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2020 DIGILAW 901 (ALL)

Abhinav Overseas v. State of U. P.

2020-05-28

P.K.JAISWAL, SAURABH LAVANIA

body2020
ORDER : 1. When the matter was taken up today through video conferencing Sri Santosh Kumar Bhatt, learned counsel for the petitioner, Sri Manish Mishra, learned Standing Counsel for respondent no. 1 and Ms. Aprajita Bansal, for respondent nos. 2 and 3 have appeared. 2. Learned counsel for the petitioner submitted that the petitioner, who has been awarded the contract for supply of Cables is aggrieved by the order dated 14.10.2019 passed by the respondent no. 3 whereby the respondent no. 3 without issuing any show cause notice, passed the order of blacklisting/debarring the petitioner for the period of three years w.e.f. 06.07.2019 from participating in any tender process. 3. Though, the petitioner has claimed number of reliefs in this writ petition, but during the course of argument, he prayed for withdrawal of other reliefs i.e., relief nos. (ii), (iii) and (iv) and restricted this writ petition to the order dated 14.10.2019 by which the petitioner has been debarred by respondent nos. 2 and 3 for participating in any tender process. 4. Learned counsel for the petitioner has drawn our attention towards the order dated 05.11.2019 passed by the Division Bench of this Court in the case of Bhadora Industries Pvt. Ltd. vs. State of U.P. & Ors. in the identical circumstances and submitted that the order impugned has been passed without giving any opportunity of hearing which is in violation of principles of natural justice and therefore, the same may be quashed. The order dated 05.11.2019 reads as under:- "Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material available on record. By this writ petition, a challenge has been made to the office order dated 11.10.2019 to the extent of debarration of petitioner's firm to participate in the business for a period of three years. Learned counsel for the petitioner submits that though the show cause notice was given by the respondent but it was under Clause 12 of the Agreement and not for debarration/black listing of the firm. Clause 12 of the agreement does not even provide the debarration. In view of the above, the impugned order for debarration has been passed without a show cause notice despite settled law of the land that an order of debarration/black listing cannot be passed without any opportunity of hearing. Clause 12 of the agreement does not even provide the debarration. In view of the above, the impugned order for debarration has been passed without a show cause notice despite settled law of the land that an order of debarration/black listing cannot be passed without any opportunity of hearing. The prayer is to set aside the impugned order dated 11.10.2019 to the extent of debarration of the firm to participate in the business for a period of three years. Learned counsel for the respondent has contested the writ petition in reference of clause 12 and 19 of the agreement to justify there action. She has submitted that in the test sample given by the firm failed and thus action was taken against the petitioner's firm as consequence thereupon. The prayer is not to cause interference in the impugned order even for debarring the petitioner's firm to participate in business for a period of three years. It is further prayed that if an interference is made then the respondents be given liberty to pass order afresh after giving a show cause notice to the petitioner for debarration/black listing. We have considered the rival submissions and perused the record. The challenge to the office order dated 11.10.2019 has been made to the extent of debarration/black listing of petitioner's firm from participation in the business for a period of three years. It is alleged to be without an opportunity of hearing as the show cause notice was not arisen to the firm to debar participation in the business for a period of three years. It was only for invoking Clause 12 of the agreement. We find substance in the arguments of learned counsel for the petitioner. A show cause notice to debar participation of the petitioner's firm in business has not been given before passing impugned order. In view of the above, we set aside the order dated 11.10.2019 to the extent of debarration of the petitioner's firm from participation in business for a period of three years. It is with liberty to the respondents to pass an order afresh after giving opportunity of hearing to the petitioner for debarration/black listing, if they so chooses. This order will not come in the way for the aforesaid. The petition is disposed of with the aforesaid." 5. Per contra, Ms. Aprajita Bansal, learned counsel for the respondent nos. It is with liberty to the respondents to pass an order afresh after giving opportunity of hearing to the petitioner for debarration/black listing, if they so chooses. This order will not come in the way for the aforesaid. The petition is disposed of with the aforesaid." 5. Per contra, Ms. Aprajita Bansal, learned counsel for the respondent nos. 2 and 3 opposed the prayer, but she very fairly submitted that in identical circumstances, the Division Bench of this Court has passed the order dated 05.11.2019 in the case of Bhadora Industries Pvt. Ltd. vs. State of U.P. & Ors. and quash the order of debarring and the case of the petitioner is identical to the case of Bhadora Industries Pvt. Ltd. (supra) and therefore, the present writ petition be disposed of in terms of order dated 05.11.2019. 6. On due consideration so also the law laid down by the Division Bench of this Court, we set aside the order dated 14.10.2019 to the extent of debarration of the petitioner's firm from participation in business for a period of three years. 7. It is with liberty to respondents to pass the order afresh after giving the opportunity of hearing to the petitioner. 8. The writ petition is disposed of with the aforesaid observation.