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2013 DIGILAW 1018 (PAT)

Vinay Kumar Singh v. State Of Bihar

2013-08-19

KISHORE KUMAR MANDAL

body2013
Order These two writ petitions have been made cognate as similar/identical relief(s) have been prayed for inasmuch as facts are similar. They have thus been heard together with the consent of the parties and the order present will govern the same. 2. For the sake of brevity, this Court would notice relevant facts from C.W.J.C. No. 9280 of 2013. 3. The petitioner prays for issuance of appropriate writ/orders quashing the letter bearing Memo No. 182 dated 25.3.2013 (Annexure-11) passed by the Chief Executive Officer, Nagar Parishad, Hajipur (for short “Nagar Parishad”) whereby he has been informed that Empowered Standing Committee (ESC) of the Nagar Parisad resolved in its meeting dated 18.03.2013 that the petitioner and other contractor (petitioner of C.W.J.C. No. 7315 of 2013) be blacklisted and their registration be cancelled. The petitioner has also prayed for quashing of the aforesaid resolution/decision of the ESC. Other consequential reliefs have also been prayed for. 4. As per the pleadings, the petitioner is a Contractor registered with the respondent Nagar Parishad vide Registration No. 7/2008-09 (Annexure-1) valid for the period 13.8.2008 to 12.8.2013. Such registration was made by the Chief Executive Officer of the respondent Nagar Parishad. The Nagar Parishad published a short term tender notice on 29.01.2012 whereby quotations were invited from the registered contractors for execution of diverse work(s) enumerated in Column-2 thereof. In pursuance thereto, the petitioner also applied on 2.2.2012. His tender was refused by the respondent. The petitioner approached the District Magistrate seeking intervention in the matter. The petitioner was thereafter provided the quotation forms (BOQ) on 2.2.2012. The petitioner submitted his tender forms/offer within time on 3.2.2012 in which he quoted rates 15 % lower than the rate(s) of the BOQ fixed by the respondents. On the same day, the tender was opened and the petitioner was declared as the lowest bidder. On 6.2.2012, a communication (annexed at Annexure-5) was sent by the respondent Chief Executive Officer of the Nagar Parishad whereunder it was informed that the registration of the petitioner with the Nagar Parishad was suspended for one month. He was called upon to submit his show cause as to why the petitioner be not blacklisted under the provisions of the Bihar Enlistment of Contractors Regulation, 2007 for his misconduct/misbehaviour in the Office of the Nagar Parishad on 2.2.2012. He was called upon to submit his show cause as to why the petitioner be not blacklisted under the provisions of the Bihar Enlistment of Contractors Regulation, 2007 for his misconduct/misbehaviour in the Office of the Nagar Parishad on 2.2.2012. This communication was issued after a decision in this regard was taken by the ESC of the Nagar Parishad. Aggrieved by the aforesaid communication suspending the registration of the petitioner, a writ petition being C.W.J.C. No. 4010 of 2012 was filed in this Court. The petitioner, in the meanwhile, filed his reply to the said show cause notice dated 6.2.2012 (Annexure-2) on 9.2.2012 (Annexure-3). The writ petition filed by the petitioner was heard on 1.3.2012 whereby notice was issued to the respondent Nagar Parishad. The respondents appeared and filed counter affidavit wherein it was inter alia stated that the work(s) were allotted to other Contractors who were the next lowest bidder and they have already completed the same. The writ petition was disposed of on 26.11.2012 (Annexure-9) observing therein that the period of suspension of registration was only for a period of one month which was over and as such there was no need to proceed further in the matter. The petitioner thereafter filed representation on 26.1.2013 before the respondent Chief Executive Officer of the Nagar Parishad for withdrawing the suspension order and to allow him to participate in future tender. The respondent no. 4 by the impugned communication dated 25.3.2013 informed the petitioner that he has been blacklisted and his registration has been cancelled by the ESC of the respondent Nagar Parishad in its meeting dated 18.3.2013. Aggrieved thereby, the present writ petition has been filed. 5. Heard Mr. Lakmesh Marvind and Mr. S.K. Ranjan for the petitioners and Mr. Surendra Kishore Thakur for the respondent Nagar Parishad. A counter affidavit has been filed on behalf of respondent nos. 3 to 6. 6. Learned counsel for the petitioner submits that registration/deregistration of the Contractor and/or blacklisting of contractor is/are administrative decisions which pertained to the jurisdiction of the Chief Executive Officer of the respondent Nagar Parishad. From the materials on record, it would appear that the suspension of the registration as well as blacklisting of the petitioner has been done by the Chief Executive Officer pursuant to the resolution(s) of the ESC. From the materials on record, it would appear that the suspension of the registration as well as blacklisting of the petitioner has been done by the Chief Executive Officer pursuant to the resolution(s) of the ESC. The order, therefore, is per se without jurisdiction as those orders have not been passed by the respondent Chief Executive Officer. Referring to the statements made in the counter affidavit, it has been stated that it is an admitted position that the registration of the petitioner has been cancelled and subsequently the petitioner has been blacklisted under the resolution passed by the ESC of the Nagar Parishad. Learned counsel drawing attention of the Court to the diverse provisions contained in the Bihar Municipal Act contended that the impugned orders have not been passed by the competent authority. He relies on an order passed by the Hon’ble Apex Court in the case of Gujarat Pradesh Panchayat Parishad versus State of Gujarat since reported in (2007) 7 SCC 718 . 7. It has next been contended that even if the jurisdiction of the ESC of the respondent Nagar Parishad is accepted for the sake of argument, the order inflicting punishment of penalty of blacklisting is bad in law since the petitioner was not afforded reasonable opportunity before passing of the said order inasmuch no opportunity of hearing was afforded which was necessary. Reliance in this regard has been placed on the following judgments of the Supreme Court: (i) (1975) 1 SCC 70 (M/S Erusian Equipment and Chemicals Ltd versus State of West Bengal and Another) (ii) (2003) 4 SCC 257 ( Jamal Uddin Ahmad versus Abu Saleh Najmuddin) 8. Mr. Ranjan learned counsel appearing in support of C.W.J.C. No. 7315 of 2013 while adopting the submissions made by Mr. Marvind submitted that the order imposing penalty of blacklisting by the ESC of the respondent Nagar Parishad is not sustainable in law in view of the ratio laid down by this Court in HCL versus State of Bihar [ 2003 (2) P.L.J.R. 753 ]. 9. Per contra, Mr. Thakur supported the impugned action. He also placed reliance on those provisions of the Act on which reliance has been placed by the petitioner as also on Rule 10 of the Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010 (for short “the Rules”). 9. Per contra, Mr. Thakur supported the impugned action. He also placed reliance on those provisions of the Act on which reliance has been placed by the petitioner as also on Rule 10 of the Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010 (for short “the Rules”). It has next been contended that the matter does not relate to transfer, posting or any issue connected therewith and as such the ratio laid in Gujarat Pradesh Panchayat Parishad (supra) shall not apply. 10. I have heard the parties and perused the materials on record. Submission of the petitioner is that the impugned actions are purely administrative decisions and as such, Chief Executive Officer of the Nagar Parishad is the competent authority. In the case at hands, the ESC of the Nagar Parishad has resolved on both the occasions to suspend the registration of the petitioner and thereafter to blacklist the petitioner. The petitioner has, in this regard, placed reliance on Gujarat Pradesh Panchayat Parishad (supra). Before considering the said submission, this Court would survey the relevant provisions of the Bihar Municipal Act, 2007 (for short “the Act”) on which reliance has been placed by the parties. 11. Section 22 of the Act reads thus:- “22.Executive power of Municipality to be exercised by Empowered Standing Committee.- Subject to the provisions of this Act and the rules and the regulations made there under, the executive power of a Municipality shall be exercised by the Empowered Standing Committee.” 12. Section 27-B in its relevant part is extracted hereinbelow:- “27-B. Power and function of Chief Municipal Officer.- (1) The Chief Municipal Officer shall be the Principal Executive Officer of the Municipality and all officers and other employees of the Municipality shall be subordinate to him. Powers of transfers and posting and disciplinary action against all officers and staff appointed by him under Sec. 28 of this Act shall vest in the Chief Municipal Officer. (2) Subject to the supervision and control of the Empowered Standing Committee, and the provisions of this Act and of any Rules and Bye-laws made there under, executive functions for carrying on the administration of the municipality shall vest in the Chief Municipal Officer. (3) xxxxxxxxxxx (4) xxxxxxxxxxx (5) xxxxxxxxxxx (6) xxxxxxxxxxx (7)xxxxxxxxxxx” 13. Section 28 provides delegation of powers. (2) Subject to the supervision and control of the Empowered Standing Committee, and the provisions of this Act and of any Rules and Bye-laws made there under, executive functions for carrying on the administration of the municipality shall vest in the Chief Municipal Officer. (3) xxxxxxxxxxx (4) xxxxxxxxxxx (5) xxxxxxxxxxx (6) xxxxxxxxxxx (7)xxxxxxxxxxx” 13. Section 28 provides delegation of powers. The Municipality may by resolution delegate subject to such condition as may be specified in the resolution any of its power(s)/functions to the ESC. In exercise of the power conferred under Section 22 of the Act, the Government of Bihar has formulated Rules called the Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010. Rule 10 thereof vests executive power of Municipality in the Empowered Standing Committee (ESC) which has to be used collectively. It further provides that administrative control on the staff of the Municipality shall vest in Chief Executive Officer. Resolution shall be passed in the light of orders/directions issued time to time from the State Government. On a conspectus of the aforesaid provisions, it appears that the executive power of the Nagar Parishad is vested in the ESC. In Gujarat Pradesh Panchayat Parishad (supra) on which reliance has been placed by the petitioner, the Hon’ble Supreme Court was dealing with the provisions contained in Gujarat Panchayat Act, 1993 wherein the District Development Officer being the Executive Officer was vested powers in relation to recruitment, appointment, promotion, transfer, deputation, disciplinary matter etc. of the employees. The District Development Officer, in view of the provisions contained therein, was held not required to obtain prior or even subsequent orders of the President of the District Panchayat. The President of the District Panchayat had directed that before taking any such decision, his consent should be obtained by the Executive Officer. In face of the aforesaid controversy and the relevant provisions contained in the said Act, the Apex Court while dismissing the petition filed by the Gujarat Pradesh Panchayat Parishad upheld the submissions of the respondent that the District Development Officer was not required to seek previous approval/permission of the District Panchayat/President. It was, however, clarified that the District Panchayat or the President of the Panchayat shall have power to issue direction to the District Development Officer to bring his action within the constitutional or statutory framework and in accordance with the economic plan. It was, however, clarified that the District Panchayat or the President of the Panchayat shall have power to issue direction to the District Development Officer to bring his action within the constitutional or statutory framework and in accordance with the economic plan. In the case at hand, it does not appear that a controversy of the said nature has arisen. The Executive Officer in line with the resolution of the ESC issued the impugned order whereby the decision taken by the ESC was conveyed. The matter does not pertain to recruitment, appointment, promotion, transfer, deputation and disciplinary matter. From the various provisions noticed hereinabove, it would appear that executive power of the Nagar Parishad is vested in the Empowered Standing Committee. While delineating the power and functions of Chief Executive Officer in Section 27-B, it has, however, been provided that power of transfer and posting and disciplinary action against all officers and staff appointed by him under Section 38 of the Act shall vest in him. In the case at hand, no issue relating to those powers is involved. Sub-section (2) of Section 27-B in this regard can also be noticed wherein executive functions are to be carried out by the Chief Executive Officer subject to supervision and control of the ESC. 14. This Court is, therefore, unable to uphold the said contention of the petitioner that the order communicated by the Chief Executive Officer contained in Annexure-11 is the order of the ESC and not of the Chief Executive Officer and, therefore, bad in law on account of lack of jurisdiction. 15. The petitioner has also questioned the sustainability of the order (Annexure-11) on the ground that punishment in the shape of blacklisting has been imposed without affording a reasonable opportunity to the petitioner to submit his cause thereagainst. The petitioner has relied on M/S Erusian Equipment and Chemicals Ltd (supra) wherein the Hon’ble Apex Court observed that equality of opportunity applies to matter of public contract. The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who has been dealing with a government in the matter of sale and purchase of material has a legitimate interest or expectation. When the State acts to the prejudice of a person, it has to be supported by legality. It also concerns reputation of a person’s character and personality. A person who has been dealing with a government in the matter of sale and purchase of material has a legitimate interest or expectation. When the State acts to the prejudice of a person, it has to be supported by legality. It also concerns reputation of a person’s character and personality. Blacklisting tarnishes once reputation. Having found so, the Apex Court held that before passing the aforesaid order, the person concerned should be given an opportunity to represent his case. 16. In HCL versus State of Bihar (supra), this Court dealing with a case of blacklisting of the petitioner by the respondent Electricity Board held that person concerned is required to be given an opportunity of hearing before passing such order. It is to be noticed here that the reason for blacklisting as evident from the resolution of the ESC (part of the impugned order) is the misconduct/misbehaviour of the petitioner. In such situation, it was all the more necessary to give the petitioner an opportunity of hearing to explain the circumstances and his conduct on the relevant date. This Court may notice that the registration of the petitioner with the Nagar Parishad has already expired on 12.8.2013. However, the effect of blacklisting shall continue to prevent the petitioner from being further enlisted with the respondent Nagar Parishad. This Court is, thus, persuaded to hold that before inflicting the penalty of blacklisting, adequate opportunity was not granted to the petitioner. Be it noted that aforesaid view has been taken considering the fact that although the registration of the petitioner with the respondent Nagar Parishad has already expired but so long as the order of his blacklisting continues, the respondent Nagar Parishad shall not re-enlist/register the petitioner as the contractor with the respondent Nagar Parishad. 17. Resultantly, the present application is disposed of by the following order:- Let the petitioner file a fresh representation within three weeks before the respondent Chief Executive Officer. The representation shall be placed before the Empowered Standing Committee for fresh consideration. The ESC of the respondent Nagar Parishad may grant the petitioner a personal hearing if a request is made therefor and thereafter take a fresh decision with respect to the blacklisting of the petitioner in accordance with law. The representation shall be placed before the Empowered Standing Committee for fresh consideration. The ESC of the respondent Nagar Parishad may grant the petitioner a personal hearing if a request is made therefor and thereafter take a fresh decision with respect to the blacklisting of the petitioner in accordance with law. The order contained in Annexure-11 which is the result of the resolution of the ESC taken on 18.03.2013 shall not come in the way of the respondents from taking a fresh decision in accordance with law. It is expected that the respondents will take a final decision in the said matter expeditiously preferably within eight weeks of its filing/presentation. 18. No order as to cost(s).