WADIA TECHNO ENGINEERING SERVICES LTD Vs. NATIONAL HIGHWAYS & INFRASTRCTURAL DEVELOPMENT CORPORATION LIMITED & ORS

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 226 of the Constitution of India, inter alia, impugning an order dated 06.04.2018 passed by respondent no.1 (National Highway and Infrastructural Development Corporation Ltd. - hereafter "NHIDCL"), whereby the punitive measure of debarring the petitioner from participating in any contract or tender floated by NHIDCL for a period of two years, was confirmed.

(2.) The petitioner has also impugned a letter dated 27.04.2017 issued by NHIDCL to Kotak Mahindra Bank Ltd. invoking the bank guarantee furnished by the petitioner. Mr Krishnan, learned senior counsel appearing for the petitioner did not press the aforesaid relief. In any event, no such relief can be granted to the petitioner. First of all for the reason that the law relating to the bank guarantees is well settled and the invocation of the bank guarantee cannot be interdicted except in cases of egregious fraud, special equities and irretrievable injury. In the present case, no such ground is established. Secondly, the petitioner had filed a writ petition (W.P.(C) 1143/2018), inter alia, seeking a similar relief, which was not pressed.

(3.) By an order dated 20.11.2017, NHIDCL had debarred the petitioner from participating in any contract with NHIDCL for a period of three years. The petitioner had made a representation against the said order and the quantum of punishment imposed on the petitioner was - by an order dated 23.01.2018 - reduced to a period of two years. The petitioner had preferred a writ petition (W.P.(C) 1143/2018 captioned "Wadia Techno Engineering Services v. National Highways and Infrastructural Development Corporation Limited and Ors." impugning the decision of NHIDCL to blacklist the petitioner. The said punition was imposed on the petitioner for the reason that a fake Curriculum Vitae (CV) of one Mr Umesh Chand Shrivastava, who was disclosed as key personnel to provide the services as Trafficcum-Safety Expert, had been furnished under the INFRACON User ID "ucshrivastava2519@gmail.com". This ID has been found to be fake and the CV uploaded on the same was incorrect. Mr Shrivastava had filed a complaint that he had not created that ID or furnished the CV. He had also confirmed that the details in the CV were incorrect. This was informed to the petitioner and he was called upon to show cause as to why action should not be taken against the petitioner in terms of the RFP. The petitioner had responded by stating that there was some communication gap and that Mr Shrivastava was in discussion with petitioner's associate - M/s ZOMA Consulting Engineers (respondent no.4). The petitioner also explained that there was an anomaly by an oversight. Since, it was evident that an incorrect CV of key personnel under a fake ID had been submitted, the petitioner was visited with the punitive measure. The petitioner challenged the same on several grounds including that the petitioner was not responsible for submission of fake CV and that the same was committed by its associate M/s ZOMA Consulting Engineers. The petitioner had also claimed that the punishment imposed was disproportionate. This Court had examined the aforesaid challenge and concluded that no interference with the decision of NHIDCL to impose punishment on the petitioner was warranted. The contention that the petitioner was not aware of the incorrect statement was found to be unmerited, as the petitioner had expressly confirmed that "the information submitted in Infracon is true and correct to the best of my knowledge and I would be personally responsible for any misrepresentation in this regard" and, therefore, the petitioner could not be absolved of the responsibility of an incorrect statement in the bid document.