Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 860/2013 & CM APPL. 18089/2013
M/S. GORKHA SECURITY SERVICES ..... Appellant
Through: Mr. Sudhir Nandrajog, Senior
Advocate with Mr. Tarkeshwar
Nath and Mr. B.K. Pandey,
Advocates
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Zubeda Begum, Standing
Counsel for GNCT of Delhi.
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Reserved on : 18 November, 2013
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% Date of Decision : 29 November, 2013
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN, J:
1. Present letters patent appeal has been filed challenging the judgment
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and order dated 25 October, 2013 passed by learned Single Judge, whereby
appellant’s writ petition being W.P.(C) 6718/2013 was dismissed. The
relevant portion of the impugned order reads as under:-
“11. It would thus be seen that the contract between the parties
specifically empowered the respondents to blacklist the petitioner
firm. Therefore, when the show-cause notice received by the
petitioner expressly mentioned of such action as may be deemed
appropriate by the Competent Authority, the petitioner could
easily visualize that the action proposed by the Competent
Authority could include blacklisting of the petitioner – firm.
LPA 860/2013 Page 1 of 5
Considering the express terms of the contract between the
parties, it was not necessary for the respondent to specifically
refer to the proposed blacklisting in the show-cause notice issued
to the petitioner. The purpose of show-cause notice is primarily
to enable the noticee to meet the grounds on which an action is
proposed against it and such grounds were fully detailed in the
show-cause notice issued to the petitioner. In fact, even prior to
issue of the show-cause notice, the petitioner was aware of the
issues between the parties through the notice dated 04.08.2012.
It would, therefore, be difficult to say that the petitioner did not
know what case it had to meet while responding to the show-
cause notice. In any case, the petitioner did respond to the show-
cause notice without claiming the ambiguity in the said notice
and, therefore, it is not open to it to assail the impugned order on
the ground that there was no specific reference to the proposed
blacklisting of in the said notice.
xxxx xxxx xxxx xxxx
14. As regards, the last contention that there was no breach of
the terms of the contract, I find that the Competent Authority
after taking into consideration the reply submitted by the
petitioner has come to the conclusion that there were numerous
breaches of the terms and conditions of the agreement by the
petitioner. On a perusal of the response to the show-cause notice,
I find that some of the grievances of the respondents, as stated in
the notice, were not even denied in the reply. If the petitioner
feels that the few findings recorded by the respondents in the
impugned order are factually incorrect, the appropriate remedy
for the petitioner would be to approach the civil court in this
regard since disputed questions of facts cannot be gone into in a
writ petition. It is primarily for the competent authority to decide,
after considering the reply, if any, furnished by the noticee and
taking into consideration the facts and circumstances of the case
as to whether there was any breach of the terms of the contract
on the part of the noticee or not and whether the acts and
omissions attributed to the noticee justify blacklisting or not. The
writ court cannot substitute its own view for the view of the
Competent Authority and cannot interfere with such a decision
unless it is shown that the decision so taken by the Competent
LPA 860/2013 Page 2 of 5
Authority was wholly arbitrary or perverse in nature. That,
however, cannot be said with respect to the conclusion drawn in
the impugned order.”
2. Mr. Sudhir Nandrajog, learned senior counsel for appellant submitted
that Clause 27(a)(c)a. of the T&C, which dealt with blacklisting, was not
attracted to the present case as it applied only to cases of delay in
execution/commencement of work. He further submitted that learned Single
Judge failed to appreciate that no separate show cause notice had ever been
issued to the appellant before blacklisting. Mr. Nandrajog lastly submitted
that the order of blacklisting passed by respondents did not deal with any of
the contentions advanced by the appellant on merits.
3. Having heard learned senior counsel for appellant and on a perusal of
the paper book, this Court finds that Clause 27(a)(c)a. of the T&C reads as
under:-
“a....(sic) In case the contractor fails to commence/execute the
work as stipulated in the agreement or unsatisfactory
performance or does not meet the statutory requirements of the
contract, Department reserves the right to impose the penalty as
detailed below:-
i) 20% of cost of order/agreement per week, upto two weeks’
delays.
ii) After two weeks delay Principal Employer reserves the
right to cancel the contract and withhold the agreement
and get this job be carried out preferable from other
contractor(s) registered with DGR and then from open
market or with other agencies in DGR registered agencies
are not in a position to provide such Contractor(s). The
difference if any will be recovered from the defaulter
contractor and also shall be black listed for a period of 4
LPA 860/2013 Page 3 of 5
years from participating in such type of tender and his
earnest money/security deposit may also be forfeited, if so
warranted.”
(emphasis supplied)
4. In the opinion of this Court, respondents are entitled to blacklist the
appellant not only on the ground of delay in execution/commencement of
work but also on independent grounds of unsatisfactory performance and/or
if the appellant’s work did not meet the contractual requirement.
Consequently, appellant’s submission that Clause 27(a)(c)(a)ii of T&C is
attracted only if there is delay in execution/commencement of work, is not
correct.
5. Further, this Court is of the view that the contract between the parties
did not contemplate a second show cause notice prior to blacklisting. In our
opinion, appellant would have well known that on the basis of the grounds
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mentioned in the show cause notice dated 6 February, 2013, it could be
blacklisted in accordance with Clause 27(a)(c)(a)ii of T&C. Consequently,
we are in agreement with the view of learned Single Judge that keeping in
view the express terms of the contract between the parties, it was not
necessary for the respondents to specifically refer to the proposed action of
the blacklisting in the show cause notice issued to the appellant.
6. We are also not impressed with the argument that competent authority
while passing the blacklisting order did not decide the appellant’s reply on
merits. In fact, the learned Single Judge’s finding that “some of the
grievances of the respondents, as stated in the notice, were not even denied
in the reply”, has not even been controverted in the present appeal. In any
event, we find that the appellant did not comply with the contractual terms
LPA 860/2013 Page 4 of 5
or the labour laws. For instance, during the hearing it was not disputed that
payment of wages was not made by the respondent by ECS mode even
though the contract stipulated so.
7. Consequently, present appeal and application being bereft of merits
are dismissed but with no order as to costs.
MANMOHAN, J
CHIEF JUSTICE
NOVEMBER 29, 2013
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LPA 860/2013 Page 5 of 5