2002 Supreme(Guj) 18

Gujarat High Court
Judgename :KUNDAN SINGH
ASIF ENTERPRISES - Appellant
Versus
OIL AND NATURAL GAS COMMISSION - Respondent
S.C.A. 6458 of 2001
Decided On : 01/11/2002

Headnote:(a) Constitution of India, 1950 — Arts. 14, 19 & 226 — Principles of natural justice — Whether violated in the case — Admittedly in the case show-cause notice was issued to petitioner to which he replied and reply was considered — Mere raising a technical point that he was not given personal hearing and without showing any prejudice is not sufficient to hold that not providing an opportunity of personal hearing is in violation of principles of nature justice.

       It is not disputed that the respondent Corporation issued a show-cause notice dated 8.12.2000 to the petitioner as to why ONGC should not ban future business dealings with the petitioner, requiring written reply with documents in support thereof within 15 days. It is also not disputed that the petitioner has sent the reply dated 14.12.2000 through its advocate to the respondent Corporation. It is also not in disputed that the petitioner sent a letter to the respondent Corporation requesting for personal meeting to present certain facts for personal discussion. The petitioner was not allowed personal meeting as requested by it. The respondent Corporation passed the impugned order dated 23.1.2001 banning fresh business dealing of the petitioner with respondent Corporation for a period of 10 years. It is also not disputed that an opportunity to represent its case/explain its conduct was afforded to the petitioner and in fact that opportunity of explaining its conduct has been availed by sending reply dated 14.12.2000 through its advocate. Now, the question which remains for consideration is as to whether not providing personal hearing by way of personal meeting would amount to violation of principle of natural justice and whether non-providing of personal hearing has caused any prejudice to it ? If it has not caused any prejudice to the petitioner, then it would not be entitled for personal hearing.

       As per the reply dated 14.12.2000 to the show-cause notice, the petitioner stated Due to the employees, there was a mistake in the bank guarantee which was rectified by furnishing a new bank guarantee No. 82 for Rs. 3,41,743/- and No. 101/98 for Rs. 2,38,780/- in lieu of the old bank guarantee. Thus, it is not in dispute that two fake bank guarantees were furnished by the petitioner. Can it be acceptable to this Court that an employee submitted two fake guarantees worth Rs. 5,80,000/- without collusion or permission of the employer ? What was the gain of the employee in furnishing two fake bank guarantees on behalf of the employer ? The answer is in the negative. It appears from the allegations made in Para-3 of the show-cause notice dated 8.12.2000 that the petitioner had no account in the State Bank of Saurashtra and submitted the bank guarantee in Dena Bank, Kalol. The learned counsel for the petitioner has pointed out nothing as to what prejudice was caused to the petitioner in absence of personal hearing nor anything has been averred in the petition in that respect.

       Mere raising a technical point that the petitioner was not given personal hearing and without showing any prejudice is not sufficient to hold that the act of the respondent Corporation in not providing an opportunity of personal hearing is in violation of principles of natural justice. Moreover, on the facts not disputed, only one conclusion is that the petitioner deliberately got submitted two fake bank guarantees of total amount of Rs. 5,80,000/-. Thus, Court found no substance in the contention of the learned counsel for the petitioner that the petitioner was not afforded fair and proper opportunity of being heard which violates the principles of natural justice.

       [Para 9]

       (b) Constitution of India, 1950 — Arts. 14, 19 & 226 — Order banning business transactions — Validity thereof — Order banning business of petitioner with ONGC — Validity of impugned order challenged — Petitioner alleged bias and mala fide against Mr. Prakash Mehta, General Manager but after finding prima facie case against petitioner a show-cause notice was issued by another officer and not by Prakash Mehta — Further after considering the explanation submitted by petitioner competent authority has passed the impugned order — It cannot be called violation or illegal on ground of bias and mala fide on the part of Prakash Mehta, more particularly when there is no allegation of mala fide or bias against the officer who issued the show-cause notice and the officer who has passed the impugned order.

       In the present case, the fact is not denied that fake and forged bank guarantees were submitted by the petitioner firm. As soon as that fact came to the knowledge of high ranking officers of ONGC, the inquiry was initiated. The petitioner was required to submit explanation and after receipt of the explanation, an order was passed for processing the case against the petitioner. After finding prima facie case against the petitioner, a show-cause notice was issued by another officer and not by Prakash Mehta and after considering the allegations made in the show-cause notice and the explanation in the reply, the competent authority has passed the impugned order which is not vitiated or illegal on this score and Court does not find any substance in the contention of the learned counsel for the petitioner that the action against the petitioner is malafide and bias at the instance of Mr. Prakash Mehta, and more particularly when there is no allegation of malafide or bias against the officer who issued the show-cause notice and the officer who has passed the impugned order.

       [Para 11]

       (c) Constitution of India, 1950 — Arts. 14, 19 & 226 — Misconduct — Condonation and waiving the right of action — Not tenable in view of the facts of the case — ONGC permitted the petitioner to file fresh bank guarantees for safeguarding the financial interest of ONGC — There is nothing on record to show that any meeting of high ranking officers was held and matter regarding fake guarantees was considered and any decision was taken — Same is the position with regard to further contracts given to petitioner — High ranking officers of respondent did not know about misconduct of petitioner by then — No enquiry was held and no matter was processed — Hence, mere delay in taking action is no ground to relieve petitioner from its liability.

       There is nothing on record to show that any such meeting of high ranking officers was held and the matter regarding fake guarantees was considered and any decision was taken. So far as awarding of further contracts is concerned, high ranking officers of ONGC did not know about the misconduct of the petitioner in the month of March and April, 2000 that the preliminary inquiry was not held, the matter against the petitioner was not processed, and hence the contract were awarded to the petitioner and, therefore, no inference can be drawn against the respondent Corporation on the basis of the material on record that ONGC has ever condoned the misconduct or mischevious act of the petitioner and waived its right to reopen the chapter. Mere delay in taking action against the petitioner is no ground to relieve the petitioner from its liability. In some of the Supreme Court decisions, it has been held that if any contract, licence or service has been obtained by misrepresentation of facts or fraud and that was pre-requisite condition that contract, licence or service can be revoked or terminated at any time, at the instance of any person as held by the Supreme Court of India in the case of Union of India & Ors. vs. Bhaskaran, reported in 1995 (4) (Supp) SCC 100 and in the case of Kumari Mathavi & Ors. vs. Additional Commissioner, Tribal Development & Ors., reported in 1995 Supp (3) SCC, 241. In the present case, filing of bank guarantees is a pre-requisite condition for contract and it is found that the bank guarantees filed by the petitioner were fake and forged and that would amount to misconduct and on the basis of the misconduct, proper action can be taken banning future business of transaction and that, in Court view, cannot be said to be an improper action on the part of the respondent Corporation.

       [Para 13]

       (d) Constitution of India, 1950 — Arts. 14, 19 & 226 — Order banning business transactions passed by respondent — Invalidity alleged on ground that no ground or reason given for the order — Held, order is made by purely technical person of ONGC from whom reason for the order cannot be expected — Besides undisputed facts have been considered by the authorities in passing the impugned order — As such, in the facts, order is not vitiated on the ground of it being non-speaking order.

       In law, there is no prescribed format of order giving out reasons or grounds for arriving at a conclusion nor can Court expect from purely technical person like officers of ONGC to give out reasons for a conclusion. That could have been done only when before passing the impugned order, the officer could have consulted their advocate on panel for a proper form to pass order giving out reasons for the final action. However, it is mentioned in the impugned order that on facts mentioned in the show-cause notice and contents of the reply, the decision has been taken to ban the business dealings with the petitioner for a period of 10 years. In the show-cause notice, it is stated that the petitioner has submitted two fake bank guarantees and on that ground, ONGC proposed as to why further business should not be banned requiring the reply within 15 days. The petitioner stated in the reply to the show-cause notice that due to mistake of its employee, the bank guarantees were filed which have been rectified by replacing new fresh bank guarantees in lieu of old bank guarantees. Thus, undisputed facts have been considered by the authorities in passing the impugned order. The learned counsel for the petitioner could not point out anything which dislodges admitted/undisputed fact of filing fake and forged bank guarantees. As such, in the facts, the impugned order cannot be said to be a non-speaking order and even if it gives no reasons, Court does not think any good reason that it vitiates the proceedings as it relates to filing of two fake and forged bank guarantees by the petitioner and that fact has not been disputed or denied by the petitioner. Hence, even if no ground is mentioned, the entire facts have been considered by this Court. Therefore, this contention of the learned counsel for the petitioner is also not at all sustainable in the eye of law.

       [Para 15]

       (e) Constitution of India, 1950 — Arts. 14, 19 & 226 — Writ petition — Maintainability in face of availability of alternative remedy — Petition having no merit and on other grounds Court did not think it proper to decide this issue.

       The petitioner filed civil suit in the trial Court and succeeded in obtaining ad-interim injunction which was set aside by the appellate Court. Without availing a regular remedy of Civil Revision Application in this Court for which a caveat had also been field by the respondents, the petitioner has filed this petition when the suit was pending. The suit has been withdrawn during pendency of the present petition. In this respect, he also relied on certain authorities. However, the learned counsel for the petitioner contended that where the petitioner has a constitutional right it can be decided in a writ petition without availing of alternative remedy and he also relied on certain authorities in this regard. Court does not think it proper to decide this issue at this stage where the petition has no merit on other grounds which have already been discussed and decided above.

       [Para 16]