2024 (8) TMI 469 - SC - Indian Laws

Contractor's five-year debarment order overturned due to lack of rigorous scrutiny in blacklisting decision

THE BLUE DREAMZ ADVERTISING PVT. LTD. & ANR. Versus KOLKATA MUNICIPAL CORPORATION & ORS.

The SC set aside a five-year debarment order imposed by a Corporation on the appellant contractor. The appellant argued the Corporation could only impose ... Debarring the appellant for a period of five years - appellant contended that the Corporation could only impose a penalty for late payments under clause 9 and not blacklisting - HELD THAT:- Blacklisting has always been viewed by this Court as a drastic remedy and the orders passed have been subjected to rigorous scrutiny. In ERUSIAN EQUIPMENT & CHEMICALS LTD. VERSUS STATE OF WEST BENGAL & ANR. [1974 (11) TMI 89 - SUPREME COURT], this Court observed that 'The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction.' What is significant is that while setting out the guidelines prescribed in USA, the Court noticed that comprehensive guidelines for debarment were issued there for protecting public interest from those contractors and recipients who are non-responsible, lack business integrity or engage in dishonest or illegal conduct or are otherwise unable to perform satisfactorily - blacklisting will not only debar the person concerned from dealing with the concerned employer, but because of the disqualification, their dealings with other entities also is proscribed. Even in the terms and conditions of tender in the present case, one of the conditions of eligibility is that the agency should not be blacklisted from anywhere. The appellant, after the award of the tender, has admittedly paid an amount of Rs. 3,71,96,265/-, though, according to the Corporation, the outstanding amount as on the date of the debarment was Rs. 14,63,24,727/-. It is found that the appellant, after the award of the tender, has admittedly paid an amount of Rs. 3,71,96,265/-, though, according to the Corporation, the outstanding amount as on the date of the debarment was Rs. 14,63,24,727/-. However, as would be clear from the facts discussed hereinabove, right from the inception there have been issues between the appellant and the Corporation with regard to the fulfilment of the reciprocal obligations in the bid document. There has been exchange of correspondence between the parties with each side blaming the other for not performing the reciprocal obligations. The impugned judgment set aside - appeal allowed. Issues Involved:1. Validity and justification of the Corporation's order debarring the appellant.2. Reliefs entitled to the appellant.Detailed Analysis:1. Validity and Justification of the Corporation's Order Debarring the Appellant:The Supreme Court analyzed whether the Corporation's order dated 02.03.2016, debarring the appellant for five years, was valid and justified. The Court emphasized that blacklisting is a drastic remedy and must be subjected to rigorous scrutiny, as highlighted in Erusian Equipment & Chemicals Ltd. vs State of West Bengal & Anr. (1975) 1 SCC 70. The Court noted that blacklisting prevents a person from entering into lawful relationships with the Government for purposes of gains, requiring objective satisfaction by the relevant authority.The appellant contended that the Corporation could only impose a penalty for late payments under clause 9 and not blacklisting, which should be reserved for deviations under clauses 2.8, 11, and 14. The appellant argued that the grounds for blacklisting were not stated in these clauses and that the order was passed during ongoing arbitration proceedings, which involved bona fide disputes.The Court referred to B.S.N. Joshi & Sons Ltd. vs Nair Coal Services Ltd. & Ors. (2006) 11 SCC 548, emphasizing that blacklisting should not be applied where there is a bona fide dispute. The Court also cited Kulja Industries Ltd. vs Chief General Manager Western Telecom Project BSNL & Ors. (2014) 14 SCC 731, which highlighted that debarment should be proportionate and not permanent.The Court found that the appellant had paid Rs. 3,71,96,265/-, though the Corporation claimed an outstanding amount of Rs. 14,63,24,727/-. The Court noted ongoing issues between the appellant and the Corporation regarding reciprocal obligations, with both parties blaming each other for non-performance. The Court concluded that the reasons provided by the Corporation for blacklisting did not justify such a drastic remedy, as the appellant's conduct did not warrant it. The Court held that the appellant was subjected to a disproportionate penalty, and the Corporation's action was akin to using a sledgehammer to crack a nut.2. Reliefs Entitled to the Appellant:The Supreme Court restored the judgment of the learned Single Judge, which had set aside the order of blacklisting. The Single Judge had observed that blacklisting has civil consequences and must follow the rules of natural justice, requiring proper reasons. The Single Judge noted that the Corporation failed to establish that the appellant was dishonest, irresponsible, or lacking business integrity. The Court found that the dispute between the parties was bona fide and that blacklisting should not proceed until the dispute was resolved.The Division Bench's judgment, which upheld the blacklisting, was set aside. The Court criticized the Division Bench for not applying the principle of proportionality correctly and for overlooking the bona fide nature of the dispute. The Court emphasized that the Corporation, being a statutory body, must act within legal parameters and ensure proportionality in its decisions.The Supreme Court allowed the appeal, setting aside the order of blacklisting dated 02.03.2016, and restored the judgment of the learned Single Judge, thereby allowing the appellant's writ petition and nullifying the blacklisting order. No costs were imposed.