M/S Om Sai Engicons v. The State Of Bihar, Through Principal Secretary Rural Works Department, Bihar Patna & Ors.

petitioner firm has been blacklisted. Patna High Court CWJC No.1977 of 2013 (8) dt.27-08-2013 2 As per pleadings, the petitioner is engaged contractual works and is enlisted as such with the respondent. After completing the tender process initiated by Notice Inviting Tender, the petitioner was adjudged as the lowest bidder for the item(s)/work(s) at serial nos. 1 and 8 of the NIT. Even thereafter, the works were not assigned to the petitioner. The petitioner submitted an application (Annexure-6). The respondents instead of allocating the works, served him with a notice dated 14.01.2013 (part of Annexure-7 series) seeking his reply. The petitioner was called upon to explain as to why his registration be not cancelled since the partner of the petitioner firm namely Subhash Prasad Singh was a convict. In other words, the petitioner was called upon to explain the charge that registration of the firm with the Department was procured by submitting wrong/false documents and suppression of material facts. The notice was issued under the provisions contained in Bihar Registration of Contractors Rules (Rural Works Department) 2007 (for short “the Rules”) copy whereof has been enclosed as Annexure-8. The petitioner submitted his reply thereto. The respondents thereafter passed the impugned order dated 23.01.2013 whereby the petitioner firm was placed in blacklist. Aggrieved thereby, the present writ petition has been filed. Patna High Court CWJC No.1977 of 2013 (8) dt.27-08-2013 3 A counter affidavit has been filed on behalf of respondent nos. 1 to 8 as well as respondent no. 9. Heard Mr. Shrawan Kumar for the petitioner, A.C. to S.C. 6 for the State and Mr. Rajeev Roy for respondent no. 9. Learned counsel for the petitioner submitted that the impugned action has been taken on the complaint made by respondent no. 9. The show cause notice (Annexure-7) pertained to Rule 6(1) of the Rules which deals which deals with a situation where the partner/owner of the firm has been removed from government service whereas the impugned action has been taken on altogether different allegation/charge. It has thus been submitted that the order has been passed without affording any reasonable opportunity to the petitioner to submit his cause thereagainst. Mr. Kumar also made submissions on the merit of this application relating to the said charge. It has been submitted that the petitioner was tried and convicted by the learned Trial Court. The appeal was preferred thereagainst by the petitioner (partner of the petitioner firm). The Appellate Court directed the petitioner to be given benefit under Section 3 of the Probation of Offenders Act. It is thus submitted that the disqualification on account of conviction shall stands effaced. Learned counsel for the respondent no. 9, on the other Patna High Court CWJC No.1977 of 2013 (8) dt.27-08-2013 4 hand, submitted that such disqualification shall not stand effaced. It has also been submitted that the petitioner has an effective and statutory remedy of filing appeal against the impugned order. This Court in view of the above may not invoke its extraordinary and discretionary writ jurisdiction and the petitioner be relegated to avail the said remedy. He relies in this regard on the following judgments:- (i) (2012) 8 S.C.C. 524 (Cicily Kallarackal versus Vehicle Factory) (ii) (2011) 14 SCC 337 (Nivedita Sharma versus Cellular Operators Association of India and Others) After hearing the parties and on a perusal of the materials placed on record, it appears the order impugned in the present application is appealable under the Rules in terms of Rule 11(e) thereof which reads thus:- “11(e). The contractor can file an appeal within thirty days against the punishment related black- listing/demotion/suspension Commissioner and Secretary/Secretary of Department.” before The issues raised in this application can very well be raised in the appeal for consideration and adjudication by the Appellate Authority in accordance with law. This Court, Patna High Court CWJC No.1977 of 2013 (8) dt.27-08-2013 5 therefore, refrains from exercising its extraordinary and discretionary writ jurisdiction to interfere with the order impugned in the writ petition. The petitioner should assail the said order before the appellate authority. Consequently, the application is disposed of by the following order:- Let the petitioner file appeal against the order dated

23.01.2013 (impugned in the writ petition) before the Appellate Authority (respondent no. 1) within three weeks whereafter the said respondent shall consider and dispose of the same on its own merit in accordance with law as quickly as possible preferably within six (06)weeks of such filing/presentation. This Court leaves it to the discretion of the Appellate Authority to grant personal hearing to the petitioner, if so requested, before disposing of the appeal. In case the Appellate Authority defaults in disposing of the appeal within the aforesaid time, the order blacklisting the petitioner shall become inoperative until disposal of the appeal by the Appellate Authority in the light of the present order. There shall be no order as to cost(s). Pankaj/- (Kishore Kumar Mandal, J)