IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.880 of 2006 OM PRAKASH GUPTA Versus THE UNION OF INDIA & ORS ----------- 05 02.09.2008 The petitioner had tendered for supply of goods to the Bharat Sanchar Nigam Limited (B.S.N.L.) at Munger. A prerequisite for being eligible to do so was enlistment as a contractor with the Railways. Petitioner produced a certificate granted by the Railways in this regard. Later on, on enquiry B.S.N.L. found the said certificate to be allegedly not valid. They initiated a proceeding for black listing the petitioner on ground of using an invalid certificate for procuring orders. After petitioner showed cause the B.S.N.L. black listed the petitioner. Petitioner challenged the same before this Court without success. He met with no success before the Letter Patent Bench or the Apex Court. He now indirectly challenges the same when authority has refused to review their earlier stand. This is not permissible, as I am bound by the earlier order of this Court affirming or not interfering with the order. Thus, the issue is no more open. Petitioner makes a subsidiary prayer. He submits that he has executed several agreements for B.S.N.L., in which substantial security and earnest money has been deposited and his bills for supplies already made have also been withheld on ground of black listing. He submits that as the supply was always in accordance with the agreement and no defect therein was found, payment cannot be withheld nor earnest money be forfeited for, there was no breach of agreement. Black listing and forfeiting earnest money and stopping payment are two different aspects and are not interdependent. He submits that even now if B.S.N.L. directly corresponds with the Railways, it would - 2 - be found that petitioner is duly enlisted contractor there even today, but, B.S.N.L. is not doing so, which is causing immense loss to the petitioner. In my view, there is some substance in what petitioner submits, even today before refunds are withheld. B.S.N.L. being State instrumentality must fairly and impartially instead of asking petitioner to prove the bona fides of certificate produced by him, It (B.S.N.L.) showed directly correspond with the Railways and solicit reply. Petitioner produced certificate from the concerned Railway Department, the Railways could have been confronted with the said certificate to judge its authenticity but no such steps was taken. It is still open to B.S.N.L. to do the same. Notwithstanding the aforesaid, as supplies were duly made and goods accepted there is no justifiable reason why payments would be withheld. Black listing in this case is for a misdemeanor otherwise than in furtherance of contract would not give a right to B.S.N.L. to withhold payments in respect of goods supplied and accepted. So far as, forfeiture of earnest money and security is concerned the very concept of earnest money and security is for furtherance of the contract. If the contract has been duly performed and fulfilled, then, no amount of earnest money or security can be forfeited for any misdemeanor de hors the contract. These are matters, which required reconsideration at the level of the concerned Telecom Divisional Manager (TDM), where these aspects have to be kept in mind. There is no consideration on these lines, as such, I am constrained to remand this matter for fresh consideration by TDM (Respondent No. 5) in accordance with the observations and directions contained above. It is expected that the matter would be finally decided within a period of three - 3 - months from the date of filing of copy of this order along with detailed representation by the petitioner before the TDM concerned. The writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh,J.)