The maximum period of banning/suspension for participation in tenders under the Coal Linkage Auction Scheme 2022 is 5 years, and in cases where the reason for suspension is not completely mitigated due to pendency of trial, the suspension can be extended till acquittal or a maximum of 5 years, whichever is earlier.

JUDGMENT :

Sabyasachi Bhattacharyya, J:-

1. The present writ petition pertains to a challenge against the refusal of the Coal India Limited (CIL), the respondent no.1 herein, to allow the petitioner no.1-Company to participate in any of its tenders. The refusal is on the premise of a blacklisting/suspension of the petitioner in the year 2011. Such blacklisting was done upon a communication from the Central Bureau of Investigation (CBI) which has been investigating a matter, where the petitioner no.1-Company is also involved. A charge-sheet with regard to the investigation was filed in the year 2012.

2. Learned senior counsel for the petitioners submits that in view of the promulgation of a new Scheme in November 2022, the maximum period of such blacklisting has already expired and the petitioner ought to be granted an opportunity to participate in the tenders floated by the CIL. Such contention is controverted by the respondent-Authorities.

3. It is admitted by both parties that the petitioners previously moved a writ petition challenging a tender on the ground that the eligibility conditions prescribed by the Authorities were arbitrary. The said conditions, inter alia, disqualified a person against whom any legal proceeding is pending for wrongful utilization/misutilization/diversion of coal. In another Clause, a bidder who is convicted for wrongful utilization/misutilization/diversion of coal by any court of law was disqualified. A contradiction between the two was argued by the petitioners. During the course of the hearing before a co-ordinate Bench, it was recorded that there was no impediment in the petitioners submitting their bid in terms of the tender process. Accordingly, the writ petition, bearing WP No.11349 (W) of 2019, was disposed of by observing that there was no such impediment in the petitioners submitting their bid, which, if submitted, would be evaluated in terms of the tender conditions in accordance with law.

4. It was further observed that the order would not prevent the parties from taking appropriate decision with regard to the bid of the petitioners in accordance with the terms and conditions of the tender process and in accordance with law.

5. However, when the petitioners submitted the bids, on September 7, 2020, the petitioner no.1 was informed that it had flouted the conditions mentioned under the Eligibility Clause of the scheme document and was liable for penal action. Accordingly, the bid security submitted by the petitioner no.1 was forfeited. The reason cited by the respondent-Authorities was that the petitioners flouted the basic eligibility condition stipulated in Clause 4(a) of the tender, which provided that no legal proceedings are pending against the bidder in any court of law for wrongful utilization/misutilization/diversion of coal. Such case was pending in the Dhanbad local court at the behest of the CBI.

6. It is contended by the petitioners that pursuant to a subsequent scheme of November 2022, the petitioners could not be debarred from participating in any further tender floated by the CIL or its subsidiaries.

7. Upon hearing learned counsel for the parties, the moot question which falls for consideration is whether, on a proper interpretation of the Scheme Document dated November 4, 2022, the petitioners’ blacklisting can be said to continue in respect of participation in tenders floated by the Coal India Limited and its subsidiaries.

8. The Document-in-question is a scheme document for auction of Coal Linkages of coking coal in the Others sub-sector.

9. Annexure-IV of the same contains modalities for banning/blacklisting of NRS consumers (under which the petitioner no.1 falls) for misutilization/misdirection of coal.

10. Clause A speaks about the major circumstances of banning/blacklisting for misutilization/misdirection of coal. The same, under two separate heads, provides for two situations for such banning - the first, communication from statutory authorities like the CBI, Police, Court