IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1094 of 2008 M/S MAA SAROJ CONSTRUCTION PRIVATE LIMITED Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr Vinay Kirti Singh. Mr. Akhileshwar Singh For the Respondent : Mr. Baiyadanath Thakur J.C. to SC-18 04 21.08.2008 Heard. The petitioner is aggrieved by the order of the Joint Secretary, Government of Bihar in the Department of Water Resources, as communicated to him under Memo No. 2479 dated 01.10.2007, by which the petitioner has been black listed in terms of Bihar Enlistment of Contractors Rules, 1992. The State had issued NIT No. 05 of 2005-06, in relation to certain works to be done within the irrigation region of Murliganj in district Madhepura. The said tender was in three groups. The petitioner being desirous of participating in the said tender, purchase the tender document and filed his tender paper in respect of group 1 and 3. The last date of submission of tender papers was 7th March 2006. While doing so, for group 1, as against earnest money of Rs. 23,700/- and as against group 3 of earnest money of Rs. 15,400/- by mistake he deposited in respect of group 1 earnest money of Rs. 25,000/- i.e. 1300/- in excess and in respect of group 3 he deposited Rs. 15,300/- i.e. Rs. 100/- short, this mistake was realized, when the tender papers were opened on or about 17th of March 2006. so far as, tender for group 1 is concerned, there was no difficulty, as he has deposited substantial amount in excess as authorities were not ready to adjust this Rs. 13,00/- in excess deposited for group 1, as against short - 2 - deposited of Rs. 100/- in group 3. He purchased fresh NSC for Rs. 100/- from the Post Office on the 17th of March and submitted for the same to be considered for the group 3 tender. This on being detected, a show cause notice was issued to him on 06.11.2006 (Annexure-2), all that was said in this show cause notice was that the petitioner had unauthorizedly in a wrong manner deposited NSC worth Rs. 100/- on 17.03.2006, when the last day of tender was 07.03.2006. Petitioner responded with the said explanation, which was apparently not accepted and the impugned order as communicated to the petitioner in Memo No. 2479 dated 01.10.2007 has been passed. In the impugned order, it is said that petitioner tried to interpolate the date 17.03.2006 on the NSC to show or read as 07.03.2006, and for this Rs. 100/- he has been black listed. The effect, whereof, is that for the next three years the petitioner meets civil death. Petitioner has annexed copy of the NSC, as submitted by him, which prima facie does not show any such interpolation. Counter affidavit and rejoinder have been filed and with the consent of parties the writ petition is being disposed of at this stage of admission itself. In my view, the writ petition must succeed and the order black listing cannot be sustained. There are two reasons for the same. Firstly, a reference to Annexure-2, show cause would show that till that stage there was no allegation, whatsoever about interpolation or overwriting on the NSC. The only allegation was of having submitted the same wrongly on 17.03.2006. Thus, in my view, the finding in the final order that there was interpolation on the NSC cannot be sustained, as there was no such - 3 - allegation when the proceedings were commenced. The allegation or the finding were not preceded by a notice, in this regard, the finding is, thus, not sustainable. This is, more so, in view of a copy of the NSC, as appended by the petitioner which on the face of it does not show any interpolation. Respondents have not brought on record any copy of NSC, which is with them to contradict or controvert the same. On that finding alone the order black listing petitioner cannot be sustained and must be set aside. The second reason is the principle of de minis. From the facts noted above, it would be seen that it was a bonafide mistake on part of the petitioner, which could not be made culpable to the extent of black listing. It is not in dispute that in the same tender for group 1 by mistake petitioner deposited excess earnest money of Rs. 1300/- in excess, as against Rs. 23,700/- he deposited Rs. 25,000/- by mistake for group 3 of the same tender in stead of Rs. 15,400/- as earnest money by mistake he deposited Rs. 100/- short. The excess deposited and the short deposited both were in the response to the same tender for different group before the same authority, this itself shows the bonafide of the petitioner and should have ended there, rather than, pursued and make a mountain out of a mole hill. It was, too, trivial a matter for such a drastic action being taken. It ought to have been ignored. There could not have been any intention, much less, wrongful intention in submitting short earnest money and excess money for the same tender. Excess was also deposited, which was much more than the shortage. In these view of the matter, the order impugned cannot be sustained and must be set aside. Annexure-1, impugned order is quashed and the writ petition is allowed. - 4 - As the order of black listing has been set aside the petitioner would entitle to receive payment for all work done after proper measurement in presence of the petitioner. Trivedi/ (Navaniti Prasad Singh,J.)