@JUDGMENTTAG-ORDER
Ramesh Kr. Datta, J.
I.A. No. 547/5013:
1. The interlocutory application has been filed by one Ajay Kumar for being impleaded as party-respondent in the writ application. The only reason assigned is that after the cancellation of the agreement of the petitioner a fresh advertisement has been issued under which the intervener-applicant has also applied. This Court had passed an interim order dated 19.9.2012 directing the Board not to take any final decision in respect of award of contract, if not already decided nor to take any further steps in the matter pursuant to the fresh tender notice and the said interim order has continued during the pendency of the writ application and there has been no finalization of the tender also in favour of the applicant.
2. In the above circumstances, the prayer for intervention is rejected.
3. I.A. No. 547/2013 is, accordingly, dismissed.
4. Heard learned counsel for the petitioner and learned counsel for the respondent-Bihar State Electricity Board.
5. The writ application has been filed for quashing of the decision of the respondent-Board dated 30.8.2012 by which the purchase order dated 27.8.2010 and the work order dated 27.8.2010 issued in favour of the petitioner have been cancelled and the executed agreement terminated with immediate effect and further the security deposit submitted by the petitioner forfeited and bank guarantee encashed as also other consequential order. The further prayer made in the writ application is to quash the letter dated 30.8.2012 issued by the Secretary of the Board by which the petitioner has been debarred from participating in any tender of the Board or/and of its any offices and any other business dealing with Board for three years with immediate effect. The further prayer made in the writ application is to quash the short tender notice published on 23.8.2012 for completion of left over work of the earlier tender.
6. The notice inviting tender was published by the Board earlier for construction of all civil works (excluding construction of Control Room building & Boundary Wall), installation, erection, testing and commissioning of one No. 33/11 KV power Sub-Station and its associated 33 KV & 11 KV line at Gidha alongwith supply of all required equipments/materials on turnkey basis. The petitioner-company participated in the tender process and was awarded the contract for the same. The contract in question contained certain reciprocal promises, namely, that the Board had undertaken upon itself the construction of Control Room building and Boundary Wall and the rest of the works were to be performed by the petitioner-company. The performance of the petitioner depended to certain extent upon the completion of the Control Room building and the Boundary wall and handing over of the Control Room building to the petitioner by the respondent-Board. It appears that the work was delayed beyond its period and ultimately in the meeting dated 8.2.2012 in the office Chambers of Member (Transmission) it was decided on the commitment made by the petitioner-company that the entire work would be completed of Gidha PSS and its associated lines within three months from that date and it was further stated that target committed by the agency is subject to completion of boundary wall with gate by 1st week of March and handing over of control room building by end of March.
7. The admitted position is that the boundary wall was completed in the first week of July but without the gate and the control room was not handed over to the petitioner and in the meantime on 13.7.2012 a show cause notice was issued by the Board directing the petitioner to file an explanation as to why the purchase/work order Nos. 793/798 dated 27.8.2010 be not cancelled and in terms of paras 10 and 13 of the purchase order penal action be not taken against the petitioner. The admitted position is that although in an earlier letter dated 17.4.2012 referred in the show cause a threat was made to complete certain work failing which apart from cancelling the work order the firm may be put in the blacklist, the show cause notice itself did not direct the petitioner to show cause why it should not be blacklisted. The petitioner admittedly filed a detailed reply to the show cause by its letter dated 20.7.2012 indicating the reasons and the circumstances in which the work could not be completed and stating how the Board and its officials have themselves been responsible to a substantial extent in the non-completion of the work. Thereafter by the impugned order dated 30.8.2012 the petitioner''s work order and agreement have been cancelled and the various directions of forfeiture of security deposit, encashment of bank guarantee, etc., have been passed by the Chief Engineer (Planning) of the Board and by the other order dated 30.8.2012 issued under the signature of the Secretary of the Board, the petitioner has been blacklisted.
8. Learned counsel for the petitioner submits that the order blacklisting the petitioner has to go as no show cause notice was issued for blacklisting of the petitioner company before the same has been passed. In support of the same learned counsel relies upon a decision of the Apex Court in the case of
9. With respect to the order dated 30.8.2012 cancelling the purchase order and the work order and forfeiture of security deposit and encashment of bank guarantee, learned counsel submits that the said order shows complete non-application of mind as no reference has been made to various contentions of the petitioner in the reply to the show cause dated 20.7.2012 except to state that the reply has been found to be unsatisfactory and the Board has been compelled to take suitable action against the petitioner.
10. Learned counsel for the Board is unable to defend the action of the Board on either of the counts. He is unable to show how an order of blacklisting could have been passed without issuing a specific show cause directing to reply as to why the petitioner should not be blacklisted mentioning the grounds on which the blacklisting is proposed to be made.
11. Learned counsel for the Board is also unable to show how an order of cancellation could have been passed without applying the mind to the facts, circumstances and issues raised by the petitioner in its reply to the show cause dated 20.7.2012 with regard to which not a single word has been whispered in the cancellation order dated 30.8.2012.
12. In the aforesaid circumstances both the orders dated 30.8.2012 passed by the Chief Engineer and the Secretary to the Bihar State Electricity Board are quashed.
13. So far as the order of blacklisting is concerned, it would be open to the respondent-Board to issue a fresh show cause notice and thereafter pass an appropriate order in accordance with law keeping in view the law laid down by this Court in various decisions including by judgment dated 18.2.2013 in
14. With regard to the order of cancellation, it would be open to the respondents to pass a fresh order after applying their mind to the reply dated 20.7.2012 filed by the petitioner. The writ application is, accordingly, allowed with the aforesaid observations and directions.
