Duration of blacklisting cannot be solely per offence says SC
New Delhi Feb 24 PTI The Supreme Court Thursday said the duration of blacklisting cannot be solely per offence and seriousness of lapse or gravity of commission and omission on the part of the contractor which led to an incident should be the relevant considerationsThe apex court said it does not approve the guidelines issued by the Odisha Government in November 2021 which provide that blacklisting period per offence shall be limited to three years subject to an overall maximum cumulative period of 10 years for multiple offencesA bench of Justices M R Shah and B V Nagarathna delivered the verdict on the pleas filed by the state against the orders passed by the Orissa High Court last yearThe high court in one of the orders had set aside the states order banning a contractor from participating or bidding for any work to be undertaken by the Odisha government and transacting any business with themSubsequently the high court had passed another order on a separate petition and directed the state to remove the name of the contractor from the list of blacklisted contractorsThe contractor the respondent before the apex court had constructed a flyover over railway level crossing in Bhubaneswar and in 2017 a 10 metre slab of the flyover collapsed during concreting of the railway over bridge and one person died while 11 others were injured in the incidentIn its verdict the top court noted the high court had erred in holding that the blacklisting order was pre-determined as in the case a committee had submitted a detailed report which was the basis for issuance of the show cause notice to the contractorThe action initiated against the respondent contractor was not in a vacuum but after considering the committees report and after following the due procedure as required the bench saidThe apex court noted that after the order of blacklisting was passed in the case the state government had formulated guidelines by November 26 2021 office memorandum OMHowever we may observe that we do not approve of the guidelines issued by the state government by OM dated November 26 2021 Duration of blacklisting cannot be solely per offence it saidSeriousness of the lapse and the incident andor gravity of commission and omission on the part of the contractor which led to the incident should be the relevant considerations it saidThe bench noted that in a given case it may happen that the commission and omission is very grave and because of the serious lapse or negligence a major incident would have taken place It said that in such a case it may be the contractors first offence and the period of blacklisting or banning can be more than three yearsHowever as the said guidelines are not under challenge we rest the matter there and leave it to the state government to suitably amend andor modify the said office memorandum However what we have observed above can be a guide while determining the period of debarmentblacklisting it said The bench observed that action of blacklisting in this case was taken after a comprehensive report of a high-level inquiry was submitted before the authority concernedIt noted that the state had studied the report submitted by the high-level committee and a show cause notice was issued and the contractor was called upon to show cause as to why he be not blacklistedThe bench said the contractor had replied to the same and after considering the allegations in the show cause notice and the reply the government had passed an order of blacklistingMerely because the show cause notice was issued after the inquiry committee report was considered and thereafter the state government took the decision to initiate proceedings for blacklisting that by itself it cannot be said that the order of blacklisting was pre-determined as observed by the high court the bench saidIt observed that the high court ought to have considered the seriousness of the incident in which due to the omission and commission on the part of the contractor in constructing the flyover one person had died and eleven others were injuredHowever to debar him contractor permanently can be said to be too harsh a punishment But considering the subsequent OM dated November 26 2021 reproduced hereinabove to which as such we do not agree as observed hereinabove we are of the opinion that if the blacklisting is restricted to five years it may be in the fitness of things it saidThe impugned judgment and order passed by the high court quashing and setting aside the order dated December 12 2017 blacklisting the respondent herein contractor is hereby quashed and set aside However the period of blacklisting is ordered to be restricted to five years from the date of passing of the order of blacklisting the bench said PTI ABA SA
New Delhi Feb 24 PTI The Supreme Court Thursday said the duration of blacklisting cannot be solely per offence and seriousness of lapse or gravity of commission and omission on the part of the contractor which led to an incident should be the relevant considerationsThe apex court said it does not approve the guidelines issued by the Odisha Government in November 2021 which provide that blacklisting period per offence shall be limited to three years subject to an overall maximum cumulative period of 10 years for multiple offencesA bench of Justices M R Shah and B V Nagarathna delivered the verdict on the pleas filed by the state against the orders passed by the Orissa High Court last yearThe high court in one of the orders had set aside the states order banning a contractor from participating or bidding for any work to be undertaken by the Odisha government and transacting any business with themSubsequently the high court had passed another order on a separate petition and directed the state to remove the name of the contractor from the list of blacklisted contractorsThe contractor the respondent before the apex court had constructed a flyover over railway level crossing in Bhubaneswar and in 2017 a 10 metre slab of the flyover collapsed during concreting of the railway over bridge and one person died while 11 others were injured in the incidentIn its verdict the top court noted the high court had erred in holding that the blacklisting order was pre-determined as in the case a committee had submitted a detailed report which was the basis for issuance of the show cause notice to the contractorThe action initiated against the respondent contractor was not in a vacuum but after considering the committees report and after following the due procedure as required the bench saidThe apex court noted that after the order of blacklisting was passed in the case the state government had formulated guidelines by November 26 2021 office memorandum OMHowever we may observe that we do not approve of the guidelines issued by the state government by OM dated November 26 2021 Duration of blacklisting cannot be solely per offence it saidSeriousness of the lapse and the incident andor gravity of commission and omission on the part of the contractor which led to the incident should be the relevant considerations it saidThe bench noted that in a given case it may happen that the commission and omission is very grave and because of the serious lapse or negligence a major incident would have taken place It said that in such a case it may be the contractors first offence and the period of blacklisting or banning can be more than three yearsHowever as the said guidelines are not under challenge we rest the matter there and leave it to the state government to suitably amend andor modify the said office memorandum However what we have observed above can be a guide while determining the period of debarmentblacklisting it said The bench observed that action of blacklisting in this case was taken after a comprehensive report of a high-level inquiry was submitted before the authority concernedIt noted that the state had studied the report submitted by the high-level committee and a show cause notice was issued and the contractor was called upon to show cause as to why he be not blacklistedThe bench said the contractor had replied to the same and after considering the allegations in the show cause notice and the reply the government had passed an order of blacklistingMerely because the show cause notice was issued after the inquiry committee report was considered and thereafter the state government took the decision to initiate proceedings for blacklisting that by itself it cannot be said that the order of blacklisting was pre-determined as observed by the high court the bench saidIt observed that the high court ought to have considered the seriousness of the incident in which due to the omission and commission on the part of the contractor in constructing the flyover one person had died and eleven others were injuredHowever to debar him contractor permanently can be said to be too harsh a punishment But considering the subsequent OM dated November 26 2021 reproduced hereinabove to which as such we do not agree as observed hereinabove we are of the opinion that if the blacklisting is restricted to five years it may be in the fitness of things it saidThe impugned judgment and order passed by the high court quashing and setting aside the order dated December 12 2017 blacklisting the respondent herein contractor is hereby quashed and set aside However the period of blacklisting is ordered to be restricted to five years from the date of passing of the order of blacklisting the bench said PTI ABA SA
