O.P.Kandoi And Company Private Ltd v. Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WPA/947/2023 O.P. Kandoi and Company Private Limited Vs.

The Union of India and others Mr. Tapan Kumar Das ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents November 23, 2023 [SR] Item No.10 1.

The order passed by the Chief Engineer, APWD on 11th September, 2023, in terms of the order passed by a Coordinate Bench dated 15th June, 2023 in WPA No.732 of 2023 by which a direction was given upon the respondent authorities to re-examine the decision of enlistment authority communicated vide Office order No.24173 dated 29th May, 2023 is the subject matter of challenge in this writ petition.

2. For an incident occurred in the year 2006 with regard to awarding of a contract in favour of the petitioner for supply of bilingual signage boards, the petitioner was blacklisted on 29th May, 2023 allegedly on the ground that instead of bilingual signage boards, monolingual signage boards have been supplied to the Administration.

3. In support of the blacklisting, it is stated and also argued that the writ petitioner has supplied inferior materials that has caused loss to the exchequer. The government officials involved in connection with the said tender are being

proceeded with by the Anti Corruption Wing and such proceedings are pending.

4. In the impugned order dated 11th September, 2023, it appears that the blacklisting was on the basis of the finding that the firm had supplied only monolingual signage boards instead of bilingual signage boards which tantamounts to breach of contract agreement. It is silent about any inferior material being supplied by the writ petitioner.

5. As regards the delay in supply of retro-reflective signage boards in bilingual language, the Chief Engineer was of the view that the delay caused by the contractors as entrusted to fix the poles is immaterial as it was for the writ petitioner to supply the said signage boards in bilingual language in terms of the agreement No. 35 of 2005-06. The Chief Engineer has also recorded that the writ petitioner had supplied unilingual signage boards only with blue background which is in breach of the aforesaid agreement.

6. The question of jurisdiction to decide in view of the existing system of awarding contract by which the enlistment procedure stands discontinued, the Chief Engineer was of the view that as per the observation of the Lieutenant Governor , the department initiated action against the firm as per rule 23.4 of Enlistment (Amendment) Rules of Contractors in APWD, 2018 and it is also on the based on the recommendation of the Anti Corruption Unit. The authority presumably has relied

upon the said enquiry report and the observation of the Lieutenant Governor in this regard.

7. It appears from the impugned order that the Anti Corruption Unit initiated an enquiry following a complaint received on 5th November, 2018 alleging the aforesaid breach.

8. The authority has relied upon the enquiry report which presumably has stated that the petitioner has supplied the retro-reflected signage boards in unilingual language instead of bilingual language which is against the prescribed specification of agreement or the standard of IRC-67-2001.

9. It is further recorded in the impugned order that in spite of ample opportunity of being given to the writ petitioner to submit reply on their part of the show cause notice, no such reply was received. The delay of 17 years initiated for the proceeding was explained and supported on the reasoning that it involves government exchequer.

10. Mr.

Shatadru Chakraborty, learned counsel representing the respondents has submitted that based on the report filed by the Anti Corruption Unit and on the recommendation of the Hon'ble Lieutenant Governor, the proceeding for blacking listing was initiated and now steps have been taken against the errant officials and some officials have been suspended.

11. However, this court does not find any satisfactory reply from Mr.Chakraborty with regard to the various documents disclosed in the proceeding wherefrom it

would appear that on physical verification of the materials, running bills were approved and payments have been made.

12. The respondent was unable to produce any document to show that there has been a breach of agreement and it is well neigh impossible for the writ petitioner to produce such materials after 17 years to prove execution of work in terms of the agreement.

13. The documents from page 160 (P-10) onwards disclosed in CAN/1/2023 strongly suggests the execution of the work contract in accordance with the contract. Moreover, documents have been disclosed to show that the writ petitioner was one of the enlisted contractors and there has been no past allegation corruption or malpractices or misconduct on the part of the writ petitioner.

14. The respondent authorities cannot definitely say that the government exchequer has suffered by reason of the supply of alleged unilingual signage boards. One would have been expected the respondent authorities to refer to the signage boards supplied by the writ petitioner to show any breach of contract terms. No such signage boards physically appear to have been verified by the Chief Engineer as produced to confront the writ petitioner in deciding the matter.

15. It is not been alleged that the materials supplied by the writ petitioner is of inferior quality. On such situation consideration, the order passed by the Chief Engineer is set aside. The order of blacklisting is also accordingly set

aside. The order of suspension for two years is accordingly set aside.

16. The observations made in the order are restricted to merits of the suspension order and shall not be read out of contract.

17. The writ petition is accordingly disposed of. There shall be no order as to costs.

18. Urgent certified photostat copy of this order, if applied for, be supplied to the parties, upon compliance of usual formalities.

( Soumen Sen, J.)