea=h dks"kkax esa ewy izfr ds lkFk rFkk ,d izfr lfpo dks"kkx dks miyC/k djk;h xbZ FkhA rRi'pkr~ mDr ihr&i= izkIr gq, gSA ftlesa miyC/k djk;s x, uewus dh rduhdh tkap djkus vkSj lacaf/kr vkiwfrZdRrkZ ds fo:n~/k fu;ekuqlkj vko';d dkjZokbZ djus ds funs'k gSA izkIr funs'k ds vuqikyu esa xSyDs lh izsl }kjk miyC/k djk;s x, uewus dh rduhdh tkap CPRI, Saharanpur ls djkus gsrq Hkkjr ljdkj ls izkIr iaft;ksa dh rduhdh fof'kf"V;ka lfgr mUgsa Hkstk tk ldrk gS ftlesa gksus okys O;; dh izfriwfrZ xSyDs lh izls ls gh djk;h tk;sxh tSlk fd ,rnlaca/kh fufonk dh dafMdk 7-3 ¼346@i- Vz"VO;½ esa vafdr gSa gykafd blesa iwoZ xSysDlh izsl }kjk QSDl laokn ds }kjk bl ckr dh lwpuk dk;kZy; dks miyC/k djk;h xbZ gS fd uewuk iath la02 esa yxs xqykch jax dk dkxt 56 xzke dk gS vkSj mUgasa dk;kZn's k feyus ds ckn os QSDVzh dks 80 xzke ds dkxt vkiwfrZ dk vkns'k nsaxs ¼447@i- nz"VO;½A bl fcUnq ij Hkh vkns'k izkir djuk visf{kr gksxk fd CPRI, Saharanpur dks uewus dh iaft;ka rduhdh tkap gsrq Hkstus ,oa ,rn laca/kh izfrosnu izkIr gksus ds iwoZ ;fn xSysDlh izsl iaft;ksa dh vkiwfrZ djrk gS rks vkiwfrZ fy;k tk;s vFkok ughaA mi;qZDr fcUnqvksa ij funs'kd egksn;k dk d`i;k vkns'k izkIr djuk pkgsx a sA g0@& eukst dqekj pkS/kjh 20@08@13 la;qDr funs'kd mijksDr fVIi.kh&d`i;k uewus dh rduhdh tkap gksus dh vof/k esa iaft;kas dh vkiwfrZ bl 'krZ ds lkFk izkIr dh tk ldrh gS fd rduhdh :i ls lgh ik;s tkus ij gh Hkqxrku fopkj.kh; gksxk g0@& 20@8@ jk/kk je.k >k funs'kd g0@& oUnuk izs;"kh 21@8@13 Patna High Court CWJC No.25151 of 2013 61
59. It was thus in questionable manner that after the decks were cleared by Mr. Chaudhary the Procurement Officer, Mr. Jha, the Joint Director and Ms. Preyasi the Director for obtaining supply from the petitioner despite its samples still not approved and on 27.8.2013, a draft was placed for sending the samples of the petitioner for its technical test to Central Pulp Research Institute, Saharanpur and simultaneously also for issuing a work order and such note given by the Procurement Officer Manoj Kumar Chaudhary dated 27.8.2013 was also approved by the Radha Raman Jha, the Joint Director on 27.8.2013 and the Director Ms. Vandana Preyashi on 2.9.2013. Pursuant thereto, a letter was sent by Manoj Kumar Chaudhary, Procurement Officer to the petitioner vide letter dated 2.9.2013 informing that there was no need for the petitioner to insist for issuance of a work order by the department because the agreement dated 1.8.2013 had mentioned the places where the supply of register was to be made by the petitioner and that its payment could be made only after technical verification of the samples.
60. It has to be kept in mind that on 2.9.2013 itself, Ms. Vandana Preyashi, the Director, I.C.D.S. had also sought to send a letter along with samples of registers received from the petitioner for seeking a report from the Central Pulp and Research Institute, Saharanpur as with regard to the quality of the paper of the Register Patna High Court CWJC No.25151 of 2013 62 and its being according to the specification of the Government of India dated 28.3.2012 and the consequential N.I.T.
61. Here also a bungling appears to have been sought to be committed inasmuch as it has been found by the sleuth of E.O.U. in course of investigation from the officials of the CPRI , Saharanpur that such samples along with letter of the Director, I.C.D.S. dated 02.09.2013 were received by post on 12.09.2013 and had read as follows:
Government of Bihar Integrated Child Develpment Services (ICDS) Directorate (Social Welfare Department) 2nd Floor, Indira Bhawan, R.C.Singh Road, Patna-800001, Bihar Phon+91-612-2520960, Fax-+91-612-2535900 website .www.icdsbih.gov.in Letter No.:- ICDS/25030/7-2012/4409 dated 02/09/2013 From, Bandana Preyashi, IAS Directorate, ICDS To, Director, Central Pulp & Paper Research Institute Himmat Nagar, Saharanpur Uttar Pradesh Sub.: Technical testing of New MIS Register Sir, This is in reference with the above mentioned subject, it is requested to test the quality of the paper of teh New MIS Register accrding to the technical, specifications which is enclose with the letter n.-4-2/2004-ME(Vol.-iv) dated 28 March 2012 of Joint Secreary to teh Govt. of India said letter is enclosed herewith this letter.
The report of the test may kindly be made available as soon as possible.
The cost of undertaking the test may also kidnly be Patna High Court CWJC No.25151 of 2013 63 informed so taht payment could be made at the earliest.
Thanking you
Encl. : As above Your's Sincerely
Sd/-
(Bandana Preyashi)
Director, ICDS
62. As would be evident from the contents of the aforementioned letter, the tender documents submitted by the petitioner in form of six pages of papers and boards which were the key documents to verify the supply of subsequent registers were not furnished to the CPRI, Saharanpur inasmuch as only the subsequent samples of registers of the petitioner's were sent to Saharanpur. What were those registers has to be also kept in mind. As noted above, the petitioner had submitted 40 sets of registers in response to the self serving letter of Mr. Manoj Kumar Choudhary, the Procurement Officer dated 15.05.2013 or 587 sets of registers after execution of agreement on 01.08.2013. The samples of 40 sets of registers were found to be deficient in the report of the Superintendent of the Guljarbagh Government Press dated 27.06.2013 and the Director herself in her note dated 29.06.2013 had recorded that amongst such sets of registers, register no. 2 was not supplied. Thus, as on 02.09.2013, there was no other register no. 2, save and except, which could have been supplied by the petitioner in the set of either 40 samples of registers received on 29.05.2013 or 587 set of sample registers as produced by Mr. Chaudhary before the Secretary on Patna High Court CWJC No.25151 of 2013 64 05.08.2013.
63. The recording made by the officials of the CPRI, Saharanpur on the other hand will go to show that only 12 documents including eleven registers and calendars were received on 12.09.2013 and were given code number after more than three months on 19.12.2013. Thus, in between 12.09.2013 to 19.12.2013 the specimen register sent by the Director, I.C.D.S. had not been put to test at Saharanpur. It is here that this Court would find further revealing materials in form of letter of the petitioner dated 05.09.2013 which would spill the beans in no uncertain terms that after the specimen registers were already sent by the Director, I.C.D.S. on 02.09.2013 by post, the petitioner on 5.09.2013 had claimed that it had got fresh register prepared after obtaining the papers for register-2 and that was being submitted for its test by any agency.
64. It thus becomes more than clear that while the report from the C.P.R.I., Saharanpur was still awaited, the petitioner on coming to know of the order of Minister dated 07.08.2013 for taking action against it on its own had now written a letter on 5.9.2013 in which it was mentioned that earlier the paper submitted by the petitioner by way of sample of Register-2 was only 56 GSM but now paper of 80 GSM Maplitho was obtained from the mill and the same could be sent for any sort of test. This letter dated 5.9.2013 being very Patna High Court CWJC No.25151 of 2013 65 relevant is also reproduced herein below:-
lsok esa] izksD;ksjesUV vkWfQlj] vkbZlhMh,l f}rh; ry] bafnjk Hkou] jke pfj= flag iFk] iVuk 800001 fo"k;& jftLVj la[;k 2 o lIykbZ ds lEcU/k esaA egksn;] gekjs }kjk fnukad 06-08-13 dks ,d i= vkidks fn;k x;k Fkk fd jftLVj la[;k 2 esa tks xqykch dkxt yxk;k x;k gS ;g 56 xzke dk gSA vc ;g dkxt gekjs }kjk fey ls vkids ekud ds vuqlkj 80 xzke dk cuok fy;k x;k gS vkSj geus vkids vkWfQl esa uewuk fHktok fn;k gSa vr% vki tks Hkh tkap djkuk pkgrs gSa og djk ysaA gekjk bdjkjukek fnukad 01-0-2013 dks gks pqdk gS fdUrqw vHkh rd brus fnu chrus ds ckn Hkh gesa dk;kZn's k ugha fn;k x;k gSA gekjs ikl 50 izfr'kr jftLV ds lsV rS;kj gks pqd gSa ftls gesa fofHkUu CykWdksa esa Hkstuk gS blds fy, geas vkils dk;kZns'k dh vko';drk gS D;ksfa d m-iz- vkSj fcgkj lhek ij fcuk d;kZn's k ds fcgkj lsYl VSDl eky dh bUVzh ugha djus nsaxs blfy, vfoyEo gesa dk;kZns'k nsus dh d`ik djsa ftlls ge bl dk;Z dks vkids le;kuqlkj iwjk dj ldsAa vkidh egrh d`ik gksxhA lknj /kU;oknA g0@& fugkfjdk xqIrk Mk;jsDVj xSyDs lh izsl izk-fy-
fnukad 05-09-13 9839120822** (underlining for emphasis)
65. From the underlined portion of the letter of the petitioner dated 05.09.2013, two things become absolutely clear. Firstly, at no point of time, the petitioner had fulfilled the terms and conditions of the N.I.T. inasmuch as it had gone to reaffirm its admission made earlier before the Director on 29.05.2013 and again its letter received Patna High Court CWJC No.25151 of 2013 66 in the department on 08.08.2013 that the paper furnished by its for register no. 2 was only of 56 GSM whether it be at the time of submission of tender documents on 13.05.2013 or subsequently on two occasions while supplying 40 sets of samples on 29.05.2013 or 587 sets of the sample registers on 05.08.2013. Secondly, such condition of fulfillment of the N.I.T. was made by the petitioner only on or around 05.09.2013 by arranging the papers of 80 GSM which had been sent in shape of fresh samples.
66. Pausing for a minute, this Court would like to find answer as to why after this admission, on the part of the petitioner, action were not taken against it, as was already directed by the minister in her order dated 07.08.2013 inasmuch as nothing remains for speculation that till 05.09.2013, the petitioner had not fulfilled the terms and conditions of the N.I.T. by supplying the samples though such samples were to be supplied on the date of submission of the tender documents as per Clause 5.8 of the General Bid and Eligibility Conditions as quoted in paragraph no. 7 of this judgment. There is in fact no answer nor can be found at least from the records of the case, save and except, that a corrupt bureaucracy of ICDS Directorate was hell bent to help the petitioner despite the vigilant and firm stand of the minister.Patna High Court CWJC No.25151 of 2013 67
67. In the records of the department, there is another letter of the petitioner dated 23.9.2013, wherein a justification by the petitioner again on its own was now being sought to be offered that though it had supplied the sample of Register-2 of paper having 56 GSM Maplitho as against the prescribed specified of 80 GSM Maplitho but then after execution of the agreement on 1.8.2013, an order was placed by it to the mill for supply of paper of 80 GSM Maplitho and on its becoming being available the fresh samples were supplied on 5.9.2013. The petitioner being aware of its deficiency however had raised that despite such supply fresh samples meeting the requirement of the N.I.T. , it was being subjected to harassment contrary to the terms and conditions of the N.I.T. as with regard to supply of samples and, as such, the work order should be issued. This letter of the petitioner dated 23.9.2013 is again a clear admission on the part of the petitioner that till 05.09.2013, that sample, at least in respect of Register-2, was not as per the specified technical specification of 80 GSM Maplitho and was of lesser specification anywhere between 40 to 56 GSM Maplitho. This fact also becomes absolutely clear from the aforesaid letter of the petitioner dated 23.09.2013 which reads as follows:-
^^fnukad % 23-09-13 lsok eas funs'kd vkbZlhMh,l f}rh; ry] bafnjk Hkou] jke pfj= flag iFk] iVuk&800 001 Patna High Court CWJC No.25151 of 2013 68 fo"k;& ,e-vkbZ-,l- jftLVj la[;k 1 ls 12 ds lEcU/k esaA egkns;k] 1- vkidks voxr djkuk gS fd geus vkidks jftLVj la[;k 1 ls 12 dk lSEiy miyC/k djk fn;k Fkk vkSj jftLVj la[;k 2 ds lEcU/k esa geus vkidks vius i= fnukad 06-08-2013 es ;g crk;k fd jftLVj la[;k 2 esa tks xqykch jax dk dkxt yxk;k x;k gS og 56 xzke dk gs D;ksfa d isij ekdsZV esa dyj fizfVax dk lcls mPpre th-,l-,e- fey }kjk 56 xzke rd dk gh cuk;k tkrk gS vr% geus jftLVj la[;k 2 ds lSEiy esa 56 xzke dk gh dkxt bLrseky fd;k gSa ;fn blls mij dk th-,l-,e- vkidks pkfg, rks ;g dEiuh dks vkMZj nsdj cuok;k tkrk gS vkSj dkxt fey U;wure 10 Vu dk vkMZj gh Lohdkjrh gS o bUgsa cukus esa de ls de 20 ls 30 fnukssa dk le; ysrh gSA ¼izk;% dyj fizfVax jlhn cqdksa esa MqfIydsV vkSj fVzIyhdsV dkWih esa bLrseky dh tkrh gS vkSj ;g ekdsZV esa 40 ls 56 t-,l-,e- dh gh miyC/k gksrh gS rkfd dkcZu dkWih ds le; ml ij lgh ls fy[kkoV Ni lds] D;ksfa d eksVs isij ij dkcZu lgh ls dke ugha djrk gS½A 2- gesa fnukad 27-07-2013 dks i= }kjk ,djkjukek djus ds fy, vkeaf=r fd;k x;k] ftlesa fnukad 27-07-2013 ls 02-08-2013 ds chp ,djkjukek djus dk le; fn;k x;k FkkA vr% geus 01-08-2013 dks ;g ,djkjukek dj fy;kA ,djkjukek djus ds i'pkr geus dkxt fey dks 80 th-,l-,e- xqykch dkxt dks vkMZj dj fn;kA rFkk 80 th-,l-,e- dk isij miyC/k gksus ds i'pkr iqu% vkids LisflfQds'ku ds vuqlkj 80 th-,l-,e- ds dkxt dk bLrseky djrs gq, jftLVj dk lSEiy vkids dk;kZy; esa miyC/k djk fn;k FkkA ftlds lEcU/k esa gekjs }kjk vkidks fnukad 05-09-
2013 dks i= }kjk lwfpr fd;k x;kA 3- vkids Vs.Mj ds LisflfQds'ku esa jftLVj la[;k 2 esa 60 yhQ fn;k gqvk gS] fdUrq Hkkjr ljdkj ls tks lSEiy vk;k Fkk og 75 yhQ dk FkkA vr% geus vkids Vs.Mj ds LisflfQds'ku ds vuqlkj gh jftLVj la[;k 2 dk lSEiy miyC/k djk;k gSA vkids Vs.Mj ds LisflfQds'ku dh izfrfyfi ge ;gka layXu dj jgs gSA mDr Vs.Mj esa ;g dgha ugha fy[kk gS fd vki igys 12 jftLVj lsV ds 100 lSEiy ekxsaxsA rRi'pkr 600 lSEiy ekxsaxsA fQj Hkh geus vkids vkns'kkuqlkj vkidks lSEiy miyC/k djk fn;k gSA gekjs ikl jftLVj la[;k 1 ls 12 rd vkids LisflfQds'ku ds vuqlkj o mPp xq.koRrk dk 50 izfr'kr eky rS;kj j[kk gS vr% gekjk vkils fuosnu gS fd vofoyEc eky dh lIykbZ djus dk vkns'k djsa rkfd ge le; jgrs bl dk;Z dks iwjk dj ldsAa lknj /kU;oknA Hkonh;
g0@& fugkfjdk xqIrk Mk;jsDVj xSyDs lh izsl izk- fy-
9839220822** (underlining for emphasis) Patna High Court CWJC No.25151 of 2013 69
68. Upon receipt of this letter of the petitioner dated 23.9.2013, Mr. Choudhary, the Procurement Officer, the Man Friday of the petitioner had again lost no time in highlighting the terms and conditions of the N.I.T. and had sought immediate approval for taking further steps in his noting in the file dated 30.9.2013 with regard to procuring supply of register from the petitioner but by this time it appears that the new Director replacing Ms. Vandana Preyashi, had come into office, who had clearly pointed out to the order of the Minister in the buff-sheet dated 7.8.2013 for taking action against the petitioner and, as such, the Secretary to the Department had placed the matter before the Minister on 23.10.2013 on which the Minister had given her detailed notes on 06.11.2013 exposing the whole racket in the award of contract to the petitioner despite its not fulfilling the prescribed terms and conditions of the N.I.T. and its sample in particular being not in accordance with the prescribed technical specification in N.I.T. She accordingly in her order dated 06.11.2013 had directed for cancellation of the agreement as also blacklisting the petitioner. This also becomes very clear from the noting at page no.76 to 80 of the note-sheet of the file, which reads as follows:-
^^ikj i`"B fuEuka'k ij Hkonh; funs'kA u;s MIS iaft;ksa ds eqnz.k ds fy, vuqeksfnr vkSj izdkf'kr fufonk ¼365&338@i0 ,oa ,rnlaca/kh fd;s x, ,djkjukek dk ¼444&443@i0½ d`i;k voyksdu fd;k tk;sA oLRqr% fufonk esa dgha Hkh ;g vafdr ugha gS fd vkiwfrZ ysus ds iwoZ gesa 12 jftLVjksa ds lsV dk uewuk pkfg,A gkykafd mPpLrjh; funs'k ds vuqikyu esa L1 ,tsalh ls uewuk izkIr fd;k x;k gS rFkk mDr Lrj ls blds voyksdu ,oa ,rn laca/kh Patna High Court CWJC No.25151 of 2013 70 izkIr ihr&i= ¼448@i0 nz"VO;½ ds vuqikyu esa blds rduhdh tkap gsrq bls CPRI, Saharanpur Hkst fn;k x;k gSA gkykafd CPRI ls bl laca/k esa i= Hkh izkIr gq, gSA vkSj muds }kjk blds fy, izksQkWek buHkkbZl layXu dj blds 'kqYd dh eksx dh x;h gSA ¼467&466@i0 Vz"VO;½ gykafd fufonk dh dafMdk 7-3 ¼346@i0 Vz"VO;½ esa vafdr gS bl rduhdh tkap esa gksus okyk O;; fizaVj ds }kjk gh ogu fd;k tk;sxkA vc pqdh uewus dks rduhdh tkap gsrq Specification lfgr CPRI dks Hkstk tk pqdk gS vkSj blds fy, 'kqYd dh ekax izksQWkekZ buHkkbZl ls dh xbZ gS] vr% bls Hkqwxrku gsrq Glaxy Printer dks i= fy[kk tk ldrk gSA lkFk gh pqdh vkiwfrZ dh le; lhek ,djkjukek dh frfFk ls 60 fnukas dh j[kh xbZ Fkh vkSj ;g vof/k iw.kZ gksus okyh gS tcfd Glaxy Press ds }kjk vius i= esa dgk x;k gS fd mlds 50 izfr'kr jftLVj Nidj rS;kj gS ftls og vkiwfrZ djuk pkgrs gSA vr% vxzsRrj dkjZokbZ gsrq fu.kZ;kFkZ lafpdk miLFkkfir d`i;kA g0@& eukst dqekj pkS/kjh 30@09@13 izksD;ksjesaV inkf/kdkjh vkbZ-lh-Mh-,l- funs'kky;
funs'kd vkbZ-lh-Mh-,l-
d`0 lafpdk ds i`0 448@i0 Hkkx ij layXu foHkkxh; eU=h egksn;k dk ihr i= dk voyksdu djuk pkgsx a sA lafpdk ds fV0 i`0 71 ds fuEu ry ij vafdr vkns'k dk Hkh voyksdu fd;k tk ldrk gSA va'k& ^d* vkns'kkFkZA lfpo g0@& 4@10@13 funs'kd g foe'kZ g0@& jkftr iqugkuh lfpo foe'kZ gqvk i`0 448@i0 ij Hkonh; ds ihr i= ds vkyksd esa mi;qZDr fVIi.kh esa fLFkr Li"V dj nh xbS gSA 55@i0 ij Hkonh; ds funs'k dk vuqikyu djus gsrq funs'k fn;k tk ldrk gSA g0@& g0@& 09@x@13 ea=h 23@x@13 Jh deys'k jkftr iqugkuh lfpo Patna High Court CWJC No.25151 of 2013 71 esjs }kjk mi;qZDr fVIi.kh ,oa Glacy Press Pvt. Ltd. ds }kjk Hksts i= i`0&464@i0 dk voyksdu fd;kA i`0 365&338@i0 }kjk izdkf'kr fufonk ,oa mlesa vafdr fof'kf"V;ksa ds vuq:i fufonk dh ekax dh xbz Fkh ftlds vuqikyu esa vU; eqnzdksa ds lkFk Galaxy Press ds }kjk Hkh fufonk nh xbZA fnukad 13-05- 13 dks Technical Evaluation lfefr ds }kjk izkIr lHkh fufonkrkvksa dk Technical Evaluation fd;k x;kA Evaluation ds nkSjku lacaf/kr eqnzdksa ds }kjk miyc/k djk;s x;s dkxt ,oa cksMZ ds uequksa dk eqvkbZuk fd;k x;kA pwqfd Galaxy Press ds }kjk dh xbZ fufonk nj vU; fufonkrkvksa ls de Fkh blfy, budh fufonk dks Lohd`fr nh xbZA fnukad 27-07-13 dks dks izksD;ksjesUV inkf/kdkjh ds }kjk Hksts x;s i= ls ;g Li"V dj fn;k x;k Fkk fd eqfnzr iaft;ksa fufonk eas vafdr fof'kf"V;ksa ds vuq:i gksuh pkfg,A blesa deh gksus ij ,djkjukek jn~n dj fn;k tk;sxkA eSus ihr i= la0&144 fnukad 03-06-13 ds }kjk foHkkxh; lfpo dks funs'k fn;k Fkk fd fufonk eas vafdr fof'k"V rFkk U;qure fufonknkrk }kjk fufonk ds lkFk fn;s x;s uewuk ds feyku dj fu/kkZfjr fof'k"V ds vuq:i gksus dh tkap dj ysus ds ckn gh ftyksa esa vkiwfrZ dh tk;A fufonknkrk ds }kjk eqfnzr djk;s x;s jftLVjksa dk Hkkjr ljdkj ls izkIr jftLVjksa ls feyku fd;k x;kA feyku ds le; izksD;ksjesaUV inkf/kdkjh Hkh mifLFkr FksA feyku ds dze eas ik;k x;k fd vkiwfrZdRrkZ }kjk tks uewuk fn;k x;k gS mldk otu de gS rFkk miyc/k djk;k x;k jftLVj fufonk dh fof'k"V;ksa vkSj miyC/k djk;s x;s uewus ds vuq:i ugha gSA blfy, eSus ihr i= la-0&2138 fnukad 07-08-13 ds }kjk miyC/k djk;s x;s uewus dh rduhdh tkap djkus rFkk vkiwfrZ dRrkZ ds fo:n~/k vko';d dkjZokbZ djus gsrq vkns'k fn;ka vkiwfrZ dRrkZ dks tc bl ckr dk irk pyk fd buds }kjk fd;k x;k Fraud izdk'k esa vk x;k gS rks fufonknkrk ds }kjk vius vkidks cpkus ds mn~n's ;
ls bl vk'k dk ,d i= laHkor% dk;kZy; ds lgk;d ds esy ls tek djk;k x;k ¼i`0 447@i0½A ftlesa ;g crk;k x;k fd jftLCVj la0 2 esa tks xqykch dyj dk isij yxk;k x;k gS og 56 xzke dk gS lkFk gh ;g Hkh fy[kk x;k gS fd ;fn 56 th0,l0,e0 ls T;knk dyj isij pkfg, rks QSDVzh ks vkWMj nsdj cuok;k tkrk gSa fufonk esa ntZ fof'k"Vk ds vuqlkj bUgsa 80 th0lh0,e0 dk isij nsuk gSa buds }kjk blh ds vuqlkj fufonk ds lkFk isij dk uewuk fn;k x;k rFkk ,djkjukek Hkh fd;k x;kA fdlh Hkh LVst ij buds }kjk ;g ugha crk;k x;k fd buds }kjk ntZ fof'k"Vk ls fHkUu fn;k x;k gSa izkIr bl i= esa Hkstus dh dksbZ frfFk vafdr ugha gSA funs'kd ds }kjk bldk voyksdu 08-08-12 dks fd;k x;k gS tcfd bldh Mk;jh 05-08-13 dks ntZ fn[kk;k x;k gSA dk;kZy; ds lgk;d ds }kjk ntZ Mk;jh dh frfFk esa Manipulation fd;k x;k izrhr gksrk gSA pwfa d fufonknkrk ds }kjk i`0&458@i0 ,oa i`0&464@i0 fn;s x;s bl i= esa mijksDr i= dh frfFk 06-08-13 crk;h xbZA dk;kZy; lgk;d ds }kjk bl i= dh Mk;jh fnukad 05-08-13 dks dh xbS Patna High Court CWJC No.25151 of 2013 72 gS rFkk Mk;jh la0&3773 ntZ fd;k x;k gSA tcfd i`0&448@i0 ij esjs }kjk Hksts x;s i= dh Mk;jh 12-08-13 dks dh xbS gS rFkk Mk;jh la0&3587 vafdr fd;k x;k gSA bl izdkj ;g Li"V gks tkrk gS dk;kZy; esa lgk;d ds Lrj ls Mk;jh la0 ,oa frfFk esa xM+cM+h dh xbZ gSa lkFk gh xSyDs lh izsl ds }kjk jftLVj dk lSEiy tek djus laca/kh pkyku ;k i= lafpdk esa miyC/k ugha gS ftlls ;g tkudkjh fey lds fd okLro esa buds }kjk jftLVj dk uewuk dc tek fd;k x;k gSA lafpdk ds i`0&57@fV0 ds va'k ^^d* dh fVIi.kh ls ;g irk pyrk gS fd jftLVj dk uewuk 03-06-13 dks dk;kZy; esa tek fd;k tk pqdk FkkA bl izdkj ;g Li"V gksrk gS fd ;g i= esjs }kjk fnukad 07- 08-13 dks uewus dh tkap cs ckn dk;kZy; esa tek fd;k x;k gSaA vr% Li"V gS fd fufonknkrk ds }kjk fufonk dh 'krZ la0&3@4 esa vafdr izko/kku dk mYya?ku dj Fraud fd;k x;k gSA buds }kjk fn;s x;s lHkh i=kasa esa bl rF; dks Lohdkj fd;k x;k gS fd jftLVj la0&02 esa tks xqykch dkxt yxk;k x;k gS og 56 xkzke dk gSA tcfd fufonk ds fof'k"Vrk vkSj miyC/k djk;s x;s uewus ds vuqlkj bUgsa 80 xzke th0lh0,e0 dk isij nsuk pkfg, FkkA bl izdkj bUgksua s us fufonk dh 'krksZa ,oa fd;s x;s ,djkjukeksa dk mYya?ku fd;k x;k gSA lkFk gh izksD;ksjesuV inkf/kdkjh ds }kjk fn;s x;s vkns'k dh vogsyuk dh xbZ gSA ,slh fLFkfr esa buds ,djkjukek dks jn~n djrs gq, bl QeZ dks dkyh lwph esa vafdr djus dk vkns'k fuxZr fd;k tk;A g0@* ¼ijohu vekuqYykg½ g0@& 6@11 g0@& 7@11@13 g0@& 11@11@13 Jh deys'k** (underlining for emphasis)
69. The aforesaid detailed note of the Minister, therefore, had shown two things. Firstly, manipulation in the records of the department in order to favour the petitioner and secondly an admission on the part of the petitioner that it had not given the sample of the paper as per prescribed specification given in the N.I.T. and, therefore, the agreement of the petitioner being vitiated by fraud was fit to be cancelled.
Patna High Court CWJC No.25151 of 2013 73
70. This order of the Minister however was surprisingly sought to be opposed tooth and nail by Mr. Manoj Kumar Chaudhary, the Procurement Officer as would be borne out from his note in the file dated 13.11.2013 which however was not agreed to by the new Director of the Department as can be found from page no. 82 to 84 of the note-sheet which reads as follows:-
^^izksD;ksjesaV inkf/kdkjh vkbZ-Lh-Mh-,l- funs'kky;
ikj i`"B ls dk;kZokgd lgk;d dh fVIi.kh voyksduh; d`i;kA 78&80@fV- ij ekuuh; ea=h ds vkns'k ds vuqikyu esa oLrqfLFkfr esa lfpo egksn; dk voxr djksu ds funs'k funs'kd egksn;k }kjk fn;s x;s gSA oLrqr% Hkkjr ljdkj ds fn'kk&funs'kksa ds vkyksd esa u;s ,e-vkbZ-,l- iaft;ksa ds eqnz.k gsrq fufonk izdkf'kr dh xbZ Fkh ftles 6 fufonk izkIr gq, Fks ftudk rduhdh o foRrh; ewY;kadu ds i'pkr fLFkfr bl izdkj cuh& L1& xSyDs lh izsl] y[kum L2& iVuk vkWQlsV] iVuk L3& iwtk fizuVsd izk0fy0 iVuk L4& us'kuy fizUVlZ] jkaph ewY;kadu ds i'pkr~ lafpdk mPp Lrjh; vuqeksnu gsrqw miLFkkfir dh xbZA vuqeksnu ds dze esa L1 Agency vFkkZr xSysDlh izsl ls ,e-vkbZ-,l- iaft;ksa ds 40 lsV uewus ds rkSj ij izkIr djus ds funs'k ds vuqikyu esa bl gsrq xSyDs lh izsl dks fy[kk x;kA lkFk gh mUgsa Print ready CD ,oa Hkkjr ljdkj ls izkIr uewus Hkh miyc/k djk;s x,A dkykUrj esa xSyDs lh izsl }kjk iaft;ksa ds uewus miyc/k djk;s x;s ftldh izkjafHkd tkap jktdh; izsl] xqytkjckx ls djkus ij ik;k x;k fd Hkkjr ljdkj ls izkIr uewus ds vuq:i gS ysfdu lkbZt uewuk ds vuq:i ugha gSA jktdh; izsl] xqytkjckx ls izkIr izfrosnu ds vkyksd esa ik;h x;h dfe;ka nwj djrs gq, iqu% iaft;ksa ds uewus miyc/k djkus gsrq xSyDs lh izsl dks fy[kk x;k] ¼423 i0@nz"VO;½A xSyDs lh izsl }kjk lwfpr fd;k x;k fd Hkkjr ljdkj ds uewuk iath la[;k 2 esa tks jaxhu dkxt yxk gS og 80 th-,l-,e- dk gS vkSj ;g cktkj esa miyC/k ugha gS tc vki geas dk;kZns'k nsaxs rks ge Factory dks order nsdj eaxok ysaxsA bl chp funs'kkuqlkj xSyDs lh izsl ls cSad xkjaVh ysdj ,djkjukek dj fy;k x;k vkSj blesa mUgas iaft;ksa dh vkiwfrZ gsrq 60 fnukas dk le; fn;k x;kA iqu% xSysDlh izsl ds }kjk la'kksf/kr uewus dh vkiwfrZ dh xbZ ftldh nks izfr;ka lfpo egksn; dks ,d Patna High Court CWJC No.25151 of 2013 74 Loa; ds vkSj nwljk ekuuh; ea=h ds voyksdu gsrq Hkstu nh xbZA ekuuh; ea=h ds ;gka xSyDs lh izsl }kjk miyC/k djk;s x, uewus iath la[;k 1 ,oa 2 dk otu fd;k x;kA mDr le; esa Hkh ugha FkkA ftlesa ith la[;k 1 dk otu Hkkjr ljdkj ds uewus ds vuq:i ik;k x;k tcfd iath la[;k 2 dk otu Hkkjr ljdkj ds uewus ¼800 xzke yxHkx½ ls 200 xzke de vFkkZr 600 xzke yxHkx ik;k x;kA gykafd Hkkjr ljdkj ds uewuk iath la[;k 2 esa 75 ist gS tcfd xSysDlh izsl ds iath esa 60 ist gS vkSj bldk dkj.k iaft;ksa dh fof'kf"V;ka gS ftlesa iath la[;k 2 esa i`"Bksa dh la[;k 60 gS vkSj ;g fof'kf"V;ka Hkkjr ljdkj ls gh izkIr gqbZ Fkh ftUgas fufonk ds lkFk izdkf'kr djk;k x;k FkkA ekuuh; ea=h }kjk mDr nks iaft;ksa ds voyksduksijkar blds rduhdh tkap djkus ds vkns'k fn;s x;s ftlds vuqikyu esa xSyDs lh izal ls izkIr iaft;ksa ds uewus dk ,d lsV fof'kf"V;ksa dh izfr ds lkFk lh-ih-vkj-vkbZ- lgkjuiqj dks Hkst fn;k x;kA lh-ih-vkj-vkbZ- lgkjuiqj ds }kjk bldh tkap gsrw Invoice Hkstdj tkap 'kqYd dh ekax dh xbZ gS ftlds Hkqzxrku gsrq lafpdk esa fVIi.kh vafdr dh xbS gS] ¼76@fV0 nz"VO;½A pwqdh vcrd lh-ih-vkj-vkbZ- lgkjuiqj dks tkap 'kqYd dk Hkqxrku ugha fd;k x;k gS] vr% ,rn~laca/kh izfrosnu vizkIr gSA ;g Hkh mYys[kuh; gS fd ,e-vkbZ-,l- iaft;ksa ds eqnz.k gsrq izdkf'kr fufonk esa ;g 'krZ vafdr ugha Fkk fd igys uewus izkIr fd;s tk;sx a sA oRrZeku ifjfLFkfr esa tcfd Mkyj ds eqdkcys :i;s ds ewY; esa gkzl gqvk gS] u;s fljs ls fufonk djkus ij jktdh; dks"k ij vfrfjDr O;; dh laHkkouk gksxhA vr% mi;qZDr ds vkyksd esa ekuuh; ea=h ds vkns'k ds vuqikyu gsrq lafpdk miLFkkfirA g0@& 13@11@13 izksD;ksjesaV inkf/kdkjh vkbZ-lh-Mh-lh- funs'kky;
funs'kd vkbZ-lh-Mh-lh foe'kZ djsA g0@& 13@11@13 (underlining for emphasis)
71. As a matter of fact, from perusal of the file, it becomes clear that the new Director, I.C.D.S., who had replaced Ms. Vandana Preyasi, the earlier Director, I.C.D.S., in course of discussion had Patna High Court CWJC No.25151 of 2013 75 found substance in the observation made by the Minister in her detailed note dated 06.11.2013 that there was a definite attempt of making interpolation in the records by way of anti-dating the communication of the Managing Director of the petitioner company in his undated letter received in the department on 8.8.2013 which was later on claimed by him to have been sent on 6.8.2013 and yet diarized in the department on 5.8.2013.
72. Considering all these aspects, the Director, I.C.D.S., vide her order dated 14.11.2013, had constituted an enquiry through two Assistant Directors, namely, Mr. Rajaya Nand Vardiyar and Mr. Akhtar Wasif, vide his letter no. 6146 dated 14.11.2013. The Two Men Enquiry Committee had submitted its enquiry report on 28.11.2013 which again clearly goes to show the dubious role played by Manoj Kumar Chaudhary, the Procurement Officer who was also a member of the Tender Committee for award of contract.
73. The report of the Two Assistant Directors dated 28.11.2013 also goes to show that the Assistants of the Department, under the order and direction given by Sri Manoj Kumar Chaudhary, the Procurement Officer, had sought to ante-date the letter of the Managing Director of the firm petitioner received in the department on 08.08.2013. The Enquiry Committee in fact had held that the entry of the letter of the Managing Director of the petitioner in the Patna High Court CWJC No.25151 of 2013 76 Department in the date of 5.8.2013 was back dated by way of tampering in the receipt register. It had also gone to trace the reason for making such back-dating with reference to the Minister's observation made in her buff-sheet on 7.8.2013 when Mr. Manoj Kumar Chaudhary, the Procurement Officer, was also present at the time of examination of the samples in the chamber of the Minister.
74. The two Men Enquiry Committee, in its report dated 28.11.2013, therefore, took a view that somehow when the petitioner got information of this observation made by the Minister in course of of checking of the samples on 06.08.2013 and 07.08.2013 as with regard they were not as per specification of N.I.T., and, that is how, the ante-dating was done for concealing the fraud committed at the instance of Mr. Manoj Kumar Choudhary, the Procurement Officer. The said enquiry report of the Two Assistant Directors dated 28.11.2013, being very relevant, is quoted herein below:-
^^fcgkj ljdkj lesfdr cky fodkl lsok,a ¼ICDS½ funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry] bafnk Hkou] jke pfj= flag iFk iVuk&800001 tkap izfrosnu funs'kd] vkbZ-lh-Mh-,l- ds i=kad 6146 fnukad 14-11-2013 esa fufgr vkns'k ds vkyksd esa izkIr i=ksa dh iath ds i`"B 196 ij izkfIr dzekad la[;k 3773 ,oa i`"B la[;k 197 ds izkfIr dzekad 3713A esa dh xbz izfof"V dh tkap dh xbZA bl laca/k esa loZ izFke Jherh ekschuk [kkrqu] lgk;d ls iwNrkN dh xbZaA Jherh ekschuk us crk;k fd mDr vkxr iath ekg flrEcj 2013 esa lekIr gks tkus ds i'pkr og ubZ iath esa izfof"V dk;Z djrh Fkh vr% mUgsa irk ugha gS fd fdlds }kjk iz'uxr i= dk bUnzkt mDr iath esa fd;k x;kA vkxr fuxZr 'kk[kk esa inLFkkfir vU; lgk;d Jh jke izos'k jke ls Hkh bl Patna High Court CWJC No.25151 of 2013 77 laca/k esa iwNrkN dh xbZA Jh jkeizos'k }kjk crk;k x;k fd i= izkfIr dzekad la[;k 3773 fnukad 05-08-2013 dk bUnzkt mDr iath esa muds }kjk fd;k x;k FkkA ;g iwNs tkus ij fd muds }kjk cSd MsfVax D;ksa dh xbZ gS \ crk;k x;k fd izksD;ksjesaVu 'kk[kk ds lgk;d Jh deys'k flag ds dgus ij izkfIr dzekad a 3773 fnukad 05-08-2013 dh izo`f"V dh xbZ FkhA Jh jke izos'k jke us crk;k fd Jh deys'k muls dgk fd izksD;kseVsa inkf/kdkjh lkgc vkns'k fn;s gSa fd mDr i= izkfIr iath esa p<+k fn;k tk;A ;g dk;Z i= ij vafdr frfFk ds nks fnu ckn fd;k x;kA lanfHkZr ekeys esa Jh deys'k flag] lgk;d izksD;ksjesaV 'kk[kk ls Hkh iwN&rkN dh xbZ Jh deys'k dguk gS fd muds }kjk i= izkIr dRrkZ dks cSd Msfa Vax djus gsrq ugha dgk x;k gSA mi;ZqDr rhuksa lgk;dksa dk fyf[kr C;ku Hkh fy;k x;k tks bl izfrosnu ds lkFk layXu gSA lacaf/kr i= dk Hkh voyksdu fd;k x;kA i= ij MkdsV la[;k 3773@05-08-203 ntZ gS ijUrq ml ij izkfIr dh eqgj fnukad 08-08-2013 dh yxh gS tcfd vke rkSj ij ftl fnu i= izkIr gksrk gS ml fnu dh eqgj yxkbZ tkrh gSa mDr i= dks la;qDr funs'kd] vkbZ-lh-Mh-,l- }kjk fnukad 08- 08-2013 dks Seen fd;k x;k gS blls Hkh fcYdqy Li"V gksrk gS fd i= fnukad 08-08-2013 dks izkIr gqvk ijUrq bldh izfof"V izkfIr iath esa fnukad 05-08-2013 dks fn[kkbZ xbZA mDr i= ds voyksdu ls Li"V gksxk fd mDr i= M/s Glaxy ds Letter Pad ij Hkstk x;k ijUrq Letter pad, black & whilte esa gSA dk;kZy; esa i=kas dh izkfIr fofHkUu ek/;eksa ls gksrh gS ;Fkk QSDl] Mkd] fo'ks"k nwr] bZ&esy vkfn@lanfHkZr i= Black & White esa gS blls Li"V gS fd ;g i= email vFkok fax ls izkIr fd;k x;k gSa vkbZ-lh-Mh-,l- vUrZxr MkVk lsUVj esa la?kkfjr iath esa mDr i= dh izkfIr dk dksbZ mYys[k ugha gSa blls Kkr gksrk gS fd mDr i= QSDl vFkok bZ&esy ls dk;kZy; ls vyx fdlh QSDl vFkok bZ&esy vkbZ-Mh ls Hkstk x;k gSA bl lanHkZ esa Jh eukst dqekj pkS/kjh] izksD;ksjesaV inkf/kdkjh dk dguk gS fd lacaf/kr i= mUgsa dk;kZy; Mkd esa fnukad 12-08-2013 dks feyk A mUgksua s mlh frfFk esa i= Seen dj i= dks lacaf/kr lgk;d dks nsus gsrq Hkst fn;kA mDr i= Jh deys'k flag ds ykWxcqd ij fnukad 12-08-2013 dks Jherh dqeqn ¼fuxZr 'kk[kk½ }kjk ntZ fd;k x;kA ;g iwNs tkus ij fd iz'uxr i= muds }kjk la?kkfjr iath esa vafdr ugha jgus ds okotwn mUgksua s fdl izdkj Jh deys'k ds Logbook ij ntZ fd;k rks Jherh dqeqn us crk;k fd ;g dk;Z Hkwyo'k muls gks x;k gS ¼fyf[kr c;ku layXu½ bl iwjs ekeys esa brus ckr Li"V gS fd iz'uxr i= ¼1373@05-08-2013 ds bUnzkt esa backdating dh xbZ gS rFkk vkxr iath esas tampring gqbZ gSa ;gka Patna High Court CWJC No.25151 of 2013 78 ewy iz'u ;g gS fd Backdating D;ksa dh xbZ \ ekuuh; ea=h egksn;k us lafpdk la[;k ICDS/25090/7/2012 ds i`"B 78 ls 80 ij bl eq|s ij iwjk izdk'k Mkyk gaSA fnukad 07-08-2013 dks uewus dh iaft;ksa dk feyk Hkkjr ljdkj }kjk eqfnzr iaft;ksa ls ekuuh; ea=h egksn;k }kjk vius dk;kZy; d{k esa djk;k x;kA uewus dk otu fu/kkZfjr ekin.M ls de ik;k x;kA bl feyku ds le; izksD;ksjesUV inkf/kdkjh Hkh mifLFkr FksA lEHkor% mDr feyku@tkap dh lwpuk vkiwfrZdRRkZk dks gks xbZ rFkk mUgksa us vius QzkWM dks Nqikus gsrq fax vFkok email ls viuk iz'uxr i= ¼3173½ iVuk esa vius lEidZ lw= dks Hkstk ftUgksua sa gsjk&Qsjh ls dke ysdj mDr i= dks fnukad 05- 08-2013 dh frfFk esa vkxr iath izkIr fn[kk fn;k rkfd QzkWM ds vkjksi ls cpk tk ldsA ekuuh; ea=h egksn;k ds dk;kZy; d{k esa gq;s feyku dh lwpuk vkiwfrZdRrkZ dks rqjar feyuk izksD;ksjesaV 'kk[kk ds inkf/kkdjh ,oa lgk;d dks langs ds dV?kjs esa [kM+k djus ds fy, dkQh gSA vxj vko';d le>kk tk; rks izksD;ksjesaV 'kk[kk ds vf/kdkjh] dfeZ;ksa ,oa vkiwfrZ dRrkZ ds E.mail/mobile No. ls fd;s Qksu rFkk vk, x;s Qksu fax dh tkap djk;s tk ldrh gSA bl lanHkZ esa mPpLrjh; leh{kk dj dk;ZokbZ dh vuq'kalk dh tk jgh gSA g0@& g0@& 28@11@13 28@11@13 v[rj okflQ jkt; uUn okfMZ;kj lgk;d funs'kd lgk;d funs'kd**
75. It was only after receipt of the aforesaid report of two Assistant Directors dated 28.11.2013 that the whole case was analysed and a decision for issuance of show cause notice for cancellation of contract (agreement) of the petitioner was taken as would be evident from the following extract of notesheet of the file:-
"bl laca/k eas ekuuh; ea=h] lekt dY;k.k foHkkx] fcgkj] iVuk ,oa lfpo] lekt dY;k.k foHkkx] fcgkj iVuk ds }kjk okrkZ ds vkyksd esa lafpdk vxzlkfjr dh tk jgh gSA KkrO; gks fd bl laca/k esa tkap izfrosnu igys gh lefiZr fd;k x;k gS ftlesa Patna High Court CWJC No.25151 of 2013 79 xSyDs lh izsl y[kum ds }kjk izkIr iaft;ksa dk uewuk fu;ekuqdwy ugha ik;k x;kA fu;ekuqdwy fu.kZ;kFkZA d`i;kA funs'kd g0@& 9@12@13 lfpo Hkonh; ds vkns'kkuqlkj lafpdk vkt miLFkkfir gSA eq>s ;g lafpdk vkt 3-30 vi- izkIr gqvk gSA funs'kd }kjk leh{kk dk izLrko ds lkFk lafpdk izLrqr djus dk funs'k fn;k tk ldrk gSA g- vkns'kkFkZ g0@& 9@12@13 ek0 ea=h ls foe'kZ gqvkA funs'kd 'kh?kzrk'kh?kz leh{kk dk miLFkfir djsAa ;g Hkh Li"V djsa fd i`0 80@n ij ek0 ea=h dk vkns'k dk vuqikyu D;ksa ugha gqvkA g0@& 9@12@13 jkftr iqugkuh funs'kd ¼ICDS) lafpdk eaxokbZ xbZA voyksdu fd;kA lafpdk esa lgk;d funs'kd Jh vkj0,u0okfMZ;kj dk tkap iafrosnu layXu ughas gS ftls lafpdk esa layXu dj fn;k gSA lafpdk dks funs'kd dks Hksth tk jgh gS ijohu vekuqYykg 10-12-13 tkap ls lEcfU/kr lafpdk esa takp izfrosnu dks layXu dj fu;ekuqlkj dkjZokbZ dk izLrko nsaA g0@& 11@12@13 Jh v'kksd dqekj l0 fe0 mijksDr fVIi.khA izkIr tkap izfrosnu ds vkyksd esa vkiwfrZdRrkZ Jherh fugkfjdk xaqIrk] xSyDs lh izsl izk0 fy0] y[kum dks ,djkjukek ds 'krZ mYya?ku ds dkj.k fdlh Hkh rjg dh dkjZokbZ ds iwoZ ,d dkj.k i`PNk iwNk tkuk vko';d gS] mDr vkyksd esa ,d dkj.k i`PNk Li"Vhdj.k dk izk:i vuqeksnukFkZ A d`i;kA g0@& 14@12@13 funs'kd d`0 mijksDr ds vkyksd esa izk:i vuqeksnukFkZA lfpo g0@& 16@12@13 Patna High Court CWJC No.25151 of 2013 80
76. Pursuant thereto, a show-cause notice was issued to the petitioner on 18.12.2013 to the petitioner asking him to show-cause as to why its agreement should not be cancelled and further as to why the petitioner should not be blacklisted. The show-cause notice dated 18.12.2013 issued to the petitioner reads as follows:-
^^fcgkj ljdkj lesfdr cky fodkl lsok,a ¼ICDS½ funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry] bafnk Hkou] jke pfj= flag iFk iVuk&800001 i=kad & ICDS/25030/7-2012/6963 fnukad 18@12@2013 izs"kd] funs'kd] vkbZ-lh-Mh-,l- funs'kky;A lsok esa] Jherh fugkfjdk xqIrk] XySDlh izsl izk- fy-
vej Hkou] gkml ua-&539k@152 dlSyk] QStkckn jksM] y[kum& 226016 mRrj izns'kA fo"k;& MIS iaft;ksa ds eqnz.k gsrq fufonk dh 'krksaZ i= la-03752 fnukad 27-07- 2013 ,oa ,djkjukek dh 'krksZa dk mYya?ku fd;s tkus dh fLFkfr esa mDr ,djkjukek dks jn~n djus ds laca/k esaA egk'k;] mi;qzDr fo"k;d izh&chM meeting esa GOI dk Specification ds vuqlkj miyc/k iaft;ksa dk tks vki lHkh dks fn[kk;k x;k Fkk] eqnz.k fd;k tkuk FkkA bl gsrq ,djkjukek fnukad 01-08-2013 dks gqvk Fkk ftlesa eqfnzr iaft;ksa ds vkiwfrZ gsrq 60 fnuksa dk le; fu/kkZfjr FkkA ;g 30-09-2013 dks le; iwjk gks tkrk gS vFkkZr fnukad 30-09-2013 rd eqfnzr iaft;ksa dh vkiwfrZ dj nsuk FkkA ;gka ;g mYys[k gS fd& 1- vkidks izFke i= 2211 fnukad 03-06-2013 ¼409½ }kjk uewuk miyc/k djkus gsrq dgk x;kA 2- fcgkj lfpoky; eqnzk.kky; xqytkjckx] iVuk us i=kad 1236 fnukad 27-06- 2013 }kjk ;g lwfpr fd;k x;k fd vkids }kjk miyC/k djk;s x;s uequk okaNuh; xq.koRrk ,oa Specification ds vuqlkj ugha gSA rRlaca/kh i= Patna High Court CWJC No.25151 of 2013 81 la[;k&3165 fnukad 02-07-2013 }kjk vkidks =qfV dks nwj dj vkiwfrZ djus gsrq dgk x;kA 3- ,djkjukek ds ckn vkids }kjk ckj&ckj vuxZy i=kpkj }kjk dk;kZns 'k ekaxk tk jgk Fkk] tks fd Agreement esas dgh Hkh ughs gSa vr% blls Li"V gksrk gS fd izkjEHk ls gh vkidh ea'kk /kks[kk nsus dh jgh gS tks fufonk 'krksZa ds miyC/k 3- 14 dks vkdf"kZr djrk gSA 4- vkids }kjk miyC/k djk;s x;s uewuk ds izFke vkiwfrZ ¼40 lsV½ ,oa f}rh; vkiwfrZ ¼587 lsV½ dks xq.kork ds vuqlkj ugha ik;k x;k iz[k.M Lrj ij dksbZ Hkh vkiwfrZ ugha fd;k tkuk] dk;kZy; dks xyr lwpuk fn;k tkuk ,oa xqejkg djuk fufonk 'krksa ds mica/k 3-31 dk Li"V mYya?ku gSA 5- izdkf'kr fufonk ds 'krksZa mica/kksa ,oa fufonk 'kkqf}i= ds vurxZr dk;Z vkoaVu ds fu/kkZfjr le; lhek ds vUnj fcgkj jkT; fcdhz dk foHkkx ls fucaf/kr djkrs gq;s dk;kZy; dks lwfpr djuk Fkk tks vkids }kjk vkt rd ugha fd;k x;kA 6- fufonk 'krksZa ds mica/kksa ds vuq:i vkidks xq.koRrk ,oa fof'kf"V;ksa ds vuq:i uewuk ;k vkiwfrZ djuk Fkk ysfdu vkids }kjk tks uewuk miyc/k djk;k x;k ;g mlds vuq:i ugha ik;k x;k ,oa ojh; Lrj ij tkap ds dze esa vfu;ferrk ik;s tkus ds mijkUr vkids }kjk i= fnukad 06-08-2013] 23-09-2013] 28-102013 }kjk ckj ckj ;g dguk fd mDr fof'kf"V;ksa dk dkxt cktkj esa miyC/k ugha gS ls Li"V gksrk gS fd vki tkucq>dj foHkkx ds dk;Zdze dks uqdlku igqapkus dk dk;Z dj jgs gSA 7- vkius Specification ds vuqlkj le; ij iaft;ksa dh vkiwfrZ ughas dh ftlds dkj.k ;kstuk eas vuko';d dkQh foyEc gqvk vkSj Scheme Failure gks x;k ,oa le; ij iwjk ugha fd;k tk ldkA ;g Hkh mYys[kuh; gS fd Hkkjr ljdkj ,oa fcgkj ljdkj dk Fund gS ftls le; ij [k;Z ugha djus ds dkj.k jkf'k Surender djuk ij ldrk gSa bu lHkh rF;ksa ls ;g Li"V gksrk gS fd vkids }kjk tkucw>dj vuko';d foyEo ,oa Specification ds vuqlkj vkiwfrZ ugha fd;k x;k rFkk ,djkjukek esa 'krksaZ dk mYYak?ku fd;k x;kA eqnz.k ,oa vkiwfrZ dh le; lhek Hkh lekIr gq;s yxHkx <kbZ eghuk gks x;k gSa vkius ,djkjukek dh 'kRrksaZ dk mYya?ku fd;k gSA 8- vr% mijksDr fcUnqvksa ij viuk Li"Vhdj.k rhu fnuksa esa nsuk lqfuf'pr djsa vU;Fkk ck/; gksdj u flQZ ,djkjukeks esa of.kZr dafMdk 3-33 ds rgr ,djkjukek jn~n dj fn;k tk;sxk cfYd vkidh tekur jkf'k tIr djrs gq, dafMdk 3-34 ds rgr vkids QeZ dks dkyh lwph esa Mkyus dh Hkh dkjZokbZ dh tk;sxhA fo'oklHkktu g0@& 17@12@13 funs'kd vkbZ-lh-Mh-,l-
Kkikad % ICDS/25030/7-2012/6963 @fnukad 18@12@2013** Patna High Court CWJC No.25151 of 2013 82 (Underlining for emphasis)
77. It was only at this stage that when the petitioner had come to know of the action being taken againt it by way of issuance of aforesaid show cause notice, this writ application was filed on 18.12.2013 wherein the following prayer was made:
"1(i) For direction commanding the respondents to issue work order to supply the goods as per the Contract Agreement entered into by the parties.
(ii) For direction commanding the respondents to accept the goods printed and manufactured as per the terms and conditions of the agreement and make payment of the goods.
78. It was during the pendency of this writ application that the aforesaid show-cause notice dated 18.12.2013 was replied by the petitioner immediately through its letter dated 20.12.2013 in which the petitioner had sought to make allegation against the authorities of the department. What is however important to be noted herein that in the show-cause reply dated 20.12.2013 it was again admitted by the Managing Director of the petitioner company that the samples given by it was not as per the specification in the NIT and paper of Register-2 was not 80 GSM Maplitho as prescribed, but only 56 GSM Maplitho. Paragraph no.4 of the show-cause reply of the petitioner dated 20.12.2013 being relevant is quoted herein below:-
^^4- geus vkidks lHkh lSEiy jftLVjksa ds lsV vkidh fufonk ds LisflfQds'ku ds vuqlkj gh miyC/k djk;k flQZ jftLVj la[;k 2 esa tks xqykch jax dk dkxt yxk;k Fkk mldk th-,l-,e- ¼isij fFkdusl½ 56 xzke dh Fkh D;ksfa d ;gh isij ekdsZV esa Patna High Court CWJC No.25151 of 2013 83 miyc/k gksrk gSa ¼izk;% dyj fizfVax jlhn cqdksa esa MqfIydsV vkSj fVzIyhdsV dkWih esa bLrseky dh tkrh gS vkSj ;g ekdsZV esa 40 ls 56 th-,l-,e- dh gh miyC/k gksrh gS rkfd dkcZu dkWih ds le; ml ij lgh ls fy[kkoV Ni lds] D;ksfa d eksVs isij ij dkcZu lgh ls dke ugha djrk gS½A 80 th-,l-,e- dh dyj fizfUVax vkWMZj nsus ds i'pkr 15 fnukasa eas cudj feyrh gS vkSj geus mugas ;g Hkh lwfpr fd;k fd 80 th- ,l-,e- dk lSEiy ge dk;kZns'k feyus ds mijkUr miyC/k djk nsaxs rFkk geus vkbZ - lh-Mh--lh- ls dk;kSns'k dh ekax dhA bu ckrksa dks geus vkikds fnukad 06-08-2013 dks i= }kjk lqfpr dj fn;k Fkk rRi'pkr fnukad 05-09-2013 dks vius i= }kjk vkidks ;g lwfpr fd;k fd geus jftLVj la[;k nks dk 80 th-,l-,e- ds xqykch jax ds dkxt ls cuk;k x;k lSEiy vkids dk;kZy; esa miyc/k djk fn;k gS vkSj lkFk esa ;g Hkh voxr djk;k Fkk fd gekjs ikl 50 izfr'kr ,e-vkbZ-,l- jftLVj rS;kj gSA**
79. It is a matter of record that despite receipt of the aforesaid show cause reply of the petitioner neither it was processed nor any decision had been taken for cancelling the contract even when there was a clear order of the minister dated 06.11.2013 to cancel the contract of the petitioner. In fact, there is no explanation, at least in the file, as to why a final decision for cancellation a contract of the petitioner even after receipt of show cause reply filed by the petitioner on 20.12.2013 pursuant to the aforesaid show cause notice dated 18.12.2013.
80. From the records and particularly the Government file, it would further transpire that even when the show cause reply of the petitioner in response to the show cause notice dated 08.12.2014, was received in the department on 20.12.2013, neither it was dealt with nor even placed before the Director, ICDS, and Secretary and in fact no action at all was taken in the matter against the petitioner. The file remained dormant ever since 18.12.2013, though there was an order Patna High Court CWJC No.25151 of 2013 84 of the minister of 10.12.2013 to take two actions, firstly, against the petitioner and secondly as against the officials for causing manipulation in the official documents. As a matter of fact, when the minister had asked for the file after more than one month of her order to see the compliance, the file which was placed before her was in the same stage, in which, on 17.12.2013 the Departmental Secretary had directed for issuance of show cause notice and had approved the draft.
81. As a matter of fact, when the file was placed before the minister in view of her requisition made on 14.01.2014, it was found that the report of the CPRI, Saharanpur, dated 08.01.2013, was received in the department on 13.01.2014, but then that was again not dealt or placed before the Director or Secretary or Minister and as such it was eft to the Minister to examine everything at her own level.
82. In the test report of the Central Pulp and Paper Research Institute, Saharanpur dated 8.1.2014 in respect of the samples which were sent by the Director, I.C.D.S. on 02.9.2013 finding was given for 11 in place of 12 Registers and is reproduced herein below:-
TEST REPORT DT-08.01.2014 Sample New MIS Register samples Reference Letter No. ICDS/25030/7-2012/4409 dt. 02.09.2013 Samples received on 12.09.2013 Sample drawn and sent by Sh. Bandana Preyashi, IAS, Director, ICDS Government of Bihar Integrated Child Development Services (ICDS) Directorate Patna High Court CWJC No.25151 of 2013 85 (social) Welfare Department) 2nd Floor, Indira Bhawan, R.C. Singh Road, Patna- 800 001 (Bihar) Samples were conditioned at temperature 27 +- 10C and relative humidity 65 =-2% and tested for the characteristics mentioned in the letter.
Properties Value obtained for the sample
jftLVj la[;k iath Grammage (g/m2)
Cover Paper Text Paper(---------)
1 110.3 81.6
2 327.5 81.6
3 153.4 80.3
4 149.8 79.9
5 152.0 80.1
6 142.6 80.8
7 149.6 81.1
8 151.6 80.3
9 153.6 79.8
10 151.4 80.4
11 148.8 80.8
lesfdr cky fodkl lsok,a] 314.3 80.5
vkaxuokM+h dk;ZdRrkZ }kjk iz;ksx
ds fy,] 6 o"kZ dk dSys.Mj rFkk
vk;q@tUe o"kZ@izlo dh
lEHkkfor frfFk (EDO) x.kuk
rkfydk
Note:- The test report is based on the tests carried out on the no. of sample sheets and size provided by the client.
Sd./-
08/01/2014 Dr. Vimlesh Bist, Sc. - F & Head Technical Services & Coordination Cell CPPRI, Saharanpur"
83. In course of such examination, she had found not only the obvious discrepancy in the report of CPRI, Saharanpur dated 08.01.2014 but had also found that the report was in respect of only 11 registers in place of 12 and in which register no. 2 was sought to be also included. As noted above the samples were sent to CPRI, Saharanpur by the Director on 02.09.2013 by post and on that day no register 2 with 80 GSM paper was even claimed to have been supplied Patna High Court CWJC No.25151 of 2013 86 by the petitioner but then the report of CPRI, Saharanpur had declared that paper of register-2 was having 81.6 GSM. It was this aspect of the matter which made the Minister to not only to disbelieve the report of the CPRI, Saharanpur but she having found that no action was taken for a period of more than one month either against the petitioner or against the officials in view of her own order dated 06.11.2013 and 10.12.2013, had passed an order for referring the matter to the Economic Offences Unit of the Government of Bihar and her reasons for doing so are clearly reflected in her exhaustive note of 15.01.2014, which reads as follows:-
^^esjs }kjk funs'kky; ls 13-01-14 dks lafpdk dh ekax dh xbZ tks eq>s 14-01-14 dks Jh v'kksd dqekj ls 12-45 cts vi0 ls izkIr gqbZA lafpdk ds voyksdu ls ;g irk pyrk gS fd u gh esjs }kjk fnukad 06-11-13 dks fn;s x;s Li"V vkns'k dk vuqikyu ugha fd;k x;k gS vkSj u gh funs'kd dks 10-12-13 dks bl fo"k; ij gqbZ okrkZ ds nkSjku fn;s x;s funs'kksa dk ikyu funs'kky; Lrj ls fd;k x;kA lacaf/kr ekeys esa Jh vkj0,u0ofM;kj ds tkap izfrosnu ,oa lafpdk esa miyC/k lk{; ds vk/kkj ij Galaxy Press ,oa Official documents esa Manipulation ds ekeys esa nks"kh ik;s x;s dfeZ;ks@ a inkf/kdkfj;ksa ds fo:n~/k vijkf/kd ekeyk ntZ djus ds lkFk fufonknkrk ds ,djkjukes dks jn~n djus ,oa tekur dh jkf'k tCr djuss dk vkns'k fn;k FkkA mlh fnu funs'kd ds }kjk nl fnuksa ds Hkhrj dkjZokbZ dj lwfpr djus gsrq vk'oklu fn;k x;k Fkk ysfdu vkt mlds ckn ,d ekg ls vf/kd vof/k chr tkus ds ckn Hkh lafpdk tc eaxkbZ xbZ rks irk pyk fd vfHkrd bl ekeys esa vkns'k ds vkyksd esa visf{kr dkjZokbZ ugha dh xbZ gSA fufonknkrk ls Hkh tks Li"Vhdj.k dh ekax dh xbZ mlesa Hkh fufonknkrk ds }kjk fn;s x;s mRrj ij dksbZ dkjZokbZ ugha sdh xbZ gSA mUgksua s Li"Vhdj.k esa bl rF; dks Lohdkj fd;k gS fd buds Lrj ls jftLVj la[;k&2 tks miyC/k djk;k x;k gS og 56 th0lh0,e0 dk gSa fufonknkrk dk ;g dFku fd tc funs'kkky; bUgsa 80 th0lh0,e0 isij esa vkiwfrZ djus dk vkns'k nsxk rks bldh vkiwfrZ djsx a sA ,djkjukek ds vuqlkj bUgsa 80 th0lh0,e0 dk isij nsuk FkkA bl izdkj ,djkjukesa ds 'krZ ds mYya?ku dks Lohdkj fd;k x;k gS blds ckn Hkh funs'kd ds Lrj ls fufonknkrk ds fo:n~/k dkjZokbZ ugha dh xbZA lefiZr Li"Vhdj.k esa U;k;ky; esa okn nk;j djus ij jksd yxkus dk Patna High Court CWJC No.25151 of 2013 87 vkns'k izkIr ugha gS rks funs'kkky; lrj ls dkjZokbZ ugha gksuk langs vkSj fpUrk dk fo"k; gSA 14-01-14 dks Jh v'kksd dqekj ds }kjk dsZUnzh; yxnh ,oa dkxt vuqla/kku laLFkku lgkj.kiqj ds }kjk jftLVj ds uequksa dh tkap laca/kh izfrosnu Hkh fn;k x;k gS] ftldk voyksdu fd;kA vk'p;Z dh ckr ;g gS fd tc fufonknkr ds }kjk fn;s x;s Li"Vhdj.k esa Lo;a Lohdkj fd;k x;k gS fd jftLVj la0&02 dk isis j 56 th0lh0,e0 dk miyC/k djk;k x;k gS rks dsUnzh; yxnh ,oa dkxt vuqla/kku laLFkk ds }kjk bls 80 th0lh0,e0 dk bls dSls Bgjk;k x;k\ bls Lohdkj ugha fd;k tk ldrk gSa tc eSaus Jh v'kksd dqekj ls vius dks"kkax ls Hksts x;s 07-08-13 ds lR;kfir gLrk{kfjr jftLVj ds uewuk dh ekax dh ftldk eSsus vius dk;kZy; d{k ea tkap dj vfu;fer ik;k rFkk ihr i= ds lkFk down fd;k rks Jh v'kksd dqew kj us vlR;kfir vgLrk{kfjr jftLVj ds uewus Hksts gSA mUgsa dgk tk; dh esjs gLrk{kfjr uewus HkstsaA Li"V :i esa bl ekeys esa fdlh u fdlh Lrj ij xM+cM+h gqgZ gS ftldh tkap fd;k tkuk vko';d gSA mijksDr ds vkyksd esa funs'kky; Lrj ls ,djkjukek vfoyac jn~n djus ds lkFk lkFk tekur dh jkf'k tCr djus dh dkjZokbZ djuh pkfg, Fkh tks dbZ ekg ls vcrd ugha dh xbZ gS tcfd Li"Vhdj.k dk mRrj fnukad 20-12-13 dks izkIr gks pqdk gSA bl izdkj esjs }kjk fn;s x;s Li"V vkns'kksa dh vogsyuk dh xbZ gA lkFk gh jh vkj0,u0okfM;kj ds }kjk fn;s x;s tkap izfrosnu ds vk/kkj ij dk;kZy; ds mu lHkh dfeZ;ksa ,oa inkf/kdkfj;ksa ds fo:n~/k fufonknkrk ls esy dj lkft'k djus ,oa lafpdk esa Manipulation djus dk vkjksi esa vijkf/kd ekeyk ntZ fd;k tkuk pkfg, Fkk tks vcrd ugha fd;k x;k gSa blls ;g Li"V gksrk gS fd funs'kkky; bl ekeys dks nckdj j[kus ,oa nks"kh deZpkfj;ks@ a inkf/kdkfj;ksa dks laj{k.k iznku djus ,oa fufonknkrk ds fo:n~/k fdlh izdkj dh dkjZokbZ ugha djus dk iz;kl dj jgk gSA pqfd funs'kkky;@foHkkx lacaf/kr ekeys eas foxr ,d ekg esa fdlh izdkj dh dkjZokbZ djus esa vl{ke jgk gS pkgs bldk dkj.k tks Hkh jgk gks] blfy, bl ekeys dh tkap dj dkjZokbZ djus gsrq lafpdk iqfyl egkfujh{kd] vkfFkZd vijk/k vuq'ka/kku bdkbZ dks 24 ?kaVksa ds vanj Hkst nh tk;A vkfFkZd vijk/k vuq'ka/kku bdkbZ bl ekeys ls lacaf/kr lHkh igyqvksa dh tkap dj fufonknkrk ¼tks fd blds obvious beneficiary gS½ ,oa bl ekeys ds connivance esa deZpkfj;ksa ,oa inkf/kdkfj;ksa ds fo:n~/k dkjZokbZ djsx a hA g0@& ijohu vekuqYykg 15-1-14**
84. There is yet another very important material on record by way of two show cause notices issued by Smt. Neelam Gupta, Director I.C.D.S. dated 16.01.2014 and 15.02.2014 to Mr. Manoj Patna High Court CWJC No.25151 of 2013 88 Kumar Chaudhary, the Procurement Officer, at pages 669 and 675 of the main file which would themselves go to show that the allegations against him of favouring the petitioner were found to have been primafacie correct inasmuch as explanation was sought for from Mr. Chaudhary as to why he did not get the tender documents submitted by the petitioner on 13.5.2013 verified in terms of requirement prescribed in Annexure-2 of the N.I.T. as would be mere clear of the contents of aforesaid two notices dated 16.1.2014 and 15.02.2014 which are quoted herein below:-
^^fcgkj ljdkj lesfdr cky fodkl lsok,a ¼ICDS½ funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry] bafnk Hkou] jke pfj= flag iFk iVuk&800001 laafpdk la[;k& ICDS/10015/4-2012 313 fnukad 16@01@2014 izsf"kr] Jh eukst dqekj pkS/kjh] izksD;ksjesUV inkf/kdkjh] fo"k;& ekuuh; foHkkxh; ea=h }kjk fnukad 07-08-2013 dks lR;kfir gLrk{kfjr jftLVj ds uewuk ds laca/k esAA mi;qZDr fo"k; ds laca/k esa dguk gS fd fnukad 15-01-2014 dks vkids }kjk miyc/k djk;s x;s jftLVj ds uewus ekuuh; foHkkxh; ea=h dks miyC/k djk;k x;kA ekuuh; foHkkxh; ea=h }kjk crk;k x;k fd mijksDr jftLVj ds uewus vgLrk{kfjr uewus gSA funs'k fn;k tkrk gS fd ekuuh; foHkkxh; ea=h] dks"kkax ls Hksts x;s fnukad 07-08-2013 dks lR;kfir gLrk{kfjr jftLVj ds uewuk ds laca/k esa oLrqfLFkfr ls vfoyac voxr djk;k tk; lkFk gh 24 ?kaVs ds vUnj ;g Hkh Li"V fd;k tk, fd vkids }kjk gLrk{kfjr uewus D;ksa ugha miyC/k djk;k x;kA g0@& 16@1@14 funs'kd vkbZ-lh-Mh-,l-
Kkikad%& ICDS/10015/4-2012 313 fnukad 16@01@2014** (underlining for emphasis) Patna High Court CWJC No.25151 of 2013 89 fcgkj ljdkj lesfdr cky fodkl lsok,a ¼ICDS½ funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry] bafnk Hkou] jke pfj= flag iFk iVuk&800001 Kkikad& ICDS/10015/04-2012@ 1223 fnukad 15@02@2014 izsf"kr] Jh eukst dqekj pkS/kjh] izksD;ksjesaV inkf/kdkjh] vkbZ-lh-Mh-,l- funs'kky;] fcgkj] iVuk fo"k;& ,e0vkbZ0,l0 iaft;ksa ds eqnz.k gsrq vkns'k fuxZr djus esa vfu;ferrk ds laca/k esa Li"Vhdj.k nsus ds laca/k esaA funs'kkuqlkj dguk gS fd vki vf/klwfpr izksD;ksjesaV inkf/kkdjh gS ,oa fnukad 12-02-2009 ls funs'kky; esa dk;Zjr gSA vkbZ0lh0Mh0,l0 vUrxZr Hkkjr ljdkj ds vkns'kkuqlkj ,e0vkbZ0,l0 iath dh NikbZ djkdj lHkh cky fodkl ifj;kstuk dk;kZy;ksa eas miyC/k djkuk FkkA funs'kky; ds vkns'k Kkikad 1804 fnukad 21-05-2012 }kjk bl dk;Z gsrq vkidks uksMy inkf/kdkjh ukfer fd;k x;kA izksD;ksjesaUV inkf/kdkjh&lg&uksMy inkf/kdkjh ds nkf;Ro ds :i esa vkidks ;g dk;Z fu"i{k :i ls fu"ikfnr djuk FkkA funs'kky; Lrj ls i=kad 1693 fnukad 11-04-2013 }kjk fufonk vkeaf=r fd;k x;kA vkidh ftEesokjh curh Fkh fd vki vkiwfrZdRrkZ XySDlh daiuh ds lkFk bdjkjukek ds iwoZ lSaiy dk mfpr tkap dj ysr]s tks vkids }kjk ugha fd;k x;kA vkids }kjk Glaxy Company ds lkFk fd;k x;k ,djkjukek fof/klEer rjhds ls Hkh ugh rS;kj fd;k x;k] tks ykijokgh ,oa dk;Z ds izfr mis{kk dk izrhd gSA Jh jkt; uUn okfMZ;kj] lgk;d funs'kd] tkap izfrosnu fnukad 28-11-2013 ls Hkh vkids fo:n~/k lansg O;Dr fd;k x;k gSA iwoZ esa ekuuh; ea=h] letk dY;k.k foHkkx dks Spiral Binding esa fooj.k Hkstus ds iwoZ funs'kd ls lgefr ugha izkIr djus ds ekeys esa Hkh vki nks"kh ik;s x;s Fks] ftlds dkj.k funs'kky; ds Kkikad 3551 fnukad 18-07-2013 ds }kjk vkidks psrkouh Hkh nh x;h FkhA funs'kky; ds vkns'k Kkikad 710 fnukad 27-12-13 }kjk Jh jke izos'k jke] fuEuoxhZ; fyfid] vkbZ-lh-Mh-,l- funs'kky; dks i= izkfIr iath esa back dating ,oa Tampering ¼NsM+&NkM+½ djus ds vkjksi ds vkyksd esa fuyafcr fd;k x;k gSA mDr gsrq Jh jke izos'k jke ls Li"Vhdj.k dh ekax dh x;h Fkh ftlesa muds }kjk mDr dk;Z djus gsrq vkidh lafyIrrk crk;h x;h gSA mijksDr ls Li"V gksrk gS fd vkids }kjk ljdkjh dk;ksZa ds fu"iknu esa vkns'k vogsyuk] dRrZO;ghurk] ykijokgh] vuq'kklghurk ,oa i{krk cjrh x;h gSa funs'k fn;k tkrk gS fd mijksDr ds laca/k esa vki viuk Li"Vhdj.k vfoyEo Patna High Court CWJC No.25151 of 2013 90 v|ksgLrk{kjh dks miyC/k djkos]a rkfd vxszRrj dkjZokbZ dh tk ldsAa g0@& 15@2@14 funs'kd vkbZ-lh-Mh-,l-** (underlining for emphasis)
85. Infact it is also a matter of record that in the show cause reply dated 18.1.2014 and 20.02.2014 at page 650 and 672 to 694 of the file though Mr. Manoj Kumar Chaudhary had gone to shift blame on Ms. Vandana Preyashi, the then Director, I.C.D.S. or on others but then he had admitted that the sample of registers supplied by the petitioner in response to his letter dated 15.05.2013 and 02.07.2013 were kept only in his house.
86. It is also born out from the records that no decision much less any action was taken by Mrs. Neelam Gupta the then Director, I.C.D.S. against Mr. Chaudhary.
87. Thus, at a point of time while the E.O.U. was still continuing with its investigation, the present writ application filed by the petitioner for the first time was taken up by this Court only on 11.4.2014 when a learned single Judge (Hon'ble Mr. Justice R.K. Datta) noting the stand taken by the respondents in the supplementary counter affidavit sworn and filed on 10.4.2014 containing the following statements in paragraph nos. 5 & 6:-
"5. That it is apparent from the statements made in para 4, 5, 6, 7 of the rejoinder to the counter affidavit that petitioner himself Patna High Court CWJC No.25151 of 2013 91 has made contradictory statement. On one hand they admit that the letter dated 6.08.2013 (Annexure-8 of the writ petition) wherein it has been stated that 80 GSM paper is not available rather it is 56 GSM orange papers are in the register and on other hand they demand work paper.
6. That it is relevant to point out that matter has now been referred to Economic offence wing for enquiry on the orders of the Hon'ble Minister vide letter of file ICDS/25030/7-2012/422 dated 18.01.2014, the details of which are being not elaborated herein as the copy of the letter in reference along with the recommendation of the Hon'ble Minister, Department of Social Welfare, Govt. of Bihar is being brought on record for necessary perusal by this Hon'ble Court."
(underlining for emphasis) had viewed the matter seriously and had got the Inspector General of Economic Offence impleaded as respondent no.4.
88. This Court in the order dated 11.4.2014 while adjourning the case for a period of two weeks in order to enable the learned counsel for the State to file supplementary counter affidavit had recorded as follows:-
"Learned counsel for the petitioner is permitted to add the Inspector General, Economic Offences Wing, Government of Bihar as party respondent no. 4 to the writ application in the course of the day.
In the supplementary counter affidavit filed on behalf of the respondents today in Court it is stated on the basis of the notes of the Minister, Social Welfare Department that the petitioner had admitted that he had supplied 56 GSM register whereas the report from the Central Pulp & Paper Research Institute says the same to be approximately 80 GSM, hence, the direction was issued to initiate criminal case against the Patna High Court CWJC No.25151 of 2013 92 concerned officials as also the petitioner.
Learned counsel for the petitioner submits that there was no such admission by the petitioner that he had supplied register of 56 GSM rather initially it was only the sample which had been sent by the petitioner in response to letter dated 3.6.2013 of the Procurement Officer of the ICDS Directorate in which it was stated that normally in the market the colour paper was available 44 GSM to 56 GSM and for anything above 56 GSM the same has to be obtained by giving order to the Factory which should at least be of 10 tonnes and in such context it is stated that the register supplied was a sample of register No.2 and the paper was of 56 GSM and after receipt of the work order the register No. 2 in 80 GSM colour paper would be made available.
It is further submitted that by further letter dated 5.9.2013 (Annexure-10) the petitioner again referred to the matter stating that after obtaining from the mill as per the standard fixed the register-2 has been made of 80 GSM and the sample has been sent to the office which can be got tested by them. It is submitted that again in the said letter reference was made to the fact that despite the agreement having been made on 1.8.2013, the work order has not been given and 50% of the registers have already been made ready which will be sent to different blocks for which without a work order the same could not be permitted by the officials of the Sales Tax Department to cross the border between U.P. and Bihar.
It is thus, submitted by learned counsel for the petitioner that the notes of the Minister referred to in the supplementary counter affidavit are based upon failure in understanding the correct facts that there has not been any supply of any register in the absence of any work order, rather the rectified samples were subsequently sent as referred to in the letter dated 5.9.2013 which subsequent sample had been sent for testing to the concerned Institute which has given report and thus there is no question of any manipulation.Patna High Court CWJC No.25151 of 2013 93
Learned counsel for the State is directed to file further supplementary counter affidavit within two weeks from today indicating the progress made by the Economic Offence Wing pursuant to the complaint made in the matter. Put up on 25th April, 2014."
89. The records would again bear it out that the order of the minister dated 15.01.2014, was complied by sending the records to the Director General of E.O.U. on 17.01.2014, and the inquiry of the E.O.U undertaken had affirmed the view taken by the minister as with regard to manipulation made by the officials of the department and in particular by Mr. Manoj Kumar Chaudhary, the Procurement Officer and one Ram Pravesh Ram, an Assistant. These findings were recorded in the interim report dated 22.04.2014, as is found by this court on perusal of the file produced by the E.O.U.
90. Let it be noted that the Investigating Officer of the E.O.U had thereafter not only examined the records but also the officials as also the Managing Director of the Petitioner company and had also visited CPRI, Saharanpur. What is really significant to be found from the files of E.O.U., is that on 12.05.2014, while Smt. Niharika Gupta claiming to be the Managing Director of the petitioner company had stated that 587 sets of sample of registers were supplied prior to the execution of an agreement i.e. 01.08.2013. Further four copies samples of Register-2 were furnished on behalf of the company on 28.08.2013 as would be more apparent from the letter of the petitioner Patna High Court CWJC No.25151 of 2013 94 addressed to the Dy. S.P. of E.O.U., dated 12.05.2014, which reads as follows:-
i=kad% 1@th-ih-ih-,y-,- y[kum@2014&15 fnukad% 12-05-2014 lsok esa] Jheku ikjl ukFk lkgw] iqfyl mik/kh{kd] vkfFkZd vijk/k bdkbZ] fcgkj] iVukA fo"k;& vkbZlhMh,l funs'kky; ds lafpdk la[;k ICDS/25030/7-2012 ¼,l-vkbZ-,l- iaft;ksa dks vkiwfrZ djus ds laca/k esaA½ esa mBk;s x;s fcUnqvksa ds laca/k esaA egksn;] mi;qZDr fo"k; ds laca/k esa gesa ;g dguk gS fd vkbZlhMh,l funs'kky; fcgkj iVuk ds }kjk gekjh ,tsUlh ds lkFk fnukad 01-08-2013 dks ,evkbZ,l iaft;kaa dh vkiwfrZ djus ds laca/k esa ,djkjukek fd;k x;k FkkA ;g ,djkjukek gekjs 12 jftLVjksa ds lsV ds uewus vkbZlhMh,l ds dk;kZy; esa miyC/k djkus o larq"V gksus ds mijkar gh fd;k x;k FkkA vkids }kjk Hksts x;s i=kad la[;k 2027@vk-vi-iVuk fnukad 09@05@2014 esa mBk;s x;s fcUnqvksa ds lEcU/k esa tkudkjh fuEuor gS%& 1- vkbZlhMh,l ds i= la[;k 2711 fnukad 03-06-13 ds }kjk gesa 587 lsV jftLVjksa ds uewuksa o :- 2108220-00 dh iekZeUs l cSad xkj.Vh miyC/k djkus ds fy, dgh x;h FkhA vr% geus fnukad 01-08-2013 dks ,djkjukek ls iwoZ :0 2108220-00 dh iQkZeUs l flD;ksfjVh o 12 jftLVjksa ds 587 lsV ds uewus vkbZ,lhMh,l funs'kky; fcgkj iVuk ds dk;kZy; esa miyC/k djk fn;s FksA 2- geus 12 jftLVjksa ds 587 lsV ds uewus vkbZ,lhMh,l funs'kky; fcgkj iVuk ds dk;kZy; esa ,djkjukek ls iwoZ miyC/k djk fn;s FksA fnukad 06-08-13 dks geus vius i= }kjk foHkkx dks ;g lwfpr Hkh dj fn;k Fkk fd jftLVj la[;k 2 esa 56 th,l,e dk xqykch jax dk dkxt yxk;k x;k gS D;ksfa d ekdsZV esa 40 ls 56 th,l,e dk dkxt gh miyC/k gksrk gSSA 3- geus fnukad 06-08-13 ds vius i= esa vkbZlhMh,l fcgkj dks ;g lwfpr fd;k Fkk fd ge jftLVj la[;k 2 dks ,djkjukek gksus ds i'pkr LisflfQds'ku ds vuqlkj 80 th,l,e dk dkxt fey ls cuokdj vkidks iqu% miyC/k djk nsaxAs vr% geus fnukad 28-08-13 dks jftLVj la[;k 2 dks iw.kZ LisflfQds'ku ds vuqlkj 80 th,l,e ds dkxt ij cuokdj vkbZlhMh,l funs'kky; dks 04 izfr miyC/k djk nh FkhA lknj /kU;oknA Hkonh;
g0@& fugkfjdk xqIrk Mk;jsDVj xSysDlh izsl izk0 fy0 y[kumA** Patna High Court CWJC No.25151 of 2013 95
91. This was however a blatant false statement made on behalf of Managing Director, Smt. Niharika Gupta, inasmuch as, on 02.09.2013, this Register-2 with 80 GSM paper allegedly supplied by the petitioner on 28.08.2013 was neither available in the department nor sent to CPRI, Saharanpur and the best proof of the same would be the statement of Mr. Manoj Kumar Chaudhary, the Procurement Officer, recorded by Investigating Officer of E.O.U. on 15.05.2014, wherein, it was clearly stated him that 587 sets of registers were received from the petitioner on 05.08.2013, and he was also very categorical in his such statement before E.O.U. that after 05.08.2013, at no point of time any register was received from the petitioner. Such statement of Mr. Manoj Kumar Chaudhary, the Procurement Officer, on 15.05.2014, given before the officials of E.O.U. reads as follows:-
^^eSa eukst dqekj pkS/kjh oRrZeku esa ftyk iapk;rh jkt inkf/kdkjh iVuk ds in ij inLFkkfir gwWA blds iwoZ ¼;kfu 22-02-2014 ds igys½ izksD;ksjesaV inkf/kdkjh vkbZ0lh0Mh0,l0 funs'kky; fcgkj iVuk ds in ij inLFkkfir FkkA efgyk ,oa cky fodkl ea=ky; Hkkjr ljdkj ds funsZ'kkuqlkj bUgsa ebZ 2012 esa MIS iaft;ksa ds fizVhax ,oa vkiwfrZ gsrq uksMy inkf/kdkjh fu;qDr fd;k x;k FkkA csjklh gtkj lsV fizVhax gsrq 11- 4-2013 dh fufonk fudkyh x;h rFkk 13-5-13 dh fufonk [kksyh x;h ,oa xSyDs lh izl izk0 fy0 y[kum dk nj lcls de ikrs gt, mUgsa L-1 ?kksf"kr fd;k x;kA buds }kjk Kkikad 2711 fn0 30-6-2013 ,oa 3752 fn0 27-7-13 }kjk xSyDs lh izsl izk0 fy0 dks lwfpr fd;k x;k fd vki 27-7-13 ls 02-08-13 ds chp dk;kZy; esa vkdj ,djkjukek djsa rFkk 587 lsV MIS iaft;ksa dks miyC/k djkosAa fnukad 01-08-2013 dks ICDS Patna High Court CWJC No.25151 of 2013 96 funs'ky; ,oa xSyDs lh izsl izk0 fy0 y[kum ds chp MIS iaft;ksa dks 60 fnukas ds vUnj vkiwfrZ djus gsrq ,djkjukek fd;k x;kA fnuakd 05-08- 2013 dks buds }kjk izkIr 587 MIS iaft;ksa ds lsV ¼iath&2 dks NksM+dj½ esa ls nks izfr dks ewy uequk ds lkFk lfpo] lekt dY;k.k foHkkx fcgkj iVuk dks Hkstk x;kA fnukad 05-08-2013 dks xSyDs lh izsl izk0 fy0 }kjk jftLVj&2 dk pkj izfr miyC/k djk;k x;k ftlesa ls gh ,d izfr vU; vkiwfrZ fd, x, iaft;ksa ds lkFk ysdj ea=h egksn;k ds ikl x,A ea=h egksn;k }kjk buds le{k gh jftLVj&2 ds izfr dk otu djk;k x;k vkSj xSyDs lh izsl izk0 fy0 }kjk vkiwfrZ fd, x, iaft;ksa ¼jft0&2½ dk otu de ik;k x;kA ea=h egksn;k ds d{k ls X;kjg iaft;ksa dk lsV ysdj eSa pys vk, ftlij ea=h egksn;k ds gLrk{kj ;k y?kq gLrk{kj ugha Fkk rFkk dbZ fnuksa ds ckn buds dk;kZy; ds deZpkjh deys'oj dqekj flag }kjk jftLVj&2 dks ea=h egksn;k ds d{k ls ykdj fn;k x;k ftlij gLrk{kj ds ckjs esa bUgsa tkudkjh ugha gSa blh chp xSysDlh izsl izk0 fy0 }kjk fn0 06-08-2013 dks esy ds ek/;e ls ICDS funs'kky; dks lwfpr fd;k x;k fd jftLVj&2 esa ftl xqykch dkxt dk bLrseky fd;k x;k gS og 56 th0,l0,e0 dk gSA mDr i= dh buds }kjk 12-08-2013 dks ns[kk x;k gS ,oa Jh deys'oj dk ekdZ fd;k x;k gSA fn0- 5-9-2013 dks iqu% esy }kjk xsysDlh izsl izk0 fy0 }kjk lwfpr fd;k x;k fd esjs }kjk 80 th0,l0,e0 dk jftLVj&2 dk uewuk Hkh vkids dk;kZy; esa Hkst fn;k gwW vki tgka tkap djkuk pkgrs gSa tkap djk ys]a mDr esy dks fnukad 5-9-2013 dks gh buds }kjk ns[kdj Jh deys'k dks dkeZ fd;k x;k gSa ea=h egksn;k ds ekSf[kd vkns'kkuqlkj izkIr MIS iaft;ksa ds lsV ¼11 iaft;ksa dk lsV½ esa ls 332 lsV ¼izR;sd eas 11 iath½ dks lacaf/kr CDPO dks izkIr djk;k x;k rFkk 'ks"k 255 ¼nkS lkS ipiu½ lsV viuk ?kj fLFkr LVksj esa j[kk x;k gSa ea=h egksn;k }kjk fn, x, funsZ'k ds vkyksd esa Kkikad 4409 fn0 02-09-
2013 ds }kjk ckjg iaft;ksa ds lsV dh tkap gsrq dsUnzh; yqXnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj ¼m0iz0½ dks Hkstk x;k ftlesa ls jftLVj&2 buds funs'kky; esa fnukad 5-8-2013 dks izkIr gqvk FkkA mys[kuh; gS fd xSyDs lh izsl izk0 fy0 y[kum }kjk jftLVj&2 dk ek= pkj izfr gh fn0 5-8-2013 dks ICDS funs'kky; esa izkIr djk;k x;k Fkk ftlesa ls gh ,d izfr dks tkap gsrq dsUnzh; yqXnh ,oa dkxt Patna High Court CWJC No.25151 of 2013 97 vuqla/kku laLFkku] lgkjuiqj dks Hkstk x;k FkkA xSyDs lh izsl ds }kjk fnukad 5-8-2013 dks Hksts x, jftLVj&2 ds pkj izfr ds vykok deh Hkh ICDS funs'kky; dks jftLVj&2 miyc/k ugha djk;k x;k gSA dsUnzh; yqXnh ,oa dkxt vuqla/kku laLFkku lgkjuiqj }kjk flQZ tkap izfrosnu Hkstk x;k gS rFkk tkap gsrq Hkstk x;k uewuk dks vius ikl j[k fy;k gSaA fnukad 06-08-2013 dks xSyDs lh izsl }kjk esy ds ek/;e ls Hksts x, i= dh izkfIr iat a h esa fnukad 5-8-2013 ds frfFk esa p<+kus gsrq esjs }kjk fdlh deZpkjh dks funsZf'kr ugha fd;k x;k FkkA ;gh esjk c;ku gSaA g0@& eukst dqekj pkS/kjh 15@5@14 15-05-14 Dy.S.P. E.O.U."
92. As has been already discussed above in the preceding paragraphs, in the chronological order of the events, that on 13.05.2013, the petitioner along with tender documents had furnished only six pages of papers and boards along with tender documents on which it was declared last bidder (L-1) and was sought to be awarded contract. Subsequently, on 15.05.2013, Mr. Manoj Kumar Chaudhary, the Procurement Officer, had gone out of way to direct the petitioner to submit 40 sets of sample of registers and when on their receipt and examination by the Superintendent of Gulzarbag Government Press in his report dated 27.06.2013 and as also in the notesheet Ms. Vandana Preyasi, Director, ICDS dated 29.06.2013, it became established that they too did not meet the prescribed specification as per the terms and conditions of N.I.T., yet another letter was written by Mr. Manoj Patna High Court CWJC No.25151 of 2013 98 Kumar Chaudhary, the Procurement Officer, on 02.07.2013 asking the petitioner to furnish another 587 sets of fresh sample of registers. The petitionier claimed before the E.O.U. to have supplied the 587 sets of sample registers prior to 01.08.2013 whereas Manoj Kumar Chaudhary had claimed to have received them on 05.08.2013. The officials of the E.O.U. however in their report have found no firm date of receipt of such 587 sets of registers in the department much less on or before 5.8.2013.
93. In any event the first letter of the petitioner after executing the agreement on 01.08.2013 received in the department on 08.08.2013, it was admitted by Mr. Pankaj Gupta the representative of the petitioner that till that date the pages of register-2 were only of 56 GSM. In fact the second letter dated 05.09.2013, of Mr. Pankaj Gupta also is a clear proof of sending of fresh sample of register-2 only on 05.09.2013, and therefore, the claim of Smt. Niharika Gupta, the Managing Director of the petitioner company, before the Investigating Officer of the E.O.U on 12.05.2014, that fresh sample of 4 registers were made available to the department on 28.08.2013, in absence of the official receipt of such register in the department, would never inspire confidence specially when Mr. Manoj Kumar Chaudhary, the Procurement Officer, in his statement before the Investigating Officer of E.O.U as quoted above had clearly mentioned that after Patna High Court CWJC No.25151 of 2013 99 05.08.2014, no register from the petitioner was received. In fact, according to Mr. Gupta if he is to be believed those four samples of register-2 with 80 G.S.M. paper were received in the department from the petitioner on 05.08.2014, but then that also is incorrect and infact impossible because in that case neither the representative of the petitioner namely Mr. Pankaj Gupta had any reason to write a letter in the alleged date of 06.08.2013 nor reiterate the same facts in its two subsequent letters dated 05.09.2013 and 29.03.2013.
94. All these aspects have been gone into at length in the final report of E.O.U. dated 19.06.2014, relevant portion whereof reads as follows:-
^^vc rd ds tkap esa fuEufyf[kr rF; izdk'k esa vk;s gS& 1- vc rd tkap ,oa dk;kZy; ds vfHkys[k ls Li"V gS fd feyhHkxr ls fjflV uEcj NsM_&NkM+ fd;k x;k ftlesa jkeizo's k jke ds lfEefyr gksus ds Li"V lk{; miyC/k gaSA 2- jftLVj&2 iath ds tkap ds laca/k esa Li"V gS fd iwoZ ea=h egksn; ds le{k miLFkkfir jftLVj&2 xqykch jax dk 56 th0,l0,e0 dk Fkk ftl laca/k esa xSysDlh izsl izk0 fy0 }kjk Lp;a vius i= fnukad 06-08-13 ds ek/;e ls Lohdkj fd;k x;k gS fd Hksts x, jftLVj&2 esa 56 th0,l0,e0 dk xqykch jkax dk dkxt dk bLrseky fd;k x;k gS ,oa 80 th0,l0 ,e0 isij dk jftLVj&2 ,djkjukek gksus ds mijkUr QsDVzh ls rS;kj djk dj vkiwfrZ fd;k tk;sxk] ftl i= dks Jh eukst dqekj pkS/kjh ds }kjk fnukad 12-08-13 lhu fd;k x;k Fkk ,oa iwoZ ea=h dk fir i= fnukad 13-08-13 dks lhu fd;k x;k Fkk blls Li"V gksrk gS fd Jh eukst dqekj pkS/kjh ,oa deys'oj dqekj flag dks irk Fkk fd iwoZ ea=h egksn;k ds le{k miLFkkfir jftLVj&2 56 th0,l0,e0 ds dkxt dk cuk gqvk FkkA 3- Jh eukst dqekj pkS/kjh us vius fyf[kr c;ku esa dgk gS fd mUgksua s ogh jftLVj&2 iath dk uewuk tkap gsrq dsUnzh; yqxnh ,oa dkxt Patna High Court CWJC No.25151 of 2013 100 vuala/kku laLFkku] lgkjuiqj dks Hkstk tks iwoZ ea=h egksn;k ds le{k miLFkkfir fd;k x;k Fkk ,oa og jftLVj&2 fnukad 05-08-13 dks vkbZ0lh0Mh0,l0 funs'kky; esa xSyDs lh izl izk0 fy0 }kjk izkIr djk;k x;k FkkA 4- xSysDlh izsl izk0fy0 ds }kjk vius fyf[kr izfrosnu essa Li"V fd;k x;k gS fd 01-08-13 dks ,djkjukek ds iwoZ mUgksaus 12 jftLVjksa ds 587 lsV ds uewus vkbZ0,l0Mh0,l0 funs'ky; fcgkj iVuk dks miyc/k djk fn;k Fkk ,oa fnukad 28-08-13 dk jftLVj&2 dks LisflfQds'ku ds vuqlkj 80 th,l,e ds dkxt ij cuokd vkbZlhMh,l funs'kky; dks 04 izfr miyC/k djk nh Fkha tcfd Jh eukst dqekj pkS/kjh }kjk vius fyf[kr c;ku esa Li"V fd;k gS fd mUgsa xSyDs lh izsl izk0fy0 }kjk fdlh Hkh izdkj dk jftLVj&2 fnukad 28-087-13 dks miyC/k ugha dj;k x;k gS vkSj 58 lsV ds uewus esa 11 jftLVjksa ds lsV izkIr djk;k x;k Fkk ftlesa jftLVj&2 ugha FkkA 5- dsUnh; yqxnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj us vius tkap esa lHkh 12 jftLVj dk lsV ¼jftLVj&2 lfgr½ dks Hkkjr ljdkj ds ekud ds vuq:i ik;k x;k gS rFkk tkap izfrosnu dks vkbZ0lh0Mh0,l0 funs'kky; esa Hkstk x;k gSa dsUnzh; yqxnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj }kjk Hksts x;s tkap izfrosnu ds lR;kiu gsrq iq0fu0 fefFkys'k dqekj >k] vkfFkZd vijk/k bdkbZ] fcgkj iVuk dks lgkjuiqj fLFkr dsUnzh;
yqxnh ,oa dkxt vuqla/kku laLFkku Hkstk x;k tgka ij muds }kjk fnukad 12-06-14 dks tkap ds dze esa viuj;h xbZ izfdz;kvksa dks foLr`r :i ls ns[kk x;k ,oa tkap dRrkZ }kjk iz;ksx'kkyk esa ys tkdj iqu% buds le{k tkap fd;k x;k vkSj tkap ds dze eas iwoZ esa fn;s x;s tkap izfrosnu ds vuq:i gh ik;k x;kA Hksts x;s uewuk ds lHkh iath ds fdlh Hkh fyLV ij ekuuh; iwoZ ea=h egksn;k vFkok fdlh inkf/kdkjh dk gLrk{kj ugha Fkk vkSj Hksts x;s uewuk ds lHkh iaft;ksa dks lqjf{kr dsUnzh; yqxnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj esa j[kk x;k gSaA Jh eukst dqekj pkS/kjh us vius fyf[kr c;ku esa crk;s gSa fd dsUnzh; yqxnh ,oa dkxt vuqla/kku laLFkku lgkjuiqj }kjk tkap esa Hksts x;s uequs vkbZ-lh-Mh-,l funs'kky; esa izkIr ugha gq;s] ek= tkap izfrosnu izkIr gqvk gSaA 6- ekuuh; iwoZ ea=h egksn;k lekt dY;k.k foHkkx] fcgkj ds c;ku ls Li"V gS fd fnukad 07-08-2013 dks izkDs ;ksjesaV inkf/kdkjh eukst dqekj Patna High Court CWJC No.25151 of 2013 101 pkS/kjh ,e0vkbZ0,l0 iaft;ksa dk ,d lsV ¼iat a h la[;k 1 ls 12 rd½ ysdj muds dk;kZy; esa x;s FksA izksD;ksjesaUV inkf/kdkjh eukst dqekj ds le{k gh iaft;ksa dk feyku@tkap fd;k x;k rFkk tkap esa jftVj&2 ds i`"Bksa dh la[;k ,oa otu es deh ik;h xbZ] rRi'pkr jftLVj&2 ds lHkh i`"Bksa ij muds }kjk gLrk{kj fd;k x;k Fkk ,oa miyc/k djk;s x;s jftLVj fufonk ds fof'kf"V;ksa ,oa uewuksa ds vuq:i ugha ik;s tkus ij rduhdh tkap djkus vkSj vkiwfrZ dRRkZk ds fo:n~/k dkjZokbZ djus dk vkns'k fn;k FkkA fnukad 14-01-2014 dks Jh v'kksd dqekj ds }kjk dsUnzh; yqzxnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj ds }kjk iath ds uewuksa dh tkap laca/kh izfrosnu fn;k x;k] tks Hkkjr ljdkj ds uewuk ds vuq:i ik;k x;k tcfd fufonk nkrk ds }kjk gh Lohdkj fd;k x;k gS fd jftLVj&2 esa isij 56 th-,l-,e- yxk;k x;k gSa blh izdkj izksD;ksjesaV inkf/kdkjh eukst dqekj pkS/kjh }kjk ekuuh; iwoZ ea=h }kjk gLrk{kfjr iath ds uewuksa dks u Hkstdj fdlh vU; uewuksa dks tkap gsrq Hkst fn;k x;kA 7- fnukad 6-08-13 dks xSyDs lh izsl izk0fy0 }kjk esy ds ek/;e ls Hksts x;s i= ij izkfIr la[;k 3773 fnukad 05-08-13 vafdr dh xbS gS tcfd i`"B 448@i0 ij iwoZ ea=h egksn;k }kjk fnukad 07-08-13 dks Hksts x;s ihr i= dh izkfIr la[;k 3587 fnukad 12-08-13 vafdr dh x;h gSA tkap ds dze esa Li"V gqvk gS fd vkbZ-lh-Mh-,l- funs'kky; esa vyx&vyx izkfIr iath esa izfof"V dh x;h gSA 8- dsUnzh; yqxnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj ds oSKkfud Jh ,l0ds0xks;y us nwjHkk"k ij bl lac/a k esa okrkZ dh x;h fd vxj 56 th0,l0,e0 ,oa 80 th0,l0,e0 dkxt ls leku vkdj ,oa ist ds iath cuk;k tk; rks mudh fderksa esa D;k vUrj gksxk ftlij muds }kjk Li"V fd;k x;k fd 80 th0,l0,e0 ls fufeZr iath dk fder vuqekur% 25 izfr'kr vaf/kd gksxkA LFkkuh; cktkj ls Hkh irk djus ij ;gh ckr crk;h x;hA fu"d"kZ%& tkap es vk;s rF;ksa ds vkyksd esa Li"V gksrk gS fd Jh eukst dqekj pkS/kjh rRdkyhu izksD;ksjesaV inkf/kdkjh lg uksMy inkf/kdkjh ,oa Jherh fugkfjdk xqIrk Mk;jsDVj] xSyDs lh izsl izk0fy0] vej Hkou] gkml ua0 539 ds@152] dflyk QStkckn jksM] y[kum& 22016 ds c;ku esa dkQh fojks/kkHkkl gSa ebZ 2013 esa vkbZ-lh-Mh-,l] funs'kky; }kjk ekaxs tkus ij Patna High Court CWJC No.25151 of 2013 102 uewuk ds rkSj ij xSyDs lh izsl izk0fy0 }kjk 11 iaft;ksa dk 40 lsV ¼jftLVj&2 dks NksM+dj½ miyC/k djk;k x;k FkkA vkSj iwu% vkbZ0lh0Mh0,l0 funs'kky; }kjk ,djkjukek ds iwoZ 587 lsV ekaxs tkus ij xSyDs lh izsl izk0fy0 }kjk 587 lsV miyC/k djk;k x;k] ftlds laca/k esa vkbZ-lh-Mh-,l-] funs'kky; ds fdlh Hkh iath] uksVlhV ,oa vfHkys[k eas ;g mYys[k ugha fd;k x;k gS fd vkiwfrZ fd;s x;s 587 lsV esa jftLVj&2 miyC/k ugha Fkk vkSj u gh uksMy inkf/kdkjh ds }kjk jftLVj&2 miyD/k djkus ds laca/k esa dksbZ i=kpkj Hkh xShsDlh izsl izk0 fy0 ls fd;k x;k gSA xSyDs lh izsl izk0fy0 }kjk fnukad 06-08-13] 05-09-13] 23-09-13 ,oa 28- 1013 dks Hksts x;s fdlh Hkh i= dk toko vkbZ-lh-Mh-,l- funs'kky; }kjk ugha fn;k x;kA tcfd xSysDlh izsl izk0fy0 }kjk fnukad 12-05-14 dks esy ds }kjk Hksts x;s izfrosnu esa 12 iaft;ksa dk 587 lsV miyC/k djkus dk mYys[k fd;k x;k gS] lkFk gh lkFk fnukad 06-08-13 dks esy }kjk Hksts x;s i= esa Hkh 56 th0,l0,e0 dk jftLVj&2 Hkstus dk mYys[k fd;k x;k gSA blls izrhr gksrk gS fd xSyDs lh izsl izk0fy0 }kjk fnukad 08-08- 13 dks iath 2 dh pkj izfr 80 th0,l0,e0 dk miyC/k djkus dk mYys[k fd;k x;k gSA Li"V gS fd fnukad 28-08-13 dks xSyDs lh izsl izk0fy0 }kjk vkiwfrZ fd;s x;s 80 th0,l0,e0 ds xqykch isij dks gh tkap gsrq dsUnzh; yqxnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj Hkst fn;k x;k tcfd iwoZ ea=h egksn;k }kjk gLrk{kfjr iath ds uewuksa dks tkap gsrq Hkstk tkuk FkkA dsUnzh; yqxnh ,oa dkxt vuqla/kku laLFkku lgkjuiqj }kjk fn;s x;s tkap izfrosnu ds lR;kiu gsrq iq0fu0 fefFkys'k dqekj >k dks dsUnh; yqxnh ,oa dkxt vuqla/kku laLFkku lgkjuiqj Hkstk x;k vkSj ogka ij iq0fu0 fefFkys'k dqekj >k ds le{k iqu% tkap fd;k x;k ftlesa iwoZ esa Hksts x;s tkap izfrosnu ds vuq:i gh ik;k x;k rFkk Hksts x;s uewus ds fdlh Hkh iath ds i`"B ij ekuuh; iwoZ ea=h egksn;k ;k fdlh inkf/kdkjh dk gLrk{kj ugha Fkk tcfd iwoZ ea=h egksn;k }kjk vius c;ku esa crk;h gS fd jftLVj&2 ds izR;sd i`"B ij buds }kjk gLrk{kj fd;k x;k Fkk Jh eukst dqekj pkS/kjh rRdkyhu izkDs ;ksjesaV inkf/kdkjh lg uksMy inkf/kdkjh viuh cpko esa fnukad 05-08-13 dks ek= pkj izfr jftLVj&2 xSyDs lh izsl izk0fy0 ds }kjk miyc/k djkus dh ckr dg jgs gSa ftldk Hkh muds dk;kZy; esa dgha Hkh mYYsk[k ugha gS vkSj u gh fnukad 28-0813 dks xSyDs lh izsl izk0fy0 }kjk izkIr djk;k x;k 80 th0,l0,e0 dk Patna High Court CWJC No.25151 of 2013 103 jftLVj&2 ds pkj izfr dk gh mYys[k gSaA Jh eukst dqekj pkS/kjh ds }kjk fdl vk'k; ls ;g dk;Z fd;k x;k gS] ;g rks Li"V ugha gks ik;k gS ysfdu buds }kjk dRrZO; fuoZgu esa ?kksj ykijokgh cjrh xbZ gS vkSj ,d v{ke inkf/kdkjh gksus dk ifjp; fn;k gSA buds }kjk ekuuh; iwoZ ea=h ds le{k u rks lgh <ax ls oLrqfLFkfr dks j[kk x;k vkSj u gh muds funsZ'kksa ds vuq:i dk;Z fd;k x;k gSa] ftlds dkj.k vkxs dh dk;ZokbZ eas O;o/kku miyC/k gqvk gSA buds bl d`R; ls lEcfU/kr foHkkx dks voxr djkrs gq, buds fo:n~/k dM+h dkjZokbZ djus gsrq vuq'kalk dh tk ldrh gSA tkap esa Jh jke izos'k jke fyfid ds }kjk fnukad 06-08-13 dks xSyDs lh izsl izk0fy0 }kjk Hksts x;s esy dh izfof"V izkfIr iath esa fnukad 05-08-13 dh frfFk esa djus dh ckr vk;s gS] ftlds laca/k esa buds }kjk crk;k x;k gS fd lkaf[;dh lgk;d Jh deys'k th us crk;k Fkk fd izksD;ksjesaV inkf/kdkjh Jh eukst dqekj pkS/kjh dk vkns'k gS fd fnukad 05- 08-13 ds MasV esa xSyDs lh izsl okys ysVj dk bUVzh djuk gSaA ijUrq mDr nksuksa O;fDr;ksa ds }kjk mDr rF; dks lgh ugha crk;k x;k gSaA bl izdkj Jh jke izos'k jke }kjk Hkh vius dRrZO; dk lgh <ax a ls fuoZgu ugha fd;k x;k gSA vr% buds fo:n~/k Hkh lacfa /kr foHkkx dks ;Fkksfpr dkjZokbZ gsrq vuq'kalk dh tk ldrh gSA tkap ls xSyDs lh izsl izk0fy0 dks fdlh izdkj dk Hkqxrku fd;s tkus dk rF; izdk'k eas ugha vk;k gS vkSj bl izdkj fofRr; vfu;ferrk dk ekeyk ugha ik;k x;k gSA lefiZr g0@& ¼ikjl ukFk lkgq½ iqfyl mik/kh{kd vkfFkZd vijk/k bdkbZ fcgkj] iVukA** (underlining for emphasis)
95. Though, this Court may not like to make any comment on such report of E.O.U but then it clearly appears that many loose ends have been left by it which need to be further investigated, inasmuch as Patna High Court CWJC No.25151 of 2013 104 in its report there are sufficient material to show that criminal conspiracy was hatched and an attempt was made to defraud the Government exchequer to the tune of Rs. 4,21,64,400/-. What has really been left in the half way by officials of the E.O.U is their hurried conclusion that since the payment was not made to the petitioner and no loss was sustained by the Government, only departmental action was to be taken against Mr. Manoj Kumar Chaudhary, the Procurement Officer and Mr. Ram Pravesh Ram, an Assistant.
96. Be that as it may on filing of final report by the Economic Offence Unit dated 19.6.2014, a counter affidavit was filed on behalf of the I.G., E.O.U., the respondent no.4 on 22.6.2014 relevant portion whereof reads as follows:-
"05. That the deponent states that it is gathered that on the issue of quality of goods (Register) matter was referred by the Department (Integrated Child Development Scheme Directorate) to the Economic Offences Unit for inquiry.
06. That the deponent states that based thereupon this Hon'ble Court was pleased to call for a status report/progress in the enquiry conducted by the Economic Offences Unit in view of the stand taken by the procuring department.
07. That the deponent states that based on the complaint the Economic Offences Unit through a team lead by senior officer held a detail enquiry into the allegations in order to find real state of affairs.
08. That the deponent states that it is gathered that this Patna High Court CWJC No.25151 of 2013 105 petitioner was selected being the lowest tenderor for supply of eighty two thousand MIS Registers (Register No.1 to 12) and prior to execution of the agreement the petitioner upon demand by the Integrated Child Development Scheme Directorate (I.C.D.S.) supplied forty sets of registers as and by way of sample in the month of May, 2013 and later on the ICDS again asked for supplying 587 sets of registers as and by way of samples which was supplied and ultimately on 01.08.2013 agreement was executed in between the petitioner and the ICDS.
09. That the deponent states that it is gathered that from the 587 MIS Registers samples so supplied one set consisting of Registers 1 to 12 were placed for perusal on 07.08.2013 before the then Minister of the Social Welfare Department by Shri Manoj Kumar Choudhary, Procurement Officer of ICDS Directorate which was compared by the then Minister herself in view of extant parameters/specifications of the Government of India who found the same to be not as per the specification/parameters and she herself signed on Register 2's pages and directed for a technical enquiry whereafter the Central Pulp & Paper Research Institute, Saharanpur was requested by the ICDS Directorate to examine the sample and thereafter based on the request the Institute issued test report on 08.01.2014 holding that more or less the samples are as per the specifications/parameters.
10. That the deponent states and it is gathered during enquiry that an e-mail of the petitioner dated 06.08.2013 with respect to use of 56 GSM paper in Register 2 was received in the ICDS Directorate on 06.08.2013 itself as 5.52 P.M., however, the same was illegally entered into the receipt book with antedated entry of 05.08.2013 by the clerk, namely, Ram Pravesh Patna High Court CWJC No.25151 of 2013 106 Ram and the mail was not brought to the knowledge of the then Minister when she was comparing the registers vis-à-vis Government's specifications on 07.08.2013.
11. That the deponent states that it is also gathered during enquiry that Sri Manoj Kumar Choudhary, the Procurement Officer of the ICDS Directorate who was the Nodal Officer for Printing and Supplying of MIS Register sent set of those MIS Registers (Register 2) for examination by the Central Pulp & Paper Research Institute, Saharanpur, four sets whereof were supplied as and by way of sample by the petitioner on 28.08.2013 whereas the then Minister's instruction was to send such Register 2 which was made from 56 GSM and which was put up before the then Minster on 07.08.2013 and carrying the counter signature of the then Minister. Although it is a fact that the petitioner admitted in its e-mail dated 06.08.2013 that the Register 2 is not as per specification and for bringing it at par with the specification of 80 GSM work order is required, however, later on four set of sample Register 2 of 80 GSM was enabled by the petitioner as stated above.
12. That the deponent states that in fact Sri Manoj Kumar Chaudhary was examined by the sleuths of the Economic Offences Unit during enquiry who tried to mislead/misguide the authorities by making false and contradictory statements. He stated that on 05.08.2013 the petitioner supplied only four sets of Register 2 and one set was placed before the then Minister and prior to that 587 Sets of 11 Registers only were supplied excluding Register No.2 which was found to be blatantly false. In fact various other facts came during inquiry which proved that Sri Chaudhary is making false statements and diverting the enquiry.Patna High Court CWJC No.25151 of 2013 107
In fact Sri Choudhary did not abide by the instruction of the then Minister and did not send for examination by the Institute those registers which were countersigned by the then Minister herself which creates doubts over his conduct.
13. That the deponent states that it also came during enquiry that the petitioner while sending samples in 587 sets included Register 2 and the petitioner also intimated in advance that Register 2 is prepared in 56 G.S.M. paper and for preparation of 80 GSM Register 2 work order is required so that 80 GSM paper is manufactured in the Factory. However, later on four sets of Register 2 as per specification was supplied as and by way of sample on 28.08.2013 which was sent for test to the Institute and found as per specification (more or less).
14. That the deponent states that in fact sleuths of the Economic Offences Unit also visited the Central Institute at Saharanpur and held a spot enquiry to corroborate the evidences and examined the sample received at the Institute and inquiry at the Institute proved that the samples supplied by the ICDS is available in the Institute and in presence again the same was examined which was found to be of nearly 80 GSM however the counter signed Register 2 by the then Minister was not found whereas the then Minister specifically stated before the sleuths of the Economic Offences Unit that she had counter signed the sample for getting it examined by the Institute and it proved beyond any iota of doubt that the Procurement Officer falsely deposed before the sleuths and he has been misguiding and misleading during the enquiry. In fact the then Minister categorically stated that on 07.08.2013 Shri Manoj Kumar Choudhary went into her office with MIS Registers one set carrying Register Patna High Court CWJC No.25151 of 2013 108 1 to 12.
15. That the deponent states that during enquiry action of the Procurement Officer Shri Manoj Kumar Choudhary as well as the clerk Ram Pravesh Ram was found not as per settled practice.
16. that the deponent states that although no foul play could be gathered as attributable against the petitioner or no financial loss to the Government could be traced but it still remained elusive as to why the petitioner printed Register 2 on 56 GSM paper when the tender was for 80 GSM for Register 2 as it is petitioner's only explanation that Register 2 at 80 GSM can be printed upon issuance of work order. Similarly it also remained elusive as to why the Nodal Officer Shri Choudhary stated that only 11 Register as against 12 Register were received whereas the e mail of the petitioner dated 6.8.2013 speaks that Register 2 is 56 GSM being sent as sample which was not denied through any departmental communication.
17. That the deponent states that overall in the considered view of the Economic Offences Unit the action of the Procurement Officer Sri Manoj Kumar Choudhary as well as the Clerk Ram Pravesh Ram falls within the ambit of misconduct warranting disciplinary proceeding and till date financial loss is not proved to the State's Exchequer."
97. This Court, on perusal of the aforesaid report of E.O.U. in the counter affidavit of the respondent no.4 Economic Offence Unit by its order dated 26.6.2014 had granted time to the respondent no. 2, the Secretary to the Department to file his response but surprisingly the response on affidavit which was filed in this court on behalf of Respondent no. 2, the Director on 3.7.2014, it was Patna High Court CWJC No.25151 of 2013 109 mentioned as follows:-
"4. That that on the confusion created by the circumstances the matter was referred to the Economic Offence Unit for enquiry by the then Hon'ble Minister.
As such, the Department was waiting for the outcome of the enquiry.
Now on bare perusal of the Counter Affidavit filed by the Economic Offence Unit, it appears that financial loss is not proved to the states Exchequer. It is needless to state that no any enquiry report has been given to the Department by Economic Offence Unit.
In this view of the matter now the Department has got no any impediment to receive the supply, if the materials in question are supplied as per specification mentioned in tender notice.
5. That due to non supply of Revised MIS Register in time the scheme related to Child, Women and deprived people is hampered.
6. That the Hon'ble Court may also consider this aspect of the matter and may please to pass appropriate order."
(underlining for emphasis)
98. From the aforesaid affidavit of Respondent no. 2, it became clear that the Minister who had enquired in to the matter was no longer in office and that is how a hostile stand was taken with regard to the then Minister that under some confusion created by the circumstances, she had referred to the matter to the Economic Offence Unit whereas the inescapable fact was/is is that the Minister was right in her conclusion with regard to the discrepancy committed in course of awarding the contract to the petitioner and also shielding such Patna High Court CWJC No.25151 of 2013 110 contract by use of deceit both by the petitioner and/or officials of the department.
99. This court having thus perused the supplementary counter affidavit earlier filed on 10.4.2014 by the respondent no.2 as also the counter affidavit of the E.O.U. filed on 26.6.2014 had not placed its reliance on the aforesaid supplementary counter affidavit filed on 3.7.2014 developing a story of confusion in the mind of the Minister to be the cause for referring the matter to the E.O.U. and had called for the relevant government files vide its order dated 18.7.2014 which reads as follows:-
"Having regard to the very vague stand taken in the counter affidavit in respect of both the prayers made in this writ application, this Court would direct for personal appearance of the deponent, Assistant Director (Incharge Legal Cell), I.C.D.S Directorate, Department of Social Welfare, Government of Bihar, Patna along with relevant Government file which can show that the Government has now already decided to issue the work order and also take supply of materials from the petitioner."
100. Such file was not produced on the next day i.e. 22.7.2014 and a prayer made by the AAG-10 to adjourn this case to 1.8.2014 which was allowed on 24.7.2014 fixing the date on 1.8.2014. Patna High Court CWJC No.25151 of 2013 111
101. When the Government file was produced before this Court and was perused by this Court to find out as to whether a concious decision was taken to get supply from the petitioner contrary to the earlier decision of the then Minister who as noted above had already passed order to take action against the petitioner on 06.11.2013 by way of cancellation such contract and also for taking steps for blacklisting the petitioner, it did not find any such decision taken therein by the State Government or the departmental Secretary or even the Director, ICDS on or before 02.07.2014 on the basis of such supplementary counter affidavit had been sworn and filed on 03.07.2014 by Ms. Chandani, the Assistant Director, ICDS, stating that the department had no impediment in receiving supply of registers from the petitioner.
102. From the perusal of the file it is also clear that after enquiry was entrusted by the department to the E.O.U. on 18.01.2014, the file had remained in the cell of the Director from 18.01.2014 to 14.03.2014 and was sent to Mr. Manoj Kumar Chaudhary, the Procurement Officer, only on 14.03.2014. After 14.03.2014 in the file last notesheet at page-89 only bears an endorsement in the date of 20.06.2014, for sending a letter as with regard to inter state meeting to be held on 23.06.2014, for intimating the District Programme Officer as with regard to receiving of sample registers. The notesheet at page Patna High Court CWJC No.25151 of 2013 112 89 of the file ends on 30.06.2014, at clerical level and at the level of Procurement Officer, who on 30.06.2014 had endorsed the file for giving certain information under Right to Information Act and his order and the file had in fact returned from the level of Director on 30.06.2014, with an endorsement to the Procurement Officer to (d`i;k foe'kZ) "please discuss" as would more clear from the typed portion of note sheet of the file in between the dates of 18.01.2014 to 30.06.2014 which reads as follows:-
^^d`0 iwoZ i`0 ij Hkonh; funs'k ds vkyksd esa lafpdk dh Nk;kizfr vkfFkZd vijk/k vuqla/kku bdkbZ] iVuk dks Hkstus i= dk izk:i vuqeksnukFkZ LoPN izfr gLrk{kj gsrq layXuA lfpo g0@& 18@1@14 uhye xqIrk g0@& 18@1@14 jkftr iqugkuh g0@& vLi"V g0@& 18@1@14 14@3@14 okil P.O. ls djsAa Jh enu ckcw d`i;k mijkaDr vkns'kA ;g lafpdk izksD;ksjesaV 'kk[kk dh gSa izksD;ksjesaV inkf/kdkjh dks lafpdk i`"Bkafdr dh tk ldrh gSA d`i;kA g0@& 14@2@14 ¼enu flag½ lka0 l0 lgk;d fuca/ku&2 g0& vLi"V 14@3@2014 funs'kkuqlkj izksD;ksjeasV inkf/kdkjh ds dN ,o viuk ?kj eas j[ks x;s 'ks"k MIS iaft;ksa ds ,d lsV dks ftu ftyk izks0 ink0 ,oa ck0 fo0 ifj0 inkf/kdkjh }kjk mBko ugha fd;k x;k gS dks fn0 23-6-14 dks vkgqr jkT; Lrjh; cSBd ds fnu lacaf/kr ftyk izks0 inkf/kdkjh dks gLrxr djkuk gSa lacaf/kr ftyk izks0 inkf/kdkjh bldh lwpuk nh tk Patna High Court CWJC No.25151 of 2013 113 ldrh gSa i= izk:i vuqeksnukFkZ ,oa gLrk{kjkFkZ miLFkkfirA g0@& 20@6@14 funs'kd i=kad 757@eq0 fn0 20-6-14 d`i;k i=kpkj i`"B la0 619 dk voyksdu djuk pkgsx a sA yksd lwpuk ink0 us Jh yo flag dks yksd lwpuk vf/kdkj ds rgr 'ks"k lwpuk miyc/k djkus dk vuqjks/k fd;k gSaA ekU; gks rks 'ks"k lwpuk miyC/k djk;k tk ldrk gSA g0@& vLi"V 23@6@14 izks0 inkf/kdkjh d`i;k foe'kZA g0@& vLi"V 30@6@14**
103. Thus, it became clear to this Court on perusal of the main file that an attempt was made to mislead even this Court in the supplementary counter affidavit filed on behalf of Secretary on 03.07.2014 sworn by Miss. Chandini Deputy Director, I.C.D.S. that the Government had taken a decision that it had no impediment to receive the supply from the petitioner. The whole idea therefore of the officials of the department by filing of misleading supplementary counter affidavit on 03.07.2014, was to get stamp or seal of authority from this Court so that the authorities in directorate of ICDS could go ahead by acting upon the agreement dated 01.08.2013, by way of receiving supply of the registers from the petitioner.Patna High Court CWJC No.25151 of 2013 114
104. Had this Court not nabbed this sinister design of receiving supply of the registers by the petitioner, the deal could have been completed but this Court having found gross illegality in the manner of award of contract as also clear evidence of corrupt practices adopted in the attempt of sharing of the booty of Rs.
4,21,64,400/- had refused to allow the respondent nos. 1, 2 and 3 to act upon the agreement of the petitioner while examining the whole matter at length. It must be noted here with a sense of disgust that of- late, a practice has developed in the offices of the State Government that everything is being done in the name of "ekuuh; mPp U;k;ky; ds vkns'kkuqlkj" and the Government officials very conveniently take shelter even on an order of adjournment recorded under the order of this Court.
105. The matter thereafter was accordingly heard on 6.8.2014 and 8.8.2014, 12.8.2014 and on 19.8.2014. Learned counsel for the State was directed to produce the registers which was signed by the Minister on each and every page as well as the sample copy of tender documents which was submitted by the petitioner at the time of his filing of tender document on 13.05.2013. That, however, was not produced and a prayer for adjourning the case was made for a period of fifteen days and, as such, this Court by order dated 21.8.2014 had directed for personal appearance of the Principal Secretary and the Patna High Court CWJC No.25151 of 2013 115 Director, I.C.D.S. for producing the records and answering the query of the Court.
106. On 22.8.2014, though the Secretary to the Department did not appear but the Director, I.C.D.S. was present and had informed this Court that no final decision had been taken on the show- cause noticed issued to the petitioner on 18.12.2013 because the Minister had thereafter directed for holding an enquiry by the Economic Offence Unit but as the report of the Economic Offence Unit dated 1.8.2014 had been received recently in the Department, a final decision with regard to the show-cause notice issued against the petitioner on 18.12.2013 would be taken within a period of two weeks. The case was accordingly adjourned to 9.9.2014.
107. Having taken adjournment on 22.08.2014, from this Court, it now transpires from the perusal of the records and the file that a note was placed before the Director by Mr. Manoj Kumar Chaudhary, the Procurement Officer, wherein, proposal was given that the petitioner can be considered for being given the supply of work order only after the final decision of this Court on certain terms and conditions. This proposal of Mr. Manoj Kumar Chaudhary, the Procurement Officer, dated 05.09.2014, was allegedly placed in view of an order of the Secretary, Mr. Arvind Kumar Chaudhary though no such order of Mr. Arvind Kumar Chaudhary can be found at least in Patna High Court CWJC No.25151 of 2013 116 the file.
108. Mr. Arvind Kumar Chaudhary the departmental Secretary infact would also owe an explanation as to why and how he had orally directed Mr. Manoj Kumar Chaudhary to place a proposal before him, when Mrs. Neelam Gupta the Director, I.C.D.S. had already divested the work of procurement from Manoj Kumar Chaudhary way back on 6.1.2014 and had entrusted it to Mr. R.N. Wardiyar the Assistant Director vide an officer order contained in Memo No. 62 dated 6.1.2014 (page-650/C of the main file) The Director however on receipt of such proposal of Mr. Manoj Kumar Chaudhary, the Procurement Officer, had insisted for taking approval of the Principal Secretary and when the files were endorsed to Mr. Arvind Kumar Chaudhary the Secretary he too on 05.09.2014 had himself recorded that the matter was discussed by him with the Principal Secretary who had asked him to place a self contained note. Such self contained note surprisingly again was prepared and placed again by Mr. Manoj Kumar Chaudhary, the Procurement Officer, on 08.09.2014 though he was no longer authorised to look after the work of procurement in view of the order Director, I.C.D.S. dated 06.01.2014.
109. What would therefore really baffle this Court is as to why Mr. Arvind Kumar Chaudhary had selected only Mr. Manoj Patna High Court CWJC No.25151 of 2013 117 Kumar Chaudhary and had given oral order to place his proposal either on 4.9.2014 or prepare a self contained note on 8.9.2014. It has to be also kept in mind that the note of Mr. Manoj Kumar Chaudhary was never placed before the Principal Secretary by Mr. Arvind Kumar Chaudhary the Secretary and thus it becomes more than clear that left over work of favouring the petitioner Manoj Kumar Chaudhary was sought to be completed by Mr. Arvind Kumar Chaudhary the departmenal Secretary.
110. On 9.9.2014, learned counsel for the State filed 4 th supplementary counter affidavit in this case wherein it was mentioned as follows:-
"3. That in compliance of order dated 22.8.2014 passed by this Hon'ble Court, the following facts are being brought to the notice of this Hon'ble Court.
(i) The Director, I.C.D.S. vide letter no. 4854 dated 26.8.2014 had asked the Economic Offences Unit to make available the complete report in respect to the matter in question alongwith the evidence.
(ii) By letter No.148 dated 2.9.2014, the Economic Offences Unit made available their report which was received on the same day (2.9.2014) in the I.C.D.S. Directorate. After review of the entire matter, it was found proper to ask for detail show cause annexing the report of the Economic Offences Unit by letter no. 5133 dated 8.9.2014 from the petitioner.
4. That in view of the aforesaid fact, it is respectfully prayed that the matter may kindly be adjourned for a further period of three weeks for proper appreciation."
Patna High Court CWJC No.25151 of 2013 118
111. A copy of a fresh show-cause notice dated 8.9.2014 was also produced in the supplementary counter affidavit which, for the sake of clarity and convenience, is quoted herein below:-
^^fcgkj ljdkj lesfdr cky fodkl lsok,a ¼ICDS½ funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry] bafnk Hkou] jke pfj= flag iFk iVuk&800001 laafpdk la[;k& ICDS/50050/3-2014 5133 fnukad 08@09@2014 izs"kd] funs'kd] vkbZ-lh-Mh-,l- iVukA lsok esa] Jherh fugkfjdk xqIrk] funs'kd] XySDlh izsl izkbZosV fyfeVsM vej Hkou] gkml ua-&539 ds0@152 dlSyk] QStkckn jksM] y[kum 226016 mRrj izn's k fo"k;& lh0MCyw0ts0lh0 la[;k 25151@2013 XySDlh izsl izkbZosV fyfeVsM ouke fcgkj jkT; ,oa vU; ds laca/k esaA izlax%& ekuuh; mPp U;k;ky; dk ikfjr vkns'k fnukad 22-08-2014 egk'k;] mi;qZDr fo"k; ds laca/k esa dguk gS fd iqfyl v/kh{kd] vkfFkZd vijk/k bdkbZ }jk vius i=kad 128 fnukad 01-08-2014 ,oa i=kad 148 fnukad 02-09-2014 ls tkap izfrosnu funs'kky; dks miyC/k djk;k gSA ¼Nk;kizfr layXu½ fo"k;akafdr ekeys esa vkfFkZd vijk/k bdkbZ }kjk miyC/k djk;s x;s tkap izfrosnu ds vkyksd esa vki viuk Li"Vhdj.k i= izkfIr ds ,d lIrkg ds vUnj miyC/k djkuk lqfuf'pr djsa rkfd ekuuh; mPp U;k;ky; dks lal a wfpr fd;k tk ldsAa vuqyXud & ¼1½ iqfyl v/kh{kd] vkfFkZd vijk/k bdkbZ ds i=kad&128 fnukad 01-08-2014 ¼8 iUus½ ¼2½ i=kad& 148 fnukad 02-09-2014 ¼4 iUus½ ¼3½ iwoZ esa iwNk x;k Li"Vhdj.k vkbZ-lh-Mh-,l- funs'kky; dk i=kad&6963 fnukad 18-12-2013 ¼1 iUus½ ¼4½ Li"Vhdj.k dk fn;k x;k tcko ¼4 iUus½ ¼dqy 17 iUus½ fo'oklHkktu g0@& 8@9@14 funs'kd Kkikad %& ICDS/50050/3-2014 5133 fnukad 08@09@2014** Patna High Court CWJC No.25151 of 2013 119
112. From perusal of the file, however, it would be absolutely clear that this Court was again sought to be misled in the matter of issuance of fresh show cause notice to the petitioner because whatever was stated in the affidavit supported by the document by way of fresh show cause notice issued to the petitioner on 08.09.2014, was never even remotely anywhere mentioned in the noting of the file much less even any decision was taken for issuance of such show cause notice to the petitioner on 08.09.2014. This would become more evident from noting of the file from 05.09.2014 to 15.09.2013:-
^^fnukad 04-09-2014 dks lfpo] lekt dY;k.k foHkkx ds funs'kkuqlkj oLrqfLFkfr bl izdkj gS%& vkaxuckM+h dsUnzksa ds mi;ksx ds fufer efgyk ,oa cky fodkl ea=ky;] Hkkjr ljdkj] ubZ fnYyh ls izkIr funs'k ds vkyksd esa ubZ MIS iaft;ksa ds eqnz.k gsrw funs'ky; }kjk fufonk lwpuk ¼i`"B&365&338@i0½ izdkf'kr dh xbZ FkhA fufonk lwpuk ds vuqlkj vafre frfFk fnukad 13-05-13 rd dqy N% eqnzdksa }kjk fufonk nh xbZA fnukad 13-05-13 ds dz; lfefr ds le{k rduhdh fufonk [kksyus ds mijkUr pkj fufonknkrkvksa ¼1½ us'kuy fizVhalZ jkaph ¼2½ iwtk fizUVsd izk0fy0] iVuk ¼3½ xSysDlh izsl izk0fy0 y[kum rFkk ¼4½ iVuk vkWQlsV izsl iVuk dks lQy ?kksf"kr djrs gq, mudh foRrh; fufonk [kksyus dk fu.kZ; fy;k x;k tcfd ¼1½ U;w jru fiz;k] iVuk dks 2009&10 dk Turn Over ,oa Lo?kks"k.kk ugha jgus ,oa ¼2½ okbZ0,l0 gkbZVd s ] gSnjkckn dks dkxt ,oaa cksMZ dk uewuk ugha jgus ds dkj.k vlQy ?kksf"kr fd;k x;ka rRi'pkr foRrh; fufonk [kksyh xbZ ftldh fooj.kh fuEu izdkj gS%& dzekad fufonkrk dk uke ,oa irk vafdr nj 1 us'kuy fizUVlZ] jkph 6]56]82]000-00 2 iwjk fizUVsd izk0fy0] iVuk 5]46]12]000-00 3 xSyDs lh izsl izk0fy0] y[kum 4]21]64]400-00 4 iVuk vkWQlsV izsl] iVuk 5]41]20]000-00 bl izdkj es0 xSyDs lh izsl izk0fy0 y[kum dk nj U;wure jgus ds dkj.k L1 ?kksf"kr fd;k; x;k ,oa mls fufonk vokMZ fd;k x;kA Patna High Court CWJC No.25151 of 2013 120 xSysDlh izsl izk0 fy0] y[kum }kjk fnukad 01-08-2013 dks ,djkjukek fd;k x;k ftldh dafMdk 5 esa mYys[k gS fd ,djkjukek dh frfFk ls 60 fnuksa ds vUnj lHkh cky fodkl ifj;kstuk dk;kZy; dks iath miyC/k djk nh tk,xhA rRk'pkr~ funs'kky; ds i=kad 2711 fnukad 03-
06-2013 ds vkyksd esa xSyDs lh izsl }kjk 11 iaft;ksa dk ¼iath&2 dks NksM+dj½ 587 lsV iath miyC/k djk;h xbZ ,oa ckn esa iath&2 dh 4 izfr miyC/k djk;h x;hA fnukad 05-08-13 dks ekuuh; rRdkyhu ea=h }kjk vius dk;kZy; d{k esa uewuksa dk otu ysdj tkap djk;h Fkh ,oa mUgksaus vius xS0l0 izs0 la0 2138] fnukad 07-08-2013 }kjk funs'k fn;k Fkk fd tkap esa izkIr uewuk fufonk dh fof'kf"V;ksa dh vuq:i ughas gSA vr% izkIr djk;s x;s ueuksa dh rduhdh tkap djk;h tk;A ¼i`0 448@i0 d`i;k nz"VO;½ xSyDs lh izsl }kjk miyC/k djk;h xbZ iaft;ksa dh uewuk tkap fcgkj lfpoky; eqnz.kky; xqytkjckx] iVuk ls tkap djk;h xbZ izHkkjh v/kh{kd] fcgkj lfpoky; eqnz.kky; xqytkjckz ds i=kad 1236] fnukad 27-06-2013 ls izkIr tkap izfrosnu ¼11 iaft;ksa½ eas vafdr fd;k x;k gS fd uewuksa dk eqnz.k ,oa ckbfZMax Hkkjr ljdkj ds uewuk ds vuq:i gS ysfdu lkbZt uewuk ds vuq:i ugha gSA xSyDs lh izsl ds uewuk dk fQfuLM ,oa VsDLV dk lkbZt esa fHkUurk ;kuh de gSaSA vr% izkIr uewus iz;qDr dkxt ,oa cksMZ Hkkjr ljdkj ds uewuk vuq:i gS ;k ughsa dh tkap CPRI, lgkjuiqj] mRrj izns'k ls djk;h tk ldrh gSA rRi'pkr funs'kky; ds i=kad&ICDS/25030/7-2012/4409 fnukad 02-09-2013 }kjk uewuk dh tkap gsrq CPPRI, lgkjuiqj dks Hkstk x;kA CPPRI, lgkjuiqj ls izkIr tkap izfrosnu ¼i`0 552@i0½ ds vuqlkj Galaxy Press }kjk miyC/k djk;k x;k iaft;ksa dk uewuk Hkkjr ljdkj ls izkIr uewuk ds vuq:i ik;k x;kA 12 iaft;ksa ds lsV esa iath&2 esa iz;qDr jaxhu ¼xqykch½ dkxt iwoZ esa miyC/k djk;s x;s uewuk esa 56 GSM dk Fkk tcfd ckn esa tks 4 iath&2 miyC/k djk;h xbZ Fkh] mlesa iz;qDr xqykch dkxt 80 GSM dk ik;k x;kA vkiqfrZ dRRkZk us bl ij vius izsf"kr i= ¼fnukad 06-08-13½ esa bldk mYys[k fd;k gS fd cktkj eas 56 GSM rd dk gh jaxhu dkxt miyC/k gS] mlls vf/kd vFkkZr 80 GSM dk jaxhu dkxt ds fy, Factory dks vkns'k nsdj gh izkIr Patna High Court CWJC No.25151 of 2013 121 fd;k tk ldrk gSA ;fn mUgsa vkiwfrZ vkns'k fn;k tkrk gS rks os 80 GSM dk jaxhu dkxt QSDVzh ls eaxkdj iath&2 rS;kj dj vkiwfrZ djsx a As iwoZ ekuuh; ea=h] lekt dY;k.k foHkkx ds funs'k ds vkyksd esa lafpdk la[;k&ICDS/25030/7-2012 dk tkap izfrosnu iqfyl v/kh{kd] vkfFkZd vuqla/kku bdkbZ ds i=kad 128 fnukad 01-08-2014 ,oa i=kad 148 fnukad 02-09-2014 }kjk miyC/k djk;k x;k gSa i=kad 128] fnukad 01-082014 ls izkIr izfrosnu esa vafdr gS fd ^^tkap ls xSyDs lh izsl izkbZosV fyfeVsM dks fdlh izdkj dk Hkqxrku fn, tkus dk rF; izdk'k esa ugha vk;k gS] vkSj bl izdkj foRrh; vfu;ferrk dk ekeyk ugha ik;k x;k gSA** vkfFkZd vijk/k bdkbZ us vius tkap izfrosnu eas fufonk dh izfdz;k ds laca/k esa dkbZ izfrdwy fVIi.kh ugha dh gSA ekuuh; mPp U;k;ky; esa es0xSyDs lh izsl] izk0fy0 y[kum }kjk nk;j lh0MCyq0ts0lh0 la[;k&25151@2013] xSyDs lh izsl izkbZosV fyfeVsM ouke fcgkj ljdkj ,oa vU; esa vkns'k dh izrh{kk dh tk jgh gS ,oa fnukad 22-08-2013 dks lquokbZ ds dze esa ekuuh; U;k;ky; }kjk xSyDs lh izsl ls funs'kky; ds i=kad 6963] fnukad 18-12-2013 }kjk iwNs x;s Li"Vhdj.k rFkk muls izkIr Li"Vhdj.k ,oa EOU ls izkIr tkap izfrosnu ds vkyksd esa dkjZokbZ djrs gq, fnukad 0909-2014 dks okafNr izfrosnu ds lkFk funs'kd] vkbZ0lh0Mh0,l0 iz/kku lfpo] lekt dY;k.k foHkkx dks ekuuh; mPp U;k;ky; esa mifLFkr gksuas dk funs'k izkIr gSA vr,o ekuuh; mPp U;k;ky; esa fnukd 02-07-2014 dks nk;j iwjd izfr'kiFk&i= dh dafMsdk&4 esa vafdr-**----------- now the Deptt has got no any impediment to receive the supply if the material in question are supplied as per specifications mentioned in tender notice" vkyksd esa fuEukafdr fcUnqvksa ij fu.kZ; fy;k tk ldrk gSA ^d* 1- ;fn xSysDlh izsl izkbZosV fyfeVsM }kjk fufonk lwpuk esa vafdr 'krksZa fu/kkZfjr nj ,oa fof'k"Vrkvksa ij Revise Time line ds vuqlkj iath vkiwfrZ djus gsrq lger gks rks dk;kZns'k nsus ij fopkj fd;k tk ldrk gS tcfd ekeyk vHkh ekuuh; mPp U;k;ky; es yfEcr gSaA vr% ekuuh; mPp Patna High Court CWJC No.25151 of 2013 122 U;k;ky; ds vafre fu.kZ; ds i'pkr dk;kZns'k nsus dk fu.kZ;
fy;k tk ldrk gSA
^[k* 2- Revised Tender notice esas vafdr
General Terms and conditions dh
dafMdk 7-3 esa vafdr Hkqwxrku dh 'krksZa ds vuqlkj iaft;ksa dh laiw.kZ vkiwfrZ ds mijkUr ,d ekg ds vanj 80% Hkqxrku fn;k tk,xk rFkk 'ks"k 20% dk Hkqxrku vkiwfrZ dh xbZ iaft;kas ds uewuk dh CPPRI lgkjuiqj ls tkapksijkUr xq.koRrk lgh ik;s tkus ij fd;k tk;sxkA vr,o ;fn ekU; gks rks mijksDr izLrko ij iz/kku lfpo egksn;] lekt dY;k.k foHkkx dk vuqeksnu izkIr fd;k tk ldrk gSA g0@& eukst dqekj pkS/kjh 5@9@14 funs'kd d`0 fV0 i`0 91 ls 93 rd vafdr fVII.kh voyksdukFkZA va'k ^d* ,oa ^[k* izLrko ij iz/kku lfpo dk vkns'k izkIr djuk pkgsaxsA g0@& uhye xqIrk 5@9@14 lfpo iz/kku lfpo ls foe'kZ gqvkA bl ekeys ds lHkh rF;ksa ds ckjs esa ,d foLr`r note rS;kj dj i=kpkj Hkkx ij j[ksA rnqijkar d`i;k izLrqr djsAa g0@& 5@9@2014 vjfoUn dqekj pkS/kjh funs'kd P.O. g0@& 5@9@14 Jh e.My ikj i`"B ij lfpo egksn; ds vkns'k ds vkyksd esa bl ekeys ls lacaf/kr rF; fooj.kh rS;kj dj i=kpkj Hkkx ij /kkfjr gSA vuqorhZ dkjZokbZ gsrq lafpdk miLFkkfirA g0@& 8@9@14 Patna High Court CWJC No.25151 of 2013 123 izks0 inkf/kdkjh ikj i`"B ij lfpo egksn; dk vkns'k rnuqlkj New M.I.S. iaft;ksa ds eqnz.k ls lEcaf/kr v|ru dkjZokbZ dh rF; fooj.kh lafa {ir esa rS;kj dj i=kpkj Hkkx ij miLFkkfir dh xbZ gSA d`i;k dkjZokbZ gsrq lafpdk vxzlkfjr dh tk ldrh gSA g0@& 8@9@14 funs'kd d`0 fV0 i`0 93 ij Hkonh; vkns'k ds vkyksd esa Li"V izfrosnu lafpdk ds i`0 686&681@i0 Hkkx ij jf{kr dj fn;k x;kA fnukad 9@9@14 dks ekuuh; mPp U;k;ky; ls le; dh ekax dh x;hA bl lafpdk ds lkFk fuEukafdr lafpdkvksa ds layXu fd;k tkrk gSA%&
(i) ICDS/10015/04-2012
(ii) ICDS/50050/3-2014
(iii) "
vxzsRrj dkjZokbZ gsrq lafpdk miLFkkfirA g0@& 15@9@14 uhye xqIrk lfpo P.S. g0@& 19@9@14 (underlining for emphasis)
113. This Court however being not aware of the game being played by Mr. Arvind Kumar Chaudhary, the Secretary in view of time sought to issue show cause notice to the petitioner as prayed by Mrs. Neelam Gupta, Director, ICDS in its order dated 9.9.2014 had Patna High Court CWJC No.25151 of 2013 124 adjourned the case for three weeks fixing it for 15.10.2014 :
114. It appears that having obtained time from this Court on 9.9.2014, for a period till 15.10.2014, Mr. Arvind Kumar Chaudhary, the Secretary to the Social Welfare Department who earlier as per his own note dated 5.9.2014 was required to place the matter before the Principal Secretary had straightway on 7.10.2014 had put up the matter before Smt. Lacy Singh the minister in which he had recommend for award of contract on fresh terms and conditions by giving new offer to the petitioner. Surprisingly, while making such recommendation he had also recommended for taking action against the officials who were found to have been indulged in anti-dating the receipt of the petitioner in the date of 05.08.2013. This would become very clear from his note given in the file on 07.10.2014 directly to the departmental Minister over-reaching the Principal Secretary with whom he had discussed the matter as recorded by him on 05.09.2014 which reads as follows:-
^^d`i;k i`0 91@fV0 ls fVIi.kh dk voyksdu fd;k tk;A oRrZeku lafpdk essa vkaxuokM+h dsUnzks gsrq u;s jftLVj ds eqnz.k ds lac/k esa dkjZokbZ dh tk jgh gSa bl laca/k esa funs'kd] vkbZ0lh0Mh0,l0 }kjk rS;kj rF;kRed fooj.k lafpdk ds i`"B 686&681@i0 ij jf{kr gSa bl ekeys esa rF; ;g gS fd fofgr izfdz;kuqlkj vkbZ0lh0Mh0,l0 funs'kky; }kjk vkaxuokM+h dsUnzaks gsrq fofHkUu New M.I.S. jftLVjksa ds eqnz.k gsrq fufonk vkeaf=r dh xbZA fnukad 13-05- 2013 dks foRrh; fufonk [kksyh xbZA bl fufonk esa U;wure fufonk nkrk esllZ xSyDs lh izsl izkbZosV fyfeVsM] y[kum] mRrj izns'k Fks ftuds }kjk vafdr nj dqy 4]21]64]400-00 :i;s ¼dqy pkj djksM+ bDdhl yk[k pkSalB gtkj pkj lkS :i;s½ Fkk ,oa f}rh; fufonk nkrk esllZ iVuk vkWQlsV izsl] iVuk Fks ftuds }kjk vafdr nj dqy 5]41]20]000-00 :i;s ¼ikap djksM+ ,drkyhl yk[k chl gtkj :i;s½ FkkA Patna High Court CWJC No.25151 of 2013 125 rnksijkar izksD;ksjesaV inkf/kdkjh] vkbZ0lh0Mh0,l0 funs'kky; ds i=kad 2340 fnukad 16-05-2013 }kjk esllZ xySDlh izsl izkbZosV fy0 y[kum dks Hkkjr ljdkj }kjk miyC/k djk;h xbZ iaft;ksa ds uewuksa ,oa fizaV jsMh lh-Mh- layXu djrs gq, 40 lsV uewuksa dh ekaax dh xbZA vkiwfrZdRrkZ ls 40 lsV iath izkIr gksus ds i'pkr funs'kd] vkbZ-lh-Mh-,l- ds ihr i= la[;k 612 fnukad 29-05-2013 ¼i`"B 397@i0 nz"VO;½ }kjk ,d lsV lfpo ,oa ,d lsV rRdkyhu foHkkxh; ea=h ds voyksdu gsrq miyC/k djk;h xbZA ihr i= esa funs'kd us vafdr fd;k gS fd New MIS Register ds eqnz.k gsrq fufonk ewY;kadu esa L1 Agency M/s Galaxy Press Pvt. Ltd. Lucknow-2006016, Uttar Pradesh (India) ls efgyk ,oa cky fodkl ea=ky;] Hkkjr ljdkj ls izkIr mDr iaft;ka ,oa ,d dSysUMj ds uewus ds vuq:i eqfnzr gksus okys iaft;ksa ds 40 lsV uewus miyC/k djkus dk vuqjks/k fd;k x;k FkkA M/s Galaxy Press ls mDr uewuksa dh 40 izfr izkIr gS ftlesa Register No.-2 ds laca/k esa muds }kjk crk;k x;k fd bl iath dk size A3 Paper ls Hkh dqN vyx gS vkSj colourful gS ftlesa dk;kZns'k vFkok ,djkjukek ds i'pkr dz; fd;k tk;sxkA fufonk ds vuqeksnu gsrq lafpdk rRdkyhu foHkkxh; ea=h dks izLrqr dh xbZ ,oa i`0 55@fV0 ij mUgksus s fuEu funs'k fn;s& i- vkiwfrZ djus ds iwoZ vkiwfrZdRrkZ dks ;g funs'k fn;k tk, fd dz; dh tk jgh Printed lkexzh dk iw.kZ lsV] vkiwfrZ vkns'k ds vuqlkj] ,d ea=h] ,d lfpo] rhu funs'kky;] 38 ftyk esa izksxzke inkf/kdkfj;ksa ds fy, rFkk lHkh iz[k.Mksa esa] cky fodkl ifj;kstuk inkf/kdkfj;ksa dks Hkstus gsrq funs'kky; esa tek djsx a sA ii- funs'kky; blds xq.koRrk ls larq"V, gksus ds mijkUr gh lHkh lac} dks Hkstuk lqfuf'pr djok,axsA iii- vkiwfrZ dRrkZ dks Hkqxrku] lacaf/kr C.D.P.Os ls izfrosnu ds i'pkr gh fd;k tk,xkA rnksijkar ?kVukdze lafpdk ij jfZ{kr fVIi.kh i`0 693&680@i0 ij ns[kk tk ldrk gSA bl chp esa U;wure fufonk nkrk esllZ xSyDs lh izsl izkbZosV fy0 }kjk ekuuh; mPp U;k;ky;] iVuk esa lh0MCyw0ts0lh0 25151@2013 Hkh nk;j fd;k x;kA ;g okn ,djkjukek ds vuq:i dk;kZns'k fuxZr djus ,oa eqfnzr lkefxz;ksa dks Lohdkj djus ds laca/k esa nk;j fd;k x;kA bl okn esa ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 22-08-14 ,oa 09-09-14 ds ikfjr vkns'k esa vkfFkZd vijk/k bdkbZ }kjk lefiZr tkap izfrosnu ¼i`0 628&621@i- ij nz"VO;½ ds vkyksd esa esllZ xySDlh izsl izkbZosV fy0 ls iwNs x;s Li"Vhdj.k ij vafre fu.kZ; ysus dk vkns'k fn;k x;k gSA vkfFkZd vijk/k bdkbZ ds i=kad 128 fof/k 'kk[kk Patna High Court CWJC No.25151 of 2013 126 fnukad 01-08-2014 rFkk i=kad 148 fof/k 'kk[kk fnukad 02-09-14 }kjk tkap izfrosnu miyC/k djk;k x;k gSA bl izfrosnu dk voyksdu i`0 635&632@i0 rFkk 628&621@i0 ij fd;k tk ldrk gSA esllZ xySDlh izsl izkbZosV fy0 ls funs'kd ds i=kad ICDS/50050/3-2014- 5113 fnukad 08-09-14 }kjk i= izkfIr ds ,d lIrkg ds Hkhrj Li"Vhdj.k ekaxk x;kA bldk tcko muds i=kad 14@th0ih0ih0,y0@2014&15 fnukad 16-09-2014 ls izkIr gqvk gSA blesa mUgksua s vafdr fd;k gS fd fufonk ds le; ls vkt rd vkbZ0lh0Mh0,l0 ds lkFk gqbZ izR;sd xfrfof/k;ksa dks mUgksua s i= }kjk le;≤ ij lwfpr fd;k gSA mudh rjQ ls ikjnf'kZrk cjrh xbZ gSA mUgksua s fnukad 05-09-13 ds i= }kjk dk;kZns'k dh ekax dh ,oa 50 izfr'kr eky cu tkus dh lwpuk nh Fkh fQj Hkh dk;kZns'k ugha fey ikus vkSj eky dh lIykbZ ugha fy;s tkus ds dkj.k mUgsa ekuuh; mPp U;k;ky; dh 'kj.k ysuh iM+hA mUgksus ;g Hkh fy[kk gS fd vkfFkZd vijk/k bdkbZ }kjk miyC/k djk;s x;s izfrosnu ls Li"V gS fd bl iwjs izdj.k esa fdlh izdkj dk vkfFkZd vijk/k ugha gqvk gSA vkxs mUgksua sa ;g Hkh vafdr fd;k gS fd bl ekeys esa mUgsa 'kq: ls gh ijs'kku fd;k tk jgk gSA mUgksua s rRdkyhu foHkkxh; ea=h ,oa L2 fufonknkrk ij dfri; vkjksi Hkh yxk;s gSA mDr ls fuEu fcUnq Li"V gksrs gS& 1 fufonk dh izfdz;k ,oa U;wure fufonknkrk dk p;u fofgr izfdz;kuqlkj fd;k x;k gSaA 2- fufonk laca/kh nLrkost 365&338@i- ij ns[kk tk ldrk gSA i`"B 346@i- ij dafMdk 7-3 esa vafdr gS& 80 percent payment of the invoice value will be made within 1 month of the receipt of proper invoice following full supply with all relevant supporting documents for supply up to the destination. Testing of the samples of supplied material would be done of CPRI, Saharanpur (the charge for testing would be borne by the printer) and the remaining 20 percent of the withheld payment would be made only after receipt of the quality test report is received from CPRI, Saharanpur subject to the deduction, Patna High Court CWJC No.25151 of 2013 127 for failure on the score of quality, at the rates to be specified in the contract to be signed between the selected agency and ICDS, Bihar.
3- vkfFkZd vijk/k bZdkbZ }kjk izLrqr izfrosnu esa ;g vafdr gS fd dsUnzh; yqXnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj us vius tkap esa lHkh 12 jftLVj dk lsV ¼jftLVj&2 lfgr½ dks Hkkjr ljdkj ds ekud ds vuq:i ik;k x;k gSA rRdkyhu foHkkxh; ea=h }kjk vkfFkZd vijk/k bdkbZ dks crk;k x;k fd muds }kjk vius le{k ,d lsV iaft;ksa dh tkap djk;h xbZ Fkh ftlds jftLVj&2 ds lHkh i`"Bksa ij muds }kjk gLrk{kj fd;k x;k Fkk ,oa miyC/k djk;s x;s jftLVj ds uewuksa ds fof'kf"V;ksa ds vuq:i ugha gksus vkSj uewuksa dh rduhdh tkap djkus vkSj lacaf/kr vkiwfrZ dRrkZ ds fo:n~/k dkjZokbZ djus dk funsZ/k fn;k x;k FkkA mUgksua s c;ku fn;k gS --------------^^bl izdkj ,alh laHkkouk gS fd esjs }kjk gLrk{kfjr iath ds uewuksa dh tkap gsrq u Hkstdj fdlh nwljs iath dks Hkst fn;k x;k gS] ftl dkj.k gh esjs }kjk vkfFkZd vijk/k bdkbZ fcgkj] iVuk ls tkap djkus gsrq funsZ'k fn;k x;kA bl laca/k esa dk;kZy; lgk;d Jh deys'oj dqekj flag] ys[kkiky lg HkaMkjiky }kjk iwNs x;s Li"Vhdj.k ds dze esa fn;s x;s mRrj dh izfr i`0 670@i0 ij ns[kk tk ldrk gSA mUgksus s blesa fy[kk gS fd ekuuh; ea=h egksn;k ds dk;kZy; ls uewuk dk nl iath izksD;ksjesaV inkf/kdkjh }kjk tkap ds i'pkr okil yk;k x;k tSlk fd crk;k x;k vkSj ckn esa izksD;ksjesaV inkf/kdkjh dk vkns'k ls nks iath jftLVj ua0&01 ,oa 02 ekuuh; ea=h egksn;k ds dks"kkax ls izkIr dj esjs }kjk yk;k x;kA frfFk ;kn ugha gSA mu iaft;ksa ij gLrk{kj esjs }kjk ugha ns[kk x;k vkSj u gh gLrk{kj gksus ds laca/k esa dksbZ i= ;k fdlh ojh; inkf/kdkjh }kjk gh eq>s dksbZ tkudkjh nh xbZA uewuk ds :i esa izkIr lsV esa ls gh ,d lsV iath lgkjuiqj tkap gsrq fuxZr 'kk[kk dks miyC/k djk;k x;kA bl izdkj Li"V gS fd 11 iaft;ksa ds laca/k eas fdlh izdkj dk fookn ugha gSA ek= jftLVj&2 ftlesa xqykch jax dk 80 th-,l-,e- dk isij yxk;k tkuk gS] ds laca/k eas rRdkyhu foHkkxh; ea=h }kjk vius le{k tkap djk;s tkus ij otu de ik;s tkus dh ckr dgh xbZ gSA bl iath ds ek= pkj uewus fufonk nkrk }kjk miyC/k djk;k x;k FkkA dsUnzh; yqXnh ,oa dkxt vuqla/kku laLFkku] lgkjuiqj }kjk tkap eas fdlh Hkh izdkj dh xM+cM+h ugha ik;kh xbZ gSA vkfFkZd vijk/k bdkbZ ds Hkh izfrosnu ls Li"V gS fd bl ekeys esa vHkh rd fdlh izdkj dk Hkqxrku xySDlh izsl izkbZosV fy0 dks ugha fd;k x;k gS vkSj foRrh; vfu;ferrk dk ekeyk izdk'k esa ugha vk;k gSA Patna High Court CWJC No.25151 of 2013 128 mDr ds vkyksd esa fuEu fu.kZ; fy;s tk ldrs gS& 1- U;wure fufonkrk esllZ xySDlh izsl izkbZosV fyfeVsM] y[kum ls Li"V :i ls iwNk tk; fd os fufonk esa vafdr fof'kf"V;ksa ds vuq:i ,oa muds }kjk fn;s x;s nj ds vuq:i u;s fljs ls dk;kZn's k fn;s tkus ij ,djkjukek esa fus/kkZfjr le; lhek 60 ¼lkB½ fnuksa ds Hkhrj vkiwfrZ dj ldsx a s vFkok ughaA ;fn muds }kjk bl ij lgefr nh tkrh gS rks ,djkjukek ds vuqlkj u;h le; lhek ¼60 fnu½ ds vUnj vkiwfrZ djus gsrq mUgsa dk;kZns'k fuxZr fd;k tk ldrk gSA 2- vkiwfrZ fd;s tkus okyh iaft;ksa dh xq.koRrk lqfuf'pr djus gsra q funs'kky; Lrj ij fuEu iazdkj ,d lfefr cukbZ tk ldrh gS ftlesa funs'kd] vkbZ0lh0Mh0,l0] xqytkjckx lfpoky; eqnz.kky; ds izfrfuf/k] fcgkj LVsV VsDLV cqd dkWjiksjs'ku ds izfrfuf/k] lekt dY;k.k foHkkx ds vfrfjDr foRrh; lykgdkj&lg&vij lfpo ,oa izksD;ksjesaV inkf/kdkjh] vkbZ0lh0Mh0,l0 dks 'kkfey fd;k tk ldrk gSa bl lfefr }kjk ftyk Lrj ls fuEu izdkj iaft;ksa ds lsV dh izkfIr uewuk tkap gsrq izkIr dh tk;sxh& oSls ftyk tgka nl ifj;kstuk ls de gks ogka ls ,d lsV uewuk] nl ls vf/kd ,oa chl ifj;kstuk okys ftys ls nks lsV uewuk rFkk chl ls vf/kd ifj;kstuk okys ftys ls rhu lsV uewuk dh izkfIr dh tk;sxhA ftyk Lrj ij uewuk laxzg gsrq ftyk izzksxzke inkf/kdkjh ds vfrfjDr ftyk inkf/kdkjh }kjk ukfer ,d ojh; milekgRrkZ ,oa ,d cky fodkl ifj;kstuk inkf/kdkjh dh lfefr xfBr dh tk;sxhA 3- ;fn esllZ xySDlh izsl izkbZosV fy0 blds fy, rS;kj u gksa rks bl fufonk dks jn~n djrs gq, u;s fljs ls fufonk vkeaf=r dh tk ldrh gSaA 4- rRdkyhu foHkkxh; ea=h ds dFkukuqlkj muds@dk;Zokgd lgk;d }kjk gLrk{kfjr iaft;ksa dh vuqiyC/krk ds laca/k esa lHkh lacaf/kr O;fDr;ksa ls i`PNk dj oLrq fLFkfr ds laca/k esa Li"V gksdj mfpr dkjZokbZ dh tk ldrh gSA tgka rd izkIr i= ds fnukad 5-8-13 ds xyr frfFk esa izkfIr iath esa izfo"V d iz'u gS blds fy, nks"kh O;fDr;ksa ds fo:n~/k dkjZokbZ djrs gq, mUgsa mfpr naM fn;k tk ldrk gSaA g0@& 7@10@2014 ¼vjfoUn dqekj pkS/kjh½** ea=h lekt dY;k.k foHkkx g0@& yslh flag 11-10-2014
115. It was on this self serving and misleading notes emanating from one Manoj Kumar Chaudhary, the Procurement Officer who himself was facing serious allegaion for favouring the Patna High Court CWJC No.25151 of 2013 129 petitioner in award of contract as has been also explained earlier while taking note of two show cause notices issued to him on 16.1.2014 and 15.02.2014 that the departmental secretary Mr. Arvind Kumar Chaudhary having earlier issued oral orders to Mr. Manoj Kumar Chaudhary to prepare self contained note had gone to that a fresh decision to award the contract by issuance of fresh work order by offering new terms and conditions to the petitioner and upon obtaining signature of Smt. Lacy Singh the departmental minister on 11.10.2014 and treating it as her approval even without reversing the earlier decision of the earlier minister dated 06.11.2013 for cancelling the contract of the petitioner and also black listing it which also had been acted upon by way of a show cause notice to the petitioner on 18.12.2013. It was in this manner that a fresh offer for supply of consignment was sent to the petitioner on 13.10.2014 by the Director, I.C.D.S. which reads as follows:-
^^fcgkj ljdkj lesfdr cky fodkl laoxZ ICDS funs'kky;] fcgkj ¼lekt dY;k.k foHkkx½ f}rh; ry bafnjk Hkou jke pfj= flag iFk iVuk&800001 i=kad&ICDS/500503-2014 5720 fnukad 13@10@2014 izs"kd] funs'kd] vkbZ0lh0Mh0,l0] iVukA lsok esa] Jherh fugkfjdk xqIrk funs'kd XysDlh izsl izkbZosV fyfeVsM vej Hkou] gkml ua0&539ds0@152] dlSyk] QStkckn] jksM] y[kum 226016 mRrj izns'k Patna High Court CWJC No.25151 of 2013 130 fo"k;& lh0MCyw0ts0lh0 la[;k 25151@2013 XySDlh izsl izkbZobZ fyfeVsM ouke fcgkj jkT; ,oa vU; esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k fnukad s 22-08-2014 ds laca/k esaA izlax& vkbZ-lh-Mh-,l- funs'kky; dk i=kad 5133 fnukad 08-08-2014 ,oa vkidk i=kad 14@th0ih0,y0@2014&15 fnukad 15-09-2014 egk'k;] funs'kkuqlkj mi;qZDr fo"k;d izklkafxd i=ksa dsa dze esa d`i;k lwfpr djsa fd D;k vkids }kjk fufonk esa vafdr fof'kf"V;ksa ,oa Lohd`r nj ds vuq:i u;s fljs ls dk;kZn's k fn;s tkus ij ,djkjukek esa fu/kkZfjr le; lhek 60 ¼lkB½ fnuksa ds vUnj iaft;ksa dh vkiwfrZ dh tk;sxh vFkok ughaA bl laca/k esa i= izkfIr ds ,d lIrkg ds vUnj v|ksgLrk{kjh dks lwfpr djuk lqfuf'pr djsa rkfd ,djkjukek ds vuqlkj ubZ le; lhek 60 ¼lkB½ fnuksa ds vUnj vkiwfrZ djus gsrq vkidks dz;kns'k fuxZr djus vFkok fufonk jn~n djus ds laca/k esa fu.kZ; fy;k tk ldsA fo'oklHkktu g0@& 13@10@14 funs'kd Kkikad%&ICDS/50050/3-2014 5720 fnukad 13@10@2014**
116. On 15.10.2014, the respondent no.2 the Director had thereafter also filed 5th supplementary counter affidavit in which it had been stated as follows:-
4. That the matter was examined and it has been decided that if the petitioner is ready to supply the registers as per specification mentioned in tender and rate quoted by the petitioner within sixty days, if a fresh work order is issued to them, then the necessary work order will be issued for supply of register. Letter No. 5720 dated 13.10.2014 has been issued to M/s Galaxy Press Pvt. Ltd., Lucknow in this regard.
5. That after supply of register, to check the quality random sample collected will be sent to Central Pulp & Paper Research Institute, Saharanpur, U.P. for Patna High Court CWJC No.25151 of 2013 131 evaluation of quality for which a committee has been proposed under the Chairmanship of Director, ICDS.
6. That M/s Galaxy Press Pvt. Ltd. Lucknow does not agree to supply as mentioned in Para-2 above the tender will be cancelled and fresh tender will be called for."
117. This Court virtually was amazed with such decision because even when it was clearly established that the petitioner had not submitted the samples at the time of submission of the tender as per specification, a decision was ultimately taken on 13.10.2014 to award contract to the petitioner on fresh terms and conditions and, therefore, by order dated 15.10.2014, it had directed the learned counsel for the State to produce relevant government records as to in which manner the government had considered the show-cause reply by the petitioner.
118. Upon production of the record before this Court on 22.10.2014 and perusal of the records it was established beyond doubt that favour was sought to be bestowed by the Secretary to the department to the petitioner by giving a complete wrong picture in his note dated 7.10.2014 not only by committing a deliberate error of record but also ignoring the findings of E.O.U. and as such it had directed for personal appearance of the Secretary of the Social Welfare Directorate and the Director General of the Economic Offence Unit on 5.11.2014 to explain the whole thing to this Court.Patna High Court CWJC No.25151 of 2013 132
On 5.11.2014, Mr. Arvind Kumar Chaudhary, Secretary to the Social Welfare Department and Mr. J.S. Gangwar, I.G., Economic Offence Unit had appeared and the matter was heard in their presence on 5.11.2014 and 7.11.2014.
119. At this stage this Court is constrained to note of another very disturbing incident which had taken place in course of hearing at the instance of Mr. Arvind Kumar Chaudhary the departmental Secretary, Mr. P.N. Shahi, learned AAG-10 on 5.11.2014 and 7.11.2014, infact on being instructed by Mr. Arvind Kumar Chaudhary also present in this Court had orally gone to defend his notes by getting a submission advanced even without any affidavit brought on record that the then Minister was somehow interested in getting the contract cancelled because she wanted to favour one of the participating bidder namely M/s Patna Offset Press.
120. It must be kept in mind that allegation of such malafide was not even made by the petitioner in any of the pleadings but the respondent Secretary Mr. Chaudhary himself had invented this theory and had tried to justify the same by producing a visiting card of Shailesh Kumar Singh belonging to Patna Offset Press from his pocket by stating that the aforesaid Shailesh Kumar Singh had also made contribution in the election funds of the Minister in the parliamentary election held in May 2014 and that is why she was Patna High Court CWJC No.25151 of 2013 133 interested in cancellation of the contract given to the petitioner.
121. Mr. Chaudhary the departmental Secretary infact wanted this Court to believe his cock and bull story but his Counsel, Mr. Shahi could not satisfy this Court as to how the then Minister who had already resigned some time in the month of January 2014 could have favoured Mr. Shailesh Kumar Singh after the subsequent parliamentary election was held in the month of May, 2014. Mr. Shahi had, however, frankly conceded that he was actually under the instruction of Mr. Arvind Kumar Chaudhary to make such an oral submission.
122. As this oral submission of Mr. Shahi at the behest of departmental Secretary is not supported by anything on record much less his own affidavit this Court would not like to go any further in the matter but then at least must record its displeasure the manner in which Mr. Arvind Kumar Chaudhary, present Secretary in a bid to justify his illegal action, had tried to mislead this Court. Mr. Chaudhary in fact seems to have forgotten the clear observation made by the E.O.U. in its report regarding bestowing favour upon the petitioner by the officials of the department. In any event he in his note dated 7.10.2014 (already quoted above) had never dared to make such allegation against the then minister.
Patna High Court CWJC No.25151 of 2013 134
123. The case after being heard on 7.11.2014 was again brought under the heading 'To be Mentioned' on 21.11.2014 for finding out the reason for non-production of the registers which were signed by the Minister on its each and every page as also the sample copy of papers and Board which was filed by the petitioner at the time of submission of his tender document on 13.5.2013 despite an earlier order dated 19.8.2014. Learned counsel for the State had prayed for time for production of such record and when thereafter on 2.12.2014 the case was once again listed, learned AAG-10 had once again sought time for producing them and the case was accordingly adjourned to 11.12.2014. Though on 11.12.2014 the entire tender document of the petitioner including the sample of Paper and Board in six pages/sheets given by it had been produced but the department in its affidavit filed on 11.12.2014 had taken a plea that the sample register which was signed by the Minister on each and every page of Register was not available and in this regard, the explanation of the department in its affidavit was as follows:-
"'7. That so far production of register which was signed by the then Hon'ble Minister, Department of Social Welfare on each an every page is concerned the facts here under:-
(i) According to Report of Economic Offence Unit vide letter no. 128 dated 01.08.2014, it transpires on perusal of page-4 of report that the Minister has said esjs }kjk gLrk{kfjr iath ds Patna High Court CWJC No.25151 of 2013 135 uewuksa dks tkWp gsrq uk Hkstdj fdlh nwljh iath dks Hkst fn;k x;k gSA ¼ewy lafpdk ds i`"B esa 624@i0 ij la/kkfjr gS½
(ii) And on other hand the Hon'ble Minister vide Buff sheet no.268 dated 03.02.2014 has said ",e0vkbZ0,l0 jftLVj ds og uewus v/kksgLrk{kjh dks miyC/k djk;s tk;s ftls esjs voyksdu gsrq yk;k x;k Fkk rFkk esjs dk;kZy; ds dk;Zokgd lgk;d }kjk izR;sd i`"B ij viuk gLrk{kj cuk;k x;k FkkA" ¼ewy lafpdk ds i`"B esa 620@i0 ij la/kkfjr gS½
(iii) On the orders of then Hon'ble Minister, Social Welfare Department, the Director ICDS by letter number 313 dated 16.01.2014 asked status about the verified and signed sample of Register from the concerned officer and Assistant. The then procurement officer, ICDS replied by his letter no. 410 dated 18.01.2014 and said that "bu iaft;ksa esa fdlh ds }kjk gLrk{kj fd;k x;k Fkk] ,slk eSaus ugha ns[kk vkSj uk gh gLrk{kj ds laca/k esa eq>s fdlh ds }kjk ekSf[kd ;k fyf[kr :i ls crk;k x;kA"
(iv) The then, Assistant incharge has replied vide letter dated 18.01.2014 that "ekuuh; ea=h egksn;k ds dk;kZy; ls uequk dk 10 iath izksD;ksjesaV inkf/kdkjh }kjk tkWp ds i'pkr okil yk; x;k tSlk fd cryk;k x;k vkSj ckn esa izksD;ksjesaV inkf/kdkjh ds vkns'k ls nks iath jftLVj uEcj 1 ,oa 2 ekuuh; ea=h egksn;k ds dks"kkax ls izkIr dj esjs }kjk yk;k x;kA frfFk ;kn ugh gSA mu iaft;ksa ij gLrk{kj esjs }kjk ugha ns[kk x;k vkSj uk gh gLrk{kj gksus ds laca/k esa dksbZ i= ;k fdlh ojh; inkf/kdkjh }kjk gh eq>s dksbZ tkudkjh nh xbZA"
8. That it would thus be evident that no register which is said to have been signed by the then Hon'ble Minister, Department of Social Welfare, Govt. of Bihar, on each and every pages is not available in the Department and in that view of the matter the same Patna High Court CWJC No.25151 of 2013 136 cannot be produced."
124. This Court therefore in the backdrop of aforesaid facts and circumstances now has to decide as to whether the prayer made in the writ application should be allowed by giving its stamp of seal and approval to the fresh decision of the department dated 13.10.2014 asking the petitioner to accept fresh order for supply of materials by it on new terms and conditions.
125. There would be basically two prime consideration before this Court. Firstly, as to whether a non statutory contract can be enforced in the writ jurisdiction as has been sought in the prayer of the petitioner. Secondly, as to whether this Court can close its eyes to the serious illegalities and corrupt practices adopted by the officals in league with representative of the petitioner right from inception in award of such contract.
126. In this regard this Court in the light of the findings recorded above will have absolutely no hesitation in holding that the order dated 13.10.2014 is not only a collusive order also is equally vitiated. By such order the illegality for which base were sought ot be created by Mr. Manoj Kumar Chaudhary, the Procurement Officer on 15.05.2013 has sought to be cured and perfected by Mr. Arvind Kumar Chaudhary. In fact by the said letter dated 13.10.2014 an offer has been given to the petitioner in respect of an N.I.T., by giving Patna High Court CWJC No.25151 of 2013 137 fresh lease of life asking the petitoner to abide by the terms and conditions of the N.I.T. In doing so the Departmental Secretary, Mr. Arvind Kumar Chaudhary does not seem to even have taken into consideration the mandatory procedure of purchase prescribed by the State Government under Bihar Financial Rules.
127. Once these Financial Rules and guidelines have to be given effect to and that must be done, by any and every authority of the State Government on account of its being mandatory in nature there could be little scope left for the award of contract to the petitoner who had completely failed to comply the terms and conditions regarding furnishing samples of papers and Board as prescribed in Anneuxre-2 of the N.I.T. and also strictly laid down in Clause 5.8 of General Bid and Eligibility Condition. In fact the Respondent had no option but to cancel the award of contract for the reasons recorded in the two show cause notices issued to the petitioner on 18.12.2013 and 08.09.2014.
128. Thus, in no view of the matter the petitioner could have been awarded such contract nor a decision could even be taken on 13.10.2014 for giving fresh offer to the petitioner to supply the registers as per the agreement dated 01.08.2013. It has to be kept in mind that any and every supply had to be received from the petitioner only on the basis of his six pages of samples submitted by it in its Patna High Court CWJC No.25151 of 2013 138 tender documents on 13.5.2013, on the basis of which alone it was declared the lowest bidder (L-1) and sought to be awarded the Contract. These tender documents of the petitioner unfortunately only due to corrupt practice of Mr. Manoj Kumar Chaudhary and others as discussed earlier in this judgment have been all along conveniently left out of the consideration even by Mr. Arvind Kumar Chaudhary the Secretary while monitoring to issue the order contained in letter dated 13.10.2013.
129. This Court in fact will have no difficulty in holding that Mr. Arvind Kumar Chaudhary the Secretary in his note dated 07.10.2014, had out and out wrongly recorded his finding that the selection of the petitioner as lowest bidder (L1) was made in terms of N.I.T when as a fact he had not even looked into the tender documents and was misguided by only self serving note of Mr. Manoj Kumar Chaudhary, the Procurement Officer prepared on his oral order, who had also very carefully even not mentioned either about the tender documents or his asking the petitioner on 15.05.2014 by way of indulgence given to the petitioner to supply fresh 40 sets of sample registers on 15.05.2013 and again on they too being not found as per the specification he had gone to issue yet another order in connivance of the then Director, Ms. Vandana Preyasi on 03.06.2013 and 02.07.2013 for supply of fresh 587 set of sample registers. Patna High Court CWJC No.25151 of 2013 139
130. In the considered opinion of this Court, what would in fact further vitiate the decision of Mr. Arvind Kumar Chaudhary in his note dated 07.10.2014, is that he despite agreeing with the finding of interpolation and ante-dating of official records and also recommending for taking action against the concerned officer/employee had still gone to reward the petitioner by his decision as communicated to the petiotner on 13.10.2014 at whose instance only these interpolations were done as also was clearly found by the sleuths of the E.O.U.
131. Such tainted conduct of Mr. Arvind Kumar Chaudhary, the Secretary is further reflected from the Court proceeding in this very case as recorded earlier where he had gone to in fact allege malafide against the then minister of her being interested in favour of one of the tenderers and that too without even filing affidavit in this regard or there being any finding to this effect by E.O.U. against the then Minister.
132. The second and equally important aspect would be as to whether even the prayer made by the petitioner in this writ application as quoted above has to be allowed. As noted above, the prayer of the petitioner has never been changed barring that subsequently when an attempt was made to withdraw this writ application by taking a plea that since the department had ultimately, Patna High Court CWJC No.25151 of 2013 140 after exit of the then Minister taken a decision on 13.10.2014 to take supply from the petitioner. This part of the plea of the petitioner will be examined in its proper perspective a bit later but then as would be evident the petitioner when it had filed the writ applicatino on 18.12.2013 it had made a prayer to enforce the terms and conditions of non-statutory contract by seeking a direction for issuance of work order for supply of goods in terms of its agreement dated 1.8.2013 as also a direction to accept the goods printed and manufactured by it as per the terms and conditions of the agreement and eventually making payment of the goods to it.
133. It was thus quite easy for this Court to straightway dismiss the writ application because a writ application for enforcement of the terms and conditions of the non-statutory contract would not lie as was decided by the Division Bench of this Court in the case of M/s Radha Krishna Agrawal & Ors. Vs. State of Bihar & Ors. reported in AIR 1977 Patna 65 wherein it was held as follows:-
"18. ... ... ... Now the question is as to whether the allegation regarding the breach of the terms of the agreement, either by the petitioner or by the respondent State can be examined by this Court in exercise of its writ jurisdiction. According to the learned counsel appearing for the petitioners the impugned actions are in exercise of executive powers by the State under Article 298 of the Constitution which are amenable to the jurisdiction of this Court. Whether under the writ jurisdiction such dispute can be agitated and decided has been the subject matter of controversy. Such disputes can be put under three Patna High Court CWJC No.25151 of 2013 141 groups for the purpose of answering the question:
(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases wherein assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Article 299 of the Constitution;
(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and
(iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.
19. So far as the cases under categories (i) and (ii) are concerned, it is almost settled that the person aggrieved can invoke the writ jurisdiction of this Court. In Union of India v. M/s Anglo Afghan Agencies (AIR 1968 SC 718), Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, (AIR 1971 SC 1021) and Robertson v. Minister of Pensions, ((1949)1 KB 227), it was pointed out that public bodies are as much bound as private individuals to carry out representations of facts and promises made by them relying on which other persons have altered their position to their prejudice and in such cases even if the contract has not been embodied in the form prescribed, it can be enforced by a writ in appropriate cases in equity. Similarly in K.N. Guruswamy v. State of Mysore, (AIR 1954 SC 592), D.F.O. South Kheri v. Ram Sanhi Singh, (AIR 1973 SC 295) and Shree Krishna Gynoday Sugar Ltd. v. State of Bihar (AIR 1975 Pat. 123), it has been held that, even if the right to relief arose not of an alleged breach of contract, but the action of the authority which was being challenged was of a public authority vested with statutory power, this Court, in exercise Patna High Court CWJC No.25151 of 2013 142 of its writ jurisdiction, can grant relief to the aggrieved person. On the other hand, in case falling under category (iii), where there is no question of exercise of any statutory power and the rights of the parties flow from mere terms of the contract entered into by the authorities of the State, a party to such agreement should not be allowed to invoke the writ jurisdiction of this Court for the purpose of finding out as to whether there has been a breach of contract on the part of the State or on the part of such person. It is apparent that in such cases there cannot be adjudication without evidence on the point. There is no question of infraction of any rules or statutes. Courts have always called upon such petitioners to seek their remedy in the Civil Court. In this connection reference can be made to a Bench decision of this Court in B.K.Sinha v. State of Bihar (AIR 1974 Pat 230), where Untwalia, C.J. (as he then was) after making a reference to the Supreme Court in Umakant Saran v. State of Bihar (AIR 1973 SC 964); and Lekhraj Sathram Das v. N.M.Shah, (AIR 1966 SC 334) observed:
"Here in the very nature of the contract in question the petitioner had no right to claim its specific performance. The Statute did not impose any legal duty on the authorities concerned that if they thought that the petitioner should not be allowed to complete the work even assuming they thought so wrongly- they could not stop the work ........... A writ of mandamus cannot issue to compel the authorities to remedy a breach of contract pure and simple."
In the same case at page 231 it was further observed:-
"I am, therefore, definitely of the view that until and unless in the breach is involved violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by this Court in exercise Patna High Court CWJC No.25151 of 2013 143 of its powers under Article 226 of the Constitution."
(Underlining for emphasis)
134. It has to be kept in mind that the aforesaid judgment of the Division Bench of this Court was also approved and affirmed by the Apex Court in the case of M/s Radhakrishna Agarwal & Ors. Vs. State of Bihar & Ors. reported in AIR 1977 SC 1496, wherein the Supreme Court had held as follows:
"11. In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power of obligation which could attract the application of Article 14 of the Constitution is involved here. Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question ,of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can, only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, "prerogative"
powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked.
12. The Patna High Court had, very rightly divided the types of cases 'in which breaches of alleged obligation by the State units agents can be set up into three types. These were stated as follows :-
"(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where an Patna High Court CWJC No.25151 of 2013 144 assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of article 299 of the Constitution;
(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the pan of State; and
(iii) Where the contract entered into between the State, and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State."
13. It rightly held that the cases such as Union of India v. M/s. Anglo Afghan Agencies, AIR 1968 SC 718 and Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, AIR 1971 SC 1021; and Robertson v. Minister of Pensions, (1949) 1 KB 227 belong to the first category where it could be held that public bodies or the State are as much bound as private individual are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only. We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 of the Constitution now. It. is enough to observe that the cases before us do not belong to this category.
14. The Patna High Court also distinguished cases which belong to the second category, such as K.N. Guruswami v. The Patna High Court CWJC No.25151 of 2013 145 State of Mysore, AIR 1954 SC 592; D.F.O. South Kheri v. Ram Sanehi Singh; AIR 1973 SC 205 and M/s. Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar, AIR 1975 PAT 123, where the breach complained of was of a statutory obligation. It correctly pointed out that the cases before us do not belong to this class either.
15. It then, very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held, upon the strength of Umakant Saran v. The State of Bihar, AIR 1973 SC 964 and Lekhrai Sathram Das v. N.M. Shah, AIR 1966 SC 334 and B.K. Sinha v. State of Bihar, AIR 1974 PAT 230 that no writ order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy are a breach of contract pure and simple".
(Underlining for emphasis)
135. Subsequently this Court had again followed the case of Radhakrishna Agarwal (supra), the case of M/s BASF India Ltd Vs. State of Bihar reported in 1992(2) PLJR 714 and the case of M/s Patna Hume Pipes Manufacturing Company Vs. State of Bihar & Ors. reported in 1993(1) BLJR 600. Thus, there cannot be any iota of doubt that the present writ application falling out of a non-statutory contract would not be maintainable.
136. Dealing this issue of maintainability of the writ application in relation to government contract, Mr. M.P. Jain and S.N. Jain in their treatise 'Principles of Administrative Law', (7th Edition) in Chapter 27 have also summarized the position in law in this regard in the following words:-
Patna High Court CWJC No.25151 of 2013 146
"The case-law has now reached a point where it is not possible to assert that in no case involving contractual relationship will a writ lie. There may be some features or aspects of Administrative Law involved in a controversy which may lead the courts to give relief under Article 226 even though, originally, there was a contract between the petitioner and the Administration. From this point of view, cases may be categorized as follows:-
(i) Cases where the relationship is purely contractual and the contract neither has any statutory basis nor is regulated by any statute;
(ii) Cases where a statutory element enters the contract between the petitioner and the Administration and there is a direct breach of a statutory provision, or where the contract has a statutory 'flavour';
(iii) Where there is some element or facet of public law is involved, but there may be no violation of any explicit statutory provision.
In many cases of contracts between government and private parties, the concerned authority seeks to exercise statutory or administrative powers. Exercise of such powers cannot be viewed as exercise of powers under the contract between the government and the private party concerned.
Ordinarily, the Supreme Court would not enforce specific performance of contract where damages would be adequate remedy.
(c) Category (i) In the first category, questions of pure breaches of contract arise. Here the contract entered into between the state and the person aggrieved is non-statutory and the relationship is governed pure and simple by the terms of a contract between the petitioner and the Administration and the petitioner complains of breach of a term of the contract by the latter. The principle ordinarily followed in such situation is that contractual obligations are matters of Patna High Court CWJC No.25151 of 2013 147 private law and that a writ does not lie against an authority to enforce a civil liability arising purely out of a contract.
Barring certain exceptional situations, the general rule is that a writ is unavailable to enforce a contract qua contract, that a writ petition cannot be filed to enforce a purely contractual obligation, the matter falls within the area of private law under the Contract Act, and, therefore, the proper remedy for the purpose is a civil suit for damages, injunctions, specific performance, or declarations in a civil court. The view is held generally by the courts that a writ petition is not an appropriate remedy for imposing contractual obligations on the government. The reason for such a view is that a contract normally creates a private right and imposes no public duty recognizable by public law. Thus, a contractual obligation pure and simple, without any statutory complexion, is not enforceable through a writ."
137. It is also not in doubt that when the department of Social Welfare had issued N.I.T. or had entered into agreement on 1.8.2013, it was not exercising any statutory power and, therefore, the case of the petitioner will be squarely covered by the first category of cases as discussed above and thus making this writ petition itself not maintainable.
138. Normally, having held that the writ application was not maintainable and no relief could be given to the petitioner, this Court could have also easily dismissed the writ petition on this ground alone but then it cannot shut its eye to a very disturbing trend which has been noticed in this case wherein a criminal conspiracy seems to have been hatched by the officers and employees of the department to Patna High Court CWJC No.25151 of 2013 148 award the contract in favour of the petitioner. As would be noted from the facts dealt at length and probably for this purpose only, that there was a constant effort of the officials to bestow illegal favour to the petitioner right from the inception.
139. Had the department and the Tender Evaluation Committee in particular, been careful to stick to the requirement of clause-5.8 of N.I.T. as with regard to production of the samples of paper and board to be used by the petitioner as per terms and conditions of the N.I.T., the petitioner could not have been even screened in its technical bid, inasmuch as, it was the requirement of Clause 5.8 of the tender document that samples of all the paper and board to be used in the register as per sample available in I.C.D.S. office and as per specification available in the bid document in Annexure-2 of N.I.T. should be submitted in the technical bid. Admittedly, even as per the version of the petitioner, even though it had claimed to have produced all other papers as per specification in N.I.T., it had definitely not produced the paper of 80 GSM Maplitho for which it kept on seeking time even till 5.9.2013 on the ground that paper of 80 GSM Maplitho is not manufactured unless a prior order is given to the mill.
140. It is infact in order to examine this very aspect that this Court had directed the department vide its order dated 19.8.2014 Patna High Court CWJC No.25151 of 2013 149 and again by an order dated 21.11.2014 to produce the tender papers including samples of the paper and board filed by the petitioner at the time of submission of his tender document as a part of its technical bid which on alanysis in comparative table in paragraph no. 20 of this writ judgment have been found to have not met the specification as Annexure-2 of the N.I.T..
141. The fact that the petitioner did not submit the prescribed paper and board along with tender documents as prescribed in the N.I.T. including for register No. 2 is again an admitted fact, inasmuch as, in its own letter of the petitioner which was received in the department on 08.08.2013, followed by its two other clarificatory letters dated 05.09.2013, would leave nothing for speculation that it had not submitted samples of 80 GSM paper for Register-II at least till 5.9.2013 and that they were only of 40 to 50 G.S.M. only.
142. As noted above, this Court has also examined the tender documents submitted by the petitioner on 13.5.2013 to find out as to what was submitted by the petitioner in compliance of clause-5.8 of the general bid eligibility condition of N.I.T. requiring the tenderer to submit all the papers and boards as per the specification in the bid document and on an overall analysis of what has been submitted by the petitioner in pages 241 to 246 by way of subsequent sample paper, there remains no iota of doubt that the petitioner had failed to abide by Patna High Court CWJC No.25151 of 2013 150 the terms and conditions of the Notice Inviting Tender (NIT) which in turn had made it obligatory on the part of the evaluation committee to reject the technical bid of the petitioner itself much less opening its financial bid declaring it the lowest bidder (L-1).
143. From the comparative table it also becomes absolutely clear that neither the paper size nor the hard board cover as prescribed in table-2 of the specification was supplied by the petitioner on 13.5.2012, inasmuch as, size of none of them was in conformity with the specification laid down in Annexure-2 of N.I.T. Moreover the claim of the petitioner of having supplied 80 GSM paper or art paper or 2mm card board in absence of the same size as prescribed in Table-2 in itself did not meet the specification. What has actually really shocked this Court is that the tender committee consisting of five persons had never tried to even examine as to whether the petitioner's samples were as per the prescribed specification in table-2 and yet the petitioner was declared successful in the evaluation of its technical bid.
144. Let it be noted that these six pages of Tender documens of the petitioner were actually the key documents on which even supply of registers made by the petitioner had to be tested and therefore the samples given by the petitioner along with the bid documents should have been made the only basis either for awarding Patna High Court CWJC No.25151 of 2013 151 the contract on 1.8.2013 while entering into contract or accepting the supply as sought to be done by the order dated 13.10.2014. As a matter of fact when ultimately the petitioner had itself gone to accept even on 5.9.2013 that it had not supplied the paper of 80 GSM in respect of Register-2, there was little option left to the authorities of the Directorate of ICDS but to cancel the order in view of the grounds mentioned in show cause notice dated 18.12.2013. That however was not done and in fact a plot was hatched in the leadership of Manoj Kumar Chaudhary, the Procurement Officer, who was also a member of the Tender Committee to allow the petitioner illegally to supply fresh samples of registers after its being declared the lowest bidder as L-1 in the meeting of the Tender Committee.
145. It is infact this aspect of the matter which has been not thoroughly investigated by the authorities of EOU and would still require a further thorough independent probe wherein the basis of investigation should be sample of papers and board submitted by the petitioner along with his tender documents on 13.5.2013. The gramage of the sample of the papers whether it was 80 GSM or 130 GSM or 300 GSM as claimed by the petitioner in its tender documents at pages 241 to 246 should also be examined by the experts selected by the investigating agency and only those papers at Pages 242 to 246 should be looked into for recording a finding as to Patna High Court CWJC No.25151 of 2013 152 whether the petitioner had procured the order by submitting samples which were in accordance with the specifications laid down in Table- 2 of N.I.T. Such investigating agency however shall not refer to the matter for this purpose to C.P.R.I. Saharanpur whose report seems to be also collusive because samples sent by Director on 2.9.2013 was placed in its Lab only on 19.12.2013 and the admitted Register-2 of 56 G.S.M. as available and sent on 2.9.2013 was surprisingly declared to be 81.2 G.S.M in its report dated 8.1.2014.
146. The complicity of the officials of the department in awarding the contract to the petitioner and also receiving supply either by way of agreement dated 1.8.2013 or in the order dated 13.10.2014 even when it had not submitted the samples as per the specifications prescribed in the N.I.T. therefore also requires to be gone into carefully and systematically examined by the officials of the Investigating agency from another angle as to how and why the officials of the department had diverted their attention on the subsequent samples of registers obtained by them from the petitioner even after taking a decision to award the contract to the petitioner by declaring it the lowest bidder (L1).
147. These vital aspects in fact noted by the then minister of the department in her orders in the file on 07.08.2013, 06.11.2013 and 15.01.2014 somehow has escaped the attention of all concerned Patna High Court CWJC No.25151 of 2013 153 till date but then this Court having prima facie found that those sample of papers supplied by the petitioner as prescribed at Pages 242 to 246 of Tender documents did not at least fulfil the requirement of the size as prescribed in Table-2 as has also been explained in the aforementioned comparative table in paragraph no. 20 of this judgment cannot become a party to allow the petitioner and the officials of the department to swindle away the huge sum of Rs. 4, 21,64,400/- of public fund which also was made available by the Government of India to the Government of Bihar for the Integrated Child Development Scheme (ICDS).
148. A question infact would also arise that when the petitioner upon being declared L-1 though illegally on 13.5.2013, why was it sought to be given a reprieve by the department on 16.5.2013 at the behest of Mr. Manoj Kumar Chaudhary the Procurement Officer to produce 40 sets of Registers by way of samples. In this regard another equally significant question would arise that if offer of M/s Y.S. Hitech Secure Print Pvt. Ltd., Hyderabad-72 could be rejected on 13.5.2013 because the paper and board were not produced by it, was it not incumbent upon the Committee of five members of the Tender Evaluation Committee consisting of Superintendent of Guljarbag Printing Press to at least examine as to whether whatever paper and board was furnished by the petitioner had fulfilled the requisite Patna High Court CWJC No.25151 of 2013 154 criteria as prescribed in the Table-2 of technical specification and paper printing and production of register already quoted above ? The manner in which infact the technical bid of the petitioner was accepted and approved by the Tender Committee would itself go to show that the members of the Tender Committee had deliberately favoured the petitioner while edging out other competing firms.
149. As discussed above, the sample papers and boards filed by the petitioner and preserved at page nos. 241 to 246 which were to be treated as the sample for verification of any supply to be received from the petitioner was never taken into account and after the petitioner was declared L-1 in the Tender Evaluation Committee on 13.5.2013, a dubious method was evolved now by asking the petitioner to submit 40 sets of sample registers. Where was however the scope of such indulgence given to the petitioner? How, the Minister was, therefore, wrong in pointing out that the petitioner had not fulfilled the requisite condition while filing the tender documents? Unfortunately, the whole issue has been given a twist and turn by Mr. Manoj Kumar Chaudhary, the Procurement Officer and the role of Radha Raman Jha, Joint Director, I.C.D.S. also becomes dubious as has been noted while dealing with the fact portion in the earlier paragraphs of this judgment.
Patna High Court CWJC No.25151 of 2013 155
150. This Court for the time being would not like to make any further comment on the decision taken by Smt. Vandana Priyesi, the then Director, I.C.D.S. and Mr. Rajit Punhani, the Secretary or Mr. Arvind Kumar Chaudhary, the present Secretary, but then if it is a fact and in fact it is, that the petitioner had not submitted the prescribed samples at the time of filing of the tender documents as on 13.5.2013 and therefore technical bid of the petitioner was itself fit to be rejected, any and every person being party to favour the petitioner by either by allowing it to enter into agreement on 1.8.2013 for making supply or trying to shield the petitioner despite its being issued two show-cause notice for termination of the contract on 18.12.2013 and 8.9.2014 has to also share the blame because now the petitioner in view of the order dated 13.10.2014 has been ultimately asked to complete its supply on the basis of that very tainted decision taken on 13.5.2013 declaring its bid to be correct and also the lowest bidder and the resultant consequential agreement dated 01.08.2013.
151. In the considered opinion of this Court, even the Investigating Officer of Economic Offence Unit had not been given the excess to the original tender document filed by the petitioner by way of samples of papers and board on 13.5.2013 which has been noticed by this Court and thus whatever enquiry thereafter had been started at the level of the Minister was only in respect of 40 sets of Patna High Court CWJC No.25151 of 2013 156 registers received from the petitioner by way of indulgence given to it on 16.5.2013 whereas a decision to award the contract to him had already been taken on 13.5.2013 by declaring him to be L-1 (Lowest Bidder). The cat in fact came out of the bag only on filing of those sample registers, inasmuch as, the petitioner did not and infact could not have supplied sample of Register-2 with the requirement of paper of 80 GSM Maplitho because it had itself admitted on 6.8.2013 that it takes significant time in getting the same manufactured from the mill and that too only by way of bulk purchase. The then Minister, therefore, was also not wrong in drawing an adverse inference against the officials and the employee of the Department as well as against the petitioner when she had noted that even when such letter of the petitioner was sought to be filed by it in the department on 8.8.2013, some one had tried to ante date it by showing its receipt on 5.8.2013 only in order to meet the fatal querries in Minister's earlier noting dated 7.8.2013 well before the receipt of the letter of the petitioner in the department on 8.8.2013.
152. It is also quite strange that today a plea is being taken that the Department is not in a position to produce the registers of the petitioner which was sent to the Minister on 5.8.2013 which she had got examined and weighed as also signed on each and every page in presence of Mr. Manoj Kumar Chaudhary for its being sent to Patna High Court CWJC No.25151 of 2013 157 Central Pulp and Paper Research Institute, Saharanpur but then what would really disturb this Court is that this fact was written by the then Minister way back on 7.8.2013 in her buff-sheet no. 2138 dated 7.8.2013 but at that point of time, no one in the department had taken a plea with regard to non-availability of the signed register by the then Minister on each and every page for its being subjected to a technical enquiry and taking action against the petitioner in accordance with law. The then Minister in fact had also not only reiterated to have signed on each and every page of the register but had also made it part of her later order dated 15.1.2014 and had also named a person of the department namely Ashok Kumar who had carried the register from her Chambers on 7.8.2013. Even at that point of time, no one had even remotely noted much suggested in the file that such signed register by the Minister was never made available to the department.
153. The Investigating Officer of the E.O.U., has also not strictly examined this aspect, inasmuch as, the report of the E.O.U. brought on record by Mr. Rajiv Ranjan, learned counsel for the E.O.U. dated 19.6.2014 even after being informed by the then Minister of her signing the register on 7.8.2013 was not sought to be recovered. The preliminary report of E.O.U. dated 22.4.2014 in fact would clearly go to show that Manoj Kumar Chaudhary, the Procurement Officer was the person who had compelled one Ram Patna High Court CWJC No.25151 of 2013 158 Parvesh Ram to make a back dated entry of the communication of the petitioner received in the department on 08.08.2013 in the date of 5.8.2013 but surprisingly the matter was left in the half way by the first Investigating Officer who had submitted his report dated 22.4.2014 by leaving the matter open to find out from where the registers were actually sent by the Department to the Central Pulp and Paper Institute, Saharanpur.
154. The very fact that the then Minister had claimed to sign each and every page of the sample of the Register and had directed for sending that signed copy to the C.P.R.I., Saharanpur for verification and that was not either sent or examined by the C.P.R.I., Saharanpur will leave nothing for speculation that some one had sought to also influence testing and submitting of its report at C.P.R.I., Saharanpur in league with the petitioner. To that extent, the subsequent report of the E.O.U. dated 19.6.2014 would at least go to show that actually the petitioner in response to the letter dated 16.5.2013 had submitted 40 sets of 11 registers leaving the Register No.2 requiring the specification of 80 GSM Maplitho paper and only four copies of the Register-2 was subsequently made available on 28.8.2013. Since the then Minister had already seen all 11 registers and had got then counter signed at each and every page on 7.8.2013 in her Chambers whatever was sent to C.P.R.I., Saharanpur for Patna High Court CWJC No.25151 of 2013 159 submitting its test report on 2.9.2013 or the report which was received from C.P.R.I. were actually in respect of 11 registers and not 12 registers and, therefore, serial no.2 of that report of C.P.R.I., Saharanpur in respect of the register which was sent to them does not appear to be in respect of the register no.2 which as noted had a different specification altogether.
155. Thus on a close perusal of the portion of the findings of the report of the E.O.U. dated 19.6.2014, it also becomes absolutely clear that a conspiracy was hatched in which the officials of I.C.D.S. Directorate had favoured the petitioner.
156. In this regard this Court can not ignore the fact, firstly it was the dubious role played by Mr. Manoj Kumar Chaudhary who, along with other members of the Tender Committee, did not examine the technical bid of the petitioner on 13.05.2013 by comparing the samples supplied by it along with tender documents in the form of three pages of paper and three boards on the scale of either its size or its grammage. That was the first favour shown to the petitioner at the time of evaluation of the technical bid. Followed by it, it was again the hurried action of Mr. Manoj Kumar Chaudhary on 15.5.2013 which became the basis for changing the terms and conditions of the N.I.T.. There was infact no condition in the N.I.T. that after screening of the technical bid and declaration as Lowest Patna High Court CWJC No.25151 of 2013 160 Bidder (L-1), fresh samples of registers were to be obtained from the lowest bidder. It was, however on the initiative of Mr. Chaudhary appearing from his letter dated 15.5.2013 and 16.5.2013 which had actually paved the way of the petitioner for supply of samples contrary to the terms and conditions of the N.I.T..
157. As a matter of fact, once the Minister had in her noting dated 25.5.2013 had over-ruled the process of award of contract till approval of the samples, there was also no occassion for Mr. Manoj Kumar Chaudhary to speed up the process. The observation of the Director, I.C.D.S. dated 29.5.2013 that the paper of Register-2 was not as per the specification in the N.I.T. should have been treated to be sufficient for not placing the order with the petitioner specially when the Minister on 3.6.2013 had also constituted a Quality Control Committee.
158. Added to it the manner in which the report of expert, namely, Superintendent of Guljarbagh Press dated 27.6.2013 was brushed aside clearly mentioning that the size of the paper furnished by the petitioner was not as per the specification and was different and less than the size prescribed, no one in the department including Mr. Chaudhary could have proceeded ahead to finalize the deal with the petitioner. After the receipt of the report of the Superintendent of Guljarbagh Press, there was infact no question of award of contract to Patna High Court CWJC No.25151 of 2013 161 the petitioner by giving it an opportunity to improve its quality of supply. The letter dated 1.7.2013 written by the Procurement Officer to the petitioner to this effect was also therefore clearly meant to help the petitioner. The manner in which the agreement was entered into on 1.8.2013 at a stage when the petitioner had even failed to satisfy with regard to specified quality of paper and board was infact not only premature but also patently illegal.
159. The patronage being given to the petitioner either by asking it to enter into the agreement at the behest of Mr. Manoj Kumar Chaudhary and others ought to have been immediately stalled specially when on 7.8.2013, the then Minister had found the quality of paper of the samples produced by the petitioner to be not as per the prescribed specification.
160. The manner in which the order of the then Minister was sought to be scuttled despite the Managing Director of the Petitioner itself admitting in its letter received on 8.8.2013 that it had never supplied the paper of Register-2 of 80 GSM should by itself have been sufficient to cancel the agreement forthwith specially when such admission of the petitioner was reiterated also in its letter dated 5.9.2013 and 23.9.2013.
161. As a matter of fact the way the sample copy verified by the then Minister in presence of Mr. Manoj Kumar Chaudhary, Patna High Court CWJC No.25151 of 2013 162 Procurement Officer by signing each and every page of the register was made to elope and its also not produced either before the authority of the CPPRI, Saharanpur or before the authority of the E.O.U. or even before this Court will leave nothing for speculation that the samples which were provided at the behest of Mr. Manoj Kumar Chaudhary to CPPRI on 2.9.2013 had definitely not included the sample copy of the Register-2 as claimed by the petitioner or included in the report of C.P.R.I. In any event, what was required to be sent to CPPRI was not those registers which were subsequently obtained by Mr. Manoj Kumar Chaudhary on the basis of his letter dated 15.5.2013 or 2.7.2013 but only those six sample copies of tender documents which were submitted by the petitioner at the time of submission of its offer on the basis of which its technical bid was approved by the Tender Committee on 13.5.2013 and had led to the petitioner for declaration as a Lowest Bidder.
162. This Court infact has not been provided with any satisfactory answer as to why the show-cause notice dated 18.12.2013 issued to the petitioner for cancellation of its contract and blacklisting it had been left in the midway specially when the E.O.U. also had not given a clean chit to the petitioner. The officials of department in fact ought to have not read between the lines of the report of the E.O.U. that no financial loss was caused to the government in the award of Patna High Court CWJC No.25151 of 2013 163 the contract even when it was clearly mentioned therein that cost of paper of 56 G.S.M. as produced by the petitioner was having 25% less price than paper of 80 G.S.M. which in turn would mean that the petitioner was awarded contract worth Rs. 4,21,64,000/- on the basis of its samples worth Rs. 3,16,23,000/- thus causing a direct loss of Rs. 1,05,41,000/- to the state exchequer.
163. The respondents in this regard could not have forgotten that in a case of criminal misconduct and/or misappropriation of the government fund, even any attempt to commit such offence is also punishable. The change of colour of the officials only due to resignation of the then Cabinet Minister the same time in January 2014 therefore should not have gone in favour of the petitioner because, by that time, sufficient materials were already collected against the petitioner and in fact on the basis of them only the show-cause notice had also been issued to the petitioner for cancellation of its agreement on 18.12.2013.
164. Last but not the least, a fresh offer given to the petitioner on 13.10.2014 to supply the materials after fulfilling the specification in the tender notice should never have been the outcome of the further show-cause notice issued to the petitioner dated 8.9.2014 based on the report of the E.O.U. dated 1.8.2014 and 2.9.2014.
Patna High Court CWJC No.25151 of 2013 164
165. Can this Court, therefore, in presence of the aforesaid overwhelming materials showing repeated favours bestowed to the petitioner now become silent spectator to the present decision taken by the Secretary of the Social Welfare Department on 13.10.2014 for issuance of a new work order to the petitioner who infact had never fulfilled the requisite terms and conditions for award of contract? The contract, in question, having value of more than Rs. 4,21,64,000/- (Rupees Four Crores Twenty One Lacs Sixty Four Thousands) and that too under the funds made available by the Government of India with the prescribed norms and condition for obtaining supply of registers and calenders cannot be allowed to be completed on the mere whims and fancy of the few of the bureaucrats who can change their color like a chameleon in order suit and serve their own personal interest and that of the petitioner.
166. Let it be also noted that when the first hearing of this case took place before this Court on 11.4.2014 an affidavit was filed by the department before this Court clearly stating that an enquiry by E.O.U. was being done to find out the criminality on the part of the petitioner and other officials or employee. When this Court had, thereafter, started awaiting the result the enquiry by the E.O.U. a one line observation made by the Investigating Officer of E.O.U. in his otherwise scathing report dated 19.6.2014 that on account of non- Patna High Court CWJC No.25151 of 2013 165 payment of the amount, no financial loss has been sustained to the department as yet was surprisingly was picked as a thread to bestow favour on the petitioner by filing another affidavit before this Court on 3.7.2014 that as no financial loss has been caused to the department, this Court may allow the department to get the supply from the petitioner.
167. This Court, however, did not give such liberty to the respondents specially when on perusal of the file it did not find any conscious decision to have been taken with regard to obtaining supply from the petitioner as was sought to be communicated in the affidavit filed on 2.7.2014 sworn by Dr. Chandni, Assistant Director in the I.C.D.S. Directorate claiming that in fact a confusion created under the circumstance, to be the sole reason for referring the matter to the enquiry by Economic Offence Unit under the order of the then Minister. In fact, the statement in the affidavit dated 2.7.2014 that the department had got no objection in receiving the supply if the materials, in question, are supplied as per specification in the tender notice was also made without there being such a decision by the competent authority much less the Secretary or the Director, the Respondent no. 2 whose behalf such affidavit was filed on 3.7.2013 before this Court as has also been found by this Court on perusal of the file produced by the respondents. Obviously, efforts were all along Patna High Court CWJC No.25151 of 2013 166 made to help the petitioner only because the then Minister who had unearthed the racket, as noted above, had no longer remained in office. In fact that alone has ultimately paid dividend when the present Secretary, namely, Arvind Kumar Chaudhary, IAS, had sought to justify the stand of the petitioner and in fact had not even hesitated in questioning the bonafide the then Minister even though he was not the Secretary of the department in the period of the then Minister.
168. The aforesaid discussion made at lenth by this Court would by itself go to show that a criminal conspiracy for awarding contract worth Rs. 4,21,64,400/- by flouting the departmental Rules was hatched and also given effect to at different stages by the officials of the department beginning from Mr. Manoj Kumar Chaudhary, the Procurement Officer, Mr. Radha Raman Jha, the Joint Director, Ms. Vandana Preyasi, the then Director ICDS, Mr. Ashok Kumar, the Assistant Director, Mr. Ram Pravesh Ram, the dispatch clerk, Ms. Chandani, the Assistant Director, Ms. Neelam Gupta, Director ICDS and finally Mr. Arvind Kumar Chaudhary in league with the two Directors of the petitioner company namely, Smt. Niharika Gupta and Mr. Pankaj Gupta both claiming to be the Managing Directors at different point of time. Thus, in view of the decision taken on the basis of such a conspiracy between the officials of the department and the two directors of the petitioner company and Patna High Court CWJC No.25151 of 2013 167 in teeth of terms and conditions of the N.I.T., this Court cannot either allow the prayer made in this writ application or approve the order dated 13.10.2014, on receipt of which alone learned counsel for the petitioner had sought permission to withdraw this writ application.
169. At this stage, this Court would fail in its duty if it does not take into account one of the prayer made by Shri Rajesh Prasad Chaudhary the learned counsel for the petitioner on 8.8.2014 who having filed 3rd supplementary affidavit had made initially a prayer that since the Department had no impediment in receiving the material from the petitioner, in view of the supplementary counter affidavit filed by Ms. Chandni, an Assistant Director, I.C.D.S. on 3.7.2014, this Court must dispose of this writ application with a direction to the respondent no.2 to accept the supply from the petitioner without further delay. That prayer however was not allowed and the matter had proceeded as has been also recorded in the earlier part of the judgment.
170. Subsequently, on 21.10.2014, I.A. No. 7932 of 2014 was filed by the petitioner on the basis of the order dated 13.10.2014, paragraph nos. 3 & 4 whereof reads as follows:-
"3. That during pendency of the writ application 5th Supplementary Counter Affidavit has been filed on behalf of respondent no.2 in which letter No. 5720 dated 13.10.2014 has been annexed as Annexure-E of said counter Affidavit. In paragraph No.4 of said Patna High Court CWJC No.25151 of 2013 168 counter Affidavit it has been stated that the matter was examined and it has been decided that if the petitioner is ready to supply the register as per specification mentioned in the tender and rate quoted by the petitioner within sixty day if a fresh work order is issued to them then necessary work order will be issued for supply of register. In response to said letter dated 13.10.2014 the petitioner has given his reply on
14.10.2014 agreeing to supply the goods as per the specification mentioned in the tender.
4. That in view of subsequent developments, the petitioner may be permitted to withdraw the writ application."
171. Learned counsel for the petitioner has also referred to the decision of the Apex Court in the case of M/s Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co. reported in AIR 1968 SC 111 as also another judgment of the Apex Court in the case of Shaik Hussain & Sons Vs. M.G. Kannaiah & Anr. reported in AIR 1981 SC 1725 ~ 1981 (3) SCC 71 that the plaintiff or a writ petitioner in case it wants to withdraw the writ application, such prayer should be allowed and the court should not proceed to decide the case.
172. In the considered opinion of this Court the principle of law is well settled. Order 23 Rule 1 of the Code of Civil Procedure definitely gives liberty to a plaintiff to withdraw its suit. It has also been held in the case of Daryao & Ors Vs. State of U.P. & Ors. reported in AIR 1961 SC 1457 and in the case of Gulabchand Chhotalal Parikh Vs. State of Gujrat reported in AIR 1965 SC 1153 Patna High Court CWJC No.25151 of 2013 169 that normally the advocate/lawyers finding relief being not granted by the Court have a tendency to withdraw the writ application and ordinarily such prayer can be allowed with a rider of not filing another writ application for the same cause of action as was also laid down by the Apex Court in the case of Shaik Hussain (supra).
173. The issue of withdrawal of a writ application has been directly decided by the Apex Court in the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior & Ors. reported in AIR 1987 SC 88 wherein it has been held that the only touchstone for allowing such prayer for withdrawal of a writ application must be bonafide, inasmuch as, it has been held that under certain contingency, such prayer to withdraw a writ application/suit can also be refused namely;
(i) Abuse of process of court,
(ii) Such withdrawal being against public policy,
(iii) Guilty of suppression of material fact,
(iv) Adopting dubious method or means for obtaining such relief.
(v) Withdrawal has been prayed when the true facts had come to the light.
174. Reference in this connection may be usefully made to the observation of the Apex Court laid down in the case of Smt. Patna High Court CWJC No.25151 of 2013 170 Vidya Verma through next friend R.V.S. Mani Vs. Dr. Shiv Narain Verma reported in AIR 1956 SC 108 which has also been followed by Apex Court in the case of Sarguja Transport Service (supra).
175. This Court having regard to the fact that the petitioner had initially suppressed and manipulated the fact of its writing letter allegedly on 6.8.2013 that it had not submitted the sample as prescribed in the N.I.T. and that it had only subsequently tried to make out a new case in respect of the paper and board of Register No.2 for extracting an order from this Court for issuance of work order by filing this writ petition on 18.12.2013 when the enquiry was already going against it by E.O.U. would find that it had actually suppressed material facts. Let it be noted that subsequently when in the supplementary counter affidavit filed on 10.4.2013 by Respondent no. 2, this fact was brought to the notice that the department had already issued a show-cause notice to the petitioner on 18.12.2013, the day on which the writ application was filed for cancellation of the agreement or that the Minister on 15.1.2014 had directed for taking criminal action against the petitioner for which E.O.U. was entrusted the enquiry, no such prayer was made for withdrawal of the writ application and the matter was sought to be contested by questioning the decision of the department.
Patna High Court CWJC No.25151 of 2013 171
176. Thus only because the then Minister had resigned during the pendency of this writ application somtime in January 2014 and the petitioner through his favorite officials of the department, who had been party to awarding the contract to the petitioner illegally and in clear violation of the terms and conditions of the N.I.T. particularly in relation to samples of paper and board as prescribed in the N.I.T. and favouring the petitioner for receiving the supply from it by reading between the lines of the report of the EOU and it also became wiser to make a prayer for withdrawal of the writ application only in view of the decision dated 13.10.2014, this Court can not now permit to withdraw this writ application to enable it to reap the benefit illegal order dated 13.10.2014. This Court has already discussed as to how the order dated 13.10.2014 has been passed ignoring all the relevant aspects and in fact only with a view to settle the score with the Ex- Minister by the present Secretary Mr. Arvind Kumar Chaudhary who did not shy away even in making personal oral allegation against the petitioner though he was not even the departmental Secretary when any part of the decision was taken by the then Cabinet Minister.
177. This Court, therefore would refuse to allow this writ application to be withdrawn because it is of the view that it has to be still discovered as to who all were the person who were actually trying to fretter away the public interest and public fund of rupees more than Patna High Court CWJC No.25151 of 2013 172 Rs. 4,21,64000/- (Rupees four crores Twenty One lacs Sixty Four Thousand) by allowing the contract to be completed by the petitioner even on fresh terms and conditions by also changing the original conditions of N.I.T. and specially its clause 5.8 of General Bid and Eligibility Condition. This Court therefore cannot be a party to such dubious design of the officials of the department in league with the two directors of the petitioner inasmuch as that would amount to giving its seal of approval to the order of supply issued on 13.10.2014 on the basis of which the prayer for withdrawal of the writ petition had been made on 21.10.2014. In that view of the matter, the prayer for withdrawal of the writ application made by the petitioner, following the ratio laid down by the Apex Court in the case of Smt. Vidya Verma through next friend R.V.S. Mani (supra), is hereby rejected.
178. This Court having refused withdrawal of the writ application in exercise of its power of judicial review shall be solely guided on the settled principles to find out as to whether the process adopted or decision made by the authority for awarding the contract to the petitioner by the order dated 13.10.2014 is malafide and/or intended to favour the petitioner.
179. As discussed above, this Court finds that the process adopted or decision made in favour of the petitioner is absolutely Patna High Court CWJC No.25151 of 2013 173 arbitrary and irrational and this Court can safely say that the decision in favour of the petitioner is such that no responsible authority, acting reasonably and in accordance with relevant laws, could have reached the same by allowing the petitioner a fresh offer in terms of the order dated 13.10.2014. The public interest and public exchequer involving Rs. Four crore Twenty One Lacs and Sixty Four Thousands cannot be allowed to be sacrificed as was held in the case of Sterling Computers Limited Vs. M/s M & N Publications Limited & Ors. reported in 1993(1) SCC 445 and also in the case of Meerut Development Authority Vs. Association of Management Studies & Anr. reported in 2009(6) SCC 171 wherein it was held as follows:-
"37. ------ The proposition that a decision even in the matter of awarding or refusing a contract must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations cannot for a moment be doubted. The powers of the State and other authorities are essentially different from those of private persons. The action or the procedure adopted by the authorities which can be held to be State within the meaning of Article 12, while awarding contracts in respect of properties belonging to the State, can be judged and tested in the light of Article 14. Once the State decides to grant any right or privilege to others, then there is no escape from the rigour of Article 14. These principles are settled by the judgments of this Court in the cases of Ramana Dayaram Shetty vs. International Airport Authority of India [(1979)3 SCC 489], Kasturi Lal Lakshmi Reddy vs. State of J & K [(1980)4 SCC 1], Ram and Shyam Co. vs. State of Haryana [(1985)3 SCC 267], Mahabir Auto Stores vs. Indian Oil Corporation [(1990)3 SCC 752], Sterling Computers Ltd. vs. M & N Publications [(1993) 1 Patna High Court CWJC No.25151 of 2013 174 SCC 445] and A.B. International Exports vs. State Corporation of India [(2004)3 SCC 553].
38. Executive does not have an absolute discretion, certain principles have to be followed, the public interest being the paramount consideration. It has been stated by this Court in Kasturi Lal's case (supra):
"14. ... It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State, such an action would be both unreasonable and contrary to pubic interest.
The government, therefore, cannot, for example, give a contract or sale or lease out its property for a consideration less than the highest that can be obtained from it, unless of course, there are other considerations which render it reasonable and in public interest to do so."
180. Thus, having regard to the complete picture as discussed above in this judgment there is no escape from the irresistible conclusion that the petitioner did not fulfil the terms and conditions of the N.I.T. for award of contract, this Court will have no hesitation in holding the entire exercise of awarding contract to the petitioner commencing from the proceedings of tender committee dated 13.5.2013, execution of agreement for award of contract on 1.8.2013 and ultimately giving supply order to the petitioner as contained in order no. ICDS/50050/302014/5720 dated 13.10.2014 to be bad, both on fact and in law and accordingly they as a whole are Patna High Court CWJC No.25151 of 2013 175 hereby quashed.
181. This Court while doing so also gets support from the law laid down by the Apex Court in the case of Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors. reported in 2000(5) SCC 287 wherein it was held that if the condition of the eligibility prescribed in the N.I.T. is not satisfied, the decision to award of contract on account of its being arbitrary, discriminatory malafide and against public policy can be set aside by the court as would become also clear from the following passage of aforesaid judgment:-
"11. Broadly stated, the courts would not interfere with the matter of administrative action or changes made therein unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide.
12. If we bear thee principles in mind, the High Court is justified in setting aside the award of contract in favour of M/s. Monarch Infrastructure (P) Ltd. because it had not fulfilled the conditions relating to Clause 6(a) of the Tender Notice but the same was deleted subsequent to the last date of acceptance of the tenders. If that is so, the arguments advanced on behalf of M/s. Konark Infrastructure (P) Ltd. in regard to allegation of mala fides of the Commissioner of the Municipal Corporation in showing special favour to M/s. Monarch Infrastructure (P) Ltd. or the other contentions raised in the High Court and reiterated before us are insignificant because the High Court had set aside the award made in favour of M/s. Monarch Patna High Court CWJC No.25151 of 2013 176 Infrastructure (P) Ltd. The only question therefore remaining is whether any contract should have been awarded in favour of M/s. Konark Infrastructure (P) Ltd.. The High Court had taken the view that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had began and, therefore, if the Government or the Municipal Corporation was tree to alter the conditions fresh process of tender was the only alternative permissible. Therefore, we find that the course adopted by the High Court in the circumstances is justified because by reason of deletion of a particular condition the wider net will be permissible and a larger participation or more attractive bids could be offered."
182. That the decision of such award of contract to the petitioner was arbitrary and discriminatory stands fully established from the proceedings of Tender Committee dated 13.5.2013. The events taking place after 13.5.2013 and upto 13.10.2014 at the behest of officials of the I.C.D.S. directorate of Social Welfare department in course of which the samples of supply of stationary was sought to be changed and replaced even by causing interpolation and backdating in the official records and ultimately even an attempt was made to dupe even this court on 3.7.2014, will lead to one and only one inevitable conclusion that the whole decision to award contract as also receive supply from the petitioner was again not only malafide but also against avowed public interest involvinig public fund of Rs. 4,21,64,000/- (Four Crores Twenty One Lacs Sixty Four Thousand). Patna High Court CWJC No.25151 of 2013 177
183. This Court can also not ignore the fact that in the whole deal of favouring the petitioner and its two Directors namely, Smt. Niharika Gupta and Mr. Pankaj Gupta there is a role of number of functionaries of the State Government including the present minister Smt. Lacy Singh, Mr. Arvind Kumar Chaudhary, Secretary, two Directors of ICDS namely, Ms. Vandana Preyasi and Ms. Neelam Gupta apart from the two Assistant Directors namely, Mr. Ashok Kumar and Ms. Chandani, in addition to the pivotal role played by Mr. Radha Raman Jha, the Joint Director, as well as the kingpin of the whole episode namely, Mr. Manoj Kumar Chaudhary, the Procurement Officer. As a matter of fact, whatever materials have come on record would also go to show the complicity of number of employees the directorate of I.C.D.S. as well including Mr. Ram Pravesh Ram, the dispatch clerk. The zone of inquiry has also not remained confined only at Patna but also at Lucknow where the petitioner and its two Directors namely Pankaj Gupta and Niharika Gupta are statitioned and from where the records were sought to be interpolated, manufactured and also replaced not only in the directorate of I.C.D.S., Patna but even in C.P.R.I., Saharanpur.
184. This Court therefore must not remain content by quashing the entire process of awarding contract to the petitioner but also must direct the State Government through its Chief Secretary to Patna High Court CWJC No.25151 of 2013 178 take exemplary action against all the public servants of Social Welfare Department who have been found to be involved in the present deal of awarding Contract and issuing supply order to the petitioner in view of law laid down by the Apex Court in the case of Common Cause, A Registered Society Vs. Union of India reported in 1996 (6) SCC 530 wherein it was held as follows:-
".............. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as pubnlic servants. This Court in Lucknow Development Authority v. M.K. Gupta reported in (1994) 1 SCC 243 approved "Misfeasance in public offices" as a part of the Law of Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrongdoing. According to Wade:
"There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury."
With the change in socio-econimic outlook, the public servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of ommission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against Patna High Court CWJC No.25151 of 2013 179 such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable." No public servant can arrogate to himself the power to act in a manner which is arbitrary."
185. It is however made clear that notwithstanding setting aside such tainted and malafide action and consequential orders of award of contract to the petitioner it shall remain open to Respondents 1 and 2 to initiate and also complete the fresh process of award of contract for supply of stationary in question commencing from issuance of a fresh N.I.T. but only after obtaining prior approval of the Government of India inasmuch as such scheme of work relating to supply and distribution of new registers to Anganbari Centres to monitor M.I.S. programe was a scheme sponsored and funded by the Government of India in the Ministry of Female and Child Development vide its letters dated 28.3.2012 and 2.5.2012 and had to be completed by 31.7.2012.
186. Before parting with, this Court also must hold that it is not at all impressed with the half hearted effort of the E.O.U. which had sought to close the whole matter in an inconclusive and hurried manner despite its collecting a number of revealing of materials, having ingredients of criminal conspiracy and criminal misconduct in an attempt to misappropriate a huge sum of public fund Rs. 4,21,64,000/- (Rupees Four Crores Twenty One Lacs Sixty Four Patna High Court CWJC No.25151 of 2013 180 Thousands) in the process of awarding the contract to the petitioner and also making an attempt to accept the supply of materials from the petitioner by changing the specification. Had the then Minister not intervened and passed her orders way back on 7.8.2013, 6.11.2013, 10.12.2013 and 15.1.2014, the combined effort of the two directors of the petitioner in collusion with the officials and employee of the I.C.D.S. Directorate in completion of contract could have also easily succeeded.
187. The whole scheme being funded by the Government of India in the ministry of Family and Child Development and this Court having found that the officials of E.O.U have rather left the matter midway by only recommending for departmental action only against Mr. Manoj Kumar Chaudhary, the Procurement Officer and Mr. Ram Pravesh Ram, the clerk, and leaving all others scot free, would deem it expedient in the ends of justice to direct the Central Bureau of Investigation to get the whole matter commencing from the decision of declaration of petitioner as lowest bidder taken on 13.5.2013 and ending as on 13.10.2014 by issuance of supply order to the petitioner investigated after lodging a First Information Report against all concerned through a dedicated team of officials of C.B.I. and supervised by a Senior Officer not below the rank of Joint Director, C.B.I. The Joint Director, C.B.I. Patna High Court CWJC No.25151 of 2013 181 having supervised such investigation, shall also submit his action taken report in sealed cover to this Court within a period of four months from the date of receipt of this judgment. It is however made clear such investigation by C.B.I. shall be conducted and concluded by the officials of C.B.I. strictly on the basis of materials collected by them and also without being influenced in any manner by any observation and finding recorded in this judgment.
188. With the aforementioned observations and directions, this writ application is dismissed.
189. Let a copy of this judgment along with the records in original, as handed over to this court by the learned counsel for the Respondents as well as authenticated complete copy of the writ petition and all other counter affidavits be immediately entrusted to Mr. Bipin Kumar Sinha, learned counsel for C.B.I. by the registry of this Court after preparation of its inventory, for its transmission to the competent authority for carrying out the aforesaid directions given in this judgment.
(Mihir Kumar Jha, J) Patna High Court Dated the 19th May, 2015 N.A.F.R./Rishi/-
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