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2011 DIGILAW 1945 (PAT)

Rishi Builders Pvt. India Ltd. v. State of Bihar

2011-09-09

S.N.HUSSAIN

body2011
ORDER : This writ petition has been filed by the petitioner challenging ORDER :dated 25.11.2009 (Annexure-10) by which the Secretary, Road Construction Department, Government of Bihar (respondent no.3) dismissed the appeal filed by the petitioner and affirmed ORDER :dated 12.08.2009 (Annexure-5) by which the Engineer-in-Chief-cum-Special Secretary, Road Construction Department, Government of Bihar, Patna (respondent no.4) rejected the show-cause of the petitioner and placed petitioner's Registration No.A.PRA/Class-01-55/07 Road (old Registration No.MU.ABHI./1st-A-644/98 Road) in the blacklist as per Rule 11 (K) (vii) of the Bihar Contract Registration Rule 2007 (hereinafter referred to as 'the Registration Rule' for the sake of brevity) and Rule 13 (vii) of the Bihar Contract Enlistment Rule, 1996 (hereinafter referred to as 'the Enlistment Rule' for the sake of brevity). A direction has also been sought for the respondents to allow the petitioner to work as contractor in terms of the licence granted by the respondent department in favour of the petitioner. 2. Learned counsel for the petitioner stated that notice inviting tender was published on 27.12.2001 by the authorities for the work strengthening and widening of Lauria – Shikarpur – Thodi Road from 0-12.7 portion under Ram Nagar Road Division under the Central Road Fund Scheme, whereafter the petitioner and four other contractors submitted their tenders for allotment of the said work and the petitioner was selected. 3. Learned counsel for the petitioner also submitted that much thereafter on 09.03.2009 (Annexure-1) a show-cause notice was issued to the petitioner by the authority concerned asking him as to why his registration should not be placed in the blacklist due to irregularities in the tender filed in response to notice inviting tender dated 27.12.2001 in collusion with some officers of the Department as per the provision of Rule 11 (K) (iii) and (x) of the Registration Rule. It is stated that earlier Superintending Engineer of the concerned circle was entrusted to make an enquiry and accordingly the enquiry was made and report was submitted by the said authority exonerating the petitioner. 4. It is stated that earlier Superintending Engineer of the concerned circle was entrusted to make an enquiry and accordingly the enquiry was made and report was submitted by the said authority exonerating the petitioner. 4. Learned counsel for the petitioner further averred that since the relevant documents were not available with the petitioner, he filed petition dated 25.03.2009 (Annexure-2) asking the authorities of the department for supplying the said documents and thereafter the said documents were supplied to the petitioner by letter dated 06.05.2009 (Annexure-3) along with enclosures which showed that the allegation was in fact against one M/s Narayani Construction and others and there was no allegation of any illegality against the petitioner. Hence, the petitioner filed his detailed show-cause on 28.05.2009 (Annexure-4) stating the aforesaid facts and praying exoneration from the alleged charges. 5. Learned counsel for the petitioner claimed that the authority concerned neither properly examined the relevant documents nor considered the points raised by the petitioner and passed the impugned ORDER :dated 12.08.2009 (Annexure-5) rejecting the show-cause of the petitioner and placing his registration in the blacklist. Against the said ORDER :, petitioner filed an appeal on 11.09.2009 (Annexure-6), whereafter notice dated 29.10.2009 (Annexure-7) was sent by the appellate authority fixing the next date of hearing on 02.11.2009 on which date i.e. 02.11.2009 (Annexure-8) the petitioner appeared, but on that date a direction was given to the petitioner to file a supplementary memo and accordingly the petitioner filed the supplementary memo on the same day i.e. 02.11.2009 (Annexure-9) stating the facts in chronological manner. Learned counsel for the petitioner further claimed that thereafter neither any date was fixed by the appellate authority nor any opportunity was given to the petitioner to place his case and all of a sudden the impugned ORDER :dated 25.11.2009 (Annexure-10) was passed by the appellate authority dismissing the appeal of the petitioner without considering the points raised by the petitioner as well as the facts and law involved therein. 6. Learned counsel for the petitioner argued that the notice inviting tender as well as the petitioner's tender was of 2001 and hence it was governed by the Enlistment Rule of 1996 in which there is no provision for blacklisting any registration nor there is any allegation against the petitioner for which any punishment can be granted under the said Rule. Learned counsel for the petitioner argued that the notice inviting tender as well as the petitioner's tender was of 2001 and hence it was governed by the Enlistment Rule of 1996 in which there is no provision for blacklisting any registration nor there is any allegation against the petitioner for which any punishment can be granted under the said Rule. Learned counsel for the petitioner further argued that the Registration Rule of 2007 was not in existence at the relevant time and hence its provisions were not applicable to the instant case, but belatedly in the year 2009 proceeding was started and punishment of blacklisting was given to the petitioner by the respondents taking help of the Registration Rule of 2007 although it was not applicable to the case of the petitioner. 7. Learned counsel for the petitioner also averred that admittedly work was not given to the petitioner, but in spite of that the allegation is that the petitioner connived with the regional authority for committing illegalities in the submission of tender in the year 2001, but no punishment had been given to any of the regional authorities whereas major punishment had been given to the petitioner and that too after seven years. Hence he claimed that the impugned ORDER :s and actions of the authorities concerned are not sustainable in law and are fit to be quashed. 8. On the other hand, learned counsel for the respondents submitted that there is no question of any delay in the instant case as earlier the matter was before the Lokayukta, who ORDER :ed in the year 2007 to initiate a proceeding against the persons concerned including the petitioner and the authorities, who allegedly connived. In any view of the matter he stated that even if there is a delay no bar of time is provided either in the Enlistment Rule of 1996 or in the Registration Rule of 2007 and accordingly F.I.R. had been lodged against the petitioner and the authorities concerned bearing Ram Nagar P.S. Case No.82 of 2008. 9. Learned counsel for the respondents averred that the instant proceeding against the petitioner was initiated in the year 2009 and at that time the Enlistment Rule of 1996 had lost it force and the provisions of the Registration Rule of 2007 were applicable. 9. Learned counsel for the respondents averred that the instant proceeding against the petitioner was initiated in the year 2009 and at that time the Enlistment Rule of 1996 had lost it force and the provisions of the Registration Rule of 2007 were applicable. He further claimed that the petitioner had raised no such objection regarding non applicability of the Registration Rule of 2007 either in his show-cause or in his appeal, although all the allegations were clearly mentioned in the show-cause and the appeal was filed under the provisions of the Registration Rule of 2007. 10. Learned counsel for the respondents also averred that an enquiry was held in the matter by the Superintending Engineer, who submitted his report on 25.10.2002 (Annexure-A to the counter affidavit) whereafter Vigilance seized the records and was replying before the Lokayukta and even Forensic Laboratory Report found discrepancies in signature of the authorities on bid sheets. In the said circumstances he claimed that proper punishment had been given by the competent authority to the petitioner as per the prevailing law after show-cause. He claimed that punishment given to the petitioner was proper and according to the Rules as the matter was serious and such criminal acts cannot be tolerated and persons tampering the bid sheets have to be seriously punished as bid sheets are the backbone of every agreement. 11. From the arguments raised by learned counsel for the parties and the materials on record, it is quite apparent that although the respondents have specifically claimed that the matter was before the Lokayukta who passed his ORDER :in the year 2007 to initiate a proceeding against the persons concerned and the Vigilance seized the records and was replying before the Lokayukta during which period Forensic Laboratory reported discrepancies in the signatures of the authorities on the bid sheets, but neither any such ORDER :or report has been annexed nor any date with respect thereto has been disclosed by the respondents. Furthermore, according to the authorities themselves the Forensic Laboratory reported that it found discrepancies in signatures of the authorities on the bid sheets and hence due to the said discrepancies committed by the authorities the petitioner cannot be legally held guilty and punished in absence of any relevant paper involving him and any ORDER :of the Lokayukt or Vigilance in that regard. Hence there was no valid or justifiable basis for initiating any such proceeding against the petitioner and awarding such harsh punishment. 12. Furthermore the respondents have failed to give any valid reason for such a long delay of more than seven years in initiating the proceeding against the petitioner and they have even failed to produce any document to show the reason claimed by them for such inordinate delay. In exactly a similar matter in which there was a delay of about seven years a Bench of this court passed ORDER :dated 07.04.2009 in case of M/s Simanchal Construction and Another Vs. The State of Bihar and Others, reported in 2009 (3) P.L.J.R. 405 paragraph-3 of which reads as follows:- “In my view, the writ petition must succeed. The ORDER :impugned of blacklisting cannot be sustained. Behind every power including a punitive power, there is a purpose. The purpose is not to mechanically act but to punish a person. While it was relevant to start proceeding for blacklisting of the petitioner in the year 2000, it was given up but now all of a sudden, in the year 2007 the ORDER :is being passed which is a delayed action and is not only an abuse of authorities but also an abuse of discretionary powers of the authorities. For any action to be reasonable it must be taken within a reasonable time or not at all.” 13. Even from the enquiry report of the Superintending Engineer dated 25.10.2002 (Annexure-A to the counter affidavit of respondents) no specific overt act is found to have been alleged against the petitioner, whereas the specific illegalities were found to have been committed by the officers of the department themselves. However, the authorities did not take any step after the said report and waited for seven years for reasons best known to them. Hence in the light of the aforesaid decision, it is quite apparent that the actions of the authorities were not reasonable as they were not taken within a reasonable time and hence they committed abuse of their discretionary powers. 14. Hence in the light of the aforesaid decision, it is quite apparent that the actions of the authorities were not reasonable as they were not taken within a reasonable time and hence they committed abuse of their discretionary powers. 14. It is also not in dispute that at the time of notice inviting tender as well as the submissions of tender, the Enlistment Rule of 1996 was applicable and hence if any action was to be taken against the tenderers of 2001 it should have been taken under the Rule which was prevalent at that time. In the said circumstances, the authorities were not justified in applying the Registration Rules of 2007 in the said matter. Hence the punishment of blacklisting not having been provided in the Enlistment Rule of 1996, there was no occasion for the authorities concerned to punish the petitioner by putting its registration in the blacklist as per the provisions of the Registration Rule of 2007 which was not applicable in the year 2001. 15. So far the objection raised by the respondents regarding petitioner not taking such plea before the authorities is concerned, there is no estoppel against the statutes and this plea can be legally raised by the petitioner at any stage and if such objection is valid it has to be allowed. Here, the aforesaid objection raised by the petitioner is quite legal, valid and proper and the respondents have failed to validly contradict the same. 16. Accordingly, this writ petition is allowed and the impugned ORDER :s of respondent nos.3 and 4 dated 25.11.2009 (Annexure-10) and 12.08.2009 (Annexure-5) are hereby quashed.