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2006 DIGILAW 729 (PAT)

Laxman Prasad v. State Of Bihar

2006-08-21

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard. 2. A short question has been raised in this writ application. A contract had been awarded after due advertisement and negotiation. On 20.4.2006 agreement was duly executed. By the impugned order dated 5.5.2006 the respondent-Chief Engineer directed cancellation of the said agreement on the sole ground that a proceeding for black-listing the contractor was pending and as such in view of the direction of the State Government no tender could be allotted to such contractors. The question is whether without notice to the petitioner with regard to initiation of black-listing proceeding can any action to debar him be justified and secondly, whether for a cause that took place in the year 2001 a proceeding for black-listing can be initiated in the year 2006. 3. State has appeared and filed a counter affidavit. 4. Heard the parties. 5. In para 8 of the writ petition and also in the supplementary affidavit it has been clearly asserted by the petitioner that petitioner was not aware of black-listing proceeding having been initiated against him. It was specifically stated that petitioner was not noticed in respect of any such proceeding. It was also asserted that in the year 2001 an FlR was lodged by the department against the employees of the Sone Canal Office and one Rameshwar Prasad Patwa, who was a petty sub-contractor of the petitioner. Even in this proceeding petitioner was not proceeded against. In the counter affidavit the rest of paragraphs of the writ petition have been dealt with but consciously there has been no reply to paragraph 8. All that has been said is that pursuant to Government directive, a list of contractors against whom proceedings have been initiated and/or were pending shows that petitioners firm was one such firm. With reference to the said list (Annexure-B to the counter affidavit) it is not disclosed that apparently the sole ground for initiating the proceeding is because of a case pending, which as indicated above, is the criminal case instituted in the year 2001 in which the petitioners firm is actually not an accused. 6. In the aforesaid facts l find that there has been no denial of the fact that the petitioner has never been put to notice about the initiation or pendency of blacklisting proceeding. The fact remains uncontroverted and as such admitted. 6. In the aforesaid facts l find that there has been no denial of the fact that the petitioner has never been put to notice about the initiation or pendency of blacklisting proceeding. The fact remains uncontroverted and as such admitted. Secondly even the so-called proceedings are based on an FlR lodged in the year 2001 against the departmental officer and a petty sub-contractor of the petitioner but not against the petitioner or his firm. This fact also remains uncontroverted and thus admitted. 7. Having considered the above facts and circumstances it is clear that before a person can be punished, deprivation of a contract/cancellation of contract already entered into would certainly amount to a punishment, without even disclosing the same or without granting opportunity to explain would be clearly arbitrary and cannot be sustained in fact or in law. The authorities cannot play hide and seek. If they intend to deprive a person of his right to participate in a Government tender then before they take punitive action they must inform the petitioner and give opportunity to defend and/or explain. They cannot initiate a proceeding and keep it within their files confined in the Almirah of Secretariat and once a contract is entered into bring it out and cancel the contract. ln that view of the matter the impugned order of the Chief Engineer dated 5.5.2006 is liable to be quashed and set aside and is accordingly quashed. 8. Coming to the second ground whether a proceeding can be initiated for black-listing in the year 2006 on basis of a case instituted in the year 2001 l hold that it cannot be done because it is too stale a matters to be taken note of. If those criminal proceedings gave a cause to initiate black-listing proceeding it should have been done immediately and soon thereafter and not after five years at all when the criminal proceedings itself had been initiated at the instance of the department. Further the fact that the petitioner or for that matter his firm is not named an accused is also to be considered. 9. In that view of the matter l hold that this being the solitary ground as disclosed in Annexure B to the counter affidavit for initiation of black-listing proceeding, the ground is non est and as such no proceeding could have been initiated on the basis solely thereof. 10. 9. In that view of the matter l hold that this being the solitary ground as disclosed in Annexure B to the counter affidavit for initiation of black-listing proceeding, the ground is non est and as such no proceeding could have been initiated on the basis solely thereof. 10. In view of the aforesaid this writ petition is allowed and the impugned order dated 5.5.2006 is cancelled. All subsequent actions based on the impugned order also stand cancelled.