23. The factual and legal grounds urged by the appellants have been referred to in detail in the foregoing paragraphs. The rival stand of JEPC have also been taken note of. Both the sides have placed reliance on several authorities also to buttress their arguments, referred to in the preceding paragraphs. The scope and power of an employer to blacklist an agency or contractor has been laid down by the Hon'ble Supreme Court from time to time. It is not necessary to multiply the authorities while reiterating the settled principles of law on the power of blacklisting. However, it would be profitable to draw upon the illuminating discussion on this subject by the Apex Court in the case of Kulja Industries Limited (supra) wherein the precedents on this have been referred to and relied upon. The power to blacklist a contractor has been held to be inherent in the party allotting the contract. There is no need for any such power being specifically conferred by statute or reserved by the contractor. It is because of the simple reason that a party affected by the breach is entitled to take a business decision not to enter into any contractual relationship with the party committing the breach. Between two private parties, right to take any such decision is absolute and un-trammelled by any constraints whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities. This implies that any such decision will be open to scrutiny not only on the touchstone of the principles of natural justice, but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus becomes an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence, is similarly examinable by a writ Court. It is also well settled that when even though the right of the writ petitioners is in the nature of a contractual right, the manner, method and the motive behind the decision of the authority whether or not to enter into a contract, is subject to judicial review on the touchstone of fairness, relevance, natural justice, non-discrimination, equality and proportionality. [Paragraph-17 and 20 of Kulja Industries (Supra)]. In the same decision, the Apex Court has, at paragraph-25 of the Report, also held that ‘debarment’ is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. The Apex Court while laying down illustrative guidelines, observed that the period of debarment would depend upon the seriousness of the case leading to such debarment.

24. Considered in this background, there is no iota of doubt that JEPC had the power to debar or blacklist a bidder found indulging in committing acts of omission and commission of fraud including misrepresentation, falsification of records and other breaches of the terms and conditions of the contract or the tender document. If one closely analyzes the acts and/or omission of the bidders in the tender process, it would be clear and obvious that while on the one hand, these bidders professed to adhere to the terms and conditions of the tender document and submit samples of the prescribed technical specifications for participating in the tender process and at the same time undertook to make supply of the school bags in conformity with the technical specifications, the samples submitted by these bidders on being tested, failed to match with the technical specifications and the certificate submitted by these bidders to that effect. Clause 22.1(ii) is in the following language:

“Fraudulent practice means misrepresentation of facts in order to influence the procurement process or execution of a contract to the detriment of the JEPC, and includes