# M/S. Marson/S Electrical Industries v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 1359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Case number:** Writ C No. 31946 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-marson-s-electrical-industries-v-state-of-u-p-ors-44670
- **Pages:** 4

## Headnote

A. Constitution of India - Art. 14 - Natural
Justice-
Forfeiture
of
Security
and
blacklisting - Notice and consideration of
reply - In an administrative decision
making process, the justice and fair play
demands giving of notice as well as due
consideration of reply - Unless reply is duly
considered, it cannot be said that there
was due application of mind by authority -
Impugned order quashed.(Para 10 & 12)

Writ Petition allowed (E-1)
Case law relied: -

## Text

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1359
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----------
(2019)11ILR A1359

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 31946 of 2019

M/S. Marson/S Electrical Industries
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anurag Khanna, Sri Hitesh Pachori,
Ms. Gunjan Jadwani

Counsel for the Respondents:
C.S.C., Sri Suman Kumar Yadav, Sri R.K.
Mishra

A. Constitution of India - Art. 14 - Natural
Justice-
Forfeiture
of
Security
and
blacklisting - Notice and consideration of
reply - In an administrative decision
making process, the justice and fair play
demands giving of notice as well as due
consideration of reply - Unless reply is duly
considered, it cannot be said that there
was due application of mind by authority -
Impugned order quashed.(Para 10 & 12)

Writ Petition allowed (E-1)
Case law relied: -
1. M/s. Vindhyawasini T. Transport Vs St. of
U.P. & ors, (Writ - C No. 14505 of 2015
decided on 20/02.2018).
3. Gorkha Security Services Vs Govt. (NCT of
Delhi) & Others, (2014) 9 SCC 105.
4. M/s. Continental India Pvt. Ltd. Vs St. of
U.P. & ors, (Writ - C No. 26917 of 2019
decided on 17/09/2019).

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri Anurag Khanna,
learned Senior Advocate assisted by Ms.
Gunjan Jadwani, learned counsel for the
petitioner, Sri R.K. Mishra, learned
Advocate holding brief of Sri Suman
Kumar
Yadav,
learned
counsel
for
respondent nos. 2 and 3, Dr. Devendra
Kumar Tiwari, learned Additional Chief
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
Standing Counsel appearing for State
respondent no. 1 and perused the record.

2. By means of this petition under
Article 226 of the Constitution, the
petitioner has challenged the orders dated
02.09.2019, 04.09.2019 and 06.09.2019.

3. The main grievance of the
petitioner is that he has not been given
any notice much less a show cause notice
prior to passing of orders which have
resulted in adverse civil consequences.

4. The argument advanced by
learned counsel for the petitioner is that
the order debarring the petitioner from
entering into any agreement or contract
for a period of three years, amounts to
blacklisting and in view of this, he
submits that no order of blacklisting could
have been passed without giving prior
notice or show cause to the petitioner in
respect of such a proposed action. He
further argued that forfeiture of the
security amount has also been without
due consideration of his reply and is
therefore, not to be sustained in law.
Learned counsel for the petitioner in
support of the argument has relied upon a
Division Bench judgment of this Court in
Writ - C No. 41505 of 2015 decided on
20.02.2018. Learned counsel for the
petitioner has relied upon paras 18, 19 &
20 of the said judgment.

5. We made a pointed query from
learned counsel for the respondents
regarding the above factual and legal
position.

6. In reply, the argument of learned
counsel for the respondent Corporation is
that the petitioner was given a notice on
20.08.2019 which was to the effect that
the explanation was required from the
petitioner regarding anomalies committed
and on being not satisfied or in case if the
notice not duly replied to, the petitioner
would be held guilty and the appropriate
orders will be passed for blacklisting of
the petitioner. Needless to say, as it is also
argued, that forfeiture of the security
amount
was
liable
to
take
effect
automatically in view of the terms and
conditions of agreement reached between
the parties.

7. However, from the orders
impugned in this petition, we do not find
that the reply to the show cause notice
submitted
by
the
petitioner
dated
26.08.2019 finds any reference. The
settled legal position is that even in an an
administrative decision making process,
the justice and fair play demands that not
only notice be given to the parties
aggrieved, but reply submitted by the
parties should be duly considered. There
has to be a due application of mind to the
reply and explanation submitted by the
party to the show cause notice.

8. In the light of terms and
agreement as have reached between the
parties which provide for forfeiture of
security and blacklisting we take notice
dated 20.02.2018 to be a valid notice in
the form of show cause of the proposed
action.

9.

In
the
case
of
M/s.
Vindhyawasini T. Transport v. State of
U.P. & Others, Writ - C No. 14505 of
2015, a Division Bench, of which one of
us (Ajit Kumar, J.) was member, has
quoted para 21 of the judgment of Apex
Court in Gorkha Security Services v.
Government (NCT of Delhi) & Others,
(2014) 9 SCC 105, which reads as under:
3 All. M/S Marson/S Electrical Industries Vs. State of U.P. & Ors.
1361

"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."

10. However, we find from the
recitals made in the order that the
competent authority has proceeded to
pass an order holding the petitioner
simply guilty, but does not discuss the
reply which the petitioner had submitted
regarding the charges that have come to
be levelled in the show cause notice.
What we further find that even the notice
dated 02.08.2019 does not find reference
in the order.

11. Recently in the case of M/s.
Continental Indial Private Limited v.
State of U.P. & 3 Others, Writ - C No.
26917 of 2019, we, while considering the
aspect of non consideration of reply, have
held thus:

"9. It is a settled legal position
of law that when show cause notice is
issued and the authority is dealing with
the matter to decide an issue then in such
an
administrative
decision
making
process an authority is required not only
to consider the reply point-wise raised
before it but to deal with the same and
record reasons for rejecting the same, if it
intends to reject after due evaluation of
the same.

10. In the impugned order all
that has been stated is that the assessment
of cess has taken place and, therefore, the
liability was of the petitioner to pay and
in the absence of such payment being
made, the amount is required to be
recovered as arrears of land revenue.

11. This is no evaluation of
reply nor, the order can be called as
reasoned one. Fairness in action means
fairness in approach to the ultimate
result.
A
conclusion
drawn
if
is
questioned on the ground that an
authority that was seized with the defense
version failed to refer the same or failed
to apply its mind, the natural corollary is,
such an action is vitiated for arbitrariness
in approach to the issue. Whatever is
arbitrary is opposed to natural law, a
concept of justice that entails impartial
dealing. In other words fairness demands
impartial approach to an issue that
needed adjudication, may be in a
summary manner. Every administrative
order ultimately has to pass the testing
anvil of Article 14 of the Constitution of
India. Article 14 of the Constitution of
India not only requires compliance of
principles of natural justice but due
application of mind also and complete
fairness in procedure and fairness in
procedure means not only issuance of
notice for the cause for which the
proceedings is drawn to the affected but
also due consideration of the reply
submitted to the show cause notice and
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
evaluation of the same in correct
perspective. In other words there has to
be objective consideration of the reply in
so far as issues are concerned in order to
record the complete satisfaction not only
to make the order reasoned one but
legally enforceable on the norms of
principles of just and fair play. We find all
these aspects quite lacking in the order
impugned and again being confronted
with the said legal position, learned
counsel for the Pollution Control Board
says that the matter can be revisited by
the competent authority."

12. In view of the above exposition
of law and the attending facts and
circumstances of the case in hand, we are
of the opinion that unless the reply is duly
considered it cannot be said that there was
due application of mind by the authority
concerned
and
therefore,
in
our
considered opinion, the matter requires to
be revisited by the authority.

13. In view of the above, the orders
impugned dated 02.09.2019, 04.09.2019
and 06.09.2019 are hereby quashed.

14. The respondents are directed to
consider the explanation submitted by the
petitioner to the show cause notice and
pass order afresh within a period of four
weeks from the date of production of
certified copy of this order.

15. The writ petition is allowed.
----------
(2019)11ILR A1362

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 32145 of 2008

Sri Kant Chaubey & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Babu Nandan Singh

Counsel for the Respondents:
C.S.C., Dr. D.K. Tiwari

A. Constitution of India - Art. 14 -
Administrative action tested on the anvil
of Art. 14 - Exercising administrative
power calls for due application of mind.
(Para 14)

B. Finding of fact - Perversity - Complete
lack of material to demonstrate that the
work of installment of hand pump was
illegal. finding of facts is absolutely
perverse - Could not have reached
conclusion as to misappropriation of
funds. (Para 25)

C.
Principles
of
natural
justice
-
Consideration
of
objection
and
it's
evaluation
are
part
of
procedural
safeguards
even
in
matters
of
administrative inquiry -

Held:- Failing consideration, order can be
rendered to have been passed in violation of
natural justice. (Para 26)

Writ Petition allowed (E-1)

Case law relied: -

1. Vijay Shankar Pandey Vs Union of India &
anr. (Civil Appeal No. 9043 of 2014 decided by
Supreme Court on 22.09.2014)

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri Babu Nandan Singh,
learned counsel for the petitioners and