CWP No. 7233 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 7233 of 2011
Date of Decision: 2.5.2011
M/s N.K.G. Infrastructure Ltd.
....Petitioner.
Versus
State of Haryana and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL,
ACTING CHIEF JUSTICE.
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. Ashok Aggarwal, Senior Advocate with
Mr. Piyush Bansal, Advocate for the petitioner.
ADARSH KUMAR GOEL, ACJ.
1. This petition seeks quashing of order dated 21.2.2011
(Annexure P-10) passed by the Chief Engineer (NH), Haryana
debarring the petitioner from further tendering in the department for two
years i.e. upto 21.2.2013.
2. Case of the petitioner is that work of construction of ROB
(Railway Over Bridges) in Sirsa Town was allotted to it vide agreement
dated 19.12.2008 at a contract price of about Rs.22 crores. On
19.5.2010, show cause notice was issued to the petitioner alleging that
the petitioner failed to submit method statement of construction for
approval as stipulated, it failed to supervise pre-stressing operations as
per the contract, it failed to transport precast girders in the prescribed
manner and also failed to deploy sufficient key personnel. These
CWP No. 7233 of 2011 -2-
lapses resulted into falling of girders during construction on 15.12.2009
at 7.00 P.M. This negligence could have resulted in loss of human lives
also if persons were working at the site beneath the fallen portion, at the
time of incident. It was proposed that the petitioner may be debarred for
two years from further tendering in Haryana PWD. The petitioner
submitted reply stating that the occurrence took place due to sudden
mechanical fault in the machinery and there was no negligence on its
part. The reason for the falling of girder was an accidental push from
hydra due to insufficient spacing between girders. On receiving the
reply followed by further representation of the petitioner dated
15.10.2010, a committee was constituted to give personal hearing. The
committee conducted proceedings from time to time and concluded the
same on 6.12.2010. It concluded that there was nothing in the reply of
the petitioner to warrant alteration in the proposal for debarring for two
years. After consideration of the reply and the report of the committee,
the impugned order has been passed concluding that the petitioner
violated the provisions of the contract agreement in the manner stated
in the show cause notice resulting in mishap on 15.12.2009 when the
girder fell during construction which could have resulted in loss of
human lives. Accordingly, the petitioner was debarred for two years for
further tendering in the department.
3. Aggrieved by the above, this petition has been filed.
4. We have heard learned counsel for the petitioner at length.
5. The main contention raised on behalf of the petitioner is
that the petitioner was working as per designs prepared by the
department which has defect of leaving less space between the girders.
CWP No. 7233 of 2011 -3-
The incident of falling of girders led to revising of the plan and thereafter
the work was successfully completed. The girder also fell on account
of accidental push to one of the girders. There was no breach of
agreement as the method statement was duly signed, pre-stressing
material was supplied by the authorized vendors and pre-stressing work
was done by training executions. Entire payment has been made to the
petitioner and work completed. These facts were pointed out in the
reply. The committee failed to give personal hearing though such a
hearing was necessary and was proposed.
6. Learned counsel for the petitioner submitted that the
impugned order was arbitrary and violative of principles of natural
justice. He has also placed reliance on the following judgments:-
I. M/s. Erusian Equipment & Chemicals Ltd. v. State
of West Bengal and another, (1975) 1 Supreme
Court Cases 70;
II. M/s. Travancore Rayon Ltd. v. Union of India,
1969 (3) SCC 868; and
III. Bhim Sain v. Union of India and another, AIR 1981
Delhi 260.
7. We are unable to accept the submission. There is no doubt
that blacklisting is a serious matter which has effect preventing a person
from entering into lawful relationship with the Government for gains and
principles of fairness apply to any decision of the State for passing an
order which may affect the reputation and civil rights of a person.
Principles of fairness require due consideration of representation of the
affected party, as laid down in the judgments relied upon. Whether or
CWP No. 7233 of 2011 -4-
not principles of fairness have been followed depends upon facts and
circumstances of each case. In the present case, admittedly show
cause notice was given to the petitioner indicating the grounds on which
nature of action was proposed. The show cause notice stated violation
of terms and conditions of contract and also the fact that girders fell
down due to negligence of the petitioner which had the potential of
resulting in loss of human lives. The committee was also constituted to
look into the stand of the petitioner and the committee did not find any
merit in the stand taken. Thereafter, the impugned order has been
passed. It cannot, thus, be held that there is violation of principles of
natural justice. No doubt, the impugned order does not discuss in detail
each and every plea which the petitioner may have taken in the reply
but it clearly mentions that it is failure of the petitioner on account of
which the girders fell down during construction which had the potential
of causing loss of human lives. Whether the action of falling girders
was on account of any defect in the designs or on account of
negligence or was accidental is not a matter on which this Court can
substitute its opinion for the opinion formed by the administrative
authority. It is not a case where any malafides have been alleged. This
Court does not sit in appeal over the decision of an administrative
authority. Mere fact that the design was revised does not necessarily
mean that there was a defect in the design which resulted in falling the
girder. A bonafide opinion has been formed that there was negligence
on the part of the petitioner in executing the contract and the negligence
was of serious nature. As stated by learned counsel for the petitioner,
entire payment for construction has been duly made. This shows that
CWP No. 7233 of 2011 -5-
there is no malafide on the part of the respondent. As regards the
period of debarring for two years from the date of issue of the letter, it
cannot be held that the same is shocking proportionate to the lapse
found on the part of the petitioner. It is not possible to hold that
debarring of two years has to be from the date of alleged lapse and not
from the date of passing of the impugned order. Thus, we do not find
any ground to interfere.
8. The writ petition is accordingly dismissed.
(ADARSH KUMAR GOEL)
ACTING CHIEF JUSTICE
May 2, 2011 (AJAY KUMAR MITTAL)
gbs JUDGE