Madhya Pradesh High Court
M/S Surendra Security Guarg Services vs Union Of India on 3 April, 2017
1 Writ Petition No.8897/2016
(M/s Surendra Security Guard Services vs. The Union of India and
others)
03.04.2017
Shri Ankur Mody, learned counsel for the appellant.
Shri Vivek Khedkar, learned Assistant Solicitor General for
the respondent no.1/Union of India.
Shri Deepak Awasthy, learned counsel for the respondent no. 2 to 4.
Shri P. Newaskar, learned Govt. Advocate for the respondent no.5/State of M.P. The challenge in the present writ petition is to an order dated 2nd of December, 2016, whereby an appeal of petitioner against the order dated 28th June,2016 banning Business Dealings of the petitioner for a period of two years with the respondent no.2, was dismissed.
The petitioner was served with a show cause notice by the respondent - NHDC Ltd. on 1st of October,2015 interalia on the ground that the document dated 27.06.15 produced by the petitioner from THDC India Ltd. was not issued by it. Therefore,the production of the said document by the petitioner is covered by the fraud policy of the respondents. In response to such show cause, the petitioner submitted a reply on 13.10.15 interalia asserting that M/s THDC has in fact made certain payments which were attached with the reply.
Earlier, the petitioner filed a Writ Petition No. 4654/16 before this Court. The said petition was disposed of on 27 th of September, 2016 so as to provide an opportunity to the petitioner to avail the remedy of appeal contemplated under the fraud policy. It is thereafter, the impugned order has been passed on 2.12.16 interlia to the effect that M/s THDC India Ltd. has denied 2 Writ Petition No.8897/2016 (M/s Surendra Security Guard Services vs. The Union of India and others) the issuance of Experience Certificate vide communication dated 13.11.15, and also in reply before the High Court in the earlier writ petition. After observing so, the appeal was dismissed, as the fraud policy does not provide for any personal hearing.
Before this Court, learned counsel for the petitioner relies upon the judgment of the Supreme Court in Gorkha Security Services vs. Govt. of NCT of Delhi (2014) 9 SCC 105 to contend that if a show cause notice is served without contemplating the consequences of violation of any terms and conditions of the tender then such show cause notice is not tenable. It is also contended that in fact the policy (Annexure P/15) contemplates the grant of personal hearing, if required, therefore, the order in appeal proceeds on wrong assumption of law and facts.
We have heard learned counsel for the parties and find that order dated 2nd of October, 2016 cannot be sustained in law. The respondent has issued a show cause notice on 1.10.15 to take action against the petitioner in terms of the fraud policy, but what action would be taken, has not been clearly enumerated in the show cause. Still further, in the reply, the petitioner has referred to certain payments made by M/s THDC India Ltd., but such aspects has not been dealt with in the impugned order passed. Even the policy contemplates personal hearing, if required, but declining of the personal hearing is not based for the reason that it is not required, but for the reason that it does not contemplate any opportunity of personal hearing.
Consequently, we find that order dated 2nd of December, 2016 cannot be sustained in law. Therefore, the same is set aside with the liberty to the respondents to supplement the show cause 3 Writ Petition No.8897/2016 (M/s Surendra Security Guard Services vs. The Union of India and others) notice dated 1.10.15, if any, within two weeks. The petitioner shall have the liberty to file fresh reply, if any, within another two weeks. The respondents shall take a decision on merit as expeditiously as possible, preferably within a period of two months.
With the said direction and liberty, the writ petition stands disposed of.
(Hemant Gupta) (Sheel Nagu)
Chief Justice Judge
jitin