Bashir A. Kirmani, J.
1. Claiming to be a registered contractor the petitioner is aggrieved of order No. FST/SFC/18/03 dated 11.03.2005 purporting to have been issued by respondent-department whereunder he has been sought to be black-listed for award of any Government/PSU contract; and impugns the same with a prayer to have it quashed on the ground that besides violating his right to undertake his chosen profession it also puts a stigma to his character and is thus bad in law, particularly of its having been passed without hearing petitioner.
2. In their reply, respondents have inter alia contended that petitioner was involved in a criminal case being FIR No. 11/04 purporting to have been registered by Vigilance Organization on the basis of his reported misconduct which necessitated his blacklisting in terms of the impugned communication. During their threshold arguments counsel appearing at bar have reiterated their respective pleadings, and canvassed their contentions with reference to annexures appended therewith.
3. I have heard learned Counsel and considered the matter. The whole thing appears to have started with a letter purporting to have been written by DIG Vigilance to Principal Secretary to Government, General Administrative Department (GAD) under his No. CU-Policy-Tax-314/2005-13/57 dated 23.11.2004 informing about registration of case under FIR No. 11/01 Under Section 5(1)(d), 5(2) P.C Act read with Section 120B and 380 RPC relating to alleged mis-use of office by certain officers of Forest Corporation in collusion with petitioner resulting in enhancing extractions and manning rates of timber in forest compartments V 9, V 10 and R 1.8 in Pulwama area, and thereby causing loss to State exchequer. As per said letter during petitioners house searching an official file pertaining to management decision No. 13 and 16 of 1997 regarding enhancement of manning, extractions and transportation rates of timber was recovered besides a diary in which he has kept record of bribe money alleged to have been paid to various official/officers of Forest Corporation which were admitted by him during course of interrogation. While communicating aforesaid information the Vigilance Organization sought petitioner's black-listing which was directed under the impugned communication addressed by Dy. Secretary of Forest department to Managing Director of State Forest Corporation asking him to formally black-list the petitioner and publicize the same through print media; apparently without hearing the petitioner which prompted him to institute the writ petition.
4. On fact of it, the controversy has two important dimensions, first the statement of Vigilance Organization regarding recovery of official file from petitioners residence which had been acknowledged as missing by the concerned official in whose custody otherwise it should have been; and secondly the record of bribes alleged to have been given by petitioner to various functionaries of respondent-department/corporation. This aspect no doubt requires to be looked into with all seriousness and concern that it deserves of course with due promptitude, so that all the guilty are brought to account for their mis-deeds and one can safely expect the Vigilance Organization to do the needful accordingly.
5. At the same time, however, so far as blacklisting petitioner in the manner it is sought to be done is concerned, it appears to be slightly harsh as having been ordered without affording petitioner an opportunity of being heard. Obviously his black-listing would not only constitute a stigma on petitioners character but also render it impossible for him to carry on his chosen profession and that being so, he deserved an audience before the impugned order was passed, for the simple reason, that whenever and wherever a power to effect some body adversely is to be exhaust, an obligation to act judiciously is implied in the very exercise thereof. In the instant case also, as a matter of fairness the petitioner should have been heard before having been black-listed. For support reference may be made to Apex Court judgment in Erusian Equipment and Chemicals Ltd v. State of West Bengal and Anr. reported as : [1975]2SCR674 where Hon'ble bench was pleased to observe that;
12. ...The government cannot chose to exclude person by discrimination. The order of black-listing has the effect of depriving a person equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government, because of the order of black-listing. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interests or expectations, when the State acts to prejudice of a person it has to be supported by legality..
20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purpose of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.
In the instant case, the opportunity of being heard neither appears to have been provided nor the respondents claim it to be so, which renders the impugned order of black-listing wanting in legality.
6. In view of what has been discussed above, the petition is admitted and disposed of at this stage with a direction that impugned communication No. FST/SFC/18/2003 dated 11.03.2005 addressed by Dy. Secretary to Managing Director of SFC shall remain in abeyance for two months from now, during which period the respondents shall allow an opportunity of being heard to the petitioner in the matter, whereafter the same may either be confirmed or modified/withdraw/rescinded. Nothing contained herein shall however, be deemed to dilute the necessity of investigating the allegations etc. as communicated by Vigilance Organization to Forest department in connection with FIR No. 11/01 registered by them, with all zeal and due promptitude that it deserve.
7. Matter stand accordingly disposed of along with connected CMP(s).