Allahabad High Court
M/S Armenge Engineering Pvt. Ltd. ... vs State Of U.P. Thru. Addl. ... on 25 April, 2023
Bench: Rajan Roy, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- WRIT - C No. - 3145 of 2023
Petitioner :- M/S Armenge Engineering Pvt. Ltd. Thru. M.D. And Auth. Sign. Shri K. Venkata Ramana Murty And Ors
Respondent :- State Of U.P. Thru. Addl. Chief/Prin. Secy. Public Works Deptt. Govt. Of U.P. Lko. And Others
Counsel for Petitioner :- Gaurav Mehrotra,Akber Ahmad
Counsel for Respondent :- C.S.C.
Hon'ble Rajan Roy,J.
Hon'ble Manish Kumar,J.
Heard.
In view of the order proposed to be passed, we do not feel it necessary to call counter affidavit from official opposite parties as there are not much factual disputes involved.
Petitioners has filed this petition seeking following reliefs:-
" i) Issue a writ, order or direction in the nature of certiorari quashing the impugned office order dated 05.04.2023 issued by the Respondent no. 3, a copy whereof is annexed as Annexure no. 1 to this writ petition.
ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to not take any coercive measure against the petitioners upon the strength of the impugned office order dated 05.04.2023.
iii) Issue such other writ, order or direction as this Hon'ble deems fit and proper in the circumstances of the case, protecting the rights and interest of the petitioners."
This Court had passed following order on 24.04.2023:-
"Heard.
Prima facie, there appears to be merit in the contention of Shri Gaurav Mehrotra, learned Counsel for the petitioners that in spite of the settled legal position and catena of judgments on the issue, both of Hon'ble the Supreme Court and this Court, that an order of black listing cannot be passed without notice / opportunity of hearing, not only such an order of black listing has been passed against the petitioners' but, by the said order, petitioner has also been debarred / black listed for any contract pertaining to other entities with which the Chief Engineer who has passed the order has no concern and copies thereof have been sent to the said organizations obviously with intent to harm the business interest of the petitioner and on account of this the petitioner has not been able to participate in at least two tender process which were initiated after passing of the impugned order. He also says that debarring or black listing of key personnel is distinct from debarring of company and the notice dated 19.03.2023 is in respect of black listing of personnel and termination of contract and not for black listing the companies, who are petitioner's herein.
We direct Shri Dhawan, Additional C.S.C. to seek written instructions for opposite party no. 3, firstly as to whether any notice or opportunity of hearing was given to the petitioners for the purposes of black listing (not for any other purpose). Secondly, as to why in spite of the law being settled in this regard, he being such a high official has passed the impugned order, if it is so, without any notice or opportunity and why inference of malafide be not drawn against him, unless he is able to explain the scenario.
As prayed, list/put up this case tomorrow i.e. 25.04.2023 as fresh.
Let the copy of this order be provided to learned Counsel for the parties today itself on payment of usual charges.
This order shall have no bearing on the termination of the petitioner's contract, as that is not an issue involved herein."
Today, Shri Dhawan,learned Standing Counsel on being asked to respond to our queries recorded in our above quoted order has submitted that Annexure No. 22 is the notice given prior to blacklisting.
We have perused the same. This is not a notice for blacklisting the Company but a notice proposing termination and blacklisting of key personnel of the firm and it also says that your firm shall be initiated.
Reliance was placed by Shri Dhawan, learned Standing Counsel on the words " Your firm shall be initiated".
On being asked to explain as to what do these words mean. Sri Dhawan, fairly submitted that these words mean that action would be initiated against the Company.
On being asked to show the action initiated for blacklisting, which should be a notice for opportunity of hearing. He submitted that there is one document dated 21.03.2023, which is available on record of opposite parties, which has been placed before us.
The said document on reading of it also does not lend itself to the understanding that it is a notice for blacklisting of the petitioner's Company. It is on the same lines as the letter dated 18.03.2023. We take the said documents on record.
The notices referred by the opposite parties which are on record may be relevant for blacklisting the key personnel as is referred in Clause 4.5.2. of the Agreement but the same cannot be treated as a notice for blacklisting of a Company as these two aspects are different and Clause 4.5.2 also deals with blacklisting of key personnel and not of the Company, which is not to say that in absence of any such clause Company cannot be blacklisted, as it can be, but, only in accordance with law.
There is no notice given to the petitioners before blacklisting them. No opportunity of hearing was given, which is the minimal requirement in tune with the principles of natural justice considering the consequences which such blacklisting has as already noticed in our earlier order wherein it is recorded that as per the petitioners they have not been able to participate in two tender process on account of said action.
We also take exception to the Chief Engineer concerned blacklisting the petitioners not only from further work in his organization for the period mentioned in the impugned order but also from other organizations with which he has no concern. In this context, Shri Dhawan says he has advised his client not to do so again.
We wanted to proceed with the matter further to fix accountability, however, considering the fervent plea of Shri Dhawan, we dispose of this petition by quashing the impugned order but with liberty to concerned opposite parties to proceed and pass an afresh order, if there is a cause, but in accordance with law keeping in mind the observations made hereinabove.
We order, accordingly.
This order shall have no bearing on the order terminating the contract of the petitioners, which is a separate issue.
Writ Petition is allowed in part.
Order Date :- 25.4.2023
Ashish
