Universal Tele Service vs The Chief General Manager (Telecom), BSNL Kerala Circle; The Assistant General Manager (Administration), Office of the General Manager (Telecom), BSNL; The Sub Divisional Engineer (Vigilance), BSNL

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA,** ## **1944** ## **WP(C) NO. 26309 OF 2022** ## **PETITIONER/S:** UNIVERSAL TELE SERVICE ST. GEORGE BUILDING, PULAMON (PO), KOTTARAKKARA, KOLLAM DISTRICT, PIN- 691506, REPRESENTED BY ITS PROPRIETOR, RAJESH BABU, AGED 48 YEARS, S/O M.V.BABU, PROPRIETOR, UNIVERSAL TELESERVICES, ST. GEORGE BUILDING, PULAMON (PO), KOTTARAKKARA, KOLLAM DISTRICT, PIN- 691 531. BY ADVS. M.V.THAMBAN R.REJI THARA THAMBAN B.BIPIN ARUN BOSE SUNEESH KUMAR R. ## **RESPONDENT/S:** 1 THE CHIEF GENERAL MANAGER (TELECOM) BHARAT SANCHAR NIGAM LIMITED, KERALA CIRCLE, DOORSANCHAR BHAVAN, PMG JUNCTION, THIRUVANATHAPURAM, PIN- 695 033. 2 THE ASSISTANT GENERAL MANAGER (ADMINISTRATION) OFFICE OF THE GENERAL MANAGER (TELECOM), BHARAT SANCHAR NIGAM LIMITED, SANCHAR BHAVAN, PALAKKAD, PALAKKAD DISTRICT, PIN- 678014. 3 THE SUB DIVISIONAL ENGINEER (VIGILANCE), OFFICE OF THE GENERAL MANAGER (TELECOM), BHARAT SANCHAR NIGAM LIMITED, SANCHAR BHAVAN, PALAKKAD, PALAKKAD DISTRICT, PIN- 678014. BY ADV MATHEWS K.PHILIP ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **09.11.2022, THE COURT ON 16.11.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.26309 of 2022 -2- ## **JUDGMENT** Dated this the 16[th] day of November, 2022 The petitioner firm is primarily engaged in infrastructural maintenance of BSNL. The second respondent issued Ext.P1 notification inviting bids for Infrastructure maintenance for major stations in Palakkad Business Area. Although, the petitioner did not participate in the tender, due to a mistake, the external agency which is usually entrusted for doing tender related works by the petitioners, uploaded the petitioner's credentials along with the tender form submitted by a vendor named S&S Security Agency. After technical and financial evaluation, S&S Security Agency was awarded the contract. Later the contract was cancelled, alleging that the bid documents uploaded were not of the awardee. To the petitioner's surprise, Ext.P2 communication along with Ext.P3 questionnaire was served on him W.P.(C) No.26309 of 2022 -3- alleging that the documents uploaded by the successful tenderer pertains to the petitioner's firm. The petitioner claims to have contacted the third respondent and apprised about M/s.S&S Security Agency having uploaded the petitioner's documents without his knowledge by mistake, since the tender related works of the petitioner and S&S Security Agency is being done by a common external agency. The petitioner was thereafter issued with Ext.P4 show cause notice followed by Ext.P5 proceedings, debarring the petitioner from participating in tenders relating to Palakkad BA for one year. 2. Adv.R.Reji, learned Counsel for the petitioner, contended that insofar as the petitioner did not participate in the subject tender, there cannot be any debarment based on the mistake committed by another person. There is no material to indicate that the petitioner was party to any fraud committed by that bidder. As ## W.P.(C) No.26309 of 2022 -4- such, there is no legal basis for debarring the petitioner from future tenders. It is contended that no proper opportunity was granted to the petitioner for refuting the allegation based on which he is debarred. In this regard, reference is made to Ext.P4 show cause notice wherein the allegation is that, instead of uploading the tender from the petitioner's credentials the tender documents were uploaded using the credentials of another vendor, while debarment is for the reason that the petitioner's documents were uploaded using the credentials of another bidder. The allegations being totally different, the petitioner was denied an opportunity to offer a proper explanation. Relying on the decision in _**Gorkha Security Services v. Govt. of NCT of Delhi**_ _**and others [2014 KHC 4496]**_ , it is contended that the charges ought to be stated specifically in the show cause notice. Finally, it is argued that ## W.P.(C) No.26309 of 2022 -5- the punishment of debarment is highly disproportionate to the alleged misconduct. 3. Adv.Mathews K.Philip, learned Standing counsel for the BSNL contended that petitioner cannot plead innocence since the documents uploaded by S&S Security Agencies were completely filled up and signed (both digitally and manually) by the petitioner. It is therefore evident that the documents were uploaded with the petitioner's knowledge and connivance. As such, the action for debarment is fully justified. Moreover, the petitioner having failed to reply to the first notice and to offer an explanation to the show cause notice, the only presumption possible is that the petitioner is a party to the fraud. 4. There is no dispute to the fact that the petitioner did not participate in the tender. The power to debar is contained in Clause 1(b) and 12(a) of Appendix I to Section IV Part A of ## W.P.(C) No.26309 of 2022 -6- guidelines marked as Ext.R2(a). The clause provides for banning of business with the vendor if there is strong justification for believing that the vendor has been guilty of malpractice such as bribery, corruption, substitution of tenders, interpolation and misrepresentation with respect to the contract in question as the petitioner had not participated in the tender, his debarment in exercise of the power under Clause 12 is illegal. If at all the petitioner is to be imposed with the penalty of debarment based on the alleged misconduct, that can be done only after a detailed enquiry. In this context, there is also merit in the petitioner's contention that the charges were not specifically spelt out in Ext.P4 show cause notice. A reading of Ext.P5 shows that the primary reason for debarring the petitioner is his failure to offer an explanation. Debarment, as far as contractors are concerned, is equivalent to capital ## W.P.(C) No.26309 of 2022 -7- punishment. Therefore, sufficient an opportunity ought to be granted before a decision is taken to black ball a contractor. On careful scrutiny of the documents, I am unable to find such an opportunity having been granted to the petitioner. In such circumstances, Ext.P4 is liable to be interfered with. In the result, the writ petition is allowed. Ext.P5 order of debarment is set aside, without prejudice to the respondent's right to initiate fresh proceedings against the petitioner, if so advised. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.26309 of 2022 -8- ## **APPENDIX OF WP(C) 26309/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PORTION OF THE TENDER NO. ST-IV/TENDER/INFRA MTCE/PKD/ 2021-22/1 DATED 05.01.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit P2 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 19.02.2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P3 TRUE COPY OF THE QUESTIONS ATTACHED TO EXHIBIT P2. Exhibit P4 TRUE COPY OF THE LETTER NO. AGM(A)/GENL/INFRA MAINTENENCE/PGT/ 2021-22/16 DATED 05.04.2022 . Exhibit P5 TRUE COPY OF THE ORDER NO. AGM(A)/GENL/INFRA MAINTENANCE/ PGT/2021-22/21 DATED 05.08.2022. Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 08-08-2022. RESPONDENT EXHIBITS Exhibit R 2(a) Appendix-1 to Section IV Part A guidelines on Action to be taken on Defaulting Vendors Exhibit R2(b) EXHIBIT - R2(B) : TRUE COPY OF THE TENDER SUBMITTED BY M/S S&S SECURITY AGENCY