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2019 DIGILAW 392 (JHR)

Maa Rama Electricals v. State Of Jharkhand

2019-02-06

SUJIT NARAYAN PRASAD

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JUDGMENT 1. This writ petition has been filed under Article 226 of the Constitution of India wherein order dated 10.03.2016 passed by Respondent No.4, Chief Electrical Engineer-cum-Chief Electrical Inspector, Energy Department, Government of Jharkhand as contained under Letter No.59 (Annexure-15) whereby and whereunder his registration Bearing No. III/28 as a Class-III Contractor, has been cancelled with immediate effect by invoking the power conferred under Clause-17 (Ka) (Ga) and (Anga) notify on 30.05.2008 on the ground of a criminal case, which has been instituted against the petitioner by the Executive Engineer, who happens to be a member of Scheduled Tribe Category. 2. It is the case of the petitioner that blacklisting forever is harsh punishment, which resulted in depriving the petitioner from participating in all future tender, meaning thereby the fundamental right conferred under Article 19 (1)(G) of the Constitution of India , has been snatched away and further on the ground that merely on account of institution of criminal case that too without waiting for its outcome, the authority has taken final decision by blacklisting the petitioner, cannot be said to be proper as pendency of a criminal case may go in acquittal or conviction hence blacklisting the petitioner has been done only presumption. 3. He further submits that the said contention has now been proved since the final form in the aforesaid criminal case has been submitted in which no allegation against the petitioner has been found against which complainant has filed protest petition, which has also been rejected by the competent court of criminal jurisdiction against which the complainant has filed revision application before this Court by invoking the jurisdiction conferred to this Court under Sections 397 and 401 of the Code of Criminal Procedure wherein this Court has also declined to interfere with the order passed by the competent court of jurisdiction therefore, it can be said now that the order of blacklisting has been passed on presumption thereby snatching away right to earn his livelihood. 4. 4. Learned counsel for the State-respondent submits by defending the decision taken by the authority (impugned) that the order of blacklisting cannot be said to suffer from any infirmity, since the provision has been made to that effect in the statute under Electrical Contractor Listing Rule, 2008 notified on 30.05.2008 wherein the provision has been made under Clause-17 (Ka) (Ga) and (Anga) for blacklisting of a contractor of any category, if he/she is found to be involved in any type of misconduct. Since FIR has been instituted against the petitioner under the provision of Schedule Caste and Schedule Tribe (Atrocities and Prevention) Act, 1989 and therefore keeping that fact into consideration by invoking the jurisdiction conferred under Rule, 2008 the order of blacklisting as has been passed hence petitioner suffers no infirmity. 5. Having heard learned counsel for the parties and on appreciation of their rival submissions, it is evident from the material available on record by virtue of a notification issued on 30.05.2008, which is known as Jharkhand Electrical Contractor Listing Rule, 2008, which contends the provision of Clause-17 (Ka) (Ga) and (Anga) to blacklist the contractor of any grade, he/she is found to be committed any misconduct. 6. The petitioner admittedly was registered as Grade-III Contractor for which he has been given registration Bearing No. III/28, by virtue of it, he was performing the work as and when the same has been allotted in his favour. The complaint has been made by the Electrical Executive Engineer, Electric Works Division, Ranchi- Respondent No.5 who since belongs to the Schedule Tribe Category for commission of an offence attracting the ingredient of SC/ST Act, 1989 being SC/ST P.S. Case No. 6/15. After institution of aforesaid FIR a recommendation has been made with respect to cancellation of the registration of the petitioner and thereafter a decision has been taken by Registration Committee in its meeting held on 08.03.2016 wherein the petitioners reply submitted in terms of the show cause notice, which has not found to be satisfactorily and therefore the registration has been cancelled with immediate effect and has been blacklisted against which this writ petition has been filed. 7. 7. Admittedly on the date when order was passed i.e. on 10.03.2016, FIR was instituted against the petitioner for alleged commission of offence under the SC/ST Act, 1989 and hence order of blacklisting was passed as per the power conferred under the Rule, 2008 and after investigation, the allegation levelled by the complainant against the petitioner has been found to be not proved by the investigating agency by which final form before the competent court of criminal jurisdiction on 31.05.2017 against which a protest petition has been filed under the provision of Code of Criminal Procedure making protest against the submission of the final form, which was rejected on 23.02.2018 by the competent court. The complainant, thereafter, has filed revision by invoking the jurisdiction conferred under Section 397 and 401 of the Code of Criminal Procedure being Criminal Revision No. 304 of 2018, which has also been dismissed on 10.07.2018. These facts have been brought on record by way of supplementary affidavit. It is evident from the impugned order that the sole reason for blacklisting the petitioner is the institution of the FIR as on 10.03.2016 by which he has been blacklisted forever. 8. The enlistment of contractor is pre-condition for getting work by the State and therefore blacklisting forever will mean that the person has been deprived from getting any work by disallowing in participating in the process of bid which amounts to harsh punishment since he will not have an opportunity to participate in the bid meaning thereby his right to earn livelihood will seriously been effected, which will ultimately hit the intent of the provision of Article 19 (1) (Ga) of the Constitution of India. It is equally also right that on 10.03.2016 a criminal case was there and based upon which the order of blacklisting was passed, but now the said criminal case has got no existence after submission of final form by the investigating agency and protest petition has also been rejected against the final form filed by the complainant and the revision has also been dismissed. Therefore the matter requires a fresh consideration by the authority. 9. In view thereof, this Court feels it appropriate and proper to remit the matter before the Chief Electrical Engineer-cum-Chief Electrical Inspector, Energy Department, Government of Jharkhand as Respondent No.5 to take fresh decision in light of the subsequent development. Therefore the matter requires a fresh consideration by the authority. 9. In view thereof, this Court feels it appropriate and proper to remit the matter before the Chief Electrical Engineer-cum-Chief Electrical Inspector, Energy Department, Government of Jharkhand as Respondent No.5 to take fresh decision in light of the subsequent development. This court therefore, direct to the said authority to take decision within a period of four weeks from the date of receipt of copy of this order, which shall be presented by the petitioner with a week from the date of its receipt.