Patna High Court
Mrigendra Kumar vs The State Of Bihar And Ors on 28 July, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.W.J.C. No. 20934 of 2018
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Mrigendra Kumar, s/o Ramashish Sharma Kishor Mahila Shishu
Kalyan Sansthan having its office at vill-Bana, PS- Khizarsarai,
District-Gaya through its Secretary.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Health
Department, Government of Bihar, Patna.
2. The District Magistrate, Gaya
3. The Sub Divisional Officer, Sadar, Gaya
4. The Civil Surgeon-cum-Secretary, District Health Committee, Gaya
5. The Deputy Superintendent, Sub- Divisional Hospital, Sherghati,
Gaya.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rajesh Kr., Adv.
For the Opposite Party/s: Mr. Surya Kant Kumar (AC to GA 8)
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
28-07-2021 The instant case has been taken up for consideration
through the mode of Video Conferencing in view of the
prevailing situation on account of COVID-19 Pandemic,
requiring social distancing.
2. The present writ petition has been filed for quashing Memo
no. 2623 dated 01.09.2018, issued by the respondent no. 4 i.e.
the Civil Surgeon-cum-Chief Medical Officer, Gaya, whereby
and whereunder the N.G.O. of the petitioner namely Kishor
Mahila Shishu Kalyan Sansthan has been blacklisted.
3. The learned counsel for the petitioner, without going into
the details of this case, has raised a short issue to the effect that
a bare perusal of the impugned order dated 01.09.2018 would
show that the blacklisting of the petitioner's N.G.O. is for an
indefinite period i.e in perpetuity. It is also submitted that the
impugned order dated 01.09.2018 is an unreasoned Order and
no reason whatsoever has been furnished to come to a
conclusion that the N.G.O. of the petitioner is required to be
blacklisted. In this connection, the learned counsel for the
petitioner has relied on a judgment dated 26.02.2020, rendered
by a co-ordinate Bench of this Court, in C.W.J.C. no. 2006 of
2020 (M/s Aryabhat Computers v. The State of Bihar and
others), to submit that an order passed without furnishing any
cogent reason is vitiated in the eyes of law. Therefore, it is the
submission of the learned counsel for the petitioner that the
impugned order dated 01.09.2018 is contrary to the law of the
land, thus is required to be set aside.
4. Per contra, the learned counsel for the State Sri Surya Kant
Kumar, AC to GA 8 has submitted that appropriate show cause
notice was issued to the petitioner, inter alia stating therein that
the N.G.O. of the petitioner had raised inflated bills and had
drawn excess amount in the name of supplying electricity by
generator, than what was required to be charged as per the
agreement. It is submitted that only after considering the reply
of the petitioner, the impugned order dated 01.09.2018 has been
passed, as such there is no ambiguity as far as the impugned
order dated 01.09.2018 is concerned.
5. I have heard the learned counsel for the parties and perused
the materials on record, from which it is apparent that a cryptic
order, not furnishing any cogent, clear and succinct reason in
support of the decision dated 01.09.2018, has been passed by
the Civil Surgeon-cum-Chief Medical Officer, Gaya, rendering
the impugned order dated 01.09.2018 vitiated in the eyes of law.
Another aspect of the matter is that since the order of black-
listing entails severe consequences, the same cannot be passed
in perpetuity i.e. for all times to come, hence on this ground as
well, the impugned order dated 01.09.2018 is fit to be set aside.
In this regard, it would be apt to refer to the judgment rendered
by the Hon'ble Apex Court in the case of Kulja Industries Ltd.
v. Western Telecom Project BSNL, reported in (2014) 14 SCC
731; paragraphs no. 25 to 29 whereof, are reproduced herein
below:-
"25. Suffice it to say that "debarment" is recognised
and often used as an effective method for disciplining
deviant suppliers/contractors who may have committed
acts of omission and commission or frauds including
misrepresentations, falsification of records and other
breaches of the regulations under which such contracts
were allotted. What is notable is that the "debarment"
is never permanent and the period of debarment would
invariably depend upon the nature of the offence
committed by the erring contractor.
26. In the case at hand according to the respondent
BSNL, the appellant had fraudulently withdrawn a
huge amount of money which was not due to it in
collusion and conspiracy with the officials of the
respondent Corporation. Even so permanent
debarment from future contracts for all times to come
may sound too harsh and heavy a punishment to be
considered reasonable especially when (a) the
appellant is supplying bulk of its manufactured
products to the respondent BSNL, and (b) the excess
amount received by it has already been paid back.
27. The next question then is whether this Court ought
to itself determine the time period for which the
appellant should be blacklisted or remit the matter
back to the authority to do so having regard to the
attendant facts and circumstances.
28. A remand back to the competent authority has
appealed to us to be a more appropriate option than an
order by which we may ourselves determine the period
for which the appellant would remain blacklisted. We
say so for two precise reasons:
28.1. Firstly, because blacklisting is in the nature of
penalty the quantum whereof is a matter that rests
primarily with the authority competent to impose
the same. In the realm of service jurisprudence this
Court has no doubt cut short the agony of a
delinquent employee in exceptional circumstances
to prevent delay and further litigation by modifying
the quantum of punishment but such considerations
do not apply to a company engaged in a lucrative
business like supply of optical fibre/HDPE pipes to
BSNL.
28.2. Secondly, because while determining the
period for which the blacklisting should be effective
the respondent Corporation may for the sake of
objectivity and transparency formulate broad
guidelines to be followed in such cases. Different
periods of debarment depending upon the gravity of
the offences, violations and breaches may be
prescribed by such guidelines. While it may not be
possible to exhaustively enumerate all types of
offences and acts of misdemeanour, or violations of
contractual obligations by a contractor, the
respondent Corporation may do so as far as
possible to reduce if not totally eliminate
arbitrariness in the exercise of the power vested in
it and inspire confidence in the fairness of the order
which the competent authority may pass against a
defaulting contractor.
29. In the result, we allow this appeal, set aside the
order [Kulja Industries Ltd. v. Western Telecom Project
BSNL, WP (C) No. 2289 of 2011, order dated 6-4-
2011 (Bom)] passed by the High Court and allow Writ
Petition No. 2289 of 2011 filed by the appellant but
only to the extent that while the order blacklisting the
appellant shall stand affirmed, the period for which
such order remains operative shall be determined
afresh by the competent authority on the basis of
guidelines which the Corporation may formulate for
that purpose. The needful shall be done by the
Corporation and/or the competent authority
expeditiously but not later than six months from today.
The parties are left to bear their own costs."
6. Having regard to the facts and circumstances of the case
and for the reasons stated hereinabove, the impugned order
dated 01.09.2018, passed by the respondent no. 4 stands vitiated
in the eyes of law, hence is quashed. The writ petition stands
allowed. It is needless to state that the respondent authorities
may proceed afresh, in accordance with law, if so advised.
(Mohit Kumar Shah, J)
rinkee/-
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