M/s Devprabha Construction Pvt. Ltd. (JV), Saraidhela, Dhanbad. And Ors vs Coal India Limited, Kolkata, West Bengal And Ors

Heard learned senior counsel for the appellants and learned counsel for the respondents BCCL.

The appellants writ petitioners are aggrieved by the impugned order dated 18.07.2019, passed by the Hon'ble Single Judge, in W.P.(C) No.3363 of 2019, whereby the writ application challenging the show-cause notice issued to the appellants writ petitioners, by the respondent BCCL, for submitting wrong and inflated credential certificates, for making them eligible for the Tender in question, has been dismissed by the Hon'ble Single Judge.

A show-cause notice was issued to the appellants on 13.06.2019, by the respondent BCCL, as contained in Annexure-6 to the memo of appeal, wherein it was stated that the writ petitioners, in order to secure a bid with respect to e-Tender notice floated for "Hiring of HEMM for removal of OB, extraction and transportation of Coal with fire fighting from XVA, XV, XIV, XIII, XI / XII, XII, XI, XA, IX / X, X, IX, VIIIA, VIII / VII (T), VIII, VII (T) & V / VI Seams of AKJ-SIMLA Patch of Amalgamated East Bhuggatdih - Simlabahal Colliery of Bastacolla Area", submitted wrong and inflated credential / work certificate to fulfill the eligibility criteria.

The credential / work certificates were required to be furnished by the eligible bidders, who could be joint venture / consortium not more than three companies / contractors. The appellants writ petitioners, who were already doing the contract work under the BCCL, made applications to the General Manager of the BCCL, for issuing the credential certificates, and two credential certificates were issued, pursuant to the request of the petitioners, one on 11.01.2018 and other on 13.01.2018, which have also been brought on record as Annexures - 4 and 3 respectively, to the memo of appeal.

It is alleged that upon some complaints, an investigation was initiated and upon investigation, it was found that both these credential certificates were showing the inflated amounts and accordingly, the show-cause notice was given, stating that the matter 'has been investigated' and it was found that the credential certificates were showing wrong and inflated amounts. It was also stated in the show-cause notice that "The willful use of wrong and inflated credential vitiated the tender which led to its subsequent cancellation causing considerable opportunity loss to the company in particular and to the nation in general". Further it was stated that the appellants have been 'found responsible for the above act' and noticed to show-cause as to why as per Clause 8.6 of e-Notice, and other relevant clauses, terms and conditions, they be not banned from participating in future bids for a minimum period of five years.

The appellants challenged the said show-cause notice before this Court, in W.P.(C) No.3363 of 2019, in which, the contention of the learned senior counsel for the appellants writ petitioners was that since the show-cause notice clearly stated that the matter 'has been investigated' and it also stated that there was 'willful use of wrong and inflated credential' submitted by the appellants and further that on the basis of the above investigation, the appellants have been 'found responsible for the above act' and they were to be banned from participating in future bids for a minimum period of five years, there was already an investigation made behind the back of the appellants, and the findings had been arrived at by the respondent-BCCL, and as such, the show-cause notice was only an empty formality, as the decision had already been taken for debarring the appellants from participating in future bids for a minimum period of five years, and that decision was only to be re-iterated after getting the reply to the show-cause notice. In support of his contention, learned senior counsel for the appellants had placed reliance upon the decision of the Hon'ble Apex Court in Siemens Ltd. Vs. State of Maharashtra & Ors., reported in (2006) 12 SCC 33. The Writ Court, negating the contention of the learned senior counsel for the appellants, dismissed the writ application, holding that since the factual aspect was to be determined regarding the genuineness of the work experience certificate, which had been said to be incorrect, the petitioners had failed to make out a cause of biasness and malicious mind, or acting with prejudice, and no case was made out for any interference to be made in the show-cause notice.

Challenging the said order, the present Letters Patent Appeal has been filed by the appellants. Though the learned senior counsel for the appellants has reiterated the stand of biasness due to pre-notice investigation and findings against the appellants, and has also relied upon several decisions of the Hon'ble Apex Court, including the one in Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Ors., reported in (1978) 1 SCC 405, but in course of arguments, while hearing the submissions of the learned counsel for the respondents, we find that the matter is pending for investigation before the Central Vigilance Commission (in short C.V.C.). It is pointed out by the learned counsel for the respondents that on 19.09.2018, some complaints were received by the C.V.C., and on 28.09.2018, the complaints were also made to the C.M.D., BCCL, with regard to the inflated / false credential certificates, on the basis of which, the BCCL carried out an investigation, upon the orders / instructions of the C.V.C.

The report submitted to the C.V.C., has also been brought on record by way of supplementary affidavit, which shows that the C.V.C., had ordered for an enquiry and sought the investigation report with department's specific comments / recommendations against the complaint received in the Commission, with regard to the wrong credential certificates issued by the General Manager of BCCL, to the appellants. The investigation was carried out, on the basis of which, the show-cause notice was issued to the appellants, and that investigation report has also been submitted before the C.V.C, which is an admitted fact.

As, it is now an admitted fact that the entire matter is pending before the Central Vigilance Commission, in that view of the matter, we made a query from the learned counsel for the respondents as to whether the respondents shall have any objection if we direct the appellants to submit their reply to the show-cause notice, which shall be forwarded to the C.V.C. directly, and it is for the C.V.C., before whom the matter is pending, to take a final decision in the matter, with regard to the appellants also, taking into consideration the investigation report submitted by the respondent BCCL, and the reply to the show-cause notice submitted by the appellants.

Learned counsel for the respondents sought the permission for seeking instructions, and after seeking instructions from his clients, he has very fairly submitted that the respondent BCCL has no objection in the same, subject to the condition that the candidature of the appellants pending the enquiry by the C.V.C., in any further tender process shall not be considered.

The proposal mooted out by the Court is also acceptable to the learned senior counsel for the appellants, who also readily agreed that if the final decision is given at the hands of the C.V.C., the appellants shall have no objection in submitting their reply to the show-cause notice. Learned senior counsel however, has the reservation to the condition of the learned counsel for the respondents, that in the meantime, the appellants' candidature shall not be considered in any fresh tender or re-tender.

Having heard the learned counsels for the parties, on this proposal, we find that it shall not be fair to altogether debar the appellants from being considered in the future tender processes, if any.

We accordingly, direct the appellants to submit their reply to the show-cause notice to the respondent BCCL, within a further period of two weeks from today, which shall be accepted by the respondent BCCL, and they shall forward the same to the C.V.C., without taking any decision at their own end. It shall be for the C.V.C., to take the final decision upon proper investigation in the matter, giving reasonable opportunity of hearing to all, in accordance with law.

Till the final decision is taken by the C.V.C., which we request the C.V.C., to take within a reasonable time, the appellants shall be entitled to submit their tender in case any re-tender or fresh tender is floated by the respondent BCCL, and the respondent BCCL shall take their own decision in accordance with law, on the tender(s) submitted by the appellants, during the pendency of the investigation before the C.V.C., and if any decision is taken to the detriment of the appellants, the appellants shall be at liberty to challenge the same, before the appropriate forum, in accordance with law.

This Letters Patent Appeal accordingly, stands disposed of with the directions / observations as above. Consequently, the pending interlocutory applications also stand disposed of.