Theme Engineering Services Pvt. Ltd. & Anr vs National Highways Authority Of India & Ors

,,

Prathiba M. Singh, J",,

This hearing has been done through hybrid mode (physical and virtual hearing).,,

CM APPL. 3306/2021 (for exemption),,

Allowed, subject to all just exceptions. Application is disposed of.",,

W.P.(C) 1173/2021 & CM APPL. 3305/2021 (for interim stay),,

The present petition challenges the debarment order dated 12th January, 2021, arising out of the show-cause notice dated 23rd March, 2020, issued",,

by the Respondent No.1 - National Highway Authority of India (hereinafter, “NHAIâ€), vide which the earlier debarment issued on 1t7h",,

December 2020, for a period of two years, has been reduced to a period of six months.",,

The brief background is that on 30th April 2019, tenders were invited by the Respondent- NHAI, for Supervision Consultancy Services for",,

Authority's Engineer for Construction supervision of Balance work of 4 laning of Ranchi-Rargaon- Mahulia section from 114.00 to km 277.568 of,,

NH-33 in the State of Jharkhand. In response to the same, the Petitioner herein, submitted its bids on 20th June, 2019. It identified and submitted",,

Curriculum Vitae’s (hereinafter, “CV’sâ€) of ten shortlisted professionals, as its key managerial personnel, who would work as consultants",,

in the above project. The Respondent- NHAI issued a letter of award of successful bidder to the Petitioner on 23rd August 2019. Subsequently, on",,

24th September, 2019, the Respondent No. 1- NHAI and the Petitioner entered into a contract with respect to the said project.",,

According to Mr. Amit Sibal, ld. Senior Counsel appearing for the Petitioner, the said CVs were identified and shortlisted by the Petitioner on the",,

basis of what was uploaded by the said consultants on Respondent no.3’s portal, as is required by NHAI. It was subsequently revealed that out of",,

the ten CVs which were uploaded, two CVs, in respect of two of the personnel who were shortlisted, had incorrect information to the extent that a",,

period of one and a half years which was shown as experience by the said personnel with two separate entities, was incorrect. The said entities had",,

informed the Petitioner, after the bid was awarded, that these two individuals never worked with them. Accordingly, this fact was brought to the",,

notice of Respondent- NHAI by the Petitioner itself, vide letter dated 16th October, 2019. This led to the issuance of a letter dated 18th December",,

2019 vide which, NHAI accepted the request for replacement of the said two personnel. It is stated that at that stage, there was no communication by",,

the NHAI with respect to the debarment of the Petitioner.,,

Thereafter, on 23rd March 2020, a show-cause notice letter was issued by NHAI, listing various alleged breaches by the Petitioner, and seeking a",,

response as to why action, amounting to debarment of the Petitioner for a period of two years, ought not to be taken. The said show- cause notice",,

was preliminarily replied to by the Petitioner vide letter dated 24th March 2020, where the Petitioner requested for an opportunity to meet in person",,

and make a detailed explanation before NHAI. However, the order of debarment, dated 17th December, 2020, was passed debarring the Petitioner",,

for a period of two years from participating in tenders issued by NHAI. The said debarment order was under challenge in WP(C) No. 11167/2020,",,

titled Theme Engineering Services Private Ltd. v. National Highway Authority of India, in which an interim order, dated 24th December 2020, was",,

passed by the ld. Single judge of this court. The operative portion of the said order reads as under:-,,

“1. One of the grievance of the petitioner is that the impugned Show Cause Notice was issued just at the outset of the lockdown declared,,

by the Central Government. In the reply dated 24.03.2020 submitted by the petitioner to the Show Cause Notice, the petitioner had",,

highlighted its handicap in submitting a proper reply to the respondent on the Show Cause Notice. The Impugned Order has, however, been",,

passed without granting any further opportunity to the petitioner.,,

The learned senior counsel for the respondent submits that the respondent could have always submitted a supplementary reply, if so",,

advised, to the Show Cause Notice after the lockdown was lifted and the respondent had no option but to proceed with the consideration of",,

the Show Cause Notice resulting in the Impugned Order.,,

Be that as it may, keeping in view the handicap that was expressed by the petitioner in its reply to the Show Cause Notice, the respondent",,

shall grant an opportunity of hearing to the petitioner, without prejudice to its rights and contentions. The petitioner shall be entitled to",,

submit a supplementary response to the Show Cause Notice within a period of one week from today. The respondent shall thereafter grant a,,

hearing to the petitioner within a period of two weeks and communicate its decision to the Court by way of an affidavit.,,

List on 27th January, 2021.â€​",,

Pursuant to the above order, a hearing was granted to the Petitioner by the Respondent, and finally vide the impugned order dated 12th January",,

2021, the debarment period of two years has been reduced to six months. The said order upheld the debarment of the Petitioner but reduced the",,

period from two years to six months. In the meantime, vide order dated 21st January, 2021, the earlier writ petition - WP(C) No. 11167/2020 has been",,

withdrawn by the Petitioner with liberty to approach this court. Hence the present writ petition challenging the order dated 12th January 2021.,,

Mr. Amit Sibal, ld. Senior Counsel appearing for the Petitioner, submits that the mistake of the two managerial personnel, and them furnishing false",,

information on their CV’s, cannot be attributed to the Petitioner. The Petitioner, in fact voluntarily disclosed the information which it had collected",,

in respect of the incorrect claim of experience made by the said two personnel. He submits that under such circumstances, after having accepted the",,

said communication and having conveyed the approval for replacing the said two personnel, issuance of the show- cause notice and the order of",,

debarment, debarring the Petitioner on the said ground, is not valid in law. He also relies on the policy of the Respondent issued in 2020 to the effect",,

that if there is any incorrect information that is furnished, then the consequences were to be faced by the personnel and not the company, which is a",,

third party bidder.,,

Mr. Sudhir Nandrajog, ld. Senior Counsel appearing for the Respondent No. 1- NHAI on the other hand, submits that the issue is not limited only to",,

the CV’s and experience claimed by the two managerial personnel, but also involves various other deficiencies in the services rendered by the",,

Petitioner.,,

Heard ld. Senior Counsels appearing for the parties. Insofar as the impugned debarment order dated 12th January 2021 is concerned, the operative",,

portion of the same reads as under:,,

S. No.,Type of Default,Action to be taken

2,"At any stage, if the CV of key personnel is

found to be inflated/ false & the experience

is claimed with a firm other than the bidder.","(i)…….

(i) After Commencement of AE & IE Contracts: Ke

personnel to be blacklisted for a period of 3 years

Monetary penalty to be imposed as per clause 9 of the GCC

on Fake CVs.