Amod Kumar v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.12045 of 2018 =========================================================== Amod Kumar, Son of Shri Balbeer Prasad Mandal, Resident of Mission Road, Kalibari, P.S.- K. Hat, District Purnea, Bihar. .... .... Petitioner

Versus

1. The State of Bihar through the Principal Secretary, Rural Works Department, Government of Bihar, Patna.

2. The Engineer in Chief, Rural Works Department, Government of Bihar, Patna.

3. The Superintending Engineer, Rural Works Department, Works Division, Dhamdaha, Bihar.

4. The Executive Engineer, Rural Works Department, Works Division, Dhamadah, District- Purnea, Bihar.

.... .... Respondents =========================================================== Appearance :

For the Petitioner : Mr. Prabhat Ranjan, Advocate For the Respondents : Mr. Yogendra Pd. Sinha - AAG7 =========================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT Date: 29-06-2018 Heard learned counsel for the petitioner as well as learned counsel for the respondents.

2. The present writ petition has been filed for the following reliefs - "(i) Quashing of the Letter No. 7725 dated 29.06.2017 (in so far as it relates to the petitioner only) whereby without issuing any Show Cause Notice and even when the work was completed the petitioner has been put in the list of debarred contractors in Sl. No. 1051; and/or (ii) Commanding upon the respondent no. 2 to forthwith delete the name of the petitioner from the list of debarred Contractors as circulated vide

2/4 Departmental Letter No. 7725 dated 29.06.2017 (wherein the name of the petitioner appears at Sl. No. 1051) on the ground that the work, which could not be completed as per the agreemented date of completion has been admittedly completed on 10.03.2012 itself."

3. Learned counsel for the petitioner submits that the impugned order of debarment has been passed without issuing any show cause notice and no opportunity of hearing has been granted to the petitioner. It is submitted that in any event, the work in question has since been completed by the petitioner and recommendation made by the Executive Engineer, Rural Works Department, Works Division for removing the name of the petitioner from the list of the debarment (Annexure-2).

4. Learned counsel for the respondents appears and has been heard but however is unable to controvert the stand of the petitioner in absence of any counter affidavit being filed.

5. Having heard the parties and on careful consideration of the materials on record, this Court finds merit in the submissions of the petitioner.

6. It is well settled that any action of the State having civil consequences must conform to the principles of natural justice. It is relevant to take note of the decision in Erusian Equipment & Chemicals

3/4 Ltd. vs. the State of W.B., (1975) 1 SCC 70 wherein the Hon'ble Apex Court observed as follows - "20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purpose 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."

7. It would further appear from the decision of the Hon'ble Apex Court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project, Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731 that the principles in regard to "debarment" and "blacklisting" would be the same - "21. The legal position governing blacklisting of supplies in U.S.A. and U.K. is no different. In U.S.A. instead of using the expression "blacklisting" the term "debarring" is used by the statutes and the Courts."

8. In the above view of the matter, the impugned order of debarment contained in Memo No. 7725 dated 29.06.2017 (Annexure1) is set aside insofar as it concerns the petitioner only and the matter is remanded to the Engineer-in-Chief, Rural Works Department,

4/4 Government of Bihar, Patna (Respondent No. 2) for taking a fresh decision after issuing show cause notice and after granting an opportunity of hearing to the petitioner in accordance with law.

9. It is made clear that in case the stand of the petitioner denying non-service of show cause prior to order of debarment being passed is found to be incorrect, the respondents shall be at liberty to approach this Court for recall of this judgment.

10. The writ petition stands allowed as above. (Vikash Jain, J) B.T/Chandran AFR/NAFR NAFR CAV DATE N.A.

Uploading Date 07.07.2018 Transmission Date N.A.