The necessity of a specific show cause notice for blacklisting and the requirement to state the proposed action.

ORDER RAVI MALIMATH, C. J. : – The case of the petitioner is that respondent No. 3 floated the bid for consultancy services for rehabilitation and up-gradation of Jabalpur Bhopal section of NH-12 from KM 10.400 to KM 130.00 to four lane with paved shoulder with provision of rigid pavement on EPC mode under NHDP-III in the State of Madhya Pradesh in February, 2016. The petitioner and others bid for the same. The financial proposal of the petitioner was accepted by the letter dated 11-7-2016. An agreement was executed on 28-7-2016. The respondent No. 2 entered into the contract dated 19-12-2017 for execution of the project with the contractor M/s Wagad Infra Projects Pvt. Ltd- M/s Sorathia Velji Ratna Co. (JV) for the purposes of this contract dated 19-12-2017.

2. The role of the petitioner in the said project was that of a consultant. It was their duty under the contract to advise and supervise the other contractor. Thereafter, a communication/show cause notice dated 22-7-2021 in terms of Annexure P/16 was addressed by Superintending Engineer of respondent No. 1 to the petitioner seeking for an explanation as to why Rs. 0.35 Crore COS for 50 meters long additional retaining wall/Toe wall in approaches of Hiran River Bridge is proposed when it is not required and other material. A reply was furnished by the petitioner explaining the said position in terms of Annexure P/17 dated 30th July, 2021. Ten months thereafter the impugned communication was addressed to the petitioner dated 27-4-2022 vide Annexure-P/1 declaring the petitioner as an “Non-performer” for any tender or RFP issued by the Authority/MoRTH/NHIDCL/State Government. That he is also debarred for one year from working in any capacity in National Highways works from the date of the order. Questioning the same, the instant petition has been filed.

3. Shri Kishore Shrivastava, learned Senior Counsel appearing for the learned counsel for the petitioner submits that the impugned communication/ order is bad in law and liable to be set aside. That the role of the petitioner was only that of a Consultant. Similar kind of notices were issued to the other contractors. That the role of the petitioner was circumscribed by the terms of the contract. He contends that a notice was issued to him calling for an explanation with regard to such certain factual aspects on construction. The same was replied. Whether the reply was just and appropriate is a secondary question. Based on the communication vide Annexure-P/16, an order of debarment or blacklisting could not have been passed by the respondents. In support whereof, he relies on the judgments of the Hon’ble Supreme Court in the case of Vet India Pharmaceuticals vs. State of U. P. and another, reported in (2021) 1 SCC 804, UMC Technologies Private Limited vs. Food Corporation of India and another, reported in (2021) 2 SCC 551 and Gorkha Security Services vs. Government (NCT of Delhi) and others, reported in (2014) 9 SCC 105 with reference to paras 21 to 28.

4. The contesting respondents are respondent No. 1 and 3. The matter was listed on the previous dates. The matter was adjourned specifically at request of the learned counsel for respondent No. 1 to enable her to file objections. Even as on date, objections have not been filed. There is no reply by any of the respondents. The petitioner’s counsel pleads that even though an interim order staying the order of blacklisting has been granted, the drastic effect of the same continues against him. That he has not been able to bid for any of the contracts and therefore, he pleads that the matter be taken up for consideration. In spite of granting sufficient time, objections have still not been filed. Therefore, we are constrained to take up this matter for final disposal.

5. We are rather surprised that the respondent No. 1 has taken this matter so very casually. Similar petitions were disposed off on 15-6-2022 pertaining to the very same question of law. This matter was also clubbed al