Point of Law : It is a settled and well established principle of law that in contractual matters, unless there exists public element, patent perversity or mala fides, invocation of jurisdiction of this Court under Article 226 of the Constitution of India is not permissible. At the same time, it is required to be noted that having referred the issue to IEM and having received the report from the said external agency, where the said agency recommended for minimum penalty, and having proposed minimum penalty of six months in the show cause notice, this Court does not find any justification on the part of 2nd respondent herein in debarring 1st petitioner for a period of three years from participation in future tenders.

ORDER :

In the present Writ Petition, challenge is to the proceedings Ref. No.VSP/2021/WCD/536, dated 09.08.2021 issued by the Chief General Manager, Works Contracts Department, Rashtriya Ispat Nigam Limited, Visakhapatnam-2nd respondent herein. By way of the said proceedings, 2nd respondent herein, by invoking the provisions of Clause No.3 (5) of the Integrity Pact, debarred the 1st petitioner for a period of three years with effect from 05.08.2021 from participation in future tenders.

2. According to the petitioners, 1st petitioner is a partnership firm and 2nd petitioner is its partner, and 1st petitioner herein is a service provider for maintenance of lifts. In the year 2010, the respondent organization issued a Tender Notification, inviting tenders for maintenance of lifts for a period of three years. 1st petitioner herein emerged as the successful bidder in the tender process and continued as service provider till the year 2017. By way of order dated 03.08.2017, 1st petitioner herein was debarred from participating in the tenders for a period of three years, and the said period, according to the petitioners, came to end on 04.08.2020. 2nd petitioner herein is the partner of 1st petitioner firm, as mentioned supra, and 1st petitioner has another sister concern viz. BECO Lifts Private Limited, which is a company registered under the Companies Act, for which the deponent of the writ affidavit in the present Writ Petition is the Managing Director. In the month of November, 2020, 2nd respondent organization invited tenders. According to the petitioners, though the three years’ period debarring 1st petitioner came to end in the month of August, 2020, 2nd respondent authorities did not open the petitioners’ ID, and only on 21.03.2021, the same was opened. The tenders issued in the month of November, 2020 came to be cancelled. Subsequently, 2nd respondent herein issued a Tender Notice on 02.03.2021 and the last date prescribed in the Tender Notification for submission of tenders was 23.03.2021.

3. According to the petitioners, since the deponent of the writ affidavit was unwell, he entrusted the job of uploading the tenders in response to the Tender Notification dated 02.03.2021, to a private agency. It is the further case of the petitioners herein that the petitioners herein handed over the tender papers of 1st petitioner and also its sister concern, to the said private agency, unfortunately, on 22.03.2021, the said private agency uploaded tender papers of 1st petitioner and also uploaded the papers on behalf of the sister concern of 1st petitioner herein on 23.3.2021. Deponent of the writ affidavit pleaded lack of knowledge of such process adopted by the said private agency due to his ill-health. In support of his ill-health, medical prescriptions issued by the medical practitioner are filed along with the present Writ Petition as material papers.

4. It is also the case of the petitioners that immediately, on coming to know about the said discrepancy which arose due to irregularity committed by the private agency, on 09.04.2021, the sister concern had withdrawn the tender on its own and also intimated about the withdrawal vide letter dated 20.05.2021. Tenders were opened on 24.03.2021 and tender of 1st petitioner came to be rejected. Thereafter, the matter landed before the Independent External Monitor (IEM) at the instance of Visakhapatnam Steel Plant, and the IEM submitted its report on 27.05.2021.

5. Subsequently, 2nd respondent issued a show cause notice bearing Ref. No. VSP/2021/WCD/365, dated 15.06.2021, calling upon the petitioners to show cause as to why action should not be taken against the petitioners, for violating the terms and conditions of the Integrity Pact, including debarring it from entering into future tenders for a minimum period of six months to a maximum period of three years. Responding to the said show cause notice, petitioners submitted an explanation on 26.06.2021, narrating all the aspects now stated in