Delhi High Court
Rajesh Gupta vs Mcd on 10 August, 2009
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9236/2009 and CM 6920/2009
Date of decision : 10.08.2009
IN THE MATTER OF :
RAJESH GUPTA ..... Petitioner
Through: Ms. Anusuya Salwan, Advocate
versus
MCD ..... Respondent
Through: Ms. Maninder Acharya, Advocate
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
HIMA KOHLI, J. (ORAL)
1. The present writ petition is filed by the petitioner praying inter
alia for quashing the letter dated 06.05.2009 issued by the respondent
proposing to take certain actions against the petitioner including debarring
him from tendering with the respondent/MCD for a period of five years.
2. The main grievance raised by the petitioner in the present
proceedings is that the impugned decision, communicated to the petitioner
has not been passed by the Enlisting Authority which, in the case of the
petitioner, is a committee chaired by the Additional Commissioner
(Engineering). An earlier writ petition filed by the petitioner against the
respondent MCD, registered as WP(C) 5738/2008, was allowed vide order
dated 22.01.2009 and the earlier circular dated 07.10.2008 issued by the
respondent blacklisting the petitioner without affording him an opportunity of
hearing was quashed. Counsel for the petitioner submits that thereafter, a
fresh notice dated 25.03.2009 was issued to the petitioner pursuant to
which, he filed a detailed representation dated 30.03.2009 running into nine
page (Annexure P-30), followed by another two page representation of even
date (Annexure P-31).
3. The petitioner is also aggrieved by the fact that without
considering the detailed representation dated 30.03.2009 (Annexure P-30),
the respondent, hastily acted upon the two page representation of the same
date (Annexure P-31), which fact is stated to be apparent from a perusal of
the impugned order dated 08.04.2009 issued by the Superintending
Engineer (Projects), City Zone, MCD. Learned counsel submits that the
respondent was bound to consider the detailed submissions on merits made
by the petitioner in the nine page representation as well and deal with the
issues addressed, while passing the impugned speaking order dated
08.04.2009 and that by brushing aside/ignoring the detailed representation
made on merits, and confining himself only to the two page representation
made additionally by the petitioner on the same date, the respondent has
not acted in accordance with law. She states that none of the submissions
made by the petitioner on the merits of the matter have been considered in
the impugned order.
4. The factum of the respondent not considering the detailed
representation of the petitioner is borne out from a perusal of the impugned
order dated 08.04.2009, wherein only the submission of the petitioner
limited to the extent that "he was unable to execute the work due to
unprecedented increase in the market and that it was difficult for the
petitioner to complete the work in the period of inflationary trend specifically
after the stipulated period of the contract", was taken note of and it was
held that the petitioner did not have anything further to state and the matter
was decided in favour of the MCD. This was followed by the impugned
letter dated 06.05.2009 issued to the petitioner, rescinding the work
awarded to the petitioner for construction of RUB at the level of crossing at
Sarai Kale Khan-Nizamuddin on the risk and cost of the petitioner, forfeiting
the earnest money deposited by the petitioner against the said work order
and debarring him for further tendering with the respondent for a period of
five years.
5. It is well settled that a blacklisting order, debarring a person
from tendering involves serious civil consequences for his future business
[Refer: Erusian Equipments & Chemicals Ltd. Vs. State of West Bengal and
Anr. reported as (1975) 1 SCC 70, Raghunath Thakur Vs. State of Bihar &
Ors. reported as AIR 1989 SC 620 and Grosons Pharmaceuticals (P) Ltd. &
Anr. Vs. State of U.P. & Ors. reported as (2001) 8 SCC 604]. The
procedure adopted by the respondent while passing such an order, ought to
meet the requirements of the principles of audi alteram partem. Hence, it
was incumbent upon the respondent to have passed an order only after
taking into consideration both the representations submitted by the
petitioner, more so when it is admitted that both the representations were
duly received by the office of the respondent. As the respondent has
completely ignored the submissions made by the petitioner in the detailed
representation (Annexure P-30), it cannot be held that while passing the
impugned order of blacklisting, the respondent acted in conformity with the
principles of natural justice.
6. As a result, the impugned communication dated 06.05.2009 and
the order dated 08.04.2009 passed by the respondent are set aside with
directions to the respondent to consider the case of the petitioner afresh.
The respondent shall afford an opportunity of hearing to the petitioner by
issuing a notice within one week from today. The petitioner shall appear
before the Competent Authority in terms of the said notice and make his
submissions including those on merits. The respondent shall pass a
speaking order thereafter, in accordance with law and duly communicate the
same to the petitioner, within a period of four weeks from the date of
granting a hearing to the petitioner.
7. In case the petitioner is aggrieved by the orders that may be
passed by the respondent, he shall be entitled to seek his remedies in
accordance with law.
8. The writ petition is disposed of alongwith the pending
application.
HIMA KOHLI,J
AUGUST 10, 2009
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