The decision to blacklist a contractor must be made with fairness, relevance, natural justice, non-discrimination, equality, and proportionality in mind. A fair hearing to the party being blacklisted is an essential pre-condition for a proper exercise of the power and a valid order of blacklisting.

JUDGMENT

S.K. Panigrahi, J. - In this writ petition, the petitioner has assailed the order dated 02.06.2020 wherein the Opposite Party No.3-Engineer- in-Chief, Rural Works, Odisha, Bhubaneswar has directed the Executive Engineer to initiate appropriate action as per Appendix XXXIV of OPWD Code pertaining to blacklisting of the petitioner.

2. Shorn of unnecessary details, the facts of the case in brief, are that a public tender was invited by the opposite party No.3- Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar for various roads and bridges in terms of an item rate tender. Since the petitioner has wealth of experience in executing several construction and related works, on the basis of such varied experience, it participated in the tender process and got selected. An agreement was signed between the petitioner and the opposite party No.6- Executive Engineer, Rural Works Division, Patnagarh, District- Bolangir on 26.02.2014 for the construction of H.L. Bridge over River Suktel on Tamla-Mudassir Road in the district of Bolangir under 'Biju Setu Yojana.' An estimated cost of Rs.6,99,97,278/- was provided with a stipulated date of completion of work fixed for 25.02.2016. The said work was completed before time and as per the drawing and design supplied by the department, and the said work was measured and the final bill was also cleared by the department.

3. On 26.02.2020, after the expiry of about four and half years from handing over the bridge for the purpose of transportation by public, some horizontal cracks appeared to have developed. The petitioner intimated such facts to the authority stating that there are some horizontal cracks developed in the S-4 grider between the soffit and outer webs. In addition, there were also some inclined cracks.

4. In the meantime, the opposite party No.3 requested the Government to consider and allow the Executive Engineer to take up the work of dismantling and related construction would be undertaken by the petitioner after diversion of the traffic. He further informed that such diversion of traffic, dismantling and related construction would be done by the petitioner at his own cost. In anticipation of the approval, the Executive Engineer instructed the petitioner to go ahead with preparation of preliminary arrangement to take up the work. Though the petitioner took up the dismantling work of the said span without having any permission of the authority and without taking any precaution to ensure safety of the labourers by making any arrangement for centering and shuttering prior to dismantling of the slab, which led to collapse of the distressed slab on 29.04.2020 causing death of two persons on the spot, apart from causing injuries sustained by other persons. Bridges are, without a doubt, one of the marvels of engineering but any imperfection in the structure or compromise on the quality of the construction material turn into tragedy like the present one which becomes the triggering point of punitive action like blacklisting of the petitioner.

5. Learned Senior Counsel appearing for the petitioner vehemently submitted that the action on the part of the opposite parties in blacklisting his client for all times to come is arbitrary and contrary to the "doctrine of proportionality". It is submitted that the entire exercise of blacklisting the petitioner by the opposite party No.3- Engineer-in-Chief, Rural Works, Odisha, Bhubaneswar commencing from the letter dated 02.06.2020 followed by show cause notice dated 09.06.2020 and the ultimate order dated 20.07.2021 issued by the opposite party No.7-Chief Engineer (Buildings & Bridges) Rural Works, Odisha, Bhubaneswar in banning the petitioner from participating or bidding for any work to be undertaken by the Government of Odisha and also banning from transacting business with Government of Odisha either directly in the name of proprietary bidder or indirectly under different name and title. In the whole process, the principle of natural justice