CONSTRUCTION GUILD Vs. OIL
HIGH COURT OF GAUHATI
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Manojit Bhuyan, J. -
(1.) Heard Mr. R. Singha, learned counsel for the petitioner as well as Mr. G. N. Sahewalla, learned senior counsel representing all the respondents, assisted by Mr. B. K. Das, Advocate.
(2.) The petitioner no. 1 M/s Construction Guild is a proprietorship concern, with the petitioner no. 2 as its proprietor. It is registered with the Oil and Natural Gas Corporation Limited (in short, ONGC) to carry out contract works, which has been so doing for the last fifteen years. Cause of action arose with the issuance of the ONGC letter dated 23.10.2017 whereby M/s Construction Guild with its allied concerns, partner(s) or associates, all Directors and all proprietors involved in any capacity was put on holiday for a period of two years with effect from the date of issue of the banning order, which is 23.10.2017. It was made clear that during this period neither any tender enquiry will be issued by ONGC against any type of tender nor any offer of the contractor will be considered by ONGC against any on-going tender(s) where contract between ONGC and the contractor has not been concluded. This order of blacklisting for a period of two years was issued on the grounds narrated in the aforesaid letter dated 23.10.2017. Shortly put, the petitioner M/s Construction Guild had participated in seven tenders floated by ONGC wherein it had submitted turnover statements with balance-sheet issued by a Chartered Accountant, namely, M/s S. Kumar Agarwal & Associates, Sivasagar for the year 2013- 2014. The said seven tenders were divided into two groups Part-A and B. Part-A contained three civil works under the Civil Housing Division, ONGC, Assam Asset whereas Part-B contained four tenders under Civil Works Engineering Services, ONGC, Assam Asset. As per the documents submitted by M/s Construction Guild, it was noticed that the annual turnover of the said contractor/bidder for the year 2013-2014 was Rs.4,13,41,367.00 in respect of the three tenders invited by the Civil Housing Division. However, in respect of the four tenders invited by Civil Works, M/s Construction Guild had submitted document showing annual turnover for the same year 2013-2014 at Rs.7,13,41,367.00. Both documents were issued by the same Chartered Accountant i.e. M/s S. Kumar Agarwal & Associates, Sivasagar. Noticing the apparent mismatch in the annual turnover figure for the same year i.e. 2013-2014, the ONGC had carried out a verification exercise to ascertain the authenticity of both the turnover certificates. In the process, the Chartered Accountant M/s S. Kumar Agarwal & Associates, Sivasagar issued a letter dated 19.09.2015 informing ONGC that the certificate of gross annual turnover for Rs.7,13,41,367.00 was not prepared by them. It had only issued certificate of gross annual turnover for Rs.4,13,41,367.00 to the proprietor of M/s Construction Guild. On the basis of the materials received, ONGC nominated an Independent Officer on 06.01.2017 to conduct an enquiry by following the principles of natural justice. Pending completion of the enquiry, business dealing with M/s Construction Guild was ordered to be kept in abeyance. Enquiry Report dated 31.01.2017 was submitted by the Enquiry Officer with recommendation that M/s Construction Guild be put on holiday for two years. It is seen that the Enquiry Report was prepared having regard to materials on record, the show cause notice dated 25.04.2017 issued to the petitioner and the response/reply dated 08.05.2017 so received from the petitioner.
(3.) The challenge made to the order dated 23.10.2017 is primarily on the ground that the same was issued without affording opportunity of personal hearing to the petitioner. It is submitted that although show-cause notice was issued, to which the petitioner duly replied, it was imperative that the petitioner should have been afforded personal hearing on the matter in consonance with the principles of natural justice. In this respect, both parties placed reliance on the law laid down by the Supreme Court in respect of the procedure to be followed leading to blacklisting. Reliance has been placed chronologically in the case of (i) M/s Erusian Equipment & Chemicals Ltd. v. State of West Bengal and Another, 1975 1 SCC 70; (ii) Raghunath Thakur v. State of Bihar and Others, 1989 1 SCC 229; (iii)Patel Engineering Limited v. Union of India and Another, 2012 11 SCC 257; and (iv)Gorkha Security Services v. Government (NCT of Delhi) and Others, 2014 9 SCC 105.;
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