We have heard learned Senior Council Shri Tara Kant Jha for the appellant and learned A.C. to SC 5 for the State.

2. The present appeal arises from order dated 26.7.2013 disposing CWJC No. 6067 of 2013. The learned Single Judge directed the order for blacklisting to operate as one of suspension pending resolution of the dispute with regard to non-completion of works pending before the Bihar Public Works Construction Disputes Arbitration Tribunal (hereinafter referred to as ‘the Tribunal’) in Reference Case No. 26 of 2013 preferred by the Appellant.

3. Learned Senior Council for the appellant submitted that Bihar Contractor Registration Rules, 2007 (hereinafter called the Rules) in Rule 11 provides for blacklisting by the Registration Authority. Appeal lies by the aggrieved against the order before the Commissioner-cum-Secretary. In the present case, the order for blacklisting dated 20.12.2011 was originally passed under the pen of the Engineer-in-Chief (Central) after a decision had been taken at the highest level depriving the appellant of the substantive right of appeal provided under the Rules. This aspect has been noticed while disposing CWJC No. 789 of 2012 remanding the matter for fresh decision.

4. The next submission by the learned Senior Counsel was that in CWJC No. 789 of 2012 the Court held that the order for blacklisting suffered from procedural infirmity in the decision making process. The Engineer-in-Chief (Central) did not apply his independent mind and acted mechanically at the behest of the recommendation made by the Chief Engineer. Directions were given to the Engineer-in-Chief (Central) to consider matters by independent application of mind with reference to the stand taken by the petitioner in his reply to the show cause notice. The fresh order for blacklisting dated 13.3.2013 has not been passed by the Engineer-in-Chief (Central) as directed by the Court, but by the Engineer-in-Chief (North). Furthermore it is not based on independent application of mind displaying due consideration of the cause shown in defense. It is a verbatim reproduction of the earlier order for blacklisting minus only the paragraph with regard to the recommendation of the Chief Engineer.

5. Blacklisting has serious consequence for the appellant as it affects business prospects and reputation far beyond the immediate authority ordering blacklisting. It is violative of the Constitutional rights of the appellant under Article 14 of the Constitution. The fact that the appellant may have disputed the foundational facts for blacklisting before the Tribunal, cannot be a justification to uphold an arbitrary order and direct it to be treated as one of suspension if the initial order itself suffered from arbitrariness and gross infirmity in the decision making process.

6. Learned Counsel for the State submits that in accordance with the directions of the Court, fresh orders have been passed for blacklisting after considering the cause shown. The principles of natural justice have been complied. The issues raised before the Tribunal are disputed questions of fact and at this stage cannot work to the advantage of the appellant for claiming that the order for blacklisting/suspension is bad even prior to the outcome of the matter before the Tribunal. The appeal is therefore premature as much shall depend on the findings of the Tribunal.

7. An order for blacklisting of a contractor/company has been held to be a serious matter. No one can claim that the government must do business with him. Government has the freedom to choose with whom it shall enter into business relations. But the power is not to be exercised by the government arbitrarily, but only in accordance with law. Such order has consequences far beyond the immediate authority ordering blacklisting and generally affects the business reputation which may keep away intending parties also. The harm done is both direct and indirect and may not be fully retrievable at times. It affects not onl