The judgment established the importance of strict adherence to contract clauses and the interpretation of notice requirements for termination, as well as clarified the applicability of alternative remedies in seeking relief through a writ petition.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The petitioner, being a proprietor of a firm carrying on business under the name and style of M/s. D. M. Enterprises, emerged successful in a tender floated by the respondent no.4 on June 9, 2020 and a provisional acceptance letter was issued to the petitioner on July 21, 2020. On the same date, the petitioner deposited a Performance Bank Guarantee of Rs.7,13,446/-.

2. The work order was issued in favour of the petitioner on July 31, 2020. An agreement was, accordingly, entered into between the parties on the same date.

3. Subsequently, the petitioner commenced the work in terms of such agreement, for maintenance and provisioning of land-line and broad- band network. However, due to subsequent difficulties faced by the petitioner, the petitioner gave a letter on August 24, 2020 intimating the respondent-authorities about the hindrance in the completion of the job.

4. Due to the natural calamity Amphan, on August 29, 2020 the petitioner further pointed out a set back to the work by his letter to the respondents.

5. The petitioner thereafter raised an invoice to the tune of Rs.5,80,326/-.

6. Subsequently, there was further correspondence between the petitioner and the respondents regarding the difficulties and hindrance allegedly faced by the petitioner in completing the job.

7. Letters to such effect dated September 10, 2020, December 8, 2020 and December 3, 2020 were exchanged between the parties.

8. Subsequently, on October 17, 2020, October 31, 2020 and December 17, 2020, the respondent-authorities issued notices to the petitioner, pointing out the deficiency in performance of the petitioner.

9. Subsequently, vide Notice dated January 12, 20212, the work order of the petitioner was cancelled by the respondents and the Performance Guarantee was forfeited.

10. Learned counsel for the petitioner contends that the respondents violated principles of natural justice and arbitrarily terminated the contract between the parties, without adhering to the Clauses of the agreement itself.

11. Being public authorities, the respondents ought to have acted transparently and without mala fides, it is contended. Learned counsel for the petitioner places reliance on Clause 3.6(b) of the Contract, which provides that the contract will be terminated and PBG (Performance Bank Guarantee) forfeited, upon non-performance and failure to meet all the SLAs for consecutive three months. Notice shall be served for non-performance, as per the said Clause, in the first, second and third months before final termination. It is further submitted that the respondents in the present case blatantly contravened such provision for issuance of three notices in each of the consecutive preceding months before termination.

12. Moreover, the petitioner was not given any right of hearing which, according to the petitioner, is in gross violation of the principle of audi alterem partem, which is an essential component of natural justice.

13. Learned counsel appearing for the petitioner further contends that although there is a provision for arbitration in Clause 20 of the contract, the Supreme Court as well this Court, in several cases, have held that an alternative remedy in the form of an arbitration clause is not an absolute bar in the exercise of power by this Court under Article 226 of the Constitution of India, if the relevant yardsticks are met.

14. Learned counsel for the petitioner places reliance on an unreported judgment dated September 2, 2021 passed by a co-ordinate bench in WPA 12367 of 2021 between the present parties. A similar violation was alleged, it is contended, and the learned Single Judge, by observing that the provision of Clause 3.6(b) was not complied with by the Authorities, quashed the notices impugned therein.

15. Learned counsel places further reliance on another unreported judgment of the Supreme Court in Union of India Vs. Tantia Construction Private Limited, dated April 18, 2011, wherein it was held that it is well