Av/gkk/x/ HIGH COURT OF CHHATTISGARH AT BILASEUR DIVISION BENCH: HON. MR. DHIRENDRA MISHRA & HON. MR. R.N. CHANDRAKAR JJ 397/ Wrif Pefi‘rion (c) No.4712 of 2008 PETITIONER M/s Vishvakar'ma Fabricafor‘s. Versus RESPONDENTS Sou’rh EasTern Coalfields Limifed & o‘rher's w,¥ ORDER FOR CONSIDERA'HON S'dl— ‘x 1‘ bgirendra Mishra Judge HON'BLE MR. JUSTICE R.N. CHANDRAKAR Sdl- RaN. Chandrakar ‘ ‘- Judge /\ 3W PosT F012 ORDER ON Wes-2009 Sdl— Dhirendra Mishra: Judge 1 \ “ '3;\1§ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (C) No.4712 of 2008 PETITIONER: M/s Vishvakarma Fabricators, Through Partner Punit Vishvakarma, S/o Suresh Prasad Vishvakarma, aged about 26 years, R/o Mauhapara, Manendragarh, District Korea (CG) i Versus South Eastern Coalfieids Limited Through its Chief General Manager, (C.M.C.) South Eastern Coalfields Limited, Bilaspur, District Bilaspur (CG) General Manager (Civil), South Eastern Coalfields Limited, Bilaspur, District Bilaspur (CG) Chief Manager, South Eastern Coalfields Limited, Bilaspur, District Bilaspur (CG) RESPONDENTS: (Writ Petition under Article 226/227 of the Constitution of India) Present: Smt. Anju Ahuja, counsel for the petitioner. Dr. N.K. Shukla, Sr. Advocate with Miss Ritu Mishra, Advocate for the respondents. Division Bench: Hon’ble Shri Dhirendra Mishra & Hon’ble‘Shri R.N. Chandrakar JJ. ORDER (Passed on l Z#August, 2009) The following order of the Court was passed by Dhirendra Mishra, J. 1. The petitioner by the instant petition has prayed for quashing of the order of Annexure-P/1 dated 8-8-2008 whereby the competent authority of the respondent SECL has banned the petitioner from further business in SECL .for a period of 12 months w.e.f. 151 August, 2008‘a’nd has further prayed for' 3w direction to the respondents to aHow the petitioner to participate in the coming tender and no coercive steps be taken against the petitioner. 2. Brief facts necessary for the purpose of this petition are that the petitioner participated in the tender process initiated by the respondents vide Annexure— P/2. His tender was accepted vide order dated 13-12—2006 and the work order dated 12-2-2007 of Annexure-P/3 was issued. 3. The grievance of the petitioner is that in spite of petitioner's successfully completing the contract within time allowed for the same, the respondents have issued circular of Annexure—P/1 and thereby blacklisted the petitioner for a period of 12 months for further business in SECL as a penalty on the false ground that he submitted wrong information while submitting the documents in support of his eligibility criteria of NIT and he has concealed the facts regarding ownership of the tipping trucks for qualifying eligibility criteria against NIT. Befbre passing the impugned order, the petitioner was not given any opportunity of hearing nor any evidence was recorded. The issue of ownership of tipping trucks was raised after completion of the work. The action of blacklisting the petitioner is adversely affecting the business of the petitioner. The impugned order has been passed against the petitioner which visits civil consequences upon the petitioner, however, the same has been passed without observing the principles of natural justice and, therefore, the same is bad in law. Referring to documents of Annexures-P/8, P/9 and P/10, it was argued that the petitioner had submitted documents pertaining to the agreement for purchase of 11 numbers of trucks from its registered owner vide Annexure~ P/8 and intimation was duly given to the RTO, Bilaspur regarding above —\ "\ it, . \ purchase vide Annexure-P/9 and thereafter he had sold the vehicles to Sushil Agrawal vide Annexure-P/10 dated 2-11—2007, as he had purchased new vehicles vide Annexure-P/1 1. He had duly intimated the Engineer in-charge of the work regarding change of vehicle engaged in the work vide document of Annexure—P/12. Since the petitioner was not given any opportunity by the respondents before blacklisting, the aforesaid facts could not be brought to the notice of the respondents. 5. Learned counsel for the petitioner vehemently argued that it is settled law that before a person who is proposed to be blacklisted for having committed breach of contract, an opportunity of hearing has to be given. Any order having civil consequences should be passed only after following principles of natural justice, as blacklisting of any person in respect of business venture has civil consequences for the future business of the person concerned. Even if rules do not express so, it is an elementary principle of natural justice that parties affected by any order are heard and provided an opportunity to “ l make representation against the order. __6. Relying upon the judgment in the matter of Mls Erusian Equipment and Chemicals Ltd., V. State of West Bengal and another {AIR 1975 SUPREME COURT 266}, it was argued that blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to A.\&present his case before he is put on the blacklist. .\ \7 ‘3 u)? 7. On the other hand, Dr. N.K. Shukla, learned senior counse! appearing on behalf of the respondents would submit that the petitioner had participated in the tender process by making a faise deciaration on oath that none of the partners of the firm is reiative of employee of the SECL, whereas, father of the petitioner, Shri Suresh Vishwakarma was working as Accounts clerk at Jhagarakhand.. He had further declared that in case any of the contents in affidavit (Annexure-R/1) and information submitted by him is found to be false or incorrect, the respondents shall be at liberty to blacklist the firm, apart from other action that could be taken against the petitioner firm. It was further argued that petitioner Punit Vishwakarma had himself submitted declaration in a vigilance enquiry that tippers which were engaged at the initial stage were sold by him and, therefore, he was not in a position to produce those documents. Thus, the petitioner had procured contract by making wrong declaration with respect to his eligibility for participating in contract with regard to ownership of the tippers and in the circumstances, the petitioner was blacklisted. 8. However, on being pointedly questioned - whether the petitioner was afforded with an opportunity of showing any cause before he was blacklisted? He fairly admitted that no notice was issued by the respondents before issuing circular of Annexure-P/1. lt was argued that rule of audi alteram partem has no application to the facts of the present case, as from the documents annexed with the return, it would be evident that the petitioner made a false declaration on oath at the time of submitting tender and. thereby suppressed the fact that his father was employed as Accountant clerk in the SECL and also gave false declaration regarding ownership of the tippers, which is -xrml from his own declaration that he had made‘in the vigilance enquiry. Even otherwise, the instant petition has become infructuous, as the petitioner was blackiisted only for a period of 12 months w.e.f. 15‘ August, 2008 and the period for which he was blackiisted has already come to an end. We have heard learned counsel for the parties. We have perused pleadings as well as documents filed by the respective parties. 10. So far as the argument advanced by learned counsel for the respondents that the instant petition has become infructuous, as the period for which the petitioner has been blacklisted has come to an end is concerned, we are of the opinion that blacklisting of a contractor visits civil consequences on him and the same does not wipe out only after the period expires for which he is blacklisted, as the same remains as scar for his future career and therefore, the petition does not become infructuous after expiry of ban period. 11. From the document of Annexure-P/1, it is evident that extreme step of blacklisting has been taken against the petitioner only on the ground that the petitioner while submitting documents in support of eligibility criteria of NIT concealed the facts regarding ownership of the tippers for qualifying eligibility criteria against NIT and, therefore, the petitioner firm was banned for futther business in SECL as a penalty for submitting wrong information regarding ownership of the tippers. The above action has not been taken against the petitioner on the ground that he suppressed the fact that his father was employed as Accountant clerk with the SECL in his affidavit. 12. So far as the declaration made by the petitioner before the vigilance commissioner regarding disposing of the tippers and purchasing new tippers during the currency of contract is concerned, only on the basis of above declaration, the respondents were not justified’in taking extreme step of .\¢ 3M ,7 ‘3 WK blacklisting without affording an opportunity of hearing to the petitioner against the proposed blackiisting, particularly, in View of the documents filed by the petitioner along with his petition, which reveal that the petitioner claims that he had purchased trucks from Sushil Agrawal before submitting his tender by an agreement and thereafter he had sold back the same to said Sushil Agrawal and purchased new trucks. 13. In View of the settled principles of law regarding blacklisting as mentioned in the foregoing paragraphs, we are of the considered opinion that the SECL was not justified in blacklisting the petitioner vide circular Annexure-P/1 without affording him any opportunity of hearing. 14. In the result, the circular Annexure—P/1 whereby the petitioner was banned for further business in the SECL for a period of 12 months w.e.f. 15‘ August, 2008 is hereby quashed. 15. However, it shall be open to the respondents to initiate fresh process of banning-after affording an opportunity of hearing to the petitioner, in accordance with law. 16. The petition is disposed of in the aforesaid terms, ///’l \kg /) / Sd/ Dhirendra Mishra'; Judge 3d]- ; KN. Chandmka‘" t Judge Barve