N.C. Das (Electrical) and Co. vs Bangalore Electricity Supply Company Limited

B.S. Patil, J.—Petitioner is calling in question Annexure-A - Official Memorandum dated 21.10.2014 issued by the respondent - General Manager (Electricity), Procurement, BESCOM, Bangalore thereby forfeiting the security deposit and ordering for blacklisting the petitioner from participating in any of the tenders of BESCOM for a period of three years from the date of the order.

Petitioner had approached this Court earlier in W.P. No. 57017/2013 challenging the Official Memorandum dated 03.12.2013 passed by the respondent short-closing purchase order placed with the petitioner for supply of certain quantities of G.I. grounding pipes. This Court partly allowed the said writ petition without expressing any opinion on the merits of the case, but with a direction to the General Manager (Electricity) Procurement, BESCOM to reconsider the matter and pass a speaking order after taking into consideration relevant facts within a period of one month from the date of receipt of copy of the order.

Pursuant to this order, General Manager has reconsidered the matter by providing an opportunity of being heard to the petitioner. A reasoned order has been passed vide Annexure-P. By the said order dated 05.05.2014, the General Manager has found that as per tender condition, technical specification and requirement of BECSOM specified in the tender document, petitioner was required to supply G.I. grounding pipes of minimum thickness of 3.2mm. Indeed while participating in the tender, petitioner had uploaded the GTP (Guaranteed Technical Particulars) for supply of materials in e-procurement portal by indicating the parameters of G.I. pipes to be supplied with thickness of G.I. pipes of 3.2mm minimum. Contrary to the same, petitioner, as per the findings recorded by the General Manager, admittedly supplied G.I. pipes having thickness of 2.9 to 3.0mm.

Contention urged by the petitioner before the General Manager was that there was + or - 10% tolerance as per the tender conditions and therefore, supply of materials made did conform to the tender conditions. This has been rejected by the General Manager stating that it was clearly and specifically mentioned in the Guaranteed Technical Particulars for supply of materials with minimum thickness of G.I. pipes of 3.2 mm. Thus, explanation offered by the petitioner has been rejected and the General Manager has proceeded to hold that petitioner was not entitled for such a benefit and supplies made by it did not conform to the tender conditions.

Petitioner has not challenged this order. Thereafter, a show-cause notice has been issued to the petitioner calling upon it to have its say as to why the security deposit shall not be forfeited and it be not blacklisted from participating in any of the tenders of BESCOM. In response to this, instead of appearing and filing objections, petitioner has made a request to test the sample in any lab accredited by National Accreditation Board (NABT). Respondent has rejected this request and has issued the impugned Official Memorandum directing forfeiture of security deposit and blacklisting the petitioner for three years from participating in any of the tenders called for by the BESCOM. Aggrieved by the same, petitioner is before this Court in this writ petition.

Learned counsel for the petitioner submits that the respondent ought to have referred the sample for being tested at any lab accredited by NABT before taking such extreme decision. It is further contended that impugned Official Memorandum is arbitrary, unjust and unfair.

Learned counsel for the respondent strongly supports the impugned Official Memorandum.

Having heard the learned counsel for both parties, I find that pursuant to the order passed by this Court, petitioner has been given an opportunity of being heard. A detailed order has been passed vide Annexure-P on 05.05.2014 recording a finding that materials supplied fell short of the required technical specifications. This order has remained unchallenged. Official Memorandum - Annexure-A is a consequential order. Insofar as the findings recorded at Annexure-P is concerned, perusal of the same discloses application of mind. The General Manager has passed a reasoned order. The limited scope for judicial review of administrative action does not permit this Court to go into the merits of the contentions advanced. Suffice to observe that prima facie, there is no apparent illegality committed by the General Manager in referring to the conditions expressly stipulated in the tender document and in juxtaposing the same with the quality of the materials supplied, which according to him, admittedly fell short of the required thickness. Therefore, without going into the merits of other contentions urged, I am of the view that the order passed at Annexure-P, though not challenged, satisfies the test of judicial review. Consequential order - Annexure-A which is challenged before this Court cannot be found fault with for the reason that petitioner does not appear and file objections for the proposed blacklisting or for that matter for the proposed forfeiture of the security deposit. Instead, it requested for testing the sample in any lab accredited by NABT, which the General Manager has refused.

At this stage, learned counsel for the respondent submits that whether such a test was necessary in the facts and circumstances of the case depends on several aspects and involves disputed questions of fact, which cannot be gone into by this Court in the writ jurisdiction. He submits that if the petitioner so desires, it can approach the Civil Court challenging the action of forfeiture and blacklisting.

Hence, reserving liberty to the petitioner to approach the Civil Court, this writ petition is dismissed. In case, petitioner approaches the Civil Court, the observations made on merits will not come in the way of the petitioner urging necessary grounds before the Civil Court.