DATA TECH. Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition is taken up today through Video conferencing.

(2.) The present writ petition has been filed for quashing the order as contained in memo No. 220 dtd. 8/6/2020 (Annexure-23 to the writ petition) issued by the Deputy Commissioner, Lohargada-respondent no. 2, whereby the petitioner has been blacklisted by forfeiting the security amount of rupees 3 Lakhs deposited by it and an order has been passed not to pay the remaining amount of Rs.9,45,000.00 due against the work of installation of CCTV Surveillance system in Lohardaga Town, already done by the petitioner about three years back. Further prayer has been made for issuance of direction upon the respondents to release the remaining amount of Rs.9,45,000.00 as well as the forfeited security amount of Rs.3.00 lakhs to the petitioner. The factual background of the case as stated in the writ petition is that the District Collectorate, Lohardaga came out with a notice inviting Expression of Interest-cum-Request for Proposal (EOl-cum-RFP) for installation of IP based CCTV Surveillance System in Lohardaga town. The petitioner participated in the said tender and deposited a sum of Rs.3.00 lakhs as security deposit vide demand draft no. 79565 dtd. 20/9/2016 and it was made clear in the technical bid submitted by the petitioner that all the products will be under three years warranty on technical problem but physical damage or burn due to thundering will not be covered under the warranty. Altogether three tenders were received pursuant to the invitation made by the respondent no. 2. The meeting of the District Purchase Committee, Lohardaga was held on 7/10/2016. The petitioner was declared successful in the said tender process and was awarded the work vide work order as contained in memo no. 411 dtd. 21/10/2016 and administrative approval to the extent of Rs.46.90 lakhs was finalized by the respondent no. 2 for the said purpose. The work was completed by the petitioner within the prescribed time frame and vide letter dtd. 13/1/2017 it was informed to the respondent no. 2 that the work had been completed as per EOl-cum-RFP and all 72 CCTV cameras had been installed. The petitioner also requested to make payment of Rs.46.90 lakhs for completion of the work entrusted to it, however, the payment was not made. In the meantime the petitioner started providing service in terms of warranty clause of the technical bid in respect of CCTV cameras installed by it. The respondent no. 2 called for a technical report regarding installation of CCTV cameras which was submitted by the District Informatics Officer, National Informatics Centre, Lohardaga vide letter no. 41/NIC/17 dtd. 19/12/2017 wherein it was reported that there were 32 locations where 72 CCTV cameras were found to be installed and thereafter the payment of Rs.23.45 lakhs and Rs.14.00 lakhs was released to the petitioner against the said work vide memo no. 393 dtd. 18/10/2017 and memo no. 266 dtd. 1/9/2018 respectively but the rest due amount to the extent of Rs.9,45,000.00 was kept pending. The petitioner repeatedly made request to the respondent-authorities to release the remaining amount as well as the amount of security deposit but all went in vein. In the meantime, an enquiry committee was constituted vide memo no. 16 dtd. 17/1/2020 under the Chairmanship of the District Transport Officer, Lohardaga and the said committee submitted its report vide letter no. 34 dtd. 22/1/2020 to the effect that 32 cameras were working whereas 40 cameras were not working. The Deputy Development Commissioner, Lohardaga-respondent no. 3, vide letter no. 186 dtd. 20/6/2020, directed the petitioner to make all the CCTV cameras functional within ten days, failing which, on the ground of violation of Request for Proposal (RFP) as well as the work order dtd. 21/10/2016, the work would be considered as substandard and the remaining amount would not be paid by forfeiting the security deposit as well. The petitioner vide letter dtd. 22/5/2020 denied all the allegations and stated that all the CCTV cameras were functioning properly at the time of installation and in the report dtd. 19/12/2017 submitted by the District Informatics Officer, Lohardaga as well as the joint enquiry report of District Transport Officer, Lohardaga, Deputy Superintendent of Police (HQ), Lohardaga and District Informatics Officer, Lohardaga vide letter no. 266 dtd. 01/9/2018, it was clearly mentioned that all the cameras were found as per the technical specification. It was also stated that the physical damage and theft of the CCTV cameras by the anti-social elements during rally in relation to CAA protest was not covered under warranty and as such the petitioner requested the respondent no. 3 to provide all stolen and damaged items and to release the balance agreement amount, informing that all the CCTV cameras would be repaired thereafter. However, the respondent no. 2 without considering the request of the petitioner, blacklisted it vide order contained in memo no. 220 dtd. 8/6/2020 and its earnest money deposit of Rs.3.00 lakhs was forfeited, moreover the balance amount of Rs.9,45,000.00 was also ordered not to be paid. Hence, the present writ petition.

(3.) The learned counsel for the petitioner submits that the impugned order dtd. 8/6/2020 so far blacklisting of the petitioner for indefinite period is not sustainable in view of the settled law laid down by the Hon'ble Supreme Court and, as such, the same is liable to be quashed. It is further submitted that the petitioner was not served with any show cause notice particularly for the proposed punishment of blacklisting so as to enable it to explain the allegations. It is also submitted that the respondent no. 2 has no authority to blacklist the petitioner, particularly in absence of any specific provision for the same. The petitioner had done its work in terms of EOl-cum-RFP and had completed the installation work within the time frame, however, in spite of the request made by it to the respondent authorities, 20% of the contract value has not yet been released. It is further submitted that the petitioner had duly informed about damage of camera and cables to the authorities, however, no action was taken either by the Lohardaga Police or by the respondent no. 2. The petitioner is not responsible for the physical damage to the cameras or the cable during the rally in relation to CAA protest. It is also submitted that the petitioner had completed the work well within the restricted time, however, the respondents took one year to submit technical report for which the petitioner cannot be penalized. The nature of the damage was not covered under warranty and the petitioner is not liable for physical damage or theft of CCTVs under warranty clause. The warranty condition will be attracted only if there is some manufacturing defects or some technical defects in the CCTV cameras and physical damage caused to the cameras were out of the purview of the warranty clause of technical bid. It is further submitted that pursuant to the meeting held with the respondent no. 2, the petitioner had provided the expenses which might incurr in repairing the damaged CCTV cameras or in installing new cameras in place of the stolen CCTV cameras. The respondent no. 2 instead of paying the repairing charges issued show cause notice which was duly replied by the petitioner and without considering the reply of the petitioner, passed the impugned order dtd. 8/6/2020. The respondent no. 2 is a party to the agreement with the petitioner and as such he had no power or authority under law to take punitive action against other party to the contract. It is also submitted that there were no defect either in CCTV cameras or in the UPS. Due to continuous power cut in different locations at Lohardaga, the battery of the UPS could not be charged and as such after getting the battery charged, the UPS were made operational. The petitioner time and again approached the respondent authorities to take the charge of CCTV cameras, however, they neither accepted it nor released the payment of the dues amount. Pursuant to invitation for EOl-cum-RFP issued by the respondent no. 2, the petitioner after installing the CCTV cameras, had already informed the respondent no. 2 along with the challan and it was for the respondent no. 2 to handover the charge of the cameras to any officer of his choice. The petitioner vide letter dtd. 9/8/2019 informed the Officer-in-Charge, Lohardaga Police Station about the damage caused to the Cable of the CCTV Cameras by the antisocial elements at certain places due to which it was not possible to received footage of those areas and also requested to take appropriate action against anti-social elements, however, neither any first information report was lodged nor any action was taken by the police. It is further submitted that after installation of the cameras by the petitioner, it was the duty of the respondent-authorities to take care of the same.