SHRI BARFANI SECURITY SERVICE Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition, the petitioner has challenged the communication dated 28.02.2019 Annexure P/6 rescending the contract and debarring the petitioner from participating in the tender for executing the balance work and forfieting security deposit and further providing that performance guarantee will be encashed. The petitioner has also challenged the communication dated 06.03.2019 Annexure P/7 whereby a sum of Rs.6,68,850/- is sought to be deducted by the respondents from the running bill of the petitioner of another contract, the communication dated 05.04.2019 (Annexure P/8) whereby the petitioner has been informed by the respondents reiterating that a sum of Rs.6,68,850/- will bededucted from his bill in furture and has also challenged the order dated 05.04.2019 (Annexure P/9) whereby the petitioner's representation has been rejected.

(2.) The case of the petitioner is that the respondents had issued the NIT for outsourcing of Combined Crew Booking Lobby to work as Data Entry Operator to work in Crew Management System at Jabalpur (JBP), Katni (KTE), Satna (STA) and Beohari (BEHR) for a period of 730 days (2 years). The petitioner had submitted the bid which was found to be lowest and the Letter of Acceptance (LOA) dated 11.01.2019 was issued to the petitioner. According to the petitioner, the LOA was received on 21.01.2019 by one Mr. Abhishek Tiwari who was an employee of the petitioner firm but not an authorized signatory to accord his acceptance on the LOA. Further case of the petitioner is that the LOA was neither stamped nor signed by the authorized signatory. The petitioner had received the letter dated 28.01.2019 from the Office of the Senior DEE/TRO requiring the petitioner to commence the service within 15 days which was not done and the petitioenr was issued a notice to deploy the full quantity of skilled labour within 48 hours. The petitioner had sent the communication dated 29.01.2019 to the respondents to clarify as to what work is required by his personnel so that the work awarded under the contract can be carried out smoothly and the agreement could be executed expeditiously. The petitioner had participated in the tender as MSME, therefore, he was not required to deposit earnest money (E.M.D.). Vide letter dated 28.01.2019, the respondents had directed the petitioner to furnish performance guarantee amounting to Rs.6,58,850/-. Further case of the petitioner is that there were no clarity about the terms of the condition of the LOA, therefore, the performance guarantee was not deposited and the railway department had never supplied the information with regard to number of workers and the kind of expertise required, therefore, the petitioner had not entered into the contract. The petitioner had sent its staff for training as per the terms and six days training was given to staff for which the raiway was required to issue the suitability certificate. But at this stage the impugned communication dated 28.02.2019 was issued rescending the contract and forfieting the security amount and providing for encashment of performance guarantee.

(3.) The respondents have filed their reply taking the stand that it was a concluded contract as LOA was issued and that the LOA was acknowledged and accepted by the employee of the petitioner on behalf of the petitioner firm and that by not depositing the performance guarantee amount, the petitioner firm had violated the mandatory condition of the LOA which amounts to breach of contract. Further stand of the respondents is that it was no where mentioned in the acceptance letter that the receiving of the letter will be issued by the authorized signatory of the Company. In respect of recovery of amount from other contract, the stand of the respondents is that the respondents do not intend to forfiet or recover the amount from other contract but they are withholding the said amount as deduction is the process and method and that they will only withhold that amount as performance guarantee amount with them unless and until the dispute is resolved by the Court of law or by any other method.