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2023 DIGILAW 1241 (PAT)

Excellent Construction v. State of Bihar

2023-11-09

P.B.BAJANTHRI, RAMESH CHAND MALVIYA

body2023
P. B. Bajanthri, J. – In the instant petition, petitioner has prayed for the following reliefs: – “(i) For quashing the order dated 01.03.2023 passed by the Managing Director, B.S.E.I.D.C, Patna (Respondent No.3) whereby the appeal filed by the petitioner has been rejected and the order of blacklisting dated 11.01.2023 has been affirmed. (ii) For quashing the order dated 11.01.2023 passed by the Chief Engineer, B.S.E.I.D.C. (Respondent No.4) whereby the Registration of the petitioner M/s. Excellent Construction has been blacklisted for a period of ten (10) years from the date of order on the ground that the experience certificate produced by him is wrong and forge. And for any other relief(s) for which the petitioner are found to be entitled in the facts and circumstances of the case.” 2. The petitioner has been blacklisted for alleged production of fake experience certificate or requisite document for the purpose of participating in Bid process. Petitioner has invoked remedy of Appeal before the Appellate Authority against the blacklisting order for a period of ten years and it was decided by the Appellate Authority-cum-Managing Director, Bihar State Educational Infrastructure Development Corporation Ltd. It is necessary to reproduce the decision of the Appellate Authority dated 01.03.2023, which reads as under: – 3. Perusal of the aforementioned Appellate Authority’s decision, it is evident that it is a non-speaking order, petitioner has filed a memorandum of appeal against the blacklisting order. On the other hand, Appellate Authority has only referred that petitioner has invoked remedy of Appeal. However, there is no consideration of respective contentions stated to have been raised by the appellant in his memorandum of appeal. Therefore, it is a clear case of non-application of mind in deciding the memorandum of appeal of the petitioner. On this short ground, petitioner has made out a case. Hence, impugned Annexure-6 dated 01.03.2023 is set aside. The matter is remanded to the Appellate Authority to pass a fresh order/decision after due consideration of each contention stated to have been raised by the petitioner in the memorandum of appeal. The above exercise shall be completed within a period of three months from the date of receipt of this order. 4. The Appellate Authority is hereby directed to take note of certain judicial pronouncement how matters are required to be dealt with for example in the case of Kranti Associate Pvt. Ltd. & Anr. vs. Masood Ahmed Khan & Ors. The above exercise shall be completed within a period of three months from the date of receipt of this order. 4. The Appellate Authority is hereby directed to take note of certain judicial pronouncement how matters are required to be dealt with for example in the case of Kranti Associate Pvt. Ltd. & Anr. vs. Masood Ahmed Khan & Ors. reported in (2010) 9 SCC 496 (Para 47), elaborately considered as how the judicial, quasi-judicial and other orders should be. Para 47 read as under: – “47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decisionmakers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija vs. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya vs. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. “48. For the reasons aforesaid, we set aside the order of the National Consumer Disputes Redressal Commission and remand the matter to the said forum for deciding the matter by passing a reasoned order in the light of the observations made above. Since some time has elapsed, this Court requests the forum to decide the matter as early as possible, preferably within a period of six weeks from the date of service of this order upon it.” 5. The appeal is filed under the Contractors Registration Rules, 2012, if these Rules provide oral hearing to the appellant in that event Appellate Authority is hereby directed to provide opportunity of oral hearing to the petitioner. 6. With the above observation, the present writ petition is allowed.