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IN THE HIGH COURT OF ALLAHABAD
Ramesh Sinha, Ajit Kumar, JJ.
Aptech Ltd. - Appellants
Vs.
U.P. Power Corporation and Ors. - Respondent
Civil Misc. Writ Petition C. 19639 of 2019
Decided On : 07-08-2019
Indian Penal Code – Sections 419, 420, 467, 468, 471 – Petitioner has prayed for quashing of the impugned order passed by respondents –Petitioner being Company providing IT Infrastructure Solutions, engaged by the respondents for conducting online examinations for recruitment of Office Assistant-III, Stenographer-III, Office Assistant-III Additional Personal Assistant, Additional Personal Assistant Reviewing Officer, Junior Engineer Electrical vide order Agreement was signed between petitioner Company and the respondents respectively and the said examination for all aforesaid posts was conducted by petitioner –Held, Network attached device were captured at any time in the whole course of exams; No physical Network switch/Hub were checked or sanitized; Unused network media were not discarded before the commencement of examination; IP's of the machines dedicated for the exam were not changed; the computer machines were not sanitized by any Remote Access Tools, Key loggers, Screen Casting Application, Network bridging tool etc; - petitioner was not named in the F.I.R. and this above fact is being taken as a ground by the petitioner to claim benefit in the present case and has been cited as a witness in the said case. One must notice that, the trial is still going on and it cannot be said that the petitioner cannot be summoned as an accused in the second ongoing criminal case by the trial court. Moreover, the arguments of learned counsel for the petitioner and the reply which has been submitted by the petitioner in para-17 of the show cause notice dated 18.9.2018 are self contradictory to the agreement executed between the parties, we do not find any good ground to quash the impugned order, hence the prayer for quashing the same is refused – Petition dismissed. (Para’s 31, 32, 33)
Facts of the case:
Petitioner has prayed for quashing of the impugned order passed by respondents –Petitioner being Company providing IT Infrastructure Solutions, engaged by the respondents for conducting online examinations for recruitment of Office Assistant-III, Stenographer-III, Office Assistant-III Additional Personal Assistant, Additional Personal Assistant Reviewing Officer, Junior Engineer Electrical vide order Agreement was signed between petitioner Company and the respondents respectively and the said examination for all aforesaid posts was conducted by petitioner.
Findings of the court:
Network attached device were captured at any time in the whole course of exams; No physical Network switch/Hub were checked or sanitized; Unused network media were not discarded before the commencement of examination; IP's of the machines dedicated for the exam were not changed; the computer machines were not sanitized by any Remote Access Tools, Key loggers, Screen Casting Application, Network bridging tool etc; The computer network ports were not isolated; dynamic network diagram was not created before and after examination; VPS access logs for the examination were not preserved for future audit and yet for reasons better known to S.T.F. that petitioner was not named in the F.I.R. and this above fact is being taken as a ground by the petitioner to claim benefit in the present case and has been cited as a witness in the said case. One must notice that, the trial is still going on and it cannot be said that the petitioner cannot be summoned as an accused in the second ongoing criminal case by the trial court. Moreover, the arguments of learned counsel for the petitioner and the reply which has been submitted by the petitioner in para-17 of the show cause notice dated 18.9.2018 are self contradictory to the agreement executed between the parties, we do not find any good ground to quash the impugned order, hence the prayer for quashing the same is refused.
Result: Petition dismissed
ORDER :
Ramesh Sinha, J.
1. Heard Sri Prashant Chandra, learned Senior Advocate assisted by Sri Satyawan Shahi, learned counsel for the petitioner, Sri Amit Saxena, learned Senior Advocate assisted by Sri Abhishek Srivastava, learned counsel for the respondents and perused the record.
2. It would not be out of place of mentioned that a counter affidavit has been filed on behalf of respondent nos. 1 and 2 and on a query being made by the Court, counsel for the petitioner states that he does not wish to file reply to the counter affidavit and prayed that the Court may hear the matter, hence the Court proceed to hear the matter.
3. By means of this writ petition, the petitioner has prayed for quashing of the impugned order dated 23.5.2019 passed by respondents and further a direction to the respondents not to treat the petitioner as disqualified on account of impugned order dated 23.5.2019 issued by the respondents and allow the petitioner to participate in future tenders floated for contracts.
4. Brief facts of the case are that the petitioner being a Company providing IT Infrastructure Solutions, on 1.9.2016, was engaged by the respondents for conducting online examinations for recruitment of Office Assistant-III, Stenographer-III, Office Assistant-III (Accounts), Additional Personal Assistant, Additional Personal Assistant (Deptt.), Assistant Reviewing Officer, Junior Engineer (T) Electrical vide order dated 21.12.2016. Agreement was signed between the petitioner Company (hereinafter referred to as 'the petitioner') and the respondents on 1.9.2017 and 9.10.2017 respectively and the said examination for all the aforesaid posts was conducted by the petitioner on 8.2.2018.
5. In March, 2018, some complaints were made by certain unsuccessful candidates, who appeared in the examination for the post of Junior Engineer held on 11.2.2018, alleging malpractices which occurred during the examination. The Chief Minister of the State of U.P. took cognizance of the complaints made by the unsuccessful candidates and ordered for preliminary enquiry to be conducted by the Special Task Force (for short 'S.T.F.') U.P. Lucknow in which the representative of the petitioner also participated. On 28.3.2018, the S.T.F. completed its preliminary enquiry and submitted its report in pursuance of which on 29.3.2018, a First Information Report (for shot 'F.I.R.) No. 0005 of 2018 was lodged by the S.T.F. under sections 419, 420, 467, 468, 471 I.P.C., Sections 66/66 (C)/66(D) I.T. Act, 2000 and Section 3, 4 and 10 of Examination Act, 1982 with the Cyber Crime Police. The F.I.R. into the alleged bungling in the examination for the post of Junior Engineer was registered against 12 accused persons. The petitioner, however, was not named in the said F.I.R. On 3.4.2018, pending investigation, the examinations conducted by the petitioner was cancelled by the respondents.
6. On 9.4.2018, a show cause notice was issued to the petitioner calling upon the petitioner to explain as to why it should not be black listed for not conducting examination for various posts of respondents properly. On 11.4.2018, the petitioner requested that it may be provided a copy of the S.T.F. report on which the show cause notice was founded so as to enable it to furnish an effective reply. In the meanwhile on 23.3.2018, it appears that the police submitted charge-sheet against 13 accused persons before the Court of Special C.J.M. (Customs) Lucknow which includes some students and owners of the centres where examination for the post of Junior Engineer was held.
7. The show cause notice dated 9.4.2018 issued by the respondents was challenged by the petitioner vide Civil Misc. Writ-C No. 28097 of 2018, M/s. Aptech Limited vs. U.P. Power Corporation Limited and another, which was disposed of by a co-ordinate Bench of this Court on 28.8.2018. By the said order the said show cause notice was quashed on the ground that it does not contain details of imputation of charges as it only makes reference to
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