KEMS SERVICES PRIVATE LIMITED Vs. STATE OF BIHAR

JUDGEMENT

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

(2.) Learned Senior Council for the appellants 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.

(3.) 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.