Dismissed

Ms Devprabha Construction Pvt. Ltd. Th Its Authorized Signatory Mithilesh Singh v. the Coal India Limited through Its Chairman Cum Managing Director

Jharkhand HC18 Jul 2019WPC/3363/2019

Case brief

AI extract

What is this about?

Bidders challenged show cause notices proposing banning for allegedly inflated work-experience certificates. The court found no established bias or predetermination and held that tender cancellation did not preclude action under the tender conditions. It dismissed the petition, leaving the bidders to substantiate their certificates before the competent authority.

What the court decided

AI extract

Ms Devprabha Construction Pvt. Ltd. Th Its… — Public Procurement and Tenders | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.3363 of 2019

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M/s Devprabha Construction Pvt. Ltd. (JV) having its registered office at 2^nd Floor, Dev Villa, Behind Radha Swami Arcade, Saraidhela, Dhanbad-828127 through its authorized signatory Mithilesh Singh, aged about 38 years son of Shyam Bahadur Singh resident of Simlabahal Colliery, P.O. & P.S.-Jharia, District-Dhanbad.

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M/s Devprabha Construction Private Limited having its registered office at 2^nd Floor, Dev Villa, Behind Radha Swami Arcade, Saraidhela, Dhanbad-828127 represented by its authorized signatory Mithilesh Singh, aged about 38 years son of Shyam Bahadur Singh resident of Simlabahal Colliery, P.O. & P.S.-Jharia, District-Dhanbad.

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M/s Dev Multicom Private Limited having its registered office at 2^nd Floor, Dev Villa, Behind Radha Swami Arcade, Saraidhela, Dhanbad828127 represented by Vishwa Vijay Singh, General Manager of M/s Dev Multicom Private Limited, aged about 35 years son of Ram Deo Singh resident of Simlabahal Colliery, P.O. & P.S.-Jharia, DistrictDhanbad.

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…… Petitioners

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Versus

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The Coal India Limited through its Chairman cum Managing Director having its corporate office at Coal Bhawan, Premise No.04, MAR, Plot No.AF-III, Action Area-IA, New Town, Rajarhat, Kolkata-700156, West Bengal.

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M/s Bharat Coking Coal Limited through its Chairman-cum-Managing Director, having its office at Koyla Bhawan, Koyla Nagar, P.O. & P.S.Saraidhela, District-Dhanbad.

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The General Manager, Contract Management Cell, M/s B.C.C.L., having its office at Koyla Bhawan, Koyla Nagar, P.O. & P.S. Saraidhela, District-Dhanbad.

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The General Manager, Bharat Coking Coal Limited, E.J. Area, Dhanbad, P.O. Bhowra, P.S. Jorapokhar, District Dhanbad.

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The General Manager, Bharat Coking Coal Limited, Lodna Area-X, Dhanbad, P.O. and P.S. Lodna, District-Dhanbad.

…… Respondents

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioners : Mr. Ajit Kumar, Senior Advocate Mr. Kumar Sundaram, Advocate Mr. Kumar Pawan, Advocate For the Resp.-B.C.C.L. : Mr. Amit Sharma Advocate Mr. Amit Kumar Das, Advocate Mrs. Swati Shalini, Advocate ----------------------------

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02 / Dated 18th July, 2019

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This writ petition is under Article 226 of the Constitution of India wherein the following reliefs have been sought for :

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“(A) For issuance of appropriate writ(s) / order(s) / direction(s) particularly a writ in the nature of certiorari for quashing/setting aside of show cause notices dated 13.06.2019, bearing:

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(I) Ref. No. BCCL / CMC / F-HEMM-OS / Sh.Ca. / Dev. Mult / 2019 / 223,

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(II) Ref. No. BCCL / CMC / F-HEMM-OS / Sh.Ca. / DCPL-JV / 2019 / 221, &

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(III) Ref. No. BCCL / CMC / F-HEMM-OS / Sh.Ca. / DCPLJV / 2019 / 222 (Annexure-6 Series to this writ application) issued by the respondent no. 3, whereby show cause notices have been served upon the petitioners without any cause of action, and with allegation that wrong and inflated certificates have been issued to fulfill eligibility criteria, in relation to E-tender No. BCCL/CMC/e-Tender/F-HEMM – OS/2018/12, dated 06.01.2018 (Annexure-1 to this writ application).

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(B) For issuance of appropriate writ(s) / order(s) / direction(s), declaring that in the facts and circumstances, no penal actions can be initiated against the petitioners, particularly in view of the fact that there has been no substantial execution of contract in between the parties (petitioners & the respondent BCCL), and therefore, no breach of terms and conditions arise, and further to declare that there has been no misrepresentation on part of the petitioners herein.”

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The show cause notices dated 13.06.2019 since have been challenged on the ground that the same have been issued with biasness and with the pre-occupied mind, therefore, the issuance of show cause notices is nothing but merely a ritual and as such this Court may interfere under Article 226 of the Constitution of India by quashing it.

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Mr. Ajit Kumar, learned senior counsel appearing for the petitioners, in order to strengthen his argument has relied upon the judgments rendered by Hon'ble Apex Court in the cases of Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant and Ors., reported in (2001) 1 SCC 182, Siemens Ltd. vs. State of Maharashtra and Ors., reported in (2006) 12 SCC 33 and Oryx Fisheries Private Limited vs. Union of India and Ors., reported in (2010) 13 SCC 427.

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He has further relied upon a judgment/order passed by this

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Court in W.P.(C) No.124 of 2019 wherein pertaining to the same notice inviting tender, this Court has declined to interfere with the show cause notice issued against M/s SGPL TCPL BP(JV) (A Joint Venture entity), M/s. S G Projects Limited and M/s. Balaji Projects, (A Partnership Firm).

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Learned senior counsel for the petitioner has tried to distinguish the order passed by this Court in the aforesaid case on fact by submitting that the show cause which was the subject matter of the aforesaid writ petition had not been questioned on the ground of biasness or pre-occupied mind and as such the same is not applicable in the instant case on facts.

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The submission of the learned senior counsel for the petitioner that there is no incorrect information furnished by the petitioners since whatever documents have been provided with respect to work experience, have been furnished by the officer at the level of the General Manager of the BCCL and therefore, it cannot be said that the information furnished by the authorities of the BCCL is having any infirmity and even accepting that there is infirmity, then appropriate action is also required to be taken against the concerned authority who has furnished the false information.

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Learned counsel appearing for the respondent-BCCL has strictly put reliance upon the order passed by this Court in W.P.(C) No.124 of 2019 and submitted that since the show cause notices have been

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issued upon the petitioners of the aforesaid writ petition i.e., M/s SGPL TCPL BP(JV) (A Joint Venture entity), M/s. S G Projects Limited and M/s. Balaji Projects, (A Partnership Firm) which pertains to the same notice inviting tender wherein also the same allegation of furnishing wrong information leading to deferment of the decision taken by the tender committee, and therefore, there is no distinction on fact basis upon which this Court has declined to interfere with the show cause in comparison to that of the fact of the instant case.

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This Court after hearing the learned counsel for the parties and after appreciating their arguments, deems it fit and proper to first state brief facts for better appreciation of the issue agitated by the learned counsel for the parties.

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The petitioner No.2 is a private limited construction company duly registered under the provision of Indian Companies Act while the petitioner No.3 is the private limited company which is also registered under the Companies Act, both the companies have entered into a joint venture to form petitioner No.1, to that effect the competent authority has issued registration certificate on 12^th January, 2018.

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The respondent Bharat Coking Coal Limited, in short BCCL, has come out with e-tender process on 06.01.2018 prescribing description of work as :

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“Hiring of HEMM for removal of OB, extraction and transportation of coal with fire-fighting from XVA, XV, XIV, XIII, XI / XII, XII, XI, XA, IX / X, X, IX, VIIIA, VIII / VII(T), VIII, VIII(T) & V / VI Seams of AKJ-SIMLA Patch of Amalgamated East Bhuggatdih - Simlabahal Colliery of Bastacolla Area.”

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The petitioner No.2 has been described as lead partner as per the clause No.2 of the agreement, and as such, is responsible for bidding process and for execution of the contract.

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The eligibility criteria to participate in the e-Tender process was prescribed at Clause No.6, in which sub-clause (A) narrates the work experience requisite, which reads hereunder as :

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“The bidder must have in its name or proportionate share as a member of IV/Consortium, experience of having successfully executed (includes completed / ongoing) works of similar nature (Excavation and transportation of soil / overburden / shale / minerals etc., by mechanized means or Extraction of coal by mechanized means) valuing 65% of the annualized estimated cost of the work put to tender (for period of complete over 1 year) / 65% of the estimated cost of the work (for completion period up to one year) put to Tender in any year (consecutive 365 days) during last 7 (seven) years ending last day of month previous to the one in which bid applications are invited.”

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The petitioners in order to fulfill the requisite criteria of work experience had obtained a certificate from the General Manager, BCCL as contained under Letter dated 13.01.2018 in response to the request letter dated 10.01.2018 whereby the credentials for the work of hiring of HEMM for removal, extraction and transportation of coal in the Seams of patch F of Jeenagora Colliery, a part of NT-ST (expansion) project of Lodna Area, against NIT dated 15.05.2014, was disclosed and it was specifically provided that work pertaining to an amount of Rs.132,38,51,812/- had been executed with varying percentage of 25% with Avinash Transport and 75% with Devprabha Construction Pvt. Ltd., to the tune of Rs.29,45,55,850/- and Rs.88,36,67,550/- respectively, work executed during the period of 01.09.2015 to 31.08.2016.

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The petitioner No.3 had obtained one certificate from the General Manager, BCCL, EJ Area, vide letter dated 11.01.2018, in response to the request letter dated 10.01.2018, whereby the credentials for the work of hiring of HEMM for removal, extraction and transportation of coal in the Seams 3 Pit West OCP of Bhowra (S) Colliery of E/Jharia Area, against another work order dated 27.05.2015, was disclosed wherein it was provided that the work pertaining to an amount of Rs.74,18,13,509/- has been executed with varying percentage of 25% with Avinash Transport and 75% with Dev Multi Com Pvt. Ltd., to the tune of Rs.18,54,53,377/- and Rs.55,63,60,132/- respectively, work executed during the period of 01.09.2015 to 31.08.2016.

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The petitioner-Joint Venture had submitted the documents and had participated in the notice inviting tender but on the ground of bid rigging and collusive bidding, one order dated 16.10.2018 has been passed by the respondent with a decision to cancel the notice inviting tender and accordingly, the same has been cancelled and the earnest money / bid security deposited by the petitioner-joint venture, to the tune of Rs.50,00,000/- was duly refunded by the BCCL upon cancellation of the of the tender as per the conditions of the notice inviting tender.

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In the meanwhile, the show cause notices issued upon the petitioner No.1, petitioner No.3 and lead partner in Joint Venture i.e., petitioner No.2 on 13.06.2019 even though no contract was executed since the notice inviting tender itself was cancelled on 16.10.2018, therefore, there was no established relationship between the petitioner-Joint Venture and the respondent-BCCL.

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The said show cause notice has been assailed on the ground of biasness and the authorities have come out with the pre-occupied mind and therefore, the show cause notice is nothing but merely a ritual or formality.

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Per contra learned counsel appearing for the BCCL, has submitted that as yet no cause of action has arose warranting any interference by this Court under Article 226 of the Constitution of India since the petitioners have only been called upon to explain as to why the action as stipulated under Clause-8.6 to the notice inviting tender may not be taken and therefore, what is being summarized by the petitioners before this Court, the same can be brought to the notice of the concerned authority for taking appropriate decision in accordance with law.

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According to the learned counsel for the BCCL, the petitioner is raising the factual aspect and therefore, the same can be answered by the competent authority and as such no interference may be made to the show cause since, no adverse action has yet been taken against the petitioner making a cause of action available to the

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petitioners to invoke the jurisdiction under Article 226 of the Constitution of India.

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He has refuted the contention made by the learned counsel for the petitioners that the show cause is pre-determined and therefore, giving reply will be nothing but merely a formality, is not correct since it cannot be inferred from the content of the show cause that any pre-occupied mind is being reflected therefrom.

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The submission has been made that the General Manager is a functionary of the BCCL and if any work experience certificate has been issued by a particular individual, if found to be contrary to the record, the same cannot be relied upon by the establishment i.e., BCCL, and furthermore when on inquiry it has been found by the BCCL the same has been brought to the notice of the Central Vigilance Commission, who has been directed to investigate the matter and now the same is under investigation, therefore, what has been contended by the learned counsel for the petitioners that no action is being taken against the authority who has issued the experience certificate, is not correct.

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This Court before answering the issue also further deem it fit and proper to discuss about the applicability of the judgment rendered by Hon'ble Apex Court which have been relied upon by the learned counsel for the petitioners.

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The first one is the judgment rendered by the Hon'ble Apex Court in the case of Kumaon Mandal Vikas Nigam Ltd. (supra) wherein apart from the question of fairness and procedure as also the natural justice the question of biasness has also been taken into consideration along with malice and malicious act.

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It is not in doubt that if anything would be initiated by any authority with malice or malicious act with biasness, the same would not be allowed to be continued.

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The biasness has been defined in the aforesaid judgment at

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paragraph-10 wherein it has been referred that the word 'bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in common acceptation means and implies 'spite' or 'ill-will' and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice.

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At paragraph-11, it has been laid down that a malicious act has been equated with intentional act without just cause or excuse.

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Further, at paragraph-34 'biasness' has been defined which means, imply pre-disposition or prejudice.

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At paragraph-35, it has been laid down that the test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusions drawn therefrom – in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence.

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Thus the principle has been laid down to judge biasness or malicious act in the judgment rendered in the case of Siemens Ltd. (supra) wherein while discussing the question of interference by the High court in a show cause, has been dealt with and it has been laid down therein that if once a decision has been taken, there is a tendency to uphold it and a representation may not really yield fruitful purpose and in the light of the aforesaid principle, the Hon'ble Apex Court in the aforesaid judgment has been pleased to interfere by going across the order passed by the High Court and the show cause wherein the Hon'ble Apex Court has been pleased to satisfy itself that

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the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice.

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In the case of Oryx Fisheries Pvt. Ltd. (supra), the same also pertains to quashing of the show cause notice but that is on the ground that if the show cause notice is being issued, it must be with a specific reason so that the reasonable opportunity of making an objection be provided, meaning thereby, the allegation/irregularities is specifically to be stated in the show cause.

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In the light of these judgments, the factual aspect and the ground which has been agitated by the petitioners in assailing the show cause has been appreciated by this Court and by going across the content of the show cause, which according to the petitioner is with pre-determined mind and with biasness, therefore, this Court deem it fit and proper to refer the contents of the show cause which reads hereunder as :-

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“Ref. No. BCCL/CMC/F-HEMM-OS/Sh.Ca./Dev-Mult/2019/223 Date: 13.06.2019

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To Registered Post

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M/s Dev Multicom Pvt Ltd e-mail id: [email protected] (Partner- Devprabha Construction Private Limited (JV)) 2^nd Floor, Dev Villa Behind Radha Swami Arcad, Saraidhela, Dhanbad-828127 Jharkhand

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Sub: SHOWCAUSE NOTICE

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Ref : 1. e-Tender Notice No.-H-HEMM-13;

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Tender ID No.: 2018_BCCL_92385_1

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NIT No.: BCCL/CMC/e-Tender/F-HEMM-OS/2018/12, Date: 06.01.2018

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Name of the work:”Hiring of HEMM for removal of OB, extraction and transportation of coal with firefighting from XVA, XV, XIV, XIII, XI / XII, XII, XI, XA, IX / X, X, IX, VIIIA, VIII / VII(T), VIII, VIII(T) & V / VI Seams of AKJ-SIMLA Patch of Amalgamated East Bhuggatdih - Simlabahal Colliery of Bastacolla Area.”

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Dear Sir,

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An e-tender notice was floated vide reference numbers as mentioned above. Devprabha Construction Pvt Ltd (JV) had participated in the tender.

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Devprabha Construction Private Limited (JV) has accepted, authenticated and used experience certificates issued under the signature of GM, EJ Area, BCCL and GM, Lodna Area, BCCL and also Project Officer, Dhansar Colliery, Kusunda Area in e-tendering portal https://coalindiateners.nic.in, as credentials to make them eligible for the tender under reference. It has been alleged that Devprabha Construction Pvt Ltd (JV) has participated in e-Tender no. BCCL/CMC/eTender/F-HEMM-OS/2018/12 Date:-06.01.2018 and submitted wrong and inflated credential/work experience certificates to fulfil the eligibility criteria.

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The complaint has been investigated and it is observed that:

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Devprabha Construction Pvt Ltd (JV) accepted, authenticated and used the experience certificate issued vide ref. no. 111/BCCL/GM/EJA/2018/ dated 11.01.2018 under the signature of General Manager, Eastern Jharia Area. Said experience certificate has been found to be wrong and inflated. Devprabha Construction Private Limited (JV) used this wrong and inflated certificate to claim the required eligibility as per NIT. The experience as per the furnished credential is Rs. 55,63,60,132/- (Fifty five Crore Sixty three lakh sixty thousand One hundred and thirty two Rupees) whereas the actual experience for the considered period is found to be Rs. 33,47,90,910.8/- (Thirty three Crore Forty seven lakh Ninety thousand Nine hundred and Ten Rupees Eighty paese).

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The said actual experience was well within the knowledge of M/s Dev Multicom Pvt Ltd, as they have been the lead partner of AT-Dev PL (JV), in whose name the above referred experience dated 11.01.2018 was issued.

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Devprabha Construction Private Limited (JV) has also accepted, authenticated and used the experience certificate issued vide ref. no. 371 dated 13.01.2018 issued under the signature of General Manager, Lodna Area. This experience certificate has also been found to be wrong and inflated. Devprabha Construction Private Limited (JV) used this wrong and inflated certificate to claim the required eligibility as per NIT. The experience as per the furnished credential is Rs. 88,36,67,550/- (Eighty Eight Crore Thirty Six Lakh Sixty Seven Thousand Five hundred and Fifty Rupees)(exclusive of service tax) whereas the actual experience for the same period is

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found to be Rs.76,78,33,167.8/- (Seventy Six Crore Seventy Eight Lakh Thirty Three Thousand One Hundred and Sixty Seven Rupees Eighty paise) (inclusive of service Tax). If service tax is excluded from the actual experience, the figure will go down further.

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Thus, wrong and inflated credential has been accepted, authenticated and used by Devpracha Construction Pvt Ltd (JV) to participate and to qualify in the above referred tender. Such fraudulent act is in violation of Clause 8.6 under clause 8 of e- Notice Inviting Tender. Said act has also breached para '3' & '4' of the undertakings (Annexure-C) furnished in two separate copies duly signed by Devprabha Construction Private Limited (JV) and M/s. Dev Multicom Pvt Ltd respectively. There is further breach of commitments under Letter of Bid (Annexure-A) and also clause '3' of pre contract Integrity pact duly signed by authorized representative of said JV.

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The above mentioned irregularities attracts action as per clause '7(iv)' and clause '8', “Subchapter-6.16 of Chapter-6 CMM: HIRING OF EQUIPMENT FOR REMOVAL OF OVERBURDEN AND EXTRACTION OF COAL” and also under the clause '6' of Pre-contract Integrity Pact besides that under para '8' of said Annexure-'C' of NIT/Tender Document.

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The willful use of wrong and inflated credential as above vitiated the tender which led to its subsequent cancellation causing considerable opportunity loss to the company in particular and to the nation in general.

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Hence, M/s Dev Multicom Pvt Ltd has been found responsible for the above act independently and also as the lead partner of the Devprabha Construction Pvt Ltd (JV) under clause '5' of “Joint Venture Agreement”, duly signed by authorized signatories of M/s Devprabha Construction Pvt Ltd (Lead Partner) and M/s Dev Multicom Pvt. Ltd (Partner).

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This has been viewed seriously by the management. Accordingly, this Show Cause notice is being issued in order to explain as to why action, as per clause 8.6 of e-Notice Inviting Tender read with Annexure-A & specifically para-8 of Annexure-C and paras under Pre-contract Integrity pact including other terms and condition of NIT/Tender document and clause '7(iv)' along with clause '8' of Subchapter-6.16 of Chapter-6 of CMM, should not be taken against M/s Devprabha Construction Pvt. Ltd. for banning from participating in future bids for a minimum period of five years. M/s Dev Multicom Pvt Ltd is advised to submit written statement of defense within 21 days from the date of issue of

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the notice failing which it shall be presumed that they have nothing to say in defense and penal action shall be taken as deemed fit.

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Details of charges and relevant provisions of NIT/Tender Document/CMM are attached herewith as Annexure-I.

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This issues with the approval of competent authority.

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Enclosures:- Annexure-I (11 pages) and documents therein, enumerated below:-

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Clause '6A' “Work Experience” under “Eligibility Criteria” of e-notice Inviting Tender (1 page)

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The experience certificate submitted by Devprabha Construction Pvt Ltd (JV) with ref. no. 111/BCCL/GM/EJA/2018, dt. 11.01.2018 (1 page)

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The experience certificate submited by Devprabha Construction Pvt Ltd (JV) with ref. no. 371, dt. 13.01.2018 (1 page)

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The undertaking in the form of Annexure-C of M/s. Dev Multicom Pvt Ltd signed by Sri Vishwa Vijay Singh, legal attorney of M/s. Dev Multicom Pvt Ltd. (1 page)

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Clause '7(iv)' under “Banning of Business” “Subchapter6.16 of Chapter-6 CMM: Hiring Of Equipment For Removal Of Overburden And Extraction of Coal” (1 page)

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and clause '8', “Period of Banning” “Subchapter-6.16 of Chapter-6 CMM: Hiring Of Equipment For Removal Of Overburden And Extraction of Coal” (1 page)

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Sub Clause 8.6 under clause 8 “Submission of Bid” of e- Notice Inviting Tender (1 page)

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Undertaking duly signed by Sri Vishwa Vijay Singh as authorized signatory of Devprabha Construction Pvt Ltd (JV) (Annexure-C)(1 page)

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Letter of Bid (Annexure-A signed by Sri Vishwa Vijay Singh, Authorized signatory of Devprabha Construction Pvt. Ltd. (JV) (1 page)

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Pre-contract Integrity pact (Annexure-H), duly signed by Sri Vishwa Vijay Singh, Authorized signatory of Devprabha Construction Pvt. Ltd. (JV) (4 page)

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Clause '5' of “Joint Venture Agreement”, uploaded and

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duly signed by authorized signatories of M/s Devprabha Construction Pvt Ltd (Lead partner) and M/s Dev Multicom Pvt. Ltd (Partner) (1 page)

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Sincerely

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GM (CMC), BCCL”

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Learned counsel for the petitioner has given much emphasis upon the word “investigated” and referring to the said word, it has been submitted that it is the pre-determined mind.

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The contents of the show cause notice is about furnishing wrong and inflated experience certificate which led the authority to come to the prima facie finding of bid rigging and collusive bidding as would appear from the cancellation order dated 16.10.2018. It needs to refer herein that Clause 8.6 of notice inviting tender invite action against the bidders who have been found to have furnished wrong information at any stage, the said clause is being referred hereinbelow :

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“ 8.6 If any information/declaration furnished online by the

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bidder against eligibility criteria is found to be wrong at any stage which changes the eligibility status of the bidder penal action as mentioned in Annexure-C will be applicable.”

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Clause 8.6 contains Annexure-C which is the format of undertaking which also stipulates a condition as condition No.8 which reads hereunder as :

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“ 8. If any information and document submitted is found to

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be false/incorrect at any time, department may cancel my/our Bid and action as deemed fit may be taken against me/us, including termination of the contract, forfeiture of all dues including Earnest Money and banning/delisting of our firm and all partners of the firm etc.”

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The content as contained under condition No.8 to the format of undertaking as contained under Annexure-C and referred hereinbove reflects that if any information and document submitted is found to be false/incorrect at any time, department may cancel the

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bid and action as deemed fit may be taken including termination of the contract, forfeiture of all dues including earnest money and banning/delisting of firm and all partners of the firm, etc.

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This content suggest that bidder would invite penal action in case of furnishing any wrong information, therefore, penal action is required to be inflicted in case of any wrong information and the show cause notice reflects that the respondent-BCCL is coming out with the allegation of furnishing wrong information about work experience certificate which according to the petitioner cannot be said to be wrong since the same has been furnished by the Officers at the level of General Manager as would appear from Annexure-3, relevant is at pages 148 & 150.

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The word investigation does not suggest and cannot be construed that there is pre-determined mind for inflicting punishment rather it is in course of investigation which transpires to the authority concerned that the work experience certificate is wrong one.

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The question which has been raised by the learned counsel for the petitioner that since the work experience certificate has been issued by the General Manager, BCCL it cannot be doubted but at this juncture argument which has been advanced by the learned counsel for the BCCL that they themselves have questioned the experience certificate issued by the General Manager saying it that the same has been issued by way of manipulation in order to aid the petitioners and for which the Central Vigilance Commission had been directed to conduct an inquiry and therefore, the BCCL as an establishment has doubted the action of the General Manager which ultimately lead to the consequence of the fate of the show cause depending upon the outcome of the Vigilance inquiry.

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The question which has been raised by the petitioners that if the General Manager has committed an illegality then action should have been taken against the said authority, this argument is not going to give any aid to the petitioners for the reason that the petitioners have given an undertaking as contained under Annexure-C to the notice

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inviting tender which is the part of the clause 8.6 thereof, to the effect that in case of any information and document submitted is found to be false, the penal action as provided therein would be taken, therefore the petitioners are to be concerned with their undertaking and the action which is to be taken against the General Manager of the authority if found to be committed any illegality in case of issuance of the work experience certificate that is to be looked into by the authority at the departmental level.

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The petitioners have taken the ground in the writ petition that since the notice inviting tender itself has been cancelled and therefore, no contract has been entered into and as such no such action as proposed to be taken by issuing the show cause is warranted, is also having no force in view of the condition stipulated under Clause 8.6 to the notice inviting tender which contains the format of undertaking as under Annexure-C containing therein a undertaking given by the petitioners of penal action in case of any wrong information which does suggest that panel action would be there if information is incorrectly furnished in course of participation in tender, therefore, it is not that if NIT has been cancelled, the authority would be precluded from taking action in terms thereof, and as such even if no contract has been entered into, it cannot be said that the issuance of show cause notice is without jurisdiction rather it is in terms of the condition stipulated under the notice inviting tender and once the petitioners have participated by virtue of the conditions contained under the notice inviting tender, the condition stipulated therein binds them.

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Learned counsel for the BCCL has further placed one communication dated 01.07.2019 written by the Director of the petitioner's company to the General Manager, BCCL (CMC) wherein fifteen days' time has been sought for enabling the petitioner to give a detailed reply to the show cause but no such reply has been filed rather the instant writ petition has been filed, therefore, the action of the petitioners is not fit to be appreciated.

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Although the petitioners have made a communication asking time of fifteen days but that does not curtail their right to approach to this Court.

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Now only question before this Court whether it can be interfered with the show cause.

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The issue of interference at the stage of show cause fell for consideration before the Hon'ble Apex Court in the case of Union of India & Anr. Vrs. Kunisetty Satyanarayan reported in (2006) 12 SCC 28 wherein the Hon’ble Apex Court by taking reference of the judgment rendered in the case of Executive Engineer Bihar Housing Board v. Ramesh Kumar Singh, reported in (2004) 3 SCC 440 , Special Director vs. Ghulam Ulagappa vs. Divisional Commr., Mysore reported in (2001)10 SCC 639 , State of U.P. v. Brahm Datt Sharma reported in (1987)2 SCC 179 has been pleased to hold that ordinarily no writ lies against a charge-sheet or show cause notice.

¶134

The reason why ordinarily a writ petition should not be entertained against mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the cause cause notice or after holding an enquiry the authority concerned may drop the proceeding and/or hold that the charges are not established. It is well settled of law that a writ petition lies when some right of any party is infringed. A mere show cause or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed that the said party can be said to have any grievance. In paragraph 15 it has been held that writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a

¶135

¶136

show cause notice or charge-sheet.

¶137

It is thus evident that a writ Court should not ordinarily interfere in the show cause notice at that stage rather it will be said to be premature case and allegations if levelled against one or the other in the show cause notice does not give rise to the show cause notice because it does not amount of adverse order, which affects the rights of any party unless the same has been issued by a person having jurisdiction to do so.

¶138

Therefore, merely issuance of show cause notice cannot be said to be approval of a show cause action warranting the said person to invoke the extraordinary jurisdiction conferred under Article 226 of the Constitution of India however, High Court can quash a show cause if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal, as has been held by Hon’ble Apex Court in the case of Secretary, Ministry of Defence Vrs. Prabhash Chandra Mirdha reported in (2012) 11 SCC 565 wherein at paragraph 10 it has been held as under:-

¶139

“Ordinarily a writ application does not lie against a charge-sheet

¶140

or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide State of U.P. v. Brahm Datt Sharma, Bihar State Housing Board v. Ramesh Kumar Singh, Ulagappa v. Commr., Special Director v. Mohd. Ghulam Ghouse and Union of India v. Kunisetty Satyanarayana.)”

¶141

Normally a show cause notice is not to be quashed prior to the conclusion of the inquiry on the ground that the charge-sheet is quashed at the time of the conclusion of inquiry.

¶142

The judgment rendered in the case of State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr. reported in ( 1987) 2

¶143

¶144

SCC 179 wherein at paragraph 9 their Lordships has been pleased to hold that, when a show cause notice is issued to a government servant under statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at this stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature.

¶145

It needs to refer herein that with respect to the same notice inviting tender M/s SGPL TCPL BP(JV) (A Joint Venture entity), M/s. S G Projects Limited and M/s. Balaji Projects, (A Partnership Firm) have come to this Court assailing the show cause notice dated 30^th October, 2018, this Court after putting reliance upon the judgments of Hon'ble Apex Court, as referred hereinabove, has declined to interfere with the writ petition on the ground that merely by issuing a show cause, no cause of action will be said to be accrued unless the same has been found to be issued with biasness and pre-occupied mind and if the show cause is simplicitor, there can be possibility of acceptance of the reply, if submitted by the person concerned.

¶146

This Court, therefore, is of the view that merely by using the word “investigated” in the show cause and further using the word “wrong and inflated credentials”, cannot be said to be a show cause notice with biasness and malicious action rather as has been held by the Hon'ble Apex Court that the allegation pertaining to bias must be supported with availability of positive and cogent evidence but the only question agitated by the petitioners that the work experience certificate has been issued by the General Manager and if the authority of the respondent BCCL has issued the certificate where the fault lies with the petitioners, that cannot be a ground to say that the show cause suffers from biasness and with malicious mind after taking into consideration the plea

¶147

¶148

of the respondent BCCL that they are now proceeding with the inquiry against the concerned General Manager of the BCCL who has issued the work experience certificate.

¶149

If the petitioner is saying the quantum of work experience to be true it is always open for them to bring the entire facts to the notice of the concerned authority for its examination and scrutinization to substantiate that it is authenticated and there is no incorrectness therein, meaning thereby, it depends totally upon the facts regarding the genuineness of the work experience certificate and if it is being stated incorrect by the authorities of the BCCL, the petitioners can satisfy it by placing reply before the concerned authority for its consideration.

¶150

The word investigated or authenticated can always be disputed by the petitioners by furnishing relevant documents justifying the certificate which has been been issued by the concerned General Manager and therefore, the fact is to be adjudicated and in absence of any reply, it cannot be adjudicated.

¶151

Therefore, this Court is of the view that at this stage, since the factual aspect is to be determined regarding the genuineness of the work experience certificate which has been said to be incorrect and for which the entire tender process has been deferred by holding that the tender process suffers with rigging and malpractices which cause the suffering of public exchequer, therefore, the petitioners have failed to make out a cause of biasness and malicious mind or acting with prejudice on the part of the authority, is having no basis and if there is any basis to disprove the allegation which has been levelled in the show cause, the same is to be determined by placing relevant facts before the competent authority for its consideration.

¶152

Therefore, this Court is of the view that it is not a case in the nature where any interference is required to be made in the show cause.

¶153

In view thereof, the writ petition fails and stands dismissed.

¶154

(Sujit Narayan Prasad, J.)

¶155

Saurabh

Ms Devprabha Construction Pvt. Ltd. Th Its Authorized Signatory Mithilesh Singh v. the Coal India Limited through Its Chairman Cum Managing Director

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Ms Devprabha Construction Pvt. Ltd. Th Its Authorized Signatory Mithilesh Singh v. the Coal India Limited through Its Chairman Cum Managing Director

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