Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.276 of 2013 ====================================================== 1. M/S Dayanand Prasad Sinha & Co., A Partnership Firm Having Its Place Of Business At Janta Path, Kankarbagh, P.S.- Kankarbagh, District- Patna Through One Of Its Partner Dayananad Prasad Sinha, S/O Shri Harbanshi Lal, R/O Janta Path, P.S.- Kankarbagh, District- Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through The Secretary Road Construction Department, Government Of Bfihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 2. The Engineer-In-Chief, Road Construction Department Government Of Bihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 3. The Chief Engineer South Wing (Communication), Road Construction Department, Government Of Bihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 4. The Chief Engineer, North Wing (Communication) Road Construction Department, Government Of Bihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 5. The Chief Engineer, North Wing (Communication) Road Construction Department, Government Of Bihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 6. The Superintending Engineer Road Construction Department, Saran Circle At Hajipur 7. The Superintending Engineer Road Construction Department, Central Circle, Patna 8. The Executive Engineer Road Construction Department, Vaishali Road Division, Hajipur, Vaishali 9. The Executive Engineer, Road Construction Department, Biharsharif .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.4888 of 2013 ====================================================== 1. M/S Dayanand Prasad Sinha And Co., A Partnership Firm Having Its Place Of Business At Janta Path, Kankarbagh, P.S.: Kankarbagh, District- Patna Through One Of Its Partners, Dayanand Prasad Sinha, S/O Shri Harbanshi Lal, Resident Of Janta Path, P.S.: Kankarbagh, District- Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through The Secretary, Road Construction Department, Government Of Bihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 2. The Engineer In-Chief, Road Construction Department, Government Of Bihar, Vishveshwaraiya Bhawan, Bailey Road, Patna 3. The Executive Engineer, Road Construction Department, Guljarbagh .... .... Respondent/s Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 2 ====================================================== Appearance : (In CWJC No.276 of 2013) For the Petitioner/s : Mr. Gautam Kumar Kejriwal For the State : Mr. P.K. Verma, AAG-5 For respondent No.10 : Mr. Y.V. Giri, Senior Advcoate Mr. Ashish Giri (In CWJC No.4888 of 2013) For the Petitioner/s : Mr. Gautam Kumar Kejriwal For the Respondent/s : Mr. Ajay Bihari Sinha, S.C.19 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 12 12-03-2013 Heard learned counsel for the petitioner in both the cases and learned Additional Advocate General No.5 and learned Standing Counsel No.19 for the State. Both the writ applications have been filed by the same petitioner and raise certain common issues and they have, accordingly, been heard together and are being disposed of by this common order. The first writ petition being C.W.J.C. No.276 of 2013 was filed by the petitioner praying for direction upon the respondents to issue an award letter and consequential work orders with respect to four works in which after qualifying in the technical bid he was also the lowest tenderer for the financial bids. The second writ petition has been filed against the order of blacklisting dated 19.2.2013 passed by the Engineer-in-Chief- cum-Additional Commissioner cum Special Secretary, Road Construction Department, Government of Bihar, by which the
Legal Reasoning
Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 3 petitioner has been blacklisted in terms of the Bihar Contractors Registration Rules, 2007. So far as the blacklisting order is concerned, the admitted position is that the petitioner has remedy under the Bihar Contractors Registration Rules, 2007 for filing an appeal before the Principal Secretary, Road Construction Department, Government of Bihar. However, since the first writ petition is inter connected with the issue of blacklisting and the Bihar Contractors Registration Rules, 2007 are not statutory in nature but mere executive instructions, learned counsel for the petitioner has pressed the writ application challenging the blacklisting order. The short facts of the case relevant to the decision of the present matter are that the petitioner applied against as many as five tender notices after publication in the year 2012, in which he had become the lowest tenderer after qualifying in the technical bid. However, despite the opening of the financial bids in which the petitioner was found the lowest tenderer when the award letter and the consequential work order were not issued in his favour, the petitioner approached the authorities and thereafter not finding any response from them he has filed C.W.J.C. No.276 of 2013. The stand of the respondents in the first writ petition is that the petitioner in relation to tender of National Highway Division, Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 4 Gulzarbagh NH-103, KM 1.9 to IRQP work and NH-103 37 to 44 IRQP work had submitted experience certificates issued from the office of the National Building Construction Corporation, Kishanganj which on verification were found to be false and fabricated documents. With respect to the same, the show cause notice dated 6.12.2012 was issued to the petitioner as to why he should not be blacklisted for furnishing forged and false certificates. The petitioner did not file any reply to the show cause but sought certain documents from the respondents by his letter dated 20.12.2012 stating that after being allotted the construction work in relation to the work from Kathamatha to Tappu Road (Part-C) under PMGSY works in the District of Kishanganj PKG No. 18/08 by NBCC Ltd., the petitioner had completed the above work in all respects in April, 2009 itself. In the said letter, the petitioner also protested against the direction for action under criminal law against the company before the expiry of the period of 15 days in the notice dated 6.12.2012 and further sought for two documents, namely, the letter of the Executive Engineer, RCD, N.H. Division, Gulzarbagh bearing letter No.1646 dated
Legal Reasoning
17.10.2012 and the correspondence and certification of Sri R.N. Paul, PIU, PMGSY, Kishanganj regarding the denial of the issue stating that without the same it would not be possible to file proper Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 5 reply. Subsequently, he also filed a reminder on 26.12.2012. Thereafter by order dated 19.2.2013 after taking note of the petitioner’s letter in which he had sought for documents which according to the respondent Engineer-in-Chief, Road Construction Department being no reply and silence on the issue of the letter dated 23.12.2009 being forged or not, came to the conclusion that the same amounts to admission by the petitioner and he is unable to show that the said documents are not forged. For the said reason for producing forged certificates for obtaining the tender, the petitioner was directed to be blacklisted in terms of clause 11 (ka) and (vii) of the Bihar Contractors Rules, 2007. Aggrieved by the same, the petitioner has filed C.W.J.C. No.4888 of 2013. Learned counsel for the petitioner submits that the respondents by not providing the documents sought for by him have violated the principles of natural justice, as the petitioner could not file his effective show cause in the absence of the said documents and thus the order of blacklisting should be set aside. It is also the contention of the petitioner that the petitioner being required to submit the experience certificate for the tender in question had asked one of its associates to obtain certificate on the basis of the work executed by the petitioner and the said Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 6 certificate had been issued on 23.12.2009 after completion of the work from NBCC Limited in the year 2009 itself. It is also the stand of the petitioner that he had no reason to doubt the genuineness of the certificate as he has completed the work in the year 2009 itself and thereafter the same was issued to him. The further stand of learned counsel for the petitioner is that the respondents having filed the criminal case against the petitioner in which the investigation is still pending, they ought not to have passed any order for blacklisting which is based upon the same facts. Learned A.A.G.-5 appearing for the State, on the other hand, submits that the petitioner had submitted two certificates both dated 23.12.2009 purportedly issued by Mr. R.N. Paul, Deputy General Manager, NBCC Ltd., Kishanganj. It is pointed out that both the certificates related to the completion of the same work and in one of the certificates it was clearly mentioned that the work included execution of HL Bridge on Pile foundation under PMGSY work in the District of Kishaganj PKG No.BR-18/08 during the year 2009-10. Learned AAG-5 further submits that in the tender issued in the present matter on 9.9.2012 in the daily Hindi newspaper, namely, ‘Hindustan’ there was specific reference to construction of HL RCC Bridge in both the items of Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 7 work and it was also provided in clause 16 of the NIT that for both works, experience of execution of HL RCC Bridge on Pile foundation is essential. It is submitted by learned AAG-5 that since the work done by the petitioner under NBCC Ltd. from Kathamatha to Tappu road (Part-C) did not include the execution of HL Bridge On Pile foundation under PMGSY work in the District of Kishanganj, the petitioner had evidently forged the said letter dated 23.12.2009 purportedly issued by Mr. R.N. Paul which on verification was found to be forged. In this regard, reference has been made by him to the BOQ of the said construction of Kathamatha Tappu Road (Part- C ) in which it is pointed out that there was nothing to show that any construction of High Level Bridge on Pile foundation was part of the said work. It is, thus, submitted by learned A.A.G.-5 that the petitioner’s working experience certificates of execution of HL Bridge were evidently forged. The said fact of the certificate not having been issued by Mr. R.N. Paul was duly verified by the National Building Construction Corporation for which letters were sent both at the level of the Chief Engineer, National Highway and the Executive Engineer, National Highway Division, Gulzarbagh. Learned counsel also submits that specific statement has been made in the supplementary counter affidavit in this regard Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 8 that the work executed by the petitioner with NBCC did not include any work of HL Bridge on pile foundation including the complete agreement and BOQ of the same but no specific reply denying the same has been filed by the petitioner and only an evasive reply has been given without referring to the said paragraph that the condition of construction of HL Bridge was included as an additional requirement of experience and was locally added by the respondents which was specifically realized and as such when the retender was made, which was opened on 27.12.2012, the respondents had deleted this clause of experience. It is urged that the said evasive reply does not at all answer the issue of the petitioner that any such work had been allotted or done by him under HL Bridge on Pile foundation evidence as stated in the certificate. Learned counsel also points out that the said condition was, as a matter of fact, not really omitted in the subsequent tender but the specific mention of the same was not given in the subsequent tender after high level discussion of the matter that S.B.D. clause 4.5 A (b) itself provides that bidder must have satisfactorily completed at least one similar work of value not less than an amount indicated in the Appendix (usually not less than 25% of estimated value of contract) and thus it was found that mention of Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 9 the said condition separately in the contract was not required and would be included in terms of said clause of the SBD itself. Hence, the same does not support the case of the petitioner. Apart from the same, the petitioner has not answered the specific issue regarding submission of forged certificate as having done the said work in the previous contract. Learned Standing Counsel No.19 also adopts the submissions made by learned A.A.G.-5. Learned counsel for private respondent No.10 in C.W.J.C. No.276 of 2013 apart from adopting the submission of learned counsel for the State has further made reference to two decisions of the Supreme Court in the case of Tejas Constructions and Infrastructure Private Limited vs. Municipal Council Sendhwa and others : (2012) 6 SCC 464 and Jagdish Mandal vs. State of Orissa and others: (2007) 14 SCC 517. The said decisions relate to general issues and are not on the specific issues which arise in the present matter. In his reply, the petitioner has sought to harp upon the facts that there was no reference to the other certificate dated 23.12.2009 but only to the work completion certificate in the show cause notice dated 6.12.2012 and thus the petitioner had no opportunity to reply to the same. Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 10 I have considered the submissions of learned counsels for the parties. The question is as to whether the respondents were justified in blacklisting the petitioner in the facts and circumstances of the case. It is evident that before blacklisting the respondents issued a show cause notice to the petitioner clearly referring to the fact that he had filed false certificates from NBCC Ltd. which on verification of the same by the Executive Engineer, National Highway Division, Gulzarbagh from the NBCC it was stated by the Deputy General Manager by his letter dated 19.10.2012 that the same have not been issued by Mr. R.N. Paul, Project Manager. Thus, the charge was clearly stated before the petitioner. In this regard, the statement by the petitioner that there was no reference to the other certificate cannot have much relevance as admittedly, the petitioner has filed both the certificates dated 23.9.2009 issued by Mr. R.N. Paul related to the same work. Thus, it cannot be said that the petitioner was unaware about the status of the other certificate also. However, the issue is that even if for the sake of argument, it is assumed that the show cause was only with respect to one of the certificates as being forged, the matter stands in the same position. The petitioner had to show that it was not forged and fabricated certificate. The petitioner instead of filing his reply had sought to divert the issue Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 11 by asking for letters by which the Executive Engineer had asked for verification from the NBCC and the correspondence and certification of Mr. R.N. Paul. The said documents cannot be said to be absolutely essential for the petitioner to file a proper reply to the show cause notice as to how the verification was made of the certificate being forged. The said letter of the Executive Engineer dated 17.10.2012 cannot be of any concern to the petitioner. In fact, the said letter has been brought on the record and it is innocuous asking the NBCC to verify both the certificates submitted by the petitioner and issued by Mr. R.N. Paul. Thus, the correspondence regarding certificates of Mr. R.N. Paul could not have been a reason for non-filing of reply to the show cause by the petitioner. All that the petitioner was required to state as to how the said certificates filed by him were not forged. The said matter was specially within his knowledge and if at all required he could have made effort to find out as to whether the certificates purportedly issued from NBCC Ltd., Kishanganj were, in fact, forged or not and it was a matter of internal enquiry. The onus for the same could not have been put by the petitioner upon the respondents. It is, thus, evident that at all stages the petitioner was merely trying to side track the issue by not answering the point. Even in a large number of pleadings filed by the petitioner in both Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 12
Decision
the writ petitions there is no attempt to meet the point straightaway so as to show that the certificates in question are not forged, rather the only statement made is that they were received from an associate of the petitioner from Kishanganj and since the work in question had been completed, hence, there was no reason to doubt the genuineness of the certificates. Even the question as to how the certificates could have been issued of having done HL bridge work which was not part of the said work and the specific stand of the respondents that there was no such work on the basis of BOQ of the Agreement brought on the record, has not been answered nor sought to be answered by the petitioner rather he has tried to divert the said issue by referring to subsequent tender and removal of conditionality therein. It is, thus, evident that the stand regarding the violation of the principles of natural justice has only been taken as a technical and strategic plea to avoid the liability and penalty that has been imposed upon the petitioner. It is also evident that the petitioner has not stated anything regarding the two certificates not being forged or even one of them as alleged by him being forged as forming part of the show cause. So far as the submission of learned counsel for the petitioner regarding the criminal investigation being pending with respect to Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 13 the same matter and therefore no order of blacklisting ought to have been passed is concerned, this Court does not find any force in the said submission. The criminal liability is for the offence committed under the penal statute, whereas the liability for blacklisting for presenting the forged and fabricated documents is in exercise of executive power which can be separately exercised after following the due procedure of issuing show cause notice. The imposition of a blacklisting penalty after giving due opportunity to the petitioner cannot depend upon the completion of the investigation in the criminal case and it cannot be argued by the petitioner that the said proceedings which are civil in nature must remain in abeyance until the criminal case is disposed of. The blacklisting under the terms and conditions of the executive instructions known as the Bihar Contractors Registration Rules, 2007 is in fact an exercise of executive power flowing from Article 298 of the Constitution and the same cannot depend upon the conclusion or result of a criminal case. Thus, in the aforesaid view of the matter, this Court is not inclined to interfere with the blacklisting order. However, learned counsel for the petitioner submits that the blacklisting order itself cannot penalise a person for an indefinite period of time. There appears to be some force in the submission of learned counsel for Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 14 the petitioner in that regard as by blacklisting a person suffers from serious civil consequences and normally it cannot be permitted to be awarded for an indefinite period of time. The respondent Engineer-in-Chief when passing the blacklisting order ought to have fixed the time limit for what period it will operate or at least given reasons for not doing so. In the present matter, no such explanation for not fixing the period of blacklisting is found. In my view in the given facts and circumstances of the case, the blacklisting order cannot be allowed to operate for an indefinite period. The matter would, therefore, have to go back to the Engineer-in-Chief for the limited purpose of fixing the period for which the blacklisting order will remain in operation. So far as non-award of the work to the petitioner with respect to the five tenders is concerned, in view of the fact that the same was not done because of discovery of the forged certificates having been submitted by the petitioner and which ultimately led to the blacklisting of the petitioner, the petitioner cannot claim to be awarded any contract against the said tenders even though he was the lowest tenderer for the same. For the aforesaid reasons, both the writ applications are dismissed. However, so far as the blacklisting order dated 19.2.2013 is concerned, the matter is remanded to the Engineer-in- Patna High Court CWJC No.276 of 2013 (12) dt.12-03-2013 15 Chief, Road Construction Department, Government of Bihar for the limited purpose of passing the order as to the time period for which the petitioner would remain blacklisted. Let the said order be passed within a period of four weeks from the date of receipt/production of a copy of this order along with the representation of the petitioner. It is made clear that it would be open to the petitioner to file an appeal against the said order before the Principal Secretary, Road Construction Department only to the extent that it relates to the time period that may be fixed by the Engineer-in-Chief with respect to the blacklisting order. V.P.Sinha/- (Ramesh Kumar Datta, J)