LAWS(ORI)-2024-4-151

GAYATRI AGENCY Vs. PARADIP PORT TRUST

Decided On April 15, 2024
Gayatri Agency Appellant
V/S
PARADIP PORT TRUST Respondents

JUDGEMENT

(1.) M/s Gayatri Agency, a proprietorship concern, represented though its Senior General Manager, has approached this Court by filing the present writ petition seeking to quash the decision of the Executive Engineer, Port Electrical Division-II-opposite party no.2 taken, vide order dtd. 12/3/2021 bearing reference no. EM/PED/TECH-13/2019/195 under Annexure-26, terminating the agreement and work order dtd. 10/8/2019 issued, pursuant to e-tender notice dtd. 30/10/2019 for 'Revamping of 11 KV HT Electrical Distribution Systems at different locations at Paradip', and forfeiting the security deposit of the petitioner and debarring the petitioner from participating in the future tenders of Paradip Port Trust for a period of 7 years with effect from 12/3/2021, by invoking Clause 39 of Instructions to Bidder (ITB) read with Clause 12.4 of General Conditions of Contract (GCC).

(2.) The facts of the case, in brief, are that the petitioner is a proprietorship concern having registration under the Micro, Small, and Medium Scale Enterprises Act, 2006 and National Small Industries Corporation. It is operating as an electrical construction agency having its registered office at 427/428, 1st Floor, PO/PS: Pahala, Bhubaneswar, Khordha. The Paradip Port Trust-opposite party No. 1, which is a Public Sector Undertaking under the aegis of the Government of India, issued the e-tender notice on 30/10/2019 for 'Revamping of 11 KV HT Electrical Distribution Systems at different locations at Paradip'. The petitioner, being found to be the successful bidder, was awarded with the work, vide work order dtd. 10/8/2020. As per the terms and conditions of tender, the bidders had to procure the RMU-GIS unit, an electrical component for revamping of the electrical distribution system from one of the four vendors approved under the tender documents and, thereafter, carry out revamping work at the work site. The petitioner had submitted its bid by including specifications of the RMU-GIS unit as supplied by M/s Schneider Electric, one of the four such approved vendors. After scrutiny of the same, the opposite parties found the petitioner to be techno-qualified along with four other bidders. Thereafter, the financial bid of the petitioner was also accepted and it was awarded with the work order on 10/8/2020. Immediately thereafter, on 11/8/2020, the petitioner submitted the drawings and Guaranteed Technical Particulars (GTP) for approval of the opposite parties so that it could proceed with material procurement and execution of the work order within the project timelines. The petitioner issued repeated reminders for early approval, but the opposite parties failed to approve the drawings and GTP and, on the other hand, vide impugned order dtd. 12/3/2021, terminated the work order, forfeited the securities deposited by the petitioner and debarred the petitioner from participating in future tenders of the opposite parties for a period of seven years. Hence, this writ petition.

(3.) Mr. S.K. Dash, learned counsel appearing for the petitioner vehemently contended that the action taken by the opposite parties is extremely harsh and not proportionate to the default alleged to be committed by the petitioner. As such, the order so passed does not mention about the reasons for the impugned action. Without affording any opportunity of hearing to the petitioner, the cancellation of work order is in violation of Clause 39 read with Clause 6 of the ITB. The delay in approval of the drawings and GTP is attributable to the opposite parties only. The debarment Clause-12 of the General Conditions of Contract provides that the opposite parties may debar the contractor/ petitioner, in the event of termination, due to default. As such, there is no provision for debarment of seven years under the tender conditions, as has been done by the opposite parties. The penalty of debarment is also a discretionary penalty which also indicates that the imposition of such penalty should be accompanied by reasons showing judicious application of mind and not ordinarily.