# M/S Kaka Advt. Agency v. The State of U.P

- **Citation:** (2015) 3 ILRA 1472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015
- **Case number:** Misc. Bench No. 2771 of 2003
- **Bench:** Dinesh Maheshwari, Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kaka-advt-agency-v-the-state-of-u-p-43352
- **Pages:** 8

## Headnote

Constitution of India, Art.-226-Opportunity
of hearing-black listing and stoppage of
work-raising criminal activities of fraud in
getting Bill cleared-incident of fraud totally
unfounded-order quashed with direction to
take
appropriate
decision-within
time
bound period in presence of petitioner.
Held: Para-20
In the given set of facts and circumstances,
instead of this Court adjudicating on other
issues raised by the petitioner, it appears
just and proper that the department itself
re-examines the entire matter and takes an
objective and considered decision on the
show notice dated 19.04.2002. In the given
scenario, we are also of the view that where
all the facts have not been stated by the
respondents in their counter affidavit; and
where the petitioner is also claiming that
the report of Prabhari Nideshak was not
made available to it; and it is more than a
decade old matter, the opportunity to the
petitioner of making oral submissions
would help removing communication gap
between the parties and would serve the
cause of justice.

## Text

1472
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. In similar circumstances another
division Bench of this Court in the case of
Sita Ram and Others Vs. State made
following observation in Para 12 and 13:-
"12. In the present case the incident took
place on 23-8-1971. The appellants were
convicted by the Sessions Court by an order
dated 18-11-1974. The appeal has been
pending in this Court for about six years. We
are informed that copies of the First
Information Report and statements of witnesses
recorded under Section 161, Cr. P.C. have been
weeded out and are not available. All attempts
to reconstruct the record have proved futile. In
such a situation it is not permissible for us to
affirm the order of conviction of the appellants,
since in the absence of the record we cannot
possibly feel satisfied that the appellants have
been rightly convicted. Due to lapse of time
and non-availability of papers like First
Information Report, statements under Section
161, Criminal Procedure Code etc, we do not
consider it either just or expedient to order
retrial of the case.
13. In the circumstances the appeal is
allowed. The order of the court below
convicting and sentencing the appellants
is set aside and they are acquitted. They
are on bail. They need not surrender.
Their bail bonds are discharged. "
15.
In similar circumstances another
division Bench of this Court in the case of
Kesari and Others Vs. State of U.P. [1988 JIC
355] made following observation in Para 3 and
4:-
"3. Under these circumstances, the
lower court's record could not be obtained
and without the same, the appeal cannot
be heard on merits. It appears that the reconstruction of the record is also not
possible,
in-as-much
as
original
documents have all burnt out.
4.. Under these circumstances, both
the appeals stand allowed and the
conviction of the appellants and sentences
awarded to them are hereby set aside.
They are on bail. They need not
surrender. Their bail bonds and sureties
shall stand discharged. "
16. In view of the aforesaid discussion,
considering the judgment of the Apex Court
and of this Court, since inspite of best efforts
neither reconstruction of record is possible
nor re-trial is possible, hence, the criminal
appeal can not be deci ded on merit in
absence
of relevant prosecution papers
including the statement of witnesses and as
such there is no option but to set aside the
impugned judgment of conviction. In view of
the fact, the judgment and order of
conviction and sentence dated 16.10.1981
passed by 5th Additional District and
Sessions Judge, Bijnor in Session Trial No.
350/79, under sections 147, 148, 302/149
IPC, P.S. Chandpur, District Bijnor, is
hereby set aside.
16. Accordingly, the present appeal
is allowed. The appellants are on bail. The
sureties shall stand discharged.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Misc. Bench No. 2771 of 2003
M/S Kaka Advt. Agency
 ...Petitioner
Versus
The State of U.P.
...Respondent
Counsel for the Petitioner:
Apoorv Tiwari, Hemant Kumar Misra
3 All.
 M/S Kaka Advt. Agency Vs. The State of U.P.
1473
Counsel for the Respondent:
C.S.C.
Constitution of India, Art.-226-Opportunity
of hearing-black listing and stoppage of
work-raising criminal activities of fraud in
getting Bill cleared-incident of fraud totally
unfounded-order quashed with direction to
take
appropriate
decision-within
time
bound period in presence of petitioner.
Held: Para-20
In the given set of facts and circumstances,
instead of this Court adjudicating on other
issues raised by the petitioner, it appears
just and proper that the department itself
re-examines the entire matter and takes an
objective and considered decision on the
show notice dated 19.04.2002. In the given
scenario, we are also of the view that where
all the facts have not been stated by the
respondents in their counter affidavit; and
where the petitioner is also claiming that
the report of Prabhari Nideshak was not
made available to it; and it is more than a
decade old matter, the opportunity to the
petitioner of making oral submissions
would help removing communication gap
between the parties and would serve the
cause of justice.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1. The petitioner, said to be an
accredited agency with Indian Newspaper
Society, Delhi, has filed this writ petition
questioning the order dated 18.02.2003
(Annexure -11) whereby it has been held
guilty of fraudulent conduct with the
respondents; and has been removed from
the
panel
of
registered
advertising
agencies of the Information and Public
Relations Department of the Government
of Uttar Pradesh.
2.
After having heard the learned
Counsel for the parties and having perused
the material placed on record, we have
formed the opinion that the matter requires
re-consideration
by
the
authorities
concerned. Thus, when the matter is
proposed to be restored to the file of the
department for re-consideration, dilatation on
all the issues raised in this petition does not
appear necessary. Only a brief reference to
the relevant aspects and would suffice.
3.
The petitioner had undertaken the
work of publication of an advertisement of
respondent No.2, which was to be published
in the newspaper 'Dainik Jagaran' on the
Republic Day of the year 2001 (i.e.,
26.01.2001). The petitioner, alleging to have
carried out the work as assigned, raised the
bill for the advertisement in question and
also made a demand for its other outstanding
bills.
However,
by
the
order
dated
06.03.2002, the respondent No.2 proceeded
to order stoppage of work assignment to the
petitioner until an enquiry, while observing
that several cases of fraudulent dealing of the
petitioner had come to the fore. Thereafter,
by the orders issued on 15.03.2002, the
respondent No.2 alleged that the petitioner
had wrongly suggested publication of the
advertisement in New Delhi Edition of the
Newspaper Dainik Jagaran dated 26.01.2001
on page No.11 though in fact, some other
advertisement of the Government of India
was published on the said page; and
therefore, payment of an amount of
Rs.33,800/- was wrongfully obtained by the
petitioner, which was liable to be recovered.
With these findings and observations, the
respondent No.2 also proceeded to blacklist
the petitioner for any future dealing with the
department.
4. Aggrieved by the action aforesaid,
the petitioner filed a writ petition in this
Court bearing No.1787 (MS) of 2002.
However, on 12.04.2002, the department,
realizing its mistake of not affording
opportunity of showing cause to the
1474
 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, proceeded to withdraw the
aforesaid orders dated 06.03.2002 and
15.03.2002 and further ordered that the
decision would be taken in relation to the
petitioner after issuance of notice and
opportunity of hearing. The said writ
petition, therefore, became infructuous.
5.
Thereafter, on 19.04.2002, while
reiterating the same allegations, the petitioner
was put to notice and was called upon to
show as to why it be not removed from the
panel of registered advertising agencies. The
petitioner responded to the said notice with
the assertion that the referred advertisement
was indeed published on 26.01.2001 in New
Delhi Edition of the newspaper Dainik
Jagaran; and furnished a copy of the
newspaper alongwith a communication from
the publisher about publication of the
advertisement and receiving of payment
from the petitioner. The respondent No.2,
thereafter, proceeded to pass the impugned
order dated 18.02.2003 wherein, while
rejecting the explanation of the petitioner, it
was observed that the advertisement was not
published on page No.11 of the edition of
newspaper dated 26.01.2001, as was claimed
by the petitioner in the voucher; and that
clearly established fraudulent dealing of the
petitioner. Thus, the petitioner was ordered to
be removed from the panel of registered
advertising agencies.
6. Seeking to question the order
aforesaid, the petitioner has filed this writ
petition and it has specifically been
averred
in
the
petition
that
the
advertisement was indeed published on
the
given
date,
but
no
such
voucher/invoice was submitted that the
same was published on page No.11. Thus,
according to the petitioner, the impugned
order remains entirely baseless and
unsustainable. The averments as taken in
this regard in paragraph - 37 of the
petition read as under:-
"37. That the petitioner after publishing
the advertisement on the basis of offer given
by the opposite party no.2 for publishing the
same in the Dainik Jagaran, Delhi Edition,
had submitted voucher along with the
relevant proof that the same had been
published by him on the said date and he has
not submitted any voucher/invoice that he
has published the same at page-11 in the
newspaper on 26.1.2001. As such, the said
allegation which is the sole basis for passing
the impugned order that the petitioner had
played fraud is wholly incorrect and illegal
and thus renders the impugned order as
unsustainable in the eyes of law."
7. The respondents have filed their
counter affidavit and have maintained that
blacklisting of the petitioner is perfectly
legal,
proper
and
justified.
The
respondents have also suggested in the
counter affidavit that the advertisement in
question was alleged to have been
published at page No.11 of the newspaper
concerned on 26.01.2001, but upon
enquiry, it was found that no such
advertisement was published at page
No.11; and on the said page, a different
advertisement of Government of India
appeared. However, even while alleging
that
the
petitioner-agency
raised
a
fraudulent bill, the respondents chose not
to annex a copy thereof with the counter
affidavit. On the other hand, it is also
noticed that so far the above-quoted core
averments in paragraph - 37 of the
petition are concerned, a cryptic and
cursory reply is stated in paragraph - 15 of
the counter affidavit with a general denial
of the contents of paragraphs - 35 to 43 of
the petition but without adverting to the
specific assertion of the petitioner. This
3 All.
 M/S Kaka Advt. Agency Vs. The State of U.P.
1475
paragraph - 15 of the counter affidavit
reads as under:-
"15. That the contents of paras 35 to
43 of the Writ Petition are denied in the
manner stated being misleading based on
misconception and interpretation and also
incorrect. Detailed submissions in this
regard have already been made in the
preceding
paragraphs
which
are
reiterated and reaffirmed herewith."
8. It may be observed that in this writ
petition, the petitioner had also moved an
application for summoning the original
voucher submitted by it in respect of the
questioned advertisement dated 26.01.2001;
and it appears that in the past, when this
matter was examined by a Co-ordinate
Bench of this Court, the Standing Counsel
was directed to produce the record. The
record was indeed brought before the Court
on a few occasions, but the matter could not
be argued finally. Though the record is not
available with the Standing Counsel today,
who has expressed willingness to produce
the same, if so required, but, as indicated
hereinabove, having heard the learned
counsel and having perused the material
placed on record, when we find that the
matter requires re-consideration by the
department, it does not appear necessary to
enter into any factual enquiry at this stage
and in this petition.
9.
It has been strenuously argued on
behalf of the petitioner that there was no
mention in the work order that
the
advertisement be published on any specific
page or at page No.11; and it was never
claimed
by
the
petitioner
that
the
advertisement was published on page No.11.
It is also submitted that the impugned order
dated 18.02.2003 has been passed on the
basis of a so-called report of Prabhari
Nideshak, but a copy thereof was never
supplied to the petitioner. Learned counsel
for the petitioner has referred to and relied
upon the decisions of the Hon'ble Supreme
Court in Gorkha Security Services Vs
Government (NCT of Delhi) and others
[(2014) 9 SCC 105] and M/s Erusian
Equipment & Chemicals Ltd. Vs State of
West Bengal and another and other
connected Appeal [(1975) 1 SCC 70] with
the
submissions
that
adequate
and
meaningful opportunity of show cause
having not been given and the department
having
proceeded
on
irrelevant
consideration, the impugned order deserves
to be set aside.
10.
Per contra, the learned Standing
Counsel has duly supported the action
impugned and submitted that when it had
been a case of the petitioner having misled
the department and having claimed the bill
on incorrect statement of facts, the impugned
action cannot be said to be unjustified,
particularly when the impugned order has
been passed after due show cause notice and
after
taking
into
consideration
the
explanation of the petitioner.
11.
The question in the present case
essentially is as to whether the impugned
order dated 18.02.2003 could be said to have
been passed on relevant considerations and
after adequate and meaningful opportunity of
showing cause to the petitioner?
12.
It remains trite that the order of
blacklisting or permanent debarring has the
effect of depriving a person of equal
opportunity of participation in public
contracts; and when any person is sought to
be permanently excluded from dealing with
the State in its transactions, such an action
has to be supported by legality. The
requirement of adequate opportunity of
1476
 INDIAN LAW REPORTS ALLAHABAD SERIES
showing cause against such a harshest
possible action has been reiterated by the
Hon'ble Supreme Court in the case of
Gorkha Security Services (supra) in the
following:-
"21. The central issue, however,
pertains to the requirement of stating the
action which is proposed to be taken. The
fundamental purpose behind the serving of
show-cause notice is to make the noticee
understand the precise case set up against
him which he has to meet. This would
require
the
statement
of
imputations
detailing out the alleged breaches and
defaults he has committed, so that he gets an
opportunity to rebut the same. Another
requirement, according to us, is the nature of
action which is proposed to be taken for such
a breach. That should also be stated so that
the noticee is able to point out that proposed
action is not warranted in the given case,
even if the defaults/breaches complained of
are not satisfactorily explained. When it
comes to blacklisting, this requirement
becomes all the more imperative, having
regard to the fact that it is harshest possible
action."
"22. .... To put it otherwise, we are of
the opinion that in order to fulfil the
requirements of principles of natural
justice, a show-cause notice should meet
the following two requirements viz:
(i) The material/grounds to be stated
which according to the department
necessitates an action;
(ii) Particular penalty/action which
is proposed to be taken. It is this second
requirement which the High Court has
failed to omit.
We may hasten to add that even if it
is not specifically mentioned in the showcause notice but it can clearly and safely
be discerned from the reading thereof,
that would be sufficient to meet this
requirement."
13.

Thus,
an
adequate
and
meaningful opportunity to the person
concerned to show cause and to present
his case before the authorities in a
proposed action of blacklisting/debarring
is a well established norm; and is not a
matter of empty formality.
14. In the case of Erusian Equipment
& Chemicals (supra), a three Judges'
Bench of the Hon'ble Supreme Court has
been pleased to observe and hold, inter
alia, as under:-
"17. The Government is a Government
of laws and not of men. It is true that neither
the petitioner nor the respondent has any
right to enter into a contract but they are
entitled to equal treatment with others who
offer tender or quotations for the purchase of
the goods. This privilege arises because it is
the Government which is trading with the
public
and
the
democratic
form
of
Government demands equality and absence
of arbitrariness and discrimination in such
transactions. Hohfeld treats privileges as a
form of liberty as opposed to a duty. The
activities of the Government have a public
element and, therefore, there should be
fairness and equality. The State need not
enter into any contract with any one but if it
does so, it must do so fairly without
discrimination and without unfair procedure.
Reputation is a part of a person's character
and personality. Blacklisting tarnishes one's
reputation.
18. Exclusion of a member of the
public from dealing with a State in sales
transactions has the effect of preventing
him from purchasing and doing a lawful
trade in the goods in discriminating
against him in favour of other people. The
3 All.
 M/S Kaka Advt. Agency Vs. The State of U.P.
1477
State can impose reasonable conditions
regarding rejection and acceptance of
bids or qualifications of bidders. Just as
exclusion of the lowest tender will be
arbitrary, similarly exclusion of a person
who offers the highest price from
participating at a public auction would
also
have
the
same
aspect
of
arbitrariness.
19. Where the State is dealing with
individuals in transactions of sales and
purchase of goods, the two important
factors are that an individual is entitled to
trade with the Government and an
individual is entitled to a fair and equal
treatment with others. A duty to act fairly
can be interpreted as meaning a duty to
observe certain aspects of rules of natural
justice. A body may be under a duty to
give fair consideration to the facts and to
consider the representations but not to
disclose to those persons details of
information in its possession. Sometimes
duty to act fairly can also be sustained
without providing opportunity for an oral
hearing. It will depend upon the nature of
the
interest
to
be
affected,
the
circumstances in which a power is
exercised and the nature of sanctions
involved therein.
20. Blacklisting has the effect of
preventing a person from the privilege
and advantage of entering into lawful
relationship with the Government for
purposes 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.
21. With regard to the case of the
petitioners, it is made clear that the
authorities will give an opportunity to the
petitioners to represent their case and the
authorities will hear the petitioners as to
whether their name should be put on the
blacklist or not. This is made clear that
the decision on this question will not have
any effect on the proceedings pending in
Calcutta High Court where the petitioner
has
challenged
the
adjudication
proceedings under the Foreign Exchange
Regulations Act. Any decision of the
authorities on the blacklisting will have
no effect on the correctness of any of the
facts involved in those proceedings."
15. It may be noticed that the Apex
Court has observed in the case of Gorkha
Security Services (supra) that after giving
show cause notice and opportunity to
reply, it is not necessary to give an oral
hearing; and in the case of Erusian
Equipment & Chemicals (supra) that
sometimes duty to act fairly could be
sustained without providing opportunity
of an oral hearing. However, in Erusian
Equipment & Chemicals (supra), the three
Judges' Bench of the Hon'ble Apex Court
has further observed that it would depend
on the nature of interest to be affected and
the circumstances in which a power was
exercised and the nature of sanctions
involved; and therein, the authorities were
directed to hear the petitioners on the
question as to whether their names should
be put on the blacklist or not.
16. Coming to the facts and scenario of
the present case, it is apparent on the face of
record that the basic allegation against the
petitioner had not been that the advertisement
in question was not published in the named
newspaper, i.e., Dainik Jagaran in its relevant
edition i.e., dated 26.01.2001. The allegation
had been that the advertisement was not
found published on page No.11 that carried
some other advertisement of Government of
1478
 INDIAN LAW REPORTS ALLAHABAD SERIES
India. The petitioner has placed on record a
photostat of the newspaper concerned and
prima facie, it appears that the advertisement
of the respondents did appear in the relevant
edition of the newspaper, but at a different
place or in a supplement. However, the fact
of the matter remains that the petitioner has
consistently maintained that neither there
was any order for publication of the
advertisement at page No.11 nor any claim
was made for any such publication at the
particular page, i.e., page No.11. As noticed
hereinabove, the specific averment taken in
the petition in this regard has not met with a
specific
and
cogent
reply
from
the
respondents. Thus, the core and fundamental
fact remains a matter of obscurity if the
petitioner claimed it to be an advertisement
published at page - 11 as alleged.
17. Apart from the above and even if
it be assumed for the sake of arguments
that somewhere "page No.11" came to be
mentioned
by
the
petitioner,
the
respondents have not pondered over the
question if it were a matter of any attempt
on the part of the petitioner at deception
or defrauding. The respondents also
appear to have omitted to consider if any
penalty lesser than permanent exclusion
would be sufficient, if the petitioner is at
all held guilty of incorrect billing, i.e., of
incorrect mentioning of page number of
the concerned publication.
18. The background aspects had also
been that the petitioner was allegedly
making a claim for other pending bills;
and
the
petitioner
was
straightway
debarred
under
the
orders
dated
06.03.2002 and 15.03.2002, which were
later on withdrawn upon the department
realising its mistake of not standing in
conformity with the dictum of the Hon'ble
Supreme Court.
19. In a comprehension of the facts
and surrounding factors, we are clearly of
the view that the impugned order dated
18.02.2003, even when passed after a
show cause notice, cannot be said to be a
considered decision fulfilling all the
requirements of objectivity and fairness.
20. In the given set of facts and
circumstances, instead of this Court
adjudicating on other issues raised by the
petitioner, it appears just and proper that
the department itself re-examines the
entire matter and takes an objective and
considered decision on the show notice
dated 19.04.2002. In the given scenario,
we are also of the view that where all the
facts have not been stated by the
respondents in their counter affidavit; and
where the petitioner is also claiming that
the report of Prabhari Nideshak was not
made available to it; and it is more than a
decade old matter, the opportunity to the
petitioner of making oral submissions
would help removing communication gap
between the parties and would serve the
cause of justice.
21. Accordingly and in view of above,
this petition is allowed to the extent and in
the manner that the impugned order dated
18.02.2003 is set aside and the matter stands
remitted for consideration afresh by the
Director (Information), U.P.
22. In the interest of justice, it is also
provided that it shall be permissible for
the petitioner to submit an additional
representation stating all its grounds and
viewpoints with supporting documents, if
any. It shall be required of the Director
concerned to examine the record of the
matter, to extend an opportunity of
personal hearing to the petitioner and
thereafter, to take a decision objectively
3 All.
 Dr. Manoj Kumar Vs. The State of U.P. & Anr.
1479
and dispassionately in the matter. For the
purpose of carrying out the requirements of
this order, in the first place, the petitioner
shall remain present in the office of the
Director concerned on 05.01.2016. The
Director shall also be expected to take the
decision expeditiously, preferably within
two months from the first date of
appearance of the petitioner.
23. No costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.12.2015
BEFORE
THE HON'BLE ASHWANI KUMAR SINGH, J.
U/S 482/378/407 No. 2803 of 2006
Dr. Manoj Kumar
 ...Applicant
Versus
The State of U.P. & Anr.
...Respondents
Counsel for the Applicant:
Arun Sinha, Riyaz Ahmad
Counsel for the Respondents:
Govt. Advocate, Arun Kumar Shukla
Cr.P.C. Section-482-Charge sheet-quashingoffence
under
section
304-A
IPC-if
allegation as it is accepted no case made
out against applicant-as per postmortem
report-deceased suffering from septicemiaas last stage-no grass negligence found-as
per law developed by Apex Court in Jacob
Mathew case-in criminal negligence-should
be much higher-as per statement made by
mother of deceased-no role of applicant
specified-charge sheet quashed-application
allowed.
Held: Para-14
Looking into the facts of the case, I find
that it is not a case where the doctor had
administered a wrong medicine, which
was not to be given. As opined by the
Doctor, who conducted the postmortem,
the child was already suffering from
septicemia, which must have taken some
time to develop and must have been at its
last stage. There was absolutely no gross
negligence on part of the applicant. There
may be liability in civil law or may be not -
this Court does not express any opinion on
the same but since there is no criminal
negligence of higher degree, in light of the
observations of Hon'ble the Supreme Court
in the decisions referred to herein above,
no case under Section 304-A is made out
against the applicant.
Case Law discussed:
2005 Supreme Court Cases (Cri) 1369-sub
para (5) and (6) of paragraph 48; (2009) 1
SCC (Cri) 958
(Delivered by Hon'ble Ashwani Kumar
Singh, J.)
1. Heard learned counsel for the
applicant, learned State Counsel and
perused the relevant material on record as
well as counter affidavit filed by opposite
party no.2. None is present on behalf of
opposite party no.2.
2.
This petition under Section 482
Cr.P.C. has been preferred for quashing the
charge sheet of case no.1289/06, State v.
Dr.Manoj Kuar; Crime no.220/05, under
Section 304-A I.P.C., P.S.Ghazipur, District
Lucknow, pending in the Court of Special
C.J.M. (Customs), Lucknow and also for
quashing the proceedings pursuant to filing
of the charge sheet including the bailable
warrant issued on 26.9.2006.
3.
This Court vide order dated
8.11.2006 issued notice to opposite party no.2
calling for filing objection/counter affidavit, if
any, within four weeks. Rejoinder affidavit, if
any, was directed to be filed within one week
thereafter. The Court also passed interim order
staying the proceedings of the case including
issuance of warrant.