Dipankar Datta, J. - (1.) The Director, Railway Stores (M), Railway Board issued Memorandum dated November 3, 2015, observing, inter alia, that the first petitioner had indulged in malpractices/irregularities (as detailed in a statement of charges/misconduct forming an enclosure thereof) and conveyed that the Government of India proposes to ban business dealings for a period of five years by the Indian Railways and Production Units etc. with the first petitioner. Consequently, the first petitioner and its allied/sister concerns were given an opportunity to show cause against the action proposed and called upon to submit its representation within 30 days failing which it would be presumed that the first petitioner and its allied/sister concerns have no representation to make against the proposed action and that final decision on merits would follow. The enclosure thereof, containing statement of charges/misconduct, reads as follows: "1. M/s. Bahn Technology Pvt. Ltd., 3A, Mangoe Lane, 2nd Floor, Kolkata - 700 001(W.B.) participated in Northern Railway's tenders as authorized agent of M/s. Fessel Industrietechnik GmbH, Freytagstra Be 42, 40237, Dusseldorf, Germany Tel:021169066 -0 for supplying various types of SMB Fessel Make Hydraulic Pumps/Motors and its spares. CMPE/DSL/Northern Railway vide letter No. 516 -M/310 -General/ML -3 dated 11.07.2007 had sought clarification from Railway Advisor, Berlin as under: - - 'M/s. Fessel Make Hydrostatic Fan Motors/Plumps are being used on CLW built diesel Hydraulic locomotives for the last 5 -6 years. Now a doubt had been raised on the existence of this firm by SECR. The particulars of the firm available with NR are as under: - - Name of firm: M/s. FESSEL Industrietechnik GmbH,Freytagstra Be 42, 40237, Dusseldorf, GermanyTel: 0211 69066 -0, FAX: 0211 69066 -66e -mail:info@smbgmbh.comCompany Registration Nr. Is HRB -36741VAT(USt. ID. Nr.) Nr. Is DE203153756 It is requested to kindly check the details given above in Germany and confirm the existence of M/s. Fessel'. Technical Assistant to RA, Embassy of India, Railway wing, Berlin vide letter No. RA/Assessment/Fessel/07/1 dated 15.10.2007 had confirmed the following to CMPE/DSL/Northern Railway: 'With reference to the above, the telephone No. furnished in the letters under reference was contacted and the following information obtained from one Mr. Klevert at the other end who apparently answers queries on behalf of M/s. Fessel Industrietechnik GmbH: 1) The telephone No. and the premises at Freytagstrasse 42, Dusseldorf is that of a lawyer. The company is registered under this postal address and any query regarding M/s. Fessel is being received by this office and is being redirected to Mr. Rajest Agarwal in India. 2) M/s. Fessel Industrietechnik GmbH has no manufacturing activity whatsoever at the given address in Dusseldorf'. 2. The purchase order No. 16.11.5128.1.63082 dated 01.03.2012 was placed on M/s. Bahn Technology Pvt. Ltd., Kolkata for supply of Journal Cross Assembly for Under Truck Cardon Shaft of SMB Fessel make to C&D No. 207/1000,GWB 36715 for ZDM3 Loco, Drawing No. 71.90.50.06.00.010. The subject item was passed for fourteen(14) Nos. vide Inspection Certificate No. E/NR/E 12031220/PP/26.03.13.32 dated 11.04.2013 on the basis of the drawing provided by the supplier. Subsequently, the material was rejected by the consignee as it was found unsuitable with respect to Drawing No. 71.90.50.06.00.010 mentioned in Purchase order. A joint Inspection by representatives of the firm, Consignee & Rites was held on 26.09.2013. During Joint Inspection, the following deviations were noticed: a) Diameter of cup was found to vary from 72.60 mm to 72.64 mm as against the specified value of 65+0.75/+0.11 mm. b) Length of shaft was found to vary from 171.2 mm to 171.4 mm as against the specified value of 202 mm. General Manager/Inspection RITES Ltd./Kolkata, Eastern Region/Kolkata vide letter No. RITES/ER/GMI/CON (EN/13 -14/28) dated 11.02.2014 intimated that the rejection has been 'UPHELD' and had intimated that the drawing provided to Inspecting Engineer by the firm at the time of inspection and the drawing used during the Joint Inspection are different although both the drawings bear the same No. 71.90.50.06.00.010 as mentioned in the P.O. Thus, M/s. Bahn Technology P. Ltd./Kolkata had submitted the copy of drawing for inspection to inspecting engineers which is different than that provided for joint inspection and both the drawings bear same No. 3.0 Thus, M/s. Bahn Technology P. Ltd./Kolkata had participated in Northern Railway's tender and offered to supply SMB Fessel make Hydraulic Pumps/Motors and its spares manufactured by M/s. Fessel Industrietechnik GmbH even though M/s. Fessel Industrietechnik GmbH does not have manufacturing facilities. In one of the case, M/s. Bahn Technology P. Ltd./Kolkata had submitted the copy of drawings for inspection to inspecting engineers which is different than that provided for joint inspection and both the drawings bear same No. " The said memorandum is the subject matter of challenge in this writ petition dated December 17, 2015.
(2.) Appearing in support of the writ petition, Mr. Dutta, learned senior advocate contended as follows: "a) The proposal to ban business dealings based on the statement of charges/misconduct has been issued with a closed mind and reveals the biased attitude of the Director. The opportunity that has been extended to submit representation is, in reality, intended to complete a formality in law, in that the first petitioner is now required to dispel the conclusions that have already been drawn against it. Reliance was placed on the decision of the Supreme Court in Oryx Fisheries (P) Ltd. v/s. Union of India, reported in : (2010) 13 SCC 427, to seek judicial interdiction. b) The purported statement of charges/misconduct does not reveal any misconduct, thereby warranting interference by the Court of writ. c) The director has no power to ban business dealings. The pleadings in paragraph 33 of the writ petition were referred to by him, to contend that no punitive action is contemplated in terms of the terms and conditions of the contract entered into by and between the parties even if it were held that there has been a breach on the part of the first petitioner in discharging its contractual obligations."
(3.) Despite service of copies of the writ petition on the respondents, none has appeared on their behalf.;