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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14053 of 2020 In the matter of an application under Articles 226 and 227 of the Constitution of India. M/s. Ram Kumar Agrawal Engineers Pvt. Ltd. -versus- …. Petitioner State of Odisha and Ors. …. Opposite Parties. Advocates appeared in the case through Hybrid Mode: For Petitioner : Mr. Jashobanta Dash, Sr. Adv. along with Mr. Prabodh Ch. Nayak, Adv. For Opposite Parties. : Mr. Tarun Pattnaik, ASC CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-09.02.2022 DATE OF JUDGMENT: -04.03.2022 S.K. Panigrahi, J. 1. In this writ petition, the petitioner has assailed the order dated 02.06.2020 wherein the Opposite Party No.3-Engineer- in-Chief, Rural Works, Odisha, Bhubaneswar has directed the Executive Engineer to initiate appropriate action as per Appendix XXXIV of OPWD Code pertaining to blacklisting of the petitioner. 2. Shorn of unnecessary details, the facts of the case in brief, are that a public tender was invited by the opposite party No.3- Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar for various roads and bridges in terms of an item rate tender. Since the petitioner has wealth of experience in executing several construction and related works, on the W.P.(C) No.14053 of 2020 Page 1 of 20 basis of such varied experience, it participated in the tender process and got selected. An agreement was signed between the petitioner and the opposite party No.6- Executive Engineer, Rural Works Division, Patnagarh, District- Bolangir on 26.02.2014 for the construction of H.L. Bridge over River Suktel on Tamla-Mudassir Road in the district of Bolangir under “Biju Setu Yojana.” An estimated cost of Rs.6,99,97,278/- was provided with a stipulated date of completion of work fixed for 25.02.2016. The said work was completed before time and as per the drawing and design supplied by the department, and the said work was measured and the final bill was also cleared by the department. 3. On 26.02.2020, after the expiry of about four and half years from handing over the bridge for the purpose of transportation by public, some horizontal cracks appeared to have developed. The petitioner intimated such facts to the authority stating that there are some horizontal cracks developed in the S-4 grider between the soffit and outer webs. In addition, there were also some inclined cracks. 4. In the meantime, the opposite party No.3 requested the Government to consider and allow the Executive Engineer to take up the work of dismantling and related construction would be undertaken by the petitioner after diversion of the traffic. He further informed that such diversion of traffic, dismantling and related construction would be done by the petitioner at his own cost. In anticipation of the approval, the Executive Engineer instructed the petitioner to go ahead with W.P.(C) No.14053 of 2020 Page 2 of 20 preparation of preliminary arrangement to take up the work. Though the petitioner took up the dismantling work of the said span without having any permission of the authority and without taking any precaution to ensure safety of the labourers by making any arrangement for centering and shuttering prior to dismantling of the slab, which led to collapse of the distressed slab on 29.04.2020 causing death of two persons on the spot, apart from causing injuries sustained by other persons. Bridges are, without a doubt, one of the marvels of engineering but any imperfection in the structure or compromise on the quality of the construction material turn into tragedy like the present one which becomes the triggering point of punitive action like blacklisting of the petitioner. 5. Learned Senior Counsel appearing for the petitioner vehemently submitted that the action on the part of the opposite parties in blacklisting his client for all times to come is arbitrary and contrary to the "doctrine of proportionality". It is submitted that the entire exercise of blacklisting the petitioner by the opposite party No.3- Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar commencing from the letter dated 02.06.2020 followed by show cause notice dated 09.06.2020 and the ultimate order dated 20.07.2021 issued by the opposite party No.7-Chief Engineer (Buildings & Bridges) Rural Works, Odisha, Bhubaneswar in banning the petitioner from participating or bidding for any work to be undertaken by the Government of Odisha and also banning from transacting business with Government of Odisha either directly in the name of proprietary bidder or indirectly under W.P.(C) No.14053 of 2020 Page 3 of 20 different name and title. In the whole process, the principle of natural justice was given a complete go buy jeopardizing his right to put forth his case properly before taking a death knell like step called blacklisting. 6. He further submitted that the authority has not followed the due procedures as prescribed under the OPWD Code. The Divisional Officer shall report to the Chief Engineer if in his opinion any wrong has been committed by any contractor. On receipt of such report from the Divisional Officer, the Chief Engineer shall make due enquiry and if considered necessary, issue show cause notice to the concerned contractor who in turn shall furnish his reply, if any, within a fortnight from the date of receipt of the show cause notice. Thereafter, if the Chief Engineer is satisfied that there is sufficient ground, he shall blacklist the concerned contractor with the approval of the Administrative Department. After issue of the order of blacklisting of the said contractor the Chief Engineer shall intimate to all Chief Engineers of other Administrative Departments, the Registering Authority as provided under Rule 4 of PWD Contractor’s Registration Rules, 1967 and Department of Information and Technology for publication in website of State Government. The Code has not been followed in letter and spirit, hence, black listing of the petitioner is unsustainable. 7. Learned Senior Counsel for the petitioner further stated that unfortunately during fixing the staging to support the slab, one slab i.e. span S-4 collapsed for which such unfortunate incident was occurred and one criminal case was W.P.(C) No.14053 of 2020 Page 4 of 20 registered vide G.R. Case No.321 of 2020 arising out of Larambha P.S. Case No.48 dated 29.04.2020 pending in the court of the learned S.D.J.M., Patnagarh which is under investigation. As such, initiation of further proceeding under the provision of Appendix XXXIV of OPWD Code is not permissible. He further submitted that the petitioner is an old contractor and completed more than 100 numbers of major bridges and road works and part of the development work. The allegation regarding substandard work made against the petitioner is baseless and factually incorrect. 8. He contended that the petitioner filed show cause reply with objection to the jurisdiction of the opposite party No.6 in issuing show cause notice along with other 18 grounds. In the meantime, the contract license of the petitioner was renewed up to 31.03.2024 and the petitioner was permitted to participate in various tenders though qualified in some of them and disqualified in some other. The opposite party No.6, without disposing of the show cause reply even after one year, recommended to the opposite party No.3 for blacklisting the petitioner under Appendix XXXIV of OPWD Code. 9. He questioned the procedures followed in the instant case stating that once exercise of blacklisting had been initiated by the highest authority i.e. opposite party No.3- Engineer-in-Chief, Rural Works, Odisha, it has clearly undermined the independent exercise of power by the lower authority, which reflects unequivocally in the instant case. The opposite party No.3-Engineer-in-Chief, Rural Works, Odisha on 02.06.2020 directed to opposite party No.6- W.P.(C) No.14053 of 2020 Page 5 of 20 Executive Engineer, Rural Works Division, Patnagarh to initiate the blacklisting proceeding and the said opposite party No.6 on 09.06.2020 issued show cause notice and the impugned blacklisting order was passed by opposite party NO.7 on 20.07.2021. As per the OPWD Code, Appendix – XXXIV, the Chief Engineer-opposite party No.7 neither made enquiry nor issued show cause notice to the petitioner, hence, this is a classic case of violation of codal provision. The settled law on the issue is that if a statute has conferred a power to do an act and has laid down method in which that power has to be exercised in the same manner which has been prescribed, it cannot be otherwise than the said procedure. The apex Court has succinctly summarized this principle in Babu Verghese and others Vs. Bar Council of Keral and others1 and State of Uttar Pradesh Vs. Singhara Singh & others2. 10. While underlining the aforesaid principle, he further submitted that if the initial action is not in consonance with law, subsequent proceeding could not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is squarely applicable, meaning thereby, in case a foundation is removed, the superstructure falls. Reliance was placed on the Apex Court’s Judgment in Chairman-cum- Managing Director, Coal India Ltd and others Vs. Ananta Saha and others3