TaxTMI 
TaxTMI 
2020 (10) TMI 1405
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....ue a Writ and/ or Writs to show cause as to why the impugned order dated 29.04.2020 passed by the Opposite Party No.3 vide Annexure-10 shall not be quashed and if the Opposite Parties fail to show cause to show or show insufficient cause make the said Rule absolute; (ii) to pass any other or further order (s) as deemed just and proper in the facts and circumstances of the case." Similarly, W.P.(C) No. 14114 of 2020 has been filed by a joint venture company-petitioner no.1 represented through its Manager and Authorized Signatory-petitioner no.2 seeking following relief: "(a) Rule Nisi calling upon the Opposite Parties to show cause as to why the impugned order dated 07.05.2020 (Annexure-15) issued to the Petitioners debarring them from participating in future tenders of Mahanadi Coalfields Limited for a period of one year should not be quashed and/or set aside and if the opposite parties fail to show cause or show insufficient cause, make the rule absolute." 2. The factual matrix of W.P.(C) No. 12475 of 2020, in a nutshell, is that petitioner no.1 is a joint venture company. It was formed by M/s. Vikash Fasteners Pvt. Ltd., having its registered office at Dia....
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.... online on e-procurement portal of Coal India Ltd.). 2.2 After executing the above agreement, petitioner no. 1 was discharging its obligation. During the period from May, 2018 to March, 2020, petitioner no. 1 was required to extract 3,37,28,540 MT of coal and transport the same, but there was alleged shortfall of only 11,01,914.12 MT or 3.27% attributable to petitioner no.1. As the same were for reasons beyond the control of petitioner no. 1 and, as such, the same was to be condoned by MCL on payment of penalty on a monthly basis under clause-6.2 of the agreement. The petitioner no.1 received a show cause notice from MCL on 04.04.2020 wherein it is shown that since there was a shortfall of 1,98,46,915.02 MT or 58.86% of coal production, the petitioner no.1 was required to show cause as to why it shall not be banned from participating in future tender of MCL. The said show cause notice was received by petitioner no.1 on 05.04.2020. At the relevant point of time, as the office was not functioning due to restriction on account of COVID-19, petitioner no.1 sought time on 15.04.2020 to file reply to the show cause, which was rejected. Subsequently on 21.04.2020, petitioner no.1 filed....
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....y a letter of acceptance vide Annexure-3 dated 27.12.2017 was issued for a total sum of Rs.307,67,61,122.40/- (including GST) and consequentially work order dated 03.01.2018 was issued. Thereafter, an agreement was executed on 26.04.2018 vide Annexure-6. The petitioner vide letter dated 20.04.2018 requested for providing encumbrance free land for working of engaged fleets and for engagement of new fleets to achieve the target and accordingly deployment of equipments under NIT-118 was there. Thereafter, by letter dated 01.05.2018, petitioner no.1 intimated to opposite party-MCL with regard to scarcity of OB for working of fleets engaged under NIT-118, but the same has not been adhered to. Thereafter, petitioner no.1 on 14.05.2018 intimated the Project Officer, Kaniha OCP with regard to stoppage of work from 15.05.2018 under NIT-118 and also stated that petitioner no.1 was not in a position to operate the existing fleets and unable to achieve the existing capacity of OB and thus it had no option except to stop engagement of the fleet from 1st shift of 15.05.2018. In response to the same, on 16.05.2018 vide Annexure-10 communication was made from opposite party-MCL to petitioner no.1 ....
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....nders of MCL for a period of one year. Hence this writ petition. 4. Although both the writ petitions arise out of two different tender call notices, but their cause of action and principles of law, which are to be considered and decided, being similar, with the consent of learned counsel for the parties, both the writ petitions were heard together and are disposed of by this common judgment. 5. Mr. A.K. Parija, learned Senior Counsel appearing along with Mr. A. Behera, learned counsel for the petitioners in W.P.(C) No. 12475 of 2020 contended that there is no disputed questions of facts involved in this writ petition. Rather the petitioners admit the figures, as enumerated in the impugned order dated 29.04.2020 in Annexure-10, and they do not dispute such position and on the basis of admitted calculation given by the opposite parties, no case is made out against petitioner no. 1 so as to impose ban for a period of 12 months. It is also contended that admittedly the agreement contains the arbitration clause, but that itself cannot dislodge the petitioners to approach this Court invoking its extra-ordinary jurisdiction under Article 226 of the Constitution of India, as the peti....
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.... the quantity of hindrance free work site provided by the opposite parties reduced substantially. Therefore, the issue of reduced deployment of equipment becomes wholly irrelevant. It is further contended that after passing the debarment order on 29.04.2020, vide e-mail dated 08.06.2020, revoked the debarment order but subsequently opposite party no.2 issued a cryptic order on 06.07.2020 to petitioner no.1 debarring it again from participating in the tender of MCL even though petitioner no.1 was protected by interim order passed by this Court on 04.06.2020 after hearing learned counsel for the petitioners and opposite party MCL. It is further contended that debarring petitioner no.1 from participating in the tenders for a period of one year, pursuant to impugned order dated 29.04.2020, has been passed without affording reasonable opportunity of hearing to the petitioners. Merely issuing notice of show-cause to the petitioners cannot justify compliance of the principles of natural justice rather due to non-grant of opportunity of hearing the order impugned suffers from violation of principles of natural justice and thereby can be declared as non-est in the eye of law. It is furth....
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....ol Pharmaceutical India Pvt. Ltd. v. Post Graduate Institute of Medical Education & Research (C.A. No.2903 of 2020 arising out of SLP(C) No.26349 of 2019 decided on 05.08.2020) reported in MANU/SC/0585/2020. 6. Mr. Asok Mohanty, learned Sr. Counsel appearing along with Mr. V. Mohapatra, learned counsel for the petitioners in W.P.(C) No. 14114 of 2020 at the outset adopted the arguments advanced by Mr. A.K. Parija, learned Sr. Counsel appearing for the petitioners in W.P.(C) No. 12475 of 2020 and contended that there are no disputed facts in the present proceeding and the petitioners are relying on the documents, letters, certificates and orders issued and admitted by the MCL to demonstrate the palpable illegality in the order impugned. It is contended that the impugned order dated 07.05.2020 in Annexure-15 suffers from non-application of mind. It is further submitted that MCL has proceeded to debar petitioner no. 1 on a finding that it is solely accountable for the entire shortfall of 76.71% when actually their own documents and records relied on in the impugned order speak starkly to the contrary. It is further contended that in paragraph-2 of the impugned order, MCL has relied....
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....ght cooperation from the opposite party-MCL to provide sufficient hindrance free cutting area, dumping area and separate haul roads in east and west side of the mine. Due to non-cooperation of opposite party- MCL by not providing hindrance free area, the shortfall which has been alleged as 2.67% being meager one, the imposition of ban for one year from participating in any tender is too harsh and disproportionate. It is further contended that by way of counter affidavit, the opposite parties have tried to improve their case by justifying the impugned order and also tried to fill up the lacunae and, as such, the order so passed is without complying the principles of natural justice and thus cannot sustain. It is further contended that banning petitioner no. 1 for one year is hit by Wednesbury's principles of unreasonableness, as it is wholly disproportionate and amounts to double punishment, though penalty for shortfall in performance has been levied by the opposite parties. It is further contended that the order impugned is de hors the agreement and thereby cannot sustain. It is contended that the writ petition is maintainable even though alternative remedy, by way of arbitrati....
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....rit petitions being not satisfactory, the orders impugned were passed. Thereby, no illegality or irregularity has been committed by the authority in passing such orders. It is further contended that petitioner no.1 in both the writ petitions are liable to pay penalty in terms of clause-6.2 of the General Terms and Conditions of the NIT, but the same is without prejudice to any other right and remedy available under law to MCL on account of such breach. It is further contended that due to shortfall in performance by petitioner no.1 in W.P.(C) No.12475 of 2020 from hindrance free area though the quantity appears to be a meager 7.36%, however, the loss to MCL on account of such shortfall is Rs. 66,00,02,481.32 and loss of royalty to the Government is Rs.12,99,92,367.97, whereas the total penalty which has been recovered under clause-6.2 is merely Rs.94,17,381.80. Similarly, the shortfall in performance by petitioner no.1 in W.P.(C) No.14114 of 2020 from hindrance free area though the quantity appears to be a meager 10.31%, however, the loss to MCL on account of such shortfall is Rs. 39.07 crores and loss of royalty to the Government is Rs.7.55 crores, whereas the total penalty whic....
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.... Pay Loader Power HP 112 2800 Tipper Carrying capacity Kg. 14000 21,00,000 Dozer Power HP 410 2050 Grader Power HP 280 1120 Water Tanker Carrying capacity Litre 8000 160000" "6. TIME FOR COMPLETION OF CONTRACT - EXTENSION THEREOF, DEFAULTS & COMPENSATION FOR DELAY: xx xx xx 6.2 In the event of the contractor's failure to comply with the required progress in terms of the agreed time and progress chart or to complete the work and clear the site on or before the date of completion of contract or extended date of completion, he shall without prejudice to any other right or remedy available under the law to the company on account of such breach, shall become liable to pay for penalty as under: (a) If the average daily progress of work during the calendar months is less than the stipulated rate indicated in the detailed tender notice, penalty as detailed below will be levied. (i) If the average daily progress of work executed during the calendar month is more than 80% and less than 100 % of stipulated rate of progress, penalty equal to 10% of the contract value of the ....
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....medy available to the employer as per law or as per agreement, will be recovered from any money due to the contractor on any account or under any other contract and in the event of any shortfall, the contractor shall be liable to pay the same within 30 days. In case of failure to pay the same the amount shall be debt payable In the event of above course being adopted by the Engineer-in-charge, the contractor shall have no claim to compensation for any loss sustained by him by reasons of his having purchased materials, equipments or entered into agreement or made advances on any account or with a view to the execution of work or performance of the contract. And in case action is taken under any provision aforesaid, the contractor shall not be entitled to recover or to be paid any sum for any work thereof or actually performed under this contract unless and until the engineer-in-charge has certified in writing the performance of such work and value payable in respect thereof and he shall only be entitled to be paid the value so certified. The need for determination of the amount of recovery of any extra cost/ expenditure or of any loss/ damage suffered by the compan....
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....he case if the entire work is completed within the date as specified in the contract or within extended period approved without imposing penalty." SPECIAL TERMS & CONDITIONS FOR TRANSPORT CONTRACT. UNDERTAKING OF LETTER HEAD OF BIDDER UNDERTAKING I/ We,......................... Partner/ Legal Attorney, Authorized Representative of Sri/ Smt. M/ s. .........................(Name of bidder), solemnly declare that : 1. I/we am/are submitting Bid for the work ................................................. Against NIT No/Tender ID........................ Dated .................... and I/We offer to execute the work in accordance with all the terms, conditions and provisions of the bid. 2. I/We will deploy the matching Equipments/ Tippers/ Pay-Loaders as detailed in the NIT either Owned or Hired, if the work is awarded to me/us. 3. Myself / Our Partners/ directors don't has/ have any relative as employee of Mahanadi Fields Limited. 4. All information furnished by me/us on-line in respect of fulfillment of eligibility criteria and qualification information on this Bid is complete, correct and true. 5. All cop....
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....cal transfer of the same in Tipping Trucks and transportation of the same from SM Face to different destinations inclusive of effective water spraying for dust suppression, dozing of Faces/ Sidings/Stocks etc. and grading/maintenance of roads etc. of Kaniha OCP, Kaniha Area. [NIT-763(RT) Dated 18.01.2018] vide Letter of Acceptance under reference No. MCL/ SBP/GM(CMC)/ MT- 763(RT)/2018/1215 Dated 31.03.2018 of General Manager(CMC), MCL and Work Order No. MCL/GM(KA)/ Mining/MT-763(RT)/2018/18 Dated 10.04.2018 of Kaniha Area. 2. Whereas you have executed only 13.87 MT of Coal at Kaniha OCP, Kaniha Area against a target of 33.72 MT for the period from May-2018 to March-2020, i.e. only 41.14%. Month-wise performance of our Com an under NIT-763 R Dated 18.01.2018 from May-2018 to March-2020 is as under :- Sl No Month Agreed Qty (Tonnes) Achieved Qty (Tonnes) Total Shortfall (Tonnes) Shortfall due to contractor's fault (Tonnes) Penalty amount deducted/withheld (in Rs) 1. May-18 1518340 220181.64 1298158.36 0 0.00 2. Jun-18 1441800 468066.49 973733.51 3800 23070.00 3. Jul-18 1489860 571877.16 917982.....
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....L 1 May-18 5 1 2800 800 2100 466 2050 840 1120 280 160 60 2 Jun-18 5 3 2800 1200 2100 1418 2050 1680 1120 280 160 60 3 Jul-18 5 3 2800 1200 2100 1418 2050 1680 1120 280 160 60 4 Aug-18 5 3 2800 1200 2100 1418 2050 1680 1120 280 160 60 5 Sep-18 5 3 2800 1200 2100 1418 2050 1680 1120 280 160 60 6 Oct-18 5 3 2800 1600 2100 1418 2050 1680 1120 280 160 60 7 Nov-18 5 3 2800 1600 2100 1418 2050 1680 1120 280 160 60 8 Dec-18 5 3 2800 1600 2100 1195 2050 1680 1120 280 160 60 9 Jan-19 5 3 2800 1600 2100 1114 2050 1680 1120 280 160 60 10 Feb-19 5 3 2800 2000 2100 1317 2050 1260 1120 280 160 60 11 Mar-19 5 3 2800 2000 2100 1398 2050 1680 1120 280 160 60 12 Apr-19 5 3 2800 2000 2100 1398 2050 1680 1120 280....
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....uring 2019-20 is around 66 crores and also loss of royalty to Govt. exchequer comes to around Rs. 13 Crore. Despite the repeated remainders, you failed to deploy required machines which have resulted in poor performance. You have performed only 41.1,4% of assigned target as per MT / agreement at Kaniha OCP. There was no initiative on your part to meet the shortfall of targeted production. Therefore, in the interest of MCL, there is no option but to ban you and Partners of your Joint Venture from participation in future tenders of MCL, for a period of 1 year. In view of the above, M/s. VFPL ASIPL JV Company and its constituent Partners of Joint Venture are banned for a period of one year from participating in future tenders of MCL. Ban will come into force from the date of issue of this letter." Similarly, the order dated 17.05.2020 in Annexure-15, which has been impugned in W.P.(C) No. 14114 of 2020, reads as follows :- "To 1) M/ s. JRT NKBPL JV, CMD Chowk, Link Road, Bilaspur (C.G.), e-Mail Id : jrtnkbpljv @ gmail.com 2) M/ s. Jalaram Transport, CMD Chowk, Link Road, Bilaspur (C.G.) 3. M/ s. N.K. Bhojani Put. Ltd. ....
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....18 1050000 206792.08 843207.92 0 0 7. Jul-18 992000 177199.42 814800.58 0 0 8 Aug-18 992000 147639.97 844360.03 0 0 9. Sep-18 1140000 183480.73 956519.27 2300 15514 10. Oct-18 1209000 280206.68 928793.32 39393 265706 11. Nov-18 1240000 301769.19 938230.81 27173 183282 12. Dec-18 1240000 389324.14 850675.86 66620 449352 13. Jan-19 1240000 348792.88 891207.12 14550 98140 14. Feb-19 1176000 237412.10 938587.90 0 0 15. Mar-19 1395000 411163.24 983836.76 0 0 16. Apr-19 1260000 248279.27 1011720.73 0 0 17. May-19 1302000 375339.49 926660.51 0 0 18. Jun-19 1200000 274287.75 925712.25 0 0 19. Jul-19 1085000 169154.21 915845.79 0 0 20. Aug-19 1085000 0.00 1085000.00 0 0 21. Sep-19 1140000 145089.64 994910.36 0 0 22. Oct-19 1178000 204408.50 973591.50 0 0 23. Nov-19 1200000 404081.47 795918.53 0 0 24. Dec-19 1240000 ....
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.... per terms and conditions of Agreement and also given several letters to improve the performance and to deploy sufficient equipment as per NIT, you did not deploy sufficient equipment as per NIT resulting in poor performance of OB Removal, leading to less exposure of coal at Kaniha OCP, Kaniha Area and huge loss to MCL. 5. Whereas a 21 days Show Cause Notice for Banning of Business of your Company and all Partners of your Joint Venture Company for a period of 3 years was issued by General Manager, Kaniha Area a vide letter under reference No.MCL/GM(KA)/Min/NIT-118/ 2020952 dated 20.02.2020. Your reply to the Show Cause Notice vide letter under reference No. JN(JV)/K.OCP/NIT-118/2019-20/291 dated 03.03.2020 has been found to be unsatisfactory by the Competent Authority. 6. Whereas MCL has incurred a huge irreparable loss due to poor performance by you. Your consistent poor performance shows that you are likely to severely impair production capacity of our company if allowed to do business with MCL in future. The estimated loss during 2019-20 is around Rs.39 crores and also loss of royalty to Govt. exchequer comes to around Rs.7 crores. Despite the repeated reminder....
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....tion of disputed questions of facts does not arise. 14. In Raja Anand v. State of Uttar Pradesh, AIR 1967 SC 1081, relying upon the judgment in White and Collins v. Minister of Health (1939) 2 KB 838, the apex Court held that where the jurisdiction of an administrative authority depends upon a preliminary findings of facts, the High Court is entitled in a writ proceeding to determine upon its independent judgment whether or not the finding of facts is correct. 15. In State of Madhya Pradesh v. D.K. Jadav, AIR 1968 SC 1186, the apex Court held that when the jurisdiction of an administrative authority depends on preliminary findings of fact, the High Court can go into the correctness of the same under Article 226. 16. In Muljibhai Patel v. Nandlal Khodidas Barot, AIR 1974 SC 2105, the apex Court held that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 of the Constitution merely in considering the petitioner's right to relief, question of facts at fault to be determined. The High Court has jurisdiction to try issues both to facts and law when the petitioner raised complex question of facts which may for their determination req....
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....ative remedy of relief which may be obtained in a suit or other mode prescribed by the statute. Ordinarily, the court will not entertain a petition for a writ under Article 226 where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by a statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the matter provided by a statute, the High Court normally will not permit by entertaining under Article 226 of the Constitution the machinery created by the statute to be bypassed and leave the party applying to it to seek resort to that machinery so set up." 20. In Collector of Monghyr v. Keshav Prasad, AIR 1962 SC 1694, the apex Court held that despite the existence of an alternative remedy, it is within the jurisdiction and discretion of the High Court to grant relief under Article 226 o....
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....ng a petition for writ. 27. In Zonal Manager, Central Bank of India mentioned supra, the apex Court held that mandamus can be issued in contractual matters and in paragraph- 28 of the said judgment, the apex Court held as under :- "28. It is clear that (a) in the contract if there is a clause for arbitration, normally, a writ court should not invoke its jurisdiction; (b) the existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under Article 226; and (c) if the instrumentality of the State acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of Article 14 of the Constitution of India in its contractual or statutory obligation, writ petition would be maintainable. However, a legal right must exist and corresponding legal duty on the part of the State and if any action on the part of the State is wholly unfair or arbitrary, writ courts can exercise their power. In the light of the legal position, writ petition is maintainable even in contractual matters, in the circumstances mentioned in the earli....
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....hausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. 34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits." 31. On the basis of the factual matrix of the case available on record, if the petitioners are not disputing the documents and figures mentioned therein and rather they rely on the same, in the event of relegating them to resort to the arbitration clause mentioned in the agreement that will be prejudicial to thei....
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....here was non- compliance of principles of natural justice while passing the orders impugned, which was disputed by learned Senior Counsel appearing for opposite party-MCL. But on perusal of the records, it appears that a notice of show cause was issued on 04.04.2020 in Annexure-6 banning the petitioners in W.P.(C) No. 12475 of 2020 and due to COVID-19 pandemic, petitioner no.1, vide letter dated 15.04.2020 sought time to file show cause notice, but subsequently on 21.04.2020 it filed reply to notice of show cause. On 29.04.2020, without affording any opportunity of hearing, the order impugned has been passed banning petitioner no.1 from carrying on business for a period of one year. Similarly, in W.P.(C) No. 14114 of 2020, show cause notice was issued on 20.02.2020 under Annexure- 13 and petitioner no.1 submitted reply on 03.03.2020 under Annexure-14 and order impugned has been passed without affording any opportunity of hearing on 07.05.2020 vide Annexure-15 banning petitioner no.1 for one year. As such, nothing has been placed on record, except by filing counter affidavit by the opposite parties indicating that after reply was filed they have given opportunity of hearing to petit....
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.... moral principles of self evident and unarguable truth". "Natural justice" by Paul Jackson, 2nd Ed., page-1. In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjuction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice." 38. In Basudeo Tiwary v Sido Kanhu University and others (1998) 8 SCC 194, the apex Court held that natural justice is an antithesis of arbitrariness. It, therefore, follows that audi alteram partem, which is facet of natural justice is a requirement of Art. 14. 39. In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh, (2008) 16 SCC 276, the apex Court held as follows: "The rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Thus, whenever a man's rights are affected by decisions taken under statutory powers, th....
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....f Norfolk [(1949) 1 All ER 109 (CA)] way back in 1949, these principles cannot be put in a straitjacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405] .) The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. *** 33. (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the court/ tribunal/ authority must always bear in mind the ultimate and overriding objective underlying the said rule viz. to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them." 19. Ensuring that there is no failure of justice is as important as ensuring that there is a fair hearing before an adverse order is made. This Court in Roshan Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC (L&S) 97] held: (SCC p. 106, para 12) "12. ... Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constit....
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....nst opposite parties no.2 to 4-MCL. 45. Issue No.(iii): Whether the impugned action banning petitioner no.1 in both the writ petitions for a period of one year from participating in future tenders of MCL is in conformity with the provisions of law or not? Before delving into this issue, a reference to the chart contained in paragraph-2 of the impugned order dated 29.04.2020 in W.P.(C) No.12475 of 2020 is to be made which reads as under :- Sl No Month Agreed Qty Achieved Qty Total Shortfall Shortfall due to contractor' s fault (Tonnes) Penalty amount deducted/with held (in Rs) 1. May-18 1518340 220181.64 1298158.36 0 0.00 2. Jun-18 1441800 468066.49 973733.51 3800 23070.00 3. Jul-18 1489860 571877.16 917982.84 4067 27450.00 4. Aug-18 1489860 389727.24 1100132.76 0 0.00 5. Sept-18 1441800 554596.23 997203.77 0 0.00 6. Oct-18 1489860 655147.72 834712.28 8775 65330.00 7. Nov-18 1441800 694042.97 747757.03 1200 9605.00 8. Dec-18 1489860 612881.48 876978.52 25302.5 188377.00 9. Jan-19 ....
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.... vide impugned order dated 29.04.2020, which is solely based upon the finding that it " ..... performed only 41.14% of assigned quantity as per NIT/agreement at Kaniha OCP ...... " As such, the said order has been passed on the premise that the entire shortfall of 1,98,46,915 tonnes or 58.56% was attributable to petitioner no.1. More so, the figures stated in the impugned order clearly show that the shortfall on the part of petitioner no.1 is only 3.27%. Thereby, the allegation of performance of only 41.14% of the agreed quantity is an outcome of non- application of mind and, as such, hit by Articles 14 and 19(1)(g) of the Constitution of India. In the additional affidavit filed by opposite parties no.2 to 4, the shortfall against hindrance free quantity has been mentioned as follows :- "Month Monthly Target as per Mutually agreed Time &progress chart (tes) Hindrance free quantity Achievement (Tes) Shortfall quantity (Tes) against the HINDRACE FREE Quantity (due to fault of Contractor Apr-18 28480 0 0 May-18 1489860 220181.64 220181.64 Jun-18 1441800 471866.49 468066.49 3800 Jul-18 1489860 515944.16 ....
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...., when penalty for shortfall in performance has already been levied by the opposite parties, imposition of further punishment of debarment amounts to double jeopardy. 49. In Union of India v. P.D. Yadav, (2002) 1 SCC 405, the apex Court held that the 'doctrine of double jeopardy' is a protection against prosecution twice for the same offence. 50. Clause-9.2 of the agreement between the parties provides that "the contractor whose contract is terminated shall not be allowed to participate in future bidding for period of minimum twelve months." Therefore, debarring petitioner no. 1 from participating in the future tenders of MCL for a period of one year squarely falls under the stipulation of clause-9.2. It is undisputed that petitioner no.1 is still working at the Kaniha OCP and, as such, the agreement between the parties has not been terminated. Therefore, the pre-condition for banning petitioner no.1 having not been satisfied, the order impugned is de hors the agreement between the parties. The order of banning, being arbitrary and unjust, can be subjected to judicial review before the writ Court exercising powers under Article 226 of Constitution of India. 51. In ....
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.... has been placed on record, especially in the counter affidavit filed on behalf of the opposite party-MCL. However, in the additional counter affidavit filed by the opposite party- MCL, a new case has been made out contrary to impugned order and the earlier counter affidavit filed by them and, as such, tried to justify the action taken by the authority concerned in passing the order impugned. The reasons so assigned subsequently in the additional counter affidavit justifying the impugned order cannot be taken into consideration, in view of the law laid down by the apex Court in Mohindor Singh Gill mentioned supra, which has been referred to in Shree Ganesh Construction v. State of Orissa, 2016 (II) OLR 237, in paragraphs 7 and 8 this Court held as follows :- "7. In the counter affidavit filed, the reasons have been assigned, which are not available in the impugned order of cancellation filed before this Court in Annexure-4 dated 5.2.2016. More so, while cancelling the tender, the principles of natural justice have not been complied with. It is well settled principle of law laid down by the Apex Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, Ne....
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....ed by the opposite party-MCL reduced substantially, the issue of reduced deployment of equipment becomes irrelevant. 54. While entertaining this writ petition, this Court passed interim order on 04.06.2020 to the following effect :- "We have heard Mr. Ashok Parija, learned Senior Counsel appearing along with Mr. S.P. Sarangi, learned counsel for the petitioners and Mr. Debraj Mohanty, learned counsel for the respondents on the prayer for interim relief. Mr. Ashok Parija, learned Senior Counsel submitted that even from the impugned order Anenxure-10 dated 29.04.2010, by which the petitioner-company has been banned from participating in future tenders of the respondents for one year, it would appear that out of total shortfall of 19846915.02 MT, which i approximately 58% of the total agreed quantity, the shortfall due to contractor's fault has been found to be only 1101914.12 MT, which constitutes mere 3.27% of the total shortfall. The conclusion recorded by the opposite party in the impugned order that the petitioner-company has been consistently rendering poor performance from the beginning of the contract, is also not substantiated from their own order, wh....
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....y is attributed to the petitioner- company, and the maximum quantity of shortfall is attributable to the petitioner-company, how can it be held consistently performing poor in respect of the period from May-2018 till March-2020, even going by month-wise datas, the learned counsel for the opposite parties could not give any satisfactory answer. Taking into consideration the rival submissions and the materials on record, we are inclined to hold that in view of what has been mentioned in the impugned order itself, the petitioner has been able to make out a prima facie case for grant of appropriate interim relief. In order however to balance equities in the facts of the case, we direct that the impugned order shall remain stayed to the limited extent qua only three tenders which are going to be floated on 10th, 11th and 16th June, 2020, to allow the petitioner-company to participate therein with a further direction that the opposite parties shall be free to open the bid and if any other bidder is found to be L-1 in respect of all or any of the three bids, the opposite parties may award contract to it/them. In case however the petitioner is not found to be L-1 in any one of the....
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....on capacity, since MCL is responsible for more than 94% of the total shortfall (or 55.6% of the total targeted quantity). Banning of petitioner no.1 as a consequence of shortfall of only 3.27% in performance, as is evident from the impugned order, can be construed to be unreasonable and wholly disproportionate to the findings. Even if the contention raised in the additional affidavit dated 03.07.2020 would be taken into consideration, the shortfall in performance was only 4.36% and, as such, on that score also banning of petitioner no.1 can be construed to be unreasonable. Even though the right of petitioner no. 1 is in the nature of a contractual right, the manner in which the impugned decision has been taken by the MCL, which is a State within the meaning of Article 12 of the Constitution, is subject to judicial review on the touchstone of fairness, relevance, natural justice, non-discrimination, equality and proportionality. 56. In Kulja Industries Limited (supra), the apex Court held in paragraphs 17, 18, 19 and 20 as follows :- "17. That apart, the power to blacklist a contractor whether the contract be for supply of material or equipment or for the execution of an....
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....2012) 11 SCC 257 : (2013) 1 SCC (Civ) 445] ; B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [(2006) 11 SCC 548] ; Joseph Vilangandan v. Executive Engineer (PWD) [(1978) 3 SCC 36] among others have followed the ratio of that decision and applied the principle of audi alteram partem to the process that may eventually culminate in the blacklisting of a contractor. 19. Even the second facet of the scrutiny which the blacklisting order must suffer is no longer res integra. The decisions of this Court in Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457 : (1977) 3 SCR 249] ; E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165] ; Maneka Gandhi v. Union of India [(1978) 1 SCC 248] ; Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258] ; Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489] and Dwarkadas Marfatia and Sons v. Port of Bombay [(1989) 3 SCC 293] have ruled against arbitrariness and discrimination in every matter that is subject to judicial review before a writ court exercising powers under Article 226 or Article 32 of the Constitution. 20. It is also well settled that even thoug....
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....g with citizens in a situation like the present one. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination in the type of the transactions and nature of the dealing as in the present case." 57. In Sanjay Kumar Sukla (Supra), on which reliance was placed by the opposite party-MCL, the apex Court held that in a contractual matter, while exercising the power under judicial review, the Court should be vigilant against agitation of private disputes under writ jurisdiction when there is no improper exercise of power on the part of public authority concerned and as such, caution to be exercised while exercising extraordinary jurisdiction in contractual matters since serious consequences entail as result of entertainment of writ petition. This principle, as set out by the apex Court, is in dispute. But on the basis of the facts and circumstances of the instant case, the judgment in question cited by opposite parties no. 2 to 4 may....