Calcutta High Court (Appellete Side)
Debashis Mitra vs Union Of India And Others on 14 July, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 14148 of 2022
Debashis Mitra
Vs.
Union of India and others
For the petitioner : Mr. Ranjan Kali
Hearing concluded on : 11.07.2022
Judgment on : 14.07.2022
Sabyasachi Bhattacharyya, J:-
1. Upon succeeding in a tender floated by the Bharat Sanchar Nigam
Limited (BSNL) for the purpose of outsourcing maintenance and
provisioning of landline and broadband for external plant of copper
network in CTD under Business Area-West, the petitioner was
awarded a contract.
2. Sub-clause 3.6(b) of the said contract provides that the contract will
be terminated and PBG forfeited upon non-performance and failure to
meet all the SLAs, that is, MTTR, Provisioning, fault clearance and
repeat fault parameters for consecutive three months. It was further
stipulated in the said clause that notice shall be served for non-
performance in the first month, second month and third month before
final termination.
2
3. It is contended that although the petitioner gave written replies to
each of the three notices issued by the respondent-Authorities, none
of those was considered by the respondents.
4. It is submitted that the respondent-Authorities asked the petitioner to
continue the work, while in the same breath issuing show-cause
notices on allegations of faults on the part of the petitioner.
5. Learned counsel for the petitioner places reliance on the several
replies sent by the petitioner, which have been annexed to the writ
petition.
6. It is contended that the purpose of issuing a show-cause notice is to
give an opportunity to the concerned bidder to present his version on
the allegations levelled in the show-cause notices. However, the said
purpose was defeated by the respondents not giving any opportunity
of hearing to the petitioner and/or not considering such replies.
7. Learned counsel submits that even prior to the termination the
petitioner had sent several communications to the respondent-
Authorities explaining the delay of the petitioner on grounds like the
Amphan Cyclone, 'Bandh'/strike, etc. The said communications were
entirely overlooked by the respondents in terminating the contract
with the petitioner.
8. Learned counsel submits further that while undertaking the job as
per the contract, the BSNL, through the petitioner, had been
discharging public functions. Hence, the contract or the impugned
action could not be said to be a private contract between the parties
simpliciter.
9. Prior to imposing the major penalty of termination, learned counsel
submits, the respondents-Authorities ought to have given an
opportunity to the petitioner to explain the delay, if occasioned, in
executing the work.
10. In an order dated June 29, 2022 passed in a previous writ petition
between the same parties, bearing WPA No.19654 of 2021, the
petitioner specifically contended that no show-cause notice was
issued to the petitioner, as such, there arose no question of the
petitioner giving any reply. Although the said order went against the
petitioner in respect of another contract, it is argued that the facts of
the said case are distinct from the present since in the instant case,
the petitioner gave replies to each and every show-cause notice issued
by the respondents but those were never considered by the
respondents at all.
11. Learned counsel for the petitioner places reliance on another order of
a different co-ordinate Bench dated September 2, 2021 passed in
WPA No.12367 of 2021, wherein a similar clause of a contract was
under consideration, in support of his propositions.
12. Since none appears for the respondents when the matter is called on
for hearing, although the respondents were represented through
counsel previously, the matter is heard ex parte.
13. Upon a perusal of the relevant clauses of the contract between the
parties, it is seen that Clause 3.6 (b) of the contract was satisfied in
the present case inasmuch as the respondents served three notices in
three consecutive months for alleged non-performance of the contract
by the petitioner.
14. In the present case, three separate notices were given respectively in
March, April and May, 2022, in consonance with Clause 3.6 (b).
15. Although Clause 3.6 (c) of the contract provides that the EOI/tender
accepting authority may grant any relief in an action for termination
considering the circumstances/nature of the appeal made by the
bidder if one or more parameters are met, the said sub-clause
categorically reserves such right to grant relief with the authority. We
cannot read into the said clause an additional right of hearing to the
bidder, which would tantamount to changing the terms of the
contract itself.
16. Although the petitioner had given replies to the notice, nothing
prevented the respondent-Authorities from terminating the notice,
even in the teeth of those replies, without giving any opportunity of
hearing to the petitioner. Clause 3.6 (b) does not contemplate a
further opportunity of hearing to the petitioner. In fact, the language
of the said sub-clause does not permit of an interpretation that the
three notices envisaged therein would be "show cause" notices. The
notices, with a month's interval between each other, were clearly
meant to be mere precursors of the termination after three months
and not intended to provide a detailed hearing to the noticee.
17. A plausible ground for termination has been made out from the
communications of the petitioner himself, which have been annexed
to the writ petition. From the communications of the petitioner, both
before and after service of the three notices under Clause 3.6(b), it is
seen that delay in commission of the allotted work was committed by
the petitioner on repeated occasions, on one pretext or the other.
18. It was entirely the discretion of the respondent-Authorities, keeping in
view the exigencies of the public work involved, to terminate or not to
terminate the contract.
19. However, the petitioner has failed to make out any case of mala fides¸
arbitrariness and/or exercise beyond jurisdiction on the part of the
respondent-authorities sufficient to prompt the writ court to set aside
the termination of the contract between the parties.
20. In such view of the matter, WPA No.14148 of 2022 fails and is
dismissed on contest.
21. There will be no order as to costs.
22. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
