Sanjay Srivastawa v. The Union Of India & Ors.

Patna High Court CWJC No.22411 of 2012 (4) dt.14-08-2013 Page 2 /6 petitioner‟s firm has been black listed. Pursuant to advertisement inviting tender petitioner who is engaged in execution of contract job(s) applied and was awarded work relating to laying of Floating Pantoon Gangway system at Varanasi Terminal location on NW-1 ( River Ganga). The work order was issued by the respondent –IWAI on 22-02-2010. The petitioner took up the work and executed the same. On 12-07-2010, a spot inspection by the officials of the IWAI was carried out. The work executed by the petitioner was found satisfactory. A report in this regard was prepared which is annexed at Annexure-2. On 03-12-2011, the respondent - Director of IWAI issued the completion certificate ( Annexure- 3). It is the case of the writ petitioner that in the light of the inspection report (Annexure-2) and the completion certificate (Annexure-3) the respondent -IWAI made payments of the amount due for execution of the work assigned to the petitioner under an agreement. Several months thereafter an inspection is said to have been carried out of the work executed by the petitioner and all of a sudden the impugned order dated 27-09-2012 (Annexure-4) was passed whereby the petitioner‟s firm was black listed. Learned counsel for the petitioner submits that before black listing the petitioner‟s firm no notice was ever issued by Patna High Court CWJC No.22411 of 2012 (4) dt.14-08-2013 Page 3 /6 the authorities of the IWAI granting the petitioner an opportunity to submit his cause thereagainst. It has been submitted that the order is vitiated on that count. He relies in this regard on the following judgments:- (i) (ii) AIR 1975 SC 266 ( M/S Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr.) 2013(2) PLJR 753 ( HCL Infosystems Limited vs. The Bihar State Electricity Board, Patna & Ors). Learned counsel for the respondents, on the other hand, submitted that a joint surprise check was subsequently conducted by the CBI Lucknow along with the senior officials of the respondent –IWAI wherein diverse deficiencies were found in execution of the work inasmuch as several substandard materials/items were used by the petitioner in connection with the said work. The respondents have in particular placed reliance on para 11 of the counter affidavit which reads thus:- “11. That the statement made in paragraph 7 are out and out false and hereby denied and in reply it is stated that as M/S Pooja Repairing Works was blacklisted vide Memo No. IWAI/Estt./Vig.08/2010 dated 27-09-2012 and the petitioner was debarred Patna High Court CWJC No.22411 of 2012 (4) dt.14-08-2013 Page 4 /6 from undertaking any work of the IWAI for a period of 5 ( five ) years from the date of issue of issue of letter dated 27-09-2012, as deficiency in execution of work of construction of Pantoon Gatway system at Rajghat, Varanasi were observed in a joint surprise check conducted by CBI, Lucknow. The deficiency observed by CBI were further investigated and deficiency in the execution of work as revealed by the surprise check were found to be correct. It is to further mentioned that a tender was floated for laying of Pontoon gateway at Rajghat, Varanasi on National Waterways No.-1. The work order for construction of floating Pontoon gateway at Rajghat Varanasi was awarded to M/S Pooja Repairing Works, Patna at a cost of Rs. 13,60, 735/-( Thirteen lacs Sixty thousand and seven hundred thirty five only) by IWAI, Regional Office, Patna. On receipt of reliable information about execution of work in a sub-standard manner of laying of floating Pontoon gangway at Rajghat, joint surprise check was Varanasi, a conducted by CBI on 26-08-2010 . CBI found that as per tender document wooden sleeper ( Sal wood) used for laying gangway were not as per the specification mentioned in the contract/agreement. Further as per tender specification wooden beats ( sal wood beating) for side railing support were found to be lacking as per contract/agreement specification. Further, CBI also found that the concerned officers of IWAI have made wrong entries in the Measurement Book to cover up the actual size of the Sal wood sleeper and edging contractor. It was found that the items supplied by the contractor i.e. M/S Pooja Repairing Works were definitely in violation of the tender/contract specifications and were sub-standard. Further the officials of the IWAI also failed to discharge their supplied by Patna High Court CWJC No.22411 of 2012 (4) dt.14-08-2013 Page 5 /6 duties and could not maintain proper supervision or the work executed by the contractor and as a result wrong entries were made in the measurement book and bill raised by the contractor was processed and passed by the officers of IWAI, which has subjected IWAI execution of work by M/S Pooja Repairing Works. to suffer of floating Following the short comings noticed by CBI, in execution of work of laying Pontoon Gangway system at Varanasi, a preliminary enquiry was conducted at Head office. Based on the facts, it was recommended in the enquiry the contractor M/S Pooja report Repairing Works, Patna and also its owner should be debarred and blacklisted from any work under IWAI for a period of five years. Accordingly letter dated 27-09-2012 was issued in this regard.” In M/S Erusian Equipments ( supra) the Apex Court held as under in para 20 of the report ( at p. 269): the Government “20. Blacklisting has the effect of preventing a person from the privilege lawful and advantage of entering relationship with purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.” In HCL Infosystems Limited ( supra) a Bench of this Court held the same view. In view of the aforesaid, it appears the law in this Patna High Court CWJC No.22411 of 2012 (4) dt.14-08-2013 Page 6 /6 regard is now well -settled. Any order blacklisting the petitioner or the firm has serious civil consequences. The respondents are, therefore obliged to give an opportunity to the petitioner to submit his cause/explanation before passing an order of blacklisting. On going through the averments made in the counter affidavit, it does not appear that the petitioner was ever afforded an opportunity to submit his show cause against the proposed penalty of blacklisting. Obviously, the order impugned suffers from the vice of non compliance of Rules of natural justice. Resultantly, this Court is persuaded to interfere with that part of the order dated 27-09-2012 whereby the petitioner‟s firm was blacklisted for a period of five ( 05) years from the date of issue of this order. While setting aside the said part of the order, this Court would grant the respondents liberty to take needful action as required in law but after affording an opportunity to represent his case against the proposed action. The application stands allowed in these terms. No order as to cost(s). (Kishore Kumar Mandal, J) Shyam/-