Quashed

M/S Dritu Enterprise v. the State of Assam and 2 Others

Gauhati HC10 Jun 2025WP(C)/2731/2025

Case brief

AI extract

What is this about?

The High Court quashed a debarment notice issued to a bidder for submitting a fabricated authorization certificate, holding that the prior notice seeking an explanation did not constitute a Show-Cause Notice for debarment. The Court allowed liberty to the respondents to issue a fresh notice in accordance with natural justice.

What did the court decide?

Impugned debarment notice set aside; liberty granted to issue a fresh notice if debarment is proposed.

M/S Dritu Enterprise Vs the State of Assam… — Public Procurement and Tenders | Gauhati HC (2025)

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Page No.# 1/5

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GAHC010102962025

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THE GAUHATI HIGH COURT

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

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Case No. : WP(C)/2731/2025

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M/S DRITU ENTERPRISE

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REP BY SAMIN HAZARIKA, KAMRUP METRO, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 2 OTHERS

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REP BY THE COMMISSIONER AND SECRETARY, FINANCE DEPARTMENT, GOVT OF ASSAM, GUWAHATI, ASSAM

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2:THE ASSAM SOCIETY FOR COMPREHENSIVE FINANCIAL MANAGEMENT SYSTEM AS-CFMS

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REP. BY THE PROJECT DIRECTOR

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3:THE JOINT SECRETARY

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TO THE GOVT. OF ASSAM

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FINANCE DEPARTMENT AND I/C ADDL. PROJECT DIRECTOR AS-CFM

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Advocate for the Petitioner : B BURAGOHAIN, MS D DUTTA,MR. P J SAIKIA

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Advocate for the Respondent : SC, FINANCE,

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BEFORE

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HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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11.06.2025

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Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Additional Advocate General, Assam for all the respondents.

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The petitioner prays that a direction should be issued to the respondents to cancel/rescind/withdraw the impugned debarment notice dated 09.01.2025 issued by the respondent no.3 or set aside the said notice, which debars the petitioner firm from participating in all future procurements to be undertaken by the Finance Department for a period of 3 (three) years.

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The contents of the debarment notice dated 09.01.2025 is reproduced hereinbelow, as follows :

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“ DEBARMENT NOTICE 09.01.2025

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Subject: Debarment of M/s Dritu Enterprise, Survey, Beltola-Basistha Road, Guwahati-781028, Assam, India for a period of three years u/s 11(3)(f) and 46(3) of APP Act. 2027.

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It is brought to the notice of all that M/s Dritu Enterprise was selected in a tendering process through GeM (Tender Reference No. GEM/2023/8/3574120) for the Supply Scientific Instruments and Related Service for Modernization of Assam Excise Chemical Laboratory at Guwahati Bio Tech Park for Package no. 1 and 8 for an amount of INR.63,58,281.13 (excluding taxes).

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However, before signing the contract a complaint was received against M/s Dritu Enterprise regarding the provision of a fake authorization certificate along with the bid with a clear intention to mislead and deceive the Evaluation Committee. In this context, an explanation was sought via letter number ASPIRe/ECF/239653 and in response, M/s Dritu Enterprise tendered an apology admitting the allegation of submission of fake certificate vide an emall.

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This is found to be a clear case of breach of code of integrity as per Section 11(2)(a) (ii) & Section 11(2) (vill) (a) of APP Act, 2017.

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Therefore, u/s 46(3) and 11(3)(f) of Assam Public Procurement Act, 2017, M/s Dritu Enterprise, is hereby debarred from participating in all future procurement to be undertaken by Finance Department for a period of 3 years from the date

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of issue of the notice.”

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The petitioner’s counsel submits that no reasonable opportunity was given to the petitioner prior to issuing the debarment notice dated 09.01.2025. He further submits that in terms of Section 46(5) of the Assam Public Procurement Act, 2017 (hereinafter referred to as the “Act”), the State Government or a procuring entity is mandatorily required to give a reasonable opportunity of being heard to the petitioner prior to blacklisting/debarring a person/bidder. However, as no prior notice was given to the petitioner, prior to debarring the petitioner, the impugned debarment notice dated 09.01.2025 has to be set aside.

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Mr. B. Gogoi, learned Additional Advocate General, Assam, on the other hand submits that the petitioner as a bidder was required to submit an authorization letter for offering goods and services pursuant to the GeM bid no. GEM/2023/B/3574120 dated 15.06.2023 in terms of Clause 21(ii)(b) of the General Terms and Conditions on GeM 4.0 (Version 1.10). However, the petitioner had submitted a fabricated authorization letter allegedly issued by Agilent Technologies along with it’s bid document. On learning that the petitioner had submitted a fabricated document, an explanation letter dated 03.11.2023 was issued to the petitioner by the respondent no.1, requesting the petitioner to provide an explanation with regard to the authorization letter submitted by the petitioner, as Agilent Technologies had denied issuing the said letter to the petitioner. The petitioner thereafter, vide it’s reply dated 07.11.2023, had impliedly admitted that the authorization letter was fabricated,

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inasmuch as, the petitioner submitted that they were unable to secure the necessary authorization letter within the timeframe. Accordingly, when there has been an admission by the petitioner that the petitioner submitted a fake authorization certificate, the requirement of giving the petitioner an opportunity of hearing prior to the issuance of the impugned debarment notice dated 09.01.2025 does not arise. Mr. B. Gogoi submits that no prejudice has been caused to the petitioner by not issuing a notice for debarment prior to the impugned debarment notice dated 09.01.2025.

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I have heard the learned counsels for the parties.

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The facts of the case show that the petitioner was issued a notice dated 03.11.2023, requiring the petitioner to explain the authorization letter allegedly issued by Agilent Technologies to the petitioner, which Agilent Technologies had denied issuing to the petitioner. The petitioner in it’s reply dated 07.11.2023 had admitted that they were unable to secure the necessary authorization letter from Agilent Technologies. The debarment notice was thereafter issued, due to the admission made by the petitioner for having submitted a fake authorization certificate.

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The question to be decided is whether the petitioner could have been debarred in the absence of any notice being issued to the petitioner, stating that there was a proposal to debar/blacklist the petitioner, after giving specific reasons for the proposal that was sought to be made by the respondents.

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On perusing the impugned notice/letter dated 03.11.2023, this Court finds that no proposal or intention of the respondents can be made out, to the effect that they intended to debar/blacklist the petitioner.

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In the case of Gorkha Security Services vs Govt. of NCT of Delhi & Others, reported in (2014) 9 SCC 105 , the Supreme Court has held that in order to fulfill the requirement of principles of natural justice pertaining to debarment/blacklisting, a Show-Cause Notice should meet the following two requirements, (i) the materials/grounds to be stated which according to the department necessitates an action and (ii) particular penalty/action which is proposed to be taken. In the present case, no prior notice was issued to the petitioner to the effect that the penalty of debarment was being proposed to be taken against the petitioner. Further, in the notice dated 03.11.2023, it cannot be discerned that the penalty of debarment was going to be inflicted.

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In view of the above reasons, the impugned debarment notice dated 09.11.2025 is not sustainable, as the same is not in consonance with the requirements to be stipulated in a notice for debarment, in terms of the judgment of the Supreme Court in the case of Gorkha Security Services (supra) . The same is accordingly set aside. However, liberty is given to the respondents to issue a notice afresh to the petitioner, if they propose to inflict the penalty of debarment against the petitioner.

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The writ petition is accordingly disposed of.

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JUDGE

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M/S Dritu Enterprise v. the State of Assam and 2 Others

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M/S Dritu Enterprise v. the State of Assam and 2 Others

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