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IN THE HIGH COURT OF DELHI AT NEW DELHI
Subramonium Prasad, J.
Irijesh Kumar – Appellant
Versus
National Highways And Infrastructure Development Corporation Limited & Anr. – Respondents
W.P.(C) 177 of 2023 & CM Appl. 634 of 2023
Decided On : 08-08-2023
Blacklisting - Contractual Obligations - 4.5.2, Gorkha Security Services vs Government (NCT of Delhi) & Ors, (2014) 9 SCC 105
Fact of the Case:
The petitioner was blacklisted by the respondent no.1 for a period of 2 years without being given a show cause notice or an opportunity to be heard. The petitioner had initially consented to join a project but later informed the respondent no.2 about his inability to join due to health reasons. The respondent no.1 blacklisted the petitioner based on the failure to join the project as a Key Personnel.
Finding of the Court:
The court found that the petitioner was not given a show cause notice or an opportunity to be heard before being blacklisted. The court also noted that there was no privity of contract between the petitioner and the respondent no.1, and the blacklisting order was contrary to the law laid down by the Apex Court.
Issues: The main issue was whether the blacklisting of the petitioner without a show cause notice and an opportunity to be heard was valid.
Ratio Decidendi: The court held that before passing an order blacklisting a person/entity, adequate notice must be given, specifying the proposed punishment of blacklisting. The court emphasized the importance of natural justice and the need for the noticee to understand the precise case set up against them.
Final Decision: The court set aside the blacklisting order, allowing the writ petition and disposing of pending applications.
JUDGMENT
Subramonium Prasad, J.
1. The present writ petition has been filed under article 226 of the Constitution of India by the petitioner seeking quashing of the impugned department order dated 11.08.2022 passed by the respondent no.1/ National Highways and Infrastructure Development Corporation Limited whereby the petitioner was blacklisted/ debarred from participating in future projects of Ministry of Road Transport and Highways (hereinafter referred to as MoRTH )/ National Highways and Infrastructure Development Corporation Limited (hereinafter referred to as NHIDCL) for a period of 2 years from the date of issuance of the order.
2. Shorn of unnecessary details the facts leading up to filing of the present petition are as follows:
3. Respondent no.1/NHIDCL floated a tender/Request For Proposal (RFP) dated March, 2022 inviting proposals from eligible consultants for "Consultancy services for Authority's Engineer for supervision of improvement of existing road to 2 laning with Hard Shoulders of Maram - Peren section (Package-III, length 34.494 km) from Design Chainage km 75.000 to km 109.494 on NH- 129A in the State of Manipur on EPC mode (hereinafter referred to as The Project). The RFP was to be uploaded on "INFRACON" (www.infracon.nic.in). Before submitting the proposal the Consultant had to mandatorily register and enlist themselves (the firm and all key personnel), on the MoRTH portal "INFRACON" and furnish registration details along with its RFP
4. The RPF required the consultancy firm to submit proposals in two parts namely: Part 1 was to be the Technical Proposal and Part 2 was to be the Financial Proposal.
5. Respondent no.2 in association with M/s K&J Projects Pvt. Ltd. submitted bid against the said RFP. In compliance of the requirements of the RPF, the respondent no.2 uploaded the CV of the petitioner herein as a Key Personnel for the position of Resident cum Highway Engineer. Thereafter, the respondent no.2 in association with M/s K&J Projects Pvt. Ltd. was determined as H-1 on 29.06.2022 in the said RFP and the name of the petitioner was approved as the Resident cum Highway Engineer.
6. Vide email dated 30.06.2022 the respondent no.2 informed the petitioner that his CV was proposed as per the petitioner's consent for the project, which thereafter was awarded to the respondent no.2 by respondent no.1. The email requested for the petitioner's acceptance and stated that in case the petitioner is unable to join, a reason for the same shall be mentioned.
7. It is stated that the Petitioner telephonically informed the respondent no.2 that due to his health reasons and ongoing treatments he would be unable to join the project and render services.
8. Respondent no.2 vide their letter dated 15.07.2022 intimated to NHIDCL i.e. Respondent No.1 that the petitioner herein was not available to join the project due to some unavoidable circumstances. It is further mentioned in the facts that due to some medical reasons, doctors had advised him to avoid travelling to high altitude for another few months. The respondent no.2 proposed a replacement of the petitioner to the respondent no.1 for mobilization of experts at the project site.
9. On 11.08.2022, respondent no.1 issued the impugned order debarring the petitioner from participating for a period of 2 years in any tenders/ future projects with MoRTH/ NHIDCL. Vide an email dated 16.08.2022 MoRTH- INFRACON informed the petitioner that he has been blacklisted from the Infracon portal.
10. The present petition has been filed by the petitioner challenging the black listing order dated 11.08.2022.
11. Notice was issued by this Court in the present petition and pleadings stand complete.
12. It has been argued by the Ld. Counsel for the petitioner that the impugned order black listing the petitioner for a period of 2 years has been passed arbitrarily by the respondent no.1 and is bad in law as it has been passed without adhering to the principles of natural justice. It
The main legal point established in the judgment is that before blacklisting a person/entity, adequate notice and an opportunity to be heard must be provided, in accordance with the principles of nat....
The necessity of a specific show cause notice for blacklisting and the requirement to state the proposed action.
The requirement for a fair hearing and a specific show cause notice before imposing the severe civil consequence of blacklisting, and the need for the authority to determine the period of punishment ....
Blacklisting or debarment cannot be permanent and must be preceded by a specific show cause notice, complying with the principles of natural justice.
The impugned actions of issuing the show cause notice and blacklisting the petitioner were arbitrary, unconstitutional, and violated principles of natural justice. The court emphasized the requiremen....
Blacklisting of a contractor must adhere to the principles of natural justice, requiring a specific show cause notice containing proposed penalties. Furthermore, permanent or indefinite blacklisting ....
A party cannot be blacklisted without a clear and adequate show cause notice, violating principles of natural justice, leading to severe consequences.
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