Mohammad Rafiq, C.J.

1. This petition has been filed by the petitioner - Theme Engineering Services Private Limited with the following prayers:-

"a) That this Hon'ble Court may kindly be pleased to quash the impugned order dated 29.01.2021 (Annexure P/15) passed by the Respondent in the interest of justice.

b) This this Hon'ble Court may also be pleased to declare that the impugned order dated 29.01.2021 (Annexure P/15) passed by the respondent is arbitrary, violative of the principles of natural justice and thus illegal, unconstitutional, unjust, unfair and improper.

c) That this Hon'ble Court may also grant any other relief that this Hon'ble Court deems fit and just in the facts and circumstances of the case."

2. The petitioner is aggrieved by order dated 29.01.2021 Annexure P/15 by which it has been debarred from bidding process to be undertaken for the National Highway projects in future for a period of one year and has been required to deposit the entire salary and perks drawn by Mr. Rajendra Kumar Neekhra, Team Leader. The aforesaid order is purported to be have been passed under the provisions of Clause 1.13 (Instructions to Bidder, Section-2), Clause 4.5(d) of the General Conditions of Contract (GCC) of the Consultancy Agreement, Clause 3.4(b) of the letter to invitation to the consultant section-2 of the Request for Proposal (in short "the RFP") and Clause 3.4(g) of the letter to invitation to the consultant section-2 of the RFP.

3. The petitioner is engaged in Civil Engineering Multi Disciplinary Consultancy Service. The Chief Engineer (Roads), Public Works Department (PWD), Government of Madhya Pradesh issued RFP inviting proposals for "Consultancy Services for Authority's Engineer for Supervision of Works Under Package-IV for Rehabilitation and Up-gradation Mihona to Daboh Section of NH-552 Ext. from Km. 2+700 to Km.10+955 & Km. 17+335 to Km 36+540 (Design Length 27.360+6.335 Km Conventional White topping) to Two lane with paved shoulder; & Rehabilitation and Up-gradation Daboh to U.P. Border section of NH-552 Ext. from Km 40+230 to Km. 70+525 & Km 76+900 to Km 89+860 (Design Length 43.255 Km+4.370 Km Conventional White topping) to Two lane with paved shoulder; on Engineering, Procurement and Construction (EPC) Basis". Since the petitioner possessed the requisite experience and capabilities required for undertaking the Consultancy, therefore, by way of an application, it submitted requisite details in terms of said RFP and was found successful bidder vide letter dated 23.07.2018. The petitioner was invited for Contract Negotiations to be held on 01.08.2018 in accordance with Clause 6 of RFP. The petitioner duly attended the contract negotiation through their authorized representative for finalizing the methodology, work plan, staffing to optimize the required outputs, inputs required from employer and availability of key personnel. After negotiations, the petitioner was finally selected on 01.08.2018 as Consultant and letter of acceptance dated 03.08.2018 was issued in its favour in terms of RFP. According to the agreement dated 06.09.2018 executed between the petitioner and respondent No.2 and in terms of the Clause 3.4.iii.a of the RFP, the petitioner was also required to submit Curriculum Vitae (CV) of all Key Personnel in the prescribed format at the time of submitting the technical proposal. The respondent issued a work order in favour of the petitioner and requested it to proceed with the execution of the said consultancy services in accordance with the agreement. The petitioner started the work within time and the work of survey etc. was going on with full swing, however, due to utter shock and dismay, the Team Leader Mr. Ashok Patnaik, who was a Key Personnel of the said project fell sick resulting in inability to continue in providing his services on health ground and was advised for bed rest by the doctor and therefore, in terms of the contract, petitioner submitted a letter dated 06.12.2018 for his replacement by one Rajendra Kumar Neekhra and submitted his CV for consideration of the respondents.

4. Mr. Mahendra Singh, learned counsel for the petitioner submitted that the respondents received a complaint against Mr. Rajendra Kumar Neekhra made by one Mr. Neeraj Nigam dated 16.7.2020. Based on that, the petitioner was sent a communication by respondent No.2 Chief Engineer (National Highways Zone) detailing out the salient features of the complaint against Rajendra Kumar Neekhra and calling upon the petitioner to submit his point-wise clarification on the issues raised by the complainant without any delay. It is submitted that the petitioner submitted a detailed reply to the aforesaid communication on 17.9.2020. He was then sent another communication dated 11.11.2020 Annexure P/11 by the Chief Engineer conveying that the respondents were not satisfied with his reply as true and calling upon the petitioner to show cause as to why he should not be put in blacklist. The respondents again sent a letter to the petitioner on 05.1.2021 on the same subject for verification of CV of Rajendra Kumar Neekhra available on INFRACON portal.

5. Mr. Mahendra Singh, learned counsel for the petitioner has argued that the CV which the petitioner submitted to the respondents was provided to them by Rajendra Kumar Neekhra himself with all the supporting documents. The petitioner has not only produced the CV but also the supporting documents along with the same. The appointment was given to Rajendra Kumar Neekhra by Frischmann Prabhu on 26.3.2012. Vide letter dated 19.4.2010 Haryana State Roads & Bridge Development Corporation Ltd. confirmed the appointment of Rajendra Kumar Neekhra as Team Leader on behalf of Voyants Solutions Pvt. Ltd. and the letter of appointment was given to him by Voyants Solutions Pvt. Ltd. on 19.3.2009. It is argued that instead of indicating the exact date of appointment referred to in these letters, Rajendra Kumar Neekhra, in his CV, has indicated the month of commencement of his appointment, on the basis of which, the respondents in their various communications sent to the petitioner have taken as the first date of the relevant month as the initial date of appointment, which was not indicated in CV. Learned counsel for the petitioner further submitted that the petitioner has taken all the reasonable precautions, which are expected from a person of reasonable prudence and to prove his bona fides, the petitioner also enclosed with the CV, various appointment letters issued to Rajendra Kumar Neekhra and other supporting documents, which he (Rajendra Kumar Neekhra) had produced. It is argued that the respondents have not served any action inspired notice on the petitioner nor provided any effective and meaningful opportunity of hearing to it before passing the order of debarment. The CV uploaded by Mr. Rajendra Kumar Neekhra on INFRACON portal was modified by him on 22.8.2019, which is evident from the same available at Annexure P/9 at page 352, whereas he produced a different CV before the petitioner, which the petitioner furnished to the respondents. The debarment of the petitioner for a period of one year is highly excessive, unreasonable and disproportionate to the gravity of allegations. Learned counsel referred to a circular issued by the National Highways Authority of India on 20.7.2020, wherein it is mentioned that in case of first such instance, the bidding Firm should be warned and a penalty of Rs.2.0 Lakh should be levied and in second instance, the bidding Firm should be warned again and a penalty of Rs.5.0 Lakh should be imposed. But, if there are repeated cases, an incremental penalty of Rs.5.0 Lakh should be added from third instance onwards and key personnel should be blacklisted for a period of three years. Learned counsel also placed reliance on the circular dated 06.01.2021 issued by the Ministry of Road Transport & Highways. In Clause-3 of which, it is mentioned that if any information is found incorrect/fake/inflated in the CV, at any stage, debarment of the key personnel from future MoRTH or its Executing Agencies projects upto 2 years may be imposed by MoRTH or its Executing Agencies. It is also submitted that Clause-3(iv) of the aforesaid circular provides that in case, the information contained in the CV for the duration in which the key personnel was not employed by the Firm proposing his candidature is found incorrect/fake/inflated at any stage, the consultancy Firms will have to refund twice the amount of salary and perks drawn by the concerned person.

6. Mr. Mahendra Singh, learned counsel for the petitioner also argued that the paradoxical situation in the present case is that while on one hand the petitioner has been debarred for a period of one year for the alleged default in carrying out the work pursuant to agreement but on the other hand, the petitioner is continuing to serve the respondents pursuant to the same agreement, which is still subsisting.

7. Mr. Swapnil Ganguly, learned Deputy Advocate General submitted that not only one, rather three show cause notices were served on the petitioner. In-fact, the notice dated 11.11.2020 served upon the petitioner categorically required to show cause as to why he may not be put into blacklist. It is therefore wrong to suggest that the action inspired notice was not served upon the petitioner. Apart from that, the third show cause notice dated 05.01.2021 was also a detailed one. Each time the petitioner has submitted the reply to the show cause notices, which have all been duly considered and only thereafter the impugned order Annexure P/15 has been passed and that too with reference to the relevant clauses of tender documents, instructions to bidders, GCC and the various clauses of RFP.

8. Learned Deputy Advocate General submitted that as per GCC, the petitioner has a remedy under Clause 8.2 thereof, for settlement of the dispute and therefore, the writ petition may not be directly entertained by this Court. He further submitted that the two circulars issued by the MoRTH relied upon by the petitioner have been issued much later than the date of execution of the agreement and therefore, those circulars would have prospective effect only to those agreements which have been executed subsequent thereto and cannot be applied retrospectively.

9. No doubt, before passing the impugned order, three notices were served on the petitioner by the respondents. However, the fact remains that in the CV furnished to them by Mr. Rajendra Kumar Neekhra, the period of experience for his working with M/s Frischmann Prabhu was shown from March, 2012 to January, 2016. But, at the same time, he (Mr. Rajendra Kumar Neekhra) also produced the letter of appointment given to him by M/s Frischmann Prabhu, which is available on record at page No.332 showing that such appointment order was issued in his favour on 26.3.2012. The respondents in the impugned order have stated his work experience to be from 1.3.2012 to 5.1.2016. While the date of commencement of his work with M/s Frischmann Prabhu has been taken to be 1.3.2012 but the date of completion of work with M/s Frischmann Prabhu is 5.1.2016. It would be seen from the appointment order issued to Mr. Rajendra Kumar Neekhra that the actual date, on which he was appointed, was 26.3.2012. Similarly, his experience indicated in the CV submitted by the petitioner to the respondents regarding working with M/s Voyants Solutions Pvt. Ltd. is shown to be from April, 2010 to February, 2012. The respondents counted such experience from 1.4.2010 working for their client Haryana State Roads & Bridge Development Corporation Ltd. whereas according to letter dated 19.4.2010 issued to him by Haryana State Roads & Bridge Development Corporation Ltd., he was appointed as Team Leader as per letter under reference issued by Voyants Solutions dated 9.4.2010. The CV which Mr. Rajendra Kumar Neekhra uploaded on INFRACON portal has, indeed, been last modified on 22.8.2019, as would be evident from the copy of the same produced at page No.352 along with Annexure P/9. From the communication dated 30.07.2020 (Annexure P/9) addressed to the petitioner by the respondents, it is seen that in all the instances referred to him, Mr. Rajendra Kumar Neekhra did not exactly indicate the date of commencement of work with various entities which the respondents have taken to be the basis for passing the impugned order. Indeed, Mr. Rajendra Kumar Neekhra mentioned the relevant months in his CV but the fact is that the petitioner produced all the appointment letters and experience certificates to the respondents, which Mr. Rajendra Kumar Neekhra had submitted to them along with his CV. Therefore, the contention of the petitioner is that Mr. Rajendra Kumar Neekhra did not make any concealment even if he slightly inflated his experience. It is in this context the learned counsel for the petitioner has raised the argument that the petitioner as a body of persons exercising reasonable amount of vigil and caution, has believed in the correctness of documents, which Mr. Rajendra Kumar Neekhra had produced along with his CV and forwarded all such documents, as they were, with the CV. The petitioner in its reply to the various show cause notices, explained all the situations to the respondents.

10. Still further, learned counsel for the petitioner argued that in view of the guidelines issued by the Ministry of Road

Transport and Highways, Government of India on 20.7.2020 and 06.01.2021, both of which were heavily relied upon, did not envisage debarment or blacklisting a Consultancy Service provider and only envisage penalty of Rs.2.00 Lakh in the first instance and Rs.5.00 Lakh in each subsequent instances with debarment of the key personnel, whose CV is found to be inflated, up to maximum three years. The contention of the petitioner, therefore, is that the respondents having not itself terminated the agreement with the petitioner on account of which it has been debarred from participating in future contracts for a period of one year, is highly disproportionate to the seriousness of the allegations which are not directed against the petitioner but against the aforementioned Team Leader Mr. Rajendra Kumar Neekhra. 11. In view of the above discussion, without commenting on the merits of the case, we dispose of the writ petition requiring the petitioner to approach the Principal Secretary, Public Works Department, Government of Madhya Pradesh by way of a comprehensive representation, along with all the documents including the aforesaid two circulars of MoRTH, which he seeks to rely. The Principal Secretary, after providing opportunity of hearing to the petitioner, shall pass an appropriate speaking order, addressing grievance of the petitioner, within a period of three weeks from the date of its submission before him. 12. With the aforesaid direction, the petition is disposed of.