Bombay High Court
M/S. G.H. Khandelwal Thr. Shri. ... vs Amravati Municipal Corporation ... on 14 June, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2282 OF 2016
1) M/s. G.H. Khandelwal,
a proprietary firm registered
under the provisions of Indian
Partnership Act, 1932, having
its office at New Congress Nagar,
Amravati, through its partner
Shri Ghanshyam Harichand
Khandelwal.
2) Shri Ghanshyam Harichand
Khandelwal, aged - major,
occupation - business,
resident of New Congress
Nagar, Amravati, Tahsil and
District Amravati.
3) Shri Rupchand Harichand
Khandelwal, aged - major,
occupation - business, r/o
New Congress Nagar, Amravati,
Tahsil and District Amravati. ... Petitioners
- Versus -
1) Amravati Municipal Corporation,
Amravati, Tahsil and District
Amravati.
2) The Commissioner, Amravati
Municipal Corporation, Amravati,
Tahsil and District Amravati. ... Respondents
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Shri S.V. Manohar, Senior Advocate with Shri A.A. Naik,
Advocate for petitioners.
Shri J.B. Kasat, Advocate for respondents.
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CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 14, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Rule, returnable forthwith. Heard finally by
consent of learned Counsel for the parties.
2) The petitioners received a show cause notice
dated 28/12/2015 calling for their explanation as
completion certificate produced by them in tender
process at Chandrapur and Nagpur was found to be
fabricated. Show cause notice contains four assertions.
First one is that certificate is not found to be issued as
per entries in outward register maintained in the office
of City Engineer. Second assertion is that dates of
commencement and completion of work mentioned in
the certificate are fabricated and false. Third assertion
is that cost of work mentioned in budget and cost of
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work actually completed in 2011 did not match.
Therefore, information on these lines contained in
completion certificate was false. Last and fourth
assertion is that certificate is shown to have been
issued on 12/6/2011, which happened to be Sunday
and, therefore, office was not functioning on that day.
Thereafter it is mentioned that this certificate is
obtained by the petitioners in collusion with the then
City Engineer Shri D.P. Meshram and petitioners as also
Shri Meshram have conspired together and committed
a criminal offence.
3) By the impugned order dated 2/2/2016
petitioner no.1 has been blacklisted for a period of four
years. The petitioner firm and other firms/Societies/
Companies in which its partner Shri Ghanshyam
Harichand Khandelwal and Shri Rupchand Harichand
Khandelwal are partners are also blacklisted.
4) Senior Adv. Manohar with Adv. Naik submits
that order of blacklisting mentions that confidential
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reports were asked for on 4/11/2015 and 6/11/2015
from the office of City Engineer. Copies of those reports
were never made available to the petitioners.
Similarly, for the first time it is observed that both
documents, i.e. documents supplied at Nagpur and
Chandrapur were not matching. The impugned order
also shows a finding that petitioners did not complete
the work properly and did not complete part of it even
after expiry of stipulated period. The conclusion is,
therefore, drawn that certificates submitted by the
petitioners were false, misleading and fabricated. In
the light of this finding, punishment has been imposed.
Thus, facts not brought to the notice of petitioners in
the show cause notice and grounds not mentioned
therein have weighed with respondents while imposing
punishment. If confidential reports obtained by the
said office contained any such observation or remark,
attention of petitioners was required to be drawn, but
petitioners were never informed about it.
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5) Adv. Kasat on behalf of respondents submits
that it is not necessary to extend opportunity of hearing
to petitioners. Attention of petitioners was invited to
necessary facts and internal fact finding enquiry was
conducted on administrative side. Though explanation
of Shri Meshram was called for, he did not cooperate
and hence, on the basis of available material, the
conclusion has been drawn.
6) Adv. Kasat invites our attention to reply-
affidavit to urge that Shri Meshram later on has
submitted a letter in writing and denied his signature
on disputed documents.
7) After hearing respective Counsel, we find that
difference, if any, between two completion certificates
finds mention for the first time in the impugned order
of blacklisting. In show cause notice, it was not
contended that two different completion
certificates in relation to very same work were
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submitted or used by the petitioners. Similarly, in the
impugned order it is mentioned that confidential
reports were called for from the office of City Engineer
vide communications dated 4/11/2015 and 6/11/2015.
Whether any such report was submitted or not is not
apparent from the impugned order. In concluding
paragraph of the impugned order, it is mentioned that
as explanation of petitioners was found not satisfactory,
enquiry report was called for on completion certificates
and direction was issued to the concerned Officer to
make available the proceedings. It is mentioned that
accordingly enquiry report and report on proposed
action were submitted to the Municipal Commissioner.
On the basis of this, it is concluded that petitioners had
not completed their work properly or within time.
8) According to Adv. Kasat, document no.5 filed
with reply affidavit before this Court, i.e. preliminary
enquiry report dated 9/12/2015 is the report, which
finds mention in the impugned order. Again perusal of
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impugned order reveals that petitioners had submitted
their explanation on 27/1/2016, i.e. after this
preliminary enquiry report dated 9/12/2015. Municipal
Commissioner had heard petitioners on explanation on
25/1/2016 and because that explanation was found not
satisfactory, a further report as observed supra was
called for. Thus, impugned order does not bring on
record the correct state-of-affairs.
9) Though Adv. Kasat has contended that it is not
necessary to extend opportunity of hearing to
petitioners, impugned order itself shows that such an
opportunity was found essential by the Municipal
Commissioner and, therefore, was extended to
petitioners.
10) In this situation, as we find impugned order
dated 2/2/2016 unsustainable, it is quashed and set
aside. However, looking to assertions in the show
cause notice, we direct that parties shall maintain
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status quo as on today for a period of two months.
We grant respondents leave to issue fresh
show cause notice to petitioners on all available
grounds within next two weeks. The petitioners shall
submit their reply to it within further period of two
weeks. Final decision on the said show cause notice
shall be taken, if necessary, after extending opportunity
of hearing to the petitioners within next four weeks.
The direction given to parties to maintain
status quo shall continue till respondent no.2 takes
fresh decision in the matter as mentioned supra.
However, if no fresh show cause notice is issued to the
petitioners within a period of two weeks, said direction
shall not operate.
11) The writ petition is thus partly allowed and
disposed of. No costs.
JUDGE JUDGE
khj
