M/S Pranjal Bp Gohain Vs the Union of India and 4 Ors.

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GAHC010175152024

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2025:GAU-AS:11018

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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)/4430/2024

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M/S PRANJAL BP GOHAIN PROPRIETOR OF MR. PRANJAL BORPATRA GOHAIN, S/O- SRI ROMEN BORPATRA GOHAIN, R/O- B.G. ROAD, NEAR BRAHMAPUTRA HOTEL AND EAST POINT HOSPITAL, SIVASAGAR, P.O., P.S. AND DIST. SIVASAGAR, ASSAM

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VERSUS

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THE UNION OF INDIA AND 4 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF PETROLEUM AND NATURAL GAS, NEW DELHI.

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2:THE OIL AND NATURAL GAS CORPORATION LTD.

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EASTERN REGION REPRESENTED BY THE E.D. ASSET MANAGER P.O. NAZIRA DIST. SIVASAGAR ASSAM

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3:THE CHIEF GENERAL MANAGER HEAD MM ASSAM ASSET ONGC (L) CONTRACT CELL ROB-II 1ST FLOOR NAZIRA ASSAM PIN- 785685.

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4:THE GENERAL MANAGER

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MATERIAL MANAGEMENT (MM) LOGISTICS DEPARTMENT ONGCL ASSAM ASSET NAZIRA SIVASAGAR ASSAM PIN- 785685. 5:THE MANAGER MATERIAL MANAGEMENT (MM) ONGCL (LOGISTICS) ASSAM ASSET NAZIRA ASSAM PIN- 785685

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For the petitioner : Mr. L. N. Dihingia, Advocate

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For the respondents : Mr. S. Chakraborty, Advocate

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BEFORE

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HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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Date of Hearing : 19.08.2025 Date of Judgment : 19.08.2025

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. L. Dihingia, the learned counsel appearing on behalf of the petitioner and Mr. S. Chakraborty, the learned counsel appearing on behalf of the ONGC.

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By the present writ petition, the petitioner herein has assailed the communication dated 16.01.2024 whereby the contract with the petitioner was terminated; the communication dated 22.08.2024 putting the petitioner on

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holiday thereby debarring the petitioner from taking part in any ongoing or future contract with the Respondent ONGC as well as seeking further consequential directions.

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MATERIAL FACTS:

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The case of the petitioner herein as would appear from the materials on record is that the Respondent No.2 had issued an Invitation to Bid for hiring of 9 KL Water Tanker Service for Assam Asset for a period of three years through its e-procurement site https://etender.ongc.co.in, under a two-bid system.

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It is relevant to take note of that in the Invitation to Bid, the period of the sale of the bidding document was mentioned from 12.02.2023 [10:00 hours] to 06.03.2023 [up to 13:59 hours]. The date and time of submission of the bid in the e-portal of ONGC was on or before 14:00 hours [IST] of 06.03.2023. The technical bid was to be opened on 03.06.2023 at 15:00 hours [IST] and the last date for submission of the physical documents was up to 14:00 hours [IST] of 06.03.2023. The said Invitation to Bid contained various parts in the form of Annexure-I, Annexure-II, Annexure-III, Annexure-IV, Annexure-IVA, Annexure-V and Annexure-VI.

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Annexure-IV to the Invitation to Bid pertained to Bid Evaluation Criteria. In terms with Clause B.1.4, there were three categories of water tankers to be offered. Category-I related to those water tankers owned and registered in the name of the Bidder, i.e. the existing water tanker. Category-II

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were in relation to those bidders where water tankers were to be purchased new and Category-III were in relation to those bidders where water tankers were under lease agreement from the registered owners.

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Clause C.7 is a relevant Clause for the purpose of the present proceedings. The said Clause stipulates the conditions when the same rate is received from different bidders. In terms with the said Clause, the ONGC would evaluate and rank the bids on the basis of three criteria for that particular category of water tankers. The criteria were :

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(i) The vintage of the offered water tanker, i.e. the latest vintage would be given preference.

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(ii) The minimum mobilization time quoted for the offered water tanker. It is further categorically mentioned in respect to this criteria that if the bidder fails to mobilize the water tanker within the quoted mobilization days, the Notification of Award would stand automatically cancelled, and in such cases, the next qualified bidder as per the originally evaluated order of ranking shall be considered for issuing of the Letter of Intent (LoI)/Notification of Award (NOA). This condition incorporated in the second criteria, for the sake of convenience would be referred to as “the second part of Clause C.7.(ii)”.

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(iii) The experience of the bidder.

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Clause C.7 being relevant is reproduced herein under:

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“ C.7 In case same rate is received from different bidders, ONGC will evaluate and rank the bids on the basis of following criteria for that particular type of water tankers in the

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following order of preference:

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i) Vintage of the offered water tanker. Latest vintage will be given preference.

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ii) Minimum Mobilization time quoted for the offered water tanker.

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However, in case the bidder fails to mobilize the water tankers within the quoted mobilization days, the NOA will stand automatically cancelled. In such case next qualified bidder as per originally evaluated order of ranking shall be considered for issue of LOI/NOA.

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iii) Experience of the bidder: Bidder having more length of experience will be given preference over the bidder having less length of experience.”

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Taking into account the dispute involved, this Court finds it pertinent to take note of another relevant Clause. Annexure-IVA which is a part of the Invitation of Bids is in relation to the techno-commercial matrix. Clause C.2 of Annexure-IVA relates to the bid submission matrix. Clause C.2 being relevant is reproduced herein under:-

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“ C.2 The bids will be evaluated based on calculated lowest Monthly Outgo (L1) as per prices quoted by the bidders in the schedule of rates given in the tender for the Water Tanker. The monthly outgo will be calculated as under:

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Calculated monthly outgo = (Quoted daily standby charge per water tanker inclusive of GST x 26) + (Quoted running rate per KM inclusive of GST x 3800 KM)

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Bidders to note that Quoted daily standby charges exclusive of applicable GST per tanker should not be less than Rs. 2,224.42.

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Bidder to note that quoted Basic running rate per KM exclusive of applicable GST should not be less than 0.275 X Diesel rates declared by IOC for Sivasagar as on TBO date.”

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The relevance of the above Clause is only on the aspect that the ONGC had incorporated a viable range to the rates to be quoted thereby stipulating that the basic running rate per kilometre exclusive of applicable GST should not be less than 0.275 X Diesel rates declared by IOC for

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Sivasagar as on the technical bid opening date.

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As stated above, the technical bid opening date was fixed on 06.03.2023 as per the Invitation of Bid. Upon a reading of Clause C.2 of Annexure-IVA, it appears that the bidder's bid would be rejected if the bidder quoted the basic running rate per kilometre exclusive of GST below 0.275 X the Diesel rates declared by the IOC for Sivasagar on 06.03.2023.

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It is further pertinent herein to take note of that one of the participating bidders, namely, Mahmud Ali challenged the rejection of his bid on the ground that he had quoted less than what is stipulated in Clause C.2 as above quoted. The said writ petition was registered and numbered as WP(C) No.5870/2023.

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Upon filing of the said writ petition being WP(C) No.5870/2023 by the petitioner therein, this Court passed an order dated 04.10.2023 that till 16.10.2023, the Respondent IOCL Authorities shall not undertake any further process in terms with the price bid opening statement dated 26.09.2023. It appears that the reference made in the interim order “respondent IOCL authorities” ought to have been “the respondent ONGC authorities” as would appear from the very tenor of the order dated 04.10.2023. Be that as it may, the order dated 04.10.2023 was passed in presence of the learned counsels appearing for the Respondent ONGC.

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It is also apparent from the records that subsequently the mistake in the order dated 04.10.2023 was corrected vide an order dated 10.11.2023. Another interesting aspect pertaining to the order dated 10.11.2023 was that this Court observed that without going into the determination as to whether the work order was issued or not, it was clarified the expression 'shall not undertake any

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further process' shall mean that if the work order was not issued as on 04.10.2023, the same shall not be issued and if issued, it shall not be acted upon. The learned Coordinate Bench in the order dated 16.10.2023 also observed that the interim order dated 04.10.2023 shall be in respect of only those tenders where the petitioner had participated.

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Before proceeding further, this Court finds it very pertinent to refer to a submission made by the learned counsel appearing on behalf of the Respondent ONGC while drawing the attention of this Court to the order dated 10.11.2023. The learned counsel submitted that the interim order dated 04.10.2023 was only in respect to only those bids which the petitioner in WP(C) No.5870/2023 had submitted. The said aspect shall be dealt with at a subsequent stage of this judgment.

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Moving forward, it is very pertinent to observe that the petitioner in the present proceedings along with 4 other bidders were issued Notifications of Award on 04.10.2023. At this stage, this Court finds it apposite to note the effect of the order dated 10.11.2023 to the Notifications of Award dated 04.10.2023 which were issued in favour of the petitioner as well as the 4 other bidders. Simply put, the effect as it appears to this Court is that the Notification of Awards so issued could not have been acted upon. There was also no further clarification sought for in respect to the order dated 10.11.2023 by either of the parties in WP(C) No.5870/2023. However, a question begs consideration in respect to the observation made in the order dated 10.11.2023 passed in WP(C) No.5870/2023, whereby the learned Coordinate Bench observed that the interim order dated 04.10.2023 shall only be applicable to the tenders submitted

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by the petitioner in WP(C) No. 5870/2023.

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It is relevant to take into consideration that there was only one tender where the bidders could bid for as many as eight tankers. The Petitioner in WP(C) No.5870/2023 had submitted his bid for two tankers and the observation so made in the order dated 10.11.2023 that the interim order dated 04.10.2023 shall only apply to the tenders submitted by the Petitioner in WP(C) No.5870/2023 appears to this Court that the interim order would be applicable in respect to the two tankers out of the eight tankers. Now the question arises as to how the said interim order dated 10.11.2023 had to be reconciled taking into account that in the tender process which was initiated, it related to procurement of 8 tankers and there was no clarification sought for in respect to which Notification of Awards. It is the opinion of this Court that the Notification of Awards in respect to two tankers could not have been acted upon. However, in absence of any clarification it is not clear as to which Notification of Awards, the said interim order dated 04.10.2023 would be applicable. Therefore, it has to be presumed that the Notification of Awards issued to all the bidders including the petitioner herein would be under the cloud of the interim order dated 04.10.2023.

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The Petitioner herein though bidded for two tankers but was only issued a Notification of Award dated 04.10.2023 in respect to one tanker. The records reveal that the petitioner within 59 days could not mobilise the tanker in question. The relevance of failure to mobilise within 59 days is for the reason that 11 bidders submitted the L1 rate and the Petitioner got precedence and was awarded the Notification of Award dated 04.10.2023 for one tanker as the

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Petitioner in his bid confirmed that the mobilisation would be done within 59 days. Resultantly, on 16.01.2024, the Notification of Award dated 04.10.2023 was terminated which is challenged in the present writ petition.

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The record further reveals that on 20.06.2024, the writ petition being WP(C) No.5870/2023 was allowed holding inter-alia that the disqualification of the petitioner of the said writ petition was not proper and directions were issued for fresh tender notice for the Sivasagar district thereby incorporating in the tender notice a method to enable the tenderers to get to know the standard rate of HSD for Sivasagar district for each day. The learned Coordinate Bench of this Court further directed vide the order dated 20.06.2024 that not to issue any Notification of Award to any of the bidders in respect to the NIT No.R16KC23003 in so far as it related to the Sivasagar district. Paragraph No.12 of the order passed by the learned Coordinate Bench of this Court on 20.06.2024 being relevant is reproduced herein under:-

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“ 12. In view of the reasons stated above, the disqualification of the petitioner’s Technical Bid was not proper and as such, in the view of this Court, a fresh tender notice would have to be issued for the Sivasagar District. Accordingly, the ONGC shall issue a fresh tender notice by incorporating in their tender notice, a method to enable the tenderers to get to know the standard rate of the HSD for Sivasagar District for each day. Consequently, the respondents are directed not to issue any notification of Award to any of the bidders in respect of the NIT No.R16KC23003, insofar as it relates to the Sivasagar District.”

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Pursuant thereto, on 22.08.2024, the petitioner was issued a show cause notice as to why the petitioner should not be put on holiday and further the petitioner was provisionally put on the holiday list. The resultant effect of the said show cause notice dated 22.08.2024 is that the petitioner herein has not

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been permitted to participate in all notice inviting tenders issued by the Respondent ONGC. It is under such circumstances, the petitioner has filed the instant writ petition and this Court vide the order dated 02.09.2024 suspended the notice dated 22.08.2024 and further passed directions that the petitioner be permitted to participate in the fresh tender process or any new tender process which shall however be subject to the outcome of the writ petition.

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The records further reveal that the Respondent ONGC had filed an Interlocutory Application being IA(C) No.3297/2024 justifying its action of termination of the petitioner as well as further issuance of the show cause notice dated 22.08.2024 and provisionally putting the petitioner in the holiday list. Mr. S. Chakraborty, the learned counsel appearing on behalf of the Respondent ONGC submits that though no affidavit-in-opposition has been filed, but the contents of the Interlocutory Application be treated as the affidavit-in-opposition for the Respondent Authorities as well as the additional affidavit filed in the Interlocutory Application.

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SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE PARTIES:

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Mr. L. N. Dihingia, the learned counsel appearing on behalf of the petitioner submitted that when there was a stay operating in respect to the Notification of the Award dated 04.10.2023 so issued in favour of the petitioner along with other bidders and there was further clarification vide the order dated 10.11.2023 that the Notification of the Award shall not be acted upon, the action on the part of the respondents to insist upon the petitioner to carry out the mobilization amounts to wilful and deliberate violation of the orders passed by this Court.

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The learned counsel appearing on behalf of the petitioner submitted that though the petitioner was not a party in WP(C) No.5870/2023 but the Respondent Authorities very well knew about the order dated 04.10.2023 as well as the subsequent order dated 10.11.2023.

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The learned counsel appearing on behalf of the petitioner further submitted that vide the order dated 20.06.2024, this Court had categorically held that the entire tender process was vitiated in view of Clause C.2 of Annexure-IVA, and as such, when the very tender process has been vitiated, the actions on the part of the Respondent Authorities to issue the notice dated 22.08.2024 is not only a case of wilful and deliberate disregard to the orders passed by this Court, but also clearly shows the malafide intentions on the part of the Respondent ONGC. The learned counsel for the petitioner therefore submitted that such actions on the part of the Respondent Authorities of putting the petitioner in the holiday list not only amounts to violation of Article 14 of the Constitution, but also violates the mandate of Article 19(1)(g) read with Article 21 of the Constitution.

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Mr. S. Chakraborty, the learned counsel appearing on behalf of the Respondent ONGC submitted that the termination of the petitioner is in terms with Clause C.7 of the Bid Evaluation Criteria contained in Annexure-IV to the Invitation to Bid in as much as although there were eleven bidders, the petitioner was issued the Notification of Award on the ground that the petitioner had submitted in his bid that he would be in a position to mobilize within 59 days. The petitioner having not mobilized, within the period of 59 days, by virtue of Clause C.7(ii), the petitioner's notification of award stood

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automatically cancelled. The learned counsel appearing on behalf of the Respondent ONGC further submitted that Clause C.7(ii) have not been assailed by the petitioner, and under such circumstances, it does not lie in the mouth of the petitioner to assail the termination on 16.01.2024.

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The learned counsel for the Respondent ONGC further submitted that in terms with Clause 18.6 of the General Conditions of Contract (GCC), the consequences of termination have been spelt out. The tender conditions permit the Respondent ONGC to make enquiry as to whether the bidder is to be put in the holiday list and pending enquiry, ONGC has the power to put the bidder on the holiday list. The learned counsel for the Respondent ONGC further contended that in terms of Clause 18.6(ii) of the GCC, it is the mandate that the ONGC shall neither issue any tender enquiry to the defaulting contractor nor shall consider their offer in any ongoing tender, and therefore, the stay order which has been passed by this Court is contrary to the terms of the bidding documents which is holding the field between the petitioner and the Respondent Authorities.

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The learned counsel for the Respondent ONGC further submitted that the setting aside of the tender vide the order dated 20.06.2024 in WP(C) No.5870/2023 would have no impact on the present dispute in as much as the order dated 20.06.2024 was passed subsequent to the termination of the petitioner. The learned counsel however submitted that the subsequent action so taken for putting the petitioner on holiday list is subsequent to the order dated 20.06.2024.

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ANALYSIS AND DETERMINATION :

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The materials on record as discussed hereinabove as well as the respective submissions made by the learned counsels appearing on behalf of the parties would show that the tender so issued by the Respondent ONGC for hiring eight numbers of water tankers services for a period of three years was interfered with by the learned Coordinate Bench in WP(C) No. 5870/2023 by the order dated 20.06.2024.

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The fact that the petitioner herein was awarded the Notification of Award on 04.10.2023 is not disputed. The materials on record also show that this Court, vide an order of the same date, i.e. on 04.10.2023 had directed the Respondent ONGC not to undertake any further process and this aspect of the matter was further clarified vide the order dated 10.11.2023 in WP(C) No.5870/2023 to mean that if the Notification of Awards was not issued as on 04.10.2023, the same shall not be issued, and if issued, it shall not be acted upon. The order dated 10.11.2023 therefore makes it very clear that if the Notification of Award has been issued, to any of the bidders, the same shall not be acted upon.

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The learned counsel appearing on behalf of the respondents as already noted in the previous segments of the instant judgment submitted that the said interim order dated 04.10.2023 shall only apply in so far as the tenders which the petitioner had submitted. The said submissions in the opinion of this Court appears to be misconceived taking into account that the petitioner in WP(C) No.5870/2023 submitted bid for two tankers. The order so passed on 04.10.2023 as well as on 10.11.2023 in WP(C) No.5870/2023 were in respect to a single tender bearing No.R16KC23003. At best, the reference to the word

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‘tenders’ can be interpreted as reference to the bids submitted by the Petitioner in WP(C) No.5870/2023. Admittedly, the Petitioner in WP(C) No.5870/2023 submitted bids for two tankers. The Petitioner herein also submitted bid for two tankers and the Petitioner herein was awarded the Notification of Award for one tankers. It is also not clear as to in which tanker, the interim order dated 04.10.2023 would be applicable inasmuch as there was no segregation or identification in the order dated 10.11.2023 in respect to which tankers.

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There was no clarification sought for by the Respondent ONGC in WP(C) No.5870/2023 as to what would be the implication of the observation in the order dated 10.11.2023. Under such circumstances, it has to be understood that the order dated 04.10.2023 in view of the subsequent order dated 10.11.2023 was applicable in respect to all the Notification of Awards in view of the observations in paragraph Nos. 14 and 15 hereinabove. Nothing has been brought on record to distinguish that the bids so submitted by the petitioner herein were not in respect to those tankers which the petitioner in WP(C) No.5870/2023 had submitted. Under such circumstances, in the opinion of this Court, vide the order dated 04.10.2023, there was a complete stay in respect to performance of the work pertaining to the Notification of Award dated 04.10.2023 issued in favour of the petitioner.

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It further appears from the records that the petitioner was not a party in WP(C) No.5870/2023, and as such, the petitioner may not have been aware about the order dated 04.10.2023 or the subsequent order dated 10.11.2023. However, the Respondent ONGC were very much in know about the orders which were passed on 04.10.2023 and 10.11.2023 i.e. not to go ahead with the

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Notification of Award which was issued on 04.10.2023 in respect to the bids submitted by the petitioner in WP(C) No.5870/2023. In that view of the matter, the termination in terms with Clause C.7.(ii) of the Annexure-IV could not have been applied insofar as the Petitioner is concerned.

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At the cost of repetition, this Court finds it very difficult to accept the stand of the Respondent ONGC that the second part of Clause C.7(ii) would be applicable in so far as the petitioner when there was a stay being granted by this Court on 04.10.2023 and subsequently clarified on 10.11.2023.

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This Court further finds it very pertinent to observe that vide the order dated 20.06.2024, the learned Coordinate Bench of this Court had nullified the entire tender process in view of the ambiguity in Clause C.2 of Annexure-IVA and further directed that there shall be no issuance of the Notification of Award. The records further reveal that the Respondent ONGC had duly accepted the said judgment passed by the learned Coordinate Bench in WP(C) No.5870/2023 in as much as no Appeal thereagainst was filed.

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At this stage, this Court finds it very pertinent to take note of another aspect on which the Respondent ONGC have emphasised in the present proceedings i.e. an order passed in an Interlocutory Application being I.A. (Civil) No.2803/2024 so filed by the four of the bidders who were issued the Notification of Awards on 04.10.2023 in a Writ Appeal preferred against the order dated 20.06.2024 passed in WP(C) No.5870/2023. The said Appeal was filed with a delay of 47 days and the Interlocutory Application was filed for condoning the delay. At the stage of condoning the delay, the learned Division Bench of this Court, while condoning the delay touched on the

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merits of the dispute and saved the Notification of Awards so issued in respect to the four of the bidders who were the applicants therein. This aspect of the matter would be apparent from the order dated 26.09.2024 and the relevant portion of the said order is reproduced herein under:-

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“ In the facts and circumstances noted above, we deem it appropriate to direct the respondent authorities not to discontinue the Notifications of Award issued in favour of the applicants. However, the respondent ONGC authorities are free to proceed further in pursuance to the fresh tender notice dated 19.08.2024 in respect of the other services except the services already being rendered by the applicants.”

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This Court is aware of the fact that the order so passed by the learned Division Bench of this Court is subsequent to the action taken by the Respondent ONGC of issuance of the show cause notice dated 22.08.2024. Be that as it may, by the said order only Notification of Awards issued in favour of the Appellants in the Writ Appeal were saved, but not the Notification of Award issued in favour of the petitioner. Furthermore, in the opinion of this Court, the Respondent ONGC cannot justify their action in respect to the issuance of the communication dated 22.08.2024 on the basis of an order passed by the learned Division Bench post the issuance of the impugned communication.

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The dispute in question can be looked from another angle also. In view of the orders dated 04.10.2023 and 10.11.2023, it cannot be said that the petitioner had not complied in terms with the condition mentioned in Clause C.7(ii) in as much as there was a prohibition on the part of this Court not to further proceed with the Notification of Award dated 04.10.2023. Under such circumstances, the question of termination by virtue of the second part of the

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Clause C.7 (ii) of Annexure-IV did not arise at all. Further, vide order dated 20.06.2024, the Notification of Award issued in favour of the petitioner was set aside. If the termination was not permissible, the question of applying Clause 18.6 of the GCC did not also arise.

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It is also pertinent to observe that when the Notification of Awards made in favour of the petitioner was set aside vide the order dated 20.06.2024, thereafter to take action on the basis of the said Notification of Awards dated 04.10.2023 issued in favour of the petitioner would amount to taking action on the basis of non-existent materials. It is a trite principle of law that any action taken on a non-existent fact would come within the ambit of abuse of powers. This Court finds it important in this regard to refer to the judgment of the Supreme Court in the case of S. R. Venkataraman vs. Union of India & Another, reported in (1979) 2 SCC 491 . Paragraph Nos. 5 to 9 of the said judgment being relevant are reproduced herein below:

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“ 5. We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an allegation of malice against V.D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields [(1914) AC 808, 813] :

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“ A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know

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the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.”

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Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.

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6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard. C.J. in Pilling v. Abergele Urban District Council [(1950) 1 KB 636 : (1950) 1 All ER 76] where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.

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7. The principle which is applicable in such cases has thus been stated by Lord Esher, M.R. in Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras [(1890) 24 Q BD 371, 375 : 62 LT 440] :

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“ If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.”

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This view has been followed in Sadler v. Sheffield Corporation [(1924) 1 Ch 483] .

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8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go these may well be said to run into one another.

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9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the “public interest”, to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power.”

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The principles laid down in the above noted judgment, if applied to the facts of the present case would make it abundantly clear that the action on the part of the respondent ONGC to issue the communication dated 22.08.2024 thereby putting the petitioner in the holiday list and initiating an enquiry is apparently a case of abuse of the powers by the Respondent Authorities which renders such actions violative of Article 14 of the Constitution of India.

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Accordingly, the instant writ petition therefore stands disposed of with the following observations and directions:-

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(i) The Notification dated 04.10.2023 issued in favour of the petitioner lost its force and effect in view of the order dated 20.06.2024 in WP(C) No. 5870/2023.

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(ii) This Court interferes with the order of termination dated 16.01.2024 on the ground that by virtue of the orders dated 04.10.2023 and 10.11.2023 passed in WP(C) No.5870/2023, the petitioner could not be deemed to have defaulted to mobilise so as to attract the second part of Clause C.7(ii) of Annexure-IV to the Bid document.

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(iii) The action on the part of the Respondent Authorities to terminate

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the Notification of Award dated 04.10.2023 by the communication dated 16.01.2024 is therefore unfair, unjust, arbitrary and accordingly interfered with.

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(iv) The communication dated 22.08.2024 as well as provisionally putting the petitioner in the holiday list, amounts to abuse of the powers conferred upon the Respondent Authorities and accordingly stands interfered with.

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(v) There shall be no order as to costs.

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JUDGE

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Comparing Assistant

M/S Pranjal Bp Gohain v. the Union of India and 4 Ors.

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M/S Pranjal Bp Gohain v. the Union of India and 4 Ors.

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