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Judgment
Heard learned counsel for the parties. The appellants- State is aggrieved against the order dated 27.7.2011 passed in W.P.(C) No. 137 of 2011 by which the writ petition of the respondents was allowed and the order for black listing the writ petitioner dated 20.12.22010 has been quashed. The brief facts of the case are that writ petitioner was the successful bidder and, therefore, it was awarded the work of contract for consultancy services and construction, supervision for development of the State of Arts Mega Sports Complex at Hotwar, Ranchi. Under the contract the total consideration amount was Rs. 10,30,00,000/-, which was to be paid in phased manner. The date of commencement of work was 4.12.2004 and the date of completion of the work was up to 31.12.2006. Admittedly, the petitioners could not complete the work in time however, petitioners plea was that in fact material changes have been made in he work awarded to the writ petitioners and they gave certain examples that total value of the work was earlier fixed was Rs. 206 Crores for the two works; (a) planning and designing of drawing i.e. bid process management and (b) project management supervision of the construction work. Originally the Administrative Block building was to be constructed in an area of 25,000/- square feet but the total area of the Administrative Block was increased to 1,25,000 square feet and thereafter, a number of additions like shopping complex, construction of Amphitheater, jogging track were made which escalated the cost of the project and the value of the work was increased from Rs. 206,00 Crores to Rs. 356,00 Crore and then again increased to Rs. 423 Crore and finally to Rs. 506 Crore. In spite of all these alterations and increase m the work, according to the petitioner they completed certain works by 3rd April, 2006, which was duly certified by the Executive Engineer, Special Works Department by giving a certificate on 3rd April, 2006. The petitioners'' contention is that because of that reason the work was delayed. Not only this, the work was delayed because of that reason, but in fact the delay was caused due to other contractors, who were to execute the work and the petitioners'' work was only for consultancy, who could have advised the contractors to do the work. Instead of taking action against the such defaulter contractors by terminating their contract and black listing them, the Respondents black listed the writ petitioners. It h submitted by the writ petitioner that the original cost of work of Rs. 356 Crores ultimately increased to Rs. 506.00 Crores and petitioners continued with the work to the maximum extent to which they could have done. The petitioners work contract expired on 30th November, 2007 and thereafter, the petitioners'' terms of contract was not extended inspite of petitioners request in writing. In these facts and circumstances and specifically in view of the end of the term of the contract, petitioners could not have continued with the work and unnecessary allegation has been leveled against the petitioners that without completing the work they left the place and virtually ran away. The writ petitioners thereafter, submitted that petitioners bills were not paid inspite of demands and even without getting the payments of the bills, petitioners continued the work beyond the contract period and up to 4.2.2008. In these facts and circumstances, there was no justification for blacklisting the petitioners.
It appears that the State in counter placed on record several letters, copies of which are placed before us also to indicate that several letters reminders and warnings were given to the writ petitioners to complete the process expeditiously, as the project was of State''s importance as Mega Sports Complex was to be constructed so that mega event of national sports could have been held in Ranchi
Learned counsel for the State vehemently submitted that petitioners did not request for extension of time at any time, however he requested for payment, but according to the State, payment which, was due has already been paid to the writ petitioners up to the extent of 65% of the total payment which was only the cost of the service given by the writ petitioner. Learned counsel for the State- Appellants submitted that the learned Single Judge committed serious errors of fact and law ant proceeded under some assumption that the petitioners were blacklisted on the recommendation of the committee constituted by the Vidhan Sabha and that too without giving any notice or show cause, whereas the petitioner was duly served with the show cause notice by the competent authority who passed the impugned order and the respondent also submitted the reply to the notice. Learned Single Judge also proceeded to decide the matter by accepting the plea of the writ petitioners that the other contractors were not blacklisted or no action was taken against other contractors, which cannot be a ground in a case where serious fault on the part of the petitioners was found from the trustworthy documents which cannot be denied by the petitioners that they were given several letters, reminders and warning for doing the work expeditiously and admittedly the petitioner not also abandoned the work but in fact ran away leaving the important work incomplete.
We have considered the submissions of the learned counsel for the parties and the reasons given in the impugned order as well as facts of the case.
It appears that the learned Single Judge was under the impression that the impugned order of black listing the petitioners was passed on the recommendation of high level committee constituted by the by Vidhan Sabha ant in paragraph 2 of the impugned order itself, it has been mentioned in so many words, which is quoted herein below:-
The order speaks about a decision taken on a recommendation of a High Level Committee constituted by Vidhan Sabha. The recommendation was to blacklist the petitioner''s company and to Intimate about blacklisting to all the recognized establishments on a national International level. Consequent on the aforesaid recommendation, the petitioner was blacklisted by a Notification No. 1755 (bha) dated 17.63003 under Rule 19 sub-Rule "Kha, ga and Ja" of the Jharkhand Contractor Enlistment Rules, 2003. The petitioner was also debarred horn working In his own name or any other name for the contracts for P.W.D. Department or any other Department of the State of Jharkhand. The order was to be Implemented with Immediate effect.
In page 5 of the order the following reasons have been given by the learned Single Judge, which is as under
The main question that calls for consideration In the instant case Is that whether the order of blacklisting by the respondents calls for any Interference or not? A perusal of the impugned order mentions that the order of blacklisting was passed on a recommendation of a High Level Committee constituted by the Vidhan Sabha. but mere Is no mention that who were the Members of the said High Level Committee? When did It meet? What was considered In the meeting and whether the petitioner or his representative was asked to appear before (he High Level Committee or not ? / have noticed that the mention of this high level committee does not finds place In the show cause notice, though the basis of the decision to blacklist is the decision of the high level committee itself. This is disclosed for the first time in the Impugned order.
However, from the order of blacklisting the petitioners, it appears that before passing the order impugned dated 20.12.2010, a detailed show cause notice was given to the writ petitioners which is dated 1.9.2009 and copy of which has been again placed on record as Annexure-2 to the L.P.A, which was duly replied by the petitioners on 14.10.2009. Thereafter, the competent authority recorded the statement of facts point wise and gave reference to show cause notice dated 1.9.2009 whereby the petitioners were asked to give their reasons for default Then, thereafter, the authority recorded the findings in sub para-1 to Sub Para (a) to (f) of sub para II of para 9. After recording all these facts, a statement of fact has been recorded in the impugned order that high level committee constituted by the Vidhan Sabha also recommended for black listing of the writ petitioners. However, this fact, though recorded in the order, but was not the reason for black listing the petitioner, which is also clear from the reason? mentioned in clauses (a) (f) of Sub Para II of para 9 as well as from the reasons given in last page of the order wherein me competent authority, the Chief Engineer of the Public Works Department, Ranchi has held that he has considered the reply filed by the writ petitioner and found no substance in the explanation given by the writ petitioners in their reply.
In view of the above, we are of the considered opinion that the findings of the learned Single Judge that the decision was taken in compliance to the direction issued by the Vidhan Sabha Committee recommending the black listing of the writ petitioners is factually wrong. From the order of black listing of the petitioner it is also clear that even the order is not influenced by the said fact that Vidhan Sabha Committee has recommended for black listing of petitioners.
The learned Single Judge, in fact, did not proceed to decide the certain disputed questions of fact expressly and held that" / am not inclined to decide this factual aspect in the writ petition and evaluate the extent of fault of the petitioner vis-a-vis the contractors and officers of P.W.D. Department. However, learned Single Judge held that the writ petitioners alone cannot be held responsible for the delay and allegation of mala fide leveled by the appellants- State cannot be accepted.
Learned Single Judge held that the principle of natural justice was not followed, whereas this is factually incorrect. The writ- petitioner not only was given show cause notice but it received the notice and gave reply in writing and that reply was considered by the authority before passing the impugned order. Therefore, there was full compliance of principle of natural justice in the light of the judgment of the Supreme Court delivered in the case of Grosons Pharmaceuticals (P) Ltd. and Another Vs. The State of Uttar Pradesh and Others, wherein the Hon''ble Supreme Court held that an order blacklisting an approved contractor results in civil consequences and in such a situation in the absence of statutory rules, the only requirement of the law, while passing such an order was to observe the principle of audi alteram partem which is one of facets of the principles of natural justice. In that case writ petitioner was served with show cause notice, which was replied by the writ petitioner of that case and thereafter, order was passed after considering the reply to show cause, which is the fact situation.
In a matter, where in the impugned order, one or more facts mentioned are incorrect and such facts and those facts are not the basis of the order and those facts have not influenced the decisions, the order cannot be set aside merely because of incorporation of such facts in the order. In this case, from the entire reading of the impugned order, we cannot find any of the decision or reasons given by the Chief Engineer, Public Works Department, which may be condemned as the decision being influenced by the decision of the Vidhan Sabha Committee.
So far as the factual aspect is concerned, it is not in dispute that it was the project of State importance of holding a national level sports in the State of Jharkhand at Ranchi and, therefore, even if it is presumed that time was not the essence of the contract as the work was depended upon the skill of very many persons, contractors, sub-contractors and labourers, even then some matters are certainly important if they are of State importance. The importance of the matter is apparent from the facts, which are not disputed that for doing this work the experts were even send to foreign countries to understand the work and the Mega Sports Complex was meant for National Sports. Therefore, the time was not essence of the contract the delay in facts of the case and then stopping of work by the writ petitioner was valid reason for the black listing of the writ petitioner. So far increase in work is concerned for that the petitioner did not objected but was party to decision and petitioner did not requested for extension of time and left the work without making any effort to get the extension of time. Therefore, in these facts and circumstances, we are of the considered opinion that the petitioner, who himself admitted that term expired on 30.9.2007, even continued to work up to 4.2.2008 then fact remains that petitioners did not complete the work. In view of the reasons assigned in the impugned order, which are based on the fact situation and are supported by the documents placed on the record, we are of the considered opinion that order was passed by the authority after considering all the material facts and circumstances. Therefore, in view of the above reasons, the impugned order dated 27.7.2011 cannot be sustained in law and is set aside, "pie L.P.A. is accordingly, allowed, consequently the writ petition preferred by the writ petitioners is dismissed. However, no order as to cost.