M/S Born Nutrients Private Limited & Anr v. Union of India & Ors

RAJIV SAHAI ENDLAW, J NOVEMBER 24, 2015 "bs"/"pp"..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 24th November, 2015 + W.P.(C) 9873/2015 & CM No.23881/2015 (for stay) M/S BONN NUTRIENTS PRIVATE LIMITED & ANR ..... Petitioners Through: Mr. Neeraj Grover, Adv. Versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Arun Bhardwaj, Adv. for R- 1&2/UOI. Mr. R.K. Gupta and Mr. M.K. Singh, Advs. for R-3/AIIMS. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition was filed impugning (i) the communication dated 24th September, 2015 of the respondent No.3 All India Institute of Medical Sciences (AIIMS) debarring the petitioners for a period of three years from all dealings and participating in all contracts / tenders etc. with the respondent No.3 AIIMS; and, (ii) the Tender Notification issued by the respondent No.3 AIIMS pursuant to termination of the contract with the petitioners. 2. Since as per the Roster of this Court tender matters are entertainable by a Division Bench, the petition was listed before a Division Bench of this Court and notice thereof issued. On 6th November, 2015, finding that the Tender Notification had exhausted itself owing to no bids having been received and the relief in that regard having thus become infructuous, the petition was ordered to be listed before a Single Bench of this Court to entertain the challenge to the debarment order. 3. The petition came up yesterday before this Bench when finding that the pleadings had already been completed, the counsels were heard. However during the hearing it was enquired, when the subject goods had been received in the premises of the respondent No.3 AIIMS. The matter was adjourned to today to enable the counsel for the respondent No.3 AIIMS to verify the said aspect. 4. The counsel for the respondent No.3 AIIMS states that the subject goods were received one day prior to the incident i.e. on 28th July, 2015. 5. The counsels including the counsel for the respondents No.1&2 Union of India have been further heard. 6. The petitioner no.1 is inter alia manufacturer/producer of breads and also manufactures and markets packs of two slices of high fibre brown bread and which were being supplied since the year 2012 to the respondent No.3 AIIMS by the petitioner no.2 M/s Goyal Traders, a distributor of the petitioner no.1. 7. On 29th July, 2015, one of such packs when served to a patient admitted in the respondent No.3 AIIMS was found to contain a live rat. Intimation thereof was immediately sent to the petitioner no.2 and representatives of the petitioner no.2 as well as of petitioner no.1 immediately reached the respondent No.3 AIIMS and were informed of the seriousness of the matter; they also expressed their shock, and after discussions, the following observations were recorded: (i) that the long sealing / bottom sealing of the subject pack was found to have an almost 2-3 inch long puncture; (ii) the rat must have entered through the opening, somewhere in transit and there was a "need to investigate"; (iii) the petitioners represented having given pest control system contract to M/s Pest Control India, leader in the field in India; (iv) the petitioners invited the representative of AIIMS to visit their factory to demonstrate that the petitioners take all care for maintaining good quality of the product. 8. The respondent No.3 AIIMS immediately terminated the contract with the petitioner no.2, being the distributor of the petitioner no.1 and issued a notice dated 9th September, 2015 to the petitioners to show cause as to why the petitioners should not be blacklisted and debarred from participation in any tender at respondent No.3 AIIMS. The show cause notice also referred to the proceedings of 29th July, 2015 when the sealed package with live rat was shown to the representative of the petitioners. 9. The petitioners submitted a reply dated 17th September, 2015 to the show cause notice setting out the good practices followed by them at their factory including for pest control and further contendin