Issuing a show cause notice with premeditation and expressing a predetermined mind renders the notice invalid.

JUDGMENT :

1. The short issue that arises for consideration in the instant writ petition is whether show cause notice issued to the petitioner seeking explanation as to why it should not be black listed and debarred from entering into contracts for next two years is a valid notice or not.

2. The petitioner-Company was given contract of "Door to Door Meter Reading, Bill Generation and Serving through SBM/Mobile App/Other Suitable Means with Downloading" by the respondent-Corporation on 23.7.2018 for a period of three years. Subsequently it was extended for two months more. On 6.06.2020, the petitioner was issued a notice threatening to blacklist it on account of alleged irregularities on its part. It was replied by the petitioner on 19.6.2020 and according to the case of the petitioner, the notice was dropped, as no action was taken in pursuance thereof. After about a year and a half, another notice dated 13.8.2021 was issued with the same/similar allegations. It was replied by the petitioner company on 23.8.2021 but thereafter no further action was taken. Yet another notice dated 18.8.2021 with the same allegations was issued, again threatening the petitioner to blacklist it. It was replied to by the petitioner company on 30.10.2021. The respondent-Corporation after considering the explanation arrived at a definite finding that the explanation offered is unsatisfactory and the alleged irregularities and breaches committed by the Company has resulted in tarnishing the image of the respondent-Corporation. Accordingly, the petitioner company has been called upon to show cause as to why it should not be black listed/debarred for a period of two years.

3. On 25.5.2022, we passed the following order :

"It is urged by Sri Prashant Chandra, learned Senior Advocate, assisted by Sri Kartikeya Dubey and Sri Ujjawal Satsangi, that the impugned show cause notice is illegal as it has been issued with premeditation to debar and blacklist the petitioner-firm for a period of two years, inasmuch as, the respondents have already disclosed their mind by recording finding to the effect that the explanation submitted by the petitioner-firm in response to earlier notice, has not been found to be satisfactory. In support of the said contention, learned counsel for the petitioner has placed reliance upon the judgment of Supreme Court in Siemens Ltd. vs. State of Maharashtra and Others, 2006 (13) SCALE 297 and ORYX Fisheries Private Ltd. vs. Union of India and Others, 2010 (13) SCC 427.

Sri Udit Chandra, learned counsel for the respondent corporation, seeks time to obtain instructions by tomorrow.

Accordingly, the matter is adjourned.

Put up as fresh tomorrow."

4. Sri Udit Chandra, learned counsel for the respondent-Corporation, after seeking instructions, states that he does not wish to file any counter affidavit. He submitted that the notice is strictly valid inasmuch as the respondent-Corporation has only examined the explanation offered by the petitioner-Company and having found the same to be unsatisfactory, issued fresh notice for black listing the petitioner firm.

5. In Siemens Ltd. vs. State of Maharashtra and Others, 2006 (13) SCALE 297 a challenge was made to a show cause notice on the ground that if it has been issued with pre-meditation then issuing notice and seeking explanation would not serve any purpose as the person issuing notice had already made up its mind. The contention was upheld. The relevant observations made in this behalf in Paragraphs No. 8, 9 and 10 are reproduced below :

"8. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr., MANU/SC/0711/1987 : [1987] 2 SCR 444, Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr., MANU/SC/0025/2004 : 2004 (164) ELT 141