Andhra Pradesh High Court - Amravati
Seasons Healthcare Ltd., vs The State Of Andhra Pradesh., on 26 October, 2021
Author: R.Raghunandan Rao
Bench: R.Raghunandan Rao
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION No.15064 of 2019
ORDER:-
The 2nd respondent had floated a tender for supply of the surgical consumables and readymade cloth items vide Tender Notice No.22 (17-19)/APMSIDC/Medicine Wing/2017-18, dated 28.03.2018. This tender was open for manufacturers, Direct Importers and Authorized Distributors of these products. The tender notification required all bidders to submit two categories of documents, viz., (1) documents in relation to the bidders eligibility and qualification, and (2) documents in relation to eligibility of the goods, and conformity to bidding documents.
2. The petitioner had participated in the above said tender as the Authorized Distributor, representing 10 primary manufacturing companies, for supply of 169 items covered under the said tender notification and had submitted both categories of documents to the 2nd respondent online. Thereafter, the evaluation process was taken up. However, on 26.06.2019 the petitioner had, by way of a letter to the 3rd respondent, expressed its intention to withdraw from the tender on the ground that the offer made by the petitioner had a validity of only 180 days which ended on 06.12.2018 itself and had not been extended. The petitioner also sought refund of the earnest money deposit. At that stage, the petitioner found that the 2nd respondent had, on 13.03.2019, displayed a message on its official website stating that the petitioner company had been 2 RRR,J W.P.No.15064 of 2019 blacklisted. This action was challenged by the petitioner by way of W.P.No.4225 of 2019, which is disposed of on 26.10.2021. Thereafter, the 3rd respondent issued a show cause notice dated 31.07.2019, calling for an explanation from the petitioner company, within seven days, as to why the petitioner company should not be blacklisted for submission of false documents in respect of past performance of the petitioner company as per clause 2 (XII) of the tender notification. The petitioner replied to this show cause notice by letter dated 06.08.2019 stating that the show cause notice did not specify the documents, which are alleged to be false, and requested for the details and copies of the documents so that the petitioner could answer these allegations. Thereafter, the 3rd respondent, without passing any further orders, had blacklisted the petitioner company on 05.09.2019, for a period of three years up to 04.09.2022 on the ground of submission of false documents. This action of the 3rd respondent was challenged by way of W.P.No.13469 of 2019. The respondents took a plea, in that writ petition, that an order dated 05.09.2019 had been passed, blacklisting the petitioner company. Thereupon, the petitioner had withdrawn W.P.No.13469 of 2019 with liberty to file a fresh writ petition, challenging the order dated 05.09.2019. Thereupon, the present writ petition was filed by the petitioner challenging the impugned order dated 05.09.2019 passed by the 3rd respondent.
3. The contention of the petitioner is that the impugned order bearing File No.22/APMSIDC/MW/2017-19, dated 05.09.2019 does not contain any reason except stating that the explanation given by the petitioner in its letter dated 3 RRR,J W.P.No.15064 of 2019 06.08.2019 is not satisfactory. Further, the impugned order is based on the initial show case notice dated 31.07.2019 which did not give any details as to the documents which are said to be fabricated or fake. The petitioner contends that the impugned order, which does not contain any reasons for rejecting the explanation of the petitioner and which does not set out any specifics as to the documents that are said to have been fabricated by the petitioner, is a case of violation of principles of natural justice and requires to be set-aside.
4. The respondents filed counter affidavits, in which it was stated that the petitioner had been earlier blacklisted on 13.03.2019 because of the lack of quality in the drugs supplied earlier by the petitioner, and that the petitioner was suspended again on 05.09.2019 on the ground that the documents produced by the petitioner, in its bid in the tender notification dated 28.03.2018, were fabricated. Thereafter, an additional affidavit was filed by the petitioner raising various contentions.
5. Subsequently, the 3rd respondent again filed an affidavit dated 20.10.2021. In this affidavit, it is stated that the petitioner had participated as Authorized Distributor of 10 companies, out of which, the Past Performance Certificate submitted on behalf of M/s.India Medtronic Private Limited were found to be forged/false.
6. Heard Sri S.Sridhar, learned counsel for the petitioner and Sri Venkata Reddy Chittem, learned counsel for the respondents.
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7. The show cause notice dated 31.07.2019 issued by the 3rd respondent simply stated as follows:
"It is hereby informed that vide reference 1st cited above, the surgical consumables tender was floated for procurement of 339 products. Your firm was participated and submitted documents and it is found that Forged/Fabricated/Erroneous/False documents of past performance were firm submitted by your firm."
On this basis, the show cause notice was issued calling upon the petitioner to submit an explanation. In reply to this notice, the petitioner had, by letter dated 06.08.2019, requested the 3rd respondent to give details of the documents that are said to be fabricated so that necessary clarification can be given. The 3rd respondent, without giving any of those details, issued the impugned order dated 05.09.2021 holding that the explanation given by the petitioner is not satisfactory and that the petitioner was being blacklisted for three years on the ground of having submitted fabricated documents.
8. It is clear from the recitals of the above facts, that the specifics of the case set out against the petitioner have not been placed before the petitioner. Except stating that the explanation given by the petitioner is not satisfactory, the 3rd respondent has not set out any grounds in the order as to why the petitioner is being blacklisted. It must also be noted that there is no mention in the impugned order that the 3rd respondent had determined that the documents filed on behalf of M/s.India Medtronic Private Limited were fabricated. This statement has emerged for the first time in the affidavit filed by the 3rd respondent on 20.10.2021.
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9. This is a case of total failure of principles of natural justice, and the subsequent statements in the affidavit of 20.10.2021 that the petitioner was blacklisted on account of fake documents filed on behalf of M/s.India Medtronic Private Limited, cannot be set out in defense.
10. The Hon'ble Supreme Court in the case of Mohinder Singh Gill & Anr., Vs The Chief Election Commissioner, New Delhi & Ors.,1 had categorically held that the subsequent affidavits cannot supply reasons which are lacking in the original order.
11. In the circumstances, this writ petition is allowed setting aside the order dated 05.09.2021 passed by the 3rd respondent in File No.22/APMSIDC/MW/2017-19/1626 dated 05.09.2019, leaving it open to the 3rd respondent to take any further steps only after the petitioner is informed of the exact case made out against the petitioner and after giving an opportunity of hearing and to place all the relevant material before the 3rd respondent. There shall be no order as to costs.
Miscellaneous petitions, pending if any, in this Writ Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 26-10-2021 RJS 1 1978 AIR 851=1978 SCR(3)272 6 RRR,J W.P.No.15064 of 2019 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO WRIT PETITION No.15064 of 2019 Date : 26-10-2021 RJS