A. K. SIKRI, J. ( 1 ) IT stands as a settled principle of law that before blacklisting a contractor/establishment, the Government is required to comply with the principles of natural justice by issuing show cause notice to the concerned person and giving him opportunity of being heard. This principle is firmly rooted in M/s Erusian equipment and Chemicals Ltd. Vs. State of west Bengal and another reported in (1975) 1 SCC 70 and has been reaffirmed repeatedly by the Apex Court in subsequent judgments. It is now ingrained as impeccable principle of law coupled with another dicta that principles of natural justice are now part of Article 14 of the Constitution of India. The question that arises for consideration is that, pending such an action, whether the authorities can take interim action to suspend business dealings with such an establishment without following the principles of natural justice. It is this question which squarely arises for consideration in this case. ( 2 ) THIS is not the first knock, by the petitioner, at the Court of Law. In fact one chapter of the legal battle between the parties has already been written. Earlier, the petitioner firm was banned without issuing show cause notice. This action was challenged by filing cwp No. 5475/2002 by the petitioner. Contention was that in view of M/s Erusian equipment and Chemicals Ltd. (supra) and other judgments taking similar view, such an action could not have been taken without following the principles of natural justice. The respondents, on the other hand, had argued that having regard to the seriousness of the allegations levelled against the petitioner, no such formality was required in this case. By detailed judgment dated 7th January, 2003 a learned Single Judge of this court quashed the action of the respondents holding that the respondents were required to issue show cause notice and provide the petitioner opportunity of being heard before taking such an action. Thus in the earlier legal battle, which was concluded by the aforesaid judgment, the issue was decided in favour of the petitioner. The respondents have accepted that judgment which was not taken in appeal. It has, thus, attained finality. Thus in the earlier legal battle, which was concluded by the aforesaid judgment, the issue was decided in favour of the petitioner. The respondents have accepted that judgment which was not taken in appeal. It has, thus, attained finality. However, while complying with the directions contained the aforesaid judgment dated 7th january, 2003 and revoking the earlier banning order dated 6th August, 2001 as well as all consequential orders, the respondents have added the following para in the revocation order dated 3rd February, 2003 which is not palatable to the petitioner herein: "5. In accordance with the department s OM No. 7 (1)/94/d (S-II) dated 26 Sept 1994, Director (Pandc) is hereby appointed to initiate and conduct the proceedings to ban/ suspend the business dealings with the firms owned or represented by Shri naresh Kataria. Further vide clause 11 of the revised Standardised Code for suppliers circulated vide Deptt. of Supply om N0. 13/38/65-V dated 14 september 71, the business dealings with the firms owned or represented by Shri Kataria will remain suspended till the inquiry into the allegations and issue of the final order. " ( 3 ) CONTENTION of the petitioner is that even the order to the effect that business dealings would remain suspended till the inquiry into the allegations and issue of final order, is also not permissible and before passing such an order, the respondents are required to adhere to the principles of natural justice. This is how the second chapter in the legal battle between the parties starts. ( 4 ) BEFORE taking stock of the events in detail, it would be necessary to unfold some of the events of the first chapter as not only they have bearing on this second round of litigation, even the factual matrix of the matter would be better understood therefrom. ( 5 ) THE petitioner is a small scale manufacturing unit and registered with the ministry of Defence for the last over 15 years. The petitioner is engaged in indigenous research and Development and production of hi-tech equipments and spares required by armed forces. Petitioner has to its credit the National Award for indigenisation in the year 1995-1995, DSIR National Award for research and development, in Industry for the year 2000. The petitioner claimed that it on its own undertook the development of complex products including various critical assemblies for the Bofor guns to replace the imports. Petitioner has to its credit the National Award for indigenisation in the year 1995-1995, DSIR National Award for research and development, in Industry for the year 2000. The petitioner claimed that it on its own undertook the development of complex products including various critical assemblies for the Bofor guns to replace the imports. One of such projects developed by the petitioner on no cost no commitment basis was the Variable Speed Gears (for short the VSGso- It successfully developed and had the VSGs tested by the Director General of Quality Assurance. The petitioner boasts of the fact that the cost of replacement of VSGs with the electrical system in the guns is about rs. 1,500 crores as compared to Rs. 150 crores, which would be the cost of acquiring vsgs within the country indigenously. ( 6 ) THE respondents had issued the first advertisement for supply of VSGs initially in december, 1998. This requirement was not finalised and another enquiry floated in June 3, 1999. The petitioner emerged the lowest bidder. This time also the order was not finalised and again in November, 2000 fresh offers were invited. The petitioner participated and was the lowest bidder again. This time the order for supply of 61 pieces of VSGs with the basic value of Rs. 5. 43 crores was placed on the petitioner. However, vide order dated 6th August, 2001 the Department of Defence production and Supplies cancelled the aforesaid order dated 18th July, 2001 placed on the petitioner for supply of VSGs. It was stated in the impugned order that one Shri naresh Kataria, Director of the petitioner had approached an officer of the Department of defence Production and Supply with an offer of bribe (cash payment ). Indulgence in corrupt practices attracted provision of Section 21 of the General Conditions of Contracts. This being a breach of conditions of contract, the supply order was cancelled with the approval of the Competent Authority, subject to the right to recover loss occasioned by such cancellation. Additional annual maintenance contract with the petitioner was also cancelled. Bank guarantees were invoked too. The petitioner made numerous representations, but no heed was paid to them and the respondents had even refused to acknowledge the said representations, far from considering the same. The entry of Shri naresh Kataria and representatives of his company was banned in the Ministry and its subordinate offices. Bank guarantees were invoked too. The petitioner made numerous representations, but no heed was paid to them and the respondents had even refused to acknowledge the said representations, far from considering the same. The entry of Shri naresh Kataria and representatives of his company was banned in the Ministry and its subordinate offices. Petitioner s company was also banned from doing any business with the Ministry and its subordinate offices. Pursuant to the above , the supply orders placed on the petitioner by other subordinate offices of the Ministry and the factories/units were also cancelled by similar orders. ( 7 ) AT the time of arguments of the earlier writ petition, the court had called for the records. From the records, it was noted that the Additional Secretary, Defence Production and Supplies, reported that Mr. Naresh Kataria who happened to be one of the Directors of the petitioner company, as also a member of cii Core group of Defence industry, were interacting with the Ministry on various aspects of private sector involvement in defence industry. This was more so after the government decision to open up the sector to private investment. Mr. Kataria was stated to have sought an appointment with the additional Secretary on morning of 13th July, 2001. He met the Additional Secretary in the evening in the office and left certain papers concerning development of resistors. The additional Secretary recorded that Mr. Kataria thanked and expressed gratitude for the contract that was awarded to him. Mr. Kataria was stated to have been meeting the official for quite some time in his personal capacity and also as a member of CII Core group. Mr. Kataria was also member of CII delegation to London at CII seminar, which was addressed by the Additional Secretary. Mr. Kataria had expressed the desire to call on the officer socially. The Additional Secretary stated that he did not refuse since it would have appeared rude to do so. On the morning of 14th July, 2001, Mr. Kataria visited the officer at the house. After courtesies were exchanged, he got up to leave and left a paper bag, which the official noted had bundle of currency notes estimated to be Rs. 50,000/ - or Rs. One lakh, depending on whether they were notes of Rs. 50/- or Rs. 100/ -. The additional Secretary recorded in his note that he asked Mr. After courtesies were exchanged, he got up to leave and left a paper bag, which the official noted had bundle of currency notes estimated to be Rs. 50,000/ - or Rs. One lakh, depending on whether they were notes of Rs. 50/- or Rs. 100/ -. The additional Secretary recorded in his note that he asked Mr. Kataria to immediately pick up his bag and leave the house, telling him that this was a fit case to be reported to the authorities and that the contracts given to his company needed to be reviewed for possible cancellation. The Additional Secretary had duly informed the CVO as well as the joint Secretary (Establishment) and put up the note on 16th July, 2001 as 14th and 15th were, holidays. ( 8 ) BASED on the above report, from the additional Secretary, the Secretary of the defence Production and Supplies noted that relationships with companies, awarded the contracts was governed by DGSandd Manual, which provided for suspension and banning of business dealing with the firms which were involved in offences of moral turpitude or were guilty of mal-practices, such as, bribery, corruption etc. The Secretary, therefore, noted that after the Raksh Mantri had seen the papers, the CVO be asked to take immediate steps in accordance with DGSandd manual for suspension or banning of business dealings with Mr. Kataria or the company in which he may be a Director. The Defence minister, however, was of the view that facts were clear and established beyond doubt. He decided Mr. Kataria and his companies be straightway and immediately banned. CII be informed about what had been done so that their organisation as also the Core group, should never again engage in such an effort. All contracts already awarded to Mr. Kataria and his companies cancelled invoking the provision relating to seeking to influence the award of contract, The impugned order was thereupon passed following the above directions and orders given by the Raksha mantri. ( 9 ) IT was in these circumstances the question which was decided was as to whether such an order could be passed without giving a show cause notice or an opportunity of being heard. The petitioner relied upon the judgments of the Apex Court in the cases of s. L. Kapoor Vs. Jagmohan and others reported in (1980) 4 SCC 379 , Raghunath thakur Vs. The petitioner relied upon the judgments of the Apex Court in the cases of s. L. Kapoor Vs. Jagmohan and others reported in (1980) 4 SCC 379 , Raghunath thakur Vs. State of Bihar and others reported in (1989)1 SCC 229, Southern painters Vs. Fertilizers and Chemicals travancore Ltd. and another reported in 1994 Supp (2) SCC 699, M/s Erusian equipment and Chemicals Ltd. Vs. State of west Bengal and another reported in (1975) 1 SCC 70 and Joseph Vilangandan vs. The Executive Engineer (PWD), ernakulam and others reported in (1978) 3 SCC 36 in support of the contention that requirement of observing the principles of natural justice was mandatory before issuing such an order. ( 10 ) ON the other hand, the respondents had sought to justifiy the order on the ground that the petitioner s Director had indulged in a corrupt practice by attempting to offer money to a senior functionary of the Ministry and such conduct and practices had to be sternly dealt with. Action was justified and fully warranted to curb the menace of corruption. It was also submitted that in such a case observance of principles of natural justice, by giving notice to show cause, would have been a mere formality as the explanation, if any, could only be of denial by the petitioner. It was also the submission that from the facts on record, only one conclusion was possible, i. e. , the petitioner s Additional Director was attempting to briber the officer of the respondents and therefore, action could be taken without serving a show cause notice. Submitting that rules of natural justice were flexible and could be excluded in appropriate cases and those of urgency, the respondents relied upon R. S. Dass Vs. Union of India and others reported in 1986 (Supp) SCC 617, Shiv Sagar Tewari Vs. Union of India reported in (1997) 1 SCC 444 , State of maharasthra and others Vs. Prabhu reported in (1994) 2 SCC 481 and State of karnataka Vs. Surender Kotiankar reported in (1984) 1 SCC 370. Another submission was that court had power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or to perpetuate of unjust gain and in support of this submission, reliance was placed on judgments of the Apex court in the cases M. P. Mittal Vs. Another submission was that court had power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or to perpetuate of unjust gain and in support of this submission, reliance was placed on judgments of the Apex court in the cases M. P. Mittal Vs. State of Haryana and others reported in (1984) 4 SCC 371 and of Delhi High Court in the case of Kamlesh aggarwal Vs. Union of India and another (CWP no. 3510/2001 ). ( 11 ) AFTER considering the submissions of both the parties, the court was of the opinion that it was not a case of grave urgency where the court would not compel observance of rules of natural justice. This opinion was formed by taking note of the following factors: " (I) Petitioner s sustained effort to develop indigenously the assembly for vsgs for the Bofor guns and its successful testing and placement of an order on the petitioner, the possible opposition to such a move by those interested in importing the electrical assembly, reported to be costing rs. 1500/- crores as against Rs. 150/- crores for the indigenously developed vsgs assemblies, the resultant saving in foreign exchange etc. are factors which could result in petitioner antagonizing the lobby of arm dealers engaged in importing equipment and spares. The possible role of Mr. Kataria, who had ceased to be in petitioner s regular employment and had set up his own company, on whom an order had been placed by respondent, the possibility of said Mr. Kataria having his own agenda or acting otherwise than on behest of petitioner cannot be ruled out. The non lodging of a report or holding an enquiry into it has resulted in the incident not being thoroughly investigated and truth or falsity of the allegations not being established. This was not a case of an emergent nature, where affording an opportunity to explain, would have paralysed or prejudiced the administration. In the above facts and circumstances, the decision taken by the Defence Minister of cancelling all contracts and banning of dealings with the petitioner firm without giving an opportunity to show cause to the petitioner firm, cannot be sustained. This was certainly not a case, which could be called an iron and shut case, where only one conclusion as to the guilt of the petitioner was possible. This was certainly not a case, which could be called an iron and shut case, where only one conclusion as to the guilt of the petitioner was possible. This was certainly a case, where an explanation from the petitioner ought to have been called for to exactly determine the participative role of the petitioner. Whether Mr. Kataria had acted on behalf of the petitioner or was pursuing his own agenda etc. needed to be enquired into. ( 12 ) THE judgment was concluded by observing: "in view of the foregoing discussion and keeping mind the judicial pronouncements of the Supreme Court and the principles enunciated in S. L. Kapoor Vs. Jagmohan and others, Raghunath Thakur Vs. State of Bihar and others and M/erusian equipment and chemicals Ltd. Vs. State of West Bengal and another (supra), the impugned order dated 6. 8. 2001 and all other consequential orders cancelling the contracts of the petitioner and banning the dealings with the petitioner issued by Subordinate/ offices/agencies, department/authorities under the Ministry of Defence without issuance of show cause notice and giving an opportunity to the petitioner to explain its case, are hereby quashed and set aside. Respondent shall, however, be at liberty to issue fresh show cause notice/s or take action in accordance with the terms and conditions of the contract on the same cause of action, for alleged breach/violation of the terms and conditions of the contract. " ( 13 ) THE purpose of quoting from the aforesaid judgment extensively was to understand the nature of allegations against the petitioner and the manner in which the issue involved in the previous writ petition was elaborately dealt with. As noted above, complying with this judgment while revoking the banning orders, in para 5 of the impugned order dealings with the petitioner are suspended till the final decision is taken. ( 14 ) MR. Rajiv Nayyar, learned senior counsel appearing for the petitioner submitted that even for resorting to suspension, principles of natural justice in the form of issuing prior show cause notice and giving opportunity of hearing to the petitioner were to be necessarily complied with. For this purpose, the learned senior counsel relied upon various office memoranda of the respondents issued from time to time, i. e. OM dated 14th September, 1971, 30th June, 1975, 9th October, 1975, 11th February, 1976 and 26th September, 1994. For this purpose, the learned senior counsel relied upon various office memoranda of the respondents issued from time to time, i. e. OM dated 14th September, 1971, 30th June, 1975, 9th October, 1975, 11th February, 1976 and 26th September, 1994. He submitted that the reading of these office memoranda and interpretation thereof by the Supreme Court in the case of M/s erusian Equipment and Chemicals ltd. (supra) would make it amply clear that issuance of show cause notice was mandatory. His submission was that this was the understanding of the respondents themselves throughout. He submitted that the impugned communication clearly amounted to overreaching the earlier judgment dated 7th january, 2003 of this court; there was no application of mind of the authorities; action was malafide inasmuch as confidential orders in this respect were issued to various departments and this was not communicated to the petitioner till date; the entire issue was prejudged. Appointment of Director to hold inquiry was also challenged on the ground that he was junior to the complainant and therefore would not be able to act independently and impartially and prayer was made to appoint an independent person to hold the inquiry. ( 15 ) MR. U. HAZARIKA, learned counsel appearing for the respondents submitted that notice to show cause was necessary only before passing final order of blacklisting, and in emergent cases pending such an action, suspension could be resorted to. He sought to give his own interpretation to the same very memoranda by submitting that suspension pending final action was permissible and for this purpose, no such prior hearing was necessary. Elaborating his submission, he argued that suspension could be of two kinds, namely, suspension as punitive measure and suspension pending investigation. The suspension which was discussed in various memoranda was the suspension as a punitive measure which of course, had to be resorted to after complying with principles of natural justice. However, there was no such requirement when it was suspension pending investigation, a principle well known in service jurisprudence. Referring to the judgment of the Apex Court in the case of Liberty Oil Mills and others Vs. Union of India and others reported in (1984) 3 SCC 465 , it was contended that when the emergent action was needed, it could be taken without observing the principles of natural justice and post decisional hearing would do the needful in such cases. Union of India and others reported in (1984) 3 SCC 465 , it was contended that when the emergent action was needed, it could be taken without observing the principles of natural justice and post decisional hearing would do the needful in such cases. He also referred to the DGSand D manual which provided for suspension pending inquiry in three types of cases. It was submitted that the provisions contained in DGS andd Manual were on the same lines as circular dated 14th September, 1971 and therefore the suspension pending inquiry could be resorted to. He further submitted that in so far as inquiry for taking final action is concerned, it was going to be an independent inquiry and the Director who was appointed for this purpose was to discharge quasi judicial function. He submitted that in case decision taken is against the petitioner, the petitioner would be entitled to file appeal to RRM against the same and thus he could not ask for change of the inquiry officer. ( 16 ) AS much depends upon the provisions of various office memoranda, let us first ascertain as to what these office memoranda lay down. OM dated 14th September, 1971 incorporates standardised Code for Suppliers (for short code of 1971) This Code of 1971 deals with various aspects including maintenance of approved list of suppliers, registration/removal of suppliers, suspension and banning etc. Paras 11 and 12 deal with suspension and paras 13 to 22 deal with banning of business dealings with a firm. Since here we are concerned with suspension, let us reproduce para 11 dealing with suspension which reads as under: "11. Suspension of business may be ordered where, pending full enquiry into the allegations, it is not considered desirable that business with the firm should continue. Such an order may be passed-i) if the firm is suspected to be of doubtful loyalty to India; ii)if the Central Bureau of Investigation or any other investigating agency recommends such a course in respect of a case under investigation ; and iii)if Ministry/department is prima facie of the view that the firm is guilty of an offence involving moral turpitude in relation to business dealings which, if established, would result in business dealings with it being banned. " ( 17 ) IT is clear from the language of the aforequoted para that suspension could be resorted to pending full inquiry into the allegations . This OM came up for consideration in M/s Erusian Equipment and Chemicals ltd. (supra ). After the judgment in this case was rendered, in the light of the directions contained therein, the Government of India considered the question of revision of the aforesaid Code of 1971 and keeping in view the ratio of this judgment this Code was amended vide OM dated 30th June, 1975. This OM specifically accepts this fact, i. e. it is issued after considering the law laid down by the Apex Court in the aforesaid judgment and stipulates that in certain circumstances, before taking action, the concerned person is to be provided with an opportunity by way of show cause notice. Paras 3 and 4 of this om are very material and in fact issue in the present case is clinched by reading of these paras. Therefore, in order to understand as to what these paras contain, it would be apposite to quote these paras verbatim: "3. The Standardised Code for Suppliers envisages in main, the following penal action against suppliers/firms in the circumstances indicated therein:- (A) "removal" from the list of approved supplies (paras 4 to 10 of the code) (b) "suspension" of business dealings (Pars 11 and 12 of the Code) (c) "banning" of business dealings (Paras 13 to 22 of the code ). According to the Ministry of law though suspension order may be said to be of a temporary character but still, the ultimate effect is the same as that of a banning order. It will place the firm in the same position for the reason that it will be denied the benefit of having advantageous relationship with the government in so far as trade etc. is concerned even though it may be for a temporary period. In this view of the matter, before any suspension order is issued the Law Ministry have held it necessary to give an opportunity to the party to represent his case by issuing a show cause notice. Further, removal would also cause similar civil consequences and as such the same reasoning will also apply to this type of penalty. In this view of the matter, before any suspension order is issued the Law Ministry have held it necessary to give an opportunity to the party to represent his case by issuing a show cause notice. Further, removal would also cause similar civil consequences and as such the same reasoning will also apply to this type of penalty. In short, before an order of removal is passed, it would be obligatory to issue a show cause notice to the delinquent firm. Though the use of the word "blacklisting" has been discontinued and the terminology in vogue is "banning" the Ministry of Law have opined that the ratio decidendi of the supreme Court decision in the mithiborowala s case will apply equally to banning orders. Regarding past cases, the advice is not to reopen them, unless a firm makes a request to review the orders in the light of the judgment of the Supreme courts. In such an event, a decision would require to be taken after study of the merits of each caseaas the ruling of the Supreme court is binding in Government the ministry of Defence etc. are requested to inform all concerned to take immediate steps to provide an opportunity by way of a show cause notice, to the firm against whom action is proposed to be taken whether by way of deregistration, suspension or banning of business dealings in compliance with the principle enunciated by the Supreme Court. The show cause notice should indicate clearly and precisely the charges/misconduct which shall be based on facts as can be proved as distinct from mere allegations. " ( 18 ) A reading of the aforesaid paras would show that as per interpretation of the Code of 1971 there are three types of penal actions provided, namely, removal, suspension and banning. While stating about the suspension, specific reference is made to paras 11 and 12 of the Code of 1971. Thereafter this OM 30th june, 1975 deals specifically with suspension by recording that as per Ministry of Law though suspension may be stated to be of a temporary character but still the ultimate effect is the same as that of banning order. Accordingly, it stipulates that even before any suspension order is issued as per the ministry of Law, it is necessary to give an opportunity to the party to represent its case by issuing show cause notice. Accordingly, it stipulates that even before any suspension order is issued as per the ministry of Law, it is necessary to give an opportunity to the party to represent its case by issuing show cause notice. It is explained that such procedure is required to be followed even in case of removal as it entails civil consequences. Thereafter in para 4 direction is issued to all concerned departments that they should provide an opportunity by way of a show cause notice, to the firm against whom action is proposed to be taken, whether by way of deregistration, suspension or banning of business dealings, in compliance with principles enunciated by the Supreme Court. It is thus abundantly clear that the judgment of M/s Erusian equipment and Chemicals Ltd. (supra) was understood by the Government itself to mean that before any of the penalties, namely, removal, suspension and banning is resorted to, compliance with principles of natural justice was mandatory. This becomes further clear from another OM dated 9th October, 1975 issued within four months thereafter giving some clarifications to earlier OM dated 30th june, 1975. Although by this OM para 24 of the Code of 1971 relating to Communication to Firms about the action is modified, this OM reiterates the necessity of issuing issue show cause notice in all the three cases, namely, removal, suspension and banning. Further along with this OM, the specimen form to be used for communicating orders regarding banning/suspension by cancelling earlier specimen form is annexed. It is thus clear that intention was to follow the procedure of issuing show cause notice even in the case of suspension. Another OM dated 11th February, 1976 was issued wherein nature of proceedings pursuant to issuance of show cause notice were clarified by stating that it was not intended that proceedings are prolonged in the form a regular trial. In stating as to what kind of procedure pursuant to show cause is to be followed, specific mention is made to the cases of proposed action of suspension/banning of business dealings. Even in OM dated 26th September, 1994 wherein question of appointment of an officer for initiating and conducting such proceedings was concerned and guidelines issued, it is specifically stated that it relates to proceedings regarding banning/suspension. Even in OM dated 26th September, 1994 wherein question of appointment of an officer for initiating and conducting such proceedings was concerned and guidelines issued, it is specifically stated that it relates to proceedings regarding banning/suspension. All these office memoranda, thus, leave no doubt in the mind that the respondents had in theircontemplation suspension of the kind mentioned in para 11 of the Code of 1971, i. e. suspension pending inquiry also when revised guidelines were issued pursuant to the judgment of the Supreme Court. in the case of M/s Erusian Equipment and chemicals Ltd. (supra ). It was made clear that even for such an action of suspension pending inquiry observance of principles of natural justice was a necessary requirement. ( 19 ) IN view of this understanding of the supreme Court judgment and issuance of aforesaid OM basis thereon by the respondents themselves, it does not lie in their mouth to contend now that principles of natural justice are to be complied with only when the suspension is resorted to as a punitive action and not when it is an interim measure, i. e. suspension pending inquiry . This concept of dual nature of suspension is the ingenuous thought of the respondents in trying to justify the present action inasmuch as "suspension as a punitive action" is nowhere mentioned in the Code of 1971 as amended from time to time. In fact as per the respondents themselves, suspension pending inquiry as contemplated in para 11 of the code of 1971 has the same effect as that of banning order even it is of temporary character. This is so stated, very categorically, in OM dated 30th June, 1975 and rightly so. Suspension pending inquiry in service jurisprudence cannot be equated with suspension pending inquiry in the business dealings with the contractors on the approved list of the Government. When an employee is suspended pending inquiry, his relationship with the employer does not come to end; it is merely suspended. He even draws subsistence allowance during this period. Further in case he is ultimately acquitted in the departmental inquiry, he is duly compensated and restored to its original position as not only normally he gets full salary and allowances of the suspension period after his reinstatement, the suspension period is treated as period in service for all purposes. He even draws subsistence allowance during this period. Further in case he is ultimately acquitted in the departmental inquiry, he is duly compensated and restored to its original position as not only normally he gets full salary and allowances of the suspension period after his reinstatement, the suspension period is treated as period in service for all purposes. That could not be a situation in suspending a supplier pending inquiry inasmuch as even during suspension, the said contractor/supplier is precluded from having any business dealings with the government. If ultimately, after show cause notice relating to final action, his explanation is treated as satisfactory and the action is dropped, the damage which has been caused due to suspension pending inquiry cannot be undone because during suspension period also he was not allowed to have any business dealings and this process cannot be reversed. What is lost during suspension period is lost forever. It is for this reason OM dated 30th june, 1975 itself clarifies that although suspension may be of a temporary character, the ultimate effect is the same as that of banning order. ( 20 ) WHAT would be the position when very emergent and immediate action is to be taken keeping in view the serious and/or sensitive nature of allegations against a particular contractor/supplier and observance of principles of natural justice and time consumed therein may defeat the very purpose for which emergent action is required? ( 21 ) THERE could be two answers to this question which are as follows: (A) In a given case the Government can justify that principles of natural justice are not required to be observed at all. In the earlier judgment dated 7th january, 2003 in CWP No. 5475/2002 between the same parties, the court held that based on dictum laid down in r. S. Dass (supra), S. L. Kapoor (supra) and shiv Sagar Tiwari (supra) , the position which emerges is that the court would not compel observance of rules with natural justice in cases: (I) where giving of notice would obstruct taking of prompt action and the matter is urgent and requires prompt action. Inaction or delay would paralyse the administrative process/machinery. (II) Where on indisputable or admitted facts, only one conclusion was possible and it would be futile to issue a writ or compel observance of principles of natural justice. Inaction or delay would paralyse the administrative process/machinery. (II) Where on indisputable or admitted facts, only one conclusion was possible and it would be futile to issue a writ or compel observance of principles of natural justice. (III) Where observance of principles of natural justice is excluded by express provisions of statute or by implication. Thus if the Government is able to bring its case within the sweep of any of the aforesaid situation, it can justify giving go-by to the observance of rules of natural justice. Further in a given case the court can still deny relief in exercise of writ jurisdiction even though the impugned order was not sustainable of the Government is able to justify that giving relief would do greater harm to the society and would be prejudicial to public interest. However, it has already been held in the aforesaid judgment that instant case does not fall in this category. (B) If the action to be taken is of such an emergent nature that pre-decisional hearing would not be possible, purpose can be achieved by giving post-decisional hearing as held in the case of Liberty oil Mills and others (supra) wherein the court observed: ". . . . DOES it mean that the principle of natural justice of procedural fairness is to be altogether excluded when action is taken under Clause 8-B? We do not think so. We do not think that it is permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be post- decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay. If an area is devastated by flood, one cannot wait to issue show cause notices for requisitioning vehicles to evacuate population. If there is an out-break of epidemic, we presume one does not have to issue show cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post-decisional notices providing for an opportunity. If there is an out-break of epidemic, we presume one does not have to issue show cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post-decisional notices providing for an opportunity. "it may be stated at this stage that the learned asg had relied upon certain observations from this judgment to contend that an exparte ad interim order could be passed and pre-decisional natural justice was not contemplated when decision taken is of interim nature pending investigation or inquiry and the reliance was placed upon the following observations: "it may not even be necessary in some situations to issue such notices, but it would be sufficient but obligatory to consider any representation that may be made by the aggrieved person and that would satisfy the requirements of procedural fairness and natural justice. There can be no tape-measure of the extent of natural justice. It may and indeed it must vary from statute to statute, situation to situation and case to case. Again, it is necessary to say that pre-decisional natural justice is not usually contemplated when the decisions taken are of an interim nature pending investigation or enquiry. Ad interim orders may always be made ex parte and such orders may themselves provide for an opportunity to the aggrieved party to be heard at a later stage. Even if the interim orders do not make provision for such an opportunity, an aggrieved party has, nevertheless, always the right to make an appropriate representation seeking a review of the order and asking the authority to rescind or modify the order. The principles of natural justice would be satisfied if the aggrieved party is given an opportunity at his request. There is no violation of a principle of natural justice if an ex parte ad interim order is made unless of course, the statute itself provides for a hearing before the order is made as in clause 8-A. Natural justice will be violated of the authority refuses to consider the request of the aggrieved party for an opportunity to make his representation against the ex parte ad interim orders. "however, the observations were made on the interpretation of Clause 8-B in that case as would be clear from reading of para 21 of the judgment wherein on comparison of Clause 8-A and 8-B, the court observed: ". . . "however, the observations were made on the interpretation of Clause 8-B in that case as would be clear from reading of para 21 of the judgment wherein on comparison of Clause 8-A and 8-B, the court observed: ". . . Clause 8-B itself gives an indication that such a post-decisional opportunity on the request of the person concerned is contemplated. We have seen that action under Clause 8-B is to be taken if the authority is satisfied in the public interest that such action may be taken without ascertaining further details in regard to the allegations. It clearly implies that when further facts are ascertained by the authority or brought to the notice of the authority, such action may be reviewed. As we have earlier pointed out while ex parte interim orders may always be made without a pre-decisional opportunity, the principles of natural justice which are never excluded will be satisfied if a post- decisional opportunity is given if demanded. So we hold that in the case of action under Clause 8-B, it is not necessary to give a pre-decisional opportunity but a post decisional opportunity must be given if so requested by the person affected. "on the contrary, in the instant case para 11 of the Code of 1971 hasbeen interpreted by the Government to mean giving of pre-decisional hearing. Another aspect on which comments are needed is non-communication of this decision. Answer to this question is also found in Liberty oil Mills and others (supra) wherein the court made the following remarks: "the next question for consideration is whether the decision to keep in abeyance should be communicated to the person concerned. There can be no two opinions on this. Ours is a constitutional Government, an open democracy founded upon the rule of law and not a cloak and dagger regiment. It is inconceivable that under our constitutional scheme a decision of the kind contemplated by Clause 8-B which may have the effect of bringing to a standstill the entire business activity of the person affected and which may even spell ruin to him, should be made and implemented without being communicated to that person. Intertwined is the question of observance of natural justice and how can natural justice be satisfied if the decision is not even communicated? It would be most arbitrary and quite clearly violative of Arts. Intertwined is the question of observance of natural justice and how can natural justice be satisfied if the decision is not even communicated? It would be most arbitrary and quite clearly violative of Arts. 14 and 19 (1) (g) of the Constitution if Clause 8-B is to be interpreted as excluding communication of the decision taken. . . . " ( 22 ) IN the aforesaid analysis, I am of the considered view that in the instant case the suspension order could not be resorted to without affording the petitioner opportunity of being heard. ( 23 ) THIS brings us to other submission relating to appointment of an independent authority to undertake the inquiry. There is a force in the submission of the petitioner that the person appointed to undertake the inquiry being subordinate to the complainant, it may not be an impartial inquiry. Further going by the developments which have taken place in the instant case, namely, in the first instance the respondents passed banning order without complying with the principles of natural justice which was quashed by this court and thereafter now the respondents passed a suspension order again without complying with the principles of natural justice which has also been quashed, in this case if a functionary of the Ministry of Defence undertakes the inquiry, there would be lurking suspicion about his impartiality. Justice should not only be done but manifestly done is the old adage rhetoric and finds mention in numerous judgments of the Supreme Court. I am also reminded of the observations of the supreme Court in the case of Express newspaper Pvt. Ltd. and others Vs. Union of India and others reported in AIR 1986 sc 872 wherein the court had observed: "we cannot possibly in these proceedings under Art. 32 undertake an adjudication of this kind but I am quite clear that respondent No. 5 the land and Development Officer having already indicated his mind that the amount of conversion charges would be more than Rs. 3. 30 crores, it would not subserve the interests of justice to leave the adjudication of a question of such magnitude to the arbitration decision of trie Land and Development officer who is a minor functionary of the Ministry of Works and Housing. 3. 30 crores, it would not subserve the interests of justice to leave the adjudication of a question of such magnitude to the arbitration decision of trie Land and Development officer who is a minor functionary of the Ministry of Works and Housing. We are informed by Shri Sinha , learned counsel for respondent No. 1, the Union of India that the Central government were contemplating to undertake a legislation and to provide for a forum for adjudication of such disputes. As stated earlier, we had suggested that the dispute as to the quantum of conversion charges payable be referred to the arbitration of an impartial person like a retired Judge of the Supreme court of India, but this was not acceptable to the respondents. . . . "in that view of the matter, it would be appropriate that the respondents appoint some very senior officer who belongs to other department. Whether he should be from ministry of Law as suggested by the petitioner or from some other Ministry, I leave it to the respondents to decide. ( 24 ) THIS writ petition is allowed. Rule is made absolute. Impugned suspension order is hereby quashed. The respondents are also directed to appoint an officer from some other department to undertake the inquiry who should be a very senior officer and preferably equivalent or higher in status than the complainant. ( 25 ) NO costs.