Hon'ble Saurabh Lavania,J.
Heard.
On 18.5.2021, we had passed the following order:-
"Put up day after tomorrow i.e. 20.05.2021 as fresh to enable counsel for the concerned opposite party to demonstrate firstly as to whether any contract/agreement has been entered by them with the petitioner herein or not? Secondly, if assuming that there was no contract/agreement with the petitioner directly, then was the petitioner indirectly involved in supply of any item to the opposite party concerned and for this purpose had submitted any presentation as regards the quality etc. of the products to be supplied, if so, was there any mispresentation by it? If it is true, then whether the principles of natural justice would not be attracted in this case, as in essence though the order is not addressed to the petitioner but to four other firms/companies including M/s Bharat Heavy Electricals Ltd., who proposed to use the products supplied by the petitioner but the contents of the order refers to the petitioner and that the design particulars of M/s Techtonicus Services (India) Pvt. Ltd. i.e. the petitioner shall not be approved by the Office for a period of two years and also that transformer manufacturers are not permitted to use NIFPS of the petitioner for a period of two years, which, prima facie, is related to the petitioner and its interests.
Moreover Annexure-16 is also prima facie related with the petitioner's business interest."
Today, Sri Navneet Agrawal, learned counsel appearing for RDSO has informed the Court on the basis of instructions that as regard the first query there was no direct contract/agreement between the petitioner and the RDSO. As regard the second query in the order dated 18.5.2021, he submits that there was no indirect relationship between the petitioner and the RDSO for supply of any item and that the petitioner had not made any presentation to the RDSO as regard quality etc. of the product to be supplied. He further informed the Court that in fact BHEL had offered to use NIFPES to be supplied by the petitioner and the RDSO had entered into a contract/agreement with BHEL and not the petitioner. BHEL had chosen the petitioner for NIFPES. On this point when Sri Agrawal was confronted as to how, if it is so, by clause 2.2 of impugned order, transformer manufactures who are sixteen in number apart from the four bidders to whom the impugned order dated 6.4.2021 is addressed, have been restrained from using the NIFPES of the petitioner for a period of 2 years without any opportunity of hearing to the petitioner in this regard, especially as, it is the case of Sri J.N. Mathur, learned Senior Advocate appearing on behalf of the petitioner that the RDSO had itself approved the NIFPES of the petitioner earlier but subsequently there has been a turn around which is arbitrary and against the principals of natural justice.
Sri Agrawal offered to provide opportunity of hearing to the petitioner in this regard and stated that the matter may be relegated back to the concerned authority.
We have considered the facts of the case and the submissions of the counsels for the parties. Apparently, there is no contract between the petitioner who had supplied NIFPES to BHEL and RDSO and it is BHEL in turn who has entered into an agreement with RDSO for their project which means that the product supplied by the petitioner is being used by BHEL for the purposes of the project/work of the RDSO. Now it was understandable that for some reason the product was not as per the requirements of the RDSO and the latter asked the bidders/contractors to use some other NIFPES without making any other further observations in this regard, but by means of impugned order what has been done is that there is a reference to a vigilance investigation and thereafter penal action has been taken by means of the impugned order by means of which inter alia BHEL has been restrained from using the NIFPES of the petitioner and secondly in Clause 2.2 it has been stated that "transformer manufacturers are not permitted to use the NIFPES of said three firms for a period of two years" which includes the petitioner-firm. Now this clause is not only addressed to the four contractors but this order has been sent to sixteen transformer manufacturers who are engaged in business with the RDSO as is evident from the document at page 103 of the writ petition dated 9.4.2021. The contention of Sri Mathur that the order therefore prejudices the petitioner generally so far as sixteen transformer manufactures are concerned and it adversely affects its business interest. He says that without even hearing the petitioner the passing of impugned order with the recitals contained therein affects the rights of the petitioner and amounts to its blacklisting. Therefore, the least that was required was to give an opportunity of hearing to the petitioner, even if there was no contract between the petitioner and RDSO.
We are also of the view that the order is not happily worded and if such an order had to be passed it could not have been passed without hearing the petitioner, especially as the system supplied by the petitioner has been approved earlier by RDSO. RDSO could have confronted BHEL in this regard and through BHEL the petitioner could have been provided an opportunity of hearing as it was its product which was being barred from use, moreso as 16 transformer manufacturers have been restrained from using its products. In the alternative a simplicitor order should have been passed at best directing the contractors not to use this NIFPES but general direction to transformer manufacturers as many as sixteen not to use the system supplied by the petitioner is gravely prejudicial to petitioner's business interest. However, we are also of the view that RDSO cannot be compelled to use the system supplied by the petitioner if in its objective and fair opinion, the system does not meet its requirements.
In these circumstance, we are of the considered view that the petitioner shall have an opportunity to represent/object against the impugned order especially Clause 2.2 thereof by making a representation within two weeks. On receipt of such representation/reply, the concerned authority in RDSO shall take a considered decision in a fair and object manner within next two weeks as to whether the system supplied by the petitioner meets its requirement or not. The said order shall be communicated to the petitioner within the said period.
For a period of four weeks or till a fresh decision is taken in the matter, Clause 2.2 of the order dated 6.4.2021 and consequential order dated 9.4.2021 shall remain in abeyance so far as the petitioner is concerned. This however does not mean that the RDSO can be compelled to use the system supplied by the petitioner in its work during these four weeks, for reason already mentioned hereinabove.
The impugned order dated 6.4.2021 shall abide by the fresh decision to be taken by the competent authority in the RDSO.
Sri J.N. Mathur, learned Senior counsel and Sri Navneet Agrawal, learned counsel for the contesting parties submit that the petition be disposed of in the aforesaid terms as whatever order is passed by RDSO that would be made the subject matter of fresh petition if there is any cause in this regard.
The present petition is disposed of in the aforesaid terms.
Order Date :- 20.5.2021 Vikas/-