Present: Mr. Ashish Aggarwal Advocate Vs. State of Punjab and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1133389
CourtPunjab and Haryana High Court
Decided OnFeb-12-2014
AppellantPresent: Mr. Ashish Aggarwal Advocate
RespondentState of Punjab and Another
Excerpt:
cwp no.19765 of 2010 -1- in the high court of punjab & haryana at chandigarh cwp no.19765 of 2010 (o&m) date of decision : 12.02.2014 surinder singh @ harnam singh ...petitioner versus state of punjab and another ...respondents coram: hon'ble ms.justice ritu bahri present: mr.ashish aggarwal, advocate for the petitioner. ms.anu pal, aag, punjab mr.sudhir pruthi, advocate for respondent no.2 **** ritu bahri , j. (oral) this petition under articles 226/227 of the constitution of india is for issuance of writ in the nature of mandamus for quashing the blacklisting order dated 31.12.2008 (p-15) and further prayer is for issuance of direction to the respondent to release a sum of about rs.10,64,062/- along with interest @ 12% p.a.the petitioner is a class-i contractor and is working as electrical contractor from last 15 years with the different departments of state of punjab and a licence has been issued by chief electrical inspector, govt. of punjab, patiala (p-1).a public notice was issued for giving contract of maintenance of street light points in various areas of jalandhar city. petitioner submitted the tender, which was accepted by the respondents and he was allotted the above stated work for a period of one year starting from 30.11.2007. an agreement dated 04.12.2007 was arora gaurav 2014.03.14 15:38 i attest to the accuracy and integrity of this document cwp no.19765 of 2010 -2- executed between the petitioner and respondent no.2, which was duly signed by the petitioner and by the corporation engineer (light) on behalf of respondent (p-3).the case of the petitioner is that he was paid only 761434/- on 28.08.2008 after a lot of harassment and balance 50% of the payment of the bill was withheld whereas as per terms and conditions of the agreement dated 04.12.2007, the payment was to be made every month. subsequently, vide order dated 31.12.2008, the petitioner's firm was blacklisted. thereafter, vide order dated 03.08.2009 (p-19).the payment of the security amount i.e rs.1,08,431/- was returned to the petitioner. learned counsel for the petitioner states that an amount of rs.10,64,062/- along with interest is still to be paid by the respondents to the petitioner and the order dated 31.12.2008 (p-15) was passed without giving any notice to the petitioner. learned counsel for respondent no.2 has referred to written statement whereby, a preliminary objection has been taken that as per agreement dated 04.12.2007, the dispute with regard to payment of the settling of the account can be referred to the sole arbitrator i.e the commissioner, m.c, jalandhar. further contention of learned counsel for the petitioner that monthly payments were not made to the petitioner, has been answered by respondent no.2 in his written statement wherein it has been stated that the petitioner had failed to furnish inventory as required under clause 3 of the above said agreement. so far as deduction of rs.2,93,800/- is concerned, the said deduction has been deducted as the petitioner failed to maintain the street lights and further failed to attend the complaints submitted by the arora gaurav 2014.03.14 15:38 i attest to the accuracy and integrity of this document cwp no.19765 of 2010 -3- residents of the locality. the amount has been deducted in view of clause 15 of the agreement. the balance amount of rs.7,70,262/- has been deducted out of the total bill of rs.12,56,352/-. reference has been made to annexure r-2/2 whereby the various notices were given to the petitioner that he had defaulted in carrying out the work satisfactory for providing the lights in the colony. vide order dated 28.11.2008 the petitioner was blacklisted and his work was ordered to be handed over to some other contractor (r-2/3).thus, the argument raised by learned counsel for the petitioner that no notice was given to him before passing the impugned order dated , is liable to be rejected. the name of the petitioner has been blacklisted for future from further participation, which the respondents could not do, in view of the law laid down by hon'ble the supreme court in the case of kulja industries v. chief general manager w.t.proj. b.s.n.l, 2013(4) plj447 in para 20, it has been observed as under:- 20. the legal position governing blacklisting of suppliers in usa and uk is no different. in usa instead of using the expression ‘blacklisting’ the term “debarring”. is used by the statutes and the courts. the federal government considers ‘suspension and debarment’ as a powerful tool for protecting taxpayer resources and maintaining integrity of the processes for federal acquisitions. comprehensive guidelines are, therefore, issued by the government for protecting public interest from those contractors and recipients who are non-responsible, lack business integrity or engage in dishonest or illegal conduct or are arora gaurav 2014.03.14 15:38 i attest to the accuracy and integrity of this document cwp no.19765 of 2010 -4- otherwise unable to perform satisfactorily. these guidelines prescribe the following among other grounds for debarment: a) conviction of or civil judgment for -- (1) commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction; (2) violation of federal or state antitrust statutes, including those proscribing price fixing between competitors.allocation of customers between competitors.and bid rigging; (3) commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims.or obstruction of justice; or (4) commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility; (b) violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as— (1) a willful failure to perform in accordance with the terms of one or more public agreements or transactions; (2) a history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or (3) a willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction; (c) xxxx arora gaurav 2014.03.14 15:38 i attest to the accuracy and integrity of this document cwp no.19765 of 2010 -5- (d) any other cause of so serious or compelling a nature that it affects your present responsibility.”. in view of the above, the writ petition is partly allowed. order dated 31.12.2008 (p-15) is set aside to the extent that the petitioner has been blacklisted without the prescribed time limit. the competent authorities shall re-assess the period of blacklisting the petitioner afresh. as regard to the grievances of the petitioner that some amount is yet to be paid by the respondents, the petitioner is at liberty to given his application to arbitrator i.e the commissioner, m.c, jalandhar, as per clause 41 of the agreement, who shall look into the matter. (ritu bahri) judge1202.2014 g arora arora gaurav 2014.03.14 15:38 i attest to the accuracy and integrity of this document
Judgment:

CWP No.19765 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.19765 of 2010 (O&M) Date of decision : 12.02.2014 Surinder Singh @ Harnam Singh ...Petitioner versus State of Punjab and another ...Respondents CORAM: HON'BLE Ms.JUSTICE RITU BAHRI Present: Mr.Ashish Aggarwal, Advocate for the petitioner.

Ms.Anu Pal, AAG, Punjab Mr.Sudhir Pruthi, Advocate for respondent No.2 **** RITU BAHRI , J.

(Oral) This petition under Articles 226/227 of the Constitution of India is for issuance of writ in the nature of mandamus for quashing the blacklisting order dated 31.12.2008 (P-15) and further prayer is for issuance of direction to the respondent to release a sum of about Rs.10,64,062/- along with interest @ 12% p.a.The petitioner is a class-I contractor and is working as Electrical Contractor from last 15 years with the different departments of State of Punjab and a licence has been issued by Chief Electrical Inspector, Govt.

of Punjab, Patiala (P-1).A public notice was issued for giving contract of maintenance of street light points in various areas of Jalandhar City.

Petitioner submitted the tender, which was accepted by the respondents and he was allotted the above stated work for a period of one year starting from 30.11.2007.

An agreement dated 04.12.2007 was Arora Gaurav 2014.03.14 15:38 I attest to the accuracy and integrity of this document CWP No.19765 of 2010 -2- executed between the petitioner and respondent No.2, which was duly signed by the petitioner and by the Corporation Engineer (Light) on behalf of respondent (P-3).The case of the petitioner is that he was paid only 761434/- on 28.08.2008 after a lot of harassment and balance 50% of the payment of the bill was withheld whereas as per terms and conditions of the agreement dated 04.12.2007, the payment was to be made every month.

Subsequently, vide order dated 31.12.2008, the petitioner's firm was blacklisted.

Thereafter, vide order dated 03.08.2009 (P-19).the payment of the security amount i.e Rs.1,08,431/- was returned to the petitioner.

Learned counsel for the petitioner states that an amount of Rs.10,64,062/- along with interest is still to be paid by the respondents to the petitioner and the order dated 31.12.2008 (P-15) was passed without giving any notice to the petitioner.

Learned counsel for respondent No.2 has referred to written statement whereby, a preliminary objection has been taken that as per agreement dated 04.12.2007, the dispute with regard to payment of the settling of the account can be referred to the sole Arbitrator i.e The Commissioner, M.C, Jalandhar.

Further contention of learned counsel for the petitioner that monthly payments were not made to the petitioner, has been answered by respondent No.2 in his written statement wherein it has been stated that the petitioner had failed to furnish inventory as required under clause 3 of the above said agreement.

So far as deduction of Rs.2,93,800/- is concerned, the said deduction has been deducted as the petitioner failed to maintain the street lights and further failed to attend the complaints submitted by the Arora Gaurav 2014.03.14 15:38 I attest to the accuracy and integrity of this document CWP No.19765 of 2010 -3- residents of the locality.

The amount has been deducted in view of clause 15 of the agreement.

The balance amount of Rs.7,70,262/- has been deducted out of the total bill of Rs.12,56,352/-.

Reference has been made to Annexure R-2/2 whereby the various notices were given to the petitioner that he had defaulted in carrying out the work satisfactory for providing the lights in the colony.

Vide order dated 28.11.2008 the petitioner was blacklisted and his work was ordered to be handed over to some other contractor (R-2/3).Thus, the argument raised by learned counsel for the petitioner that no notice was given to him before passing the impugned order dated , is liable to be rejected.

The name of the petitioner has been blacklisted for future from further participation, which the respondents could not do, in view of the law laid down by Hon'ble the Supreme Court in the case of Kulja Industries v.

Chief General Manager W.T.Proj.

B.S.N.L, 2013(4) PLJ447 In para 20, it has been observed as under:- 20.

The legal position governing blacklisting of suppliers in USA and UK is no different.

In USA instead of using the expression ‘Blacklisting’ the term “debarring”.

is used by the Statutes and the Courts.

The Federal Government considers ‘suspension and debarment’ as a powerful tool for protecting taxpayer resources and maintaining integrity of the processes for federal acquisitions.

Comprehensive guidelines are, therefore, issued by the government for protecting public interest from those contractors and recipients who are non-responsible, lack business integrity or engage in dishonest or illegal conduct or are Arora Gaurav 2014.03.14 15:38 I attest to the accuracy and integrity of this document CWP No.19765 of 2010 -4- otherwise unable to perform satisfactorily.

These guidelines prescribe the following among other grounds for debarment: a) Conviction of or civil judgment for -- (1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction; (2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitORS.allocation of customers between competitORS.and bid rigging; (3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claiMs.or obstruction of justice; or (4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility; (b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as— (1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions; (2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or (3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction; (c) xxxx Arora Gaurav 2014.03.14 15:38 I attest to the accuracy and integrity of this document CWP No.19765 of 2010 -5- (d) Any other cause of so serious or compelling a nature that it affects your present responsibility.”

.

In view of the above, the writ petition is partly allowed.

Order dated 31.12.2008 (P-15) is set aside to the extent that the petitioner has been blacklisted without the prescribed time limit.

The competent authorities shall re-assess the period of blacklisting the petitioner afresh.

As regard to the grievances of the petitioner that some amount is yet to be paid by the respondents, the petitioner is at liberty to given his application to Arbitrator i.e The Commissioner, M.C, Jalandhar, as per clause 41 of the agreement, who shall look into the matter.

(RITU BAHRI) JUDGE1202.2014 G Arora Arora Gaurav 2014.03.14 15:38 I attest to the accuracy and integrity of this document