Facts of the Case
The petitioner company, M/s. NCC Limited, a reputed
construction and engineering company, participated in a tender floated for the
construction of a two-lane major bridge across the Penna River on NH-67 in SPSR
Nellore District under the Engineering, Procurement and Construction (EPC)
Mode.
The petitioner emerged as the successful bidder, and a
Letter of Award (LOA) was issued after acceptance of its bid amounting to
₹62,01,90,999.
Before executing the agreement, the petitioner repeatedly
informed the authorities that substantial encroachments existed at the project
site, making execution of the work impossible unless the authorities confirmed
land availability. Despite these representations, the respondents insisted upon
submission of the performance bank guarantee and execution of the contract.
Subsequently, without issuing any prior show cause notice or
granting an opportunity of hearing, the respondents suspended/blacklisted the
petitioner from participating in tenders relating to MoRTH, NHAI, NHIDCL, and
other centrally sponsored schemes until 16.01.2023.
Aggrieved by this action, the petitioner approached the Andhra Pradesh High Court under Article 226 of the Constitution challenging the blacklisting order as arbitrary, illegal, and violative of the principles of natural justice.
Issues Involved
- Whether
the respondents could blacklist a contractor without issuing a prior show
cause notice.
- Whether
suspension/blacklisting without providing an opportunity of hearing
violates the principles of natural justice.
- Whether
the impugned blacklisting order was arbitrary and violative of Articles
14, 21 and 300A of the Constitution of India.
- Whether
the respondents were required to follow the procedure prescribed under the
Request for Proposal (RFP) before imposing blacklisting.
Petitioner's Arguments
The petitioner contended that:
- The
impugned blacklisting order was issued without serving any show cause
notice.
- No
opportunity of hearing was provided before passing the order.
- Blacklisting
has severe civil consequences affecting the company's right to participate
in government contracts.
- The
respondents ignored the petitioner's genuine concerns regarding
encroachments and non-availability of the project site.
- The
action violated Articles 14, 21 and 300A of the Constitution.
- The
respondents failed to comply with the mandatory principles of natural
justice.
The petitioner relied upon the following Supreme Court
judgments:
- Erusian
Equipment & Chemicals Ltd. vs State of West Bengal
- Medipol
Pharmaceutical India Pvt. Ltd. vs Post Graduate Institute of Medical
Education and Research
- Patel
Engineering Ltd. vs Union of India
Respondents' Arguments
The respondents argued that:
- The
petitioner was the successful bidder and was required to furnish the
performance bank guarantee.
- Multiple
communications were issued requiring execution of the contract.
- The
work front had already been made available.
- Despite
repeated notices, the petitioner failed to execute the agreement.
- Therefore,
the impugned action was justified under the terms of the Request for
Proposal (RFP).
Court Order / Findings
The Andhra Pradesh High Court held that blacklisting has
serious civil consequences and cannot be imposed without adhering to the
principles of natural justice.
The Court observed that:
- The
impugned proceedings did not disclose issuance of any show cause notice
before blacklisting.
- Blacklisting
deprives a contractor of the opportunity to participate in future
government contracts.
- The
principle of Audi Alteram Partem (hear the other side) is mandatory
before imposing such penal consequences.
- The
Supreme Court has consistently held that fair procedure is an essential
requirement before blacklisting any contractor.
The Court concluded that:
- The
impugned blacklisting order was passed in violation of the principles of
natural justice.
- Accordingly,
the blacklisting order was set aside.
- However,
the respondents were granted liberty to initiate fresh action strictly in
accordance with the RFP and after following due process of law.
Important Clarification
This judgment does not prevent the Government or its
authorities from blacklisting a contractor.
The Court clarified that:
- Authorities
are fully empowered to initiate blacklisting proceedings.
- However,
before doing so, they must:
- Issue
a proper show cause notice;
- Give
adequate opportunity to submit an explanation;
- Consider
the explanation objectively; and
- Pass
a reasoned order consistent with the principles of natural justice.
The respondents were also directed to follow Clause 2.20.1
of the Request for Proposal (RFP) while taking any future action.
Sections
Involved
- Article
226 of the Constitution of India
- Article
14 of the Constitution of India
- Article
21 of the Constitution of India
- Article
300A of the Constitution of India
- Principles
of Natural Justice
- Principle
of Audi Alteram Partem
- Clause
2.20.1 of the Request for Proposal (RFP)
- EPC Contract Conditions
Link to Download the Order
https://www.mytaxexpert.co.in/uploads/1785570011_2560compressed.pdf
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