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2014 DIGILAW 997 (JHR)

Ganesh Ram Dokania v. State of Jharkhand

2014-09-19

SHREE CHANDRASHEKHAR

body2014
Order Aggrieved by letter dated 09.09.2010 and 11.07.2012, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts of the case are that, vide agreement No. 03/2007-08 work for construction of High Level Bridge over Barakar river in Barbendiya village on Nirsa-Jamtara Road under Nirsa Block was awarded on Turnkey basis to the petitioner. The schedule period of completion of the bridge was June, 2010. The bridge in question consisted of 56 piers and 57 slabs along with 2 abutments. While the construction of bridge was in progress, in August, 2009, 5 piers got damaged due to unprecedented rain. The petitioner wrote to the department requesting the department to permit the contractor to complete the work and cure the defects. Subsequently, a First Information Report being Nirsa P.S. Case No. 196 of 2009 was lodged on 13.09.2009. On 09.09.2010, a letter was issued debarring the petitioner from participating in future contracts. 3. Mr. Sachin Kumar, the learned counsel appearing for the petitioner relies on Clause 28 and 29 of the agreement and submits that an option is given to the contractor to complete the work and correct the defects. After 5 piers were destroyed due to heavy rain, the contractor duly informed the department and sought permission for repairing the same however, order dated 09.09.2010 debarring the petitioner from participating in future contracts has been passed. Thereafter, vide order dated 11.07.2012 the petitioner has been blacklisted. It is stated that though vide order dated 27.08.2010 in Cr.M.P. No. 1392 of 2009, this Court passed an order that, no coercive steps shall be taken against the petitioner, the department without considering the interim protection granted to the petitioner, proceeded to pass the order of debarment dated 09.09.2010 which cannot be sanctioned in law. It is further submitted that order dated 11.07.2012 is only intended to fill up the lacuna in as much as, no notice was issued to the petitioner before order dated 09.09.2010 was passed. 4. Mr. Anil Kumar, J.C. to A.G., the learned counsel appearing for the respondents reiterating the stand taken in the counter-affidavit submitted that since a criminal case was registered against the petitioner, the petitioner was rightly debarred from participating in other contracts and after affording an opportunity of hearing to the petitioner, order dated 11.07.2012 black listing the petitioner, has been passed. Anil Kumar, J.C. to A.G., the learned counsel appearing for the respondents reiterating the stand taken in the counter-affidavit submitted that since a criminal case was registered against the petitioner, the petitioner was rightly debarred from participating in other contracts and after affording an opportunity of hearing to the petitioner, order dated 11.07.2012 black listing the petitioner, has been passed. It is submitted that since due to negligence of the petitioner, the bridge got damaged, a criminal case was lodged and the reliance of the petitioner on Clause 28 and 29 is misplaced. 5. In reply, the learned counsel appearing for the petitioner relied on a decision of Hon'ble Supreme Court reported in “M/s Erusian Equipment and Chemicals Ltd. vs. State of West Bengal and Another”, reported in AIR 1975 SC 266 and “Pawan Kumar vs. The State of Bihar & Ors.” reported in 2009 (4) PLJR 104 . The learned counsel appearing for the petitioner also refers to Notification dated 10.09.2008 which enlists the conditions under which a contractor can be blacklisted. 6. I have carefully considered the submission made on behalf of the parties and perused the documents on record. 7. The learned counsel appearing for the petitioner has relied on a report of Birla Institute of Technology dated 02.03.2010 which indicates that “to facilitate construction of the bridge a cofferdam was made temporarily for use of shuttering and for material carriage. This embankment was made from both the ends of the bridge and only central portion of river was left for water to flow from upstream to downstream side. The report discloses that no structural error in design was detected and it is found that substandard materials was also not used by the contractor. It is submitted that specific reports were called for in the present case however, in none of the reports any specific defect has been found in the construction of the bridge. 8. Now referring to clause 28 and 29, I am of the opinion that whether these clauses would be attracted in a case like this or not, is a question which has to be decided by the department. From the report of Birla Institute of Technology and other reports placed on records, the department has to take a decision in the matter. From the report of Birla Institute of Technology and other reports placed on records, the department has to take a decision in the matter. The learned counsel appearing for the petitioner has relied on the judgment of “M/s Erusian Equipment and Chemicals Ltd.” (supra) in which case an order of black listing was issued without issuing showcause notice to the contractor. In the present case showcause notice has been issued to the petitioner. Order dated 11.07.2012 would indicate that a showcause notice was issued to the petitioner and after considering the reply of the petitioner, the impugned order dated 11.07.2012 has been passed. In so far as, the challenge to order dated 09.09.2010 black listing the petitioner is concerned, the learned counsel appearing for the petitioner has submitted that without issuing showcause notice to the petitioner the said order has been passed. It is well settled that the principles of natural justice cannot be confined in a straight jacket formula. The applicability of the principles of natural justice depends on peculiar facts and circumstances of the case and the relief sought by the party concerned. Even in a given case though the breach is admitted, the Court may not interfere with the order only on the ground of violation of principles of natural justice. 9. The learned counsel appearing for the petitioner has relied on Notification dated 10.09.2008 which provides that only on conviction in a criminal case a contractor can be black listed. The writ petition has not been filed taking the ground that the order of blacklisting is in teeth of Notification dated 10.09.2008. 10. In the present case, I find that the criminal case was registered on 13.09.2009 and the petitioner approached this Court in Cr.M.P. No. 1392 of 2009 in which an interim order was passed by this Court. One thing is apparent that even after about more than 4 years the order of debarment and black listing have continued, which has caused serious prejudice to the petitioner. It is submitted that such an order for indefinite period passed by the respondent-State of Jharkhand seriously violates the constitutional right guaranteed to the petitioner under Article 14 and 21 of the Constitution of India. 11. It is submitted that such an order for indefinite period passed by the respondent-State of Jharkhand seriously violates the constitutional right guaranteed to the petitioner under Article 14 and 21 of the Constitution of India. 11. From the materials brought on record, though I find myself unable to interfere with the impugned orders dated 09.09.2010 and 11.07.2012 however, in the peculiar facts and circumstances of the case, the petitioner is directed to approach respondent no. 1 and submit a detailed representation. 12. The petitioner is further directed to take all necessary steps for early disposal of the Cr. M.P. No. 1392 of 2009. 13. Accordingly, this writ petition is disposed of. Petition disposed of.