M/s Sunshri Enterprises v. The Union of India

Writ Petition No.525/2024:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.525 OF 2024M/s Sunshri Enterprises… PETITIONERVERSUSThe Union of India & ors.… RESPONDENTS.......Mr. A.D. Sonkawade, Advocate for petitionerMr. A.A.A. Khan, A.G.P. for StateMr. A.P. Bhandari, Advocate for R.No.2 to 7 ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE : 5th AUGUST, 2025O R D E R :Heard. The challenge in this Writ Petition is to theorder of holiday listing for 15 years, passed by the TerritoryManager, and affirmed by the appellate authority. Thepetitioner is in the business of erecting hoardings. Therespondents had given the petitioner a contract to erect certainhoardings. One of the hoardings was to be erected atBrahmangaon Orchard. The contract/ work order was issued Writ Petition No.525/2024:: 2 ::in favour of the petitioner on 1/3/2015. Without erecting thehoarding at the given site, the petitioner, by joining hands withone of the officials of BPCL, submitted a bill amounting toRs.2,90,032=76 ps. The said bill was cleared on 13/8/2015.After having realised the misappropriation, the BPCL initiatedaction against the petitioner for its holiday listing. A show-cause-notice was issued to the petitioner. The petitionerappeared in response to the show-cause-notice. It put forth itsside. After giving the petitioner opportunity of hearing, theorder impugned herein was passed. The petitionerapproached the appellate authority unsuccessfully. It is, therefore, before us in this Writ Petition.2.The learned Advocate for the petitioner wouldsubmit that, before the alleged misdeed took place, there wasa policy in existence regarding black-listing. The new policycame into being in July 2015. By virtue of clause 2.4 of thenew policy, the same would be applicable for the futuredealings. In short, the learned Advocate meant to say that, thepenalty not prescribed when the alleged misconduct tookplace, has been imposed relying on the provisions in the new Writ Petition No.525/2024:: 3 ::policy. He even tried to argue on the factual matrix to submitthat, the hoarding was in fact erected at some other place onlyon the directions of the officials of the BPCL. He evenadverted our attention to a statement of one of the persons inwhose favour the BPCL outlet has been issued/ leased. Hewould then submit that, a show-cause-notice issued to thepetitioner was bad in law since it did not contain the quantumof penalty proposed to be imposed against the petitioner. Insupport of his contentions, the learned Advocate has relied onthe following two judgments of the Apex Court :(1)Caretel Infotech Limited Vs. Hindustan PetroleumCorporation Limited & ors. (2019) 14 SCC 81(2)Isolators and Isolators through its proprietor SandhyaMishra. Vs. Madhya Pradesh Madhya Kshetra VidyutVitran Company Limited & anr. (2023) 8 SCC 6073.Learned Advocate for the respondent BPCL tookexception to the Writ Petition on the ground of delay andlaches. He would submit that, the petition is silent to offer anyreason as to why a period of over five years the petitioner sleptover its right. According to him, the explanation in the natureof the petitioner to have preferred representation cannot be Writ Petition No.525/2024:: 4 ::termed to be a reason to come out of the principle of delay andlaches in filing the Writ Petition.4.Turning to the merits of the matter, the learnedAdvocate would submit that, the policy of 2015 was nothing butenlargement of the existing policy. Adverting to clause 2.4 ofthe new policy, he would submit that, the black-listing/ holidaylisting was prescribed in respect of future dealings. He meantto say that, the dealings the BPCL has with the petitionerbefore the one in question, have all been saved. According tohim, if those contracts entered into with the petitioner arecancelled considering his misdeed, it would be a matter oflitigation, the petitioner may make out a case of breach ofcontract and claim damages/ compensation. According to him, under the old policy, no quantum of penalty was prescribed. According to him, the petitioner tendered a false bill in April2015. Since the petitioner had joined hands with one of theBPCL official, the bill was cleared in August 2015. Thepetitioner received the amount for the work not done. The actof the petitioner in refunding the amount speaks in volumes.He would further submit that, under the policy itself, a liberty Writ Petition No.525/2024:: 5 ::has been given to approach the authority concerned forreducing the period of holiday listing and the petitioner mayavail the same. In that regard, our attention was drawn toclause 6.1.2 in the policy of 2015. Learned Advocate tried todistinguish the authorities relied on. According to him, in thefirst authority, the undertaking submitted by the contractortherein was post the policy of 2015 came into being. Thepetitioner therein had suppressed to have met with a penalty ofblack-listing. According to him, everything in that matterhappened post 2015 policy came into being. The same, therefore, would have no application to the facts of the presentcase. So far as regards other judgment relied on is concerned, he would submit that, although the show-cause-notice did notcontain the quantum of penalty proposed to be imposed, thelast para of the show-cause-notice was adverted to indicatethe authority concerned was determined to impose exemplarypenalty. According to him, on the website of the BPCL, thenature of misdeeds to be met with, the proposed penalty hasbeen given. Attention of the petitioner was adverted thereto. The petitioner, therefore, could not be heard to contend thatthe show-cause-notice did not contain quantum of penalty. Writ Petition No.525/2024:: 6 ::5.We have considered the submissions advanced. Perused the documents on record.6.It is true that, the petition has been filed five yearsafter the order impugned herein was passed. Prima facie, itmay be a case of delay in preferring the Writ Petition. Moreover, no reason has been offered in the petition itselfexplaining the delay in preferring the Writ Petition. The fact, however, remains that, on the day the petition was filed, thepenalty of eight years black-listing was still outstanding. Wehave, therefore, to entertain the Writ Petition.7.The earlier policy that was in force did not prescribeany penalty so far as regards wrong similar to one in question. Admittedly, on 1/3/2015, the petitioner was granted contract toerect hoarding. Since we do not wish to go into the factualmatrix, it has to be taken that those have been proved. Thepetitioner, without erecting the hoarding at a specified site, submitted bills therefor on 6/4/2015. The petitioner tried tocontend that, the so called misdeed was complete the momentthe petitioner submitted the so called false bill. According to Writ Petition No.525/2024:: 7 ::the petitioner, the policy came into being in July 2015 andwould, therefore, have no application. The fact is that, theamount under the fictitious bill submitted by the petitioner wasrealised in August 2015. The petitioner even received the saidamount. As such, submitting a false bill, may be a part of themischief in the mind of the petitioner and that was complete onreceipt of the amount for the work not done. Admittedly, thepetitioner returned the amount.8.The question is, whether the policy of 2015 isapplicable to the case of the petitioner. Clause 2.4 of thepolicy reads thus :“2.4The Holiday Listing shall be withprospective effect i.e. for future businessdealings.”9.The interpretation of the said clause is as plain asday-light. It has been specifically stated that the holiday listingwould be for the future dealings. The details in the policywould further indicate that the contracts entered into with thedelinquent and which were in existence have all been saved. The object behind it was to save money, time and litigation in Writ Petition No.525/2024:: 8 ::performance of contractual obligations. As such, clause 2.4indicates that the black-listing of the delinquent would be forthe transaction that would have been entered into with thedelinquent post the misdeed was committed. In our view, clause 2.4 admits of not more than one interpretation assought to be made by learned Advocate for the petitioner. Inthis view of the factual matrix, the judgment in case of CaretelInfotech Limited (supra) has no application in the present case.10.So far as regards the show-cause-notice to havenot contained proposed quantum of penalty is concerned, theauthority relied on pertains to the policy of some other agencyand not either of BPCL or HPCL. True, if the policy is one andthe same or even identical, the authority may have application. The show-cause-notice in the case in hand indicates that theauthority concerned was determined to impose exemplarypenalty. Although in so many words the quantum of proposedpenalty was not stated in the show-cause-notice, the attentionof the petitioner was adverted to the policy in that regardavailable on the website of the BPCL. We, therefore, find theshow-cause-notice to be not illegal and void. The fact, Writ Petition No.525/2024:: 9 ::however, remains that, for the misdeed committed by thepetitioner, a maximum penalty of 15 years provided under thepolicy has been imposed. It is repeatedly held by the ApexCourt that the black-listing has a serious consequence anditself a serious penalty as well. The authority concerned hasnot given any reason as to why it did not prefer to meet thepetitioner with holiday-listing for a period lesser than 15 years. Reliance to clause 6.1.2 may be available to the petitioner. The fact, however, remains that, post passing of the impugnedorder, seven years have passed. It would not, therefore, be inthe fitness of things to direct the petitioner to avail the saidremedy. Considering the misdeed committed by the petitioner, we find the penalty imposed against the petitioner to bedisproportionate. Furthermore, the revised policy of 2025 wasbrought to our notice by learned Advocate for the petitioner, whereunder black-listing even for similar mischief is to be dealtwith, with maximum two years. This favours the case of thepetitioner. Relying on the change in the policy as well, according to us, the black-listing so far suffered by thepetitioner would meet the ends of justice. With these, thepetition deserves to be partly allowed. Hence the order : Writ Petition No.525/2024:: 10 ::O R D E R(i)The Writ Petition is partly allowed.(ii)The order impugned herein, dated 9/8/2017, passed bythe Territory Manager (Retail), Ahmednagar, black-listing thepetitioner for 15 years, is modified to the period of black-listingso far suffered. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) FMPathan/-