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2016 DIGILAW 3488 (ALL)

Vishwamitra Tripathi v. State of U. P.

2016-10-19

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT The petitioner is a registered contractor (B category) of Kushinagar Special Area Development Authority, Kushinagar (hereinafter referred to as the 'Authority') is assailing the order dated 24.06.2015 passed by the third respondent i.e. Sub Divisional Magistrate/Secretary, Kushinagar Special Area Development Authority and has further payed for mandamus restraining the respondents and their agents for recovery of any amount in pursuance to the order dated 24.06.2015. 2. Record in question reflects that the Division Bench of this Court vide order dated 12.02.2016 had directed the petitioner to implead the Kanpur Special Area Development Authority, Kushinagar through its Secretary as Respondent No.5 to the writ petition and notices were also issued to the Respondents No.2, 3, 4 & 5 by registered post. The petitioner was also permitted to serve the Respondents No.2, 3, 4 & 5 who were directed to file an affidavit of service by the next date of listing. In compliance of the directive so issued by this Court, an affidavit of service dated 28.03.2016 has been filed. 3. As per office report, notices were sent by registered post on 24.02.2016 fixing 28.03.2016, but neither undelivered cover has been received back nor anyone has put in appearance on behalf of the respondents. 4. In view of the above, service of notice on the respondents is deemed to be sufficient in view of the provisions of Chapter VIII Rule 12 of Allahabad High Court Rules 1952 and as such, we have proceeded to decide the writ petition in question. 5. Record in question reflects that the Authority invited tenders for construction of interlocking road in the year 2011 and the petitioner's quotation being lowest, was awarded contract on 03.08.2011. This much is also reflected from the record in question that the official of the Authority made a spot inspection and after satisfying with the standard and quality of work made necessary recommendation for release of the fund in favour of the petitioner. Consequently, an amount of Rs.16,92,462/- was released in favour of the petitioner after due approval of the third respondent i.e. the Sub Divisional Magistrate/Secretary, Kanpur Special Area Development Authority, Kanpur Nagar. It had also been assured that payment of remaining amount shall be made after lapse of warranty period of one year. 6. Consequently, an amount of Rs.16,92,462/- was released in favour of the petitioner after due approval of the third respondent i.e. the Sub Divisional Magistrate/Secretary, Kanpur Special Area Development Authority, Kanpur Nagar. It had also been assured that payment of remaining amount shall be made after lapse of warranty period of one year. 6. In this backdrop, it is sought to be contended that within the warranty period of one year, no complaint whatsoever was made against the work performed by the petitioner but immediately after the expiry of one year the second respondent i.e. District Magistrate/Mukhya Karyapalak Adhikari, Special Area Deveopment Authority, Kushinagar, relying on an enquiry report with regard to the work done by the petitioner for the year 2011-12 passed an order on 03.10.2012 to blacklist the petitioner's and other contractors for next two years. Simultaneously, the respondent authority also directed to recover the deficient amount. Record in question also reflects that as per the enquiry report, the work done by the petitioner was not according to the standard fixed by the department concerned and as such, the deficiency of Rs.6,07,710/- was calculated. It is not disputed that the entire enquiry proceeding was ex-parte and at no point of time the petitioner was accorded any hearing or notice to the said enquiry in question. 7. Being aggrieved with the order dated 03.10.2012 the petitioner along with other contractors moved a joint representation before the first respondent i.e. Commissioner, Gorakhpur Division, Gorakhpur/President, Kushinagar Special Area Development Authority. Consequently, the first respondent directed the third respondent to give petitioner and other contractors an opportunity to rectify the deficiency if the work is in progress or under warranty. At the same time the first respondent had also directed not to blacklist the petitioner and other contractors without according an opportunity of hearing. 8. In this background, it is sought to be contended by learned counsel for the petitioner that on the spot whatsoever deficiency was highlighted by the department concerned, the same was rectified and the entire repairing work was completed itself in the month of December, 2012 under the supervision of monitoring committee. Thereafter the petitioner requested the department concerned to release the remaining balance amount. Thereafter the petitioner requested the department concerned to release the remaining balance amount. Suddenly, on 22.08.2014 a show cause notice was issued to the petitioner wherein it had been disclosed that as per the enquiry report dated 30.12.2013 the work done by him was found deficient to the tune of Rs.4,66,788/-. 9. Learned counsel for the petitioner precisely submits that the grievance of the petitioner is that the enquiry was got conducted behind the back of the petitioner, even the enquiry report was not served to the petitioner. He further submits that in the present case a detailed reply has been submitted and the said reply has been ignored by contending that it has no force. Once on the direction issued by the competent authority whatever deficiency was highlighted by the department concerned on the spot had been rectified way back in the year 2011 under the supervision of the Committee then after this belated stage the impugned order dated 24.06.2015 cannot be sustained in the eyes of law. 10. We have occasion to peruse the record in question and we find that once this is the factual situation that in spite of sufficient notice to the answering respondent no response has been filed as such we are of the considered opinion that the order impugned is hit by principle of natural justice to the extent that the respondent has relied the enquiry report dated 30.12.2013 without affording any opportunity to the petitioner. Thus, on its face value, it is apparent that the order passed is in utter contravention and violation of principles of natural justice. 11. In the present matter, it is admitted that the petitioner was not provided an opportunity of hearing, which is against the principles of natural justice. The Hon'ble Supreme Court in the case of Union Of India Vs. Mohd. Ramzan Khan (1991) 1 SCC 588 , at page 596 has quoted "Prof. Wade has pointed out: "The concept of natural justice has existed for many centuries and it has crystallized into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing....They (the courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure, to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly" 12. Justice Krishna Iyer in Mohinder Singh Gill Vs. The Chief Election Commissioner AIR 1978 SC 851 has traced the root of natural justice in Kautiyla's Arthasastra. He opined as under: "the rule of law has had the stamp of natural justice which makes it social justice". 13. Hon'ble the Supreme Court in A.K. Kraipak Vs. Union of India (1969) 2 SCC 262 held an unjust decision in an administrative enquiry may have more fair reaching effect that a decision in quasi judicial enquiry. The purpose of the rules of natural justice is to prevent miscarriage of justice. The Court has referred the classic case of State of Orissa Vs. Dr. Binapani Dei AIR 1967 SC 1269 ; Supreme Court in Binapani Case (Supra) observed that if "there is power, duty to act judicially is implicit in the exercise of such power". 14. In the said enquiry, at no point of time the petitioner was asked to submit any explanation, therefore, the enquiry was ex-parte. Relying on the said enquiry report the respondent department has proceeded to pass order impugned, which cannot be sustained in the eyes of law and it is, accordingly, set aside. The writ petition is allowed, however, the respondent would have liberty to proceed in accordance with law.