IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. NO.20770 OF 2010 Suraj Nirman Private Limited, Company Registered under the Indian Companies Act 1956, having its registered office at Suraj Complex Dak Banglow, Bailey Road, Patna, though its Director Kanhaiya Kumar Singh, son of Late Ramnandan Singh, R/o- Suraj Complex Dak Banglow, Bailey Road, P.S.-Kotwali, Patna. ….. Petitioner. Versus 1. The State of Bihar through the Principal Secretary-cum- Commissioner Road Construction Department, Bihar, Patna. 2. The Engineer-in-Chief-cum-Additional-cum- Special Secretary, Road Construction, Bihar, Patna. 3. The Executive Engineer, National Highway Division No.2, Muzaffarpur. 4. The Executive Engineer, Flying Squad Division, Patna. …… Respondents. -------- For the petitioner : Mr. S.A.Narayan, Senior Advocate with Mr. Raj Kumar, Advocate. For the respondents : Mr. Sunil Kumar Mandal, S. C. 24 with Dr. Abdus Shakoor, A.C. to S. C. 24. ----------- P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN O R D E R 15/ 20.05.2011 This writ petition has been filed by the petitioner challenging memo dated 12.06.2008 (Annexure-1) by which Engineer-in-chief -cum- Additional-cum- Special Secretary, Road Construction Department, Govt. of Bihar, Patna (respondent no.2) black listed the petitioner in terms of Bihar Contractors Registration Rules, 2007 and also challenging order dated 21.01.2010 (Annexure-2) by which the Secretary Road Construction Department (respondent no.1) rejected the appeal filed by the petitioner against the aforesaid order which was filed - 2 - by the petitioner pursuant to order dated 06.10.2009 (Annexure- 17) passed by a bench of this court disposing of writ petition bearing CWJC No.11662 of 2009. 2. It was claimed by the petitioner that it was a private limited company involved in contracts regarding construction, repair and maintenance of the roads of the State and had been duly registered under the Bihar Registration of Contractor Rules, 2007 vide Registration No.01-A-759/2001. It was also claimed that the authorities floated a tender for carrying out IRQP work on N.H.77 from KM-02 to KM-25 which had to be carried out in KM-0 (139m), 3 to 25 except KM-8 and 22 and the petitioner succeeded in the tender and an agreement was entered into between the petitioner and the Executive Engineer, National High Way Division No. II (respondent no.3) bearing Agreement No.66 F- 2/2005-06 dated 24.02.2006 (Annexure-3). 3. Learned counsel for the petitioner also stated that while the work was in progress, an inspection was carried out by the Flying Squad headed by the Additional Secretary, Road Construction Department and they picked up samples of S.D.B.C. and B.M. and were sent to Deputy Director of Testing and Research Institute of the Road Construction Department which submitted its report dated 19.06.2006 and 29.06.2006 (Annexure-4 series) and on the basis of the said reports, the Flying Squad also gave its finding on 17.07.2006 (Annexue-5) against the petitioner. In the said circumstances, show cause notice was issued to the petitioner on 06.09.2007 (Annexure-6) by the Engineer-in-Chief (respondent no.2) detailing discrepancies found in the material - 3 - during the inspection as it was also alleged that the petitioner had carried out work without adhering to the terms of the agreement as well as quality specifications provided therein. 4. Learned counsel for the petitioner submitted that since the report of the Testing and National Research Institute was not given to the petitioner, he sought a copy thereof vide his letter dated 14.09.2007 (Annexure-7) and on that basis sought extension of time for filing show cause and in response thereto respondent no.2 sent letter dated 06.11.2007 (Annexure-8) extending the time by ten days and quality test report was given to the petitioner on 05.12.2007 (Annexure-10) on which date the authorities again extended the time for filing show cause by ten days. 5. Learned counsel for the petitioner further stated that thereafter petitioner wrote several letters dated 27.12.2007, 18.03.2008 and 29.05.2008 stating that the report which was supplied to him did not relate to the work area of the petitioner and only part of it related to the work area of the petitioner, but the report required by the petitioner was never supplied to the petitioner and order for black listing the petitioner was passed on 12.06.2008 (Annexure-1) by the Engineer-in-Chief ( respondent no.2). 6. It transpires that the petitioner filed CWJC No.16556 of 2008 before this court against the order of its black listing and vide order dated 31.03.2009 (Annexure-15), a bench of this court disposed of the said writ petition and directed the appellate authority (the Principal Secretary) to consider the representation earlier filed by the petitioner before him treating it as an statutory - 4 - appeal in terms of Rule 14 of the Bihar Contractors Registration Rules, 2007 and to decide the same on merits after hearing the parties and after supplying documents and reports required by the petitioner. In view of the aforesaid order of this court, the appellate authority, namely the Principal Secretary (respondent no.1) passed order dated 28.07.2009 (Annexure-16) dismissing the appeal filed by the petitioner and affirming the original order of Engineer-in-Chief dated 12.06.2008 (Annexure-1). 7. Against the aforesaid appellate order dated 28.07.2009 (Annexure-16), the petitioner filed CWJC No.11662 of 2009 in which learned counsel for the State accepted that it did not appear from the record that the petitioner was given an opportunity of being heard before the appellate order was passed, but the copies of the two reports were duly served on the petitioner and receipt to that effect was available in the file. In the said circumstances, a bench of this Court disposed of the said writ petition vide order dated 06.10.2009 (Annexure-17) and held that the petitioner was not given an opportunity of being heard before the appellate order was passed and hence the appellate order was set aside and the matter was remitted to the Secretary of the Department (respondent no.1) who was holding charge of the Principal Secretary to consider the appeal filed against the original order after providing the petitioner opportunity of being heard by intimating the petitioner about the date of hearing at his registered address through registered post and thereafter the matter should be heard and decided as early as possible, in any case within one month from the date of receipt/production of a copy of that order - 5 - and if the petitioner did not cooperate in the proceeding then the Secretary was to proceed ex parte. 8. Learned counsel for the petitioner also submitted that after the said order of this court opportunity of being heard was provided to the petitioner who placed his case, but the relevant documents asked by the petitioner were not provided and as such the petitioner could not effectively present his case before the appellate authority which was serious discrepancy and finally the appellate authority decided the appeal vide order dated 21.01.2010 (Annexure-2) rejecting the claim of the petitioner. 9. Learned counsel for the petitioner raised an objection that the Flying Squad undertook the inspection on the direction of the Principal Secretary himself, hence the consideration of appeal by the same authority has caused prejudice. He also argued that the order of the High Court for making the documents sought for available to the petitioner was blatantly violated by the authority. It was also argued that the impugned appellate order was cryptic in nature and specific claim of the petitioner had not been properly discussed. 10. The other point raised by learned counsel for the petitioner was that the petitioner had challenged the methodology of test adopted by Flying Squad which was not considered at all. He also argued that the contract between the parties did not stipulate any third party testing. He further averred that the report of the Flying Squad was erroneous as it did not speak the sample size and the method of sampling and it appeared to have been done randomly without adhering to the standards prescribed by the - 6 - Indian Road Congress, Central Road Organisation and the standards prescribed by the Department of scientific and Industrial Research, Road Research Laboratory. 11. Learned counsel for the petitioner stated that work carried out by the petitioner was in terms of the settled standard and only after inspection of the site by the authority concerned the measurements were entered in the measurement book and payments were made. He also argued that errors on the part of the petitioner in carrying out the work had already been made good in terms of P.W.D Code and in terms of contract by reducing the payment made to the petitioner and when the department having accepted that the deficiency in standard was within condonable limit the petitioner cannot be punished for the second time by black listing it. Finally, learned counsel for the petitioner argued that the appellate authority had wrongly chosen to fasten an extreme liability against the petitioner exonerating the officials of the Department. 12. On the other hand, learned counsel for the respondent-State submitted that the petitioner had himself admitted that opportunity of being heard was given to him, whereas order of a Bench of this Court dated 06.10.2009 (Annexure-17) passed in CWJC no.11662 of 2009 specifically showed that the copy of the two reports were duly served on the petitioner and receipt to that effect was available in the file. It was also stated that the impugned appellate order dated 21.01.2010 (Annexure-2) clearly showed that it was passed after considering the entire matter in detail and there was no illegality therein which may require any interference. - 7 - 13. After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that admittedly opportunity of hearing was given to the petitioner by the appellate authority and the petitioner had placed his case before him. It is also apparent from order dated 06.10.2009 passed by a Bench of this court in CWJC No.11662 of 2009, that the copies of the two reports were served on the petitioner and receipt to that effect was available in the file. However, the grievance of the petitioner is that other documents which were required by the petitioner were not supplied to him, but neither any such direction was given in that order, nor there is any material to show that the petitioner ever demanded any other document from the authority concerned during the pendency of the appeal. Hence, this plea of the petitioner appears to be absolutely frivolous. 14. So far the question of measurement, entry in the measurement book, inspection by the Flying Squad and payments made are concerned, it has been found to be not legal and satisfactory and also not in accordance with the terms of the contract for which the petitioner was liable to be punished. What punishment was inflicted upon the accomplices of the petitioner is not the concern at present as in the instant case only the justification of the punishment given to the petitioner is to be considered. 15. So far the petitioner’s challenge to the methodology of test adopted by the Flying Squad is concerned, it cannot be legally challenged as the test has been held by the Testing and Research Institute of the Government and the methodology - 8 - adopted by the said Institute is quite apparent from the said report which appears to be quite proper and justified. So far the objection raised by learned counsel for the petitioner that the contract between the parties did not support any third party testing is concerned, there is no term of contract which stops testing of the work done by the petitioner by a fully competent authorised Government Institute which was necessary for the proper verification of the work done by the petitioner which concerned such an important work of construction, repairs and maintenance of public road, which cannot be left to the mercy of the contractors without testing by a competent Testing Institute, which clearly proved that the work done by the petitioner was below standard. 16. So far the appellate authority, namely the Principal Secretary, is concerned, he was not the person who had lodged any complain against the petitioner, nor he was a member of the Flying Squad. The head of the institution passes a general order with regard to steps to be taken for such work, hence on that basis it cannot be said that the appellate authority was the judge of his own cause. However, in any view of the matter, considering the entire circumstances, a Bench of this court vide its order dated 06.10.2009 (Annexure-17) passed in CWJC No.11662 of 2009 had directed the said respondent to decide the appeal in accordance with law. Hence no illegality now can be pointed out by the petitioner in passing of the appellate order by the Secretary. Furthermore this court after considering the impugned order in detail has found that the claim of the petitioner has been fully considered and each point raised by him has been separately dealt - 9 - with legally and properly. 17. So far the claim of the petitioner that the punishment was disproportionate and extreme is concerned, it has to be noted that once it was clearly found that the work done by the petitioner, namely construction of road, was below standard, there was no question of tolerating such mistake as the roads are life line of the State and any deficiency in it is bound to cause multi- dimensional difficulties for the people as well as for the trade and commerce of the State. 18. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned orders of the authorities. Accordingly, this writ petition is dismissed. Sunil (S. N. Hussain, J.)