- (1.) The present writ petition has been filed under Articles 226 /227 of the Constitution of India for issuance of writ in the nature of certiorari for quashing the order dated 15.07.2011 (Annexure P-8) whereby the petitioner has been debarred for a period of 3 years from doing business with the Haryana Government. The necessary facts enumerated in the writ petition are that the petitioner-company is an ISO 9001:2000 ISO 13485:2003 registered and the products are CE certified. The petitioner-company supplies medical equipments to the reputed hospital/medical institutes of India. Vide advertisement, respondent No. 2 invited tenders for supply of 2 electro surgical unit (cautery machine) and one skull clamp/head rest system. The advertisement was as per the requirement of the PGIMS, Rohtak, respondent No. 3. The petitioner had submitted its tender on 14.01.1999 and the dispute pertains only to the supply of skull clamp/head rest. The said product was not being manufactured by any Indian company and was to be imported from United States of America from principal manufacturer namely M/s Omi Surgical Products, 3924 Virginia Avenue, Cincinnati, OHIO 45227 and was to be supplied to respondent No. 3. The bids were examined by the technical committee and the high powered purchase committee and a supply order dated 26.03.1999 for supply of the skull clamp at the rate of US dollars 11142 was placed. The payment was to be made against letter of credit in favour of the principal manufacturer/supplier. The performa invoice dated 22.04.1999 was submitted by the principal supplier so that the letter of credit could be opened by respondent No. 2 on the basis of which the material was to be supplied by the principal manufacturer in USA. Since the payment was to be made to the principal manufacturer directly in US dollars, respondent No. 2 did not open the letter of credit for about two years from the submission of the performa invoice and ultimately opened the letter of credit on 01.02.2001. In the meantime, the principal manufacturer was bought over by M/s Schaerer Mayfield Sehweiz AG, Switzerland and due to the change in management, the concerned company took certain policy decisions pertaining to supply of products in India that they would not supply their products directly to the end user and would supply the products only to their authorised distributors. Since the supply order was pursued by the petitioner-company, it issued letter dated 22.10.2003 to respondent No. 3 intimating that the principal supplier had been bought over and the alternative letter of credit could be amended in the new name of the company. The petitioner even offered that supply could be effected if the equivalent value in Indian Rupees is paid to it so that it can import the product at their own level and a fresh performa invoice dated 15.09.2003 was furnished. However, the petitioner-company received show cause notice dated 14.05.2004 as to why it should not be debarred for a period of 3 years from doing business with the Haryana Government. The petitioner-company submitted its reply dated 26.05.2004 wherein it was mentioned that the letter of credit had been opened by respondent No. 3 on 01.02.2001 in the name of the principal company and by that time, the top management level of the principal company had undergone a change. The petitioner-company was prepared to supply the items even if the supply order was issued in its name in equivalent rupee value by authorizing it to import the equipment. The company had expressed the desire to supply the material in the year 2004 at the rates quoted in the year 1999 without raising any issue on the rates due to delay. No further action was taken on the show cause notice and the petitioner, thereafter, did not receive any notice from the respondents and the security amount of Rs. 22,000/- stood forfeited and the petitioner-company did not even agitate against the forfeiture considering it to be the ultimate decision of respondents in the show cause notice since the petitioner-company was supplying various surgical items from time to time. Suddenly, respondent No. 1 passed the impugned order dated 15.07.2011 without affording any opportunity of personal hearing to the petitioner-company and debarred it for a period of 3 years. The petitioner-company had been participating in the tenders issued by the respondents and even supplying equipments from time to time and details of various supplies made to the respondents were given. Accordingly, the said order dated 15.07.2011 was challenged that the same was passed after a period of more than 7 years from the date of issuance of the show cause notice.
(2.) In the written statement filed by respondents No. 1 & 2, it is pleaded that the company was to complete the supply by 19.06.1999 and the letter of credit was opened on 01.02.2001 but the petitioner-company had failed to execute the supply against the said order and an opportunity had been given to the petitioner-company to confirm within 15 days of the issuance of the letter dated 06.07.2001 that they were ready to supply goods against the order directly from the principal firm through letter of credit or not. Since the petitioner-company failed to make the supply of the skull clamp/head rest, a letter dated 14.08.2003 was issued that necessary action may be taken against the company as per rules and the aforesaid letter may be cancelled and accordingly, the supply order was cancelled and security amount was forfeited on 07.11.2003. The case was sent to the State Government, Haryana, Industries Department to debar the petitioner-company. A show cause notice was issued to the petitioners and reply dated 26.05.2004 was received. The petitioner had offered to arrange the supply after a period of 3 years but the reply was not accepted on the ground that the execution of the order was the responsibility of the bidder company and not of the principal supplier and that the petitioner had accepted the default in supply and had not requested for grant of any opportunity of personal hearing and the belated offer to supply the equipments after a period of more than 3 years was not acceptable in view of technology obsolescence. The Government of Haryana, thereafter, decided the matter by passing order dated 15.07.2011. The plea of alternate remedy regarding the issue being referred to arbitration was also raised. Accordingly, the impugned order was defended by respondents No. 1 & 2.
(3.) Similarly, in the written statement filed by respondent No. 3, it was pleaded that the petitioner was to supply the performa invoice against the supply order and in response to letter dated 15.04.1999, the performa invoice of the principal firm was supplied vide letter dated 10.05.1999 and the performa invoice had to be communicated in favour of the Director, Pt. B.D. Sharma, PGIMS, Rohtak and not in favour of the Director, Supplies and Disposal, Haryana. A letter was written to the petitioner-company to send the performa invoice of the principal firm in the name of the answering respondent. The performa invoice was sent but condition No. 4 was not acceptable wherein the shipment was to be made via Kintetsu World Express Inc., 2900 Earhart Ct. #260 Hebron Kentucky, 41048 U.S.A. and that against condition No. 7, it was mentioned that 90% payment would be released against the despatch of goods and 10% would be released to the Indian agent after satisfactory installation and demonstration of equipments. Letter dated 10.07.2000 was issued to the petitioner that if these conditions were accepted by the petitioner then only the letter of credit could be opened. The petitioner gave reply on 28.08.2000 but it was not the complete answer to all the queries made in the letter dated 10.07.2000 and another letter was issued on 18.10.2000 and the letter of credit was opened and amount of Rs. 5,28,000/- was deposited in the State Bank of India and inspite of the opening of the letter of credit dated 01.02.2001, the goods were not supplied wherein reply was received that there was some restructuring in the principal company which had delayed the shipment. Accordingly, the supply order had been cancelled on 07.11.2003 and the amount forfeited.;