Point of Law : Work tender/Contract - Blacklisting - when the financial loss is not caused, the doctrine of proportionality to blacklist the petitioner beyond the reasons shown in the show cause notice would render it illegal.

JUDGMENT :

GOUTAM BHADURI, J.

1. The challenge in this writ petition is to the order dated 02.01.2021 passed by respondent No. 1 whereby the petitioner has been black listed for a period of 3 years.

2. The facts as pleaded would show that the petitioner participated in a Tender process for printing of syllabus text books for the academic year of 2020-2021 by the respondents. Notice Inviting Tender (NIT) was issued on 20.12.2019 and the petitioner being the successful bidder and L-1 executed an agreement on 26th December, 2019 (Annexure P-4). Thereafter, different work orders were issued on different dates in favour of the petitioner by Annexure P-5. The petitioner contended that on 17.1.2020 they received 10.14 metric tons of papers from the respondent Corporation and initiated the offset printing work. Subsequently, till 05.02.2020 they had received a total 187.24 metric tons of papers. According to the petitioner, in order to obtain the papers, the Bank Guarantee was required to be submitted. According to the petitioner, there has been certain confusion with respect to the amount of bank guarantees submitted by the petitioner, as such, a communication was made by the respondents to verify the bank guarantees. According to the petitioner, the petitioner has submitted two separate bank guarantees of Rs. 20 lakhs and Rs. 50 lakhs total amounting to Rs. 70 lakhs. The bank guarantee of Rs. 20 lakhs was valid upto 03.04.2022 and another bank guarantee of Rs. 50 lakhs was valid upto 13.01.2021 whereas respondents contended that one Bank Guarantee of Rs. 20 lakhs which was said to be additional one of Rs. 20 lakhs was not proper whereby the paper material was lifted as against the bank guarantee to the extent of Rs. 90 lakhs. As per the petitioner, this confusion having come to the fore, the petitioner submitted a detailed letter dated 19.02.2020 (Annexure P-8) that they have only submitted two bank guarantees of Rs. 20 lakhs and Rs. 50 lakhs. The petitioner contended that serial number of one bank guarantee was changed when the renewal was made which was thought to be a new bank guarantee by the respondents and confusion was on the part of the respondents. It is contended that thereafter the petitioner demanded certain documents under the Right to Information Act and the letter, the alleged show cause was issued to the petitioner on 25.02.2020 by Annexure P-2. The same was replied by the petitioner. The detailed reply was filed by the petitioner on 28.04.2020 (Annexure P-14). But on different grounds the blacklisting of the petitioner was ordered, which is under challenge.

3. Learned counsel for the petitioner would submit that the black-listing is predominantly on three grounds which was based on Clause 3, 13.3 and 13.6 of the agreement. He would submit that in the agreement, clause 3.1 is about furnishing of bank guarantee/FDR for paper security, which purports that the respondents will allot the paper double the amount of bank guarantee/FDR deposited by him for the allotted group and the petitioner has never claimed that they have given bank guarantee of Rs. 90 lakhs. He would submit that the petitioner has furnished two bank guarantees worth Rs. 70 lakhs and the query which was made by the respondents while making correspondence would show that two serial numbers of the bank guarantees are one and the same, therefore, there remained a confusion on the part of the respondents, for which, the petitioner was made to suffer. It is further submitted that in respect of the bank guarantee, the agreement clause 3.2 provides that if the paper obtained for printing is not used/returned then legal action should be taken against the defaulting printer and the tenderer will be black-listed for 3 years. He would submit that it is not a case that the petitioner has not returned the printed material. So no financial loss was caused to the resp