The penalty of blacklisting must be proportionate to the offense and should not be imposed arbitrarily.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The petitioner has challenged an order of blacklisting issued by the respondent-Authorities. Learned counsel for the petitioner argues that throughout the entire period during which the petitioner did the concerned work for the respondents, the contract of the petitioner was never terminated by the respondent-Authorities. During the pendency of the writ petition, a substantial portion of the dues of the petitioner has also been cleared. Hence, there was no occasion for the respondent-Authorities to issue the impugned order of blacklisting.

2. It is next argued that Clause 10 of the agreement between the parties contemplates larger penalty than damages to be imposed only in cases where the delay occasioned for performing the work is more than five weeks. The delay occasioned by the petitioner being much less, the larger penalty of blacklisting could not have been imposed.

3. Clause 18 of the agreement (Memorandum of Understanding) clearly stipulates that the present agreement sets forth the entire understanding and agreement of the parties as to the subject matter of the agreement and supersedes all oral and written agreement or understanding between the parties regarding the subject matter. The present contract does not contain any clause of blacklisting, as opposed to the other previous agreements. Thus, by specific exclusion, the provision of blacklisting has been removed. Accordingly, the order of blacklisting is also challenged on such ground.

4. Learned counsel next contends that the elaborate reply given by the petitioner to the Show-Cause Notice, citing reasons for the delay, which were not attributable to the petitioner, was overlooked by the respondents and not adverted to in the order of blacklisting. Thus, the said order is vitiated on such ground as well.

5. It is argued that the blacklisting decision was taken only when the petitioner asked for its dues, much after the petitioner completed the work under the contract. Hence, an element of arbitrariness and malice cannot be ruled out as well.

6. Lastly, it is contended that the penalty of blacklisting is grossly disproportionate with the allegation of minor delay on the part of the petitioner.

7. Learned counsel for the petitioner cites the judgment of the Supreme Court in Uttar Pradesh Power Transmission Corporation Ltd. and Anr. Vs. CG Power and Industrial Solutions Limited and Anr., reported at (2021) 6 SCC 15, where it was held that alternative remedy is not an absolute bar to the writ jurisdiction, which can be invoked for enforcement of a fundamental right or failure of principle of natural justice, etc.

8. Learned counsel appearing for the petitioner next cites another judgment of the Supreme Court in the matter of Unitech Limited & Ors. Vs. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors., reported at LL 2021 SC 92, where the Supreme Court observed that even if the dispute is contractual and there is an arbitration clause, it can be subject to the writ jurisdiction when there is arbitrary exercise of power or misuse of authority on the part of State instrumentalities.

9. Learned counsel also cites Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., reported at AIR 1978 SC 851 and a judgment of a Learned Single Judge of the Andhra Pradesh High Court in Sambasiva Milk Transport Vs. State of Andhra Pradesh, reported at AIR 2022 AP 110 in support of the proposition that reasons for an order cannot be subsequently furnished by way of affidavit or otherwise to justify an order which did not contain such reasons.

10. Learned counsel next relies on Blue Dreamz Advertising Pvt. Ltd. & Anr. Vs. The Kolkata Municipal Corporation & Ors., in W.P. No. 6616 (W) of 2016, an unreported judgment of a Co-ordinate Bench of this Court, where it was held that blacklisting is a civil consequence and rules of natural justice have to be scrupulously followed, giving proper reasons which suggest that p