23. The factual and legal grounds urged by the appellants have been referred to in detail in the foregoing paragraphs. The rival stand of JEPC have also been taken note of. Both the sides have placed reliance on several authorities also to buttress their arguments, referred to in the preceding paragraphs. The scope and power of an employer to blacklist an agency or contractor has been laid down by the Hon'ble Supreme Court from time to time. It is not necessary to multiply the authorities while reiterating the settled principles of law on the power of blacklisting. However, it would be profitable to draw upon the illuminating discussion on this subject by the Apex Court in the case of Kulja Industries Limited (supra) wherein the precedents on this have been referred to and relied upon. The power to blacklist a contractor has been held to be inherent in the party allotting the contract. There is no need for any such power being specifically conferred by statute or reserved by the contractor. It is because of the simple reason that a party affected by the breach is entitled to take a business decision not to enter into any contractual relationship with the party committing the breach. Between two private parties, right to take any such decision is absolute and un-trammelled by any constraints whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities. This implies that any such decision will be open to scrutiny not only on the touchstone of the principles of natural justice, but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus becomes an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence, is similarly examinable by a writ Court. It is also well settled that when even though the right of the writ petitioners is in the nature of a contractual right, the manner, method and the motive behind the decision of the authority whether or not to enter into a contract, is subject to judicial review on the touchstone of fairness, relevance, natural justice, non-discrimination, equality and proportionality. It is also well settled that when even though the right of the writ petitioners is in the nature of a contractual right, the manner, method and the motive behind the decision of the authority whether or not to enter into a contract, is subject to judicial review on the touchstone of fairness, relevance, natural justice, non-discrimination, equality and proportionality. [Paragraph-17 and 20 of Kulja Industries (Supra)]. In the same decision, the Apex Court has, at paragraph-25 of the Report, also held that ‘debarment’ is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. The Apex Court while laying down illustrative guidelines, observed that the period of debarment would depend upon the seriousness of the case leading to such debarment. 24. Considered in this background, there is no iota of doubt that JEPC had the power to debar or blacklist a bidder found indulging in committing acts of omission and commission of fraud including misrepresentation, falsification of records and other breaches of the terms and conditions of the contract or the tender document. If one closely analyzes the acts and/or omission of the bidders in the tender process, it would be clear and obvious that while on the one hand, these bidders professed to adhere to the terms and conditions of the tender document and submit samples of the prescribed technical specifications for participating in the tender process and at the same time undertook to make supply of the school bags in conformity with the technical specifications, the samples submitted by these bidders on being tested, failed to match with the technical specifications and the certificate submitted by these bidders to that effect. Clause 22.1(ii) is in the following language: “Fraudulent practice means misrepresentation of facts in order to influence the procurement process or execution of a contract to the detriment of the JEPC, and includes collusive practice amongst bidders prior to or after bid submission designed to establish bid prices at artificial non-competitive levels and to deprive the JEPC of the benefits of free and fair competition.” Under Clause 22 which deals with corrupt or fraudulent practice, bidders were required to observe the highest standard of ethics during the execution of such contract. These bidders after being technically qualified and financially competitive were going to be empaneled for being awarded contracts for supply of school bags by the District Level Authorities of the Jharkhand Education Project. While it is true that after being empaneled and upon award of such contract for supply of school bags in various districts if the school bags did not match with the technical specifications or there was a delay in the supply during the execution of the contract, Clause 9 falling under Section III stipulated liquidated damages. The bidders have taken a plea that if during execution of the contract and actual supply of school bags, after being empanelled on rate contract basis through this bidding process, supply of defective school bags could entail only liquidated damages, mere non-matching of the samples with the prescribed technical specifications during bidding process, could not lead to debarment of the bidders. 25. The conspectus of facts noted above shows that this tender process invited bidders to qualify on technical standards and specifications and be financially competitive to be enlisted in the panel for awarding contracts at the prescribed rates for actual supply of school bags to the students in different districts of the State. Therefore, the standards for being empaneled in the highly competitive bidding process was and ought to have been of much higher degree compared to default or omission/action in making supplies of defective school bags during execution of the contract where hundreds and may be thousands of school bags were to be supplied, as per the requirement. An employer has reason to feel lack of confidence when even at the stage of bidding process, a sample submitted by a bidder fails to match the technical specifications and are not in conformity with the certificate submitted by the bidder himself. Learned counsel for the Respondent JEPC has rightly placed reliance on the decision of Reliance Salt Limited vs. Cosmos Enterprises, (2006) 13 SCC 599. Therefore, the jurisdictional facts necessary to invoke the power of blacklisting existed with the JEPC. If the samples and the certificate submitted by the bidders did not match with each other, the employer had the reason to believe that these bidders had indulged in misrepresentation of facts in order to influence the procurement process which is defined as ‘fraudulent practice’ under Clause 22.1(ii). If the samples and the certificate submitted by the bidders did not match with each other, the employer had the reason to believe that these bidders had indulged in misrepresentation of facts in order to influence the procurement process which is defined as ‘fraudulent practice’ under Clause 22.1(ii). In the case of Nusli Nevile Wadia (supra) relied upon by the appellants' the decision in Anisminic Ltd. has also been discussed. The difference between existence of jurisdiction and the exercise of jurisdiction has been discussed by the Apex Court. As observed therein, the question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of the findings on these facts, but upon their nature, and is determinable at the commencement, not at the conclusion at the enquiry. However, if the tribunal or authority has jurisdiction, that is authority to decide, but in exercise of jurisdiction, a mistake has been committed it may be a jurisdictional error open for interference in appellate or revisional jurisdiction. On the basis of the discussion made above it can be surely held that there was no absence of jurisdiction in JEPC to take a decision on the question of blacklisting in the facts and circumstances of the case. The decision in the case of Housing Society (1996) 9 SCC 492 , State of M.P. vs. Sardar D.K. Yadav, AIR 1968 SC 1186 and also Hasham Abbas Sayyad (supra) relied by the appellants do not come to their aid for the same reasons. 26. Appellants have also contended relying upon the decision of General Manager, Electrical Rengali Hydro Project, Orissa and Others, (2019) 10 SCC 695 , that the show-cause notice did not contain any such allegation or finding which could even prima-facie make out a case of fraud or misrepresentation as defined under the Contract Act. Be it noted herein, that the instant decision arose out of the judgment of High Court of Odisha dismissing a writ application under Articles 226 and 227 of the Constitution of India wherein the award passed by the labour court, Bhubaneshwar was in question. The workmen had taken a specific plea alleging fraud, misrepresentation as according to them they were duped into submitting applications for securing benefits of voluntary separation scheme. The workmen had taken a specific plea alleging fraud, misrepresentation as according to them they were duped into submitting applications for securing benefits of voluntary separation scheme. Though the proceedings were under Section 33-A of the ID Act which is not a civil suit and where provisions of Order VI Rule 4, CPC were not applicable to the proceedings, however it was held that the salutary principles embodied therein would apply since the purpose of pleading is to allow the opposite party to meet the case of his opponent, to ready the evidence to be adduced and marshal the law in support of its case. In the said case, there were no sufficient pleadings either with regard to fraud or undue influence. The appellants herein on the one hand while assailing the judgment of the Hon'ble single Judge on the finding of ‘admission’ have taken a stand that the law of pleadings strictly does not apply to such a case involving blacklisting as it is not any proceedings in a suit tried in terms of Code of Civil Procedure, 1908. That strict rules of pleadings can hardly be applied to letters exchanged between two parties as per the decision in case of Raj Kumar Dey (supra). On the other hand, the appellants seem to be oblivious of the principles regarding construction of terms and conditions of a tender document or contract. In the instant case, the tender document defines ‘fraudulent practice’ under Clause 22.1(ii) as misrepresentation of facts in order to influence the procurement process or execution of a contract to the detriment of the JEPC. Therefore, what constituted fraudulent practice within the meaning of Clause 22.1(ii) would depend upon meaning of fraudulent practice as understood between the parties. The appellants who were bidders in the tender process where to be judged by the employer on the concept of fraudulent practice as defined in the tender document. Therefore, drawing analogy from the provisions of Contract Act on the definition of fraud or misrepresentation in a proceeding like blacklisting or debarment under an NIT is misplaced on their part. 27. The next question which arises for consideration is, whether the principles of natural justice have been followed by JEPC before imposing debarment upon the bidders, appellants herein? Therefore, drawing analogy from the provisions of Contract Act on the definition of fraud or misrepresentation in a proceeding like blacklisting or debarment under an NIT is misplaced on their part. 27. The next question which arises for consideration is, whether the principles of natural justice have been followed by JEPC before imposing debarment upon the bidders, appellants herein? Since blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for the purposes of gain, the order of blacklisting should indicate that the relevant authorities have come to an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is blacklisted. That is why, the necessity of serving show-cause notice is a requisite of the principles of natural justice. What should be the contents of the show-cause notice has been laid down in the case of Gorkha Securities Services (supra). At para-22 of the Report, the twin requirement of a proper show-cause notice have been indicated viz. (i) material/grounds to be stated which, according to the department, necessitates an action and (ii) particular penalty/action which is proposed to be taken. The Hon'ble Supreme Court has immediately thereafter hastened to add that even if it is not specifically mentioned in the show-cause notice, but it can clearly and safely be discerned from reading thereof that would be sufficient to meet this requirement. The following discussion with reference to the case of Gorkha Security Services (supra) in the subsequent paragraphs-23 to 27 indicates that in the said case, the relevant Clause 27 of the NIT listed various kinds of penalties which the department had the right to impose. The penalties were in the form of liquidated damages for varying periods of delay; the power to blacklist the defaulter contractor for a period of four years and also to forfeit earnest money/deposit, if so warranted. At Para-27 of the Report, the Apex Court opined that it was incumbent on the part of department to state in the show-cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellants to show-cause against the same. At Para-27 of the Report, the Apex Court opined that it was incumbent on the part of department to state in the show-cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellants to show-cause against the same. It further proceeded to add that even if it is not mentioned specifically, but from the reading of the show-cause notice, it can be clearly inferred that such an action was proposed, that would fulfil this requirement. The show-cause notice in the said case was conspicuously silent about the blacklisting action. 28. In the present case, the show-cause notice is in two parts, i.e. (i) containing imputation of misconduct that the sample submitted by the bidders on being tested in the Government Laboratory, Textile Committee, Ministry of Textile, Government of India did not match with the technical specifications i.e. 300 x 300 denier. This prima-facie amounted to fraudulent practice; (ii) the bidders were also asked to show-cause as to why their Firm be not debarred from participating in any tender with the JEPC. The show-cause also indicated that in case their replies do not reach by 04th September 2019 through e-mail or post, they would be debarred from participating in the future tender. Clearly, the show-cause notice fulfilled both the requirements, as contemplated in the case of Gorkha Securities Services (supra). Appellants have argued that non-supply of the cross-test report amounted to denial of reasonable opportunity of hearing to the noticees and, therefore, could not have been used against them. A mere perusal of the reply however, dispels this contention, since none of the bidders/appellants questioned the test reports. The argument of prejudice premised on non-supply of test report therefore, does not stand. Moreover, the language and tenor of the replies submitted by the appellants is to the effect that in future, they would be careful and not repeat the mistake. On the part of the bidder, appellant in LPA No. 195/2020, a plea was taken that due to the department's corrigendum no. 2 dated 19th July 2019, requiring amendments in printing matter on the school bag, as the clothes purchased were already used up in the sample preparation, they again ordered for same specific clothes, but the supplier may have supplied a different lot. 2 dated 19th July 2019, requiring amendments in printing matter on the school bag, as the clothes purchased were already used up in the sample preparation, they again ordered for same specific clothes, but the supplier may have supplied a different lot. Therefore, there may have been variance in lab samples and samples submitted to the department. It is therefore evident that none of these bidders/appellants complained of denial of opportunity because of non-supply of the cross-test report. As such, reliance on the decision of State of U.P. vs. Shatrughan Lal, (1998) 6 SCC 651 , to the facts of the present case is misplaced. Appellants have also placed reliance on the decision of Reliance Cellulose Products Ltd. (supra) on the proposition that there was no occasion for re-testing of samples neither the tender conditions permitted such a course after the bidders had been declared technically qualified. A perusal of the decision in the case of Reliance Cellulose shows that it relates to the procedure of re-testing of samples under Rule 56 of the Central Excise Rules of 1944 and therefore is inapplicable to the facts of the present case concerning allegations of mismatch between the lab certificates furnished by the bidders and the samples of school bags submitted by them at the time of bidding. The appellants have also contended that JEPC did not follow the conditions under Clause 15 of the NIT containing the checks and balances before finalising the technical bid and did not undertake site inspection of the bidder's manufacturing unit. However, a perusal of clause 15.2 shows that the expression used is ‘may’ the purchase committee members and the authorized representatives ‘may’ go for site inspection. Clause 15.3 confers a right upon the employer JEPC to inspect the bidders' set up anytime during the entire process of manufacturing of school bags. No penal consequences are provided for against the JEPC for not undertaking site inspection. Appellants have also alleged the Respondent JEPC did not take any action against the other bidder M/s Virushima Technology though its Denier Count was not as per specification i.e. 600 x 600. The said firm is not a party herein, therefore this Court refrains from making observation in that respect. 29. Appellants have also alleged the Respondent JEPC did not take any action against the other bidder M/s Virushima Technology though its Denier Count was not as per specification i.e. 600 x 600. The said firm is not a party herein, therefore this Court refrains from making observation in that respect. 29. Appellants have also taken a plea that CVC guidelines have not been followed in the tender process in terms of Clause 16.7 of Section-II (Instruction to Bidders) of the NIT. Appellants have relied upon the case of Haffkine Bio-Pharmaceutical Corporation Ltd. vs. Nirlac Chemical, (2018) 12 SCC 790 , to support their submission that violation of CVC guidelines, in itself, is sufficient to vitiate the entire tender process. 30. On the part of the Respondent JEPC, it has been contended that CVC guidelines are advisory and directory in nature. The office memorandum dated 15th October 2003 on the subject ‘tender sample clause’ issued by the Central Vigilance Commission, on a complete reading thereof, gives an impression that offers regarding clothing and other textile items should not be rejected on the basis of tender samples not conforming to the requirement of feel, finish and workmanship, as per master sample, though bidders confirm in their bid that supply shall be made, as per the tender specifications stipulated in the bid document. Such rejection should not be on the basis of indeterminable parameters such as shade, feel, finish and workmanship for supplies of such items as it makes the decision too subjective and especially for items which have detailed specifications. Therefore, it has advised that Government Department/Organization should consider procurement of such items on the basis of detailed specification. If required, provision for submission of an advance sample may be stipulated by the successful bidders. Such a system would avoid subjectivity at the tender decision stage and would also ensure healthy competition amongst the bidders taking care of quality aspect as well as reasonableness of prices. A perusal of the technical specifications of the instant NIT under section-V, in this light, gives a clear impression that the employer has provided detailed technical specifications of colour, dimension and material specification of the school bags. A perusal of the technical specifications of the instant NIT under section-V, in this light, gives a clear impression that the employer has provided detailed technical specifications of colour, dimension and material specification of the school bags. Though the detailed technical specification are not extracted herein, but a perusal thereof would reveal that the specifications enumerated under Clause-V “Materials Specifications” of all the three categories of bags to be supplied for different classes up to Class-VIII were definitely detailed. The material specification at Clause 1.1 of ‘Bag’ prescribes Polyester Fabric in the outer layer as 300 x 300 diem; inner layer of flexible PVC. Similarly, front pocket of the shoulder strip should also have in the outer layer Polyester Fabric of 300 x 300 diem and inner layer of Polyester Fabric of same diem for all the three categories. Moreover, other materials specifications are prescribed for the cushion foam, water bottle pocket, zip, runner, stitching edge, pipe beeding, top handle, adjustable belt, shoulder adjustable bucker, thread and number of stitches. If the NIT itself prescribed detailed technical specifications, the possibility of rejection as apprehended under CVC guidelines on the basis of feel, finish, shade, etc. were no longer dependent on subjective satisfaction. JEPC as a matter of fact, got all the samples tested in the Government Laboratory of Ministry of Textile on the prescribed technical specification. Clearly, the samples did not match with the technical specifications of 300 x 300 denier on the bag, as professed by the bidders through their certificates enclosed to the bid document. This did not conform with the declaration made in their affidavits as well. As such, the appellants are not in a position to derive any benefit by placing reliance on the CVC guidelines. Therefore, reliance on the decision of Haffkine Bio-Pharmaceutical Corporation Ltd. (2018) 12 SCC 790 , in the present facts of the case is misplaced since the technical specifications under the instant NIT are clear, unambiguous and detailed and the decision to go for cross-testing of the samples do not amount to the violation of the CVC guidelines. 31. Appellants have also alleged that the Respondent have not recorded any reasons for not accepting the reply given by the petitioners/bidders which amounts to violation of principles of natural justice. 31. Appellants have also alleged that the Respondent have not recorded any reasons for not accepting the reply given by the petitioners/bidders which amounts to violation of principles of natural justice. Importance of giving reasons have been explained in the case of Kranti Associates (P) Ltd. vs. Masood Ahmed Khan, (2010) 9 SCC 496, while summarizing the principles at paragraph-47 of the Report. Appellants also contend that the period of debarment for one year was beyond the show-cause notice. However, there is no merit in this argument for the reason that the order of debarment specifically records that the samples submitted by the bidders fail to match with the technical specifications on being tested from the Government Laboratory under Textile Committee, Ministry of Textile, Government of India, Gurugram, Haryana. The bidders in their reply had not refuted this allegation that their samples fail to match technical specifications under the NIT when being cross-tested from the Government Laboratory of Ministry of Textile. Each bidder accepted the mismatch and while M/s M.V. Rubber, appellant in LPA No. 195/2020 tried to explain it as being drawn from two different lots, other bidders simply undertook not to repeat such mistake in future. In the absence of a specific denial of the allegation, the finding of guilt on the mismatch between the samples submitted by the bidders and the prescribed technical specification were clearly established. This also goes to show that the reasons indicated in the impugned order of blacklisting were based on relevant grounds and not any extraneous consideration. The bidders have not been penalized for any non-existent reasons which were not part of the show-cause notice. Moreover, the proposed penalty of debarment also formed part of the show-cause notice and fulfilled the requirement as laid down in the case of Gorkha Security Limited (Supra). Non-mentioning of the proposed period of debarment in the show-cause notice, thus could not make the show-cause notice imperfect in the eye of law or the order of blacklisting vitiated. As such, I do not find substance in the plea that the order of debarment was non-speaking or violative of principles of natural justice. The order of debarment does not lack in reasons, whereas it is also not the requirement of law that reasons should be elaborate and descriptive. As such, I do not find substance in the plea that the order of debarment was non-speaking or violative of principles of natural justice. The order of debarment does not lack in reasons, whereas it is also not the requirement of law that reasons should be elaborate and descriptive. If the findings recorded by the tendering authority JEPC shows application of mind based on relevant consideration and not on extraneous grounds, then the principles of fair play in action have been properly met. 32. The last broad ground of challenge on the part of the appellants to the order of blacklisting is based on doctrine of proportionality which we proceed to deal with herein-after. 33. Appellants feel that the order of debarment for one year is disproportionate even assuming the allegations to be true. It has affected their fundamental right to freedom of carrying on business or occupation as guaranteed under Article 19(1)(g) of the Constitution of India. The appellants have faced humiliation in participating in other tenders floated by other instrumentalities of the State because of the unwarranted stigma attached to the debarment. The bids submitted by the appellants in other such tenders floated by different organizations or instrumentality of the State have not been fairly considered on account of their debarment by the JEPC, though the order of debarment is confined to the tenders issued by JEPC for one year. Appellants have suffered loss of business due to the order of debarment. The order of debarment does not meet the necessity and balancing test being applied by the Hon'ble Courts on the touchstone of doctrine of proportionality. 34. This contention of the appellants has to be tested on the well settled principles of doctrine of proportionality with a clear understanding of the purport of the order of debarment. Whether the order of debarment meets the four sub-components of proportionality or not, is required to be seen. As has been held by the Apex Court in the case of K.S. Puttaswamy vs. Union of India, (2019) 1 SCC 1 , any such decision has to satisfy these four sub-components of proportionality: (i) The measure restricting a right must have a legitimate goal (legitimate goal stage). (ii) It must be a suitable means of furthering this goal (suitability or rational connection stage). (iii) There must not be any less restrictive but equally effective alternative (necessity stage). (ii) It must be a suitable means of furthering this goal (suitability or rational connection stage). (iii) There must not be any less restrictive but equally effective alternative (necessity stage). (iv) The measure must not have a disproportionate impact on the right-holder (balancing stage). 35. Testing the order of debarment on these four sub components, in the first place, it is evident that this measure to blacklist these bidders was exercised for a legitimate goal since JEPC had arrived at an opinion or finding that these bidders by their conscious acts or omission during bidding process, have resorted to fraudulent practice for procurement of the work order. JEPC being the employer, therefore undertook this measure to restrict or prohibit the participation of these bidders in its future tender. This can definitely be called as a legitimate goal. On the suitability or rationale connection stage, it cannot be gainsaid that the decision to debar these bidders from participating in future tenders of the JEPC did have a rationale connection with the legitimate goal which they wanted to achieve. The present case was not one of those where a successful bidder was being penalized or debarred because of a misconduct during execution of the contract. It is in the bidding process itself that JEPC found these bidders indulging in fraudulent practice which vitiated the entire tender process. Therefore, restricting their participation in the future tenders of JEPC, did have a rationale connection with the goal sought to be achieved. Whether the order of debarment satisfied the necessity stage in the sense that whether there was any other less restrictive but equally effective alternative with the JEPC, has to be carefully gone into. As the terms and conditions of the tender indicate, fraudulent practice as defined under Clause 22.1(ii) dealt with situations which arise during the bidding process in the procurement of contract and also in its execution. The terms and conditions of the tender contemplated liquidated damages for defective supply of school bags or delay in supplies after the work order was awarded by the District authorities upon empanelment of the bidders' by JEPC on a prescribed rate. However, the fraudulent practice or misconduct committed by the bidders during the bidding process could not entail same penal consequences like liquidated damages envisaged for defective or delayed supplies during execution of the work. However, the fraudulent practice or misconduct committed by the bidders during the bidding process could not entail same penal consequences like liquidated damages envisaged for defective or delayed supplies during execution of the work. The employer JEPC therefore, did not have an alternative or less restrictive measure to impose once fraudulent practice was found to have been established against these bidders. When these three sub components of proportionality seem to be satisfied in the decision making process of debarment, the last sub component relating to the balancing test calls for scrutiny, i.e. whether the period of debarment of one year was disproportionate or not? In the facts and circumstances of the case, the period of debarment for one year cannot be said to be shocking to the conscience of the Court as being wholly disproportionate to the established misconduct. This is all the more evident since the order of debarment was not in rem but restricted to the participation of these bidders/appellants in the future tenders with only JEPC and that too for a period of only one year. As such, their complain of denial of fair participation in tenders floated by other organizations or instrumentalities of the State or State does not cut much ice. JEPC on their part have reiterated that the order of debarment in no way restricted the participation of these appellants in the tender floated by any other agency or instrumentalities of the State or State itself. An year of debarment therefore, cannot be said to be disproportionate on the balancing test on the touchstone of the doctrine of proportionality. Having carefully examined the attack made by the appellants to the order of debarment on the doctrine of proportionality in this light, I do not find any substance in the plea. 36. The decision in the case of G. Ganayutham (1997) 7 SCC 463 , relied by learned senior counsel for the appellant in M/S. Liberty Shoes Ltd. on the principles of proportionality and applying the balancing and the necessity test as discussed above also fails to substantiate the contention of the appellant that the quantum of penalty was excessive or onerous infringing their right to freedom of carrying on business. The appellants prayer for quashing the order of debarment passed by JEPC upon remand by the learned Single Judge through interlocutory applications in the present appeal based on the decision of State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 and the legal maxim sublato fundamento cadit opus meaning that when the foundation is removed, the structure falls, does not help the appellants once the initial order of debarment is found to be sustainable in law and on facts by this Court. 37. On careful and minute analysis of each of the grounds canvassed on behalf of the appellants, to the order of debarment, I am of the opinion that the judgment rendered by the learned single Judge does not call for any interference. This is based on the discussion and the reasons recorded in the foregoing paragraphs in the facts and circumstances of the case. This Court may not agree on the findings of ‘Admission’ by Learned Single Judge as are applicable to pleadings in judicial proceedings based on the Civil Procedure Code on the issue of guilt or misconduct of these bidders/writ petitioners/appellants herein. As have been held hereinabove, the charges of ‘fraudulent practice’ stood established as against these bidders on their own strength and also due to lack of any denial on the part of the bidders/appellants herein on the mismatch in the test report with the sample as also the certificates submitted by them during bidding process. However, since the order of debarment have been found to be sustainable on facts and in law on account of reasons recorded hereinabove, it does not affect the fate of the Appeals which have to necessarily fail. The appeals being devoid of merit, are fit to be dismissed. Accordingly, they stand dismissed. JUDGMENT : APARESH KUMAR SINGH, J. 1. All the four writ petitioners are in Appeal being aggrieved by the common judgment dated 11.05.2020, whereby and whereunder, learned single Judge upheld their debarment vide orders dated 18.09.2019 for one year, though it directed the Respondents to reconsider the quantum of penalty. 2. These writ petitioners had participated in a notice inviting tender dated 28.06.2019 floated by Jharkhand Education Project Council (in short ‘JEPC’) for procurement of school bags. JEPC would fix the rates for the whole of the State for purchase of School Bags through e-tender. 2. These writ petitioners had participated in a notice inviting tender dated 28.06.2019 floated by Jharkhand Education Project Council (in short ‘JEPC’) for procurement of school bags. JEPC would fix the rates for the whole of the State for purchase of School Bags through e-tender. The work order was to be issued by the concerned District level authorities of JEPC. The school bags were to be supplied to the destination points i.e. concerned Blocks/BRCs in the districts. Total of seven bidders had participated. Last date for On-line submission of bid and submission of original documents with bags samples was 22.07.2019/23.07.2019 respectively. 3. As per the first corrigendum issued on 05.07.2019, JEPC changed the criteria for submission of sample report from that of N.A.B.L. accredited laboratory, to the State Government Lab. By the second corrigendum dated 19.07.2019, bidders were asked to change the logo on the school bag to be submitted along with the physical bid. By the third corrigendum dated 22.07.2019, date for submission of On-line bid was extended up to 03.08.2019 and that of physical bid with affidavit and sample bag was extended up to 12.00 noon on 06.08.2019. All the bidders including the writ petitioners submitted their On-line bid by the cut-off date. 4. Case of the writ petitioners is broadly common on facts and in law. They have been debarred from participating in any fresh tender with JEPC as the test report of the samples of school bags submitted by them did not match with the technical specification of denier count 300 x 300 specified under Section-VI “Technical Specification.” As per the JEPC, the test reports from the laboratory of Textile Committee, Ministry of Textile, New Delhi in cases of each of the bidders except one Virushima Technology did not conform to the technical specification. The samples of school bags were submitted by these bidders along with the certificate of the State Government Labs at the time of submission of physical bid by these petitioners. All these petitioners had, however, been declared qualified in technical bid on 09.08.2019 and the date for opening of financial bid was 13.0.2019. It was on the objection of a bidder Virushima Technology, that lab reports of two of the bidders were not correct, Tender Committee on 13.08.2019 decided to send those samples, after having qualified in the technical bid, to the Laboratory under Ministry of Textile, New Delhi for cross test. It was on the objection of a bidder Virushima Technology, that lab reports of two of the bidders were not correct, Tender Committee on 13.08.2019 decided to send those samples, after having qualified in the technical bid, to the Laboratory under Ministry of Textile, New Delhi for cross test. Upon receipt of these reports, Tender Evaluation Committee decided to send the rest of the samples of other bidders for testing on 20.08.2019 as they felt that the other samples were also not as per specifications. The cross test report dated 22.08.2019 shows that each of these samples of the 6 bidders had failed to conform to the technical specification as denier count was much less than 300 x 300. This was also in violation of the declaration made in the affidavit submitted as per Clause-q and r of Form-A (Section-VII) of the bid document. The Tender Committee therefore decided to cancel the tender on 22.08.2019. 5. On 29th August 2019 these bidders/writ petitioners were furnished with a show-cause. On 31.08.2019 second tender was floated by JEPC and the cut-off date for submission of On-line bid was 19.09.2019. On 31.08.2019, the JEPC on the request of all the tenderers decided to release the bank guarantee submitted by the bidders against the first tender. It was accordingly released on 04.09.2019. The writ petitioners submitted their separate replies on 04.09.2019. Petitioner-M/s MB Rubber Pvt. Ltd. submitted that mismatch would have occurred because the materials supplied in the first line had exhausted. Petitioner- Abhilasha Commercial Pvt. Ltd. stated that there was no bad intention from their side. They gave an assurance that in future, no such thing will happen and they would get the samples double checked. Petitioner-M/s Xo Footwear Pvt. Ltd. stated that while testing, the coating is removed and as such the results might be approximations, not accurate. It regretted the mismatch with the test report and assured that they would take precaution to avoid the same in future. Similarly, petitioner-M/s Liberty Shoes Ltd. stated that testing is done after removing the upper coating which may vary the results. They tendered apology on failure of the sample to conform to the technical specification and assured that such instance will not be repeated in future. Similarly, petitioner-M/s Liberty Shoes Ltd. stated that testing is done after removing the upper coating which may vary the results. They tendered apology on failure of the sample to conform to the technical specification and assured that such instance will not be repeated in future. Meanwhile, Government Quality Marketing Centre Laboratory in Textile Goods, Panipat also replied to the show cause letter of JEPC, stating that they had issued lab report, as per sample submitted by the respective parties. The impugned order of debarment/black listing was passed on 18.09.2019 as sample of each of these bidders/appellants had failed to conform to the technical specification on denier count of 300 x 300. None of these appellants had tendered their bids against the second NIT floated on 31.08.2019. 6. The factual canvass of the case of each of the appellants being similar except the tenor and language of reply furnished by the writ petitioners, distinguishing facts or issues shall be dealt with at appropriate places hereinafter, where necessary. Therefore, the broad factual and legal grounds urged on behalf of the appellants to assail the impugned judgment affirming the order of debarment are being referred to hereinafter. Submission on behalf of the Appellants: Legal Grounds: (A) BLACKLISTING - Blacklisting amounts to depriving a person, be it natural or juristic, from the privilege and advantage of entering into lawful relationship with the Government for the purposes of gains. The order of blacklisting is to be tested on the touchstone of fairness, relevance, natural justice, non-discrimination, equality and proportionality. Additionally, error of jurisdiction is also a ground to question the order of blacklisting/debarment. Appellants have relied upon multiple authorities on this point, but they have basically confined to the decisions in the cases of Gorkha Security Services vs. Government (NCT) of Delhi, (2014) 9 SCC 105 , Kulja Industries Ltd. vs. Western Telecom Project BSNL, (2014) 14 SCC 731 , Anisminic Ltd. vs. Foreign Compensation Commission, (1969) 2 WLR 163 and Nusli Nevile Wadia vs. Ivory Properties, (2019) SCC Online SC 1313. (B) Fraud/misrepresentation-Appellants have assailed the impugned action of debarment based on alleged fraud/misrepresentation on certain factual score:- (a) That the report submitted by the appellants was from a Government Laboratory i.e. Government Quality Marketing Centre for Textile Goods, Department of Industries and Commerce, Panipat, Haryana, FDDI in case of M/s M.B. Rubber and hence, met the requirement of NIT (as amended). (b) Report is neither alleged to be forged nor contents thereof are said to be fabricated. In other words, genuineness of the report is not in question. (c) Government Laboratory, Panipat and other laboratories have confirmed its issuance and the contents of the report in the case of the appellants. (d) There is no allegation that sample submitted to JEPC and sample certified by the Government Laboratory, Panipat in the case of the appellants-M/s Liberty Shoes Ltd. and M/s Abhilasha Commercial Pvt. Ltd were different. No such case was either set up by the JEPC in its show-cause or in the impugned order or counter-affidavit. (e) There is no allegation of any corrupt practice by the appellants. It is contended that so far as fraudulent practice as defined under Clause-22.1(ii) is concerned, it is contrary to the public policy i.e. the plenary statute, Contract Act, 1872. As per Contract Act, fraud and misrepresentation are two different and distinct concepts and are mutually exclusive. Fraud necessarily implies an element of deceit, whereas misrepresentation does not require an intention to deceive. A representation becomes a misrepresentation when the statement is subsequently found to be untrue. Appellants have relied upon the case of General Manager, Electrical Rengali Hydro Project, Orissa and Others vs. Girdhari Sahu, (2019) 10 SCC 695 , Para-43 in support that neither the show-cause notice, nor the impugned order contain any such allegation or any finding which could even prima-facie make out a case of fraud or misrepresentation. JEPC has not questioned the correctness of the contents of the report of Government Laboratory. Therefore, misrepresentation, if any, on account of denier count cannot be attributed to the concerned laboratory and certainly not to the appellants. Moreover, expert opinion can never be the sole basis for arriving at a finding on misrepresentation or fraud. Therefore, no prima-facie case of fraud or misrepresentation was made out against the appellant. (C) CVC guidelines - Impermissibility of re-testing - Appellants contend that under Clause 16.7 Section II (Instruction to Bidders), contract would be awarded as per CVC guidelines. CVC Office Memorandum dated 15.10.2003 while dealing with “tender sample clause” in relation to clothing and textile items, noted that approving/rejecting tenders samples at the time of decision making is too subjective and is not considered suitable, especially for items which have detailed specifications. CVC Office Memorandum dated 15.10.2003 while dealing with “tender sample clause” in relation to clothing and textile items, noted that approving/rejecting tenders samples at the time of decision making is too subjective and is not considered suitable, especially for items which have detailed specifications. Accordingly, it was advised that procurement of such items must be done on the basis of detailed specification and a provision for submission of advance sample by successful bidder may be stipulated. In the bidding process in question, NIT provided detailed specification, hence, there was no need for testing at the time of evaluation of bids. Appellants relied upon the case of Haffkine Bio-Pharmaceutical Corporation Ltd. vs. Nirlac Chemical, (2018) 12 SCC 790 [Para 10] to support their submission that violation of CVC guidelines in itself is sufficient to vitiate the entire tender process. Further, tender notice did not contemplate submission of a sample bag for the purposes of testing. The Tender Evaluation Committee had no such power under NIT. As such, entire exercise of retesting and consequent debarment is wholly without jurisdiction. Appellants placed reliance upon the case of Hasham Abbas Sayyad vs. Usman Abbas Sayyad, (2007) 2 SCC 355 [Para 20]. (D) Flawed Decision Making Process (i) Show Cause Notice - Appellants have alleged that show-cause notice dated 29.08.2019 is vague and imprecise in as much as it neither states as to how variance in two test reports amounts to fraud by the writ petitioners, nor does it specify the gravity. It does not indicate as to the manner in which fraud was perpetuated and who was responsible for the alleged fraud and misrepresentation, whether appellant or the Government Laboratory. The contents of the second last paragraph and the last paragraph of the show-cause notice are contradictory to each other and this clearly do not clearly reflect the proposed penalty. In the second last paragraph, it has been stated as to why petitioners/appellants should not be debarred from taking part in the future tender, whereas in the last paragraph, it stipulates that if no reply is received on or before 04.09.2019, then the writ petitioners would be debarred from participating in the upcoming tender process of JEPC. The show-cause notice does not specify proposed penalty i.e. period of blacklisting/debarment and therefore, it does not meet the requirement as mandated in the case of Gorkha Security Services (supra). The show-cause notice does not specify proposed penalty i.e. period of blacklisting/debarment and therefore, it does not meet the requirement as mandated in the case of Gorkha Security Services (supra). (E) Impugned order, a non-speaking order - Respondent have not recorded any reasons for not accepting the reply given by the petitioner. This amounts to violation of principles of natural justice. It does not record that the reply furnished by the petitioner amounts to an admission, nor does it mention that non-questioning the report furnished by the Textile Committee amounts to acceptance of the contents of the report. Importance of giving reasons have been explained by the Apex Court in the case of Kranti Associates (P) Ltd. vs. Masood Ahmed Khan, (2010) 9 SCC 496, summarized at [Para 47] of the Report. It was not competent for the Respondent to debar them for one year as it was beyond the show-cause notice. The impugned order merely reiterates the show-cause in brief and observes that the reply of the petitioner was not satisfactory. Thereby debarring the petitioner for a period of one year. Such an order of blacklisting is untenable in law. (F) None supply of Cross Test Report - None supply of cross test report dated 20.08.2019 issued by the Textile Committee, Ministry of Textile, Government of India amounts to denial of reasonable opportunity of hearing to the Noticees and therefore, the same could not have been used against the appellants. It was their duty to supply copy of the test report with show-cause notice. Appellants have placed reliance in the case of State of U.P. vs. Shatrughan Lal, (1998) 6 SCC 651 [Para 9]. (G) Cross test report - An Example of Pococurantism - Appellants contend that the Textile Committee report was confined only to one specification i.e. denier count, whereas fabric was used at five places in the bag viz. in the outer layer of the bag, outer layer of the front pocket, the outer layer and inner layer of the shoulder strip, as also the top handle. Report does not show that the count of yarn was deficient qua which part of the bag. The report of Textile Committee is ex-facie perfunctory and ought to have been rejected. Therefore, no cognizance could have been taken of it. Report does not show that the count of yarn was deficient qua which part of the bag. The report of Textile Committee is ex-facie perfunctory and ought to have been rejected. Therefore, no cognizance could have been taken of it. (H) Wrongful Invocation of Clause 22 - As per the NIT and the position in law, Clause 22 under Section II cannot be invoked at the stage of opening of Financial Bid. It can only be resorted to after the Financial Bid was opened and/or the contract was executed since bid of the appellant at that stage cannot be said to be ‘qualified’ to participate in the competitive state of the tender process i.e. Financial Bid. As such, on 22.08.2019 appellants' bid was not competitive in nature. Clause-22 under Section II therefore could not be made the basis for proceeding against the appellants for debarment. (I) Grossly Disproportionate - On this count, appellants have contended that the decision to debar is based on the sole reason that part of the sample have failed to meet technical specification. This is grossly disproportionate, particularly in view of Clause 3 read with Clause 9.3 of Section III (General Conditions of the Contract) which provides that in the event, a sample fails to meet the specification in course of execution of the contract, the bidder must take steps to remedy the deficiency or replace the defective bags to ensure that it conforms to the technical specification and/or a penalty in the nature of liquidated damages @ 1% of the Contract Value would be deducted. In the instant case, refund of earnest money on the ground that no loss was caused to JEPC fortifies the contention of the appellants that the penalty is excessive. (J) Judgment of Hon’ble Single Judge - Appellants contend that the entire impugned judgment is based on a fallacious ‘finding on admission’ based upon the reply of the petitioners. The entire judgment is premised on a misinterpretation of the reply and treating it as an admission. The law of pleadings strictly does not apply to any proceedings apart from a suit being tried in terms of the Code of Civil Procedure, 1908. Relying upon a decision of Hon’ble Calcutta High Court in the case of Raj Kumar Dey vs. State Bank of India, (2018) SCC Online Cal. The law of pleadings strictly does not apply to any proceedings apart from a suit being tried in terms of the Code of Civil Procedure, 1908. Relying upon a decision of Hon’ble Calcutta High Court in the case of Raj Kumar Dey vs. State Bank of India, (2018) SCC Online Cal. 3509, [Para 24] it is submitted that strict rules of pleadings can hardly be applied to letters exchanged between two parties. Learned Single Judge made grave error by firstly applying the rules of pleading to the impugned proceedings and secondly on selectively applying them to the reply submitted by the petitioner which could, in no case, be treated as admission of the guilt. Learned Single Judge has also incorrectly distinguished the judgment rendered in the case of Mohinder Singh Gill vs. The Chief Election Commissioner, (1978) 1 SCC 405 , East Coast Railway and Another vs. Mahadev Appa Rao and Others, (2010) 7 SCC 678 as the Respondent could not have been allowed to supplement the reasons by way of an affidavit before the writ Court in support of the impugned order of debarment to the effect that the petitioners' reply amounted to admission of guilt. Learned counsel for the appellants have also questioned the findings of learned Single Judge relying on several decisions which do not relate to the scope of judicial review in cases of blacklisting/debarment except Kulja Industries and Gorkha Security (supra). It is submitted that even in the case of Jagdish Mandal vs. State of Orissa and Others, (2007) 14 SCC 517 , relied by the learned Single Judge, the Apex Court has in the very next paragraph, held that the case involving blacklisting stand on a different footing and may require a higher degree of fairness in action. 7. Appellants have contended that the order of remand by the learned Single Judge was an empty formality treating the appellants' reply as admission of guilt and without setting aside the order of debarment. Appellants further contend that reliance upon the case of B. Managing Director ECIL, Hyderabad vs. B. Karunakar, (1993) 4 SCC 727 , is misplaced as correct law in regard to an order of blacklisting is laid down in the case of Gorkha Security (supra). Appellants further contend that reliance upon the case of B. Managing Director ECIL, Hyderabad vs. B. Karunakar, (1993) 4 SCC 727 , is misplaced as correct law in regard to an order of blacklisting is laid down in the case of Gorkha Security (supra). It is their submission that the observation of the learned Single Judge with regard to enhanced punishment also runs contrary to the settled principles of law that a person ought not to be put in detrimental position on account of the fact that that he had approached the Court of law. Moreover, having upheld the order of debarment, direction on the Respondents to reconsider the quantum of penalty would amount to post decisional hearing, which would not satisfy the requirement of principles of natural justice. Moreover, Respondents have once again passed the order of debarment, affirming the quantum of penalty by passing fresh order which has been brought on record through interlocutory applications in these appeals. 8. Learned Senior Counsel for the appellant M/s Liberty Shoes Limited has additionally urged the following factual and legal grounds in support of the challenge to the impugned decision. 9. He has submitted that there are checks and balances provided under the NIT. NIT is in two parts, first is technical bid under Clause-15 and second part deals with financial bid under Clause-16. Every bidder has been asked to submit school bag sample for each category and other required documents as per ‘Form-A’ under Clause-8.11. Clause-8.21 of the NIT provides for submission of documents, certificates with digital signature as per I.T. Act, 2000 and further stipulates that if any of the information furnished by the bidder is found to the false or fabricated is EMD/bid security shall stand forfeited. His registration shall be blocked and the bidder shall be liable to be blacklisted. 10. In the present case, appellant submitted a Test Report Certificate issued by the Footwear Design and Development Institute (FDDI), Ministry of Commerce and Industry, Government of India (Annexure-5 series) along with other information and document as per prescribed Form-A which has not been found to be false, fabricated or bogus. Referring to Clause-15 containing the checks and balances before finalization of technical bid, it is argued that for determining technical eligibility JEPC could go for site inspection of the bidder's manufacturing unit. Referring to Clause-15 containing the checks and balances before finalization of technical bid, it is argued that for determining technical eligibility JEPC could go for site inspection of the bidder's manufacturing unit. Only after the bidder qualified in the preliminary examination (technical eligibility and technical evaluation), he would become technically qualified for the financial bid evaluation. As per Clause 15.3, JEPC will have the right of site inspection any time during the entire process of manufacturing of school bag. If during on-site inspection, the documents submitted by the bidder were found not compatible or were fraudulent, his eligibility would be terminated and security forfeited as per Clause-15.4. There has been no compliance of these procedures by the JEPC. Merely, on the failure of one sample of school bag and that too after finalization of technical bid of the appellant, the decision of debarment for one year has been taken which is highly disproportionate and without jurisdiction. Out of seven technically successful bidders, six have been blacklisted in the same manner and the entire tender was cancelled followed by issuance of fresh tender on 31st August, 2019 in quick succession, which smacks of mala-fide on the part of the JEPC. These issues of fairness, relevance, natural justice, equity and proportionately need to be examined in judicial review by this Court for granting equitable relief. Appellant has been ousted from the next tender in question and has also suffered in other tender because of the order of debarment. 11. Reference is made to Clause-16 under the Financial Bid and it is urged that on the date of opening of financial bid a decision was taken to send the sample bag for lab testing. Learned senior counsel for the appellant Mr. Ajit Kumar has referred to Clause-3 of the General Conditions of Contract which specified the procedure for inspection and testing. Under Clause-3 (V) thereof, if the school bag fails to meet the specifications, the bidder shall take immediate steps to remedy that deficiency or replace the defective bag to ensure that it conforms to the technical specification to the satisfaction of the concerned district. This has not been adhered to by the respondent-JEPC. The relevant Clause-8.11 contemplates a situation equivalent to Clause 3.1, where the bags to be supplied as per technical specification may vary even after the contract is awarded. This has not been adhered to by the respondent-JEPC. The relevant Clause-8.11 contemplates a situation equivalent to Clause 3.1, where the bags to be supplied as per technical specification may vary even after the contract is awarded. Under Clause 18.1, JEPC has the right of inspection and testing at any stage and every stage. It is submitted that the impugned action, therefore, does not meet the test of proportionality. 12. On behalf of the appellant M/s. Liberty Shoes Limited also, reliance is placed upon CVC guidelines which as per Clause 16.7 are to be adhered to while awarding the contract. It is submitted that even as per Section 10 containing the contract form and Clause-3 of the agreement to be entered into between the JEPC and successful bidder, the bidder have to covenant to provide school bags and deliver it and to remedy defects defect therein in all respects in conformity with contract. Similarly, Clause-4 required the bidder to remedy all defects. It has been argued that in spite of there being a sample or no sample, a successful bidder has to provide the product/bags of exact and appropriate specification. Learned counsel has also referred to Clause-6 of Section III (General Conditions of Contract) read with similar condition in corrigendum I providing for warranty of the school bag. Performance security form as per Section XI and affidavit in terms of Section XII also contains a declaration on the part of the bidder to ensure that supply would be made as per specification within the stipulated time. The appellant contends that it has the capacity to supply the required bags as per technical specification and no information or documents submitted by the appellant have been termed as false, fabricated or fraudulent. Appellant also qualified the eligibility criteria regarding requiring various aspects of capacity, work or accreditation of the bidders and technical bid for information as per Form-A. Merely on failure of ‘A’ sample, the entire reputation of the appellant should not have been put at stake. Therefore, the order of debarment is highly disproportionate. The stipulated penalty for deviation from specified specification under Clause 9.3 have been referred to by the learned counsel for the appellant. According to the appellant, the JEPC has deemed it proper to return the EMD on 4th September, 2019 in terms of Clause 8.21. Therefore, the order of debarment is highly disproportionate. The stipulated penalty for deviation from specified specification under Clause 9.3 have been referred to by the learned counsel for the appellant. According to the appellant, the JEPC has deemed it proper to return the EMD on 4th September, 2019 in terms of Clause 8.21. As such, the impugned action could not have been termed as a fraudulent practice as per Clause-22.1(ii). Failure of a sample would not lead to fraud/misrepresentation of facts. The sample may vary from the test report as at the time of testing, the upper coating of polyester has to be removed in order to do the testing of the fabric thickness. Denier is a unit of measurement that is used to determine the fibre thickness of individual threads. 13. Appellant has raised questions upon the bona-fide of the respondent in debarring six out of seven bidders under the first tender with an intent to favour certain persons. Appellant has also questioned the impugned order of debarment on common grounds as that of the other appellants i.e. it is cryptic, non-speaking and nullity in the eye of law. It has also been assailed on lack of existence of jurisdictional facts on the part of the JEPC for exercise of its power of debarment. Certain decisions have been placed such as, in the case of Supreme Cooperative Group Housing Society vs. H.S. Nag Associates (P) Ltd. (1996) 9 SCC 492 , State of M.P. vs. Sardar D.K. Yadav, AIR 1968 SC 1186 . The appellant has also questioned the quantum of punishment on the doctrine of proportionality relying upon the case of Union of India vs. Ganayutham, (1997) 7 SCC 463 . Appellants have questioned the decision of the tender evaluation committee for re-testing of the samples by placing reliance on the case of Reliance Cellulose Products Ltd. Hyderabad vs. Collector of Central Excise, Hyderabad, (1997) 6 SCC 464 . Learned counsel for the appellant has also assailed the finding on admission rendered by the learned Single Judge by referring to the provisions of Order XII Rule 6 of Civil Procedure Code, 1908 (Judgments on Admissions) which according to him are applicable to proceedings in a suit only and has supported it on the ratio of Payal Vision Limited vs. Radhika Choudhary, (2012) 11 SCC 405 . Reply on behalf of Respondent-JEPC: 14. Learned counsel for JEPC Mr. Reply on behalf of Respondent-JEPC: 14. Learned counsel for JEPC Mr. Krishna Murari, in his reply, has also referred to the different terms and conditions of NIT such as Clause-22 prescribing corrupt or fraudulent practices and in particular Clause 22.1 (ii) defining fraudulent practices. He has also referred to the requirement under Form-A of Section-VII, in particular Clause q and r which is a declaration by the bidder. He has further referred to the standard clause contained in the affidavit under Section-XII and the undertaking furnished by the bidder. As per their undertaking, the sample has to necessarily abide by the technical specifications. Learned counsel for JEPC has also explained the sequence of dates and events which are not in dispute between the parties. He has referred to the show cause issued upon the bidders/writ petitioners on 29th August, 2019 and their reply furnished on different dates. Learned counsel for the Respondent-JEPC has inter-alia made the following arguments in reply to the legal grounds urged on behalf of the appellant: It is submitted on behalf of JEPC that so far power of blacklisting is concerned, as per law laid down by the Hon'ble apex court in the case of Patel Engineering Ltd. vs. Union of India and Another, (2012) 11 SCC 257 , the same is inherent with employer, over and above the same is derivable from the bid document. The Hon'ble Single Judge while dealing with the same has elaborately discussed the satisfying facts and law, which is fully probable one. Thus can't be further reviewed in L.P.A. proceeding. So far misrepresentation and act of fraud is concerned, it is stated that on the face of nature of reply, where the statement of allegation to that extent levelled by the employer in the show cause notice was not rebutted nor specifically denied, it was treated to be admitted leading to passing of impugned order of blacklisting which was also preceded by due procedure in all fairness. While dealing with the same, the Learned Single Judge at Para 24 of the impugned judgment has taken into consideration the entire contents of show cause and reply and quoted the same. The respondents reiterate the same. 15. While dealing with the same, the Learned Single Judge at Para 24 of the impugned judgment has taken into consideration the entire contents of show cause and reply and quoted the same. The respondents reiterate the same. 15. That the Hon'ble Single Judge while framing eight issues of determination, has been pleased to answer seven issues in favour of respondent JEPC and has finally held that neither there is lack of power with the JEPC to pass the order of blacklisting, nor there is lack of ingredients to justify the same, nor there is any violation of principle of natural justice, nor the order of blacklisting is perverse on any grounds. The learned Single Judge has been pleased to hold that since neither the decision dated 13.08.2019 by which the samples were send for cross testing was challenged, nor the cross test reports of the laboratory by which the samples were declared suffering from deficiency were challenged, the challenge to order of blacklisting is hit by acquiescence and estoppels. In this regard the respondents relied upon the judgment of Edukanti Kistamma (Dead) through LRs. and Others vs. S. Venkatareddy (Dead) through LRs. and Others, (2010) 1 SCC 756 . The Hon'ble Singe Judge has been further pleased to observe that there is no error in decision making process, while dealing Issue No. VII. It has been held that impugned order of blacklisting was passed observing full fairness and transparency and therefore it is not vulnerable under the power of judicial review. It is also submitted that the matter otherwise arises out of contractual disputes, which necessarily falls within the contractual dominion and therefore does not warrant further review under L.P.A. jurisdiction. In this contended that it is well settled that the power of L.P.A. Court is confined to correction of patent error if any committed by the Hon'ble Single Judge and not otherwise. Where even two views are possible, including the view taken by the Hon'ble Single Judge, same has to be sustained. Learned Counsel for the respondent JEPC has reiterated the material facts and submissions set out in their counter affidavit from paragraph no. 4 to 36 together with findings recorded by the Hon'ble single Judge. In reply to the arguments regarding application of CVC guideline in the award of contract, learned counsel for the JEPC submits that the guidelines are advisory and directory in nature. 4 to 36 together with findings recorded by the Hon'ble single Judge. In reply to the arguments regarding application of CVC guideline in the award of contract, learned counsel for the JEPC submits that the guidelines are advisory and directory in nature. Summarizing his arguments, learned counsel for the Respondent submitted that viewed from any corner, the judgment of Hon'ble single Judge is well reasoned and does not suffer from any perversity. It therefore, deserves to be sustained and the respective L.P.As. are fit to be dismissed. 16. On the part of JEPC, the following decisions have been relied upon: (i) Edukanti Kistamma (Dead) through LRs. and Others vs. S. Venkatareddy (Dead) through LRs. and Others, (2010) 1 SCC 756 . It is urged that the appellants having not challenged the basis for passing of the impugned order i.e., the lab testing reports of the Ministry of Textile, any subsequent decision based thereupon is not open to be interfered with. (ii) Krishnadevi Malchand Kamathia and Others vs. Bombay Environmental Action Group and Others, (2011) 3 SCC 363 . Based on the decision, it is submitted that even an order which is nullity in the eye of law needs to be invalidated. Appellants have failed to question the decision of the tender evaluation committee regarding testing of the sample bags. (iii) Patel Engineering Limited vs. Union of India and Another, (2012) 11 SCC 257 . Relying upon this decision, it is submitted that the writ court has to see whether the decision taken by the authority stands the test of fairness and rationality and has been taken to achieve a legal purpose. (iv) Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and Others, (2014) 14 SCC 731 . Learned counsel relying upon Paras 15, 16, 21, 22, 25 and 28 thereof and submitted that the decision lays down the scope and width of power of blacklisting and the doctrine of proportionality under which interference can be made on the quantum of penalty. (v) Kerns Services Private Limited, through its Managing Director Mr. Mohan Kumar Khandelwal vs. State of Bihar through the Principal Secretary, Water Resources Department, Patna and Others, (2014) 1 PLJR 622 . This decision is on the proposition that only errors in the decision making process can be interfered with under writ jurisdiction. (v) Kerns Services Private Limited, through its Managing Director Mr. Mohan Kumar Khandelwal vs. State of Bihar through the Principal Secretary, Water Resources Department, Patna and Others, (2014) 1 PLJR 622 . This decision is on the proposition that only errors in the decision making process can be interfered with under writ jurisdiction. The exercise of powers for judicial review cannot be used to substitute the opinion of the authority as an appellate body. (vi) Badat and Co. Bombay vs. East India Trading Co. AIR 1964 SC 538 . This decision has been relied upon the effect of lack of specific denial of an averment in a plaint by the written statement, referring to Order-VII of the Civil Procedure Code. It has been submitted that the object is to enable the defendant to ascertain from plaint the necessary facts, so that he may admit it or denial it. The appellants have failed to deny the findings of the test lab of the Ministry of Textile, which showed mismatch in the technical specification of the samples submitted by the bidders. (vii) State of A.P. and Another vs. T. Suryachandra Rao, (2005) 6 SCC 149 . Relying thereupon, learned counsel for the appellant has submitted that fraud and collusion vitiate the most solemn proceeding. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe an act of falsehood. The appellants by their misrepresentation even if recklessly have committed fraudulent misrepresentation. 17. Learned counsel for the respondent-JEPC has relied upon the decision rendered in Reliance Salt Ltd. vs. Cosmos Enterprises and Another, (2006) 13 SCC 599, to support his submission that subsequent breach of contract on the part of a party would not vitiate a contract itself. Whereas, in the instant case the bidders had committed a fraudulent practice by misrepresenting certain facts with an intention to induce JEPC to enter into a contract. Therefore, different consequences will follow at different stages i.e. at the time of entering into a contract and in a case when there is a breach of contract. 18. Learned counsel for the respondent has also placed reliance on Chapter-II of Law on Fraud to justify the decision of JEPC to return earnest money as no actionable fraud leading to monetary loss or injury had happened in the instant case. 18. Learned counsel for the respondent has also placed reliance on Chapter-II of Law on Fraud to justify the decision of JEPC to return earnest money as no actionable fraud leading to monetary loss or injury had happened in the instant case. However, the power to debar the bidders for indulging in such acts of fraudulent practice under Clause 22.1(ii) was perfectly within its jurisdiction and based on the existence of proper jurisdictional facts. Therefore, there is no substance in the contention of the appellant that there was lack of jurisdictional facts for the JEPC to exercise the powers of blacklisting. Rather, the power was exercised with full compliance of principles of natural justice and there is no error in decision making process warranting interference at the appellate stage. It is further submitted that the order of blacklisting has been reiterated by the respondent-JEPC upon reconsideration and by no stretch of reason or imagination, it can be said to be disproportionate to the established offence/misconduct as it confines itself to the tenders floated by JEPC only and that too for one year. The appeals being devoid of merit are therefore fit to be dismissed. Reply by the Appellants: 19. Learned Senior Counsel for the appellant Mr. Ajit Kumar has in reply, placing reliance upon the decision in Kulja Industries Ltd. (supra), contended that the Respondent JEPC ignoring Clause-15 which provides for testing and inspection and consequences of any default, has invoked Clause-22.1(ii) and imposed the order of blacklisting, though there is no such incidence of any grave breach for exercise of such power, as contemplated in the case of Kulja Industries Ltd. (supra). The employer JEPC has, by the impugned action, put the entire reputation of the Appellant Company at stake when allegations of fraudulent practice have not been established moreover when the certificate of the testing lab is not under question. The impugned action entails serious adverse consequences affecting the freedom to carry on business by the appellant without complying the principles of natural justice and in the absence of jurisdictional fact to invoke such a power, more so when the alleged misconduct did not fall within the mischief of Clause-22.1(ii). 20. Learned Counsel for the appellant Mr. Indrajit Sinha has referred to the Minutes dated 13.08.2019 when a decision was taken by the Tender Evaluation Committee to send for re-testing the samples of only two bidders. 20. Learned Counsel for the appellant Mr. Indrajit Sinha has referred to the Minutes dated 13.08.2019 when a decision was taken by the Tender Evaluation Committee to send for re-testing the samples of only two bidders. Later on, by a resolution dated 22.08.2019, other samples of other bidders were sent for re-testing on mere suspicion that they did not match with the technical specifications. This was clearly impermissible, as per Clause 16.7 and the prescribed CVC guidelines. Violation of CVC guidelines is enough to vitiate the entire decision making process as has been held in the case of Haffkine Bio-Pharmaceutical Corporation Ltd. vs. Nirlac Chemical, (2018) 12 SCC 790 . Learned counsel has reiterated his submissions on the allegations of fraud and submitted that none of the replies of all these appellants go to show that there was an intention to deceive, neither is there any finding in the impugned order. Learned counsel has, in reply to the submission of the Respondent that the appellants have not questioned the inquiry report, submitted that the decision in the case of Edu Kanti (2010) 1 SCC 756 , does not apply to the facts of the case at hand since the inquiry report was never furnished to the appellants in breach of the principles of natural justice. Learned counsel further submits that if the test reports are taken in totality, then the sample submitted by Virushima Technology also did not match with the prescribed technical specification since their specification was 600 x 600 denier. In that case, Virushima Technology could also be responsible for misrepresentation. However, Respondent JEPC has let Virushima Technology escape any liability or penalty. Learned counsel for the appellant Mr. Sinha has also reiterated his submissions on the finding of admission rendered by the learned Single Judge on the ground that law of pleadings do not apply to the administrative bodies. Besides that, show-cause did not allege any specifics of the fraudulent act allegedly committed by the appellant-bidders. A perusal of reply would also show that the appellants did not admit an act of fraud on their part. It is submitted that the learned Single Judge failed to take note of the observations made in the case of Jagdish Mandal vs. State of Orissa and Others, (2007) 14 SCC 517 , in the very next paragraph that the cases of blacklisting stand on different footing. It is submitted that the learned Single Judge failed to take note of the observations made in the case of Jagdish Mandal vs. State of Orissa and Others, (2007) 14 SCC 517 , in the very next paragraph that the cases of blacklisting stand on different footing. Therefore, reliance on the decision of Jagdish Mandal (supra) in the case of the present appellants was misplaced. Learned counsel has submitted that in order to apply the doctrine of proportionality, learned Single Judge ought to have adopted the balancing and necessity test which is by now accepted canon to see whether an action is suffering from lack of proportionality. Learned counsel for the appellant Mr. Sinha has also reiterated that the jurisdictional fact for exercise of power for blacklisting were explicitly lacking to invoke such power. Reliance is placed on the decision of the Apex Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 in support of the submission that the consequential order upholding the period of blacklisting is under challenge in the interlocutory application and if this court is convinced that the initial action was not legal, then all consequential orders also have to go. Mr. Sinha submits that the show-cause also failed to meet the requirement of proper show-cause as the period of penalty was not proposed therein. In support of this submission, he has placed reliance on the case of Gorkha Security Services (supra) in particular paragraph-33. 21. Mr. Vajpayee, appearing for the appellant in LPA No. 195/2020, has adopted the arguments of the learned counsels for other appellants and also placed reliance on the decision of Kulja Industries Ltd. (supra) paragraph-22 and 25 in particular. According to him, the alleged act would not fall within the mischief of clause 22.1(ii) relating to fraudulent practice. He submits that when the terms and conditions of the tender prescribe particular penal consequences for any breach in the standard of the bags supplied, then blacklisting of the Appellant Company was wholly unwarranted and improper. Learned counsel for the appellants have therefore prayed that the impugned order of black listing be quashed. The judgment rendered by the learned Single Judge may be set aside as it suffers from various errors of law and fact in appreciating the case of the parties. DISCUSSION: 22. Learned counsel for the appellants have therefore prayed that the impugned order of black listing be quashed. The judgment rendered by the learned Single Judge may be set aside as it suffers from various errors of law and fact in appreciating the case of the parties. DISCUSSION: 22. The present appeal in substance, questions the decision of the employer JEPC to blacklist the appellants on allegations of fraudulent practice in participating in tender process. The affected bidders i.e. the writ petitioners/appellants herein, also seek to question the decision making process inter-alia on a number of grounds such as, absence of jurisdictional facts for exercise of the employer's power of blacklisting: Absence of any corrupt practice or fraud or misrepresentation on the part of these appellants in submission of the reports of the Government Laboratory or any misrepresentation in their statements which has been subsequently found to be untrue. Writ petitioners have also assailed the impugned decision of blacklisting on the ground that CVC guidelines contemplated under clause 16.7 of section II (Instruction to Bidders) have not being followed. They have also questioned the absence of a proper show-cause notice and an opportunity to offer reply to the allegations of misconduct against them. According to them, the impugned decision is a non-speaking order passed in violation of principles of natural justice. It lacks the essential ingredients of a show-cause notice since the period of blacklisting is also not indicated. Non-supply of cross-test report of the Textile Committee, Ministry of Textile, Government of India, amounts to denial of reasonable opportunity of hearing to the noticees and therefore, could not have been used against them. The order of debarment has also been assailed on the ground of proportionality. Appellants being dissatisfied with the judgment of the learned single judge on various counts have preferred this appeal.