M/S Gulab Chand Jain v. State Of Chhattisgarh And ORS.

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IN THE H'

ONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR w.p. (C) No............ .£¢;3é£..../2014 { PETITIONER :

M/s Gulab Chand Jain through Trihil Jain S/ o Late Shri Vinod Jain Aged about 28 years R/ o Parshva W # M (7% W Appartment, Choubey Colony, ww'

Raipur, Police Station Civil Lines, Tehsil District Raipur (C.G.)

VERSUS

TS /'

RESPONDEN :

1.

State of Chhattisgarh Through : Secretary Urban Development Department, Mahanadi Bhawan, Mantralay, New Raipur, (C.G.) 2.

Municipal Corporation Raipur, through Commissioner, Municipal Corporation Raipur, (C.G.) 3."

Commissioner, Municipal 'K Corporation Raipur, New Head Office, Near Gandhi Chowk, Raipur, (C.G.) Zonal Commissioner, Municipal Corporation, Raipur, New Head Office, Near Gandhi Chowk, Raipur, (C.G.) WRIT PETITION UNDER ARTICLE OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE CERTIORARY, MANDAMUS,

ORDER

OR ORDERS, DIRECTION OR DIRECTIONS OR LIKE

@ggzw HIGH COURT OF CHHATTISGARH, BILASPUR D.B.:

HON'BLE SHRI NAVIN SINHA. ACTING C.J. & HON'BLE SHRI GOUTAM BHADURI J W.P. (C) No. 2368 of 2014 PETITIONER M/s Gulab Chand Jain

Versus

RESPONDENTS State of Chhattisgarh and others WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF '

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INDIA Appearance:

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Shn RahuIJha counselforthe petitioner r, Shn J K Gilda Advocate General forthe State Shn Kashtf Shakeel counsel for the respondents No 2 to 4 RDER (2 12.2014) , NAVIN SINHA. ACTING C.

I t z 1.

We have heard Learned Counsel for the Petitioner Advocate General behalf SPIh gtate xi?

Counsel Mumcrpal Corporation.

2.

Learned Counsei for the Petitioner at the outset submits that the termination of the contract is the subject matter for a separate challenge. The grievance present writ application against order dated 8.8.2014 limited to the extent that blacklists the Petitioner for one year from being a bidder for any contract under Corporation.

ground urged absence any opportunity by show notice before final

blackiisting.

3.

Learned Counsel for the Corporation submits that clause-4 of 'the Additional Speciai Conditions contract provided debarment from participating in any tender for a period of two years from the date of termination of the contract. The Petitioner was weii aware that he couid be black listed in case of non-performance. 4.

Reliance is next placed on a letter dated 31.3.2014 issued to Petitioner that his name would placed blacklist for which he would be respOnsibie himself; In any event the duration of blacklisting was short.

r5.

We have considered-the submissions behalf parties.

Blacklisting o ractor is a serious matter.

lt not only lo c n d affects reputatio mmerciai world which turn can have myriad conseque beyond immediate r blacklisting.

It has therefore been held repeatedly before ordering blacklisting twp'érWCmwmed must be given a proper show cause notice with an opportunity to defend and convince that not ordered.

Merely because duration of the black listing may be 12 months only, we are not inclined to hold that period was too short to warrant any interference.

6.

Clause-4 Additional Special Conditions contract undoubtedly provides for blacklisting.

lt will not mean an absolute unilateral right to do so in violation of the principles of natural justice. It is merely an enabling provision subject to compliance with the law.

7.

letter dated 31.3.2014 sought to be reiied upon by the respondents as show notice prior to blacktisting misconceived.

letter states 12.3.2014 as also 24.4.2014 the Commissioner had inspected the works and given instructions for expediting completion of works. The Petitioner had agreed to do so. The progress was slow and it does not appear that '

will completed.

He was directed to submit progress reports every week for completion of works within the schedule time ln the event of non compliance steps shall be taken In accordance With law for blacklistmg V The tenor of the letter leaves no doubt that It was essentially a reminder to expedite com of the works and submit weekly pletion reports. The letter rel ifi '

steps would be take cklisting in accordance with law. The nrf issued as to why blackliatingjge JMLT £\( '3'

not ordered We therefore have no hesitation in holding that letter dated 31.3.2014 was not show cause notice for blacklisting. The letter dated 8.8.2014 does not refer to the communication dated 31.3.2014 even.

9.

The impugned order makes no reference to any show cause '

notice given as to why the petitioner be not be black listed. The impugned straightaway proceeds to blacklist making unsustainable on the face of it.

, 1F, In (2014) 9 SCC 105 (Gorkha Security Services v. Govt. (NCT of Delhi) it has been observed :

"16.

It is a common case of the parties that the has to preceded by shownotice.

Law this regard mmly grounded and does not even demand much amplification.

necessity compliance with the principles of natural justice by giving opportunity to the person against whom action of blacklisting is sought to be taken has valid solid rationale behind it.

With blacklisting, many civil and/or evil consequences follow.

It is described as "civil death"

person who foisted with blacklisting.

Such an stigmatic in nature and debars such a person 'from'

participating government tenders which means precluding him from the award of government contracts.

{21.4The central issue, however, pertains to the r equirement stating aCtionwhich roposed wto taken.

fundamental p ehind sewing show-cause make the noticee understand the o c ase set up against him which he has This would require the statement of tions detailing out the alleged breaches nd'defaults he has committed, so he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of ction wihich is proposed should also to be such taken Viwgif'bregt'tt.-That stated so the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained.

When comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.

31 . When it comes to the action of blacklisting which is termed as "civil death"

it would difficult to accept the proposition that without even putting noticee to such contemplated action and giving him a 'chance to show cause as to why such an action be not taken, final can passed blacklisting such a person only on the premise that this is one of the actions so stated in the provisions of NIT."

@ 11.

dated 8.8.2014 Petitioner set aside without prejudice to the rights of the Respondents afresh v accordance with law.

12.

The application is allowed.

Sd/- Goutam Bhaduri Sd/- Judge Acting Chief Justice timed mt?