IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4095 of 2009 SANJEEV KUMAR SINGH son of Sri Rameshwar Prasad Singh, resident of Sihma, P.S. Matihani, District- Begusarai….. Petitioner Versus 1. THE STATE OF BIHAR through District Magistrate, Darbhanga. 2. The District Magistrate, Darbhanga. 3. The District SupplyOfficer, Darbhanga. 4. The Sub-divisional Officer, Sadar, Darbhanga. 5. Bihar State Food and Civil Supply Corporation Ltd., Sone Bhawan, 5th Floor, Birchand Patel Path, Patna. 6. The Managing Director, Bihar State Food and Civil Supply Corporation Ltd, Sone Bhawan, 5th Floor, Bir Chand Patel Path, Patna. 7. The District Manager, Bihar State Food & Civil Supply Corporation Ltd., Darbhanga. 8. Chairman-cum- District Magistrate, District Transport Committee, Bihar State Food and Civil Supply Corporation Ltd., Darbhanga. 9. Sunil Kumar Singh, son of Sri Ram Parikshan Singh, resident of village- Mabbi, P.S. Sadar Mabbi, O.P. District Darbhanga…. Respondents. With CWJC No.17825 of 2009 SANJEEV KUMAR SINGH, son of Sri Rameshar Prasad Singh, resident of Sihma, P.S. Matihani, District- Begusarai…. Petitioner Versus 1. THE STATE OF BIHAR through District Magistrate, Madhubani. 2. The District Magistrate, Madhubani. 3. The District Supply Officer, Madhubani 4. The Sub-divisional Officer, Madhubani 5. Bihar State Food & Civil Supply Corporation Ltd., Sone Bhawan, 5th Floor, Birchand Patel Marg, Patna through its Managing Director. 6. The Managing Director, Bihar State Food and Civil Supply Corporation Ltd.,Sone Bhawan, 5th Floor, Birchand Patel Marg, Patna. 7. Chief of Procurement, Bihar State Food and Civil Supply Corporation Ltd., Sone Bhawan, 5th Floor, Birchand Patel Marg, Patna. 8. The District Magistrate, Bihar State Food and Civil Supply Corporation Ltd., Madhubani….. …. Respondents. ----------- For the petitioner: Mr. Rajiv Kumar Verma, Senior Advocate Mr. Rajneesh, Advocate Mrs. Meena Sinha,Advocate For the Corporation: Mr. R.S. Pradhan, Senior Advocate Mr. A.N. Rai, Advocate For the State: Mr. Gyan Shankar, A.C. to S.C.17. ------------ 13. 14.7.2010 Heard learned counsel for the petitioner, learned counsels for the State and for the Bihar - 2 - State Food and Civil Supply Corporation Limited. No one appears for respondent No.9 in C.W.J.C. No.4095 of 2009, although he has earlier entered appearance by filing vakalatnama. In C.W.J.C. No.17835 of 2009, the petitioner seeks quashing of the order dated 7.10.2009 passed by the Managing Director, Bihar State Food and Civil Supply Corporation, by which the petitioner’s review application has been rejected and the order of blacklisting passed earlier on 31.3.2009 has been maintained by which it had been directed that in the future also no work shall be taken by him in the matter of transportation in any District by the Corporation. C.W.J.C. No.4095 of 2009 has been filed by the same petitioner for quashing the order dated 12.2.2009 issued by the Corporation by which the name of the petitioner has been kept out of the reserve panel of transporting and handling agent for Darbhanga District for the year 2008-09 on the ground that he had been suspended from transportation work in Madhubani District in the year 2007-08 for being irresponsible in his work. The salient facts of the case are that the petitioner was appointed as Transport and Handling - 3 - Agent for Madhubani District for transporting food grains, etc. of the Corporation for the year 2007- 08 and an agreement with respect to the same was executed on 1.6.2007. Preceding and during the flood, special arrangements were made by the District Magistrate, Madhubani as part of disaster management for the upliftment of the food grains in the District. The admitted position is that special directions were issued for the said purpose for weighing empty vehicle at the Dharam Kanta and again after loading with food grains it would be weighed in the presence of the deputed Officer/ Magistrate and then proceed to the destination along with the Circle Officer concerned escorted by an Inspector of Police. It is the claim of the petitioner that this entire process consumed 48 to 50 hours more than prior to the order of the District Magistrate and was not within the terms of the agreement of the petitioner with the B.S.F.C.S.C. but the petitioner complied with the same in the manner directed. The grievance of the petitioner is that the said process took 2-3 days’ time which created paucity of trucks and extra expenditure to the - 4 - petitioner but despite demand for such extra payment, the same was not sanctioned or made and the petitioner had been put to a loss as more fare had to be paid to the truck owners. Another grievance of the petitioner was that because of roads being flood affected and public weigh-bridge itself was located at a substantial distance from the godown, extra kilometers has to be travelled for the transporting distance between the starting and ending point and for this also the petitioner demanded additional payment, but the same was also not acceded to by the Corporation. The third grievance of the petitioner was that because of the bad condition of the roads on account of flood, it was impossible to transport the food grains in the big trucks and keeping in view the urgency of the work, the work was carried out, through mini trucks/tractors. The petitioner duly informed the District Manager, B.S.F.C., Madhubani by his letter dated 8.9.2007 of such difficult circumstances. The further case of the petitioner is that even the Managing Director of the Corporation on learning about the same wrote a letter to the District Magistrates concerned to send - 5 - recommendation for enhancing the rate for transportation, as the same had to be done by the mini trucks/small vehicles but there was complete inaction on the part of the concerned respondent authorities. The petitioner, however, kept on transporting the food grains to the best of his ability and substantial quantity was transported for which the bills, according to him, were around Rs. 70,00,000/- but he was paid an advance of Rs. 9,00,000/- only despite the recommendation of the District Manager, Madhubani for release of additional sum of Rs. 10,00,000/- and the same was not heeded to by the headquarters. On 1.12.2007, the District Manager, Madhubani recommended for taking action against the petitioner under Disaster Management Rules and forfeiture of his earnest money as also for suspension from the transport work, to the Managing Director. A notice was also issued to him as to why a criminal case be not initiated against him according to the Disaster Management Rules. Thereafter, the B.S.F.C. issued show cause on 24.12.2007 to which the petitioner replied giving details. Again a show cause notice was issued to the petitioner on 1.2.2008 as to why his name - 6 - should not be blacklisted as transporting agent and by the same notice, his agreement was suspended with immediate effect on account of his lacklustre attitude in the work of transportation and for damaging the image of the Corporation. The petitioner filed his reply to the show cause on 6.2.2008. The District Manager, Madhubani also in his letter dated 17.4.2008 addressed to the Chief of Procurement, B.S.F.C.S.C. with respect to the show cause of the petitioner has mentioned the reasons for delay which had been complained of by the petitioner having been caused merely on account of the system for transportation adopted and the manner in which the Block Development Officers and the Panchayat Secretaries concerned acted. Thereafter by order dated 31.3.2009, the Managing Director of the Corporation passed the order rejecting the explanation filed by the petitioner and blacklisting him as also directing that in the future no work for transportation shall be taken from him in any District by the Corporation. Aggrieved by the same, the petitioner approached this Court by filing C.W.J.C.No.11770/2009 raising various grounds - 7 - against the said order and the same was disposed of by order dated 10.9.2009 of this Court with observation that the review application filed by the petitioner before the Managing Director of the Corporation be disposed of within four weeks. The review application had been filed by the petitioner on 3.8.2009 in which he had raised various issues in detail for consideration of the Managing Director. The same, however, was rejected by the office order dated 7.10.2009 (Annexure-1) passed by the Managing Director. Aggrieved by the same, the petitioner has filed C.W.J.C. No.17825 of 2009. In the meantime, another notice inviting tenders for appointment of transporting and handling agent was issued by the Corporation for the District of Darbhanga in which the petitioner also participated. In the panel prepared, the petitioner was found to be the second lowest tenderer but in view of his suspension by the earlier order, he was kept out of the reserve panel and in his place respondent No.9, Sunil Kumar Singh, who was the third lowest tenderer, has been kept in the reserve panel by letter dated 12.2.2009. The petitioner has challenged the same by filing C.W.J.C. No.4095 of - 8 - 2009. Learned counsel for the petitioner submits that in his review application dated 3.8.2009 all the detailed grounds which led to the delay in the lifting and down-loading of the food grains have been duly explained along with the relevant annexures, including the various letters written by the authorities of the Corporation itself. However, the impugned order dated 7.10.2009, according to him, does not refer to the same and in a most general manner rejected the application without going into the specific grounds raised by the petitioner. Learned counsel has also sought to assail the said order on various other grounds but in view of the fact that he had earlier filed a writ petition raising those very grounds, which was disposed of with certain observations and direction made in the order dated 10.9.2009 to the Managing Director to dispose of his review application, I think that it is not open to the petitioner to again raise those very grounds, but only those which pertain specifically to the order passed on review since the petitioner has allowed the order dated 10.9.2009 of this Court to acquire finality. - 9 - Learned counsel for the Corporation, on the other hand submits that the Managing Director has broadly considered the case and finding that the petitioner was responsible for the delay has upheld the earlier order passed on 31.3.2009. It is also urged by him that the office order had to be passed within a period of four weeks as directed by this Court and thus within the short time available, the said order has been passed in the said manner. On a consideration of the entire facts and circumstances of the case, this Court is of the view that the specific points raised by the petitioner in his review application, which had also been raised by him at the relevant time before the various authorities of the Corporation and mentioned in the letters written at the relevant time not only by the District Manager, Madhubani but also by the Managing Director of the Corporation himself, have not at all been considered in the impugned order dated 7.10.2009. The impugned order dated 7.10.2009 mentions that in view of paragraph No.20 of the agreement, it was for the petitioner to make all arrangements for lifting of food grains from the Rail-head but - 10 - he had failed in complying with his responsibility and thus has violated the said terms. On the question of extra payment it has been held by him that under clauses 10 and 11 of the agreement, it was the complete responsibility of the Transport and Handling Agent to transport the food grains at the rate approved by the headquarters and the Corporation is not bound to fix any special rate. On the question of delayed payment, the impugned order refers to the fact that the auditor has found various defects in the bills and for the said reason, the same has not been paid. So far as the question of delay on the part of the petitioner is concerned, the impugned order dated 7.10.2009 suffers from complete lack of application of mind to the materials on the record. The District Manager, Madhubani has himself admitted so much in his comments on the reply to the show cause filed by the petitioner that the delay has occurred due to the procedure that had been adopted. If those reasons were germane for the delay then merely referring to paragraph No.20 of the agreement that it was the duty of the Transport Agent to make all arrangements for lifting the food grains is not - 11 - justified. It is not disputed that for the purpose of flood relief work special orders had been issued by the District Magistrate indicating a special procedure for lifting of food grains including weighing in the presence of the Magistrate and officers of the State and thus it cannot be said that the entire responsibility for delay was of the petitioner. Once the State officials had been involved in the procedure of upliftment of food grains then the responsibility for the delay could not have been shifted solely to the petitioner unless the finding is clearly recorded that the vehicles themselves were not got ready by the petitioner. As a matter of fact, the Managing Director in his letter to the District Magistrate has himself admitted that on account of the condition of the roads, it was not possible to lift the food grains on large transport vehicles and smaller vehicles like mini trucks/tractors had to be brought for the said purpose and had also written to the District Magistrate to fix special rate for the said purpose. It is well-known that there was requirement for transportation of food grains for the purpose of flood relief by small vehicles which consumed more time. In the said - 12 - circumstances, it was not open to the Managing Director to follow paragraph Nos. 10 and 11 of the agreement and not consider the higher rate in the special circumstances of the case and not even an assurance was given to the petitioner that the higher rate would be paid. Similarly, no steps were taken to give higher rate on account of the fact that food grains had to be transported for a longer distance instead of directly between normal lifting point and the point of unloading. In the said facts and circumstances it appears that the officials of the State have tried to throw the entire responsibility for the delay upon the contractor instead of considering their own default/lapses in the matter in such an important work of lifting food grains for transportation for flood relief. It is clearly an attempt to shift the blame upon a private person and make him a scapegoat for inefficiency and lapses on the part of the officials of the State and in the decision making and implementing process. The impugned order dated 7.10.2009 is completely silent on all important issues, which have been raised by the petitioner that, too in a - 13 - case of blacklisting which has serious civil consequence upon a person. In the above circumstances, this Court is of the view that the order dated 7.10.2009 of the Managing Director of the Corporation cannot be sustained and it is, accordingly, quashed. Learned counsel for the petitioner submits that although the panel for transporting and handling agent for the District of Darbhanga prepared was meant for the year 2008-09, which has expired but as a matter of fact the said panel is still being operated and no fresh notice inviting tender has been issued with respect to the same. The said fact is not denied by learned counsel for the Corporation. If the panel is still in operation, then this Court is of the view that keeping the petitioner out of the reserve panel by the order dated 12.2.2009 is not justified. As a matter of fact since this Court has quashed the order of blacklisting of the petitioner, the petitioner being at No.2 in the panel would be entitled to be kept in the reserve panel in preference to respondent No.9, Sunil Kumar Singh, who was the third in the panel as compared to the petitioner who was second. The authorities are - 14 - directed to act accordingly. Both the writ applications are, accordingly, allowed with the aforesaid observations and directions. It is, however, made clear that so far as payment of the bills due to the petitioner are concerned, the authorities of the Corporation would be entitled to get rectified the defects pointed out by the auditor in regard to the concerned bill before any payment is made with respect to that specific bill. VPS ( Ramesh Kumar Datta, J. )