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Orissa High Court · body

2015 DIGILAW 14 (ORI)

Bhagyadhar Dash v. Chairman, Paradip Port Trust

2015-01-09

A.K.RATH, AMITAVA ROY

body2015
JUDGMENT A.K. Rath, J. 1. Aggrieved by the action of the opposite parties in forfeiting the earnest money deposit (hereinafter referred to as “the EMD”) of Rs.1,00,000/- and blacklisting him from participating in any tender of the Paradip Port Trust, the petitioner has filed the present writ petition. 2. Sans details, the short facts of the case of the petitioner is that he is a contractor. Pursuant to the tender call notice issued by the Executive Engineer, Port Railway Division, Paradip Port Trust-opposite party no.2 for construction of third High level Bridge over Atharbanki Creek with Approach Road, he submitted the bid and deposited a sum of Rs.1,00,000/-towards EMD along with other documents. He was not qualified in the bid. Accordingly, it was cancelled, but then the EMD was not returned to him. He made a representation on 2.1.2014 to the Chairman, Paradip Port Trust-opposite party no.1 with a copy to the opposite party no.2 requesting them to refund his EMD, vide Annexure-1. While the matter stood thus, the opposite party no.2 sent a letter to the petitioner on 19.2.2014, vide Annexure-2, that the application dated 2.1.2014 needs no consideration. 3. Pursuant to issuance of notice, the opposite parties have filed their counter affidavit. The sum and substance of the case of the opposite parties is that on 5.8.2009, a tender was floated by the Port Railway Division, Paradip Port Trust for construction of third High Level Bridge over Atharbani Creek with Approach Road. The petitioner participated in the said tender. As per the tender condition, he had submitted the EMD of Rs.1,00,000/-along with technical bid and price bid. In the technical bid, he had submitted his experience certificate in similar works from the Executive Engineer, Baliguda R & B Division. As per the work certificate, the cost of the work was Rs.2,32,78,945/- but during verification, the Executive Engineer, Baliguda R & B Division confirmed that the petitioner had executed the work value of Rs.1,20,11,682/-. Thus, the certificate submitted by the petitioner was found to be false. Relying on Clause-34 of the tender condition and Section 4 of the Integrity Pact, vide Annexure-A series, the petitioner was blacklisted and his EMD was also forfeited. Thus, the certificate submitted by the petitioner was found to be false. Relying on Clause-34 of the tender condition and Section 4 of the Integrity Pact, vide Annexure-A series, the petitioner was blacklisted and his EMD was also forfeited. It is further stated that the opposite party no.2 communicated a letter dated 19.1.2010, vide Annexure-C, to the petitioner stating therein that his EMD was forfeited and he was blacklisted from participating in any tender of the Paradip Port Trust. 4. Heard Mr.J.K.Mohapatra, learned Advocate for the petitioner and Mr.G.Mishra, learned Advocate for the opposite parties. 5. Mr.Mohapatra, learned Advocate for the petitioner submitted that before blacklisting the petitioner, no opportunity of hearing was provided to him and he has been deprived of his vital and valuable right to defend himself. 6. Mr.G.Mishra, learned Advocate for the opposite parties submitted that in the technical bid, the petitioner had submitted his experience certificate issued by the Executive Engineer, Baliguda R & B Division. During verification of the record, it was found that the information furnished by the petitioner was wrong and the certificate submitted by him was also found to be false. He further submitted that as per Clause-34 of the tender condition, he was blacklisted by the opposite party no.2 since the documents furnished by the petitioner was false. He further submitted that as per Section 4 of the Integrity Pact, the earnest money deposited by the petitioner was forfeited. Both the documents were singed by the petitioner. Since the petitioner has furnished false information, the opposite parties are quite justified in forfeiting his EMD and blacklisting him. 7. The immortal jurist Roscoe Pound whose ‘Jurisprudence’ will surpass all ages said of reputation: “On the one hand there is the claim of the individual to be secured in his dignity and honour as part of his personality in a world in which one must live in society among his fellow men. On the other hand there is the claim to be secured in his reputation as a part of his substance, in that in a world in which credit plays so large a part the confidence and esteem of one’s fellow-men may be a valuable asset.” (See: “Inter of Personality”-28 Harvard Law Review, pp.445, 447). 8. On the other hand there is the claim to be secured in his reputation as a part of his substance, in that in a world in which credit plays so large a part the confidence and esteem of one’s fellow-men may be a valuable asset.” (See: “Inter of Personality”-28 Harvard Law Review, pp.445, 447). 8. In M/s. Erusian Equipment and Chemicals Ltd. vs. State of West Bengal and another, AIR 1975 SC 266 , the apex Court in para-20 of the report held as under: “20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.” 9. The same view was echoed in Joseph Vilangandan vs. The Executive Engineer (P.W.D.), Ernakulam and others, AIR 1978 SC 930 , Raghunath Thakur vs. State of Bihar and others, AIR 1989 SC 620 and Gorkha Security Services vs. Government of NCT of Delhi and others, AIR 2014 SC 3371 . 10. Indisputably, no notice had been given to the petitioner before blacklisting. As the impugned order cast a stigma on the reputation of the petitioner, which is both an interest of personality and an interest of substance and as it is attended with civil consequences, the same should have been proceeded by notice and an opportunity to represent his case. 11. In the wake of the aforesaid, the order blacklisting and forfeiting his EMD is hereby quashed. The writ petition is allowed. However, we make it clear that it would be open to the opposite parties to take any action in these behalf after complying with procedural formalities.