JUDGMENT : M A Chowdhary, J. 1. Petitioners, through the medium of this petition, filed under Article 226 of Constitution of India , seek directions from this Court for issuance of 'Writ of Certiorari’ to call for the relevant record pertaining to allotment of contract of replacement of old air compressors with new air compressors-02 Nos. (one working and one stand by) along with dryers and allied electrical works for supply of medical air at GMCH Jammu, pursuant to the notice inviting tender, No. MHDJ/e-NIT/61 of 2020-21 dated 28 October 2020 , and another No. MHDJ/e-NIT/63 of 2020- 21 dated 29 October 2020 for the similar work at SSH Jammu, issued by the Executive Engineer (Mech.), Hospital and Central Heating Division, GMCH Jammu, and petitioners further seek the details of payment made thereunder along with the proceedings and material leading to imposition of penalty, and also request to quash the said penalty indicated in the communication No. MHDJ/Accts/2021-22/3800 dated 7 August 2021 and the deduction on that account in the amount of Rs. 89,790/- and Rs. 1,07,500/- respectively, as arbitrary, unreasonable, unfair, unjust and unjustified. 2. It has further been pleaded by the petitioner-Firm M/S J.D. Enterprises, in the petition that it offered its services for the replacement of old air compressors (two units: one working and one standby) along with dryers and allied electrical works each for the supply of medical air at GMCH Jammu and SSH Jammu; that pursuant to the notice inviting tenders Nos. MHDJ/e-NIT-61 of 2020-21 dated 28 October 2020 and MHDJ/e-NIT-63 of 2020-21 dated 29 October 2020, respectively, at an estimated cost of Rs. 15 lakhs each, issued by the Executive Engineer Mechanical on behalf of the President of India, and after evaluating the bids, found the petitioner-firm to be the lowest bidder with proven efficiency for the job, thus awarding the contract to it. The work was completed with reasonable dispatch despite several challenges, and no delays could be attributed to the petitioner?s default. However, a penalty of Rs. 89,790/- and Rs. 1,07,500/- was still imposed for the works at GMCH Jammu and SSH Jammu, respectively by the respondent. 3. The work was completed with reasonable dispatch despite several challenges, and no delays could be attributed to the petitioner?s default. However, a penalty of Rs. 89,790/- and Rs. 1,07,500/- was still imposed for the works at GMCH Jammu and SSH Jammu, respectively by the respondent. 3. Petitioner-firm claimed that the work orders were issued to the petitioner for the replacement of air compressors at GMCH Jammu and SSH Jammu, however, the site was not handed over to the petitioner as per the communication from the Assistant Executive Engineer (Mech.), Hospital and Central Heating Sub-Division/IInd GMCH Jammu vide No. MHCJ/SD-II/58-60, dated 21 May 2021, which delayed the start of the work; that despite this, the petitioner proceeded with the procurement of necessary machinery and deposited the required amount with the distributor but due to the COVID-19 pandemic, supply chains were severely disrupted; that the petitioner informed the Executive Engineer vide his communication dated 26.02.2021 that the compressors had been dispatched by the company Atlas Cap Co. vide dispatch No. FK2027130754, LR No. B4001423232 on 05.02.2021 and may take 8 to 10 days to reach to the destination; that the petitioner sent several communications explaining the situation, including dispatch dates and assurances regarding the installation; that the petitioner vide his communication dated 15.04.2021 reported the Executive Engineer (Mech.) that compressors for SSH Jammu had been installed, while those for GMCH were expected by the end of April 2021. 4. It has been further pleaded that the delays were caused by factory?s closures due to positive test of some workers in the production unit of the said factory and workforce shortages due to COVID-19; that the petitioner made continuous efforts to procure the equipment, even addressing the disruption with the Government of Maharashtra; that despite these challenges, once the machines were received, the petitioner promptly installed them and completed the work; that the petitioner asserts that the delays were beyond their control and requests that the imposed penalties be reconsidered. 5. 5. It has been next pleaded in the petition that the narration will not be complete without referencing the communications from the Executive Engineer (Mechanical) vide No. MHDJ/TECH/5373-75 dated 22 January 2021 expressing concern about the urgent execution of the work; No. MHDJ/TECH/5656-58 dated 3 February 2021 reiterating the same concern; and No. MHDJ/TECH/142- 47 dated 8 April 2021, which warned the petitioner that failure to explain its position could result in the cancellation of the work order; that the petitioner responded appropriately to all these communications. Notably, the petitioner invoked force majeure due to the ongoing pandemic, but the Executive Engineer did not consider this explanation. After receiving the petitioner’s reply to the communication dated 8 April 2021, the Executive Engineer remained silent, giving the impression that he was satisfied with the explanation provided by the petitioner; that the petitioner came to know regarding the penalty deductions of Rs. 89,790/- and Rs. 1,07,500/- upon receiving a communication dated 7 August 2021 regarding payment details for the completed works; that the petitioner argues that these deductions are unjustified, arbitrary, discriminatory, and unreasonable; that the petitioner was not given proper notice of any action against him for delays in the work and the communication dated 8 April 2021 only vaguely mentioned "punitive action" without specifying the exact action or penalty to be imposed; that as per settled law, such vague references to punitive actions are not valid grounds for imposing penalties. Therefore, the imposition of the penalty is not legally sustainable and be quashed. 6. It has been finally pleaded by the petitioner that the Executive Engineer failed to consider the reasons for the delay in the work, which were caused by circumstances beyond the petitioner?s control, namely the disruption of supply due to the COVID-19 pandemic and despite the petitioner taking all possible steps to procure and install the machines, the penalty was imposed without valid justification which constitutes an abuse of authority and bad faith, making the penalty legally unsustainable. Therefore, the penalty should be quashed, and the deducted amount should be reimbursed to the petitioner 7. Lastly, it has been prayed by the petitioner that the relevant record pertaining to the contract for the replacement of old air compressors with new air compressors-02 Nos. Therefore, the penalty should be quashed, and the deducted amount should be reimbursed to the petitioner 7. Lastly, it has been prayed by the petitioner that the relevant record pertaining to the contract for the replacement of old air compressors with new air compressors-02 Nos. (one working and one standby), along with dryers and allied electrical works for the supply of medical air at GMCH Jammu, pursuant to the notice inviting tender No. MHDJ/e-NIT/61 of 2020-21 dated 28 October 2020, and No. MHDJ/e-NIT/63 of 2020-21 dated 29 October 2020 for the similar work at SSH Jammu, issued by the Executive Engineer (Mech.), Hospital and Central Heating Division, GMCH Jammu, allotted in favor of the petitioner, be called for and further the details of payment made thereunder, along with the proceedings and material leading to the imposition of the penalty, as indicated in the communication No. MHDJ/Accts/2021-22/3800 dated 7 August 2021. The petitioner has lastly prayed that the deduction of Rs. 89,790/- and Rs. 1,07,500/- respectively, as penalty, be quashed as arbitrary, unreasonable, unfair, unjust, and unjustified. 8. Pursuant to notice, the respondent No. 2 filed objections asserting therein that after tendering process, the work orders were issued in favour of the petitioner vide work order No. MHDJ/DB/2020-21/853-59 dated 22-12-2020 for GMCH Jammu and work order No. MHDJ/DB/2020- 21/860-66 dated 22-12-2020 for SSH Jammu Hospitals; that in terms of the work order, the work was to be executed within a period of 25 days, which the petitioner failed to do and accordingly, penalties were imposed upon the petitioner for causing undue delay in the execution of the works, as per the terms and conditions of the work order; that the letter from AEE-II No. MHCH/SD-II/58-60 dated 21.05.2021 is irrelevant as it pertains to SMGS Hospital Jammu, and not the work orders in question; that the work orders stipulated a 25 days completion period, meaning the work should have been completed by 16 th January, 2021; that the petitioner did not initiate the supply for all four air compressors until after the completion period, causing a delay. Therefore, the communications cited by the petitioner are beyond the completion period and unrelated to the penalty clause of the work order. 9. Therefore, the communications cited by the petitioner are beyond the completion period and unrelated to the penalty clause of the work order. 9. It has been further replied in the objections that the respondent made various communications to the petitioner firm, urging completion of the work due to its urgent nature providing medical air supply to patients; that a final notice was issued to cancel the tender due to the urgency, but this did not mean that the terms and conditions would not apply when making the payment. Additionally, the service job carried on 06.02.2021 is the pre-commissioning report of the compressors at SSH Jammu, which too was submitted after the completion period for the said work; that work order No. MHDJ/DB/2020-21/860-66 dated 22.12.2020 for SSH Jammu was completed on 08.04.2021, and penalty was imposed during payment. Similarly, the work order No. MHDJ/DB/2020-21/859-63 dated 22.12.2020 for GMCH Jammu was completed on 12.05.2021, and penalty was also imposed. The firm was unable to complete the critical work within the stipulated time, and the penalty was imposed as per the terms and conditions of the work order. The deducted penalty amount has been deposited in the Government Treasury as revenue; that the work was urgent and required completion within 25 days from the work order date, i.e., by 16 th January 2021, however, the communication regarding material procurement was in April, which was beyond the scope of the work order; that the contractor cannot be granted an undue benefit contrary to the law as the petitioner-M/S J.D. Enterprises, accepted all terms and conditions, which clearly stipulated the completion of work within the specified period. 10. Lastly, it has been prayed by the respondent in the objections that the instant petition be dismissed in view of the submissions made herein above. 11. Mr. R.S. Thakur, learned senior counsel for the petitioners assisted by Mr. 10. Lastly, it has been prayed by the respondent in the objections that the instant petition be dismissed in view of the submissions made herein above. 11. Mr. R.S. Thakur, learned senior counsel for the petitioners assisted by Mr. Vasharan Thakur, Advocate submits that though, the air compressors were to be installed within 25 days as per the contract, however, the site was not handed over in GMCH Jammu to the petitioners within time and it was only on 21.05.2021 that site was made available; that Pandemic of COVID-19 has also intervened and the manufacturer of the air compressors could not supply their compressors within the stipulated time for lack of manpower due to lockdown, as such, the petitioners had sought extension of time vide communication dated 23.09.2020 and 15.04.2021 and that the petitioners had raised the force majeure in view of the COVID-19 Pandemic Intervention so as to attract no penalty in supplying the air compressors; that the respondents neither cancelled the work orders and allowed the petitioners to install the air compressors as per the work order, nor considered the force majeure which was beyond the control of the petitioners so as to not impose any penalty for delayed installation, as such, the penalty imposed for both the work orders was arbitrary and illegal and is required to be quashed 12. Mr. Raman Sharma, learned AAG, ex-adverso, appearing for the respondents argued that it was a commercial contract between the petitioners and the respondents executed on 22.10.2020 and as per Clause (X), the compressors were to be installed within 25 days from the date of contract i.e. 22.10.2020 whereas admittedly the petitioners had installed the compressors on 18.04.2021 and 12.05.2021. He further argued that COVID-19 Pandemic cannot be considered as a force majeure as this pandemic was already there when the parties have entered into a compromise and this pandemic being not intervening can be considered as force majeure. He further argued that the plea raised by the petitioners that inter-alia, 'Principle of Natural Justice? He further argued that COVID-19 Pandemic cannot be considered as a force majeure as this pandemic was already there when the parties have entered into a compromise and this pandemic being not intervening can be considered as force majeure. He further argued that the plea raised by the petitioners that inter-alia, 'Principle of Natural Justice? was not applied as the petitioners had not been issued any notice to show cause as to why the penalty may not be imposed, because, the principle is not applicable in commercial matters as neither equity nor fairness can be pleaded in contractual matters which have to be decided strictly in accordance with the terms and conditions of the contract; that since the timeline had been violated by the petitioners for not having installed the air compressors within 25 days, the penalties imposed upon them were as per the contract. 13. Mr. Raman Sharma, learned AAG further argued that the petitioners have wrongly invoked the writ jurisdiction of this Court as the parties are governed by the clauses of the contract which, inter-alia, provides for an arbitration clause as well, which is an alternative and efficacious remedy. 14. Mr. Thakur, learned senior counsel, in rebuttal, argued that though, there is an arbitration clause, however, the petitioners are not divested from invoking a writ jurisdiction of this Court; that the plea raised by the respondents that COVID-19 was already there is not a ground to say that it had not affected the execution of the work contract; that the arbitration clause though, being alternative and efficacious remedy, the Writ Court?s jurisdiction is not ousted by any such remedy and finally he has argued that Government instead of having an eye on a 'pound of flesh?, has to work as a Welfare State and prayed that the impugned orders/notices whereby the penalties have been imposed upon the petitioners for not installing the air compressors within the stipulated time for the grounds pleaded, be set-aside and the respondents be directed to make the payment of whole of the amount which is due to the petitioners without any cut under the head of penalties. 15. The short controversy involved in this case is whether for delayed execution of the work i.e. ‘installation of the air compressors not within 25 days from the date of contract? 15. The short controversy involved in this case is whether for delayed execution of the work i.e. ‘installation of the air compressors not within 25 days from the date of contract? shall invite the penalty or not; and whether the respondents were under obligation to issue a showcause notice before imposing any penalty and that whether in view of the arbitration clause, this Court is divested of deciding the matter invoking the writ jurisdiction. 16. Coming to the maintainability of the petition, the Hon?ble Apex Court in a case titled “ Uttar Pradesh Power Transmission Corporation Ltd. and Anr. Versus CG Power and Industrial Solutions Limited and Anr. ” reported as 2021 AIR(SC) 2411, held in Para-66 that in any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition. So far as whether any showcause notice was required to be issued by the respondents before imposing any penalty is also no longer 'res-intgra’ in view of the law laid down by the Hon?ble Apex Court in a case titled “ Gorkha Security Services vs. Govt. of NCT of Delhi ” reported as 2014 AIR SCW 4586 holding that such a notice is required to be issued. Para No. 25 of the judgment being relevant, is extracted as under :- “ It is thus apparent that this sub-clause provides for various actions which can be taken and penalties which can be imposed by the Department. In such a situation which action the Department proposes to take, need to be specifically stated in the show cause notice. It becomes all the more important when the action of black listing and/ or forfeiture of earnest money/ security deposit is to be taken, as the clause stipulates that such an action can be taken, if so warranted. The words “if so warranted”, thus, assume great significance. It would show that it is not necessary for the Department to resort to penalty of black listing or forfeiture of earnest money/ security deposit in all cases, even if there is such a power. It is left to the Department to inflict any such penalty or not depending upon as to whether circumstances in a particular case warrant such a penalty. There has to be due application of mind by the authority competent to impose the penalty, on these aspects. It is left to the Department to inflict any such penalty or not depending upon as to whether circumstances in a particular case warrant such a penalty. There has to be due application of mind by the authority competent to impose the penalty, on these aspects. Therefore, merely because of the reason that clause 27 empowers the Department to impose such a penalty, would not mean that this specific penalty can be imposed, without putting the defaulting contractor to notice to this effect 17. Reliance and reference by the learned counsel for the respondents on a case decided by the Hon?ble Apex Court titled as “ M/S Radhakrishna Agarwal & Ors. vs. State of Bihar & Ors. ” reported as AIR 1977 SC 1496 , that no such notice is required as 'Principle of Natural Justice?, cannot be invoked in a matter of contract and this Court has to follow the later judgment which has been referred and relied upon by the learned counsel for the petitioners. 18. Since this Court, even if there is an arbitration clause in the contract between the parties, is competent to invoke writ jurisdiction regardless of the alternative and efficacious remedy of arbitration as the respondents had not issued any show cause notice to the petitioners before imposition of the penalties for delayed execution of the work especially when they had raised the plea of force majeure even during seeking of the extension of time, moreso, when the respondents even after finding that the petitioners had not observed the timeline for the supply of the air compressors as per the contract had not taken any step for cancellation of the contract, and in the considered opinion of this Court, the imposition of penalties without hearing the petitioners can be stated to be an arbitrary decision on the part of the respondents. 19. Viewed thus, the petition is allowed and the impugned orders/notices to the extent of imposing penalties is set- aside with a direction to the respondents to issue a show cause notice to the petitioners first and consider the cause shown before passing orders with regard to penalties. 19. Viewed thus, the petition is allowed and the impugned orders/notices to the extent of imposing penalties is set- aside with a direction to the respondents to issue a show cause notice to the petitioners first and consider the cause shown before passing orders with regard to penalties. The respondents are directed to complete this exercise within a period of six weeks from the date a copy of this order is made available to them and in case, the plea raised by the petitioners is not accepted by the respondents, the arbitration clause be invoked for reference of the matter to the Arbitral Tribunal for deciding the matter in accordance with law. 20. This petition is accordingly, disposed of