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Judgment
83 paragraphs · 1,503 wordsHonourable Mr. Justice Vinod K. Sharma
The Petitioner prays for issuance of a writ in the nature of Certiorari, to quash the order dated 28.11.2011, vide which the respondent No. 2,
has ordered blacklisting of the petitioner from participating in the future tender of Chennai Metropolitan Water Supply and Sewerage Board, for
the period of one year from the date of receipt of letter on account of fraudulent practice adopted in supplying 25 jetting machines and 3 Super
sucker machines. It is also ordered that deficiencies be carried out at the risk and cost of the petitioner. It is further decided to withhold the
payment till finalising the risk and cost of work by calling fresh tenders, and further to forfeit the security deposit. The operative part of the
impugned order reads as under:
Ref: 1. P.O. No. 121/2010 dt.22.06.2010
Show cause notice issued on 10.08.2011
Your letter dated 29.08.2011
Kind attention is invited to the above references cited.
In the reference 2nd cited, you have been requested to show cause why action should not be taken against you, since you have entered into
fraudulent practices by supplying undeterred/substandard pumps along with 25 jetrodding and 3 super sucker machines. The reason stated by you,
vide your reply letter dated 29.08.11 is not acceptable in view of the fact that you have failed to supply the equipments as per the specifications.
The petitioner is a company registered under the Companies Act, and is an ISO certified company engaged in the business of environmental
cleaning, manufacture of mobile equipments such as sewer/drain cleaning equipments, solid waste management equipments and mechanical road
sweepers
The petitioner has supplied more than 3000 machines to different municipal corporations, municipal council, private contractors, water supply
and sewerage board in India and neighbouring SAARC countries.
The respondent is a Government company registered under the Companies Act 1956. The respondent No.1 Chennai Metropolitan Water
supply and Sewerage Board is a statutory board constituted under the Chennai Metropolitan Water supply and Sewerage Board Act, 1957.
The respondent No. 1 notified the bids by open tender on 25.01.2010 for supply and delivery of High Pressure Sewer Jet Roding machines of
6000 and 9000 liters capacity and super sucker machines of 8000 capacity for the removal of sewer obstructions in deep sewers in the State of
Tamil Nadu. The tender of the petitioner being the lowest was accepted.
Being aggrieved by the performance of the petitioner, the respondent No. 2, issued a show cause notice dated 10.08.2011 pointing out the
discrepancies in the machines supplied by the petitioner. The petitioner was thereafter asked to show cause as to why action should not be taken
against the petitioner for the fraudulent act in supplying inferior quality machines, ie. other than then the one ordered.
The case of the petitioner is that in reply to the show cause notice, the petitioner denied the allegations and also submitted a detailed
representation at the time of personal hearing.
The respondent No. 2 on considering the reply, passed the impugned order referred to above.
The learned counsel for the petitioner took pain to challenge the decision of the respondent No. 2, in passing of the impugned order. There is no
necessity to go into the merit of decision at this stage, as the impugned order cannot be sustained, as it does not meet the requirements of
established law, that an order even if administrative which affects civil rights of the party has to be a speaking order giving detailed reasons for
arriving conclusions arrived at.
10 In support of the contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon''ble Supreme Court in the case of
ORYX Fisheries Private Limited Vs. Union of India (UOI) and Others, wherein the Hon''ble Supreme Court was pleased to laid down as under:
In Kranti Associates4 this Court after considering various judgments formulated certain principles in SCC para 47 of the judgment which are
set out below: (SCC pp.510-12)
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b)
A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be
done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on
relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve
one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining
the litigants'' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the
person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ''rubber-stamp reasons'' is not to be equated with
a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only
makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of
Judicial Candor (1987) 100 Harv. L. Rev. 731 37.)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually
a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain5, EHRR at p.562, para 29 and Anya
v. University of Oxford 6, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, ''adequate and
intelligent reasons must be given for judicial decisions''.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law,
requirement of giving reasons for the decision is of the essence and is virtually a part of ''due process''.
The learned Advocate General appearing on behalf of the State, supported the impugned order by contending that the impugned order is a
administrative order passed in discharge of administrative function and that too after complying with the principle of natural justice, as admittedly, a
show cause notice was issued to the petitioner before arriving at the final decision.
The learned Advocate General referred to the show cause notice to defend the impugned order. It was contended that the impugned order is
fully justified in the facts and circumstances of the case, as the petitioner was given opportunity to defend, and the points raised in defence were
considered before passing the impugned order.
On consideration, I find that this writ petition deserves to be succeed. The impugned order does not comply with the law laid down by the
Hon''ble Supreme Court, with regard to passing of even administrative order affecting the civil rights of a person. The right of the petitioner to
participate in the tender and his right to get payment for the machines supplied is directly affected by the impugned order.
The reading of the impugned order does not give any reason, as to why the explanation submitted by the petitioner was not found to be
satisfactory.
The Hon''ble Supreme Court has laid down that justice should not only be done, but it should also appear to be done as well, and that the
order should be speaking order so as to enable the Court or higher authorities, to see the reasons for passing the order. The order not meeting the
requirement of speaking order cannot be justified by counter.Consequently, this writ petition is allowed. The impugned order is set aside with
liberty to the respondents to take fresh decision after giving opportunity of personal hearing to the petitioner. It is hoped that the respondent now
will pass self contained speaking order dealing with all the contentions raised/to be raised by the petitioner.No cost.