RAJESH SHANKAR,J. - (1.) The present writ petition has been filed for quashing the letter no. GM(B&K)/ SO(M)/CT/AKK OCP/OB/DEBARRING/179 dated 12.10.2017 issued by the Staff Manager (Mining) of M/s Central Coalfields Limited (respondent no. 5) whereby the Letter of Acceptance in favour of the petitioner vide LOA No. CCL/GM(CMC)/B-K/2017/51/57 dated 15.8.2017 and work order no. GM(B&K)/SO(M)/CT/AKK OCP/ OB,A/VO/107 dated 29.8.2017 have been cancelled and imposed penalty by way of forfeiture ' of earnest money of Rs. 50,00,000/- deposited by the petitioner and also debarred the petitioner for a period of three years from participating of future tenders of Central Coalfields Limited (hereinafter referred to as "the CCL") in individual capacity or as joint venture. Further prayer has been made for issuance of direction upon the respondents to execute formal contract between the parties in terms of Clause 23 of the Instructions to Bidders with respect to Tender of "Hiring of HEMM for removal of OB at outsourcing patch of Konar part of AKK OCP of B-K Area for a period of four years".
(2.) The factual background of the case as stated in the writ petition is that the respondent no. 1 published an e-Tender Notice being NIT No. CCL7GM(CMC)/B-K/ 2017/51 dated 15.5.2017 inviting bids for the Hiring of HEMM for removal of OB including blast hole drilling, blasting, excavation loading and transportation of all kinds of soil, rocks, broken rocks, hard rocks, extraneous materials including mixed soil, mixed hard soil, clay soil, pebbles, stone etc. and dumping outside the working zone including spraying at haul road face at dump yard. The job involves making access trench/haul road with dozing grading maintenance and water sprinkling as may be required, face pumping or excavation operation as per instruction of the engineer-in-charge of AKK OCP Mine of B&K Area for a period of four years. The petitioner found itself eligible for the work and submitted its bid on 30.5.2017 and in financial bid it was found L-1 bidder. The respondent intimated the petitioner on 15.8.2017 via e-mail that it has been awarded the work and served it a letter of acceptance vide Ref. No. CCLGM(CMC)/ B-K/2017/51/57 dated 15.8.2017. As per the Letter of Acceptance, the petitioner had to deposit the Performance Guarantee of Rs. 2,04,04,894/- in the forms as detailed in clause no. 24 of the Instructions to Bidders and to submit additional performance security of Rs. 16,06,24,850/- along with normal performance security as per clause 20.2 of the Instruction to Bidders within a period of 28 days from date of issuance of Letter of Acceptance. The petitioner duly applied for the Bank Guarantee on 16.8.2017 to the satisfaction of the Banking authorities before the bank namely State Bank of India SME Branch, Dhanbad. The project site was handed over to the petitioner by the respondents vide letter dated 18.8.2017 for starting of work with immediate effect. Thereafter the petitioner deputed its man and machinery and arranged finance to start the work. The work order being No. GM(B&K)/SO(M)/ CT/AKK OCP/OB/WO/107 dated 29.8.2017 was also issued in favour of the petitioner. The Respondent No. 5 also informed vide letter dated 6.9.2017 received on 12.9.2017 by the petitioner for furnishing performance security and additional performance security along with normal performance security within time. The Bank Guarantee was delayed by the Bank and accordingly the Bank vide e-mail dated 8.9.2017 informed the respondent no. 3 that the Bank is under process of issuing the Bank Guarantee in favour of the respondent-CCL on request of the petitioner and the same will be issued shortly in terms with above Letter of Acceptance dated 15.8.2017. The petitioner, vide letter dated 12.9.2017 also informed the respondent no. 3 about the said delay on the part of the Bank in handing over the Bank Guarantee to the petitioner and thus the petitioner sought extension of three days from the respondent for submitting the Bank Guarantee. However, the respondent did not respond to the said letter of the petitioner. On 15.9.2017, the petitioner submitted four Bank Guarantees executed with effect from 11.9.2017 for a period of four years three months vide forwarding letter dated 14.9.2017, however, the petitioner was not allowed to start the work and accordingly vide letters dated 26.9.2017 and 27.9.2017 requested the respondent no. 3 to accept the Bank Guarantee and allow the petitioner to start the work. It further informed that the man and machinery is lying idle at the site, however, the respondent no. 3 did not respond to the said letter. Thereafter, the petitioner approached the Chief Vigilance Officer, Central Coalfields Limited vide letter dated 29.9.2017 and requested to look into the issue and further visited the office of the respondent-CCL on 12.10.2017, however, all went in vein. Suddenly on 13.10.2017, vide e-mail, the petitioner was in receipt of a letter dated 12.10.2017 whereby the respondent no. 5 cancelled the Letters of Acceptance dated 15.8.2017 and imposed penalty of forfeiture of earnest money of Rs. 50,00,000/- deposited by the petitioner and also debarred it for a period of three years from participating in future tenders of CCL relying upon clause 23 of Instructions to bidders and on clause 4 of the General Terms and Conditions of the Contract. During the pendency of the writ petition, the respondent-CCL floated fresh tender being NIT No. CCL/GM(CMC)/ B-K/2017/81 dated 12.12.2017 with respect to the work in question and as such, the petitioner sought to add the additional prayer in the writ petition for quashing the fresh tender by filing I.A. No. 9824/2017 and vide order dated 8.1.2018, the respondents were directed not to finalize the subsequent tender.
(3.) Mr. Anil Kumar Sinha, the learned Senior Counsel for the petitioner, submits that the impugned order dated 12.10.2017 has been passed in violation of the principles of natural justice as no any opportunity of hearing was given to the petitioner before passing the impugned order. It is further submitted that the impugned order has been passed on no fault of the petitioner as delay caused in depositing Bank Guarantee was beyond control of the petitioner, rather it was caused due to non-availability of the sanctioning authority of the Bank. It is further submitted that the petitioner has already deputed men and machineries at the work site and impugned order will cause irreparable loss to it. While referring to Annexures-7 and 8 to the writ petition, learned senior counsel appearing for the petitioner submits that the State Bank of India, SME Branch, Bank More, Dhanbad vide letter dated 8th September, 2017 informed the General Manager (CMC), Central Coalfields Limited, Ranchi inter alia that the request of the petitioner for issuance of bank guarantee is under active consideration and the same is under process and the bank guarantee is likely to be issued shortly in terms with the Letter of Acceptance dated 15th August, 2017. On 12th September, 2017, the petitioner also wrote a letter to the General Manager (CMC), Central Coalfields Limited, Ranchi, informing that the Bank has agreed to sanction the bank guarantee in the form of the performance bank guarantee within the specified period, but the same could not be formally issued due to absence of Deputy General Manager of the Bank, who is the signing authority for issuance of bank guarantee/ performance bank guarantee for the contract in question.;