# ERUSIAN EQUIPMENT & CHEMICALS LTD v. STATE OF WEST BENGAL & ANR

- **Citation:** [1975] 2 S.C.R. 674
- **Court:** Supreme Court of India
- **Decided:** 1974-11-11
- **Case number:** Writ Petitions Nos. 34 of 1974
- **Bench:** 678PrF; 679B·
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/erusian-equipment-chemicals-ltd-v-state-of-west-bengal-anr-6210
- **Pages:** 6

## Headnote

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ERUSIAN EQUIPMENT V. WEST BENGAL (Ray, Cf)
675
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ORIGINAL JURISDICTION : Writ Petitions Nos. 34 of 1974 and 959
of 1973.
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Petition under Art. 32 of the Constitution of India and
Civil Appeal No. 318 of 1974.
From the judgment and order dated the 15th September 1973 of
the Bombay. High Court in Appeal No. 38 of 1973.
.
D. C. Singhania, C. N. Murthy, (In W.P. No. 34/74), Madan
Bhatia and Shiv Khorana, (In W.P. No. 959/73) and M. K. Garg,
for the petitioners (In W.P. No._34/74 & 959/7~).
B .. s_en, D. N. Mukherjee, Sukumar Basu and G. S. Chatterjee, for
the respondents (In W.P. No. 34/74 and 959/73).
L N .. Sinha, Solicitor General ·of India, P. P. Rao . and M. N.
Shroff, for the appellant (In C.A. No. 318/74).
Hal'oon s .. Kably and S. Markandeya, for the respondents
(In
C.A. No. 318/74).

## Text

ERUSIAN EQUIPMENT & CHEMICALS LTD.
v.
STATE OF WEST BENGAL & ANR.
November 11, 1974
[A. N. RAY, C.J., K. K. MATHEW AND N. L. UNTWALIA, JJ.]"
Constitutio11 of brdia, 1950, Art. 14-.Black listing of contractors .without
opportunity to shdw cause-Validity.
1 Certain persons engaged in the business of purchase export of Cinchona pro·
ducts, and others who were on the approved list of the Director General, Supplies
and Disposals, were put on· the black list by the Government, because, Govern·
men! had information that they were indulging in some malpractices.
On the question whether they were entitled to a notice to be heard, before
they were put on the black list,
HELD : (I) Under Art. 298 of the Constitution the executive power of the
Union and the State shall extend to the carrying on of any trade and to the
acquisition, holding and disposal of property and the making of contracts for
JUlY purpose. The State can carry on· executive function by making a law or
without malting a law. The exercise of such powers and functions in trade by
the State is subject to Part Ill of the Constitution. Article 14 speaks of equality
before the law and equal protection of the laws. Equality of opportunity applies
to matters of public contracts, The State need not enter into any contract with
anyone but if it does, it must do so fairly. without dicrimination and without
unfair procedure. No one has any right to .enter into a contract with the Govern·
men! bμt everyone is entitled to equal treatment with others who offer tenders
or quotations for the purchase of goods. This privilege arises because it is the
Government which is trading wilh the public, and the democratic
form
of
Government demands equality and absence of arbitrariness and discrimination
in such transactions. The activities of the Government have a public element
and, therefore, there should be fairness and equality. [677C-E, G; 6780-E}
(2) A body may be under a duty to give fair consideration to the facts aM
to consider the representation but not to 4isclose details of information in its pos·
session. So'lltetlmes the duty to act fairly can also be sustained without providing
opportunity for an oral bearing. It _will depend upon the nature of the interest
affected, and the circumstances in which the power is exercised ·and the nature of
sanctions involved therein. [678H-679B]
(3) Exclusion of a member of the pul)lic from dealing With a State in sales
transactions has the effect of preventing him from purchasing and doing a laWful
trade in gOQds by discriminating against him in favour of other people.
The
State·can impose reasonable conditions regarding rejection and acceptance of bids
or qualificlltft:>ns of bidders. Just as an exclusion of the lowest tender will be
arbitrary; similarly exclusion of a person. who offers the highest price from participating in a public auction would also have the same aspect of arbitrariness.
[678F·Gl
( 4) Biack listing has the effect of preventing a person from the privilege and
advantage of entering into lawful relationship with the Government for purposes
of gain. A person who is on the approved list is unable to enter into advantage•
ous 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 pUr·
chase of materials baa a legitimate interest or expectation. Black listing tami•hes
one's reputation and reputation is a part of person's -character and personality.
The fact that a disabill11y i~ created by the order of black listing indicates that the
relevant autl1orlty is to have an objective satisfaction. Fundamentals of fair play
require that the person concemed should be given an opoortunity to represi:nt his
case before he is put on tho black list.
[678PrF; 679B·CJ
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ERUSIAN EQUIPMENT V. WEST BENGAL (Ray, Cf)
675
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ORIGINAL JURISDICTION : Writ Petitions Nos. 34 of 1974 and 959
of 1973.
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Petition under Art. 32 of the Constitution of India and
Civil Appeal No. 318 of 1974.
From the judgment and order dated the 15th September 1973 of
the Bombay. High Court in Appeal No. 38 of 1973.
.
D. C. Singhania, C. N. Murthy, (In W.P. No. 34/74), Madan
Bhatia and Shiv Khorana, (In W.P. No. 959/73) and M. K. Garg,
for the petitioners (In W.P. No._34/74 & 959/7~).
B .. s_en, D. N. Mukherjee, Sukumar Basu and G. S. Chatterjee, for
the respondents (In W.P. No. 34/74 and 959/73).
L N .. Sinha, Solicitor General ·of India, P. P. Rao . and M. N.
Shroff, for the appellant (In C.A. No. 318/74).
Hal'oon s .. Kably and S. Markandeya, for the respondents
(In
C.A. No. 318/74).
The Judgment of the Court was delivered by
RAv, C.J.-The two Writ Petitions and the Civil Appeal raise the
question as to whether a person who is put on the black list by the
State Governriient is entitled to a notice to be heard before the name
is put on the black list.
Sale of Cinchona is held by the State Government at meetings of
the Sales Committee. Sealed quotations are invited for intending
buyers. The State maintains a list of buyers or bidders. The State has
the right to reject a bid at an auction.
The petitioners in the Writ Petitions were engaged in the busines.s
of purchase and export of Cinchona products between the years 1966
and 19'11. They submitted tender for purchas(} of Cinchona. Their
tender was accepted. They entered into contracts with the State Government during those years for purchase of Cinchona for large sums
of money.
The petitioners submitted tender once on 15th Februa,ry, 1973
and again on 4 December, 1973. The petitioners allege that sine~ the
month of December, 1970 all offers of the petitioners were rejected
though in most cas.es their offer was the highest. The petitioners contend that there is discrimination and lack of fair play at the sale. The
petitioners submit that they are entitled to receive the same treatment
and to be given the same chance as anybody else for the purchase
of Cinchona. The petitioners are interested iri the purchase of Cinchona in course of their trade and busines5.
The respondent State alleges that the petitioners were guilty of
misdeclaration of goods in their export transactions. The Sales Committee of the State learnt from a secret letter from the Coilectc>r of
Customs, Calcutta that the firm of the petitioners was involved in
676
SUPREME COURT REPORTS
[1975] 2 s.c.R.
malpra~tices, and tqeir case was under investigation. The Sales. Cc1m·
mittee at a meeting on 21 January, 1971 resolved not to deal with the
firm of the petitioners till the firm was cleared of charges of malpractices. It is because of this resolution that the tender of the petition.ers
was not accepted. The petitioners according to the respondent came
to know this resolution at the meeting of the Sales Commit~ Oil 4
December, 1973. The State could not howeve1:· produce the original
resolution in this Court.
It may be mentioned here that the petitioners have challenged the
charges and cases under the Foreign Exchange Regulations Act in
the High Court at Calcutta in Writ Petition No. 959 of 1973 which is
pending.
The respondent in Civil Appeal No. 318 of 1974 was on the
approved list of the Director General, Supplies and Disposals since
the year 1942. The last renewal of registration of the respondent was
on 5 June, 1963 for three years. Certain reports were received against
the respondent regarding shortage of timber.
The Special
Police
Establishment took charge of account books of the . respondent in 1he
month of August, 1964. A Departmental enquiry was made against
the store-keeper and the StoI'!",,-holder in the Bombay Telephone Work~
shop. Those two employees were suspended in the monlh of December, 1964. 011 4 December, 1965. the department put the name of the
respondent on the black list. The employees of the Government who
had been suspended in tlte year 1964 were dismissed on 1 June, 1967.
In the month of January, 1968 the respondent applied to the Court
for return of the account books which had been taken by the Special
Police Establishment. In the month of March, 1968 the account books
were ordered to be returned.
The respondent filed Writ Petition in the Hiizh C-Ourt at Bombay
on 20 January, 1969. On 12 January, 1973 the High C-Ourt a!lowr.d
the writ petition of the respondent setting aside the order whereby the
respondent was blacklisted. The State fi!ed an appeal. The High Court
of Bombay dismissed fhe appeal. The present appeal is against that
judgment.
The employees who had been dismissed by the State also applied
to the High Court for setting aside their dismissal. The High Court
accepted the prayer of the employees by an order dated 3 August,
1972.
In Writ Petitions counsel fpr the State submitted that the petitio111!r
was not entitled to any orcfor of mandamus inasmuch as the sales were
contractual. It was said that the. petitioner was not entitled as of right
to acceptance of tender. It was also said that the attitude of the State
· was not discriminatory against the petitioner but that the State wanted
that the pending proceedings against the petitioner for alleged violation of Foreign Exchange Regulation Act should be adjudicated first
;ind thereafter the State would deal with the petitioner.
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ERUSIAN· EQUIPMENT v. WEST BENGAL (Ray, C.J.)
677
The Solicitor General on behalf of the appellant in Civil Appeal
No. 318 of 1974 made these submissions. The Government could
"hoose any person for entering into a contract. Further, the State
could insist on dealing with persons in w horn the State had trust for
integrity. The sales were not under a s.tatute. Black-listing is an internal and confidential step. Rights under Articles 14, 19 and 21 do not
extend to the compelling of any third party including the Government to negotiate or enter into a contract. The duty to .act fairly may
include in many cases duty to act judicially and those would be cases
where there is existing vested rights. The duty to act fairly would not
always mean a duty to hear the party affected. Whereas public blacklisting is not confidential, departmental black-listing will be a confidential matter. If natural justice does not come into play in rejecting
a bid, natural justice does not operate at the time of entering into contract.
Under Article 298 of the Constitution the Executive power of the
Union and the State shall extend to the carrying on of any trade and
to the acquisitiOll, holding and disp<>Sal of property and the making
of contracts for any purpose. The State can carry on executive function by making a law or without making a law. The exercise of such
powers and functions in trade by the State is subject to Part III of
the Constitution. Article 14 speaks of equality before the law and
equal protection of the laws. Equality of opportunity should apply to
matters of public contracts. The State has the right to trade.
The
State bas there the duty to observe equality. An ordinary indi,idual
can choose not to deal with any person. The Government cannot
choose to exclude persons by discrimination. The order of black-listing
has the effect of depriving a person of 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 interest or expectation. When the State actS to the
prejudice of .a person it bas to be supported by legality.
But for the order of blacklisting.' the petitioner would have been
entitled to participate iii the purchase of cinchona. Similarly the
respondent in the appeal would also have been entitled but for the
order of blacklisting to tender competitive rates.
The State can enter into contract with any person it chooses. No
person has a fundamental right to insist that the Goverrunent must
enter into a contract with him. A citizen has a right to earn livelihood
and to pursue any trade. A citizen bas a right to claim equal treatment to enter into a contract which may be proper, necessary and
esseutial to his lawful calling.
The blacklisting order does not pertain to any particular contract.
The blacklisting order involves civil consequences. It casts a slur. It
create• a barrier between the persons 1Jlacklisted and the Government
ir. the matter of transactions. The blacklists are "instruments of
coercion".
678
Sl'I'REME COURT REPORTS
[1975] 2 S.C.R.
In passing an order o.f blacklisting the Government department
acts under what is described as a standardisekl Code.
This is
a
Code for internal instruction. The Government pepartments make
regular purchases. They maintain list of approved suppliers after
taking into account the financial standard of the firm, their capacity
and their past performance. The removal from the list is made for
various reasons. The grounds on which blacklisting may be ordered are if the proprietor of the firm is convicted by court af law or
securitv considerations so warrant or if there is strong justification
for believing that the proprietor or employee of the firm, has been
guilty of malpractices such as bribery, corruption, fraud. or if the
firm continuouslv refuses to return Government dues or if the firm
employs a Government servant, dismissed or removed on account of
corruption in a position where he could corrupt Government servant.
The petitioner was blacklistek:I on the wound of justification for believing that the firm has been guilty of malpractices such as bribery,
corruption, fraud.
The petitioners were blacklisted on the ground
that there were proceedings pending against the petitioners for alleged violation of provisions under tbe Foreign Exchange Regulations
Act.
The Government is a l(overnment of laws and not of men. It is
true th at neither the petitioner nor the respondent has any right to
enter into a contrac• but t'1ey 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
cqualitv 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 hav~ a public
element and, therefore, there should be fairness and equality. Tt,c
State need not enter into anv contract with anv one but if it does so,
it must do as fairly without discrimination and without unfair proc,edure. Reputation is a part of person's character and personality.
Blacklisting tarnishes one's reputation..
·
Exclusion of a member of the public from dealing with a State
in sales transactions has the effect of preventing him from purchasi~g ~nd doing a lawful trade in the goods· by discriminating against
him m favour of other people. The State can impose reasonable
c?nditions regarding rejection a~d acceptance of bids or
qualifica.-
t1ons of bi'dders. Just as exclusion of the lowest tender will be arbitrarv. similarlv exclusion of a person who offers the highest price
from participating at a public auction would also have the. same
aspect of arbitrariness.
Where the State is dealing with individuals in transactions
of
sales anrt ourchase of goods. the two imnortant factors are that an
individual is entitled to trade· with the Government and an individual is ~ntitletl to a. fair and equal treatment with others.
A duty
to act fairly can be mterpreted as meaning a duty to observe certain
aspects of rules of natural justice. A bodv may be under a duty to
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ERUSIAN EQUIPMENT v. WEST BENGAL (Ray, C.J.)
679
A · 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 oower is exercised and the nature of sanctions • involved
Btherein ..
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Blacklistin~ has the effect of preventing a person from the privileite and advantaite of entering into lawful relationship with the
· Government foi; purpbses of itains. The fact that a disability is
created bv the order of blacklistin~ indicates that the relevant authoritv 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.
With reitatd to the case of the petitioners, it is made clear that
the authori,tles will give .an opportunity to the petitioners to represent their case i\lld the a-qthorities 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 Regulatio~ Act. Any decision of the authorities
on the blacklisting will h!lve oo effect on the correctness of any of
the facts involyed fu those proceedings.
For these reasons, ·the petitioners succeed.
The appeal is dismissed, The parties will pay and bear their
own costs.
·
V.P.S.
Appeal dismissed.