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2019 DIGILAW 1190 (JHR)

Akash Construction v. State Of Jharkhand

2019-06-20

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order as contained in Memo No.429 dated 18.04.2013 passed by the Municipal Corporation, Dhanbad by which the petitioner has been blacklisted for indefinite period without any notice and as such this writ petition has been filed. 2. The brief facts of the case of the petitioner is that he had participated in the bid in pursuance to the notice inviting tender being NIT No.03/2010-11 which was floated by Dhanbad Municipal Corporation, Dhanbad for construction of one Black Top Road from Sri B.N. Singh Hotel, Tetulmari towards West, Munidih under group-C in which he has been declared to be successful and accordingly letter of allotment has been issued on 05.03.2011. 3. The terms and conditions of the contract was that the work was to be completed within a period of three months i.e., from 23.03.2011 and to be completed up to 22.06.2011 as per the agreement entered into in between the petitioner and the competent authority vide agreement No.20F2/2010-11 but the work could not have been completed since the DO Letter has not been issued for purchasing Bitumen from the authorized dealer which is the requirement to get the Bitumen as would be evident from communication dated 18.11.2011 (Annexure-4) issued by the Chief Executive Officer, Dhanbad Municipal Corporation, Dhanbad requesting therein to supply the Bitumen which is to be used in the Government work but even then the Bitumen has not been supplied, thereafter, the agreement was rescinded and allotted in favour of the other bidder who has completed the work but the authority taking this as an irregularity has passed the order of blacklisting for indefinite period vide impugned order, therefore, the instant writ petition interalia, is on the ground that the blacklisting for indefinite period cannot said to be commensurate with the irregularity committed and that too when there is no antecedent of the petitioner of not completing the other works floated by the respondent-Corporation. Learned counsel for the petitioner has relied upon the judgment rendered by Hon''ble Apex Court in the case of Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and Ors., (2014) 14 SCC 731 wherein according to him, dealing with the situation of blacklisting the suppliers/contractors in case of commission of act of omission and commission or frauds, debarment for permanent period is not proper. 4. Mr. Mahavir Prasad Sinha, learned counsel appearing for the Dhanbad Municipal Corporation has submitted by placing reliance upon the counter affidavit wherein interalia it has been stated that the petitioner was allotted the said work and was to execute the work in pursuance to the terms and conditions of the agreement being Agreement No.20F2/2010-11 as per which he was to complete the work within a period of three months to be commenced from 23.03.2011 but he has failed to even initiate the work, therefore, causing inconvenience to the people at large and after expiry of the stipulated period as per the agreement the same was rescinded and allotted in favour of the other bidder who ultimately executed the work, therefore, omission and commission of the petitioner is serious in nature affecting the interest of the people at large, considering that aspect of the matter, the authorities have come out with a decision to blacklist the petitioner forever, hence, the same suffers from no infirmity. So far as the ground taken by the petitioner that no show cause notice has been issued, the same has been disputed by making statement supported by documents that sufficient opportunity was given which has been responded by the petitioner, therefore, it is not a case where there is violation of principles of natural justice, hence, in view of the factual aspect, the impugned order needs no interference. 5. Having heard the learned counsel for the parties and upon appreciation of their rival submissions, it is evident from the material available on record that the petitioner has been allotted with the work for construction of Black Top Road to be completed in between the period from 23.03.2011 to 22.06.2011 but the same could not have been completed by the petitioner. 6. 6. The petitioner is taking the plea that for execution of the work the Bitumen is required and for getting the supply of Bitumen from the oil company, the DO letter is required to be issued by the competent authority of the Corporation but it has not been issued, therefore, the Bitumen has not been supplied and in absence thereof, work could not have been completed. 7. The contention of the petitioner is that the petitioner has not commenced the work rather the first and second layer was completed but so far as the third layer upon which the Bitumen is required could not have been completed due to non-supply of the Bitumen, therefore, the fault is not lying upon him but the authority without considering the same has debarred the petitioner from participating in the bid for indefinite period. 8. The petitioner although is taking plea but has not come out with any document pertaining to the terms and conditions that DO letter is required to be issued by the competent authority for getting the supply of Bitumen from the oil company, further, he has also not annexed any document making correspondence to the respondentauthorities for issuance of DO letter if that is the ground of the petitioner. 9. Be that as it may, ultimate reason was that the work could not have been completed in its entirety. The competent authority, therefore, has rescinded the agreement entered with the petitioner and allotted the work to the other bidder who completed the remaining part of the work, thereafter the work has been completed. 10. In this scenario, the authorities have passed the order of blacklisting the petitioner for indefinite period. 11. The petitioner has assailed the aforesaid order on two fold grounds:- First pertains to violation of principles of natural justice, and, Secondly, the debarment for indefinite period is not commensurate with the irregularity, if committed. 12. So far as the first contention that the order of blacklisting has been issued without any show cause notice, learned counsel for the respondent has tried to impress upon the Court by referring to the communication dated 09.05.2012 (Annexure-E) and 04.08.2012 (Annexure-F). 12. So far as the first contention that the order of blacklisting has been issued without any show cause notice, learned counsel for the respondent has tried to impress upon the Court by referring to the communication dated 09.05.2012 (Annexure-E) and 04.08.2012 (Annexure-F). The content of the aforesaid annexures have been examined by this Court wherefrom it is evident that the petitioner has been directed to complete the work within a period of 15 days failing which after taking final measurement he will be listed under the list of Blacklisted contractors and legal action would be taken. 13. It is not in dispute that if any show cause notice is being issued by any authority before taking any adverse decision against the concern, specific allegation is required to be made therein against whom the notice is being issued so that he must know what specific irregularities have been committed by him for giving specific reply by such party. 14. It is settled position of law that if the show cause notice has been issued by making reference of vague allegation, the same cannot be said to be an appropriate show cause notice. 15. Here, according to Annexure-E and Annexure-F, the petitioner has been directed to complete the work within 15 days failing which, he will be listed under the list of blacklisted contractors, therefore, same cannot be said to be a show cause notice in the eye of law rather it will be said to be a letter of the authorities apprising the petitioner that if the petitioner will fail to perform his part of the work, action would be by taking him in the list of blacklisted contractors as the same cannot be said to be a show cause in absence of reference of any irregularity alleged as proposed punishment. 16. Therefore, argument which has been advanced by the learned counsel for the petitioner does not suffer from infirmity since, save and except these two documents (Annexures E & F), no such documents have been produced by the respondents in the counter affidavit reflecting the same as a show cause notice, therefore, the order of blacklisting would be said to be without following any principles of natural justice. 17. 17. So far as the second ground which pertains to proportionality of the punishment i.e., blacklisting for indefinite period, it is evident from the impugned order that there is reference of one work only which is the subject matter of the writ petition save and except there is no reference of other work suggesting therefrom that the petitioner is habitual in not executing the work in its entirety and as such for a sole irregularity, if the order of blacklisting would be passed for indefinite period, the same cannot be said to be in proportion to the irregularity committed rather it will be disproportionate to the irregularity committed. 18. Even otherwise also, blacklisting for indefinite period cannot be said to be in accordance with law as has been decided by the Hon''ble Apex Court in the case of Kulja Industries (supra), is not sustainable in the eye of law, accordingly quashed. 19. In the result, the matter is remitted before the Chief Executive Officer, Dhanbad Municipal Corporation, Dhanbad to take a fresh decision after issuing show cause notice within a period of six weeks from the date of receipt of copy of the order. 20. In view thereof, the writ petition stands disposed of.