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Showing contexts for: notice terminating contract in Ghanshyan Indravadan Pandya vs University Engineer on 2 April, 2018Matching Fragments
[2.0] The facts leading to the present Special Civil Application in nutshell are as under:
[2.1] That the petitioner herein is in the business of construction as Engineers and Contractors. That the respondent University floated two tenders being (1) Tender dated 28.02.2012 in Tender Notice No.20 and (2) Tender Notice No.11. That the petitioner participated in the said tenders and was found to be successful bidder and consequently the work was awarded to the petitioner. It is the case on behalf of the petitioner that after the work orders were issued, due to defaults on the part of the respondent University and other events which were not within the control of the petitioner, the work got delayed. According to the petitioner the delay on the part of the University was brought to the notice of the respondent and the petitioner also requested the respondent to expedite the issue which is within his domain and within his scope of work. According to the petitioner nothing was fruitful and the respondent acted at its own pace, which resulted in delay. According to the petitioner, on earlier occasion the petitioner sought extension of time from the respondent University which was granted on every occasion. However, at the last occasion sought, the respondent communicated to the petitioner vide letters dated 22.05.2013 that the time for completion is not extended and the respondent is directed to terminate the contract as per Clause 3 of the tender conditions. According to the petitioner, thereafter the petitioner never received any order terminating the contract. That thereafter vide letter / communication dated 11.06.2013 the petitioner was communicated that the petitioner is blacklisted for doing any work with the University. As the same was in breach of principles of natural justice, the petitioner preferred Special Civil Application No.12335/2015 and one another. That vide order dated 04.11.2015, the Division Bench of this Court disposed of the aforesaid Special Civil Application No.12335/2015 on the statement made by the learned Advocate appearing on behalf of the respondent University that a showcause notice will be issued if the respondents are interested in proceeding against the petitioner for blacklisting and after giving opportunity of hearing to the petitioner in consonance with the principles of natural justice, fresh decision in accordance with law will be taken and according to the said statement the Division Bench disposed of the said petition by observing that in that view of the matter, grievance of the petitioner does not survive and in view of such arrangement, the order of blacklisting would not survive. That thereafter the respondent issued notice dated 12.01.2016 alleging inter alia that in view of termination of four weeks as per the conditions of contract, the petitioner is liable to be blacklisted. Therefore, the petitioner was called upon to show cause why the petitioner should not be blacklisted in view of the termination of the four weeks as per the conditions of contract. That the petitioner replied to the showcause notice by reply dated 22.01.2016. From the reply it appears that it was the specific case on behalf of the petitioner that as such there is no order terminating the contract / works. It was the specific case on behalf of the petitioner that none of the contracts referred to in the notice are terminated; mere instruction to terminate the contract does not amount to termination of contract; no notice, no opportunity of hearing nor any principle of natural justice has been followed by the University at any stage before the socalled termination as alleged in the notice. The petitioner also replied to the aforesaid notice on merits also. That thereafter one another notice dated 22.01.2016 was issued by the respondent University by which the petitioner was again called upon to show cause as to why the petitioner be not blacklisted. The same was responded by the petitioner vide reply dated 02/03.02.2016. That thereafter again one another notice dated 16.01.2016 was issued and served upon the petitioner asking the petitioner to assign proper reasons which was responded by the petitioner vide reply dated 20.02.2016 and also requested for personal hearing. That again the petitioner was issued a notice dated 29.02.2016, which was again responded to by the petitioner vide reply dated 06.04.2016. That thereafter vide impugned letter / communication dated 13.06.2016, the petitioner is informed that the petitioner is blacklisted permanently from doing any work with the University.
[4.1] It is further submitted by Shri Dave, learned Advocate appearing on behalf of the petitioner that in the present case as such there are no specific orders terminating the contracts which are referred to in the impugned order. It is submitted that unless and until works / contracts are terminated and that too after following the procedure as required under the conditions of contract, there may not be any order of blacklisting and/or putting the contractor under abeyance. It is submitted that in the present case none of the contracts referred to in the notices are terminated by the University at any stage. It is submitted that letters referred to by the respondent only speaks that the respondent was instructed by the University to terminate the contract. It is submitted that mere instruction to terminate the contract does not amount to termination of contract. It is submitted that even otherwise before the socalled termination as alleged, no notice, no opportunity of hearing nor any principles of natural justice have been followed. It is sumbitted that therefore the impugned order of blacklisting is wholly without jurisdiction.
[5.2] It is further submitted by Shri Shelat, learned Advocate appearing on behalf of the respondent that the impugned order has been passed after giving fullest opportunity and after issuing various showcause notices and after considering the replies filed by the petitioner. It is submitted that therefore the impugned order of blacklisting cannot be said to be arbitrary and/or in violation of principles of natural justice as alleged.
[6.0] Now, so far as the submission on behalf of the petitioner that in the present case as four contracts which are referred to in the showcause notices and the impugned order are not terminated and as such no written order has been passed terminating the contracts / works and therefore, Clause 3 of the tender conditions shall not be attracted is concerned, it is vehemently submitted by Shri Shelat, learned Advocate appearing on behalf of the respondent that as such the termination of the contract / works has been challenged by the very petitioner before the Civil Court which is pending. It is submitted that in the civil suit the petitioner has challenged the termination of the contracts / works and therefore, it will not be proper on the part of the petitioner to contend that the contracts / works are not terminated.
[7.4] Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decisions to the facts of the case on hand and the impugned communication it appears that the impugned communication blacklisting the petitioner permanently is a non speaking and nonreasoned order and therefore, the same can be said to be in violation of principles of natural justice.
[7.5] There is a serious dispute whether the condition precedent for taking the action of abeyance as per Clause 3 of the tender conditions are satisfied or not. There is a dispute whether in fact the contracts / works are terminated as alleged in the showcause notices and as stated in the impugned order / communication. In the reply to the showcause notice, from the very beginning it is the case on behalf of the petitioner that as such except the communications proposing to terminate the contracts / works, thereafter there is no order in writing terminating the contracts / works. However, it is the case on behalf of the respondent University that as the termination of the contracts / works is a subject matter of civil suit and therefore, even the petitioner also understood that the works / contracts are terminated. To test the above submission as such the copy of the averments in the plaint are required to be considered, however neither of the Advocates have placed on record the copy of the plaint. It might be that in the suit the plaintiff might have stated that the alleged termination is not an order of termination in the eye of law. Be that as it may, the fact remains that in the suit the action of the respondent University allegedly terminating the contracts / works is to be tested and considered by the Civil Court. In the civil suit the Court either may set aside the alleged termination of the contracts or even may confirm it. Be that as it may, keeping the said question open to be considered by the Civil Court whether the alleged termination of the contracts is valid or not, the impugned order / communication blacklisting the petitioner permanently is required to be tested on the touchstone of reasonableness and whether the same can be said to be a reasoned and/or speaking order dealing with the reply / replies to the showcause notice issued upon the petitioner or not, more particularly when the petitioner has been blacklisted permanently.