IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 26414 of 2011(B) -------------------------- PETITIONER(S): ------------------------ T.T. SUNNY, THANDAKKATTIL HOUSE, MEENANGADI.P.O., WAYANAD. BY ADV. SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SRI.V.C.JAMES RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001 2. DEPUTY CHIEF ENGINEER, OFFICE OF THE CHIEF ENGINEER, PWD ADMINSTRATION,THIRUVANANTHAPURAM-695001. 3. THE SUPERINTENDING ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER, PWD (R&B) NORTH CIRCLE, CALICUT-673001. 4. THE EXECUTIVE ENGINEER, ROADS DIVISION, WAYANAD-673570. SR.GOVT.PLEADER SRI.T.P.SAJID THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.26414/11 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1. TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE 3RD RESPONDENT ON 15.7.2009 FOR ESTIMATE PAC OF RS. 2,90,35,488/-. EXHIBIT P2. TRUE COPY OF THE CERTIFICATE ISSUED ON THE VERY SAME DAY BY THE 3RD RESPONDENT FOR THE ESTIMATED PAC OF RS.1,40,55,279/-. EXHIBIT P3. TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER ON 22/7/2009 FOR RS.2,98,00,000/-. EXHIBIT P4. TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED FOR RS.1,59,27,412/- ISSUED BY THE EXECUTIVE ENGINEER. EXHIBIT P5. TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE 3RD RESPONDENT ON 3.9.2011. EXHIBIT P6. TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE DIRECTOR OF PHYSICAL PLANT, KERALA AGRICULTURAL UNIVERSITY DATED 29.10.2007. EXHIBIT P7. TRUE COPY OF THE WORK ORDER ISSUED BY KERALA STATE CONSTRUCTION CORPORATION DATED 16.3.2010. EXHIBIT P8. TRUE COPY OF THE AGREEMENT EXECUTED PURSUANT TO EXT.P7 ON 29.3.2010. EXHIBIT P9. TRUE COPY OF THE AGREEMENT DATED 24.07.2010. EXHIBIT P10. TRUE COPY OF THE COMMUNICATION DATED 6.12.2010 OF THE 2ND RESPONDENT. EXHIBIT P11. TRUE COPY OF THE SHOW CAUSE NOTICE DATED 11.1.2011. EXHIBIT P12. TRUE COPY OF THE HEARING NOTICE DATED 17.2.2011. EXHIBIT P13. TRUE COPY OF THE JUDGMENT DATED 24.2.2011 IN W.P(C) 5844/2011. EXHIBIT P14. TRUE COPY OF THE LETTER DATED 19.5.2011 OF THE 2ND RESPONDENT ADDRESSED TO THE FIRST RESPONDENT. EXHIBIT P15. TRUE COPY OF THEE COMMUNICATION DATED 21.7.2011 OF THE FIRST RESPONDENT. EXHIBIT P16. TRUE COPY OF THE NOTICE DATED 12.8.2011. WPC NO.26414/2011 -2- EXHIBIT P17. TRUE COPY OF THE REPLY DATED 24.8.2011 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P18. TRUE COPY OF THE JUDGMENT DATED 19.9.2011 IN THE W.P © NO. 24273/2011. EXHIBIT P19. TRUE COPY OF THE ORDER NO.DC3/REGN.(BLC)/2011 DATED 20.09.2011. EXHIBIT P20. TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER ON 19.3.2009. EXHIBIT P21. TRUE COPY OF THE PAYMENT DETAILS IN RESPECT OF THE SAID AGREEMENT ALONG WITH OTHER AGREEMENTS. EXHIBIT P22. TRUE COPY OF THE CHECK REPORT WITH THE FORWARDING ENDORSEMENT OF THE VACB. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 26414 OF 2011 ===================== Dated this the 13th day of October, 2011 J U D G M E N T Heard the learned senior counsel for the petitioner and the learned Government Pleader appearing for the respondents. 2. The challenge in the writ petition is against Ext.P19 order passed by the 3rd respondent blacklisting the petitioner and directing him to surrender the licence issued to him as a contractor for cancellation. 3. Briefly stated, the facts of the case are that, the petitioner is a licenced PWD contractor. Based on allegations of certain irregularities, the 2nd respondent issued Ext.P10 to the 3rd respondent, requiring him to initiate proceedings for blacklisting petitioner. That led to the issuance of Exts.P11 and P12 and without disclosing the materials that were relied on against the petitioner, the petitioner was afforded an opportunity of hearing on 22/2/11. At that stage, petitioner approached this Court complaining of the aforesaid procedure by filing WP(C) No. 5844/2011. The said writ petition was disposed of by Ext.P13 judgment with the following directions:- WPC No. 26414/11 :2 : “5. In the above circumstances, the petitioner is free to appear before the respondent within 'one week' from the date of receipt of a copy of this judgment, on which event, the respondent shall provide copies of the relevant proceedings referred to in Ext.P3, so as to enable the petitioner to explain the facts and circumstances within a further period of 'two weeks', by filing reply in writing. The Proceedings shall be finalized, in accordance with law, within two months thereafter. The coercive proceedings if any, shall be kept in abeyance till such time.” 4. Accordingly, the documents that were relied on against the petitioner were disclosed to him and he was also afforded an opportunity to file his objections in the matter. Availing of the said opportunity, petitioner filed Ext.P17 explanation. In the meanwhile, according to the petitioner, the person who heard him on 22/2/11 retired from service. At that stage, apprehending that without anything more and acting in compliance with Ext.P10, he would be blacklisted, petitioner again approached this Court by filing WP(C) No. 24273/11. That writ petition was disposed of by Ext.P18 judgment dated 19th of September, 2011, the relevant portion of which reads as under:- “2. In my view, the writ petition is premature and as at present, apart from the proposed blacklisting, no order of actual blacklisting has been passed for the petitioner to be aggrieved at this stage. If the rules of the Department permit that a person against whom irregularities have been found is liable to be blacklisted, respondents are WPC No. 26414/11 :3 : certainly entitled to take such steps. However, any such step can only be done in accordance with law and only in compliance with the principles of natural justice. Therefore, at this stage, this Court will not be justified in pronouncing on the proceedings against the petitioner for the reason that any such pronouncement will be premature. 3. However, the contention of the petitioner is that Ext.P5 discloses a direction from the 2nd respondent and therefore the Superintending Engineer and other officials of the department will certainly blacklist him. It is therefore contended that the whole exercise is one in futility. In so far as the grievance of the petitioner against Ext.P5 is concerned, all that the 2nd respondent has done by Ext.P5 is to request the Superintending Engineer to take steps for blacklisting the petitioner. This communication does not mean that there is any direction to blacklist the petitioner and on the other hand, it only directs the Superintending Engineer to take steps for blacklisting the petitioner in accordance with law. Therefore, necessarily the Superintending Engineer will have to exercise his powers in accordance with law, complying with the principles of natural justice and with due application of mind. In such circumstances, Ext.P5 also does not suffer from any illegality as alleged by the petitioner.” 5. On the next day, viz., 20th of September, 2011, without affording any further opportunity of hearing to the petitioner, Ext.P19 order was issued by the 3rd respondent blacklisting the petitioner. It is this order which is under challenge in the writ petition. 6. The contention raised by the learned senior counsel for the petitioner is that Ext.P19 order is not only against the WPC No. 26414/11 :4 : directions of this Court as contained in Ext.P18, but also is in violation of the principles of natural justice. On the other hand, learned Government Pleader attempted to sustain the order. 7. Having considered the rival submissions made by both sides, I am inclined to think that the impugned order deserves to be set aside. 8. As already seen, when the petitioner was afforded an opportunity of hearing on 22/2/2011, he was not disclosed the materials that were relied on against him. It was therefore that the petitioner approached this Court by filing WP(C) No.5844/11 resulting in Ext.P13 judgment and it was consequent to the directions in the said judgment that the materials relied on were disclosed to him. Thereafter, though the petitioner filed Ext.P17 explanation, before passing Ext.P19 order, he was not afforded any further opportunity of hearing to explain his version with reference to the documents that were relied on against him. Apart from that, the person who heard the petitioner on 22/2/11 also retired from service in March, 2011, as a result of which, the person who passed Ext.P19 order did not have the benefit of hearing the petitioner. That apart, in Ext.P18 judgment, this Court WPC No. 26414/11 :5 : also clarified that any order to be passed against the petitioner can only be with due application of mind and in compliance with the principles of natural justice. Here again, there is a non compliance. 9. For the aforesaid reasons, I set aside Ext.P19 order and direct that the 3rd respondent shall issue notice to the petitioner, hear him and pass fresh orders in the matter. This the 3rd respondent shall do as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment along with a copy of this writ petition. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp