- (1.) PETITIONERS by way of filing the present writ petition under Article 226 of the Constitution of India have prayed for issuance of an appropriate writ/ order/ direction for quashing of (i) the letter bearing Reference No. CCL/ RNC/GM (MM)/185 dated 28.8.2012 and the letter bearing Reference No. MM(P)/III/SCSR/QSS/2009/1755 dated 2.9.2011 issued by the respondent General Manager (MM) whereby the petitioners have been directed to replace 2541 numbers of self rescuer SCSR - 30 minutes duration of Batch No. ARAL, based on the advice rendered by the respondent GM (Safety), CCL, Ranchi (ii) the advice rendered by the respondent GM (Safety), CCL, Ranchi vide his letter No. S&R/SCSR/2011/632 dated 29/30.7.2011 as well as Letter No. S&R/SCSR/2011/685 dated 16.8.2011 whereby Practical Performance Test report for the samples of equipments forwarded to the General Manager (Rescue Services), Mine Rescue Station, Sitarampur, ECL vide Letter No. CGM (S&R)/ Sample of SCSR Testing/10/879 dated 13.12.2010 were alleged to have been found to be defective (iii) the letter bearing Reference No. CCL/DT(OP) /MM/III/SCSR/QSS/2009/21/12/210 dated 20.7.2012 issued by the Respondent Director (T) & (O) CCL, Ranchi whereby a request has been made to withhold the monetary claims of the petitioner or any of its sister concern/ Principal and had sought a confirmation as to the amount of pending bills for necessary action on account of the inability of the petitioner to replace 2541 number of Self - Rescuers alleged to have been found defective in course of inspection (iv) for issuance of a writ directing the Respondents to complete the Acceptance Test in accordance with the statutory provisions and the attendant circulars issued under the Coal Mines Regulations, 1957 and the terms and conditions of the Supply Order dated 14.9.2009 and direct the respondents for payment of outstanding balance of 20% of the contractual amount and (v) for issuance of a further writ directing the respondent CCL to withdraw the invocation of the Performance Bank Guarantee dated 23.9.2009 for a sum of Rs. 1,09,36,623.60/ - and pending final adjudication of this writ application the respondents may further be restrained from realization of the aforesaid amount as against the invoked Performance Bank Guarantee. Heard the learned counsel for the petitioners as well as learned counsel for the respondents and perused the materials placed on record. Brief facts of the case are as under: Respondent - Central Coalfields Limited vide supply order dated 14.9.2009 requested the petitioners to supply the material as per details given in the supply order in accordance with terms and conditions enumerated in the said supply order and the general terms and conditions of supply enclosed as Annexure -IV and subsequent amendment issued by Central Coalfields Limited from time to time. Accordingly, the petitioners - Company supplied Oxygen Type Self Rescuers as per the supply order but the respondent - Central Coalfields Limited vide its communication dated 2.9.2011 informed the petitioners -Company that out of the supply the Batch marked ARAL totaling 2541 numbers are to be replaced on the basis of test result and as per the conditions of the aforesaid supply order. Accordingly, petitioners -Company was advised to replace the entire quantity of Batch marked ARAL by the respondent - Central Coalfields Limited. Thereafter the petitioners -Company informed the respondent - Central Coalfields Limited that according to clause -17 of the said supply order if any inspected or tested goods fail to conform to the specifications the purchaser may reject them and the supplier shall either replace the rejected goods or make all alternatives necessary to meet specification requirements free of cost to the purchaser. According to the petitioners -Company, the test report provided to the petitioners -Company by respondent - Central Coalfields Limited indicates that the units were not tested in accordance with the specifications detailed in the supply order and therefore, the request was made for re - testing in accordance with technical specifications of Self -Contained Self Rescuers or Oxygen Type Self Rescuers of 30 minute duration. Thereafter, the petitioners -Company vide its communication dated 4.2.2012 and 22.3.2012 requested for re -testing. In response to the said letters of the petitioners - Company, the respondent - Central Coalfields Limited vide its letter dated 4.7.2012 informed the petitioners -Company that the representations for re - testing made by the petitioners -Company have been examined by the concerned Department but the request for re -testing cannot be accepted as there is no provision for re -testing in the supply order and DGMS approval. In the said reply, it was further informed that the issue raised by the petitioners - Company in their representation regarding observation of procedure for Practical Performance Test adopted and presence of representatives have also been examined . The General Manager (Rescue Services), Mines Rescue Station, Sitarampur, ECL has confirmed the following: (i) Supplier 'srepresentative was available at site at the time of practical performance test at ECL. (ii) The practical performance tests were done according to the standards for 30 minutes ACSR unit. (iii) The apparatus were tested by the test subjects who practice regularly with the apparatus.
(2.) THEREFORE , the petitioners -Company was requested to replace the rejected materials. Respondent -Central Coalfields Limited also vide its letter dated 20.7.2012 once again replied to the petitioners -Company and reiterated what has been stated earlier and also referred clause -17 of the supply order and informed the petitioners -Company that you have misquoted the clause -17. Respondent -Central Coalfields Limited finally vide its letter dated 28.8.2012 informed the petitioners -Company that the representations submitted by them were thoroughly examined and accordingly, reply was also sent and therefore, the petitioners -Company was asked to replace the material within 15 days.
(3.) BEING aggrieved and dissatisfied with the above stand of the respondent -Central Coalfields Limited, the petitioners have approached this Court under Article 226 of the Constitution of India for redressal of its grievance against the respondent - Central Coalfields Limited. Learned counsel for the petitioners, while referring supply order (Annexure -1), submitted that the clause -17 of the said supply order provides for inspection and completion of acceptance test and the Practical Performance Test as per clause -17 of the supply order is required to be carried out in accordance with the Indian Standard Respiratory Protective Devices Self Contained Closed Circuit Breathing Apparatus Chemical Oxygen (KO2) Type, Self Generating, Self Rescuers - Specification prescribed by Bureau of Indian Standard. According to the learned counsel for the petitioners Practical Performance Test was not carried out in accordance with the standard prescribed by the Bureau of Indian Standard. Learned counsel for the petitioners submitted that procedures/methods which were required to be followed during the Practical Performance Test as laid down by the Bureau of Indian Standard have not been followed at the time of conducting Practical Performance Test. The nature and time of different activities prescribed for Practical Performance Test by the Bureau of Indian Standard were also not followed and therefore, the petitioners - Company time and again represented to the authorities of the respondent - Central Coalfields Limited for re -testing at the cost of the petitioners - Company. However, the respondent - Central Coalfields Limited did not agree with the request made by the petitioners -Company and thereby asked the petitioners -Company to replace the self rescuer Batch No. ARAL totaling 2541 numbers of self rescuer as there is no provision for re -testing in the supply order. In this context, it is submitted that since there is no specific provision whereby re -testing is prohibited in the supply order the respondent can be directed for re -testing by the Court. In support of this submission learned counsel for the petitioners has referred to and relied upon the decision given in the case of Nihal Khan versus The State (Govt of Nct of Delhi), reported in 2007 CriLJ 2074, by Delhi High Court. Learned counsel for the petitioners has also cited decision given in the case of M/s. Real Estate Agencies versus Govt. of Goa and others, reported in 2012 (4) JLJR 353 in support of his submission regarding maintainability of the petition under Article 226 of the Constitution of India. As against that, the learned counsel for the respondent - Central Coalfields Limited submitted that the petitioners - Company was given supply order as per the terms and conditions which were incorporated in the supply order dated 14.9.2009. It is further submitted that the Practical Performance Test was carried out in terms of clause -17 of the said supply order. It is further submitted that the said Practical Performance Test was carried out in accordance with the Indian Standard as prescribed by Bureau of Indian Standard in presence of the representative of petitioners -Company. Since Batch No. ARAL, totaling 2541 Self -Contained Self Rescuers (SCSR), was found defective, the petitioners -Company was asked to replace the same. However, the petitioners -Company raised dispute about the Practical Performance Test, which was carried out by the General Manager (Rescue Services), Mines Rescue Station, Sitarampur, ECL. It is submitted that the petitioners - Company was informed by the respondent - Central Coalfields Limited to replace the said equipments. However, the petitioners -Company instead of replacing the same insisted for re - testing. It is further submitted that the respondent -Central Coalfields Limited categorically informed the petitioners -Company that there is no provision for re -testing in the supply order and therefore, the petitioners -Company was asked to replace the said equipments. Learned counsel for the respondent -Central Coalfields Limited submitted that the supply order was placed for life -saving equipments, which are provided in the mines for the safety of the workers working under the mines. The said equipments are produced on the direction of DGMS under the Mines Act and therefore, the respondents cannot compromise under any circumstance with the quality of such equipments as per DGMS circular. It is further submitted that supply was made by the petitioners in three batches. The last batch containing 2541 units on testing did not pass the Practical Performance Test. The joint sampling was done on random basis and sent 38 samples to the General Manager (Rescue Services) Mines Rescue Station, Sitarampur, ECL for the Practical Performance Test in presence of both the parties and after obtaining test result it was found that the same did not confirm to the prescribed standard and accordingly, the decision was taken to direct the petitioners to replace the batch as per the condition mentioned in the agreement. Learned counsel for the respondents further submitted that the present petition filed by the petitioners is not maintainable as the same is arising out of supply order and there are disputed questions of fact, which cannot be decided by this Court in the writ jurisdiction. Considering the aforesaid rival submissions, it appears that the supply order (Annexure -1) dated 14.9.2009 has been given to the petitioners by the respondents and therefore, the condition enumerated in the said supply order is required to be observed by the parties. Clause -17 of the said supply order reads as under: "17. (a) INSPECTION: No pre -dispatch inspection shall be carried out in case of FOB delivery. However final inspection will be carried out at the consignee end by the consignee. Should any inspected or tested goods fail to conform to the specifications the purchaser 6/5/2014 Page 44 Pushpa Prasad Versus State Of Jharkhand may reject them and the supplier shall either replace the rejected goods and make all alternatives necessary to meet specification requirements free of cost to the purchaser. The materials will be inspected on arrival at site by the consignee, which will be considered as final. This shall in no way be limited or waived by reason of the goods having previously been inspected, tested and passed by the Purchaser or its representatives prior to the dispatch of Goods. The supplier would be required to submit an assembly -wise parts Catalogue to this office, in addition to other manuals as given in the Technical Specifications. Any terms and conditions of supply, not specified above, will be governed by the General Terms and Conditions of Supply of CCL. (Annexure -IV) (b) COMPLETION OF ACCEPTANCE TEST: From every batch of supply of SCSR units, samples at the rate of three percent (3%) subject to minimum of nine units shall be drawn at random for the testing by a joint sampling team comprising of representative from manufacturer/ supplier and user at user 'ssite. Fifty percent (50%) of the above drawn samples (subject to minimum six units) shall be sent to CIMFR/ISMU for full bench test as per EN401 or equivalant Indian Standard and rest of the sample units (subject to a minimum of three) shall be subjected to practical performance test for the rated duration and the users comfort at the Mines Rescue Station. The batch of supply for which all the test result of the samples (100%) are found satisfactory shall only be accepted and put to use. In case of unsatisfactory test result even for a single sample, either at the laboratory or in the practical performance test, the entire batch of supply shall not be accepted. Certified result of the above stated laboratory test as well as practical performance test shall be counter signed by the sample drawing team. The liability for testing including cost involved shall be on account of manufacturer/ supplier. Payment shall be released only after inspection and completion of acceptance test successfully." ;