Bombay High Court
M/S. Sahil Industries, Through ... vs The Commissioner, Akola ... on 9 June, 2022
Bench: S.B. Shukre, G. A. Sanap
920-WP-1812-2022.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1812 OF 2022
M/s. Sahil Industries, through its Manager,
Having its registered office at Sector 10,
Plot No. 233, P.C.N.T.D.A., Bhosari MIDC,
Pune - 411026.
...PETITIONER
Versus
1. The Commissioner, Akola Municipal Corporation, Akola,
Mahatma Gandhi Road, New Radhakisan Plots,
Akola - 444001.
2. Akola Municipal Corporation, Akola,
through its Administrator,
Mahatma Gandhi Road, New Radhakisan Plots,
Akola - 444001.
...RESPONDENTS
Shri A.A. Naik, Advocate for the petitioner.
Dr. Anjan De, Advocate for the respondents.
.....
CORAM : SUNIL B. SHUKRE AND
G.A. SANAP, JJ.
DATED : 9 JUNE 2022.
ORAL JUDGMENT : (PER : SUNIL B. SHUKRE, J.)
Rule. Rule made returnable forthwith. Heard finally
by consent of learned Counsel for the parties.
2. The subject of blacklisting of the contractors is now
well crystallized. Since, blacklisting is considered to be a civil
death of a person, the law requires that principles of natural
justice are followed. In Gorkha Security Services Vs.
Government (NCT of Delhi) And Others [(2014) 9 SCC 105] , it
has been held by the Hon'ble Supreme Court that a show cause
notice giving of the material set-up against the contractor and
informing the contractor of the proposed action of blacklisting
is necessary. The Hon'ble Apex Court has held that the show
cause notice must meet the following two requirements :
(i) The material/ grounds to be stated which
according to the department necessitates an action;
(ii) Particular penalty/ action which is proposed to
be taken. It is this second requirement which the
High Court has failed to omit.
The Hon'ble Apex Court has also held that even if
the proposed action is not specifically mentioned in the show
cause notice, the show cause notice must be of such a nature
that it can be clearly and safely discerned from it the action
that a contractor has to face in the matter.
3. In the case of Kulja Industries Limited Vs. Chief
General Manager, Western Telecom Project Bharat Sanchar
Nigam Limited And Others [(2014) 14 SCC 731], it has been
held by the Hon'ble Supreme Court that the blacklisting order
must answer the principle of proportionality in the sense that it
must not operate for an indeterminate period.
4. When the above referred principles of law are
applied to the present case, we find that the action of
blacklisting of the petitioner has been taken without meeting
the requirements of the principles of natural justice. There is a
show cause notice given to the petitioner on 06/09/2021, reply
to which was given by the petitioner on 14/09/2021, and
thereafter, another notice was issued to the petitioner on
22/11/2021 informing him of non-compliance with some of
the conditions of the contract and also of the proposed action
of cancellation of contract. But in none of these notices, the
employer has mentioned anything about taking of action of
blacklisting of the petitioner. The impugned order has been
passed on 22/11/2021, and it came to be passed on the same
day on which one notice dated 22/11/2021 complaining that
the petitioner had not paid the amount due on account of the
companies liability towards the Employees Provident Fund and
Insurance was given. There is nothing on record to show that
any due opportunity of hearing was granted to the petitioner.
Of course, the learned Counsel for the Corporation has invited
our attention to condition No.21 of the agreement, which lays
down that in case it is found that the contractor is paying
wages to the contractual employees below the prescribed
minimum wages, action of cancellation of contract and
blacklisting of the contractor would be taken by the
Corporation. The learned Counsel for the Corporation has also
pointed out to us letters issued to the petitioner informing him
of various defaults committed by him including one relating to
the alleged non-payment of wages as per the Minimum Wages
Act, 1948 and also the replies, which are called by the learned
Counsel as evasive and which, according to the learned
Counsel for the Corporation, put the petitioner on sufficient
notice of the impending action against him.
5. On careful perusal of this exchange of
communication between the parties, we find that the petitioner
has been informed of the defaults committed by him earlier,
and the petitioner too on his part had given some replies to the
Corporation, and it also appears to us that no serious efforts
have been made by either of the parties to demonstrate or
establish the real facts.
6. In these circumstances, in our view, the
requirements of the principles laid down by the Hon'ble
Supreme Court in the cases of Gorkha Security Services
(supra) and Kulja Industries Limited (supra) are not fulfilled,
and therefore, we are also of the view that this is a fit case for
directing a fresh enquiry in the matter.
7. In the result, the petition is allowed. The impugned
order is hereby quashed and set-aside. The matter is remanded
back to respondent No.2 for fresh enquiry in the matter only on
the aspect of blacklisting of the petitioner in accordance with
law, keeping in view the principles settled by the Hon'ble
Supreme Court in the cases of Gorkha Security Services
(supra) and Kulja Industries Limited (supra). After giving
sufficient opportunity of hearing to the petitioner, respondent
No.2 shall pass an appropriate order in the matter as
expeditiously as possible.
8. Rule accordingly. No costs.
JUDGE JUDGE
Sumit
Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:10.06.2022 14:43
