INDIAN IMMUNOLOGICALS LIMITED Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner is a wholly owned subsidiary of the National Dairy Development Board of India, a body corporate set-up by the Government of India under an Act of Parliament, namely, National Dairy Development Board Act, 1987 (Act 37 of 1987). In this writ application it has challenged a Resolution of the State Government issued by the Animal and Fishery Development Department (in short "the Department"), contained in memo no. 818 dated 23.2.2011 (Annexure-1), by which it has been placed in the blacklist on the ground of non-supply of FMD (Foot and Mouth Diseases) vaccine in terms of the supply order contained in memo no. 64 dated 5.1.2011. Facts, as available on the records of the case, are that a tender notice was issued by the Department, vide Annexure-2, for supply of FMD vaccine, and other vaccines and items, for which last date for submitting tender was 29.7.2010 by 2.00 PM. The notice informed that tenders were to be opened at 2.30 PM on that very day in the office of the Principal Secretary, in which it was essential for the supplier or his authorized representative to be present. Tender notice also mentioned that successful tenderer had to get inscribed on the vials of vaccines "not for sale" and "for Bihar Government use only". It also mentioned that successful tenderer had to enter into agreement within one day.

(2.) It is not disputed that the petitioner submitted its tender for supply of FMD vaccines. Its tender was opened and it was found the lowest bidder, which was verbally informed to the representative of the petitioner. Case of the petitioner is that thereafter it kept on waiting for formal communication, in the form of a letter of acceptance communicating it to get the agreement executed and to make preparations to start the supply of vaccines immediately as in the tender notice itself it was mentioned that the vaccine had to be supplied by November, 2010. As per its case, after much waiting, it received the letter, contained in memo no. 64 dated 5.1.2011 (Annexure-3), at its Hyderabad office through fax on 7.1.2011, directing it to supply FMD vaccine to the 38 districts of the State by 16.1.2011, as per the quantity mentioned in the said letter. In this letter it was mentioned that petitioner was informed in writing through Department's letter no. 3940 dated 27.9.2010 that the rate at Rs. 6.49/- per doze of vaccine had been approved which had been accepted by the petitioner also. On receipt of this letter, by letter dated 11.1.2011, vide Annexure-4, it was communicated to the Director, Department of Animal and Fishery Development, Government of Bihar, Patna, on behalf of the petitioner, that it was not possible to supply vaccine on such a short notice, detailed reasons for which were disclosed in the letter itself, as also with regard to its dues with the Government from before. In the letter it was specific mentioned that the vaccine was a biological product and it takes time to prepare it. It was also mentioned, inter alia, that it had already been made clear to the Government that petitioner needed confirmation at least 60 days in advance for supply of vaccine. It was also mentioned that due to delay in confirmation by the respondents, petitioner had committed supply of FMD vaccine to others, including Government of India. Hence, time was sought for in the letter for supply of vaccine, in terms of the order of supply dated 5.1.2011.

(3.) It appears that this reply on behalf of the petitioner was not considered at the Government level and a show cause notice was issued to it, vide letter contained in memo no. 335 dated 24.1.2011 (Annexure-5), to show cause as to why its earnest money, deposited in the form of bank guarantee, may not be forfeited and its Company may not be placed in the blacklist. Petitioner was asked to respond to this notice, failing which ex parte action was to be taken. On receipt of this notice, a reply was sent on behalf of the petitioner through letter dated 31.1.2011, vide Annexure-6, in which again the circumstances, in detail, were explained. It appears that this show cause was also not considered by the respondents and the impugned Resolution dated 23.2.2011 was issued placing the petitioner in the blacklist with a decision that Department will not enter into any transaction with the petitioner firm henceforth.