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2020 Supreme(Del) 841
IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M Singh, J.
Diwan Chand Goyal - Appellant
Versus
National Capital Region Transport Corporation & Anr. - Respondent
Writ Petition (Civil) No. 3301 of 2020
Decided On : 02-09-2020
Anusuya Salwan, Advocate, Nikita Salwan, Advocate, Abhishek Pundir, Advocate, Bankim Garg, Advocate, Chaitanya Bansal, Advocate, Siddarth Dave, Advocate, Rajesh Katyal, Advocate, Devendra Kumar Singh, Advocate, Parina Katyal, Advocate, Jitender Kumar, Advocate, Varun Sikka, Advocate
The submission of a forged certificate to satisfy the eligibility criteria for a tender constitutes a fraudulent practice and may result in blacklisting.
Headnote:
BLACKLISTING - CONTRACT - FRAUDULENT PRACTICE - NCRTC - NIB - PRINCIPLES OF NATURAL JUSTICE - PROPORTIONALITY - TENDER
Fact of the Case:
Petitioner, a sole proprietor of a construction company, was blacklisted by NCRTC for five years for submitting a forged certificate to satisfy the eligibility criteria for a tender. The Petitioner challenged the blacklisting order, arguing that the submission of the forged certificate was not a fraudulent practice and that the punishment was disproportionate to the offense.
Finding of the Court:
The Court held that the submission of the forged certificate constituted a fraudulent practice and that the NCRTC was justified in taking action against the Petitioner. However, the Court found that the five-year blacklisting period was excessive and reduced it to six months. The Court also directed the NCRTC to reconsider the Petitioner's bids that had been rejected as a result of the blacklisting order.
Issues: 1. Whether the submission of the forged certificate constituted a fraudulent practice? 2. Whether the five-year blacklisting period was proportionate to the offense?
Ratio Decidendi: 1. The Court held that the submission of the forged certificate constituted a fraudulent practice because it was a misrepresentation of facts intended to influence the bidding process. 2. The Court found that the five-year blacklisting period was excessive and reduced it to six months because the Petitioner had already been sufficiently sanctioned by the forfeiture of the bid security and the rejection of its bids.
Final Decision: The Court's final decision was to uphold the forfeiture of the bid security, reduce the blacklisting period to six months, and direct the NCRTC to reconsider the Petitioner's bids that had been rejected as a result of the blacklisting order.
JUDGMENT
Prathiba M. Singh, J. - This judgment is pronounced through video-conferencing.
CM APPL. 11573/2020 (exemption from filing court fee and attested affidavits)
2. This is an application seeking exemption from filing court fee and duly attested affidavits. Binding the deponent of the affidavit to the contents of the application, the exemption is granted. Insofar as the court fee is concerned, the same be deposited within one week. Application is disposed of. Registry to submit a report in case the court fees is not filed after a month.
W.P.(C) No. 3301/2020 and CM APPLs. 11572/2020, 11574/2020
3. The present petition has been filed by Mr. Diwan Chand Goyal who is the Sole Proprietor of S.D Construction Company, Delhi (hereinafter, "Petitioner")against the National Capital Region Transport Corporation (hereinafter,"NCRTC")which is a joint venture company of the Government of India and four states i.e., Haryana, Rajasthan, Uttar Pradesh and Government of National Capital Territory of Delhi (hereinafter "GNCTD").
4. The challenge is to the letter dated 29th April, 2020 by which the NCRTC banned the Petitioner from participating in all future bids for a period of five years. The bid security amount which was submitted was also forfeited and the Petitioner''s offer was directed to be rejected in all bids which were still under evaluation with the NCRTC. Only the on-going work was permitted to be carried out. The said letter has been challenged on several grounds. The prayer in the writ is that the debarment for five years ought to be removed and the security deposit released to the Petitioner. The reliefs sought are set out below:
"i. Issue a writ, order or directions in the nature of Certiorari for quashing the impugned letter dated 29.04.2020 debarring the petitioner for a period of five years.
ii. Issue a Writ of Mandamus directing the Respondent to remove the ban on Petitioner from participating in any future bid with it.
iii. Issue a Writ of Mandamus directing the Respondent to release the bid security to the tune of Rs 26,62,642/- furnished by the Petitioner along with interest @ 18%."
5. The petition was first listed on 1st June, 2020 on which date the DIMTS, an organisation which had issued the experience certificate to the Petitioner, for satisfying the eligibility condition was directed to be impleaded in the matter. One of the letters relied upon by the Petitioner was a letter dated 20th September, 2019 which according to the DIMTS appeared forged - leading to the blacklisting and other punitive action. Since the stand of DIMTS was crucial, an affidavit was also called for from the DIMTS on 15th June, 2020.
6. The pleadings in the matter are complete and final arguments were heard.
Submissions of The Parties
7. Ms. Anusuya Salwan, ld. counsel appearing for the Petitioner took the Court through the Notice For Invitation of Bids (hereinafter "NIB") dated 26th August, 2019. She relied upon Clause 2.4.2 to submit that as per the said clause all bidders were supposed to show their capability to execute the contract in terms of the said clause. The bidders were to submit Form EXP2(b) setting out the particulars of a similar work executed by the Petitioner.
8. Ms. Salwan submitted that the Petitioner''s track record is extremely good and the Petitioner is a Contractor who has successfully executed several projects for the Delhi Metro Rail Corporation (hereinafter "DMRC") and other organisations. The Petitioner wished to rely upon one similar work executed for the DMRC in Delhi to show how it satisfied the eligibility criteria. Thus, along with the bid documents, certificate dated 3rd May, 2018 issued by DIMTS for Construction of Cluster Bus Depot at Dwarka Sector-22, New Delhi which was valued for a sum of approximately Rs.22 crores was relied upon by the Petitioner. A second letter dated 20th September, 2019 giving the break-up was also attached. Ld. counsel for the Petitioner submitted that the form which was filled up b
