Delhi District Court
Sh. S. D. Falwaria vs Union Of India on 27 January, 2012
IN THE COURT OF AJAY GOEL: SCJ CUM RC (CENTRAL):
DELHI.
S.No: 387/06/91
In the matter of:
Sh. S. D. Falwaria,
S/o Sh. Dharam Dass,
Govt. Contractor,
25/3, Ashok Nagar,
Tilak Nagar, New Delhi. .....Plaintiff.
VERSUS
1.Union of India,
Service through
Ministry of Urban Development,
Nirman Bhawan, New Delhi-110001.
2.Director General of Works,
C.P.W.D. Nirman Bhawan,
New Delhi-110001. ......Defendants.
Date of Institution: 01.10.1991
Date of assignment to this court: 05.02.2009
Date of arguments: 25.01.2012
Date of Decision: 27.01.2012
JUDGMENT
1. This is a suit for declaration and permanent injunction filed by the plaintiff against defendants. It is stated in the plaint that plaintiff was enlisted in Class-III (B & R) Contractor in CPWD vide Memo No. C/14- III (B & R) dated 02.9.1976. As stated the office of defendant No. 2 S.No-387/06/91 Page No.1/7 invited tenders for the work of wooden partition for IGNCA, New Delhi somewhere in 1986 and plaintiff also submitted his tender for the said work and his tender being the lowest was accepted and the plaintiff was awarded the said work vide agreement No. 36/EER/86-87. As stated the plaintiff thereafter executed the said work as per specification and the terms of the contract agreement and said work was executed by the plaintiff under complete supervision of the officers of defendant No. 2. It was stated that said work was completed by the plaintiff on 08.5.1987 but the balance payment and other legitimate dues of the plaintiff were not cleared by the defendant and as such the plaintiff was constrained to invoke the arbitration clause for the adjudication of his claim by arbitration. It was stated that office of defendant No. 2 instead of getting the dispute of the plaintiff settled in terms of arbitration, issued a show cause notice dated 20.8.1987 requiring the plaintiff to explain why action to remove his name from the approved list of contractor should not be taken. As stated the plaintiff vide his letter dated 12.9.87 replied to the said show cause notice and on receipt of the same office of the defendant No. 2 orally assured the plaintiff that the matter will be closed. It was further stated that plaintiff to his total shock and surprise received a circular dated 12.9.1988 from the office of defendant No. 2 by which the name of plaintiff was removed from the approved list contractors of the department and it was further asserted in said circular dated 12.9.88 that no tender S.No-387/06/91 Page No.2/7 henceforth be issued to the plaintiff in CPWD. As stated the plaintiff made representation to defendant No. 2 against the circular dated 12.9.88 vide his letter dated 9.10.88 whereby the plaintiff explained the complete situation once again and requested the defendant No. 2 to intervene in the matter at earliest but no action has for been taken by defendant No. 2. As stated the office of defendant No. 1 invited the tenders for balance work at risk and costs of plaintiff on or about 01.2.1989 and the plaintiff as per terms of the contract agreement was also entitled to submit his tender for the balance work but the office of defendant has refused to issue the tender to the plaintiff. It was stated that defendant and their officials have debarred the plaintiff from doing any business as contractor, with the defendants and as stated, the circular dated 12.9.1988 is totally unjustified, illegal and unwarranted. Hence, it was prayed that circular/letter No. DGW/CON/DA/120 dated 12.9.1988 be declared as null and void and further the defendants, their agents, officers and assignees be restrained from refusing to issue tenders to the plaintiff on the basis of impugned letter/circular No. DGW/CON/DA/120 dated 12.9.1988.
2. Written statement was filed by defendants to the plaint filed by the plaintiff wherein it was stated that work was executed under the strict supervision of the CPWD staff and sub standard work has been executed against the instructions of the supervisory staff and plaintiff was informed of the sub standard work and a report in the S.No-387/06/91 Page No.3/7 matter sent to competent authority for taking necessary action. It was stated that work was actually completed on 12.2.1988 and plaintiff was finally paid vide CV No. 83 of May, 1988 IInd and final bill of the contractor. As stated the plaintiff has been black listed by D.G. Works vide letter dted 12.9.1988 after issuing of requisite show cause notice giving the plaintiff ample opportunity to explain the reasons. It was stated that plea of the plaintiff is untenable that he has been debarred from doing his business since he is not entitled to get tender in view of D.G. Circular dated 12.9.1988. The other contents of plaint were denied.
3. During proceedings, none appeared on behalf of defendants, hence defendants were proceeded ex-parte vide order dated 06.03.2002.
4. On the pleadings of the parties, the following issues were framed vide order dated 30.11.1994:-
1) Whether circular/letter No. DGW/CON/DA/120 dated 12.9.1988 is null and void being against the principles of natural justice?OPD
2) Whether the plaintiff is entitled to participate in the tenders to be issued by the defendants?OPD.
3) Relief.
5. In evidence, plaintiff examined himself as PW-1 namely S.D. Falwaria and reiterated the contents of plaint. On the contrary, in defence, defendants examined one witness in support of their case i.e. DW-1 namely Sh. Mukesh Kumar, Executive Engineer, CPWD, New Delhi.
S.No-387/06/91 Page No.4/76. I have heard arguments and perused the record. My issue-wise finding is given below:-
7. Issue No. 1. Whether circular/letter No. DGW/CON/DA/120 dated 12.9.1988 is null and void being against the principles of natural justice?OPD and Issue No. 2. Whether the plaintiff is entitled to participate in the tenders to be issued by the defendants?OPD:- Both these issues are taken up together. It is not disputed by both the parties that contractor can be black listed on the ground mentioned by Government and they are reproduced herein below:-
a) Has, on more than one occasion, failed to execute a contractor or has executed it unsatisfactorily; or
b) is proved to be responsible for constructional defects in a number of cases; or
c) persistently violates any important conditions of the contract; or
d) fails to abide by the conditions of registration or is found to have given false particulars at the time of registration; or
e) is found to have given false information at the time of registration; or
f) is declared or is in the process of being declared bankrupt, insolvent, wound up, dissolved or partitioned; or
g) persistently violates the labour regulations and rules.
8. The defendants have not been able to prove that any of the ground as mentioned above was available for black listing the plaintiff. The S.No-387/06/91 Page No.5/7 case of the plaintiff was not at all covered by any of these conditions. The case of the defendant that plaintiff has used sub standard wood in place of Teak wood is also not proved and it cannot be stated that work was not carried out as per specifications. The defendant has stated that Chap wood was used as per report of Dehradun Laboratory (though same has not been proved) but it transpires that there is another report of Shri Ram Institute of Industrial Research which shows use of Teak Wood. PW-1 was not at all cross-examined regarding the nature of work and material required to be used or material in fact used. No opportunity of personal hearing was given to plaintiff and he should have been heard and principles of natural justices were violated. The counsel has relied upon AIR 1979 Supreme court 266 as well as 1981 Rajdhani Law Reporter page 51 Bhim Sen Vs UOI. The unilateral order without any opportunity cannot be accepted and he should have been heard before his name is put for black listing and more so on grounds which were not available to defendants thus in these circumstances, the plaintiff has fully made out his case. Accordingly, both these issues are decided in favour of plaintiff and against the defendants.
9. Relief:- In view of the above observation, the suit of the plaintiff is decreed. The circular/letter No. DGW/CON/DA/120 dated 12.9.1988 is declared as null and void being violative of principles of natural justice. The defendants, their agents, officers and assignees are S.No-387/06/91 Page No.6/7 restrained from refusing to issue tenders to the plaintiff on the basis of impugned letter/circular No. DGW/CON/DA/120 dated 12.9.1988. If the contractor is found to have violated any of the condition in other contract then in those circumstances, the department will be at liberty to act as per law. Decree sheet be prepared, accordingly. File be consigned to Record Room.
Announced in open court on (AJAY GOEL)
27.01.2012 SCJ Cum RC(Central)/Delhi.
S.No-387/06/91 Page No.7/7