Allowed

Indicon Westfalia Ltd. v. Oil and Natural Gas Corporation Ltd. and 2 Ors. (B)

Gauhati HC12 Sept 2018WP(C)/2208/2018

Case brief

AI extract

What is this about?

This order disposed of a review petition and quashed a stop-work notice issued by the Oil and Natural Gas Corporation. The court held that the notice was an impermissible continuation of a prior notice already quashed and that the petitioner had been cleared from the holiday list, rendering the new order without basis.

What did the court decide?

The impugned show-cause notice dated 26.10.2017 was set aside and quashed as it was an impermissible continuation of the earlier quashed notice.

Indicon Westfalia Ltd. Vs Oil and Natural Gas… — Company and Corporate | Gauhati HC (2018)

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GAHC010069262018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2208/2018

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1:INDICON WESTFALIA LTD.

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FORMERLY NAMED AS INDICON ENTERPRISES LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMANIES ACT, 1956 AND HAVING ITS REGD. OFFICE AT THAPAR HOUSE, 25, BRABOURNE ROAD, KOLKATA, REP. BY SRI TRIDIB MITRA, MANAGER-MARKETING OF THE COMPANY.

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VERSUS

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1:OIL AND NATURAL GAS CORPORATION LTD. AND 2 ORS. (B) A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIWS ACT, 1956, IONTER ALIA, CARRYING ON BUSINESS FROM CACHAR FORWARD BASE, SRIKONA, SILCHAR, ASSAM

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2:DEPUTY GENERAL MANAGER ENGINEERING AND TECHNOLOGY CACHAR FORWARD BASE SILCHAR OIL AND NATURAL GAS CORPORATION LTD. HAVING HIS OFFICE AT CACHAR FORWARD BASE SRIKONA SILCHAR ASSAM

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3:GENERAL MANAGER (E)- ENQUIRY OFFICER ASSAM ARAKAN FOLD BELT EXPLORATTORY ASSET SILCHAR OIL AND NATURAL GAS CORPORATION LTD. SILCHAR ASSA

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Advocate for the Petitioner : MR S DUTTA

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Advocate for the Respondent : MR G N SAHEWALLA

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Linked Case : Review.Pet. 8/2018

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1:OIL AND NATURAL GAS CORPORATION LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 INTER ALIA CARRYING ON BUSINESS FROM ASSAM ARAKAN FOLD BELT EXPLORATORY ASSET (EARLIER CACHAR FORWARD BASE) SRIKONA SILCHAR ASSAM 788026 2: DEPUTY GENERAL MANAGER E AND T ASSAM ARAKAN FOLD BELT EXPLORATORY ASSET (EARLIER CACHAR FORWARD BASE) OIL AND NATURAL GAS CORPORATION LTD. HAVING ITS OFFICE AT CACHAR FORWARD BASE SRIKONA SILCHAR ASSAM 788026 VERSUS

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1:INDICON ENTERPRISES LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 AND HAVING ITS REGISTERED OFFICE A THAPAR HOUSE 25 BRABOURNE ROAD KOLKATA 700001 2:PRAKASH JOSHI COMPANY SECY. INDICON ENTERPRISES LTD. THAPAR HOUSE 25 BRABOURNE ROAD KOLKATA 700001

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3:GMS SHIPPING AND CONTAINERS PVT. LTD.

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A CO. INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 AND HAVING ITS REGISTERED OFFICE AT 92E RASH BEHARI AVENUE KOLKATA 700026

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Advocate for the Petitioner : MR G N SAHEWALLA Advocate for the Respondent : MR. S DUTTA

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BEFORE

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HON'BLE THE CHIEF JUSTICE (ACTING)

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ORDER

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Date : 12-09-2018

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Heard Mr. S. Dutta, learned Senior counsel, appearing for the review petitioner. Also heard Mr. G. N. Sahewalla, learned Senior counsel, appearing for the respondent Nos. 1, 2 and 3 as well as Mr. S. N. Krishnatraya, learned counsel appearing for respondent No. 4.

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This writ petition is filed challenging an order dated 26.10.2017, which is in continuation of, amongst others, the Show-cause notice issued to the writ petitioner on 28.05.2014. Challenging the said Show-cause notice dated 28.05.2014, the present petitioner, as petitioner No. 1, had approached this court earlier by filing a writ petition, which was registered as WP(C) 3524/2014. The said writ petition was disposed of on 29.09.2016 by the following order:

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“Heard Mr. S. Dutta, learned senior counsel for the petitioner. Also heard Mr. G. N. Sahewalla, learned senior counsel appearing for the respondent Nos. 1 and 2 as well as Mr. S.M. Krishnatraya, learned counsel appearing for the respondent No .3.

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It is not disputed by the learned counsel for the parties that the writ petition is surviving only with regard to challenge made to the show-cause notic e dated 28.05.2014.

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The petitioners were issued letter of award for supply of SKID Mounted Bunk Houses (Qty. 70 nos.) against e-tender No. S24BC12003 vide LOA No.SLC/ MM/Bunk House/2011 dated 23.8.2012. Based on the above, Purchase Order No.4010067140 dated 24.09.2012 for 70 nos. of Bunk Houses under tender No.S24BC12003 was issued to the petitioners. Show-cause notice dated 28.05.2014 was issued on the subject ct of aforesaid Purchase Order No.4010067140 dated 24.09.2012.

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It is submitted by Mr. Dutta that because of an enquiry in connection with the

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aforesaid show-cause notice, 20% dues payable to the petitioners was withheld and to substantiate the said submission, Mr. Dutta has drawn the attention of the Court to the letter dated 16.08.2016 (Annexure-3) and letter dated 17.06 .2015 (Annexure-5) of the affidavit-in-reply dated 29.09.2016 filed by the writ petitioners against the additional affidavit filed by the respondent Nos. 1 and 2.

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Mr. G. N. Sahewalla, learned senior counsel for the respondent Nos. 1 an d 2 has submitted that the writ petition is rendered infructuous. To substantiate the above, the learned senior counsel has drawn the attention of the Court to paragraphs 5 and 6 of the additional affidavit (without annexure portion ) filed by the respondent Nos. 1 and 2 on 01.09.2016. The same read as follows:

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‘5. That the deponent say that in pursuance to the issuance of Show cause dated 28-5-2014 issued by the DyGm (E&T), CFB Silchar (Annexure ’AA’ to the writ petition) enquiry was conducted and on submission of the inquiry report, the Competent authority of the Respondent Corporation has decided not to put the writ petitioner namely M/s Indicon Enterprise Ltd, Kolkata on holiday for the case pertaining to ONGC Silchar. On the basis of the said decision of the Competent authority of the Respondent Corporation, the DGM (MM) of the Respondent Corporation (Cachar Forward Base) vide his letter bearing No.SLC/MM/Bunk House/001/2013-14 dated 23-3-2016 in continuation of his earlier letter bearing No.SLC/MM/Bunk House/001/ 2013-14/ dated 28-4-2014 (Annexure:- A) informed the PMC in terms of Para graph 1.7.5.2 (j) of IMMM for removal of the name of the writ petitioner from the list of firms with whom business dealings have been suspended appearing on the website. The unblocking of the name of the writ petitioner is appearing at Sl. No.78.

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That the deponent say that the enquiry report having been submitted in pursuance to the Show cause dated 28-5-2014 issued by the DyGM (E&T), CFB Silchar (Annexure ’AA’ to the writ petition) and the competent authority of the Respondent Corporation having taken a decision not to put the writ petitioner namely M /s Indicon Enterprise Ltd, Kolkata on holiday for the case pertaining to ONGC Silchar, the writ petitioner’s prayer in the writ petition to the effect ’As to why a writ in the nature of Certiorari should not be issued to quash the show

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cause notice dated 28th May, 2014 (Annexure- ’AA’)’ as on date has become redundant. It is further stated that the consequential prayer of the writ petitioner as prayed in the writ petition has also become redundant.’

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From the aforesaid averments, it is clear that show-cause notice dated 2 8.05.2014 has spent its force as the show-cause notice was issued asking the petitioners to show-cause as to why banning action shall not be taken against them. The averments made in paragaraph-6 makes it abundantly clear that the decision had been taken not to put the petitioners on holiday list based on the enquiry report submitted to the show-cause notice dated 28.05.2014.

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In view of the above, there is no surviving cause of action in the writ petition as the grievance of the petitioners with regard to show-cause notice dated 28.05.2014 has been redressed. However, it is also noticed by the Court that because of an enquiry relating to the aforesaid show-cause notice, 20% of the amount due and payable to the petitioners was not paid. Now that the enquiry had been completed and the decision had been taken not to pursue the notice dated 28 .05.2014, the respondent No.1 and 2 will make payment of the balance amount which is due and payable to the petitioner within a period of 2 months.

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Writ petition is accordingly disposed of in the above terms. No cost.”

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A review petition was filed by respondent Nos. 1 and 2 of WP(C) 3524/2014 on 06.12.2017 against the said order dated 29.09.2016, which was registered as Review Petition No. 8/2018. The review petition was filed with the following prayers:

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“In the premises aforesaid, the petitioner prays that this Hon’ble Court may be pleased to pleased to pass an appropriate order(s) reviewing the judgement/order dated 29.09.2016 by allowing the Review Petitioner to re-enquire afresh into the Show cause notice dated 28.05.2014 to come to a decision as to whether the respondent No. 1/writ petitioner is to be put on holiday list or not and/or pass such further or other order/orders as Your Lordships may deem fit and proper in the facts and circumstances of the case.”

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By an order passed today, the said review petition was dismissed.

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Even before filing of the review petition, the Show-cause notice dated 26.10.2017 had

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been issued in continuation of the Show-cause notice dated 28.05.2018 contrary to the explicit stand taken by the respondent corporation in the writ proceeding that the writ petition had become infructuous as the competent authority of the respondent corporation had decided not to put the writ petitioner on holiday.

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The respondent corporation, in the considered opinion of the court, had over-reached the order of the court by issuing the Show-cause notice dated 26.10.2017 in continuation of the Show-cause Notice dated 28.05.2014.

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In view of the above, the impugned notice dated 26.10.2017 is set aside and quashed.

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Writ petition stands allowed and disposed of.

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CHIEF JUSTICE (ACTING)

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Comparing Assistant

Indicon Westfalia Ltd. v. Oil and Natural Gas Corporation Ltd. and 2 Ors. (B)

Case brief

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Indicon Westfalia Ltd. v. Oil and Natural Gas Corporation Ltd. and 2 Ors. (B)

Case brief

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