Ut^^U "^-fi^^ l^T' ^"lE" .^UE_i!A'?'^*?m^n> ni^nwyuKi UI"WPIMA! ii^ & 5,1 c.S^dfil'^SP^. J»?B?I sr ^uoi r^s WRIT PETSTSON (C*; N0. 606/200! M/s Kaiiash Sharma, Through Partner Kailash Sharma, Sharma, Aged about 49 years, Dhimrapur Chowk, Jindai Road, Raigarh, Tahsil & District Raigarh (CG) axmi-kripa, isp:^pr%MH^^ Piesent State of Chhattisgarh, Through the Secretat-y, Panchayat & Rural Development Department, DKS ihawan, IViantraiaya, Raipur. Ch >-hhattisgarh Rural Road Development Authority (CGRROA), through the Chief Engineer, Civit Lines, Raiupr (CG) The Chief Executive Officer, Chhattisgarh Rural Road Development Authority, Vikas Bhawan, Raipur (CG) Mr. A.K. Dubey, counsel for the petitioner. Mr. Vinay Harit, Dy. Advocate General with La\wer for the State. -. S.K. Mlshra, Panel (Passed on -14th January, 2010) Pe.r Dhirendra Mishra. J The petlt'oner by the instant petition has irnpugned the Annexure P/5 passed by respondent No.2 whereby he debarred for a period of two years from the date of issuanc from participating in the tender process of Chhattisgarh R Development Authoi'ity (in short "CGRRDA"). n'r W£.. order of has been e of order The petitioner has impugned the above order soiely on the ground that the aforesaid order has been passed without affording any opportunity of hearing, v/ithouf foilovu'ing the principies of natura! justice and the same has been .passed maiafideiy \vith a purpose to help other .yiitidl/LU;^. 03. Shri A.K. Dubey, learned counse! for the petitioner submits, thst the petl'tioner is a registered A-5 ciass contractor with the respondents, 'ne 1 participated in the open tender process and submitted his bid for the v/ork for construction of roads under ths scheme Pradhan Mantri Gram Sadak Yojna. The offer of the petitioner belng the iowest was accepted and respondent No.2 vide his memo dated 28.4.2008 (Annexure P/1) apprised the petitioner that the Letter of Acceptance could not be Issued within the stipulafsd period and if the petitioner agrees, vaiidity period of his offer rnay be extended by 31 May, 2008. The petitioner was served with a notice of Annexure P/2 aileging thereln that in response to N!T for the group No. CG 13-46, the petitioner submitted his offer showing existing commitments "N!L" by' enciosing completion certification asainst two works under Pradhan Mantri Gram Sadak Yojana (In short "PMGST'5 i.e. Work No. CG 13-22 and CG 13-24, •A'hich iwas singed by the Assistant Engineer, w'no was not competent to give such certificates as per Clause 4.6 of the Instruction to Bidder (in short "ITB") of the tender a'ocument. h'e v/as asasn served with a notice dated 4.6.2008 caliing upon him to show cause as to why his name should not be entered in the biackiist for a period of one year as per Ciause 4.2 of the "Special Cona'ition of Contract" of the tender document and he be debarred from participating In the tender process of PMGSY for deiiberately suppressing information regarding existiny work. !n rssponse to the said notice, the petiticner requested for further infbrmation regarding detaiis of information, which is alieged to have been suppressed by the petitloner. However, without furnishing the details, the petifioner -was debarred for a period of tA'o years vide impugned order of Annexure P/5, though by notice of Annexure P/3, a propos?.! for debarring him for a period of one year was contemplatsd. 04. Learned counsei for the petitioner submits that the compietion certificate submitted by tSie petitioner was duiy signed by the Assistant Engineer of She respondents and therefore, the same cannot be termed to be suppression of fact and it was oniy a technical lapse that the same was not signed by the competent authority authorized as per Ciause 4.6 of ITB. From bare peruss.l of Annexure P./3, it is clear that the necessary particuiars regarding suppression of facts are not mentioned In the said notice. The action of:biacklisting the petitioner is liksly to cs.ase clvil consequences and the same couid not be resorted to without following the principtes of natural lustice. ^s^ 1 [s l''i.:—rf-''.;<•"' 'f"" ...?'•'' 05. Reiiance is 06. placed on judgrnent in the matter of B.S.N. Nair Coal Services Ltd. and oihers'. On the other h?nd, Shri Vinay S-^arit, learned Dy. Advocate Gsneral with S'nri S.K. Misht-a, learned Panel Lawyer appearing for the State, submits that as per petitioner's ovi/n documents annexed with the petition, !t is rnanifestiy clear that the petitioner submitted his offer enclosing a certificate issued by the Assistant Engineer to the effect that to'o works awarded to him have been completed. The petitioner was alTora'ed an opportuni'iy by the respondent No.2 vide Annexure P/2 to submit expianation by filing certificate of the competent authority as per Clause 4.6 of !TB that fhe eariier tv/o works were completed. However, the petitioner did nof reply to the said notlce. in these circurnstances, a finai show cause notice on the same subject was issued to the petitioner with ths proposed action. The petitioner instead of replying to the shov/ cause notice, took a technical objection and asked fcr particulars of the work, whlch '»vas not compieted and evasively repiied that a!i the works entrusted to him has besn compjsted by him on the dats of submission of offer. !n these circumstances, the impugned order ofAnnexure P/5 was passed. 07. Vi'e have heard iearned counsei for the parties and perused the docurnents fited by the petitioner. 08. indisputably, the petitioner in response to NIT, issued by the rsspORdents, submitted his offer annexing completion certfficate of the Work No. CG 13-22 and CG 13-24. Slnce the certificate was not issued by the competent authority, the petitioner was cailed upon to submit his expianaSion regarding comptetion ofths aforesaid works OR 12.3.200S vide Annsxure P/2. The petitioner did not rep!y to the said notice- and in thsse circumstances, a notice of Annexure P/3 dated 4.6.2008 was issued. The petitioner did not specificaily replied to the contents of the said notice and instead, sought certain information regarding details of < work, which was ,a!Seged!y not compieted by hirn and on!y after receiving the aforesaid repiy, by the impugned order, he was debarred for a period oftwo years vi/.e.f. passing ofthe order ofAnnexure P/5 i.e. 14.8.200S. 03. in B.S.N. Joshi & sons Lid. , the appeliant had inade a counter ciaim raising bonafide dispute. He v/as not issued tender form by the State • (2006) 11 SCC 548 Ks'S.~SSSi^ i?1 Electricity Board on the premise that he is a clefaulter. The petitione!r¥ filed a writ petttion, which was dismissed by theleamed Single Juctgs by recording a finding that the petitioner was a defaulter in respect of the said demand, and refused to intervene in the decision making process. The appeal wasfurther dismissed by the Division Bench ofthe High CQurt with an observation that the appellant, admittedly, being a defaulter, it cannot besaid thatthe Board has committed any illegality in outstanding the appellantfrom the tender process. In para 40 itwas observed that when a person is ptaeed in the eategory of declared defaulter, it must precede a decision. In the cited judgment, para-20 pfthe judgment in the matter of Enisian Equipment& Chemicals Ltd. Vs. StateofW.B., (1975) 1 SCC 70 and para 4 of Raghwath ThakurVs. StateofBihar, (1989) 1 SCC 229, which read as under, have been reproducedwith approvaf. "20. Biacklisting liastheeftect ofpreventing a person from ie piiyilege and advantage of enteting into lawfut felaVonsfvp viriffii the Gcwemment for piffpows of gams. Fhe (act fftaf a disabiKty is created Sy^orcfer ofbtacMisVng indicates tf?af the relevant authority is te have an objective satisfactioti. Fundamentals of fair play require that the person concemed sfioutd be given an opportunityto representhis case before hisis put on the blacklist" "4. Indisputabiy, no notice had been given to appellant of the pmposal of blacklisting,ttw appellant. It was contended on behalf of Stafe Government ttiat thet-e was no requiiement in fr»e rule of giving any prior nottce 6eK>re blacklistirig any person. Insofar as ffie contention that there is no requirement specifically of giving any noVce is ooncemed, ihe respondent is right. But it is an /mpfed principle af Vne rule of iaw that any order hawng civitconsecfuenceshoilldbepassedonlyafter l ioHaMngthe principlesof r'atwal jus^oe. It^as i to be realized ttiat blacklisting any person jn j respect of business ventures has civil | consequence fbr ffie futuie tiusness of Wse i personconcerrwd^nanyevent. EveniffheVtiles i Ckinotexpressso,itisarfielementaryftrinc!iple | ofnafura/JusfeeffTafpafSesaffisctecf&yany | order shduld haye light af being heard and i making riepresentatmnsagainstthe or^r". ^ I .! 10. However, in the ihstant case, before passing the impugned order qf Arinexure P/5, the petitioner w?s served with a riotice df Annexure P/^ on 12.3.20Q8and again with a notice QfAnnexure P/3idated 4.6.200)8; li-=t-fc^-= .!>'„>" ' s 1u ^s ;^^^ ^^SB^^^^aiS^ proposing action contemplated against him and therefore, it cannot be said that the petitioner was not given any opportunity to represent his case before he was debarred from participating in the tender process in the work ofthe respondents. 11. On due consideration of the documents annexed by the petitioner, we are satisfied that the petitioner was throughout evasiye with respect to actual completion of work No. CG 13-22 and 13-24. Even before this Court, he could not claim thatthe aforesaid works were completed in all respect and no any document by a competent authority under Clause 4.6 of ITB has been filed. in these circumstances, the action taken against the petitioner of debarring him from participating in tender process under PMGSY scheme cannot be faulted. However, taking into consideration that 'by notice pf Annexure P/3, respondent No.2 had proposed action of debarring the petitioner oniy for one year and by the impugned order of Annexure P/5, he has been debarred for a period oftwo years, we deem it appropriateto dispose of this petition with an observatioh that the petitioner coyld not be debarred for a period of more than one year, as proposed in the notice of Annexure P/3. With theseobservations, the petition stands disposed of. Sd/- Dhu-endra Mishra Judge Sd/- ^. chandrakar 5ud&e F/