JUDGMENT : A.Y. KOGJE, J. 1. Rule returnable forthwith. Learned advocate Mr. Rituraj Meena waives service of rule on behalf of the respondent- Corporation. At the request of learned advocates for the parties, the matters are taken up final disposal. 2. This petition under article 226 of the Constitution of India is filed for following reliefs:- “(A) Quash and set aside order dated 19.02.2024 (at Annexure-A) whereby Petitioner and its allied concerns, partners, associates, and directors and/or proprietors are banned/black listed from doing business with Respondent; (B) Direct Respondent to take a decision afresh after providing a copy of inquiry report and opportunity of hearing and in due compliance of principles of natural justice. (C) Pending hearing and final disposal of this petition, stay implementation and operation of order dated 19.02.2024 ( at Annexure-A) whereby Petitioner and its allied concerned, partners, associates, and directors and/or proprietors are banned/black listed from doing business with Respondent; (D) XXXX (E) XXXX” 3. It is a case where the petitioner is challenging an order dated 19.02.2024 by the respondent-corporation and by the impugned order, the petitioner is banned from participating in the tender process of the respondent. The tender work in question was for resurfacing of roads within the ONGC Colony of their Ahmedabad Asset. 4. The petitioner is engaged in execution of civil contracts and is a classified “AA” Class Government registered Civil Contractor with impeccable record and having completed more than 50 contracts of the respondent-corporation and other public sectors. 5. The petitioner had participated in the tender floated for resurfacing of the road in Eastern and Western sector of the ONGC colony in Ahmedabad asset. The petitioner had bidded in due course and the techno-commercial bid was to be opened on 08.08.2022, which was not done and respondent had sought for validity extension letters which were given by the petitioner and other participating bidders. Thereafter, the tender opening took place on 12.01.2023 and email dated 17.01.2023 a meeting was held and negotiation took place, pursuant to negotiation, the petitioner was allotted the tender. 6. Thereafter, the tender opening took place on 12.01.2023 and email dated 17.01.2023 a meeting was held and negotiation took place, pursuant to negotiation, the petitioner was allotted the tender. 6. Learned Senior advocate Mr.P.K.Jani submitted that the petitioner had faced certain practical difficulties at the ends of the respondent as a result of which the work did not progress as per the schedule and therefore, the respondent issued a later dated 18.04.2023 invoking Clause 18.5 of the tender contract and terminated the contract on the ground of delay in executing the contract. The petitioner did give a detailed reply and also stating the reason for the delay which was on account of not providing of detail Road estimate, the equipments of the earlier contractor were lying there and the petitioner was not given anytime schedule or planning for blocking the roads to carry out the work and diverting the traffic during the work. The petitioner was waiting for the response to his explanation however on 24.04.2023 vide an Email communication, the respondent-corporation indicated their intention to terminate the contract. 6.2. It is submitted that several rounds of discussion took place thereafter and petitioner was permitted to continue the work and complete the same. For that purpose, on 07.06.2023, once again the petitioner addressed an Email for resolving the issues which the petitioner had already pointed out. The petitioner had also provided a timeline by which the work could be completed and by Email dated 05.07.2023., the respondent had accepted the timeline for completing the work. 6.3. As the tender period was to expire on 05.08.2023 and the respondent inquired from the petitioner for extension of such period, to which the petitioner informally informed that he is ready and willing to complete the work post monsoon season. It is submitted that by that time, the petitioner had carried out substantial work still by a communication dated 06.11.2023, the tender contract was terminated by the respondent and the bank guarantee was forfeited. 6.4. The petitioner had challenged the order of terminating the contract by filing a separate petition before this Court, which is still pending but this Court has relegated the petitioner to arbitration. 6.4. The petitioner had challenged the order of terminating the contract by filing a separate petition before this Court, which is still pending but this Court has relegated the petitioner to arbitration. According to learned advocate, the relegation to arbitration was for the purpose of cancellation of the contract and forfeiture of the bank guarantee, but it was still open for the petitioner to challenge by a separate petition the action of banning the petitioner from participating in tender process, thereby amounting to blacklisting the petitioner. 6.5. It is submitted that after the interim order in the previous Writ petition dated 19.12.2023 by this Court, the respondent had issued show cause notice dated 19.12.2023 for blacklisting the petitioner. The petitioner did reply to the show cause notice, but had taken a clear stand that the show cause notice is bereft of the necessary particulars and did not disclose the grounds on which the respondent seeks to take any action. It also did not disclose any facts based on which the relevant clause of the contract was invoked against the petitioner. 6.6. It is submitted that after the reply given by the petitioner on 03.01.2024, there was no communication from the respondent and no opportunity of personal hearing was provided. It is submitted that though the stand of the respondent is of personal hearing being conducted on 12.01.2024 till there is nothing on record regarding communication by the respondent to the petitioner for attending the personal hearing. It is submitted that responsible person from the petitioner office who had visited the office of the respondent for some work on 12.01.2024 at that time, there was interaction with regard to the present contract, but the same cannot be treated as a personal hearing given to the petitioner. 6.7. On 02.02.2024, the petitioner was called upon to show cause and explain the delay in execution of the work and the explanation though given was not taken into consideration by the inquiry officer and the inquiry officer proceeded to submit his report on 09.02.2024 and relaying upon such report, the impugned order dated 19.02.2024 blacklisting the petitioner was passed. It is therefore, argued that the petitioner was not provided with the inquiry report and when the contents of the inquiry report are not known to the petitioner, it was not possible for the petitioner to counter the same. It is therefore, argued that the petitioner was not provided with the inquiry report and when the contents of the inquiry report are not known to the petitioner, it was not possible for the petitioner to counter the same. Not only that, by referring to the inquiry report in the impugned order and the tenure of the show-cause notice of 02.02.2024 indicated pre-determined mind of the respondent to blacklist the petitioner till date, such inquiry report has not been provided to the petitioner. 6.8. Learned senior advocate has argued that the impugned order is that not only adversely affecting the petitioner but the other constituent member of the petitioner firm would now be debarred from participating in any tender process and will obviously have its adverse consequences even on the tender process of other public sector or Government organization as the blacklisting attaches stigma. It is therefore, necessary for the respondent to afford an opportunity to explain and also personal hearing as the action against the petitioner has heavy civil consequences and can be equated to economic death of the petitioner. 6.9 Learned senior advocate submitted that the fact that the respondent-corporation was pre-decided to blacklist the petitioner, is evident from the chronology where notice was issued on 02.02.2024, to which petitioner filed reply on 08.02.2024 and the inquiry report relied upon in the impugned decision dated 09.02.2024. Therefore, the show Cause notice dated 02.02.2024 did not contain any inquiry report and therefore, in his reply dated 08.02.2024, the petitioner was not aware of any inquiry report where as the impugned order is based on such inquiry report. 6.10 Learned senior advocate has argued that merely disqualification from the contract cannot be a ground sufficient for blacklisting, also for the purpose of blacklisting there has to be something more and in the present case, it is the inquiry report. However, such inquiry report was never given to the petitioner. Learned advocate has relied upon the unreported decision of this court in Special Civil Application No. 1235 of 2021 dated 16.03.2021 in his support of the contention that where inquiry report is conclusive base for banning order, non supply of the same would amount to breach in principle of natural justice. 6.11. Learned advocate has relied upon the unreported decision of this court in Special Civil Application No. 1235 of 2021 dated 16.03.2021 in his support of the contention that where inquiry report is conclusive base for banning order, non supply of the same would amount to breach in principle of natural justice. 6.11. Learned senior advocate has also relied upon the decision of the Bombay High Court in case of Sarku Engineering Services SDN BHD v/s. Union of India, reported in, 2016 (5) ABR 417 to contend that the decision arrived at has to be backed with some reason and mere reference to inquiry report is not sufficient. 6.12 It is submitted that the respondent has relied upon extraneous reasonings and in fact with the non-speaking order, the reasonings are not coming on record at all. It is submitted that the petitioner is well reputed contractor and in fact has undertaken several contracts with the respondent-Corporation itself. He has mentioned 32 different contracts worth more than Rs.61 Crores, which the petitioner has undertaken with the respondent and therefore also, the decision to back blacklist the petitioner is on much harsh. 7. A against this, learned senior advocate Mr. Unmesh Shukla for the respondent drew attention of this Court to the dates mentioned in the tender document, particularly indicating the term of the contract for period of 6 months. He has indicated that even when the tender contract period was over, the petitioner was able to complete only one percent of the work. The respondent was therefore justified invoking the relevant clauses of the contract and the decision of the respondent corporation is completely based on the terms of contract with the facts justifying such decision. 7.1 It is submitted that the contract was to be concluded in the time frame agreed upon by the parties which the petitioner has failed and do so. The petitioner was time and again issued communication in writing to do the needful including mobilizing of equipments and manpower, but under some small pretext the petitioner has not complied with the terms of contract living with the respondent-corporation no other option, but to first terminate the contract and undertake work by issuing of fresh tender. This has already been undertaken and the work is now assigned to yet another successful bidder. This has already been undertaken and the work is now assigned to yet another successful bidder. 7.2 Learned advocate submitted that the petitioner was duly issued with the show-cause notice on 18.04.2023 and the petitioner had replied to the show cause notice by his communication dated 24.04.2023, wherein the petitioner had disclosed certain difficulties which were merely an excuses for not carrying out the work. The respondent found such excuses to be very flimsy and in fact demonstrated that petitioner was no more interested in carrying out the work. It is further submitted that though opportunity was given for the petitioner even to complete the work within the time frame, but the petitioner was unable to do so. It is submitted that by letter dated 07.06.2023, the respondent had asked the petitioner to submit a schedule plan within two days and two complete the work within 15 to 20 days in view of the approaching monsoon however the petitioner did not undertake the work but in fact indicated to the respondent that he will commence the work after monsoon season. 7.3 It is submitted that out of the total value of the work, contract being Rs.1 Crore approximately though only work that was carried out was laying of Casing pipes by excavating some portion of the roads and rectification work for one dumper wet mix supplied by the petitioner. The work therefore, actually carried out for few lacs only. From the situation, it would not be possible for the petitioner to undertake the work within the time frame. The respondent was therefore left with no option, but to get the work done from issuing fresh tender. With regard to the personal hearing, learned advocate submitted that the Director of the 12.01.2024, he was permitted to give all the explanation and presented his case before the inquiry officer. 7.4 It is submitted that the respondent was within its rights in terminating the contract of the petitioner in view of his noncompliance with the relevant clauses of the contract and as a necessary consequence, the petitioner was barred from participating in future tender process for period of 2 years. 7.4 It is submitted that the respondent was within its rights in terminating the contract of the petitioner in view of his noncompliance with the relevant clauses of the contract and as a necessary consequence, the petitioner was barred from participating in future tender process for period of 2 years. 7.5 Learned advocate has relied upon decision of the Apex Court in case of State of Odisha and others v/s. Panda Infraproject Limited, reported in, (2022) 4 SCC 393 , in support of the argument that the the power under Article 226 of the Constitution of India has to be exercised cautiously. 7.7 Reliance is placed upon the decision of the Apex Court in case of Grosons Pharmaceuticals (P) Ltd v/s. State of U.P, and others, reported in, (2001) 8 SCC 604 to content that there is no rule to supply the material on the basis of which charges against the petitioner were based, the only requirement is to provide an opportunity of hearing by issuing show cause notice before resorting to blacklisting. 8. Heard learned advocates for the respective parties and perused the documents placed on record. The petitioner appears to be a successful bidder in the tender process floated by the respondent-corporation for resurfacing of road and other miscellaneous civil work at Western and Eastern Sector ONGC Colony, Ahmedabad Assets. The detail and chronology of the tender process is given in tabular form as under:- No Contract Dates 1. Time for submitting a bid 08.08.2022 2. Date and time for opening of techno commercial bid. 08.08.2022 at 15:00 hours 3. Issuance of letter of award for total consideration of Rs.1,83,60,465/- 06.02.2023 4. Date of issuance of Notification of Award (NOA). 06.02.2023 5. Mobilization starting period 06.02.2023 6. Period of contract as per Clause 3.0 6 months 7. Time frame for completion of the work 05.08.2023 9. Accordingly, the petitioner was awarded the tender for total consideration of Rs. 1,83,60,465/-. The petitioner was therefore, required to carry out the tender work and complete the same within period of 6 months from 06.02.2023, which is the date on which the notification of award was made. The petitioner was also required to submit performance bank guarantee of 3% of the tender value for period of 12 months with additional 60 days. 10. The petitioner was therefore, required to carry out the tender work and complete the same within period of 6 months from 06.02.2023, which is the date on which the notification of award was made. The petitioner was also required to submit performance bank guarantee of 3% of the tender value for period of 12 months with additional 60 days. 10. The petitioner submitted the bank guarantee on 20.03.2023 and therefore, the petitioner was to commence the work on March 2023. On 18.04.2023, the respondent issued notice to the petitioner invoking clause 18.5 of the contract. There were exchanges of communications from both sides and ultimately the period for carrying the work expired on 05.08.2023. The respondent did communicate the petitioner to complete the balance work at the earliest, such communication was made via Email dated 05.10.2023, however as the work did not progress on 06.11.2023 the respondent terminated the contract and forfeited the bank guarantee. 11. The aforesaid action of the respondent was a subject matter of Special Civil Application No.20928 of 2023. Pending the petition, the respondent also passed an order dated 11.12.2023, suspending the business dealing with the petitioner. This was also challenged by way of amendment in the main petition. Ultimately, by order dated 19.12.2023, a detail order came to be passed by the coordinate bench of this court. 12. While passing the order dated 19.12.2023, the aforesaid petition was kept pending still the Court proceded to pronounce upon the issue of termination as well as suspending the business dealings with the petitioner. Insofar as the termination of contract is concerned, this Court had opined that the Court would not entertain the decision of termination of contract as per the communication dated 06.11.2023 and 15.01.2023 and the petition was not entertained enabling the petitioner to invoke the provisions of arbitration clause of the contract. 13. Insofar as the issue of suspending the business dealings with the petitioner, it would be appropriate to reproduce the relevant paras of the aforesaid order:- “7. While the court concluded the aforesaid aspect as above, the other limb of the challenge is decision on part of the ONGC, whereby it has communicated to the petitioner that business dealings with the petitioner are stopped. 8. The said decision is communicated by impugned communicated dated 11.12.2023. It says that there shall be suspension of business dealings with the petitioner pending completion of inquiry process. 8. The said decision is communicated by impugned communicated dated 11.12.2023. It says that there shall be suspension of business dealings with the petitioner pending completion of inquiry process. It further mentions that inquiry has been instituted as per Clause No. 18.6 of the general conditions of the contract. 8.1 Clause 18.6 of the general conditions of the contract deals with consequence of termination, provided as under, “18.6 Consequences of termination: In all cases of termination herein set forth, the obligation of the ONGC to pay shall be limited to the period upto the date of termination. Notwithstanding the termination of this Agreement, the parties shall continue to be bound by the provisions of this Agreement that reasonably require some action or forbearance after such termination. In case of termination of Contract herein set forth, except under 18.1 and 18.2 and / or annulment of the contract due to non-submission of Performance Security (as per clause 36 of Part-I), the following actions shall be taken against the Contractor. i.ONGC shall conduct an inquiry against the Contractor and consequent to the conclusion of the inquiry, if it is found that the fault is on the part of the Contractor, then they shall be put on holidy [i.e. neither any tender inquiry will be issued to such a Contractor by ONGC against any type of tender nor their offer will be considered by ONGC against any ongoing tender(s) where contract between ONGC and that particular Contractor (as a bidder) has not been concluded] for a period of two years from the date the order for putting the Contractor on holiday is issued. However, the action taken by ONGC for putting that Contractor on holiday shall not have any effect on other ongoing contract(s), if any with that Contractor which shall continue till expiry of their term(s). ii.Pending completion of the inquiry process for putting the Contractoron holiday, ONGC shall neither issue any tender inquiry to the defaulting Contractor nor shall consider their offer in any ongoing tender.” 8.2 While it is true that snapping of business dealings with the petitioner and barring the petitioner from dealing with the ONGC could be said to have the genesis in the said tender condition No. 18.6, however, when closely read, the condition could be viewed as a mechanism, whereby post-contract termination, as a penal action, is provided for. 8.3 The action which may follow as per Clause 18.4 has to precede the conducting of inquiry against the contractor and its consequence to the conclusion of inquiry, that the action may follow. 8.4 In course of the hearing, learned senior advocate for the Corporation fairly submitted that the Corporation in fact wanted to conduct the inquiry. It goes without saying that inquiry contemplated to be conducted under the aforesaid provisions has be in due compliance with the principles of natural justice. 8.5 The grievance on the part of the petitioner is to be countenanced as valid that at this stage even the inquiry is not initiated, yet the order as aforesaid is passed. It also goes without saying that in the inquiry to be conducted the petitioner shall have all the rights to defend against the impugned penal order. 9. What is weighed is that the decision reflected in the communication dated 11.12.2023, is in its kind and nature, is the decision of black-listing the petitioner contractor. Stopping the business dealing would mean that the petitioner would be debarred from business dealings. This is indeed a penal action, and casts a kind of business stigma without conducting of inquiry. 9.1 In the aforesaid view, the petition deserves further and final consideration in relation to the said aspect. 10. Rule returnable on 25.3.2024. 10.1 Learned advocate Mr. Rituraj Meena waives service of Rule on behalf of the respondent Corporation.- 11. While the court finds the action on part of the respondent- Corporation to debar the petitioner from business dealings, to be prima facie illegal in light of non-holding of the inquiry and adverting to the impugned decision straightway, without going into the merits thereof, the said decision shall remain stayed, subject to the following further directions, (i) The Corporation may, if advised, conduct the inquiry contemplated by it. (ii) Inquiry shall be held after giving due opportunity to the petitioner to defend its case and in full compliance of the principles of natural justice. (iii) The inquiry shall be completed within two months from today. (iv) The Court has not gone into the factual merits of the decision of debarment. (v) It will be open for either side, at the end of the inquiry, to challenge the said decision with appropriate recourse in accordance with law.” 14. (iii) The inquiry shall be completed within two months from today. (iv) The Court has not gone into the factual merits of the decision of debarment. (v) It will be open for either side, at the end of the inquiry, to challenge the said decision with appropriate recourse in accordance with law.” 14. At this stage, it would be appropriate to reproduce herein the relevant clause of the contract pertaining to termination:- “18. TERMINATION 18.1 Termination on expiry of the CONTRACT This Agreement shall be deemed to have been automatically terminated on the expiry of the CONTRACT period unless the ONGC has exercised its option to extend this CONTRACT in accordance with the provisions, if any, of this CONTRACT. 18.2 Termination on account of force majeure ONGC shall have the right to terminate this CONTRACT on account of Force Majeure as set forth in clause 23. 18.3 Termination on account of insolvency In the event the CONTRACTOR or its collaborator at any time during the term of this Agreement becomes insolvent or makes a voluntary assignment of its assets for the benefit of creditors or is adjudged bankrupt, then the ONGC shall, by a notice in Writing have the fight to terminate this CONTRACT and allthe CONTRACTOR's rights and privileges hereunder, shall stand terminated forthwith. 18. 4 Termination for unsatisfactory performance If the ONGC considers that the performance-of the CONTRACTOR is unsatisfactory or, not upto the expected standard, the ONGC shall notify the CONTRACTOR in writing and specify in detail the cause of such dissatisfaction. The ONGC shall have the option to terminate this Agreement by giving 30 days’ notice in writing to the CONTRACTOR, ff, CONTRACTOR fails to comply with the requisitions contained in the said written notice issued by the ONGC. 18.5 Termination for delay in mobilization Successful bidder shall be required to mobilize complete equipment along with crew (only manpower / crew in case of Operation and Maintenance Contracts) for commencement of Services at the specified site within a maximum number of 7 days from the date of individual purchase order issued against the contract. If the CONTRACTOR (successful bidder) fails to mobilize as above, ONGC shall have, without prejudice to any other clause of the CONTRACT, the right to terminate the contract. If the CONTRACTOR (successful bidder) fails to mobilize as above, ONGC shall have, without prejudice to any other clause of the CONTRACT, the right to terminate the contract. 18.6 Consequences of termination In all cases of termination herein set forth, the obligation of the ONGC to pay shall be limited to the period upto the date of termination. Notwithstanding the termination of this Agreement, the parties shall continue to be bound by the provisions of this Agreement that reasonably require some action or forbearance after such termination. In case of termination of Contract herein set forth, except under 18.1 and 18.2, and/ or annulment of the contract due to non-submission of Performance Security (as per clause 36 of PART-l), following actions shall be taken against the Contractor: . I. ONGC shall conduct an inquiry against the Contractor and consequent to the conclusion of the inquiry, if it is found that the fault is on the part of the Contractor, then they shall be put on holiday [i.e neither any tender enquiry will be issued to such a Contractor by ONGC against any type of tender nor their offer will be considered by ONGC against any ongoing | tender(s) where contract between ONGC and that particular Contractor (as a bidder) has not been concluded] for a period of two years from the date the order for putting the Contractor on holiday is issued. However, the action taken by ONGC for putting that Contractor on holiday shall not have any effect on other ongoing contract(s), if any with that Contractor which shall continue till expiry of their term(s). ii. Pending completion of the enquiry process for putting the Contractor on holiday, ONGC shall neither issue any tender enquiry to the defaulting Contractor nor shall consider their offer in any ongoing tender.” 15. This Court presently would be concerned with the application of para 18.6 mainly as the issue of termination has already been dealt with by this Court as referred to in the preceding paras. Clause 18.6 provides for conducting of an inquiry against the contractor and consequent to the conclusion of the inquiry, if it is found that the fault is on the part of contractor then the contractor shall be put on holiday. Clause 18.6 provides for conducting of an inquiry against the contractor and consequent to the conclusion of the inquiry, if it is found that the fault is on the part of contractor then the contractor shall be put on holiday. This clause will have to be read together with the directions contained in the order dated 19.12.2023 in Special Civil Application No.20928 of 2023, specifically the directions contained in para 11(ii), which provides for holding an inquiry after giving due opportunity of hearing and full compliance with the principles of natural justice to enable the petitioner to defend his case. 16. Coincidentally, on the very day i.e. on 19.12.2023, the Inquiry Officer issued a show cause Notice (Annexure-U) to answer within 15 days as to why business dealing with the petitioner should not be placed in banning list. The said notice also provided for request for personal hearing after the submission of the reply. On 03.01.2024, the petitioner filed is reply to the show cause notice and had made a specific request in the penultimate para for affording an opportunity of personal hearing. Again vide communication dated 02.02.2024 by the Inquiry Officer seeking further reply to the queries for completion of inquiry process., it is in this notice that clause 18.5 of the contract was invoked. This notice also alleged non mobilization of Manpower and equipments and the work completed only to the extent of minor preparatory work and the main carpeting work not even started and therefore, explanation was called Sr.No . Date OMGC Email/Letter PMP Email/Letter 1. 113.03.2023 ONGC Email for speed up the process of work. - 2. 15.03.2023 - PMP email of request to provide the detailed estimate of the work to prepare proper planning of the work execution. Also requested to provide space to create temporary godown/storage to store the material required for the execution of the work. 3. 17.03.2023 ONGC email response of our email dated 15.03.2023 stating that “schedule of quantities is attached with the tender document and must be taken care at your end. Location for temporary store shall be shown to your authorized person at site. - 4. 22.03.2023 - PMP reply of the email dated 17.03.2023 stating that “providing us the P.O. and detailed schedule. And we are waiting for the temporary storage space/godown to store our material which was not shown to our authorized person.” 5. Location for temporary store shall be shown to your authorized person at site. - 4. 22.03.2023 - PMP reply of the email dated 17.03.2023 stating that “providing us the P.O. and detailed schedule. And we are waiting for the temporary storage space/godown to store our material which was not shown to our authorized person.” 5. 18.04.2023 ONGC sent a show cause notice for the work. - 6. 27.04.2023 - PMP reply of the show cause notice stating the issues faced at the time of work execution like” 1. The detailed road estimate is not provided till date. 2. Some of the roads are equipped by the other contractor’s materials and machineries at site. 3. We did not receive any road block time schedule/planning from the ONGC. 4. We did not receive any vehicle traffic divert planing in the time limit of the work. And we again requested to solve out issue then the time limit will be considered after the same. Note: As clearly shown in our reply dated 27.04.2023 to the show cause notice, the work was not commenced due to lack of requisite documents and clear site possession. According to the contract conditions, without clear site possession, the date of site handover can be considered null and void. It is also evident that we did not violate Clause No.18.5 of the OGCC. 17. Here also, the petitioner made a request for opportunity of personal hearing so as to explain the documents which are annexed along with the explanation. 18. Before the Court reflects upon the impugned order of blacklisting the petitioner, the Court may refer to and rely upon decision of this Court in case of Royal Infra Engineering Pvt Ltd v/s. Surat Municipal Corporation being an oral order dated 09.09.2021 in Special Civil Application No.10412 of 2018. The Court was examining the tender contract of construction of Carpet/Recarpet layer of various roads under the municipal corporation, wherein the contractor was blacklisted. The Court was examining the tender contract of construction of Carpet/Recarpet layer of various roads under the municipal corporation, wherein the contractor was blacklisted. The consequence of blacklisting and what is the requirement for such blacklisting is observed by this Court by referring to the decision of the Hon’ble Supreme Court in Erusian Equipment & Chemicals Ltd. v. State of West Bengal and Anr., reported in, (1975) 1 SCC 70 to hold that an order of blacklisting casts a slur on the party being blacklisted and is stigmatic and therefore, it would be unreasonable and arbitrary to visit every contractor, who is in breach of his contractual obligation with the consequences of blacklisting. 18.1 The Court also took into consideration the decision of the Apex Court in Sarku Engineering Services (supra), wherein also the Division Bench of Bombay High Court was considering the issue of blacklisting of the contractor for major delay in execution of the contract. This Court observed that the question whether the petitioner therein was in fact responsible for the delay was an disputed question that was pending adjudication before an arbitral tribunal and therefore, this Court in para-57 has held as under:- “57 Plainly, if a contractor is to be visited with the punitive measure of blacklisting on account of an allegation that he has committed a breach of a contract, the nature of his conduct must be so deviant or aberrant so as to warrant such a punitive measure. A mere allegation of breach of contractual obligations that is disputed, per se, does not invite any such punitive action.” 19. The Court may also take into consideration the decision of the Apex Court in oral judgment dated 16.03.2021 in Special Civil Application No.1235 of 2021 in case of Ratnam Energy Private Limited v/s. Oil and Natural Gas Corporation Limited, wherein also the Court was considering the tender for Charter Higher of 06 nos. of Work Over Rigs at various assets of the ONGC. The tender was called in question on account of the allegation of having tendered the forged document with regard to which inquiry was initiated. This was the basis for banning the order however, the documents which were the genesis of the proceedings were never furnished to the petitioner therein. of Work Over Rigs at various assets of the ONGC. The tender was called in question on account of the allegation of having tendered the forged document with regard to which inquiry was initiated. This was the basis for banning the order however, the documents which were the genesis of the proceedings were never furnished to the petitioner therein. On the facts, the Court observed that the copy of inquiry report was not supplied to the petitioner at the relevant time, but the same was placed on Court’s report at the stage of filing of sur-rejoinder. This Court concluded that as the inquiry report being a conclusive based for banning the order, ought to have been provided to the petitioner before any further action was taken on its basis. The Court therefore, held in para-19 as under:- “19. It is thus quite clear from the entire gamut of facts that the petitioner is though expected to meet with the allegations of having tendered the forged documents and yet, the very edifice on which this inquiry was initiated, being the complaints have not been furnished to the Petitioners. It is an irony that the basis for issuance of show cause notice which eventually culminated into passing of banning order, has not been provided to the petitioner. The very representations/complaints which are the genesis of the proceedings were neither shown nor furnished nor shared during the entire proceedings with the petitioner. It is insufficient to make a reference of the same in the first communication in which the reply of the petitioner has been sought. So much so that the copy of inquiry report also has not been supplied to the petitioner and for the first time, at the time of filing the sur-rejoinder before this Court, the same has been placed on record. The inquiry report which is otherwise a conclusive base for banning the order ought to have been provided to the petitioner before any further action was taken on strength thereof. This undoubtedly and unfailingly can be termed as the action wholly in breach of principles of natural justice. The person cannot be condemned unheard and any insufficient supply of the material or non-supply of the material surely and undoubtedly and seriously would jeopardize the right of the person to defend himself. This undoubtedly and unfailingly can be termed as the action wholly in breach of principles of natural justice. The person cannot be condemned unheard and any insufficient supply of the material or non-supply of the material surely and undoubtedly and seriously would jeopardize the right of the person to defend himself. Therefore, to say that the entire procedure in no manner has prejudiced the petitioner, is an unsustainable proposition.” 19.1 This undoubtedly and unfailingly can be termed as the action wholly in breach of principles of natural justice. The person cannot be condemned unheard and any insufficient supply of the material or non-supply of the material surely and undoubtedly and seriously would jeopardize the right of the person to defend himself. 20. The respondent did rely upon a very old decision in case of Keshav Mills Co.Ltd. v/s. Union of India and others, reported in, (1973) 1 SCC 380 on the administrative law which dealt with the question whether the appellants therein were entitled to get the copy of the report. With due deliberation on the issue from both the sides, in para-21, the Apex Court concluded that it was not possible to lay down any general principle on the question and the answer to this question must always dependent on the facts and circumstances of the case whether the report should be furnished or not must therefore depend on every individual case on the merits of that case. In the opinion of the Court, the facts of this case would clearly indicate that the impugned decision is substantially based on the inquiry report and therefore, non-supply of the same has precluded the petitioner from answering on the points adverse to him. 21. The Court may thereafter refer to the impugned order dated 19.02.2024 which is termed as banning order by the respondent. The court may reproduce the relevant paras of the banning order as under:- “7. AND WHEREAS, ON 05.12.2023, ONGC appointed an Enquiry Officer for conducting an impartial and independent enquiry in aforesaid matter. 8. AND WHEREAS, vide letter dated 11.12.2023, ONGC informed the Contractor about initiation of the banning process and also conveyed the Contractor about suspension of business dealings with him pending completion of enquiry process. AND WHEREAS, ON 05.12.2023, ONGC appointed an Enquiry Officer for conducting an impartial and independent enquiry in aforesaid matter. 8. AND WHEREAS, vide letter dated 11.12.2023, ONGC informed the Contractor about initiation of the banning process and also conveyed the Contractor about suspension of business dealings with him pending completion of enquiry process. 9 AND WHEREAS, a fair and impartial inquiry was conducted by Enquiry Officer, wherein opportunity was given to the Contractor by issuing show cause notices dated 19.12.2023 and 02.02.2024 as to why the Contractor along with its allied concern(s), partner(s) or associate(s) or director (s) or proprietor(s) should not be banned from future dealings with ONGC. The notice was replied back by the Contractor on 03.01.2024 and 62.02.2024 respectively. The Enquiry Officer has also conducted personal hearing on 12.01.2024 with representatives of the Contractor to hear the stand of the Contractor. : 10. AND WHEREAS, after considering all the documents on record, provisions of tender, show cause notices and replies submitted by the Contractor to the show cause notice and subsequent aforementioned communications, the Enquiry Officer vide his Enquiry Report dated 09.02.2024 has recommended for banning the Contractor along with its allied concern(s), partner(s) or associate(s) or director (s) or proprietor(s), for a period of (2) two years (minus 18 days) from the date of issue of banning order i.e. 19.02.2024 till 31.01.2026. 11. AND WHEREAS, the aforesaid recommendation of the Enquiry Officer has been accepted by the Competent Authority of ONGC.” 22. The Court finds two errors in the aforesaid order, firstly reference is made to a personal hearing given to the petitioner on 12.01.2024. However, there is nothing on record to indicate that in which manner the petitioner was informed about the date of personal hearing though the petitioner in his reply to both the show cause notices had pleaded for a personal hearing. Not only that, even the order of this Court dated 19.12.2023 called upon the respondent to comply with the principles of natural justice, which in the opinion of the Court would also include a personal hearing as the show cause notice itself contemplated for a personal hearing. 23. In affidavit-in-reply filed by the respondent in context of personal hearing, the respondent has stated as under:- “31.31. 23. In affidavit-in-reply filed by the respondent in context of personal hearing, the respondent has stated as under:- “31.31. With respect to contentions raised in paragraph 3.32 & 4.10, it is denied that the Respondent has never been granted any opportunity of pearonal hearing on 12.01.2024. The Petitioner is trying to mislead this Hon'ble Court by stating that on 12.01.2024, Madhusudhan J. Patel, director of petitioner had visited the office of Respondent to meet officer of civil | section which is on third floor and Enquiry Officer sits on the first floor. It is hereby submitted that the Petitioner is well aware the floor on which’ Enquiry Officer sits and it is Mr. Mukeshkumar Ishvarklal Patel, director! - of the Petitioner who had visited the office of Enquiry Officer on the first floor. The Petitioner was therefore given full opportunity for a personal. hearing on 12.01.2024 for clarifying the matter and presenting his case: - before the Enquiry Officer. The Enquiry Officer in | its letter dated 02.02.2024 had informed regarding conduct of personal hearing of the Petitioner. It is further to submitted that the Petitioner responded to this communication vide letter dated 08.02.2024 wherein the Petitioner never refused that the personal hearing took placing on 12.01.2024. Therefore, the submission of the Petitioner that no personal hearing was held on 12.01.2024 is completely false, incorrect and misleading the court.” 24. In the opinion of the Court, what is mentioned in the aforesaid para cannot be considered as an opportunity of personal hearing. Therefore, the order cannot be said to be in consonance with the directions of this Court in pending petition being Special Civil Application No.20928 of 2023. 25. The another error is when the impugned order refers to the report of the Enquiry Officer dated 09.02.2024. The Court may observe the dates from this perspective that on 19.12.2023 and on 02.02.2024, the Enquiry Officer did issue the show cause notice containing the details regarding the failure of the petitioner, it is post these two dates that the inquiry report was available on 09.02.2024. There is nothing on record that after 09.02.2024 any hearing has taken place and straight away the impugned banning order was passed. 26. It is therefore, coming on record that the inquiry report was never supplied to the petitioner so as to enable him to respond to the same. There is nothing on record that after 09.02.2024 any hearing has taken place and straight away the impugned banning order was passed. 26. It is therefore, coming on record that the inquiry report was never supplied to the petitioner so as to enable him to respond to the same. The Court had by a separate order called for the inquiry report in the sealed cover which the Court has perused. 4) Conclusion: From all above evidence & through personal enquiry / hearing, Enquiry Officer has come to the following conclusion:— A) Despite several follow-up & reminders from ONGC, the contractor did not complete the stipulated contractual work within the stipulated contractual period (06.02.23 to 05.08.23). Further, the contractor even did not start the carpeting work of the road & carried out only some preparatory work. ONGC kept on following up & reminding the contractor & the contractor kept on delaying the work execution. B) Contractor started the work very late. Though the LoA was placed on | 06.02.23, contractor did not start work till April 2023 (i.e. after more than 02 months have passed) which ts clear violation of GCC Clause no. 18.5 of contract wherein Contractor should have started the work within 7 days of award of NOA. , C) The scheduled date of completion of the contract was 05.08.2023. But it is observed that contractor did not even execute 5% of the contractual job. This clearly indicates non-performance of the contractor against GCC Clause 18.4 despite several reminders and show cause notices sent by ONGC. D) Contractor did not seek extension of contract period. Only through mail dated 12.08.23 contactor replied that they will execute the work as soon as possible. They said weather was not good & requested ONGC to wait till weather becomes good, without seeking contract duration extension from ONGC with a definite date/ timeline, which indicates lack of seriousness an part of the contractor. E) Contrary to the contractor’s claim (through reply to showcause notice) of “completing substantial part of the tender work”, the contractor has actually carried out only a small part of the whole assigned contractual work. Contractor carried out only small preparatory work like digging at road crossings, laying of casing pipe (with pipe provided by ONGC), cementing & covering the excavated portion at some places. F) The reasons cited by the contractor for delay/ nonexecution of work lack coherent logic. Contractor carried out only small preparatory work like digging at road crossings, laying of casing pipe (with pipe provided by ONGC), cementing & covering the excavated portion at some places. F) The reasons cited by the contractor for delay/ nonexecution of work lack coherent logic. Vide reply dated 08.02.2024, the contractor submitted that they could not complete the work due to not receiving. road estimate copy, clear site possession, road block time schedule & traffic divert plan from ONGC. However, the same points were earlier replied & clarified point wise by ONGC vide mail dated 04.06.23. Through reply mail dated 07.06.23 contractor did not refute any reply of ONGC and stated that they had started the work with full force & subsequently also promised to complete the work in 15-20 days’ time. Contractor mentioned about Holi holiday & Biporjoy cyclone. However, these events lasted only for few days & contractor did not seek any extension of contract duration on account of these events. G) The contract-awarding organization ONGC has suffered loss in the process in terms of delay / non-execution of the project, waste of valuable time & manpower resources and opportunity cost. It is observed that Eastern & Western sector road conditions are of significant importance in terms of safety of the users including ladies, elderly persons & school going children and 3 schools are operational in this premises. Despite repeated reminders, follow-ups & emphasize by ONGC about timely completion of the project, contractor failed to execute the stipulated contractual work. It is concluded that the fault is on the part of the contractor and therefore, suitable action may be taken against the contractor as per contract provisions i.e. GCC clause 18.6 1) of the contract. 5) Recommendations ; . It is concluded that the fault is on the part of the contractor and therefore, suitable action may be taken against the contractor as per contract provisions i.e. GCC clause 18.6 1) of the contract. 5) Recommendations ; . Based on the examination of the case from case file, physical investigation, personal hearing enquiry with the officers of usér section (i.e. Civil Engineering Department, ONGC, Ahmedabad Asset), personal hearing enquiry & written response received from vendor M/s PMP Infratech Private Limited, following action is recommended : It is proposed that all business dealings with M/s PMP Infratech Private Limited, Ahmedabad (vendor code: 813784), along with its allied concerns, partners, Associates, Directors or Proprietors involved in any capacity may be discontinued / suspended by ONGC and the contractor may be put on holiday / banning for a period of two years from the date of issuc of order for putting the firm on holiday. However, the action taken by ONGC for putting the contractor on holiday shall not have any effect on other ongoing contract(s), if any, with the contractor which shall continue till expiry of their term(s).” 27. In the opinion of the Court, non-providing of the inquiry report to the petitioner has infringed upon his right not only as per the clause of the contract, but is also not in consonance with the directions contained in para 11 of the order of this Court dated 19.12.2023 in Special Civil Application No.20928 of 2023. 28. The Court finds discussion in detail about the entire issue of the tender process. It also refers to the stand taken by the petitioner. It relies upon various documents and analyses the provision of the clauses of contract, but there is no reference to any hearing or opportunity of personal hearing. In opinion of the Court, as the inquiry report is one of the important documents on which reliance is placed by the respondent, the same ought to have been given to the petitioner as a part of the Audi Alteram Partem. The sealed cover was opened and ordered to be re-sealed and kept in the record. At the request of learned advocate for the respondent, it is recorded that it would be open for the respondent to take any action in accordance with law and upon following the principles of natural justice. 29. The sealed cover was opened and ordered to be re-sealed and kept in the record. At the request of learned advocate for the respondent, it is recorded that it would be open for the respondent to take any action in accordance with law and upon following the principles of natural justice. 29. The Court therefore, finds that the facts of the case are appropriate to interfere with the impugned decision of the respondent dated 19.02.2024. Hence, the petition is allowed. The impugned order dated 19.02.2024 deserves to be and the same is hereby quashed and set aside. Rule is made absolute. Consequentially, it is held that the petitioner is not debarred from participating in the tender process of the respondent for the period of two years as is provided in the impugned order. 30. In view of the order passed in the main matter, Civil Application does not survive. Hence, the Civil Application stands disposed of as not survived.