Allowed

Sabari Enterprises, v. Superintending Engineer

Kerala HC2 Nov 2021WP(C)/9765/2019

Case brief

AI extract

What is this about?

The High Court quashed a blacklisting order (Ext.P2) passed against the petitioner. The court held that the authority violated the principles of natural justice by passing the order without giving the petitioner an opportunity of hearing, making the order unsustainable.

What did the court decide?

Ext.P2 blacklisting order is set aside. Respondents are free to take appropriate steps only after giving a hearing opportunity to the petitioner.

Sabari Enterprises, Vs Superintending Engineer — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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TUESDAY, THE 2^ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943

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W.P.(C) NO.9765 OF 2019

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PETITIONER:

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SABARI ENTERPRISES, SAYUJYAM,THKRIKKODITHANAM.P.O., CHANGANACHERRY0-686 105. (REPRESENTED BY SRI.K.C.VIJAYAKUMAR, PARTNER).

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BY ADVS.

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K.N.SREEKUMARAN SRI.P.J.ANILKUMAR (A-1768) SRI.N.SANTHOSHKUMAR

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RESPONDENTS:

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1 SUPERINTENDING ENGINEER, PWD BUILDINGS DIVISION(SOUTH CIRCLE), BEACH ROAD,KOLLAM-691 001.

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2 EXECUTIVE ENGINEER, PWD KLC SECTION,NO.2,VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.

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3 ASSISTANT ENGINEER, PWD PUNALUR SUB DIVISION, PUNALUR-691 305.

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4 SECRETARY TO GOVERNMENT, PWD,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) NO.9765 OF 2019

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JUDGMENT

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The above writ petition is filed with the following prayers:

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i) call for the records leading to Ext.P2 and quash the same by issuance of writ of mandamus or any appropriate writ direction or order to the 1^st and 4^th respondents.

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ii) issue any other appropriate writ, direction or order found fit and proper by this Honourable Court on the facts and in the circumstances of the case.

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The petitioner is an A-Class Government Contractor executing works through the Public Works Department of the State Government. It is the case of the petitioner that despite completion of works as per the schedule of the agreement to the satisfaction of the Public Works Department (PWD), contract amount was paid belatedly. It is the case of the petitioner that the petitioner earlier approached this Court with a writ petition for getting the bill amount.

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The petitioner undertaken the work for the construction of building for Punnala VHS School. It is the case of the petitioner that he completed the construction, but painting could not be done due to the delay from the part of the local MLA and the PWD authorities. It is further stated in the writ petition that, in the

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W.P.(C) NO.9765 OF 2019

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meantime, the Chief Technical Examiner of the PWD conducted an enquiry and raised certain irregularities in the plastering of the building. It is also stated in the writ petition that the inspection is conducted without issuing notice to the petitioner. It is also the case of the petitioner that the petitioner cured all the defects to the satisfaction of the PWD and the School authorities as evident from Ext.P9 letters and Ext.P10 completion certificate. It is further stated in the writ petition that while the petitioner was awaiting clearance of the bill for the final payment, the petitioner received Ext.P2 order blacklisting him on the premises of the irregularities noticed by the Technical Examiner. Aggrieved by the same, this writ petition is filed.

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Heard the counsel for the petitioner and the Government Pleader.

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The counsel for the petitioner reiterated his contention in the writ petition. The Government Pleader submitted that a detailed counter affidavit is filed by the 1^st respondent, narrating the facts which leads to Ext.P2 order.

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I considered the contention of the petitioner and the Government Pleader. It is an admitted fact that Ext.P2 is an order

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W.P.(C) NO.9765 OF 2019

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passed by the 1^st respondent, without giving an opportunity of hearing to the petitioner. It is fundamental that, if the authority wants to blacklist a contractor, notice should be given to the contractor. There can't be arbitrariness while exercising powers of blacklisting especially by the State. The point is covered by the decision of this Court in Bharat Parentarals Ltd., Gujarat v. State of Kerala [2021 (1) KHC 579] and the decision of the Supreme Court in Kulja Industries Ltd. v. Chief General Manager, Western Telecom Projects, Bharat Sanchar Nigam Ltd. and others [2014 (14) SCC 731] . Even otherwise, it is the fundamental principles of natural justice that any order can be passed only after giving an opportunity of hearing to the aggrieved person. Admittedly, Ext.P2 order is passed without giving an opportunity of hearing to the petitioner. In Ext.P2, it is stated that the order is passed based on the directions from the 4^th respondent. It is also an admitted fact that the 4^th respondent has not given any opportunity of hearing to the petitioner before passing final orders. Therefore, according to me, Ext.P2 is unsustainable. If the 4^th respondent wants to proceed against the petitioner, the 4^th respondent should issue notice to the petitioner

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W.P.(C) NO.9765 OF 2019

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and thereafter can take appropriate action, in accordance with law. I make it clear that, I have not considered the matter on merit and I interfere with Ext.P2 on a limited point of the violation of natural justice. Hence Ext.P2 order will not stand. Therefore, this writ petition is allowed in the following manner:

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i) Ext.P2 order is set aside.

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ii) The respondents are free to take appropriate steps against the petitioner, if there is any allegation against him, but action can be taken against him only after giving an opportunity of hearing, in accordance with law.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

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bpr

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W.P.(C) NO.9765 OF 2019

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF ISSUED TO THE RESPONDENT.	THE REGISTRATION CERTIFICATE PETITIONER BY THE 1ST
EXHIBIT P2	TRUE COPY OF NO.F5/PWD(B)S ISSUED TO THE RESPONDENT.	BLACKLISTING ORDER C.TVM/535/2019 DATED 1.3.2019 PETITIONER BY THE 1ST
EXHIBIT P3	TRUE COPY OF SUBMITTED BY RESPONDENT.	THE LETTE DATED 16.9.2017 PETITIONER BEFORE THE 3RD
EXHIBIT P4	TRUE COPY OF SUBMITTED BY RESPONDENT.	THE LETTER DATED 6.10.2017 PETITIONER BEFORE THE 3RD
EXHIBIT P5	TRUE COPY OF SUBMITTED BY RESPONDENT.	THE LETTER DATED 24.9.2018 PETITIONER BEFORE THE 4TH
EXHIBIT P6	TRUE COPY OF ENCLOSURES IN CHIEF TECHNIC	THE LETTER DATED 6.10.2018 WITH CLUDING ENQUIRY REPORT OF THE AL EXAMINER,THIRUVANANTHAPURAM.
EXHIBIT P7	TRUE COPY OF FILED BY THE RESPONDENT.	THE LETTER DATED 31.10.2018 PETITIONER BEFORE THE 2ND
EXHIBIT P8	TRUE COPY OF ADDRESSED TO TO THE 3RD RE	THE LETTER DATED 4.1.2019 THE 2ND RESPONDENT MARKING COPY SPONDENT.
EXHIBIT P9	TRUE COPY OF ADDRESSED BY MISTRESS, GOV	THE LETTERS DATED 04.01.2019 THE 3RD RESPONDENT TO THE HEAD ERNMENT VHSS, PUNNALA.
EXHIBIT P10	TRUE COPY OF 19.01.2019 IS	THE COMPLETION CERTIFICATE DATED SUED BY THE 3RD RESPONDENT.

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W.P.(C) NO.9765 OF 2019

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EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 9.8.2012 IN W.P.(C) NO.8421/2011 OF THIS HON'BLE COURT.

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RESPONDENTS' EXHIBITS

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EXHIBIT R1(A) TRUE COPY OF THE INSPECTION REPORT OF FINANCIAL INSPECTION WING (REPORT NO.911295/INSP.TECH.3/98/2018 FIN DATED 23/8/2018). EXHIBIT R1(B) TRUE COPY OF THE GOVERNMENT LETTER. EXHIBIT R1(C) TRUE COPY OF THE CHIEF ENGINEER'S LETTER.

Sabari Enterprises, v. Superintending Engineer

Case brief

What is this about?

What did the court decide?

Sabari Enterprises, v. Superintending Engineer

Case brief

What is this about?

What did the court decide?

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