GANESH PRASAD SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner seeks issuance of a Writ in the nature of Mandamus commanding the respondents to rescind, cancel and quash the notice of termination issued on 12/4/2022.

(2.) It is contended on behalf of the petitioner that the petitioner is a partnership firm engaged in the business of executing interior cleaning, padlocking/unlocking and watering of platform return/stable/terminating trains and cleaning of depots and stabling lines, in the name and style of M/s. Ganesh Prasad Singh. A tender was issued in favour of the petitioner by the 6th respondent for the purpose of interior cleaning, padlocking/unlocking and watering of platform return/stable/terminating trains and cleaning depots and stable lines for the period of three years as a successful bidder and letter of acceptance was issued in his favour on 1/9/2021. However, no contract qua the said tender has been executed by and between the parties till date. The petitioner furnished Bank guarantee to the tune of Rs.89,500.00 in favour of FA/CAO, South Eastern Railway, Garden Reach, Kolkata ' 700043 in connection with the tender. The petitioner commenced work in terms of the tender notice upon issuance of letter of acceptance in his favour. On 25/3/2022 the respondent authorities issued a letter to the petitioner indicating that the performance of the petitioner in executing the work was below the desirable standards of services and the petitioner was requested to take necessary measures for addressing the issues pointed out in the letter. A seven days' notice was issued upon the petitioner by the 6th respondent on 1/4/2022 which stated that failure of the petitioner to improve performance within the time frame indicated in the notice would result in issuance of a notice of termination. The petitioner, vide letter dtd. 7/4/2022 refuted the allegations contained in the letter dtd. 25/3/2022 despite which a letter of termination was issued to him by the 6th respondent on 12/4/2022 imposing three-tier penalty upon him - the work order was terminated, penalty to the tune of Rs.1, 11, 56, 000.00 was slapped upon him and he was debarred from participating in tender floated by the South Eastern Railway, Chakradharpur Division for the period of two years from the date of issuance of the letter. The reply given by the petitioner was not taken into consideration by the authority in issuing the notice of termination and no opportunity of hearing was granted to the petitioner prior to issuance of the notice. The amount of penalty assessed by the authority also has no legal sanction. The letter of termination has been issued in terms of the General Conditions of Contract for Service (for short, the GCC for Service) of the railway authority. Since no formal contract was entered into by and between the parties, the GCC for Service is not applicable in the instance case. The punitive measures also can be made applicable upon execution of a contract and not at the pre-contractual stage.

(3.) Learned counsel has placed reliance in the authorities in M/s. Vedanta Ltd. (formerly known as Sesa Sterlite Ltd. and Successor in Interest of Erstwhile Sterlite Industries (India) Ltd.) v/s. M/s. Emirates Trading Agency LLC. reported in AIR 2017 Supreme Court 2035, Dresser Rand S.A. v/s. 1. Bindal Agro Chem Ltd., 2. K.G. Khosla Compressors Ltd. reported in (2006) 1 Supreme Court Cases 751 and judgments of coordinate Benches of this Court in W.P. No. 26079 (W) of 2017 and W.P.A. 10668 of 2021.