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2017 DIGILAW 513 (JHR)

Mahesh Narain Singh v. State of Jharkhand

2017-03-16

APARESH KUMAR SINGH

body2017
ORDER : Heard learned counsel for the petitioner and the State. 2. The order of blacklisting bearing Memo No. 1257 dated 03.04.2014, Annexure-1 issued by the respondent no. 3, Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Rural Development Department, Government of Jharkhand, Ranchi is under challenge by the petitioner taking plea of violation of principles of natural justice. 3. The order of blacklisting pertains to the work under Package No. JH-0512 for construction of road from Dumka to Mortanga, REO Road to Dhamna Path, REO Road to Bankathi Path and Jitpur to Darbarpur Pathar to be completed within 12 month from 25.09.2010 to 24.09.2011. Petitioner got extension of 15 months to complete the work. According to him, he completed 66% of work only due to obstruction raised by local persons while the respondents contend that only 33 % of work had been completed. Due to non completion of work within scheduled time, the estimate cost escalated from 190.24 Lakhs to 259.40 Lakhs imposing an additional cost of Rs. 69.16 Lakhs for getting the work completed, through re-tender. The balance work was awarded to the successful bidder and is likely to be completed by April, 2017. Due to delay and non completion of work, petitioner was asked to appear for final measurement through press release no. 08/2012-13 fixing date of final measurement of the work performed by him, as per Annexure-A. The respondent no. 4, Executive Engineer, Rural Works Department (Work Division), Dumka also requested the Director, Information and Public Relation Department through letter no. 301 dated 16.02.2013 to ensure the publication of press release in two local daily newspaper having wide circulation for two days, vide Annexure-B to the counter affidavit. At para-9 of the counter affidavit, it is contended by the respondent that despite paper publication, petitioner did not appear for final measurement and the measurements were carried out in his absence. Deputy Commissioner, Dumka also made recommendation for blacklisting of Contractors, who have not completed the work vide letter dated 13.01.2014 bearing no. 24, which included the name of the petitioner, Annexure-C. Due to lack of interest on the part of the petitioner in completion of the work, the respondent no. 4, recommended for cancellation of the contracts and blacklisting the petitioner through memo no. 24, which included the name of the petitioner, Annexure-C. Due to lack of interest on the part of the petitioner in completion of the work, the respondent no. 4, recommended for cancellation of the contracts and blacklisting the petitioner through memo no. 1891 dated 04.11.2013, Annexure-D. According to the respondents, copy of the letter dated 04.11.2013 addressed to the Superintending Engineer, Rural Work Department (Work Circle), Dumka was also marked to the petitioner. They have enclosed the receipt of dispatch through registered post to the petitioner vide Annexure-E. According to the respondents, Annexure-D is in the nature of notice to the proposed action of blacklisting to enable him to file his reply. Since petitioner did not appear to file any reply, he has been blacklisted vide impugned memo dated 03.04.2014, which is also enclosed as Annexure-F to the counter affidavit. 4. According to the counsel for the petitioner, the respondents have not enclosed any paper publication containing the press release. Petitioner was never communicated any such notice before the order of blacklisting was passed. The order of blacklisting came to the notice of the petitioner only when the Engineer-in-Chief-II, Water Resources Department, Government of Jharkhand vide letter no. 402 dated 29.06.2016 directed the Chief Engineer, Minor Irrigation Circle, Ranchi to stay the execution of work allotted to the petitioner. It is contended by the petitioner that the work order dated 18.05.2016 and 06.06.2016 were issued by the Minor Irrigation Division, Simdega and Gumla respectively in relation to construction of certain check dams, which were tendered by the office of Executive Engineer, Minor Irrigation Division, Simdega and Gumla through NIT dated 20.01.2016 and 16.03.2016 respectively. The letter dated 29.06.2016 is under challenge in W. P. (C) No. 4303 of 2016. 5. Learned counsel for the petitioner submits that the letter dated 04.11.2013, Annexure-D issued by the respondent no. 4, Executive Engineer, Rural Works Division, Dumka is not in the nature of a notice to show cause against the proposed action of blacklisting. It only conveys the recommendation to blacklist the petitioner on failure to complete the work within stipulated time. The impugned order of blacklisting therefore suffers from complete violation of principles of natural justice. Petitioner has been seriously prejudiced in the absence of proper notice to defend himself before such adverse decision has been taken. It only conveys the recommendation to blacklist the petitioner on failure to complete the work within stipulated time. The impugned order of blacklisting therefore suffers from complete violation of principles of natural justice. Petitioner has been seriously prejudiced in the absence of proper notice to defend himself before such adverse decision has been taken. It has affected his fundamental right to carry on business with the respondent-Government in the other Department as well, as appears from the communication dated, 29.06.2016 issued by the Engineer-in-Chief-II, Water Resources Department, Government of Jharkhand in relation to two other works under the Minor Irrigation Division at Simdega and Gumla. Petitioner has therefore, approached this Court for redressal of his grievances. 6. Learned counsel for the respondent-State has relied on the contents of the counter affidavit, which has also been noted in the forgoing paragraphs. Learned counsel for the State, however, has not been able to countenance the statement of the petitioner that no receipt showing service of notice either through registered post on the petitioner or through paper publication have been evidenced along with the counter affidavit to support their stand that the order impugned has been passed after due compliance of the principles of natural justice. However, he submits that the letter dated 04.11.2013, issued by the respondent no. 4, was also sent to the petitioner through registered post and receipt of dispatch is also enclosed as Annexure-E to the counter affidavit. 7. I have considered the submissions of the learned counsel for the parties in the light of the relevant material facts noted hereinabove. The merits of the decision is not subject to scrutiny at this stage under judicial review of this Court. However, whether the impugned decision of blacklisting was preceded by a proper show cause notice enabling the petitioner to offer his reply in his defence is squarely in question here. Though the letter dated 04.11.2013, Annexure-D has been relied upon by the respondents as notice to the petitioner but the content thereof do not show that it is in the nature of show cause notice. It rather contends that despite lapse of 26 months, petitioner has not been able to complete the work though he has been informed on telephone and letters time to time. It also conveys that the agreement has been rescinded. Revised estimate has been submitted to the Department. It rather contends that despite lapse of 26 months, petitioner has not been able to complete the work though he has been informed on telephone and letters time to time. It also conveys that the agreement has been rescinded. Revised estimate has been submitted to the Department. In this background, recommendation has been made to blacklist the petitioner. Though the respondent contend through letter dated 16.02.2013, Annexure-B that Director, Information and Public Relation Department, Jharkhand, Ranchi was requested to issue press release in two local daily newspaper, but no paper publication containing the press release have been enclosed in support thereof. The impugned decision at Annexure-1 (Annexure-F to the counter affidavit) is in respect of four such contractors including the petitioner at serial no. 3. The decision also does not indicate whether any notice was served upon the petitioner or others and whether any show cause was filed or not by the concerned persons including the petitioner. It refers to the Jharkhand Contractors Registration Rules, 2008 and certain letters to record that execution of work of these contracts were not found to be up to the mark. Therefore, on the recommendation of the Executive Engineer, they are being blacklisted. 8. The discussion made hereinabove shows that the impugned decision of blacklisting has not been preceded by a proper show cause notice in the eye of law to enable the petitioner to defend himself. The order of blacklisting entails adverse civil consequences. It also affects the exercise of fundamental right to freedom to carry on business under Article 19(1)(g) of the Constitution of India. The requirement of proper notice has been held to be mandatory before such adverse decision is taken as per the judgment rendered by the Apex Court in the case of Gorkha Security Services V. Govt. (NCT of Delhi) and Ors. reported in (2014) 9 SCC 105 . Accordingly, the impugned order dated 03.04.2014 is quashed. Liberty is, however, reserved with the respondents to take a fresh decision in the matter after due notice to the petitioner. 9. This writ petition is accordingly allowed in the manner and to the extent indicated hereinabove.