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2015 Supreme(Gau) 1244
Gauhati High Court
A.K.GOSWAMI, J.
Shiv-Vani Oil & Gas Exploration Services Ltd. - Appellant
Versus
Oil India Limited - Respondent
WP(C) 164/2015
Decided On : 14-05-2015
For the Appellant :D. Das, Senior Advocate and R.B. Phukan, Advocate
For the Respondents:S.N. Sarma, Senior Advocate and A. Sarma, Advocate
Headnote:
Constitution of India , 1950 - Article 226 - Production Sharing Contract - Holiday for a period of two years - OIL had debarred it from participating in Tenders - Challenged - Petitioner was put under Holiday for a period of two years with effect from and OIL had debarred it from participating in any of its tenders - Challenging said action, petitioner had earlier moved this Court by filing a writ petition registered - By an order passed by this Court on letter dated was stayed - Thereafter, OIL filed an application praying for liberty to allow OIL to withdraw the letter dated - Application was registered as Misc. Case No. - In said application, it was stated that letter dated had been issued prior to framing of Banning/Debarring Policy of OIL which was circulated - submission of learned counsel for parties and in view of statements made in Miscellaneous Application, Miscellaneous Application was disposed of by an order dated providing that respondent would have option to take further steps if so advised pursuant to the policy notified - Held, It refers to only one event of shut down of 43.50 hours from after Banning/Debarring Policy had come into force - Poor performance was construed on basis of all shut downs indicated therein. OIL could not have taken into account events prior to coming into force of Banning/Debarring Policy as same would amount to giving retrospective effect to Banning/Debarring Policy - It is noteworthy that said Guideline is also supposed to cover details of parameters which would decide poor performance - Therefore, Banning/Debarring Policy itself visualizes laying down of parameters to determine poor performance for purpose of banning - It cannot be on ipse dixit of an authority as to what according to it constitutes poor performance for purpose of putting a contractor on Holiday list - Argument that Clause 15.0 does not visualize such formulation of guideline and same is relatable to disposal of tenders at Clause 14.0 under Disposal Tenders – Writ petition is accordingly allowed.
1. This writ petition filed under Article 226 of the Constitution of India is directed against a letter dated 20.12.2014, whereby OIL India Ltd. (for short, 'OIL') had decided to put the petitioner under “Holiday List” and debar it from participating in OIL's tender or entering into any works/services/purchase contracts with OIL for a period of two years with effect from the date of issue of the letter.
2. The petitioner company professes itself as one of the leading service provider companies in the field of oil and gas in India and overseas. It had entered into various contracts with OIL from the year 1995 for execution of drilling and seismic jobs. The petitioner has two ongoing contracts with OIL. One of the contracts being Contract No. OIL/CDG4167/DRLG/12 dated 07.01.2013, is for the service of Charter Hire of 2(two) Nos. 2000HP (Minimum) capacity Drilling Rigs in Assam and Arunachal Pradesh, and the other is under Contract No. 6106952 for Charter Hire of 1 (one) No. 1400 HP (Minimum) Drilling Rig Package for drilling and completion of three exploratory wells in Andhra Pradesh. The petitioner also entered into a Joint Operating Agreement (JOA) dated 28.05.2007 with respect of the Contract Area identified as Block MZ-ONN-2004/1 (referred to in the writ petition as 'Mizoram Block'). Another Joint Operating Agreement (JOA) entered into by the petitioner with OIL is with respect to the Contract Area identified as Block AA-ONN-2004/2 (referred to in the writ petition as 'Amguri Block'). The petitioner and OIL had entered into a Production Sharing Contract on 02.03.2007 with the Government of India in respect of Amguri Block with participating interest of OIL and the petitioner as 85% and 15%, respectively.
3. Previously also, by letter dated 15.03.2014, the petitioner was put under Holiday for a period of two years with effect from 11.03.2014 and OIL had debarred it from participating in any of its tenders. Challenging the said action, the petitioner had earlier moved this Court by filing a writ petition registered as WP(C) 2982/2014. By an order passed by this Court on 16.06.2014, the letter dated 15.03.2014 was stayed. Thereafter, OIL filed an application praying for liberty to allow OIL to withdraw the letter dated 15.03.2014. The said application was registered as Misc. Case No. 2035/2014. In the said application, it was stated that the letter dated 15.03.2014 had been issued prior to the framing of the Banning/Debarring Policy of OIL, which was circulated on 03.05.2014. Viewed in that perspective, the Management had considered that the letter dated 15.03.2014 suffered from procedural deficiency and, therefore, liberty was sought by OIL to withdraw the letter dated 15.03.2014 and, simultaneously, to permit to initiate de novo enquiry.
4. Having considered the submission of the learned counsel for the parties and in view of the statements made in the Miscellaneous Application, the Miscellaneous Application was disposed of by an order dated 21.07.2014, providing that the respondent would have the option to take further steps, if so advised, pursuant to the policy notified on 03.05.2014.
5. Thereafter, on 11.08.2014 a show-cause notice was issued to the petitioner with reference to the Contract No. OIL/CDG/4167/DRLG/12 dated 07.01.2013 requiring the petitioner to show cause, in writing, within fifteen days as to why there should not be a banning of business for providing services of Charter Hire of 2(two) Nos. 2000HP (Minimum) capacity Drilling Rigs and why the petitioner firm be not debarred from entering into any contract with OIL and be not de-listed from the list of approved contractors of OIL.
6. It was indicated that if the show-cause reply is not submitted within the time specified, it will be presumed that the petitioner has nothing to say and the authorities will proceed accordingly. The petitioner had submitted reply to the show-cause notice on 22.08.2014.
7. Thereafter, the impugned letter was issue
