Rhonpal Biotech Pvt. Ltd v. New Delhi Municipal Council & Ors

order as to costs.

Page 25

¶52In Kulja Industries (supra), the Supreme Court, where the period of debarment had been stipulated without due application of mind, held as under:-

"27. The next question then is whether this Court ought to itself

determine the time period for which the appellant should be

blacklisted or remit the matter back to the authority to do so

having regard to the attendant facts and circumstances.

¶28A remand back to the competent authority has appealed to

us to be a more appropriate option than an order by which we may

ourselves determine the period for which the appellant would

remain blacklisted. We say so for two precise reasons:

28.1 Firstly, because blacklisting is in the nature of penalty the

quantum whereof is a matter that rests primarily with the authority

competent to impose the same. In the realm of service

jurisprudence this Court has no doubt cut short the agony of a

delinquent employee in exceptional circumstances to prevent delay

and further litigation by modifying the quantum of punishment but

such considerations do not apply to a company engaged in a

lucrative business like supply of optical fibre/HDPE pipes to

BSNL.

28.2 Secondly, because while determining the period for which

the blacklisting should be effective the respondent Corporation

may for the sake of objectivity and transparency formulate broad

guidelines to be followed in such cases. Different periods of

debarment depending upon the gravity of the offences, violations

and breaches may be prescribed by such guidelines. While it may

not be possible to exhaustively enumerate all types of offences and

acts of misdemeanour, or violations of contractual obligations by a

contractor, the respondent Corporation may do so as far as

possible to reduce if not totally eliminate arbitrariness in the

exercise of the power vested in it and inspire confidence in the

fairness of the order which the competent authority may pass

against a defaulting contractor.

Page 26

¶29In the result, we allow this appeal, set aside the order

passed by the High Court and allow Writ Petition No.2289 of 2011

filed by the appellant but only to the extent that while the order

blacklisting the appellant shall stand affirmed, the period for

which such order remains operative shall be determined afresh by

the competent authority on the basis of guidelines which the

Corporation may formulate for that purpose. The needful shall be

done by the Corporation and /or the competent authority

expeditiously but not later than six months from today. The parties

are left to bear their own costs."

¶53As observed by me above, the period of blacklisting the petitioner and whether it has to be only with respect to those Ayurvedic medicines for which the petitioner had participated in the tender, has not been properly considered by the respondents. I therefore, follow the approach guided by the Supreme Court.

¶54The impugned order dated 21.02.2020, blacklisting the petitioner is upheld. The respondents shall, however, redetermine the period and whether the same is to operate with respect to all or some of the Ayurvedic medicines, afresh. The needful shall be done by the respondents/competent authority expeditiously but not later than three months from today.

¶55The petition is disposed of with the above directions, with no order as to costs. NAVIN CHAWLA, J

SEPTEMBER 25, 2020/RN

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 27.08.2020 Date of Decision : 25.09.2020 + W.P.(C) 3642/2020 & CM 12985/2020 RHONPAL BIOTECH PVT. LTD. ..... Petitioner Through: Mr.Jayant Mehta, Ms.Tejaswi Shetty, Ms.Anu Shrivastava & Ms.Vedika Pareek, Advs. versus NEW DELHI MUNICIPAL COUNCIL & ORS. ..... Respondents Through: Ms.Noopur Singhal, Adv. for Mr.Anil Grover, SC and Mr.Mishal Vij, Mr.Satish Kumar, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioner challenging the order dated 21.02.2020 passed by the respondent no.2, blacklisting the petitioner from participating in all procurements of the New Delhi Municipal Council (NDMC), New Delhi, for a period of two years from the date of issuance of the said order and further forfeiting the Earnest Money Deposit (EMD) of the petitioner. 2. The respondent no.2 had floated an e-tender dated 23.11.2017 vide tender ID No.2017_NDMC_140709_1/2/3/4 for "Annual Purchase of Ayurvedic Medicines" for the year 2017-18. The last date of submission of tender was 18.12.2017. Page 2 3. Clause 15 of the terms and conditions of the Tender Notice required the tenderer to hand over two samples of the medicines against each items /medicine group quoted (A1, A2, B1, B2) along with the original/attested copy of the Test Reports issued from the Government approved /NABL Accredited testing laboratory of each item quoted. 4. The petitioner submitted its bid on 18.12.2017, which was the last date of submissions of the bids, along with the samples of the medicines and test reports issued by one Devansh Testing & Research Laboratory Pvt. Ltd. 5. The Technical Bid was opened by the respondents on 18.12.2017 itself, as scheduled. 6. It is the case of the respondents that while scrutinizing the documents in the technical bid and the analytical test reports submitted by various firms, test reports submitted by three firms namely, the petitioner herein, M/s Bhushan Pharmaceuticals (P) Ltd. and M/s ISPA Pharmaceuticals Pvt. Ltd., were found suspicious and thus, to verify their authenticity, the details of the submitted test reports were sent to the corresponding testing laboratories for verification. In response, M/s Devansh Testing & Research Laboratory confirmed that the reports submitted by the petitioner and M/s Bhushan Pharmaceuticals (P) Ltd. were not valid and were not issued by the said laboratory. 7. It is further asserted by the respondents that on receiving the said report from the laboratory, the matter was placed before the Annual Purchase Sub-Committee (APSC) (Ayurvedic), which after reviewing the Page 3 facts, unanimously decided to reject the bid submitted by the petitioner. A proposal was also submitted to the Competent Authority for forfeiture of the EMD and the blacklisting of the petitioner. 8. The proposed action was confirmed by the Competent Authority of the respondents and by the letter dated 28.03.2018, the petitioner was blacklisted from participating in any procurement of Ayurvedic Medicines of NDMC and its EMD was also forfeited. 9. The petitioner challenged the above order before this Court by way of a Writ Petition, being WP(C) No.3336/2018 titled, Rhonpal Biotech Pvt. Ltd. vs. New Delhi Municipal Council & Anr., which was disposed of by this Court vide its order dated 09.04.2018, recording the statement of the learned Standing Counsel appearing for the respondents to the effect that as the said blacklisting order had been passed without giving an opportunity of hearing to the petitioner, the same would be withdrawn, however, reserving the right of the respondents to take appropriate action against the petitioner by issuing a fresh Show Cause Notice and granting an opportunity to the petitioner to submit its explanation. 10. In compliance with the statement made, the respondents withdrew the letter dated 28.03.2018 by their communication dated 24.04.2018 and subsequently issued a Show Cause Notice dated 25.04.2018, c