M/S Dalip Singh Adhikari vs State of Uttarakhand & Others

S.

No.",Name of work,"Earnest

money (Rs.

In Lac)","Validity

of

tender","Period of

completion",Contractor''s Category of registration

2.,"2. Package-2 Construction of two lane Tanakpur- Joljibi motor

road Along Indo-Nepal boarder in Uttarakhand state(Km. 30.600

to 55.00)",234.00,"120

Days",18 Months,"Category A/A+ for road work in any

state Govt./Govt. of India/Govt.

undertaking

(ii) Technical and financial bid of the petitioner was as per norms.,,,,,

(iii) The petitioner?s bid was held out to be a responsive bid in terms of the Government order dated 15.6.2015.,,,,,

(iv) The petitioner has slashed the rates to make the project viable.,,,,,

Based on the aforesaid report, the Chief Engineer, PWD, Pithoragarh vide his correspondence dated 01.7.2017 to Engineer-in-Chief is said to",,,,,

have recommended to close the complaint as submitted by the MLA on 28.4.2017 on which the action is being taken in pursuance to the enquiry,,,,,

report dated 15.6.2017.,,,,,

Ultimately, by the order dated 25.8.2017 the contract of the petitioner was cancelled by the Engineer-in-Chief. Challenging the order of",,,,,

cancellation dated 25.8.2017, the petitioner preferred a Writ Petition no. 2143/2017 against the orders dated 22.8.2017, 23.8.2017 and the",,,,,

cancellation order dated 25.8.2017.,,,,,

The coordinate Bench of this court vide its judgment dated 20.9.2017 dismissed the writ petition with an observation that the petitioner has a,,,,,

remedy to approach to the Adjudicator by invoking the provisions of clause-23 of the General Conditions of the Contract. Against the judgment of,,,,,

the learned Single Judge dated 20.9.2017, the petitioner preferred a Special Appeal No. 760/2017. It was later on withdrawn by them by an",,,,,

order dated 22.9.2017.,,,,,

The proceedings which was drawn before the adjudicator in pursuance to the judgment of this court, the adjudicator vide its judgment dated",,,,,

13.12.2017 has held that the action taken by the State of canceling the contract was illegal, held that report dated 15.6.2017 was maliciously",,,,,

oriented and experience certificate found valid. 15. The Adjudicator in the order dated 13.12.2017 held that the petitioner has not committed any,,,,,

breach as contemplated under clause 56.2 (a to h) dealing with Fundamental Breaches of Section-6 of General Conditions of Contract and after,,,,,

the contract the department had reconfirmed the petitioner?s credibility pertaining to the experience and found him to be suitable.,,,,,

On account of the fact that the respondents were proceeding to award the contract to another contractor. As a consequence of the order of,,,,,

cancellation dated 25.8.2017, the petitioner preferred an application under Section 9 before the learned District Judge which was registered as",,,,,

Case No. 71/2017 seeking a restraint order from awarding the contract to any other person.,,,,,

The learned District Judge, Dehradun by its order dated 27.9.2017 restrained granting of award to any other person. While these proceedings",,,,,

before the Adjudicator and the District Judge was pending, on 11.09.2017, a show cause notice was issued under the Rules almost on the same",,,,,

ground based on the report dated 15.06.2017, as to why the name of the petitioner may not be removed by invoking Rule 15 and be declared",,,,,

unlisted contractor and remove name from list from Register of enlisted contract of the rules mentioned aforesaid.,,,,,

The petitioner submitted a reply to the show cause under the following backdrops:-,,,,,

(i) that the show cause itself as a matter of fact is not an independent show cause, simplicitor because it reflects a positive bend of",,,,,

mind based on decision already taken by the respondent.,,,,,

(ii) the show cause reflects that the respondent has already pre-determined to delist the petitioner from the Register of enlisted,,,,,

contractors of the Public Works Department.,,,,,

(iii) the basis of the show cause dated 11.09.2017 was bad as it was based on the report dated 15.6.2017, which was otherwise",,,,,

held to be illegal by the Adjudicator in its judgment dated 13.12.2017.,,,,,

(iv) it was further bad that the District Judge has already granted an order of status quo on 27.9.2017 in proceedings under Section 9,,,,,

of Arbitration and Cancellation Act, 1996.",,,,,

(v) the petitioner in the reply submitted that no action should have been taken because in pursuance to the decision of Adjudicator,,,,,

dated 13.12.2017, the petitioner has already invoked the arbitration clause and has nominated his representative as an arbitrator on",,,,,

08.01.2018.,,,,,

(vi) since the veracity of the report dated 15.6.2017 based on the findings of the Adjudicator dated 13.12.2017 is the subject matter,,,,,

of arbitration, no action should be taken.",,,,,

The petitioner submitted his reply to show cause on 27.9.2017, but no decision was taken on the reply submitted by the petitioner on",,,,,

27.9.2017, yet the Chief Engineer issued a second show cause on 05.12.2017 almost on the same ground as the first show cause on 11.9.2017",,,,,

the petitioner submitted the reply to it too on 05.12.2017. Reiterated reply dated 27.9.2017.,,,,,

On 18.12.2017, the petitioner vide his communication to the Chief Secretary PWD had given an information about the adjudicator award",,,,,

dated 13.12.2017 and prayed for to revive the contract. He yet again submitted a reminder on 04.01.2018.,,,,,

Yet again even after the second show cause no action was taken. Surprisingly, the third show cause notice under Rule- 15 of the Rules was",,,,,

issued on 6.1.2018 by Senior Staff Officer yet again based on the report of 15.06.2017.,,,,,

To this show cause notice, the petitioner submitted that in accordance with an Appendix-5 of the Rules the Authority responsible for enlisting a",,,,,

A-Class contractor is Engineer-in-Chief or the Chief Engineer. The Senior Staff Officer of the office of Engineer-in-Chief was not competent to,,,,,

issue the show cause notice dated 06.01.2018. Petitioner reiterated his earlier reply and yet again submitted a detailed reply on 12.01.2018.,,,,,

The Contention of the petitioner is that the action of the respondent is arbitrary for the reason that the third show cause notice which was,,,,,

issued on 06.01.2018 had only provided 1 ? days time to the petitioner to file his reply to the show cause.,,,,,

Despite of the aforesaid circumstances, the contention of the petitioner is that by the impugned order dated 16.01.2018 the petitioner has been",,,,,

delisted under Rule-15 of the Rules. As a consequences of which, he would be deprived of his participation, upholdment and continuance of any",,,,,

contract in his favour.,,,,,

Be that as it may, the Rules which were published on 08.10.1980 dealing with the Classification and Enlistment of the contractors in P.W.D.",,,,,

under which the impugned action has been taken. In its Rule-15 under which the action has been taken dealt with the circumstances under which,,,,,

the competent authority could enlist the contractor or delist the contractor from the Register of enlisted contractors. The competent authority has,,,,,

been defined under Appendix-G, though apparently there are bundle of facts which has been pleaded by the petitioner in the writ petition, which",,,,,

are only having a persuasive blend and not relevant for the case, but this Court slightly incapacitated to interfere at this stage on account of the fact",,,,,

that under the rules particularly Rule-16 which is quoted hereunder, the petitioner has got a remedy of preferring an appeal/review whichever is",,,,,

available to him before the competent authority which has been defined as to be next higher authority under the rules and further because taking,,,,,

into consideration the fact that Arbitration Proceedings and proceedings under Section 9 are pending and one yet to be decided finally, any finding",,,,,

would not be possibly given by this Court after appreciation of facts as would have bearing on pending proceedings: Rule-16,,,,,

An applicant or enlisted contractor who feels aggrieved by any order passed under these rules, any file an appeal to the next higher authority within",,,,,

a period of one month or receipt of intimation of such order and the order passed by such authority after holding such enquiry as it may consider,,,,,

necessary, shall be final. Such appeals shall ordinarily be disposed of within a period of two months.",,,,,

Provided that no appeal shall lie against an order passed by the engineer-on-chief/chief engineer. However, the person aggrieved by the said order",,,,,

may apply to the Engineer in Chief/Chief Engineer may pass any order considered suitable.,,,,,

On account of fact that the petitioner has a statutory remedy, which is by way of filing of an appeal or review, this writ petition is dismissed as",,,,,

the petitioner has got a forum available for redressal of his grievance against impugned order passed under Rule-15, in the given circumstance unit",,,,,

jurisdiction is not available to the petitioner. It is left open for the petitioner to approach the Authority against the impugned order dated,,,,,

16.01.2018, and in an event if the petitioner approaches the authority by way of filing an appeal/review alongwith the interim application within two",,,,,

weeks from today, the same would be considered by the competent authority and pass an appropriate order on the interim stay application within",,,,,

a period of two weeks from the date of filing of appeal/review, exclusively in accordance with law.",,,,,

Subject to the above observations, the writ petition is dismissed.",,,,,

No order as to costs.,,,,,