Bombay High Court Rejects Plea Raised By A Contractor Against ONGC

A division bench of Justices Gautam Patel and Neela Gokhale refused to set aside ONGC’s order banning the petitioner - Carlton Industries Engineers from participating in any of the bids for six months.

The petitioner was banned after ONGC’s enquiry officer concluded that Carlton had submitted a revised Undated Completion Certificate in collusion with the Project Coordinator of work at ONGC with a sole intent to take advantage and get themselves qualified for tender.

“…The undated certificate seems to shower compliments on the Petitioner, apart from wishing him great success and all good luck. To say that we have never seen ONGC or its officers acting in so magnanimous fashion with any contractor might be a great understatement,” the bench observed.

The court also said there were disputed questions of fact which couldn’t be adjudicated in the petition under Article 226 of the constitution.

“At the very least, these are seriously disputed questions of fact. We see no way to adjudicate them in our summary jurisdiction under Article 226 of the Constitution of India. There is no question of granting the Petitioner any ad-interim relief in light of the pointed reference to documentation that is not only disputed but is prima facie said to have been produced by collusion with one of ONGC’s own officer.”

Facts

The Petitioner Mr. Mahendranath Vidyaniwas Trivedi - Sole Proprietor of Carlton Industries Engineers - had filed the writ petition challenging the revised completion certificate dated 21.09.2021, show cause notice dated 05.12.2022 and Banning order dated 31.01.2023.

ONGC had executed a project with the Petitioner in 2017 for “Hiring of Services for Strengthening of Underwater Structural Members of Platforms and Installation of grouted clamps in Western Offshore” dated November 14, 2016. The Petitioner had qualified based on the experience criteria of their technical collaborator M/s Nautic Offshore Pvt Ltd. (“Nautic”). The MOU between the petitioner and M/s Nautic Offshore Pvt Ltd was executed on 10th March 2016.

At the behest of the Petitioner, ONGC issued a Job Completion Certificate dated 5th June 2017 certifying that the Petitioner completed the IMR Project on 2nd June 2017. Thereafter, an undated suspicious certificate was issued by DGM(P) - Project Coordinator, IMR Section, Offshore Logistics, ONGC, to the Petitioner. However, inadvertently, the Completion Certificate did not mention the roles and responsibilities of the technical collaborator, Nautic in the Completion Certificate.

Thereafter, ONGC opened a bid for a separate Project, where the Petitioner again applied for its bid using the same Completion Certificate and the Undated Completion Certificate. However, on technical evaluation of the bids, the offer of the Petitioner along with two other bidders were not found techno-commercially acceptable and proposed for rejection. An enquiry was conducted by ONGC to enquire the reasons/circumstances of technical acceptance and subsequent rejection of the tender of Petitioner. Since the Completion Certificate did not mention the clear roles of each party in the IMR Project, ONGC withdrew the earlier Completion Certificate and issued a revised completion certificate in 2021. The Petitioner objected to the revised Completion Certificate claiming that only its name should be present on the Completion Certificate.

Further, as advised by Central Vigilance Office, vendor banning process was initiated against Petitioner and an enquiry officer was appointed.

Upon completion of the Inquiry, Enquiry Officer, came to be conclusion that Petitioner had submitted the revised Undated Completion Certificate in collusion with Project Coordinator of work at ONGC with a sole intent to take advantage and get themselves qualified for tender and hence, recommended for putting Petitioner on holiday for a period of six (6) months from the date of issue of Banning order. Accordingly, on January 31, 2023 the Petitioner was put on holiday for a period of six (6) months, during which it can not apply for any bid of ONGC. Aggrieved the Petitioner filed the present petition.

The Hon’ble High Court of Bombay noted that ONGC accepts the issuance of 5.06.2017 job Completion Certificate but maintains that it was the Petitioner who produced the so-called Undated Completion Certificate.

“This lets the proverbial cat out of the bag. It is evident that the Petitioner had more than one completion certificate up his sleeve and now wants a ratification or an endorsement of some new completion certificate.”

The High Court rejected the Writ Petition filed by the Petitioner.

Case name: Mahendranath Vidyaniwas Trivedi vs State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 137

The Petitioner was represented by Mr Bhupesh Dhumatkar, i/b Mansi Patel

Respondent Nos. 2 to 4 was represented by Mr Navroz Seervai, Senior Advocate, Yash Dhruva, Khushbu Chajjed & Shahbaz Malbari.

Respondent no.5 was represented by Mr Abhishek Bhadang, with Ashutosh Misra.

Respondent no. 6 was represented by Mr Amit Shastri, AGP.

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