IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7133 of 2007 KAMESHWAR SINGH Versus THE STATE OF BIHAR & ORS ----------- For the petitioner:- M/s Ashwani Kumar Singh & Nand lal Kr. Singh For the State:- Mr. P.K.Verma, AAG XI with Dr. Mankeshwar Tiwari, J.C. to AAG XI 3. 04.07.2008 Heard learned counsel for the petitioner and learned Additional Advocate General No. 11, for the State. The petitioner seeks quashing of the order contained in memo no. 1157 dated 11.5.2007 (Annexure-12) passed by the Commissioner and Secretary, Water Resources Department, Government of Bihar, by which he has, while disposing of the representation of the petitioner, kept the order of blacklisting intact for five years from the date of issuance of the order. The case has a chequered history. Earlier the petitioner was registered as a contractor in class-II category on 20.6.1988 in the Water Resources Department, Government of Bihar. Subsequently, with respect to a contract of the year 1992 an allegation was made against him on 25.7.1992 by the Junior Engineer, Sone Canal Section, Agiaon that the petitioner had taken his signature over bill on 23.7.1992 in back date by using force and took away the measurement book no. 364A. A criminal case was also filed against him in Agaion Police Station on the direction of the authorities by the said Junior Engineer, Bihari Lal. By order dated 2.11.1992 his registration was cancelled and he was blacklisted. In the criminal case the court below on a consideration of the evidence on the record and - 2 - particularly considering the evidence of the said Junior Engineer, Bihari Lal did not find the case as true regarding the petitioner having used force or put the Junior Engineer to fear for getting the signature on the bill in question and accordingly acquitted the petitioner. Thereafter the petitioner moved this Court for his re- registration by filing CWJC No. 5965 of 1998 which was disposed of with liberty to the petitioner to file a representation before the Department. The said representation was dismissed without giving any opportunity to the petitioner to represent his case by order dated 16.3.1999. Against the same the petitioner filed CWJC No. 13610 of 2001 which was allowed by order dated 8.3.2007 and this Court observed that there has been circumstantial change after the previous order of blacklisting inasmuch as reasons for the blacklisting no more survives since the petitioner has been absolved in the criminal prosecution. However, after quashing the order rejecting the petitioner’s representation this Court directed the petitioner to file a fresh representation which was directed to be disposed of by the authorities by a reasoned and speaking order. The petitioner having filed his representation the same has been disposed of by the impugned order dated 11.5.2007 by the Commissioner and Secretary, Water Resources Department. Learned counsel for the petitioner submits that the same reason that the petitioner had applied pressure and force upon the Junior Engineer/Assistant Engineer, has been reiterated in the said order on the basis of which it has been decided to blacklist the - 3 - petitioner for a period of five years from the date of the order. It is argued that it was not open to the authorities to have relied upon the said allegation which has not been found to be correct or proved in a Court of law since the said allegation has been disbelieved by the criminal Court and the petitioner has been granted acquittal in the said criminal case. That being the position, according to learned counsel for the petitioner, the impugned order cannot survive and ought to be quashed. In support of the aforesaid proposition learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. And another: (1999) 3 Supreme Court Cases 679, in paragraph nos. 34 and 35 of which it has been held as follows:- “34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not - 4 - proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” The said propositions laid down in Capt. M.Paul Anthony’s case have been relied upon and followed by the Supreme Court in the case of G.M.Tank Vs. State of Gujarat and others: (2006) 5 Supreme Court Cases 446, paragraph nos. 30 and 31 of which are quoted below:- “30. The Judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against - 5 - the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” It is submitted by learned counsel that although the aforesaid cases arose in departmental proceedings in which charges were the same as the criminal proceedings but the proposition of law laid down therein, namely, that the finding of a criminal Court on the same charges relating to the same facts cannot be differed with by the administrative authorities, would apply to the present matter. Learned Additional Advocate General No. 11, on the other hand, has sought to support the impugned order stating that the order is a reasoned order and after considering all aspects of the matter. It is submitted that the impugned order takes into consideration the fact that earlier the petitioner had got prepared a bill of 100% work by applying pressure upon the Junior Engineer/Assistant Engineer for which an FIR was also lodged against him but subsequently on the - 6 - basis of an agreement in another measurement book bill was prepared for 73% work and the bill prepared on the basis of the earlier measurement was cancelled. Learned counsel also refers to the further facts mentioned therein that the conclusion in the order is that on the basis of the pressure applied or the agreement the whole matter was disposed of and for the said reasons show cause has been asked from the Junior Engineer/Assistant Engineer/Executive Engineer as to why departmental proceeding be not initiated against them. Learned counsel submits that reliance on the final part regarding the threat used upon the Junior Engineer is only incidental since there is no doubt that the petitioner had got earlier a wrong bill for 100% work prepared which is contrary to the ground realities and thus for the said reasons the blacklisting of the petitioner is justified. On a consideration of the impugned order this Court does not find force in the submissions of learned Additional Advocate General. It is evident from the said impugned order that what has weighed with the Commissioner and Secretary while passing the said order is that the petitioner had used force upon the Junior Engineer in getting the bill prepared for 100% work. No doubt there is a reference to the fact that subsequently on the basis of an agreement a bill for 75% work was prepared and payment was made accordingly. Moreover, reference has been made in the order to Rule 18 of the relevant rules relating to blacklisting in which three reasons alone have been assigned for blacklisting a contractor: firstly, if he has managed to receive excess payment from the department; or - 7 - secondly, the Engineers employed by him are found to be associated or employed simultaneously with other firms and lastly any information furnished by him is found to be wrong or misleading during any time his registration is valid. In the present matter it is evident that no excess payment was received by the petitioner on the basis of the said 100% work bill. The Second ground is not at all involved in the present matter. So far as the last ground is concerned it relates to information furnished which is found to be wrong and misleading during any time the registration is valid. Learned Additional Advocate General is at pains to point out that preparation of 100% work bill for the work which has not been fully done would come within the category of information furnished by the contractor found to be wrong or misleading. This Court does not consider the said argument to be correct. The first ground clearly mentions about the contractor managing to receive excess payment from the Department. Thus any ground relating to false bill would be covered by the first ground itself which is specific with respect to excess payment against bills and not by the third ground which is a general ground. It is a settled principle of interpretation that the special excludes the general and thus the submission of bills of 100% work cannot be considered as included within the term “information furnished by the contractor”. It is thus, evident that none of the three grounds on which blacklisting can be made are present in the instant case. Moreover, from the tenor of the impugned order it is - 8 - evident that the reason for blacklisting the petitioner for five years in the mind of the authority passing the order was the fact that the petitioner had got a 100% work bill prepared after threatening and putting on fear the Junior Engineer. The said fact having been disbelieved by the criminal Court after considering all aspects of the matter including the evidence of the Junior Engineer himself it is not open to the administrative authorities to come to a conclusion which is contrary to that recorded by the criminal Court. Although the decisions in Capt. M Paul Anthony’s and G.M.Tank’s cases (supra) were rendered in the context of criminal case vis-à-vis the departmental proceedings but that principle would apply with equal force to the present situation. Where on the same facts and evidence the criminal Court comes to a conclusion with respect to a particular matter, it is not open to the administrative authorities to come to a different conclusion. Thus, on a consideration of the entire facts and circumstances of the case, this Court finds that the impugned order dated 11.5.2007 cannot stand and it is, therefore, quashed. The writ application is accordingly allowed. S.Pandey (Ramesh Kumar Datta, J.)