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2011 DIGILAW 399 (JK)

Peer Gayas-ud-Din v. Union of India and Ors.

2011-08-06

MUZAFFAR HUSSAIN ATTAR

body2011
JUDGMENT Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge 1. Heard. 2. Rule Nisi. 3. Notice to show cause as to why Rule is not made absolute. 4. At this state, M/s A.M. Magray and S.N.Ratanpuri appeared and submitted that they have instructions to accept notice on behalf of the respondents. They further submitted that in view of the reply already filed, they need not to file further pleadings. Their statements are taken on record. 5. With the consent of learned counsel for the parties, the matter is taken up for final disposal. 6. The petitioner's firm was reclassified to the Revised Class 'E' with tendering limit of Rs. 15.00 lacs (Rupees fifteen lacs only) in the area of HQ 133 Works Engineers for the categories mentioned in the Communication dated 22nd November, 2005, addressed to the petitioner by Maj DCWE (Contracts) for Cdr Wks Engrs. In terms of the Communication dated 15th December, 2008, Lt Cdr, Offg Cdr Wks Sec issued the order whereunder the petitioner-firm, which was enlisted with the Head Quarters was suspended till further orders. It was further mentioned that the petitioner-firm is suspended due to administrative reasons. 7. On 17th April, 2009 show cause notice was issued to the petitioner whereunder the petitioner was informed that investigation report received from CID J&K has not cleared his firm and he was asked to show cause why his firm should not be removed from the approval list of MES contractors for all further business dealings. Reply to show cause notice was sent by the petitioner. 8. When no further decision was taken, the petitioner was constrained to file the writ petition. 9. On notice issued, respondents have filed reply affidavits. 10. Respondents 1 to 3 at para-3 of the reply affidavit have stated that the State CID reported about the case of the petitioner 'not recommended'. It is for this reason, the petitioner-firm was suspended. 11. The State respondents have also filed reply affidavit, in which details about the alleged activities of the petitioners have been given. 12. Heard learned counsel for the parties. Considered the matter. 13. Learned counsel for the petitioner submitted that petitioner's business has been brought to a grinding halt because of the suspension order issued by respondent no. 2, which is called in question in this petition. 14. 12. Heard learned counsel for the parties. Considered the matter. 13. Learned counsel for the petitioner submitted that petitioner's business has been brought to a grinding halt because of the suspension order issued by respondent no. 2, which is called in question in this petition. 14. Leaned counsel submitted that in the show cause notice send to petitioner, he was neither informed as to what was report of the State CID, nor any details were furnished, which disabled the petitioner to respond to the said show cause notice effectively. Learned counsel submitted that the petition deserves to be allowed. 15. Mr. Ratanpuri invited the attention of the Court to para-2 of the reply/objections filed by respondents 1 to 3 and submitted that the State CID Department sent a communication mentioning therein that the case is not recommended and it is for this reason, the petitioner-firm was ordered to be suspended. Learned counsel further submitted that no details were furnished by the State CID Department to the respondents 1 to 3 about the petitioner's alleged activities which prompted the State CID Department not to recommend the case of the petitioner. 16. Mr. A.M. Magray submitted that details about the activities of the petitioner-firm have been given in the reply affidavit filed by the State-authorities. Learned counsel submitted that these details were not forwarded to the authority who took the decision of suspending the petitioner's firm. 17. Right to carry on trade/business/occupation is a guaranteed fundamental right under Article 19(1)(g) of the Constitution of India. Sub-clause (6) of Article provides that nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law, imposing in the interests of general public, reasonable restrictions on the exercise of the rights conferred by the said sub-clause. 18. The authority which has ordered for suspension of the petitioner-firm in view of the stand taken by the learned counsel for the parties has passed the said order without there being any material before it. The only material available with the authority was a communication of the State-authorities, in which it was stated that 'case not recommended' what were the reasons and grounds on which State-authorities had said that 'case not recommended' was not brought to the notice of the competent authority. The only material available with the authority was a communication of the State-authorities, in which it was stated that 'case not recommended' what were the reasons and grounds on which State-authorities had said that 'case not recommended' was not brought to the notice of the competent authority. The competent authority has thus without application of mind passed the impugned order. Without there being any material before the competent authority, the order of suspension could have not been passed. The competent authority was duty bound to call for the details from the State-authorities, then apply its mind to it and thereafter pass the order. May be that after considering the detailed report, the competent authority would have come to a conclusion that the petitioner-firm would not be required to be suspended. The impugned order suffers from non-application of mind and is rendered illegal. 19. Mr. Magray, submitted that the State-authorities will forward the detailed report to the respondents 1 to 3 so as to enable them to take a decision in accordance with law. 20. This petition is disposed of in the following manner: a. By issuance of writ of Certiorari, Communication No. 80105/E-16. 80/EO dated 15th December, 2008, to the extent of petitioner is quashed. b. Respondent no. 4 is directed to forward the detailed report in respect of the petitioner to the respondents 2 and 3 within a period of two weeks from today. The respondents 2 and 3 to consider the same and take a decision in accordance with law within a period of four weeks thereafter. Before taking a decision in the matter, the petitioner shall be issued a show cause notice and should be afforded opportunity of hearing. 21. Disposed of.