Gorkha Security Services v. Govt. of NCT of Delhi
Case Details
Court No. - 40 Case :- WRIT - C No. - 2666 of 2022 Petitioner :- M/S Pace Computer Services M/S Vee Technologies Pvt. Ltd.And Another Respondent :- U.P. Power Corporation Ltd. And 4 Others Counsel for Petitioner :- Sanjay Kumar Om,Praveen Kumar Counsel for Respondent :- Krishna Agarawal,Baleshwar Chaturvedi,Mukesh Kumar Singh,Niraj Kumar Tiwari Hon'ble Siddhartha Varma,J. Hon'ble Ajit Singh,J. This writ petition has been filed for the quashing of the order dated 29.10.2021 by which the petitioners in addition to being blacklisted, were punished by the termination of their contract and by getting debarred for two years. The respondent no. 2, Madhyanchal Vidyut Vitran Nigam Ltd. in July 2018 invited tenders for the execution of its work in the eight clusters (Zones) of the U.P. Power Corporation. The work as per the advertisement was that the agency would have to go from door to door for meter reading, bill generation, service of notice on the consumer through mobile app and by other suitable means etc. After the petitioners' tender was found to be suitable, a contract was entered into between the petitioners and the respondent no. 2. The contract was to commence from 23.7.2018 and was to end on 22.7.2021. The petitioners thereafter continued with the work and in the year 2021 the contract was also extended for a period of two months. The petitioners also completed the work as was required to be done by it during the extended period.
Legal Reasoning
After the extended period ended, the contract period was again extended from 23.9.2021 to 22.11.2021. Thereafter, during the extended period of the contract on 12.10.2021 a notice was given to the petitioners as to why the petitioners' contract be not cancelled; the bank guarantee which was submitted by the petitioners be not forfeited and petitioners be not debarred from trading with the respondent no. 2 for two years. Also by the same notice dated 12.10.2021 the petitioners were asked to explain as to why the firm was not to be blacklisted. The notice was received by the petitioners on 25.10.2021 i.e. a day after the date when the petitioners were required to reply. The petitioners since were required to give the reply by 24.10.2021, they prayed for time by their communication dated 26.10.2021.
Legal Reasoning
Learned counsel for the petitioners states that without giving any reply to the communication of the petitioners dated 26.10.2021, the impugned order dated 29.10.2021 was passed. He submits that when, in fact, there was no reply of the petitioners to the show cause notice, the order impugned could not have been passed. Learned counsel for the petitioners submits that for passing an order for blacklisting as has been provided in the judgment of the Supreme Court reported in 2014 AIR (SC) 3371 Gorkha Security Services vs. Govt. of NCT of Delhi a show cause notice was sin qua non. He has relied upon paragraph nos. 26, 27, 30 and 31, the same are reproduced below for convenience. "26) We are, therefore, of the opinion that it was incumbent on the part of the Department to state in the show cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. However, we may also add that even if it is not mentioned specifically but from the reading of the show cause notice, it can be clearly inferred that such an action was proposed, that would fulfill this requirement. In the present case, however, reading of the show cause notice does not suggest that notice could find out that such an action could also be taken. We say so for the reasons that are recorded hereinafter. 27) In the instant case, no doubt show cause notice dated 6.2.2013 was served upon the appellant. Relevant portion thereof has already been extracted above. This show cause notice is conspicuously silent about the blacklisting action. On the contrary, after stating in detail the nature of alleged defaults and breaches of the agreement committed by the appellant the notice specifically mentions that because of the said defaults the appellant was “as such liable to be levied the cost accordingly”. It further says “why the action as mentioned above may not be taken against the firm, besides other action as deemed fit by the competent authority”. It follows from the above that main action which the respondents wanted to take was to levy the cost. No doubt, notice further mentions that competent authority could take other actions as deemed fit. However, that may not fulfil the requirement of putting the defaulter to the notice that action of blacklisting was also in the mind of the competent authority. Mere existence of Clause 27 in the agreement entered into between the parties, would not suffice the aforesaid mandatory requirement by vaguely mentioning other “actions as deemed fit”. 30) We are conscious of the following words of wisdom expressed by this Court through the pen of Justice Krishna Iyer in the case of Chairman, Board of Mining Examination and Anr. v. Ramjee; 1977 (2) SCC 256: “If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court. Judges must never forget that every law has a social purpose and engineering process without appreciating which justice to the law cannot be done. Here, the socio-legal situation we are faced with is a colliery, an explosive, an accident, luckily not lethal, caused by violation of a regulation and consequential cancellation of the certificate of the delinquent shot-firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari. Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter.. We cannot look at law in the abstract or natural justice as a mere artefact. Nor can we fit into a rigid mould the concept of reasonable opportunity" 31) When it comes to the action of blacklisting which is termed as 'Civil Death' it would be difficult to accept the proposition that without even putting the noticee to such a contemplated action and giving him a chance to show cause as to why such an action be not taken, final order can be passed blacklisting such a person only on the premise that this is one of the actions so stated in the provisions of NIT. Learned counsel for respondent nos. 3, 4 and 5, however, submits that the notice dated 12.10.2021 for blacklisting which was received by the petitioners on 26.10.2021 was preceded by many other notices. He drew the attention of the Court to the various annexures, which have been filed along with the counter affidavit. Having heard Sri Sanjay Kumar Om, learned counsel for the petitioners, Sri Krishan Agarawal, learned counsel for respondent no.1, Sri Niraj Kumar Tiwari, learned counsel for the respondent nos. 2, 3, 4 and the learned Standing Counsel, the court is of the view that the the impugned order cannot be sustained in the eyes of law and therefore was to be set aside. The court finds that the notices which have been appended to the counter affidavit are only notices by which the respondents had requested the petitioners to improve its working. They were not in any manner a notice to blacklist the petitioners. Under such circumstances, we conclude that the notice which was issued to the petitioners on 12.10.2021 but was received by the petitioners on 26.10.2021, was the only notice for the purposes of blacklisting of the petitioners. We also find that the notice was received on 26.10.2021 and therefore the petitioners had no time to reply to the notice as in the notice it was stated that the petitioners had to reply within three days from 12.10.2021. We, therefore, find that the order dated 29.10.2021 is an order which was a result of the exparte exercise of the respondents. No reply of the petitioners had been considered. Therefore, the order impugned dated 29.10.2021 is quashed. However, it shall be open for the respondents to issue a fresh show cause notice and take action against the petitioners as per law. With these observations, the instant writ petition is allowed. Order Date :- 5.12.2022 AU Digitally signed by ADEEB UDDIN Date: 2022.12.17 17:02:24 IST Reason: Location: High Court of Judicature at Allahabad