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2017 DIGILAW 2156 (JHR)

Mata Constructions v. State of Jharkhand

2017-12-14

RAJESH SHANKAR

body2017
ORDER : 1. The present writ petition has been filed for quashing of the decision taken by the respondents as contained in the newspaper dated 22.9.2016 published under the signature of the Engineer-in-Chief, Rural Works Department, Government of Jharkhand whereby the petitioner has been blacklisted from future works. It is further prayed for quashing of Memo No. JSRRDA-251/15-3418 dated 26.12.2016 issued by Chief Engineer, Jharkhand State Rural Road Development Agency (in short to be referred as JSRRDA) Department of Rural Development, Government of Jharkhand whereby the application of the petitioner for removing his name from blacklisting has also been rejected. It is also prayed for return of the security amount deposited for the concerned work. 2. The factual background of the case as stated in the writ petition is that the respondent authorities issued a notice inviting tender for construction and maintenance of Road under PMGSY 2008-09 package JH0711 (VI) [T04 to Dudhwal] vide Memo No. 1575 dated 15.7.2009 (hereinafter called the said work). The petitioner being a Grade-1 Contractor applied for the allotment of the said work and the work was finally allotted to it. An agreement in this regard was also entered into vide Agreement No. 23/2009-10 and the work order was issued on 15.10.2010 having 12 months time for execution of the work. It is claimed by the petitioner that despite all sincere efforts, the work could not be completed due to naxalite activities. However, it was published in the newspaper on 22.9.2016 that the petitioner-firm has been blacklisted by the Engineer-in-Chief-cum-Special Secretary, Department of Rural Development, Government of Jharkhand (the respondent no. 3). The petitioner, thereafter, represented the Secretary, Department of Rural Development, Government of Jharkhand (the respondent no. 2) on 5.10.2016 for delisting it from blacklisting. The Chief Engineer, JSRRDA, Rural Work of Department, Government of Jharkhand (the respondent no. 4), vide Memo No. 2875 dated 31.10.2016 asked the petitioner as to on what ground it may be delisted from the blacklisting. The petitioner replied on 10.11.2016, however the respondent no. 4 vide letter dated 26.12.2016 declined to delist the petitioner from blacklisting which gives rise to filing of the present writ petition. 3. Mr. Rajiv Ranjan, the learned Senior Counsel appearing on behalf of the petitioner submits that the order of blacklisting has been passed without giving any opportunity of hearing to the petitioner. 4 vide letter dated 26.12.2016 declined to delist the petitioner from blacklisting which gives rise to filing of the present writ petition. 3. Mr. Rajiv Ranjan, the learned Senior Counsel appearing on behalf of the petitioner submits that the order of blacklisting has been passed without giving any opportunity of hearing to the petitioner. It is further submitted that the respondents while passing the order of blacklisting totally ignored the fact that the execution of the work was delayed not due to the fault of the petitioner, rather the work could not be executed due to naxal activities for which several intimations were already given to the respondents. In fact the Principal Secretary, Department of Rural Works, Government of Jharkhand (the respondent no. 2) vide letter dated 3.10.2013 himself intimated the Director General, NRRDA that it was ascertained from the field staff as well as in the State level review meeting that further construction is not feasible at the site now and these should be closed suitably at the present stage. Learned Senior Counsel for the petitioner further submits that the order of permanent blacklisting/debarment against the petitioner is de hors the settled principle of law. In support of the said contention, the learned Senior Counsel for the petitioner puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Kulja Industries Ltd. vs. Chief General Manager, Western Telecom Project, Bharat Sanchar Nigam Limited and Others, (2014) 14 SCC 731 : 2013 (4) JLJR (SC) 331. 4. The learned counsel appearing on behalf of the respondents submits that the petitioner never complained before the district administration or the concerned department about the naxal problem, either orally or in writing. It is further submitted that the petitioner never replied the show cause issued by the respondent no. 4 vide letter no. JSRRDA-251/15-1167 dated 24.5.2016 regarding the delay in completion of the work and also for blacklisting. It is also submitted that the other contractors have completed the work in the same area which is claimed to be a naxal affected area by the petitioner. 5. Heard the learned counsel for the parties and perused the materials available on record. This Court, in exercise of writ jurisdiction does not think it appropriate to go into the factual dispute as to on whose fault the work could not be completed in time. 5. Heard the learned counsel for the parties and perused the materials available on record. This Court, in exercise of writ jurisdiction does not think it appropriate to go into the factual dispute as to on whose fault the work could not be completed in time. However, on perusal of the order of blacklisting it appears that by the impugned press communique dated 22.9.2016, the petitioner has been permanently blacklisted alleging that it failed to execute the work in time. The Hon'ble Supreme Court in the case of Kulja Industries Limited (supra) has held as under:- "25. Suffice it to say that debarment is recognized and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission or frauds including misrepresentations, falsification of records and other breaches of the regulations under which such contracts were allotted. What is notable is that the debarment is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor." 6. In the aforesaid case, the Hon'ble Supreme Court has held that a debarment can never be permanent. Right to participate in a contract is a civil right and blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for financial gains. Thus, permanent debarment/blacklisting is recognized as too harsh. The period of blacklisting depends upon the nature of offence/ breach committed by the erring contractor and the same cannot be passed in a routine manner without taking into consideration the relevant circumstances. Thus, on this score alone, press communique dated 22.9.2016 by which the petitioner has been debarred/ blacklisted permanently cannot be sustained in law. 7. Considering the aforesaid facts and circumstance, the press communique dated 22.9.2016 (Annexure-4 to the writ petition) issued under the signature of the respondent no. 3 and the letter contained in Memo No. JSRRDA-251/15-3418 dated 26.12.2016 (Annexure-9 to the writ petition) issued by the respondent no. 4 are hereby quashed and set aside. The matter is remanded to the respondent no. 3 to pass afresh order with regard to the blacklisting/debarment of the petitioner after providing due opportunity of hearing to the petitioner/its representative within a period of 12 weeks from the date of receipt/production of a copy of the order. 8. 4 are hereby quashed and set aside. The matter is remanded to the respondent no. 3 to pass afresh order with regard to the blacklisting/debarment of the petitioner after providing due opportunity of hearing to the petitioner/its representative within a period of 12 weeks from the date of receipt/production of a copy of the order. 8. The writ petition is disposed of with the aforesaid observation and direction.