M/S Kulja Industries Ltd vs Chief Gen.Manager W.T.Proj.Bsnl & Ors

5. The respondent-BSNL on the other hand has a different story to tell. According to it four of its officers had abused their official position and fraudulently generated 'voucher numbers' on the duplicate and triplicate copies of the bills submitted by the appellant to facilitate payments as if the said bills were genuine thereby causing wrongful loss to the respondent- BSNL and a corresponding gain to the appellant. There was in this process an excess payment of Rs.7.98 crores made and credited to the account of the appellant by the accounts officer of respondent-BSNL.

7. What is important for the present is that by a letter dated 21st April, 2010, BSNL blacklisted the appellant permanently on the ground that the appellant had committed gross misconduct and irregularities by receiving excessive payments amounting to Rs.7,98,55,508/- from BSNL thereby wrongfully causing loss to the said company. The appellant denied these allegations, inter alia, contending that BSNL Policy/Manual did not provide for punitive action in the nature of blacklisting and that excess payment at best was an irregularity which had been cured by refund of the amount in question. The appellant also alleged that reconciliation of accounts revealed that the appellant was entitled to an amount, far in excess of the payments received by it. That assertion was repeated in a legal notice sent by the appellant-company but since BSNL took no corrective action in terms of the reconciliation, W.P. No.4536 of 2010 was filed before the High Court of Judicature at Bombay in which it assailed the blacklisting order. The High Court allowed the petition on the short ground that the appellant had not been afforded any opportunity of being heard before the blacklisting order was issued by the respondent. The High Court did not go into the merits of the dispute but reserved liberty to the appellant to raise all such contentions as were open to it if and when BSNL issued a show cause notice for blacklisting it again. The BSNL was left free to pass a fresh order and take a final decision in the matter within six weeks from the date of the issue of the show cause notice.

8. A show cause notice was accordingly issued by BSNL on 4th November, 2010 to which the appellant filed a reply. The appellant was also called for a personal hearing in support of its reply to the show cause notice as directed by the High Court. By an order dated 15th January, 2011 BSNL once again directed the blacklisting of the appellant, inter alia, holding that the appellant had defrauded BSNL by using duplicate and triplicate copies of the bills that stood already cleared for payment. These bogus and fraudulent claims made under bogus and fabricated bills were then processed by some of the officers of the BSNL for payment resulting in double and at times triple payment in favour of the appellant. The relevant portion of the blacklisting order is to the following effect:

((h) Whether contractor has cooperated fully with the government agencies during the investigation and any court or administrative action.

22. As regards the period for which the order of debarment will remain effective, the guidelines state that the same would depend upon the seriousness of the case leading to such debarment.

23. Similarly in England, Wales and Northern Ireland, there are statutory provisions that make operators ineligible on several grounds including fraud, fraudulent trading or conspiracy to defraud, bribery etc.

27. In the result, we allow this appeal, set aside the order passed by the High Court and allow writ petition No.2289 of 2011 filed by the appellant but only to the extent that while the order blacklisting the appellant shall stand affirmed, the period for which such order remains operative shall be determined afresh by the competent authority on the basis of guidelines which the Corporation may formulate for that purpose. The needful shall be done by the Corporation and/or the competent authority expeditiously but not later than six months from today. The parties are left to bear their own costs.