JUDGMENT

1. 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. Heard the Ld. Senior counsel for the petitioner, Shri D.K. Sinha, assisted by Shri Abhinav Raj, Advocate as also the Ld. counsel for the respondent State, Shri S.D. Yadav, AAG-9.

3. The present writ petition has been filed seeking the following reliefs:-

i To quash the order contained in Memo No. 2217 dated 18.06.2020 (Annexure-7) by which agreement has been cancelled, forfeited the security amount and recommended for black listing.

ii. To quash the order no. 335 dated 31.10.2020 rejecting the explanation/ show cause (Annexure-15).

iii. To quash order no. 357 dated 26.11.2020 black listing of the petitioner (Annexure-7) which has been passed during pendency of the appeal.

4. At the outset, the learned counsel for the petitioner has submitted that as far as termination/ cancellation of the agreement in question and forfeiture of the security amount is concerned, the petitioner shall be invoking the arbitration clause i.e. Clause 25 of the General conditions of Contract in accordance with the provisions of the Arbitration and Conciliation Act, 1996, however, it is submitted that in view of the amendment made in the Arbitration and Conciliation Act, 1996 and in view of the judgment rendered by the Hon'ble Apex Court in the case of Voestalpine Schienen GMBF v. Delhi Metro Rail Corporation Limited, reported in (2017) 4 SCC 665, it is now a settled law that the Arbitrator cannot be an official of the respondent State, hence, this Court may order accordingly.

5. The learned counsel for the respondent State, Shri S.D. Yadav, AAG-9 has got no objection in case the petitioner invokes the Arbitration Clause i.e. Clause-25 of the NIT/GCC and gets the dispute resolved through the arbitral process.

6. Accordingly, this Court grants liberty to the petitioner to invoke clause-25 of the NIT/GCC in question for the purposes of resolution of the dispute regarding cancellation of the agreement and forfeiture of the security amount. It is needless to state that in case the parties decide to get the matter resolved through arbitral process, it will be open for them to agree on the mode of appointment of the Arbitrator as also they would be at liberty to take recourse to such other remedies as are available under the Arbitration and Conciliation Act, 1996 for the purposes of appointment of an Arbitrator.

7. Now coming to the issue regarding blacklisting of the petitioner vide order No. 357 dated 26.11.2020, the learned Senior counsel for the petitioner has submitted that this Hon'ble Court, in the earlier round of litigation by an order dated 5.10.2020 passed in CWJC No. 7284 of 2020 had granted liberty to the petitioner to submit its explanation afresh before the Executive Engineer, Public Health Engineering Division, Patna East, Patna, whereafter the said Executive Engineer was directed to evaluate such explanation of the petitioner in proper perspective and pass an order in speaking terms and it was further directed that the process of finalizing the contract/ agreement with any third party for the unfinished work shall not be taken till passing of the fresh order by the aforesaid Executive Engineer. It is submitted that thereafter, the petitioner had filed a detailed explanation dated 12.10.2020 and then the aforesaid Executive Engineer had passed the order dated 31.10.2020, rejecting the representation of the petitioner. It is also submitted that though the impugned order of blacklisting dated 26.11.2020 states about the notice dated 09.07.2020 having been issued to the petitioner calling for furnishing explanation/ reply from the petitioner as to why the petitioner should not be blacklisted since the agreement in question, entered into with the petitioner, has been cancelled and the security deposit has been forfeited, but the fact is that no such noti