M/S Edusoft Healthcare Pvt. Ltd. vs The State Of Madhya Pradesh
2023 Latest Caselaw 17637 MP

                                                                1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                        WP No. 26688 of 2023
                               (M/S EDUSOFT HEALTHCARE PVT. LTD. Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                           Dated : 20-10-2023
                                 Shri Sanjay K. Agrawal - Advocate for the petitioner.

                                 Shri Rohit Jain - Advocate for respondent No.2.

Petitioner's contention is that show cause notice, as contained in Annexure P-7 dated 22.09.2023, was issued by respondent No.2 but in the notice it is nowhere mentioned that petitioner will be blacklisted, it is only

mentioned that there is a provision for debarment.

There is no mentioning of the fact that petitioner will be blacklisted. It is submitted that as per the law laid down by Hon'ble Supreme Court in the cases of UMC Technologies Private Limited Vs. Food Corporation of India and Another 2021(2) SCC 551 wherein para 24, Supreme Court has observed as under :-

"24. A plain reading of the notice makes it clear that the action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the "Instruction to Bidders", which were part of the Corporation's Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the appellant the impression that the action of blacklisting was being proposed. This is especially true since the appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only clause which mentioned blacklisting was not referred to Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/20/2023 7:46:00 PM

by the Corporation in its show cause notice. While the following paragraphs deal with whether or not the appellant's said belief was well-founded, there can be no question that it was incumbent on the part of the Corporation to clarify in the show cause notice that it intended to blacklist the appellant, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same."

Another judgment of Hon'ble Supreme Court in the case of Vetindia Pharmaceuticals Limited Vs. State of Uttar Pradesh and Another, (2021) 1 SCC 804 wherein para 8 it is held as under :

"9. There is no dispute that the injection was not supplied to the respondents by the appellant. Yet the show cause notice dated 21.10.2008 referred to further action in terms of the Tender for supplying misbranded medicine to the appellant. Furthermore, the show cause notice did not state that action by blacklisting was to be taken, or was under contemplation. It only mentioned appropriate action in accordance with the rules of the Tender. The fact that the terms of the tender may have provided for blacklisting is irrelevant in the facts of the case. In absence of any supply by the appellant, the order of blacklisting dated 08.09.2009 invoking clauses 8.12 and 8.23 of the Tender is a fundamental flaw, vitiating the impugned order on the face of it reflecting non application of mind to the issues involved. Even after the appellant brought this fact to the attention of the respondents, they refused to pay any heed to it. Further, it specifies no duration for the same."

Since notice is vague, respondents could not have invoked their authority to blacklist the petitioner.

Let detailed reply be filed.

In the meanwhile, as an interim order, there will be stayed on the impugned order dated 09.10.2023 till the next date of hearing.

List in the week commencing 27.11.2023.

(VIVEK AGARWAL) JUDGE

Tabish Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/20/2023 7:46:00 PM

Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/20/2023 7:46:00 PM