Kumar Bakery vs Union of India (UOI) and Others

Ranjit Singh, J.—Having been initially approved as C Class Contractor, the Petitioner was upgraded as Class B Contractor on 31.12.2007. The Petitioner had been supplying bread to various Army Units at Amritsar without any complaint. As per the averments made in the writ petition, the trouble started when one Lieutenant Colonel R.R. Tewari took over as Commanding Officer, Supply Depot, Amritsar. As per the allegation, said officer started harassing the Petitioner by pressuring him to pay commission. The Petitioner accordingly filed various complaints to the immediate superior of the officer highlighting the misdeed on the part of the officer. The Petitioner complains that no proper action was taken on all such complaints, except that the Petitioner was called on 8.8.2008 by one Colonel K.R. Singh, Commanding Officer, 10 Dogra Regiment. As per the Petitioner, Col. K.R. Singh only had informal discussion with him and did not grant him any opportunity to substantiate the allegation. Col. K.R. Singh appears to have submitted a report accordingly. This complaint invited the wrath of Respondent No. 5, who did not allow him to take part in the contract process for the year 2009-2010. The Petitioner served a legal notice on D.D.S.T. 11 Corps. in this regard but instead the Petitioner was served a show cause notice for his removal from the approved list of contractors on the ground that he had initiated false and baseless allegations against Respondent No. 5. After considering the reply filed by the Petitioner, he was removed from the approved list of contractors on 8.7.2009 and thereafter has not been allowed to participate in the tendering process.

The Petitioner had filed an earlier writ petition, which was disposed of with a direction to Respondent No. 3 to look into the objections of the Petitioner and pass a speaking order. The Petitioner has, therefore, challenged the order, removing him and the order rejecting the appeal filed by him against said order.

The primary and sole ground to challenge the impugned order is that filing of a false and frivolous complaint is not one of the grounds, which can be invoked to remove a contractor from the approved list of contractors. It is noticed that the show cause notice was issued to the Petitioner in terms of Para 19(c)(ii) of the Government of India, Ministry of Defence, letter No.PC/RAKSHA/63060/Q/ST-5/3633/D(QS), dated 26.9.2006. This letter clearly provides that Major General Army Service Corps (`MGASC'' for short) at Command Head Quarter is competent to include the name of the firm in the list of approved contractors maintained by him. The same officer is also competent to order the removal of the firm from the list of approved contractors. The contractor so removed has a right to file appeal. It is in exercise of these powers that the impugned order has been passed.

The Petitioner would mainly rely upon the contents of Para 19(c) of the Government of India letter dated 26.9.2006. As per the Petitioner, his name could be removed from the approved list of contractors on the grounds as given in paragraph 19(c) of the letter of the Government of India. Accordingly, the Petitioner claims that he could be removed on account of poor performance or if he had impeded, retarded or delayed or vitiated in any manner by his any unreasonable or baseless act of omission or commission in the process of concluding the contract or operating of a contract, besides other grounds as given in this para. The counsel submits that none of the grounds, as contained in Para 19(c) could be urged to remove his name from the list of approved contractors.

I am not inclined to accept the line of submissions made by the counsel. One of the grounds on which, the Respondents could remove the name of the Petitioner from the approved list of contractors is if he, by any of his unreasonable or baseless act of omission or commission, had vitiated or delayed in any manner the process of operation of the contract, then he could be removed from the list of approved contractors. Filing of false or frivolous complaints against the contract operating officer, which upon enquiries were found to be so, made without basis, could very well be covered in ground 19(c)(ii) as a unreasonable and baseless act of commission, which vitiated or delayed the process of operation of contract. The power to include the name of the Petitioner in the approved list of contractor is with MGASC Command. A person who has the power to include the name of a contractor in the approved list, would necessarily have power to remove his name.

Even otherwise, it is a case of entering into a contract and a commercial activity. The Respondents can not be forced to keep the name of a person on the approved list for this purpose, if he is found to be of the nature that he had been making false or frivolous allegations against the officer, who was operating the contract. The submission that person who is put to adverse consequences like this is entitled to notice to be heard on the basis of law laid down in Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, can also not advance the case of the Petitioner as here opportunity has been provided to the Petitioner. Moreover, this was a case where the contractor had been blacklisted. That is not the order, which is passed against the Petitioner. The order blacklisting does not pertain to any particular contract. Such an order involves civil consequences and it casts a slur as is noticed by the Hon''ble Supreme Court. It creates a barrier between the person blacklisted and the Government in the matter of transaction and, thus, is a instrument of coercion. It can not be said so about the order removing the name of the Petitioner from the approved list of contractors for the purpose of particular contract. The Petitioner is not blacklisted to debar him from giving bid for other contracts with the Government. It is only that a particular Unit may not enter into contract with him. The Petitioner is not blacklisted in a sense that he can not enter into any contract with the Government.

The Petitioner was also given fair opportunity through the show cause notice issued to him and, thus, he can not complain that he was not afforded opportunity of hearing before passing of the impugned order. The ratio of law as laid down in M/s Erusian Equipment and Chemicals Ltd.''s case (supra) is not attracted to the facts of the present case. As noticed by the Supreme Court, no person has a fundamental right to insist that the Government must enter into a contract with him. The Petitioner is only entitled to equal treatment. The Petitioner, thus, has not made out any valid cause, calling for interference in exercise of writ jurisdiction.

The petition is accordingly dismissed in limine.