IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11401 of 2009 UCHHAHI SINGH, S/o- Late Suryadeo Singh, Resident of Village- Nawaka Tola, P.O.- Mairwa, P.S.- Mairwa, Block- Mairwa, District- Siwan :-- Petitioner. Versus 1. THE STATE OF BIHAR through the Chief Engineer (Pramukh), North Water Resources Department, Government of Bihar, Patna. 2. The Superintendent of Engineer, Saran Nahar Pramandal, Siwan 3. The Executive Engineer, Saran Nahar Pramandal, Mairwa, Siwan :--- Respondents. ----------- 3. 15.10.2009. Heard learned counsel for the petitioner and the State. 2. Learned counsel for the State prays for time to file counter affidavit as he could not receive instructions in the light of the orders of this Court dated 4.9.2009, whereunder this Court adjourned this matter directing that the matter be listed on 7th October, 2009 so that in the meanwhile counter affidavit is filed by the respondents. In the light of the orders of this Court dated 4.9.2009 the matter was placed on the list earlier but is being taken up today as the same was placed quite below in the list time in the meanwhile, however, was not utilized by the State- counsel to file counter affidavit. In the circumstances, I am not inclined to grant any further time to file counter affidavit and the prayer of the State counsel to grant further time is refused. 3. Petitioner is aggrieved by the order dated 21.05.2009, Annexure-15 and office order bearing memo no. 406 dated 28.5.2009, Annexure-16 passed by the Executive/Superintending Engineer, Saran Canal Division/Circle, Gandak Project, Siwan, whereunder he has been black-listed. In this connection it is submitted on behalf of the petitioner that by profession he is a contractor and has been registered in the Saran Canal Division/Circle, Gandak Project, Siwan for undertaking contract work and pursuant to such registration from time to time he has been executing the works under the Saran Canal Division/Circle to the satisfaction of all concerned and there had been no occasion in the past that he was found conducting behaviour unbecoming of a civilized person either during or after the execution of the works entrusted to him. Presently the authorities of the Saran Canal Division/Circle discharge their duties by executing the contract works departmentally and petitioner and other contractors registered with the Saran Canal Division/Circle are not being - 2 - entrusted with execution of any contract work yet petitioner has been visited with the order dated 21.5.2009 and office order dated 27.05.2009, Annexures 15 and 16 black-listing him and the two orders are contrary to the provisions contained in Sub-Rule (ii) of Rule 18 of the Bihar Enlistment of Contractors Rules, 1992 (hereinafter referred to as the “Rules”) as in terms of the Rules the contractor can be black-listed if obvious defect is found in the work executed by him or his conduct and behaviour is found unbecoming of a civilized person either during or after the execution of the work. 4. Learned counsel for the petitioner states that from the notice as also from the impugned orders passed against him it will appear that he has not been black-listed on account of defect having been found in connection with the work executed by him. His behaviour was also not found unbecoming of a civilized person either during or after the execution of the work. The two impugned orders dated 21.5.2009 and 27.5.2009, Annexures 15 and 16 in the circumstance is fit to be set aside on the ground that the same is passed contrary to the provisions contained in Sub-Rule (ii) of Rule 18 of the Rules. It is further submitted that the order black- listing the petitioner is the result of the grievance which the petitioner had raised against the departmental authorities, namely, the Executive/Superintendent Engineer as according to the petitioner the quality of the departmental work which they had supervised was not up to the mark and in this connection he had represented before this Court and this Court under orders dated 27th November, 2008 passed in C.W.J.C.No. 16754 of 2008, Annexure-2 directed him to represent before the Chief Engineer, North, Water Resources Department, Bihar who having considered the representation entrusted the enquiry on the allegation made by the petitioner to the three Executive Engineer and the Superintending Engineer but the enquiry team could not make any enquiry as would appear from the report of the enquiry team dated 19.2.2009, Annexure-7, whereafter the two impugned orders dated 21.5.2009 and 27.5.2009, Annexures- 15 and 16 were passed by the Executive/Superintending Engineer respectively black-listing the petitioner. - 3 - 5. Having heard counsel for the petitioner and the learned counsel for the State, I am of the view that the petitioner should challenge the contents of the order dated 21.05.2009 and 27.05.2009, Annexures- 15 and 16 before the Principal Secretary of the Department who should consider the challenge of the petitioner against the two orders in the light of the representation of the petitioner filed against the quality of the work departmentally executed under the supervision of Executive/Superintending Engineer, Saran Canal Division/Circle which was the subject matter of Enquiry Report dated 19.02.2009, Annexure-7 but before passing the final order the learned Principal Secretary would also consider the grievance of the petitioner in regard to the quality of the work departmentally executed under the supervision of the Executive/Superintending Engineer, Saran Canal Division/Circle as the Enquiry Team earlier constituted in the light of the orders of this Court dated 27th November, 2008, Annexure-2 could not conclude the enquiry in regard to those works as is evident from the report dated 19.02.2009, Annexure-7. Representation of the petitioner requesting the Secretary to make enquiry in regard to the work departmentally executed by the Executive/Superintending Engineer, Saran Canal Division/Circle be concluded by the departmental Secretary, as early as possible, in any case within a period of one month and thereafter he should consider the representation of the petitioner filed against the two impugned orders dated 21.05.2009 and 27.05.2009, Annexures- 15 and 16 and pass appropriate final orders in accordance with law as early as possible in any case within another one month. In the event learned Secretary is not satisfied about the quality of work executed by the departmental authorities of the Saran Canal Division/Circle then he shall make appropriate reference for lodging a vigilance case against the erring officials before the Cabinet Vigilance Departmental. 6. This writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)