IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1591 of 2007 (M/S) M/s Ravindra Kumar Gupta & Company through its Proprietor Arvind Gupta R/O 35(25) Civil Lines Roorkee District Haridwar and another. …… Petitioners. Versus Union of India through Secretary Defence, New Delhi and three others. … Respondents. Sri Navneet Kaushik, learned counsel for the petitioners. Sri Arvind Vashist, learned Assistant Solicitor General of India, for the respondents. Date July 28, 2008. Hon’ble B.S.Verma, J. Sri Navneet Kaushik, learned counsel for the petitioners and Sri Arvind Vashist, learned Assistant Solicitor General of India, for the respondents. reliefs:- This writ petition has been filed for the following i. Issue a writ order or direction in the nature of mandamus directing the respondents no. 2 to 4 to renew the enlistment of the petitioner’s firm for the cyclic period 1-1-2006 to 31-12-2010 which the respondents have denied to do without any rhyme and reason and without any sufficient cause. (i)A. Issue a writ order or direction in the nature of certiorari quashing the order dated 25-1-2002 and letter/order dated 14-2-2006 (Annexure 12 & 21) respectively to the writ petition. ii. Issue any other order or direction, which this Hon’ble Court may deem fit and proper under the circumstances of the case. petitioner. iii. Award cost of the petition in favour of the 2 Brief facts, giving rise to the present writ petition, are that the petitioners’ firm was enrolled on the list of contractors to execute civil works with the respondents in M.E.S. Department pertaining to constructions and other ancillary works. Controversy arose when a show cause notice dated 30- 12-1997 was issued to the petitioners from the office of Chief Engineer, Central Command, through Brig. A.S. Gill, in which it was stated that the petitioner had executed the work unsatisfactorily and proceeded with the works without rectification or replacement below specification work in respect of CA No. CEB/DDN/04 of 93- 94, Provn. Of Kendriya Vidyalaya type ‘A’ at Raiwala. It was provided in the notice that in absence of any reply from the petitioner, disciplinary action would be taken against him and it would be deemed that he has nothing to say in his defence. A copy of the show cause notice has been annexed as Annexure-4 to the writ petition. Petitioner Ravindra Kumar Gupta and Company submitted his reply against the show cause notice vide Annexure No. 5 on 13-1-1998. The third respondent after considering the reply of the petitioner came to the conclusion that on account of unsatisfactory performance of the petitioner in the execution of the work under CA No. CEB/DDN/04 of 93-94 Kendriya Vidyalaya Type ‘A” at Raiwala, as mentioned in the letter dated October 10, 1998 and it was ordered that “business dealing with your firm shall be suspended for a period of one year from the date of issue of this letter. No tender shall be issued to you during this period.” A copy of the letter dated 10-10-1998 has been annexed as Annexure-7 to the writ petition. It has been stated in paragraph 12 of the writ petition that the third respondent vide letter dated 22-10-1999 revoked the suspension of the business dealings imposed on the petitioners’ 3 firm by stating “Consequent upon completion of the suspension period, imposed vide this HQ letter referred to above and there being no further disciplinary case pending against your firm, CECC in the capacity of the registering authority has revoked the suspension imposed on your firm with immediate effect.” Thereafter, the petitioner applied for re- enlistment/renewal of his firm for the cyclic period 1st January 2001 to 31st December 2005 by application dated 8-2-2000, but no action was taken. The petitioner also sent a number of letters to the Chief Engineer Central Command vide Annexure No. 11 as mentioned in paragraph no. 16 of the writ petition. The Chief Engineer, HQ Central Command, Lucknow by its letter dated 25-1-2002 (Annexure No. 12) has informed the petitioner that the application of the petitioner for renewal of enlistment for the cyclic period 1-1-2001 to 31-12-2005 has been rejected due to poor performance on the work for provision of Kendriya Vidyaaya at Raiwala under CA No. CEB/DDn/04 of 93- 94. The petitioner sent a letter dated 8-2-2002 intimating the Chief Engineer concerned that the petitioner could not have been punished twice for the same offence as previously the petitioner was punished with suspension of his business dealings for one year, hence for the same reason, the prayer could not have been rejected. Again the petitioner applied for renewal of enlistment of the firm for cyclic period 1-1-2006 to 31-12-2010, but the application of the petitioner was rejected by letter 14-2-2006 (copy Annexure No. 21) sent the third respondent. The relevant extract of the letter reads as under:- “The case of renewal of enlistment for the cyclic period 2001-2005 and 2006-2010 has been considered by the 4 Competent Authority. It has been intimated by HQ C.E Central Command that the renewal of enlistment of your firm for the previous cyclic period 2001-2005 was not done due to serious defects in the work executed by you against CA NO CEB/DDN/04 of 93-94:Provn of KV Type A at Raiwala. Accordingly, the Competent Authority has decided not to renew the enlistment of your firm for the cyclic period 2006-2010 also.” The petitioner has also made representation before third respondent, but no decision has been taken thereon. Supplementary Affidavit has been filed by the petitioner to the effect that the Arbitration Case No. 63 of 2003 and 12 of 2004 which were pending before the District Judge Dehradun have already been decided in favour of the petitioner vide judgment and order dated 30-4-2008 (copy Annexure SA-1). It has been contended that the order passed in Arbitration Case NO. 12 of 2004 Union of India Vs. Ravindra Kumar Gupta goes to show that the objections of the third respondent were dismissed and the award passed by the Arbitrator dated 1-3-2003 in respect of C.A. No. CEB. DDN/04 of 1993-94 in favour of the petitioner was upheld subject to certain modification. Learned counsel for the petitioners has pointed out that the arbitration clause was invoked on the behest of the petitioner firm pertaining to the contract work, i.e. CA No. CEB/DDN/04 of 93-94, Provn. Of Kendriya Vidyalaya Type ‘A’ at Raiwala, for which the enlistment of the petitioner firm was suspended for one year by the registering authority. It was also pointed out that the Arbitrator had held that the design supplied to the petitioner was faulty which led to the defects in execution of work and due to faulty design, the award was made in favour of the petitioners’ firm. 5 On behalf of the respondents, counter affidavit has been filed. The stand taken in the counter affidavit that the documents, which have been filed by the petitioners, are not relevant. It has been submitted that the petitioners have not challenged the order rejecting its enlistment for cyclic period 2001- 2005. In paragraph no. 16, the following averments were made:- “16. That in reply to the contents of paragraph no. 30 of the writ petition it is stated that an appeal had already been filed in Hon’ble High Court Nainital against the decision of District Judge, Dehradun dated 17.3.2005 in the matter of works pertaining to CA No. CEB/DDN/04 of 93-94 “Provn of Kendriya Vidyaaya type ‘A’ at Raiwala during June 2005. Hence again on 14.2.2006, the renewal of enlistment of their firm of cyclic period 2006-2010 was denied on the same ground of serious defects in the work execute.” The learned Assistant Solicitor General appearing on behalf of the respondents has vehemently urged that on the ground of previous bad work, the enlistment of the petitioner firm for the cyclic period 2006-2010 has been refused. He further submitted that so far as the prayer for enlistment for the cyclic period 2001- 2005 is concerned, the same has become infructuous. I have heard learned counsel for the parties and perused the record including the supplementary affidavit and the counter affidavit filed by the parties. The question to be decided by this Court is whether the respondents were justified in refusing the enlistment of the petitioners’ firm for the cyclic firm 2006-2010 on the ground of serious defects in the work executed under CA No. CEB/DDN/04 of 93-94 Provn of Kendriya Vidyalaya Type ‘A’ at Raiwala despite the fact that the business dealing with the petitioners’ firm was 6 suspended for a period of one year by the third respondent vide Annexure No. 7 and in view of the fact that the suspension of the petitioners’ firm was revoked by the third respondent on the ground that since one year period has elapsed and no further disciplinary case was pending against the petitioners’ firm. It finds place to mention here that the third respondent while refusing the renewal of enlistment of the petitioner firm for cyclic period 2006-2010 vide Annexure 21 again took a stand of serious defects in the execution of contract CA No. CEB/DDN/04 of 93-94. It is pertinent to mention that in Annexure No. 12 the following observation has been made by the third respondent:- “Your application for the renewal of enlistment has been examined and it has been decided by the registering authority not to renew your enlistment for cyclic period 01 Jan 2001 to 31 Dec 2005 due to poor performance on the work for provision of Kendriya Vidyalaya at Raiwala under CA No CEB/DDN/04 of 93- 94.” It is thus obvious that the renewal of enlistment of the petitioners’ firm for the cyclic period 2006-2010 has been refused on the ground of poor performance on the work for provision of Kendriya Vidyalaya at Raiwala under CA No. CEB/DDN/04 of 93- 94, while the third respondent himself had revoked the suspension order after expiry of one year period and on the ground that no further disciplinary case was pending against the petitioners’ firm vide Annexure-8. It is also pertinent to mention here that from a bare perusal of the order dated 30-4-2008 of the District Judge Dehradun in Arbitration Case No. 12 of 2004, Union of India Vs. M/s Ravindra Kumar Gupta, which was passed after the case had been remanded in appeal by the High Court on 22-6-2007, it comes out that the Arbitrator has held that the design was faulty and the 7 petitioner was also awarded compensation for the delay in carrying out the work. Because the period of suspension has already elapsed prior to the decision of the award, therefore, at this stage there is no need to address on that point and after the expiry of suspension period, the third respondent himself has revoked the suspension on the ground that there was no disciplinary proceeding against the petitioners’ firm. In view of the discussion made in the foregoing paragraphs, it is clear that no other ground has been taken for refusal of the renewal of enlistment for the cyclic period 2006-2010 except as discussed above. The respondents cannot act arbitrarily de hors the Rules particularly when the registering authority himself had revoked the earlier order of suspension vide Annexure- 8, the principle of estoppel is also applicable against the respondents. The order dated 14-2-2006 (copy Annexure 21) thereby rejecting the renewal of enlistment of petitioners’ firm for the cyclic period 2006-2010 is liable to be set aside. The writ petition deserves to be partly allowed. The writ petition is partly allowed. The order dated 14-2-2006 refusing the renewal of enlistment of the petitioners’ firm for the cyclic period 2006-2010 is set aside. The third respondent is directed to reconsider the application of the petitioners’ firm for renewal of enlistment for the cyclic period 2006-2010 (copies Annexure 20 to the writ petition) ignoring the unsatisfactory performance in execution of the work under CA No. CEB/DDN/04 of 1993-94 Provn. Kendriya Vidyalaya Type ‘A’ at Raiwala. No order as to costs. RCP ( B.S.Verma, J. ) 8 9 10