M/s. Zeal India Chemicals vs The State of Jharkhand and Others

The appellant is aggrieved against the judgment dated 14.08.2012 by which the appellant''s writ petition being W.P.(C) No. 3838 of 2012 has been disposed of with liberty to the petitioner to approach the concerned authority and file representation raising such objection or take resort to any other appropriate forum for redressal of its grievances. The appellant''s contention is that in fact the Deputy Commissioner is the competent authority to take decision to some extent and it appears from the communication dated 20.06.2012 (Annexure-7) that one meeting was convened in the Chairmanship of the Deputy Commissioner wherein a decision was taken against the writ petitioner-appellant without affording any opportunity of hearing to the appellant and it has been held that the appellant is liable to repair the machine in question and in case he will not repair the machine within 15 days, then his case may be recommended for blacklisting for any other contract.

Learned counsel for the appellant submitted that as per the terms and conditions of the contract, the petitioner was to supply the machine in question, which is supplied on 04.03.2006 and payment has been made to the petitioner in the month of August, 2006 for the machine in question. The installation was also the responsibility of the writ petitioner/ appellant but it could have been installed only upon obtaining the requisite permission from the Bhabha Automatic Energy by the respondents. Such condition is mandatory condition and has been specifically known to the respondents themselves. It was the responsibility of the respondents to obtain the permission from the Bhabha Automatic Energy which is the Atomic Energy Regulatory Board and in fact the respondents applied for such permission but could get the permission on 03.01.2012 only i.e., after about six years from the supply of the machine. In that view of the fact, the appellant/ writ petitioner was not responsible for the delay in installation of the machine or any fault in the machine which may have occurred due to the delay in installation of the machine.

Learned counsel for the appellant submitted that in fact the communication dated 20.06.2012 (Annexure-7) is nothing but a decision of the Committee holding the petitioner/appellant responsible for removal of the defect in the machine. However, consequential order can be passed by the Secretary of the Department.

After hearing learned counsel for the parties and after perusing the relevant documents, we are of the considered opinion that learned Single Judge was right in observing that the matter is required to be examined by the concerned authority and, therefore, the petitioner may be given liberty to file representation raising all such objections which the petitioner wants to raise before the High Court straightway.

We are of the considered opinion that such factual aspect can be examined by a competent officer like Principal Secretary, Department of Health and Family Welfare, Government of Jharkhand who may consider the representation of the writ petitioner/appellant uninfluenced by the report of the Committee as well as the communication dated 20.06.2012 and thereafter take a decision. The representation may be submitted by the petitioner/appellant within a period of 15 days from today along with a copy of the order to the said authority who may decide the representation of the petitioner/appellant within a period of one month after giving opportunity of hearing to the writ petitioner/appellant. L.P.A. is disposed of accordingly.