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2012 DIGILAW 1204 (JHR)

Dilip Kumar Jaiswal v. State of Jharkhand

2012-08-09

APARESH KUMAR SINGH

body2012
ORDER Heard learned counsel for the parties. In the instant writ petition, petitioner has sought for number of reliefs as enumerated here under:- (a) For issuance of an appropriate writ or a writ in the nature of certiorari for quashing of letter no. 444 dated 7.9.2006 issued by the respondent no. 3 whereby and whereunder the agreement bearing No. 07F/02/2002-2003 has been cancelled and the security deposit amounting to Rs. 1,39,000 has been forfeited and further directed to blacklist the name of the Petitioner in the concerned department without issuing any show cause to the petitioner. (b) For issuance of an appropriate writ or a writ in the nature of mandamus directing the respondents to make payment of the entire amount forthwith in relation to the work done by the petitioner pursuant to the agreement dated 22.3.2003 executed with Respondent No.3. (c) For issuance of an appropriate writ or a writ(s), direction(s), order(s) as deem fit and proper in the facts and circumstance of the case. 3. It appears from the order dated 9.11.2006 that petitioner has confined his prayer in the writ petition only to the extent of grievance of his blacklisting, with liberty to approach appropriate Forum for redressal of his other grievances, such as forfeiture of security money and claim of admitted dues. The said request of the petitioner was allowed by this court, as recorded in the aforesaid order and this writ petition is confined to the grievances of the petitioner relating to blacklisting. 4. Learned counsel for the petitioner submitted that the petitioner had entered into an agreement with the respondent being No. 07F/02/2002-2003 dated 23.3.2003 for construction of bridge over Sanjay river. According to the petitioner, the total cost of the project was Rs. 27,78,664/- to be executed within 1 year. However, due to recurrent naxal problem in the said area, agreement could not be executed in the time frame and petitioner was stopped from carrying out his activities because of interference and threat of the Naxalites in the said area. It is submitted that the petitioner requested to the respondent-authorities, in the circumstance, to close the agreement for execution of the work also enclosing the paper cutting in support that the area is infested with naxalites, as such it is difficult to do the work. It is submitted that the petitioner requested to the respondent-authorities, in the circumstance, to close the agreement for execution of the work also enclosing the paper cutting in support that the area is infested with naxalites, as such it is difficult to do the work. However, Respondent- authorities, thereafter, without answering the grievances of the petitioner, issued the notice informing him that construction of the said bridge on Sanjay river near Udal Kocha on Sonua Gudari Road has been stopped and hence, under the agreement, he has failed to execute the work within the specified time frame. It is further submitted that the petitioner was served with letter dated 8.8.2006 informing him that the petitioner had failed to construct the bridge within stipulated 1 -2- year period and the agreement of the petitioner is being cancelled and that action for forfeiting petitioner's security deposit is being taken. Subsequently, the impugned order dated 7.9.2006 has also been passed as contained in annexure-9, whereby the agreement has been cancelled, his security deposit has been forfeited and at the same time petitioner is being blacklisted. 5. Respondents have appeared and filed their counter affidavit. It has been submitted on behalf of the respondents that petitioner had not completed the work leading to the rescission of the agreement, as only 70% of the work has been completed. It is further stated that the petitioner was given notice and pursuant to clause -3(a) of the agreement, his contract was terminated and his earnest money has been forfeited. It is further submitted that Rs. 16,71,220/- has been paid to the petitioner. 6. However, learned counsel for the petitioner submitted that the order of black listing has been issued without any show cause or notice , which caused serious and adverse consequences upon the petitioner. Petitioner has categorically stated in para 31 of the writ petition that respondents have also not followed the Principles of Natural Justice as no show cause was given to the petitioner before blacklisting him. The aforesaid statement made in the writ petition has not been categorically denied by the respondents as would appear from para 43 of the counter affidavit. Petitioner has categorically stated in para 31 of the writ petition that respondents have also not followed the Principles of Natural Justice as no show cause was given to the petitioner before blacklisting him. The aforesaid statement made in the writ petition has not been categorically denied by the respondents as would appear from para 43 of the counter affidavit. Learned counsel for the petitioner submitted that order of blacklisting amounts to infringement of Fundamental Right to carry out business by a citizen under Article 19(1)(g) of the Constitution of India, which cannot be curtained in arbitrary and unreasonable manner and without following the Principles of Natural Justice amounting to serious and adverse civil consequences. 7. Learned counsel for the petitioner has relied upon the Judgment of the Hon'ble Supreme Court in the case of M/s Erusian Equipment & Chemicals Ltd Vrs. State of West Bengal & another reported in (1975) 1 Supreme Court Cases 70 and also in the case of Southern Painters Vrs. Fertilizers & Chemicals Travancore Ltd. & another reported in 1994 Supp (2) Supreme Court Cases 699. 8. I have heard learned counsel for the parties and gone through the records including the impugned order. It appears that although, notices were issued to the petitioner for contemplated action in relation to cancellation of the agreement and forfeiture of the earnest money , but no notice of show cause was issued to the petitioner in respect of the order of blacklisting passed by the respondent, as contained in the impugned order dated 7.9.2006. The aforesaid facts have also not been refuted in the counter affidavit filed on behalf of the respondents. It is well settled in view of the judgment of the Hon'ble Supreme Court that the order of blacklisting has serious and adverse consequences on the person upon whom it is inflicted -3- and the power should not be exercised in the manner which is arbitrary and unreasonable. It has also been held by the Hon'ble Supreme Court that the State in its action is required to be fair and act without discrimination. It has also been held by the Hon'ble Supreme Court that the State in its action is required to be fair and act without discrimination. The order of blacklisting cast serious stigma on his reputation, character and personality and fair play in action is sine qua non before such action is to be taken by the Respondent- State or its instrumentality which has been reiterated in a number of judgment including the case of M/s Erusian Equipment & Chemicals Ltd Vrs. State of West Bengal & another(supra) delivered by the Hon'ble Supreme Court. 9. In view of the aforesaid facts, since the order of blacklisting has been passed without giving opportunity of show cause to the petitioner leading to violation of Principles of Natural Justice, the part of the impugned order contained in annexure-9 dated 7.9.2006 blacklisting the petitioner cannot be sustained in law and on facts. 10. Accordingly, the impugned order only in relation to the blacklisting of the petitioner is quashed. The writ petition is allowed to the aforesaid extent.