Bombay High Court
Micro Separations Through Partner ... vs Maharashtra Pollution Control Board ... on 19 December, 2023
2023:BHC-OS:14989-DB
9-WPL.31589.2023
Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 31589 OF 2023
Micro Separations }
Through its Partner Vinayak }
Sharma, having its registered }
office at : Plot No. 121, Nyaya }
Khand-1, Indirapuram, }
Ghaziabad, UP-201 010, also at }
(Manufacturing Unit) F-30, }
Sector 8, Noida, UP-201 301 } Petitioner
Versus
Maharashtra Pollution Control }
Board (MPCB) }
Kalptaru Point, 2nd and 4th floor, }
Opp. Cine Planet Cinema, }
Near Sion Circle, Sion (E) } Respondent
Mr. Vedchetan Patil with Ms. Sunayana
Kashid for the petitioner.
Mr. Vishwanath Patil with Ms. Shivani
Nikam for the respondent.
Mr. Kishor Gawankar, Senior Scientific
Officer and Mr. Ashok Mandavkar, Senior
Scientific Officer, MPCB present.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 19th DECEMBER 2023
ORAL JUDGMENT: (Per Chief Justice)
1. Heard Mr. Vedchetan Patil, learned counsel for the
petitioner and Mr. Vishwanath Patil, learned counsel
representing the respondent.
2. Rule.
9-WPL.31589.2023
3. By consent of the learned counsel for the parties, rule is
made returnable forthwith and the writ petition is taken up for
final disposal.
4. Learned counsel for the petitioner, at the outset, has
stated that he may be permitted not to press prayer clause (a),
which reads as under: -
"a. Issue a writ, order or direction in the nature of
mandamus/Certiorari directing the Respondent to
stop proceeding further with the E-tender
No.MPCB/C.Lab/ARC-Filter Papers/E-tender/2022-25
dt.12.07.2022 and quashing the said tender with
immediate effect and;".
5. Accordingly, the afore-quoted prayer is rejected as not
pressed.
6. The other prayer made in the writ petition is for quashing
the communication/order/letter dated 12th June 2023, whereby
the petitioner-firm has been debarred from participation in the
tenders of the respondent-MPCB for next 3 (three) years.
7. Submission of the learned counsel for the petitioner is that
before taking the decision to debar the petitioner from
participation in tenders, no opportunity of hearing was granted
to the petitioner; neither was any show-cause notice issued to it
calling upon the petitioner to furnish its explanation.
8. Learned counsel for the respondent-MPCB has opposed the
prayer made in the writ petition by submitting that, admittedly,
the petitioner had furnished false information while participating
in the tender pursuant to the E-tender notice dated 12th July
2022 for supply of laboratory filter papers for the financial years
2022-25. He has further submitted that on an inspection, it was
found by the authorities of the MPCB that the petitioner did not
9-WPL.31589.2023
have the manufacturing unit at the location disclosed by it while
participating in the aforesaid tender process and further that
when the samples of filter papers were collected from the
manufacturing site of the petitioner, on evaluation, such filter
papers were not found to be up to the mark and accordingly, the
petitioner has rightly been debarred from participation in the
tender processes in future for a period of three years.
9. However, on a specific query as to whether, before taking
the decision debarring the petitioner, as is embodied in the
communication/letter dated 12th June 2023, any show-cause
notice was issued to the petitioner or as to whether the
petitioner was given any opportunity of hearing by confronting it
with the reasons indicated for debarment, learned counsel for
the MPCB very fairly stated that no such show-cause notice was
given to the petitioner.
10. Debarment of a firm from participation in any future
tender processes in respect of the tenders floated by public
authorities visits such a firm with civil consequences and as
such, before passing any order of debarment or before taking
such decision, the authority concerned is under legal mandate to
not only give an opportunity of hearing, but also to issue a
show-cause notice detailing therein the grounds of intended
action of debarment. In absence of any such show-cause notice,
if such an action leading to debarment of any firm from
participation in tender processes is taken, the same would be in
flagrant violation of principle of natural justice. Hon'ble Supreme
Court in the judgment in the case of Gorkha Security Services
vs. Government (NCT of Delhi) & Ors., reported in (2014) 9
SCC 105 has gone to the extent of terming the action of
9-WPL.31589.2023
blacklisting as "civil death". The Apex Court has, thus, held in
the said judgment that it would be difficult to accept the
proposition that even without putting the noticee to such a
contemplated action and giving the person or party concerned a
chance to show cause as to why such action be not taken, the
final order of blacklisting can be passed. Para 30 of the said
judgment is extracted herein below: -
"21. The central issue, however, pertains to the
requirement of stating the action which is proposed to be
taken. The fundamental purpose behind the serving of
show-cause notice is to make the notice understand the
precise case set up against him which he has to meet.
This would require the statement of imputations detailing
out the alleged breaches and defaults he has committed,
so that he gets an opportunity to rebut the same. Another
requirement, according to us, is the nature of action which
is proposed to be taken for such a breach. That should
also be stated so that the notice is able to point out that
proposed action is not warranted in the given case, even if
the defaults/breaches complained of are not satisfactorily
explained. When it comes to blacklisting, this requirement
becomes all the more imperative, having regard to the fact
that it is harshest possible action.
22. The High Court has simply stated that the purpose of
show-cause notice is primarily to enable the noticee to
meet the grounds on which the action is proposed against
him. No doubt, the High Court is justified to this extent.
However, it is equally important to mention as to what
would be the consequence if the noticee does not
satisfactorily meet the grounds on which an action is
proposed. To put it otherwise, we are of the opinion that in
order to fulfill the requirements of principles of natural
justice, a show-cause notice should meet the following two
requirements viz:
(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.
9-WPL.31589.2023
We may hasten to add that even if it is not specifically
mentioned in the show-cause notice but it can clearly and
safely be discerned from the reading thereof, that would
be sufficient to meet this requirement."
11. The aforesaid view has been reiterated by Hon'ble
Supreme Court in the latest judgment in the case of State
Bank of India & Ors. vs. Rajesh Agarwal & Ors., reported in
(2023) 6 SCC 1.
12. In the instant case, since, admittedly, before passing the
order of debarment, no opportunity of hearing was given to the
petitioner, neither any show-cause notice was issued and as
such, the impugned decision, so far as it debars the petitioner
from participation in future tender processes, cannot be
permitted to be sustained.
13. The writ petition, thus, is allowed to the aforesaid extent
and the decision debarring the petitioner from participation in
the future tender processes for next three years as embodied in
the communication/letter dated 12th June 2023 is hereby
quashed. It is, however, provided that it will be open to the
MPCB to take decision afresh after giving a show-cause notice
and calling upon the petitioner to submit its explanation/reply as
per the law and the observations made hereinabove in this
judgment.
14. Rule is made absolute in the aforesaid terms, however,
there shall be no order as to costs.
JAYANT
VISHWANATH
SALUNKE (ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
