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GAUHATI HIGH COURT
B.K. SHARMA, J.
Deben Thaosen - Petitioner
Versus
State of Assam and others – Respondents
Review. Pet. 108 of 2013
Decided on : 28-01-2016.
Constitution of India,1950 - Termination of contract - Contempt of Court - Notice - Appeal against termination of contract instant writ petition is not maintainable - It has been stated in-spite of granting several extension - Petitioner could not complete work impugned order had to be passed terminating contract and pursuant to impugned NIT and upon evaluation of 3 bids received from bidders contract has been awarded vide Work Order - It has been stated contractors have already started their works - Contract earlier awarded to petitioner having been terminated as per GCC and petitioner having already invoked provision thereof seeking remedy under same could not have been simultaneous proceeding by present writ petition - Pursuant to termination of contract and impugned NIT, balance work has already been awarded to 3rd parties - It will always be open for petitioner to pursue such legal remedy as may be available to him under the provisions of GCC - Writ petition is disposed of directing respondents to dispose of appeal that has been preferred by petitioner Clause 24.2 of GCC - Expeditiously as possible - Provisions of GCC, petitioner was to nominate his own representative towards disposal of appeal - Till disposal of appeal Bank Guarantee as deposited by petitioner as Performance Guarantee may not be encashed - Validity shall be extended, if necessary - Evident from order - Writ petition was disposed of of specific stand of respondent No. 1 in his counter affidavit in which it was stated that there being alternative remedy available petitioner by way of dispute redressal system having preferred an appeal before Standing Empowered Committee - Writ petition was not maintainable - He also took plea pursuant to speaking order passed an NIT was issued for completing balance work and said NIT was published in 2 daily newspapers and upon completion of tender process contract awarded to 2 contractors – Held, Evident a racket is operating towards showing publication of NIT in newspapers although fact of matter is there was no proper publication of NIT in newspapers own admission of respondents, NIT was also not routed through Directorate of Information & Public Relations for its publication in newspapers - Counter affidavit filed by respondent No. he had sent his Junior Engineer to newspaper authorities publication - Junior Engineer in his letter addressed to Superintending Engineer stated that NIT was handed over to newspaper authorities and had assured to do needful in consultation Directorate of Information & Public Relations - This was not correct procedure of publication of NIT - Not only that even depicted against NIT was also not pertaining to said NIT but pertained to some land acquisition matter and was meant for another newspaper - Entire episode narrated requires a investigation repetition and/or continuation of same - Chief Secretary to Government of is directed to cause an enquiry either by himself or through an authorised and trusted officer could be of District Administration to find out operated in entire episode and who are responsible officers - Enquiry shall be completed preferably within 3 months - Regards initiation of criminal contempt of Court proceeding being prima facie materials suggesting that Court was misled by making false statement, it will be appropriate for initiating a suo muto criminal contempt of Court proceeding with issuance of notice to respondent No. 1 for his response - Least any prejudice caused to parties involved hereby made clear findings are on basis of prima facie materials and are tentative - Further course of action in matter will be subject to outcome of enquiry to be conducted by Chief Secretary and order to be passed in writ petition on its revival - As regards issuance of notice for initiation of criminal contempt of Court proceeding, naturally further course of action will be on basis of showing cause by respondent No. 1 - Further in course of said proceeding, if any other officers are found to be involved they shall stand arrayed as party respondents in writ petition with due notice to them for showing cause – Petition is disposed
B.K. Sharma, J. (Oral) - By means of this review petition, the petitioner has prayed for review of the Judgment & Order dated 26th June, 2013 passed in WP(C) No. 2515/2013. Be it stated here that the present petitioner was the writ petitioner. The writ petition was disposed of with the following order:-
"Heard learned counsel for the parties. This writ petition is directed against the communication dated 3.12.2012 by which the particular contract awarded to the petitioner was terminated invoking the clause 52.4 of the General Conditions of Contract (GCC). The petitioner is also aggrieved by the Annexure-24 NIT dated 26.2.2013. The said NIT was issued for completion of the balance work. In the mean time, the petitioner preferred an appeal under Clause 24.1 of the GCC for revocation of the impugned order of termination dated 3.12.2012. The said appeal was disposed of by Annexure-22 order dated 27.2.2013. By the said order, the appeal was dismissed upholding the impugned order dated 3.12.2012.
In the counter affidavit filed by the respondents it has been stated that the petitioner having invoked the alternative remedy by way of preferring the appeal against the termination of contract, the instant writ petition is not maintainable. It has been stated that in-spite of granting several extension, when the petitioner could not complete the work, the impugned order had to be passed terminating the contract and thereafter pursuant to the impugned NIT and upon evaluation of 3 bids received from the bidders, the contract has been awarded to one Shri Amar Chand Dey vide Work Order dated 24/04/2013, 29/04/2013 and 08/05/2013 and also Shri Abdul Hannan vide Work Order dated 23/04/2013. It has been stated that the contractors have already started their works.
The contract earlier awarded to the petitioner having been terminated as per the GCC and the petitioner having already invoked the provision thereof seeking remedy under the same, there could not have been simultaneous proceeding by way of the present writ petition. Moreover, pursuant to the termination of the contract and the impugned NIT, the balance work has already been awarded to 3rd parties. It will always be open for the petitioner to pursue such legal remedy as may be available to him under the provisions of GCC.
In view of the above, the writ petition is disposed of directing the respondents to dispose of the appeal that has been preferred by the petitioner under Clause 24.2 of the GCC (Annexure-27), as expeditiously as possible. As per the provisions of the GCC, the petitioner was to nominate his own representative towards disposal of the appeal. Till disposal of the appeal, the Bank Guarantee as deposited by the petitioner as Performance Guarantee may not be encashed. However, its validity shall be extended, if necessary.
Interim order operating in this proceeding stands vacated."
2. As will be evident from the order, the writ petition was disposed of taking note of the specific stand of the respondent No. 1 in his counter affidavit in which it was stated that there being alternative remedy available to the petitioner by way of dispute redressal system and he having already preferred an appeal before the Standing Empowered Committee, the writ petition was not maintainable. He also took the plea that pursuant to the speaking order passed on 27th February, 2013, an NIT was issued for completing the balance work and the said NIT was published in 2(two) daily newspapers and upon completion of the tender process, contract was awarded to 2(two) contractors.
3. In the review petition, the petitioner has pointed out that the aforesaid stand on the part of the respondent No. 1 was not based on record inasmuch as the NIT in question was never published in the newspapers, namely, "Assam Post" and "Aaji" and that the purported tender process was stage managed. It has further been contended that in case of floating of tender and publication of the same in the newspaper, the ma
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