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Judgment
M.S. Sonak, J.—This petition is directed against the communication dated 13th September 2013 issued by and on behalf of the Respondents down grading the credentials of the Petitioner alongwith its Allied/Sister concerns/Partners for awarding work near running lines in Central Railway (except Stabling Siding work etc. where work near running line is not involved) for a period of six months. Mr. Singh, learned counsel for the Petitioner has impugned the aforesaid communication dated 13th September 2913 mainly on the following two grounds:
(a) That there has been no compliance with principles of natural justice and fair play prior to issuance of the impugned communication; and
(b) That on merits there was absolutely no justification for issuance of the impugned communication. Particularly, as the Petitioner was not at all involved with the work at Kurla site where the incident leading to the issuance of impugned communication is alleged to have been taken place.
There is no dispute that the Petitioner was awarded contract bearing Contract Agreement No. CR/BB/MTP/S & T/C/S/05/2007 dated 4th August 2008 for executing the works of indoor and outdoor signaling and telecommunication including supply of the material for the work of provision of panel interlocking (route setting type) at Thakurli with alterations at Kurla, Ambernath, Vangni and Karjat stations in connection with provisions of stabling siding in Mumbai Division of Central Railway.
On 18th April 2012 at 00.02 hours a sudden and severe surge of electricity resulted into extensive fire damage at both Kurla and Vidyavihar RRI, which resulted in disruption to Suburban and Mail Express Train between CSTM and Kalyan, apart from extensive damage to railway property.
By notice dated 28th June 2012, the Petitioner was appraised of the incident as also proposal to down grade credentials and offered an opportunity to make representation to the authorities within 10 days from the receipt of notice, failing which it was stated that ex-parte decision will be taken in the matter.
The Petitioner represented on 11th July 2012, pointing out that they were in no manner concerned with the incident at Kurla. The Petitioner invited attention to communication dated 6th May 2011, by which the Petitioner had recorded that the work in pursuance of contract agreement dated 4th August 2008 had been successfully completed and commissioned in so far as Thakurli, Vangni, Karjat and Ambernath sites are concerned. In so far as Kurla site is concerned, the same was neither ready, nor made available to the Petitioner within the validity of the contract period. Therefore, by the said communication dated 6th May 2011, the Petitioner had already expressed inability to continue with a contract and requested to short close the contract by making payments as per the final bill.
The Petitioner in the communication dated 6th May 2011 also made the following statement:
work of Kurla Stabling lines (2 Nos.) will be done free of costs as and when the site will be ready.
The record reveals that the Respondents obtained an inquiry report into the incident of 18th April 2012 from the CSO, CSE and CEDE, high ranking officials, which was the basis for issuance of notice dated 28th June 2012. Yet another show cause notice dated 16th July 2013 came to be issued to the Petitioner proposing ''banning of business'' or ''down grading of credentials'' so as to render the Petitioner unfit to work any where near the running lines.
The Petitioner submitted response dated 12th August 2012 reiterating that they were not concerned with the Kurla incident and the persons referred to in the inquiry report were not at all the employees of the Petitioner.
In the meanwhile as the tenders submitted by the Petitioner for fresh work were not being considered by the Respondents, the Petitioner preferred W.P. (L) No. 490 of 2013 before this Court. The said petition was disposed of by judgment and order dated 13th August 2013 with the following directions:
(i) The respondents will give the petitioner an opportunity of personal hearing and thereafter take a decision on the show cause notice.
(ii) Till final decision is taken by the Competent Authority on the show cause notice, the respondents will not prevent the petitioner from submitting any tender in response to the tender notice, which might have been issued or will be issued, and the concerned Authority will also consider the petitioner''s tender in response to such tender notice.
(iii) In case the decision of the respondent Authority on the show cause notice is adverse to the petitioner, the petitioner will be at liberty to challenge the same before the appropriate forum and the decision will not be implemented for a period of 2 weeks from the date of communication of the decision.
The material on record establishes that the representative of the Petitioner was afforded opportunity of personal hearing. The Petitioner also filed written submissions in response to the show cause notices. Only thereafter, the impugned communication dated 13th September 2013 came to be issued downgrading the credentials of the Petitioner for a period of six months.
In the light of the aforesaid, the contention that there was no compliance with principles of natural justice and fair play is clearly unfounded. The Petitioner was furnished show cause notice which made reference to the charge as also the material on basis of which the charge came to be levelled. The subsequent show cause notice also indicated the proposed punitive action. Out of the penalties proposed, the lighter of the two and that too restricted for a period of six months came to be ultimately imposed. The Petitioner was afforded opportunity of personal hearing, submitting replies as well as written submissions. The contention that there was no compliance with principles of natural justice and fair play therefore fails.
As regards the second contention based upon the merits, at the outset it needs to be stated that a Writ Court is basically concerned with the decision making process and not the merits of the decision, unless the same is established as being ex-facie, absurd or unreasonable. Any adjudication upon merits of the decision would involve seriously disputed questions of facts, which cannot be gone into in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India.
It is the case of the Respondents that the Petitioner consistent with his offer in the communication dated 6th May 2011 was indeed involved with the work at Kurla when the incident of 18th April 2012 took place. The Petitioner relying upon the very same communication dated 6th May 2011 states that their contract with the Respondents had been short closed and there is no material from which it could be established that the Petitioner had resumed work at the Kurla site. The Petitioner also contended that the persons referred to in the report and on account of whose negligence the incident of 18th April 2012 may have taken place were not at all the employees of the Petitioner. All these disputed questions of fact cannot be raised or adjudicated in proceedings under Article 226 of the Constitution of India.
In the contract agreement dated 4th August 2008 between the Petitioner and the Respondents, there is a clause which provides for settlement of disputes by resort to arbitration under the provisions of Arbitration and Conciliation Act, 1996. Learned counsel for the Petitioner relying upon the ruling of the Supreme Court in the case of Union of India (UOI) and Others Vs. Tantia Construction Pvt. Ltd., , however, contends that the existence of arbitration clause in the agreement between the parties does not bar entertaining of a writ petition under Article 226 of the Constitution of India. It is true that mere existence of arbitration clause does not fetter the jurisdiction of a writ Court under Article 226 of the Constitution of India. In that sense, the existence of an alternate and efficacious remedy is really not a bar to exercise jurisdiction under Article 226 of the Constitution of India, but the same is a self imposed restraint, particularly in a matter involving disputed questions of fact, which cannot be effectively adjudicated in summary proceedings under Article 226 of the Constitution of India. Any observation made by us on the merits of the decision is likely to prejudice the Petitioner, in case it chooses to invoke the arbitration clause or take up any other proceedings as against the impugned communication. Therefore, we refrain from making any observations in the matter.
Suffice to state that there is no serious infirmity in the decision making process. There has been adequate compliance with principles of natural justice and fair play. Ultimate penalty imposed does not appear to be shockingly disproportionate. In fact, penalty proposed was banning of business or debarring the Petitioner from working close to railway lines perhaps for all times to come. Instead the lighter of the two penalties and that too restricted for a period of six months came to be imposed upon the Petitioner.
In the circumstances, we deem it inappropriate to interfere with the impugned communication in exercise of writ jurisdiction. We make it clear that the observations made in this judgment shall not preclude the Petitioner from invoking remedies inter alia under the Arbitration and Conciliation Act, 1996 or any other remedies as may be available to the Petitioner. The petition is, accordingly, dismissed. However, there shall be no order as to costs.