2013 (10) TMI 733 - SC - Indian Laws

Blacklisting of company for allotment of future contract - Misconduct and irregularity - Receipt of excessive payments - Held that - debarment is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission or frauds including misrepresentations, falsification of records and other breaches of the regulations under which such contracts were allotted. What is notable is that the debarment is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor - according to the respondent-BSNL, the appellant had fraudulently withdrawn a huge amount of money which was not due to it in collusion and conspiracy with the officials of the respondent-corporation. Even so permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable especially when (a) the appellant is supplying bulk of its manufactured products to the respondent-BSNL and (b) The excess amount received by it has already been paid back. Because blacklisting is in the nature of penalty the quantum whereof is a matter that rests primarily with the authority competent to impose the same. In the realm of service jurisprudence this Court has no doubt cut short the agony of a delinquent employee in exceptional circumstances to prevent delay and further litigation by modifying the quantum of punishment but such considerations do not apply to a company engaged in a lucrative business like supply of optical fibre/HDPE pipes to BSNL. Secondly, because while determining the period for which the blacklisting should be effective the respondent- Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While, it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent-Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor - Decided in favour of Appellant.

Issues Involved:
1. Legality of permanent blacklisting by BSNL.
2. Reconciliation of excess payments.
3. Fair hearing and procedural fairness.
4. Proportionality of punishment.
5. Judicial review of blacklisting decisions.

Detailed Analysis:

1. Legality of Permanent Blacklisting by BSNL:
The Supreme Court examined whether BSNL could blacklist the appellant permanently. The appellant argued that the blacklisting was arbitrary and unjustified, emphasizing that the blacklisting should be for a "suitable period" as per the bid document. The respondent-BSNL maintained that the blacklisting was justified under para 2.3 of the tender document, which disqualifies suppliers under investigation by statutory agencies. The Court noted that while paras 31 and 32 of the bid document allow blacklisting for specific failures, these provisions are not exhaustive. The power to blacklist is inherent in the contracting party and not limited to the situations enumerated in the bid document.

2. Reconciliation of Excess Payments:
The appellant acknowledged receiving excess payments and offered reconciliation. BSNL alleged that the appellant, in collusion with its officers, fraudulently generated duplicate and triplicate bills, leading to an excess payment of Rs. 7.98 crores. The appellant contended that the excess payment was an irregularity cured by a refund. The High Court held that the reconciliation proved double payments and that refunding the excess amount did not negate the act of misconduct and fraud.

3. Fair Hearing and Procedural Fairness:
The Supreme Court reiterated the necessity of a fair hearing before blacklisting, as established in Erusian Equipment & Chemicals Ltd. v. State of West Bengal. The appellant was given an opportunity to respond to the show cause notice and a personal hearing. The Court emphasized that blacklisting decisions by the State or its instrumentalities are subject to judicial review to ensure fairness, relevance, and proportionality.

4. Proportionality of Punishment:
The Court considered whether permanent blacklisting was proportionate to the alleged fraud. It acknowledged that while the appellant committed a serious fraud, permanent debarment might be too harsh, especially since the excess amount was refunded. The Court highlighted that blacklisting should be for a definite period, as indefinite blacklisting could render the appellant economically defunct.

5. Judicial Review of Blacklisting Decisions:
The Court affirmed that blacklisting decisions are subject to judicial review to prevent arbitrariness and discrimination. It referenced several precedents, including M/s Mahabir Auto Stores v. Indian Oil Corporation Ltd., which established that State actions must be informed by reason and fairness. The Court also noted that in jurisdictions like the USA and UK, debarment is used to discipline deviant suppliers but is never permanent and depends on the seriousness of the offense.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order. It affirmed the blacklisting but directed BSNL to determine the period of blacklisting afresh based on guidelines to be formulated. The guidelines should prescribe different periods of debarment depending on the gravity of the offenses to ensure objectivity and transparency. The needful should be done within six months.

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