Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties.
(2.) The appellant Food Corporation of India is aggrieved by the order dated 14.08.2015 passed in WPC No. 1436 of 2015 with WPC No. 1458 of 2015 whereunder the learned Single Judge quashed the order of termination of petitioner's contract and debarment from participating in future tenders for a period of five years and directed to refund the earnest money to the petitioner. Learned Single Judge, however, refused to interfere in the fresh tender notice issued by the respondent-corporation.
(3.) Under the Tender Notice No. 2/2013 dated 01.09.2013 appellant, Food Corporation of India invited tenders for appointment of R &T Contractor for handling and transportation of food grain from Railhead (RH), Madhupur to inside PEG, Jamtara and vice versa. Writ petitioner turned out to be successful. By letter dated 21.11.2013, the competent authority under the Food Corporation of India communicated the acceptance of the tender for two years w.e.f 21.11.2013 to 20.11.2015 at the quoted rate 475% ASOR. Petitioner was asked to furnish security deposit of Rs. 16,80,000/-, bank guarantee of Rs. 33,60,000/- in the format prescribed in Appendix-IV and additional bank guarantee of Rs. 33,60,000/- in the format prescribed in Appendix-V as performance guarantee in favour of the Food Corporation of India. As per the terms and conditions of the MTF, petitioner submitted security deposit through letter dated 09.12.2013 for Rs. 1,68,000/- only, though the last date of submission was 07.12.201 He was reminded vide letter dated 24.12 .2013 to deposit bank guarantee of the amount indicated earlier in the formats indicating that since the last date for submission of bank guarantee had already lapsed on 07.12.2013 (Clause -7(ii) of MTF) would be applicable. Petitioner deposited a single bank guarantee of Rs. 67,20,000/- on 17.01.2014 instead of two separate bank guarantees in favour of the Food Corporation of India, as per terms and conditions of MTF and without penalty amount. Petitioner approached this Court, thereafter in WPC No. 6582 of 2014 for a direction upon the respondent, Food Corporation of India to allot work order for handling and transportation of food grain from Railhead (RH), Madhupur to Jamtara and the return away. It asserted that despite representations, no work order had been issued. During the pendency of the writ petition, the order dated 11.02.2015 terminating the contract and debarring him from participating in future tenders for five years was issued which became the subject matter of the instant writ petition WPC No. 1436 of 2015. Writ petition WPC 6582 of 2014 was dismissed with liberty to the petitioner to challenge the order dated 11.02.2015, vide order dated 17.02015 (Annexure-17 to the writ petition). Petitioner was served with a show cause notice on 20.01.2015 asking him to explain as to why the contract be not terminated and the earnest money be not forfeited and further why the Corporation should not proceed to appoint another Contractor and to recover the losses and damages arising out of the contract with the petitioner. Petitioner was also required to show cause as to why he be not debarred in participating in future tenders of Corporation for a period of five years. Under the show cause, the Corporation pointed out the following discrepancies: (a) Writ petitioner had submitted only one bank guarantee amounting to RS. 67,20,000/- in Appendix-IV format only, instead of two bank guarantees of Rs. 33,60,000/- in different formats. (b) The validity period of the bank guarantee was up to 15.01.2016, while as per Model Tender Form Clause No. 7(i)(b)(c), it shall be enforceable till further six months after completion of contractual period up to 20.05.2016 (from the date of communication of acceptance of the offered rate of 475% ASOR). (c) Instead of the word "tenderer", the word "tendered" was indicated in the bank guarantee at points no. 6 and 7 and the date has been mentioned as 15.01.2016 instead of 20.05.2016 at Points No. 5 and 8 of the Bank Guarantee. (d) The earlier bank guarantee was modified and made valid till 15.01.2016. (e) The bank guarantee was valid up to 15.01.2016, whereas at Clause 'C' it had indicated that the bank would be liable to pay the guarantee amount or any part thereof under this Bank Guarantee only and only if the Corporation served upon them written claim or demand on or before 15.07.2016. The corporation alleged that despite extended time limits, rectification of the defects and shortcomings in his documents were not corrected, instead the writ petitioner was dragging his feet, haggling and coming forth with one or other excuse. It also referred to the writ petition filed by the petitioner before the High Court and alleged that the aforementioned laches and defaults were deliberately suppressed by him. Show cause notice dated 20.01.2015 required the petitioner to furnish his reply within seven days. The writ petitioner replied on 28.01.2015, inter alia, stating that the notice is unwarranted and misconceived, issued after filing of the writ petition. The writ petitioner was granted further five days time by reminder dated 04.02.2015 to respond to the notice. Petitioner again furnished his reply on 08.02.2015 reiterating his earlier stand. The impugned order was passed on 11.02.2015, inter alia, holding that he had failed to reply to the show cause even within the extended time. It referred to the terms of Clause X (b) and XI (b) of the MTF and proceeded to terminate his contract and forfeit the earnest money without prejudice to any appropriate action as may be deemed fit to recover the loss. He was also debarred from participating in any future tenders of the Corporation for a period of five years. ;