JUDGMENT M. Katju, J.
1. Heard learned counsel for the parties.
2. The petitioner has prayed for a mandamus directing the respondents to issue tender document to the petitioner and not to finalise the tender in question till the tender of the petitioner is also considered.
3. The petitioner is a company registered under the Companies Act. The main object of the Company is catering and hotel business. The respondent Indian Oil Corporation issued advertisement in the news paper Amar Ujala dated 22.7.2002, inviting tenders, for running a snacks canteen in Mathura Refinery. True copy of the advertisement is Annexure-1 to the writ petition. The petitioner obtained the relevant information in this connection from the web site. True copy of the web site information is Annexures-2 and 3. It is alleged in para 7 of the writ petition that the petitioner fulfils the requisite requirements, and hence it applied for issuing tender documents form on 31.7.2002. Along with the application, the petitioner also sent a banker cheque towards tender document fee vide Annexures-4 and 5. The petitioner also supplied certificates issued by the respondents for work executed by the petitioner vide Annexures-6 and 7. The petitioner also supplied minutes of its meeting and balance sheet vide Annexure-8. It is alleged in para 12 of the petition that the petitioner is operating the canteen on contract basis since 1994 and there has never been any complaint regarding its work. The petitioner made a representation on 7.8.2002 to the respondent No. 2 for supply of tender document as it had completed all the requirement of the tender. True copy of the representations are Annexures-11 to 14. It is alleged that non-supply of tender document on the part of the respondents is illegal and arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution.
4. The Corporation has filed a counter-affidavit, and we have perused the same. In para 9 of the counter-affidavit, it is stated that the petitioner is not being considered for bidding of the current contract for operating the Snacks Canteen in Mathura Refinery as the past performance of the petitioner was pathetic and extremely poor. It is further alleged that the meals as well as the snacks canteens are to be operated for the workers in accordance with the statutory provisions of the Factories Act. In para 10 of the counter-affidavit, it is stated that the petitioner company was awarded the contract of operating the meal canteen in the respondent Corporation Refinery at Mathura for a period of 23 months from 1.12.2000 to 31.10.2002. It is alleged in paras 11 and 12 of the counter-affidavit that the petitioner's performance was highly unsatisfactory from the very beginning vide Annexure-C.A. 1. In para 13 it is alleged that the petitioner was also in the habit of leaving the contract incomplete/mid-way leaving the respondent Corporation in a lurch. Since catering to its employees is in a highly sensitive area and there may be industrial unrest, the respondent Corporation has to take all possible care to see that proper catering is being done for its employees. In para 15 of the counter-affidavit, it is stated that the respondent Corporation received letter from the petitioner dated 14.6.2001 stating the petitioner's inability to carry out the contract of the catering in the meal Canteen due to the ill health of Managing Director of the petitioner company. The petitioner expressed its inability to continue with the contract awarded and requested the respondent Corporation to terminate the contract in one month's time, copy of which is Annexure-C.A. 2. The respondent Corporation replied to the petitioner's letter dated 14.6.2002 categorically stating that the request of the petitioner for termination of meals Canteen Contract by one month's notice was not in accordance with the terms and conditions of the contract. The respondent Corporation further advised the petitioner to complete the contract period. In para 18, it is alleged that the respondent Corporation on receiving the petitioner's letter dated 20.6.2001 asked the petitioner vide its letter dated 17.8.2001 to continue the catering services and not to abandon the work midway vide Annexure-C.A. 5. By letter dated 29.11.2001, the Corporation terminated the contract vide Annexures-C.A. 7 and 8, Thereafter the Corporation had to initiate fresh tender for awarding the contract for providing catering in the canteen causing heavy loss to the Corporation. A fresh contract was awarded to M/s. Super Care Catering Services for 23 months from 1.12.2001 to 31.10.2003. In Para 24 of the counter-affidavit, it is stated that the petitioner had earlier also engaged in such highly unbecoming acts causing serious concern to the respondent Corporation. The petitioner had been awarded a contract for canteen for a period of 23 months from 1.1.1999 to 31.11.2000. By letter dated 27.8.1999. the petitioner stated its inability to run the canteen and that the respondent Corporation may terminate the said contract w.e.f. 27.11.1999. In this connection, the respondent Corporation held several discussions with the petitioner and only when the respondent Corporation proposed awarding new contract for the meals canteen, the petitioner sent a letter dated 10.11.1999 to the respondent Corporation stating that it will continue to run the meals canteen and that their earlier letter/notice dated 27.8.1999 may be treated as cancelled. In para 26 of the counter-affidavit, it is stated that similar acts were carried out by the petitioner while it was running the meals and snacks Canteen for the marketing division of the respondent Corporation at Mathura Refinery, Mathura, vide Annexure-C.A. 12. In para 27, it is alleged that the respondent Corporation received several complaints from its employees with regard to the poor standard and quality of the meals being served by the petitioner in the meals canteen. The petitioner was also defaulting in complying with the statutory provisions, e.g., timely payment of wages to its employees and timely deposit of Provident Fund dues.
5. A rejoinder-affidavit has been filed by the petitioner. The allegations made in the counter-affidavit have been denied. It is alleged in para 4 of the rejoinder-affidavit that Personnel Administration Manager of Mathura Refinery, Shri C.S. Bhardwaj has been trying to harass the petitioner as he is interested in a rival contractor M/s. Gambhir Catering Service, Baroda. Since he has taken over he has issued about 50 letters to the petitioner in the nature of petty complaints just to prejudice the administration against the petitioner. The petitioner has given reply to those letters of Sri. Bharadwaj which has ultimately resulted in refusing to issue tender document to the petitioner. The petitioner has also sent complaint to the Vigilance Department of Indian Oil Corporation giving the entire history of the case, and alleging that it was only due to mala fide intention of Shri Bharadwaj that the petitioner is being denied, the contract and it is being given to M/s. Super Catering Service in whose favour Sri Bharadwaj is interested.
6. It is well-settled that before blacklisting a party from bidding in a contract, the said party must be given opportunity of hearing. The action of the respondents in refusing the petitioner's bid is in substance blacklisting the petitioner. It is settled law that blacklisting cannot be done without opportunity of hearing. In the present case, there is no allegation anywhere in the writ petition that the petitioner was not given opportunity of hearing before taking the impugned action. We have carefully gone through the writ petition and found there is no averment anywhere that the petitioner was not given opportunity of hearing before taking the impugned action. Moreover in the present case, the petitioner's past conduct referred to in the counter-affidavit shows that he is not a fit person to be given the contract for the Canteen as on earlier occasions, he has sought to terminate the contract midway and left the Corporation in a lurch. The details of this fact have been given in the counter-affidavit.
7. As regard the allegation against the Personnel Administration Manager of the respondent Corporation he has not been impleaded as respondent by name or even by the official designation and hence we cannot entertain the allegation against him. Moreover, the allegations of mala fide were made for the first time in the rejoinder-affidavit. We are not inclined to accept this allegation. The reasons for refusing to invite the tender of the petitioner are in our opinion cogent and relevant. The petitioner has harassed the Corporation as stated in the counter-affidavit by terminating its contracts midway. Hence the Corporation did not find it reliable. Hence we are not inclined to exercise our discretion under Article 226 of the Constitution. The writ petition is dismissed.