IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C No.4088 of 2011 M/s ABSD Electricals, Upper Bazar, Mahabir Chowk, Ranchi, through its partner Ajay Singh, son of Sri Ram Janam Singh, resident of Mohalla Upper Bazar, Mahabir Chowk, P.S. Upper Bazar, Ranchi, District- Ranchi (Jharkhand). ….. Petitioner. Versus 1. The Union of India through the General Manager, E.C. Railway, Hajipur, District- Vaishali. 2. The Divisional Railway Manager, E.C. Railway, Danapur, Khagaul, District-Patna. 3. The Senior Divisional Electrical Engineer (TRD), E.C. Railway, Danapur at Khagaul, District-Patna. 4. The Divisional Electrical Engineer (TRD), E.C. Railway, Danapur, District-Patna. ..… Respondents. ----------- For the petitioner : Mr. Gautam Bose, Senior Advocate with M/s. Ratna Das & Ajay Kumar, Advocates. For the railways : Mr. A.K.Keshri, Advocate. ---------- P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN ------ O R D E R 06/ 07.07.2011 This writ petition has been filed by the petitioner challenging order dated 01.02.2011 (Annexure-1) by which the Senior Divisional Electrical Engineer (TRD), E.C. Railways, Danapur (respondent no.3) rejected the explanation of the petitioner as devoid of merit. 2. The claim of the petitioner is that it is a Government registered firm having its office at Ranchi and it entered into agreement with the respondent Railways through respondent no.3 on 12.05.2010 (Annexure-3) vide Tender No.TRD/DNR/OT/24/09-10 for the work of extension of PF to - 2 - accommodate 24 coaches at five stations ( MKA, FUT, PWS, BEA & DLN), the contract amount being Rs.71,03,930.00, out of which the petitioner paid Rs.1,08,000.00 as earnest money vide TDR No.000640 dated 13.03.2010, which was converted into security money. Petitioner also deposited Rs.3,55,200.00 as performance guarantee in the form of Bank Guarantee No.35/03 dated 10.05.2010, which was 5% of the contract value. 3. Learned counsel for the petitioner stated that his contract work was continuing smoothly without any grievance from any quarter relating to its performance and quality of work, but all of a sudden two show cause notices were issued to him on 11.10.2010 (Annexure-5) and 20.10.2010 (Annexure-6) with respect to derailment of 3241 UP train after hitting the steel structure which was being carried across the railway track for erection of Mast, but the workers seeing the train coming fled away leaving the structure on the railway track, causing disruption of the railway traffic at Fatuha and huge loss to the Railways. It is also stated that the petitioner immediately replied on 22.10.2010 (Annexure-7) and 25.10.2010 (Annexure-8) giving detailed explanation of the circumstances under which the accident had taken place, denying any wrong doing on the part of the petitioner and its employees as the steel structure was being shifted across the railway track with the help of local labourers of the Railways under the supervision of the Junior Engineer and Technician Grade-I of the Railways. 4. Learned counsel for the petitioner submitted that without considering the explanation of the petitioner and without - 3 - appreciating the facts and circumstances of the matter, respondent no.3 passed order dated 10.11.2010 (Annexure-9) terminating the petitioner’s contract with immediate effect and reserving the right of the Railways to claim damages under Clause-2 of the General Conditions of Contract in addition to any other right available to the Railways under the law. Against the said order of termination of contract, the petitioner filed C.W.J.C No.19160 of 2010, which after hearing the parties was allowed by a bench of this Court vide order dated 24.11.2010 (Annexure-2) after arriving at the following findings:- “This court does not find force in the submission of learned counsel for the railways. Once an order having civil consequences against a person is passed by an authority which is state under Article 12 of the Constitution, even in a contractual matter it is required to comply with the principles of natural justice. In fact show cause notices were issued to the petitioner, which had been duly answered by the petitioner. It was thus obligatory upon the respondent Senior Divisional Electrical Engineer, East Central Railway to consider the reply of the petitioner before passing his order, but it does not appear from the impugned order that he has applied his mind to the explanation submitted by the petitioner. In the said circumstances, the impugned order dated 10.11.2010 cannot stand and it is, accordingly quashed. The writ petition is thus allowed. However, it shall be open to Respondent no.3 to pass a fresh speaking order in accordance with law after considering the explanation submitted by the petitioner.” 5. It is claimed by learned counsel for the petitioner that after the said order passed by a bench of this court, no notice was sent to the petitioner by the respondents, specially respondent no.3, who without appreciating the spirit and tenor of the abovementioned order of the High court and without fully considering the explanations of the petitioner in his replies as well - 4 - as the materials available on record, passed the impugned order dated 01.02.2011 (Annexure-1) rejecting the explanation of the petitioner in the following manner:- (i) M/s ABSD Electricals entered into the contract of Indian Railway on 12.05.2010 for the work- extension of PF to accommodate 24 coaches at five stations, i.e. MKA, FUT, PWS, BEA & DLN. B-150 masts were issued to M/s ABSD Electricals vide Challan dated 28.09.2010 (copy attached). After taking possession of these masts, it had to be kept under custody of M/s. ABSD Electricals round the clock. It was very well known to him that these masts are kept at Fatuha also alongside of track. His plea that his persons did not work on 04.10.2010 at Fatuha is not acceptable as masts under his custody could be erected only by his consent by his men. (ii). Due to negligence in the work at FUT, the derailment of 3241 UP on 04.10.2010 took place. (iii). Vide Agreement clause 2.2.6 & 2.2.24 the petitioner failed to ensure safety at site of work at FUT on 04.10.2010 resulting into accident (i.e. derailment of train no.3241 UP) due to hitting of a B-150 mast being pulled on railway track. (iv). As GCC clause 34(4)- “ The contractor shall be responsible to take all precautions to ensure the safety of the public whether on public or railways property and shall post such look out man as may in the opinion of the Engineer be required to comply with regulations as pertaining to the work.” (v). Vide agreement clause 2.2.6 ( c) the work be carried out most carefully without any infringement of the Indian Railway Act or the - 5 - general and subsidiary rules in force on the Railway, in such a way that they do not hinder railway operation or effect the proper functioning or damage any railway equipment, structure of rolling stocks. (vi). After the occurrence of the accident, high level enquiry committee constituted by the Railway to analyse the cause of the accident and to fix the responsibility. (vii). The said committee in its finds, recorded that ABSD Electricals has shown gross negligence in observing safety rules in execution of the contractual work near the running railway track at FUT. He was not present at the site himself. He left the work of the shifting the traction mast across the running track on some unskilled labours without any competent supervisors. Only one Munshi named as Sri Naresh was there who seems to have no experience and expertise of working near the railway track. No traffic block was arranged and no measures such putting banner flags, detonators etc. for protecting the running track was adopted. The way of doing shifting of mast work was also not found to be proper. Hence ABSD Electricals is found to be the prime accused in the case. (vii). Despite repeated request on several times over phones, Sri Ajay Singh, Proprietor of M/s ABSD Electricals failed to present himself before the enquiry committee for cross examination. (ix). The Railway is committed to maintain the norms of safety of its passengers and on this point there is no compromise at all. (x). By negligence of the safety rules and violation of the terms of agreement, show cause notice to the petitioner was duly served. - 6 - (xi). Representation by the contractor M/S ABSD Electricals, Upper Bazar, Mabahir Chowk, Ranchi in response to the show cause notice dated 11.10.2010 & 20.10.2010 has been examined and all aspects have been taken into account. The undersigned has come to the conclusion that the contractor has violated GCC Clause-62. Accordingly his contract with the railways Agreement No.TRD/DNR/OT/24/09-10 dated 12.05.2010 was terminated, which is in conformity of the rules. In view of the above mentioned acts and circumstances, the explanations submitted by the petitioner are devoid of any merit. Accordingly the order of the Hon’ble High Court, Patna stands disposed of.” 6. Learned counsel for the petitioner averred that from the impugned order of respondent no.3 it is quite apparent that he neither complied the directions of the High Court nor appreciated the points raised by the petitioner in his replies. He further averred that an FIR was lodged on 04.10.2010 (Annexure-4) by one Laliteshwar Kumar, Senior Section Engineer in the Railways, with respect to the accident in question against seven persons, namely K.C.P.Sinha, Technician Grade-1, Ajay Singh partner of petitioner firm, Naresh Munshi and seven unnamed labourers for offences punishable under Sections 307, 337, 338, 353, 427/34 of the Indian Penal Code and Sections 150, 151, 152, 153 of the Railway Act and in the said FIR it was specifically mentioned that Anil Kumar, the Junior Engineer II of the Railways was also present at the place and time of accident. On the basis of the said fardbeyan - 7 - Bakhtiyarpur Rail P.S.Case No.067/10 was initiated, but according to learned counsel for the petitioner it is only in its initial stages. 7. Learned counsel for the petitioner further averred that the accused Naresh is not Munshi of the petitioner firm, rather he is a gas cutting Mistri, having never worked at Fatuha and had got his leg fractured while crossing the track. Similarly no labourer could be identified who could be said to belong to the petitioner firm. It is also argued that above facts were corroborated by the investigation in which it also came to light that Ajay Singh, the partner of the petitioner firm was not even present at the site when accident took place and hence only the authorities of the Railways were present at the site, due to whose negligence the accident occurred as they were getting the work done through the local people, but the petitioner and its partner are being falsely implicated merely to shield the Railway Officers and to terminate its contract and black list the firm without any justifiable reason. 8. On the other hand learned counsel for the respondents-Railways and its authorities stated that there was no question of violation of High Court’s order dated 24.11.2010 (Annexure-2) as no direction was given therein to issue notice to the petitioner, rather the only direction given was to consider the explanation already filed by the petitioner, which has been complied by respondent no.3 in its impugned order dated 01.02.2011 (Annexure-1). He also stated that the said authority considered the claim of the petitioner and the materials on record in accordance with law after following all the procedures prescribed before passing the impugned order and hence there is - 8 - no illegality therein. 9. Learned counsel for the respondents averred that this writ petition is not maintainable as it is with respect to a contractual matter for which Arbitration Clause is present in the agreement between the parties and the said course is always available to the petitioner as an adequate alternative remedy. He also averred that disputed question of fact is involved in the instant case which cannot be validly decided by a writ court under Article 226 of the Constitution of India. 10. It was argued by learned counsel for the respondents that in this matter, no departmental enquiry can be initiated as it concerns merely violation of the terms of the contract for which step has to be taken as per the specific clauses of the agreement. He further argued that the instant matter cannot be allowed to wait for the result of the criminal case referred to by learned counsel for the petitioner, nor the result of the said case can legally affect the instant matter. 11. Considering the arguments of learned counsel for the parties and the materials on record produced by them including the earlier order of a bench of this court dated 24.11.2010 (Annexure-2) passed in CWJC No.19160 of 2010, it is quite apparent that the said writ petition under Article 226 of the Constitution of India was entertained holding that once an order having civil consequences against a person is passed by an authority which is state under Article 12 of the Constitution, even in a contractual matter it is required to comply with the principles of natural justice, which the respondents have failed to comply in - 9 - the instant case. The instant writ petition has been filed by the same petitioner for the same relief and the subject matter is also the same. Furthermore the pleadings on affidavits have also changed hands to which evidences are annexed and the mater is at its fag end hence this court does not find any reason to throw out this case merely on the ground that an alternative remedy has been provided in the agreement where questions of fact can be decided. 12. So far the question of non-compliance of the directions given by a bench of this court in order dated 24.11.2010 (Annexure-2) passed in CWJC No.19160 of 2010 is concerned, same points were decided by it on the basis of which the earlier order of respondent no.3 dated 10.11.2010 was quashed and he was directed to pass a fresh speaking order in accordance with law after considering the explanations submitted by the petitioner. The said order clearly meant that not only the explanations submitted earlier by the petitioner were to be considered, but respondent no.3 was also bound to follow the procedure prescribed in law, including issuance of notice to the petitioner, specially when new circumstances had arisen after passing of order dated 24.11.2010 (Annexure-2) by a bench of this court in CWJC No.19160 of 2010. This was admittedly not done as no notice was issued to the petitioner by the respondents-authorities and hence it amounted not only to non-compliance of the said order of this court, but also to violation of the principles of natural justice. 13. A bare perusal of the replies of the petitioner dated 22.10.2010 (Annexure-7) and 25.10.2010 (Annexure-8) as well as of the impugned order dated 01.02.2011 (Annexure-1) passed by - 10 - respondent no.3, it transpires that although it was mentioned in the said order that representations of the petitioner had been examined and all aspects had been taken into account, but the specific points raised by the petitioner in its representations/ replies as detailed above had not been considered nor the relevant materials necessary for deciding the issues involved had been taken into account by respondent no.3 in his impugned order. 14. Learned counsel for the respondents had based the entire reliance of their case upon Annexure-D to their counter affidavit which is a photo copy of Requisition & Issue note dated 28.09.2010 for Galvanised Steel Structure Masts, said to have been issued by Laliteshwar Kumar, the Senior Section Engineer of Railways and received by Ajay Singh, the partner of the petitioner firm. This was specifically denied by learned counsel for the petitioner. Hence when the said disputed signature of Ajay Singh over Requisition dated 28.09.2010 (Annexure-D) was compared with his admitted signature over the Agreement dated 12.05.2010 (Annexure-3) by this court it was apparent even from the naked eye that the two signatures were different and hence the alleged disputed signature of Ajay Singh over the Requisition dated 28.09.2010 (Annexure-D) is obviously forged and cannot be relied upon. In these circumstances the claim of the respondents that the material in question was handed over to the petitioner vide Requisition dated 28.09.2010 (Annexure-D) fails as there is no reliable material to prove the same. Thus when the material in question was not handed over to the petitioner firm, there can be no occasion for it to take it to the site in question, where the - 11 - accident had taken place. 15. From the consideration of the entire facts as mentioned in above paragraphs it is clearly found that the Galvanised Steel Structure Mast was not being carried by the petitioner firm or its workers on the date and site of accident and merely to save the skin of the employees of Railways, including its Engineers and Technicians, the partner of the petitioner has been implicated by the Respondents and for that purpose they have not hesitated in using even a forged document i.e. Requisition dated 28.09.2010, before this court by annexing it as Annexure-D to their counter affidavit. This also amounted to fraud not only upon the petitioner but also upon the court by the authorities of the Railways. 16. In these circumstances it is the duty of the Railways to take strict action against its employees for their aforesaid illegalities in accordance with law, but on the earlier occasion the Railways had failed to do so. In paragraph 12 of their counter affidavit, the respondents authorities of the Railways had stated that as per the Enquiry Report dated 18.10.2010 (Annexure-C) departmental proceeding against three concerned Railway Officials, namely Anil Kumar (Junior Engineer), K.C.P. Sinha (Technician) and Laliteshwar Kumar (Senior Section Engineer) has been initiated. But it is very surprising to note that the same Laliteshwar Kumar had sworn affidavit of the respondents’ Reply to the petitioner’s Rejoinder in the instant writ case. This clearly shows that the entire handling of the instant matter is being done by a handful of employees of the Railways, who were involved in - 12 - the accident in question and the proceeding and orders dated 29.04.2011 and 06.05.2011 (Annexure F-series) are mere eye wash. 17. This depicts a very sorry state of affairs, when the authorities of such a prime national organisation are behaving in such unscrupulous and blatantly illegal manner, which may have very large and wide ramifications not only for the Railways, but also for the entire nation. The remedy lies with the Railways itself, as it is high time to wake up from its slumber, pull up its socks and jolt, jactitate and trepidate its employees so that the Railways may progress in a positive manner and not in such a negative manner, harming not only the persons concerned but also the Railways at large. 18. Accordingly, this writ petition is allowed and the impugned order dated 01.02.2011 (Annexure-1) passed by the Senior Divisional Electrical Engineer (TRD), E.C. Railway, Danapur (respondent no.3) is quashed and the respondents authorities are directed to accept the show causes given by the petitioner in its replies dated 22.10.2010 (Annexure-7) and 25.10.2010 (Annexure-8). However this court restrains itself from awarding any cost or fine upon the concerned authorities of the respondent-Railways and it is left for the Railways to take appropriate action in that regard, in view of the observations made above. Sunil (S. N. Hussain, J.)