IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :- Hon’ble Justice Amrita Sinha WPA 15166 of 2025 Jekay International Track Private Limited & Anr. Vs. Union of India & Ors. For the writ petitioners :- Mr. Varun Kothari, Adv. Ms. Indrani Mukherjee, Adv. For respondents :- Ms. Susmita Saha Dutta, Adv. Heard on :- 28.10.2025 Judgment on :- 28.10.2025 Amrita Sinha, J.:- 1. The petitioners are aggrieved by the communication dated 8th April, 2025 issued by the Deputy Chief Engineer/ Con for recovery of penalty amount on account of adverse performance. 2. The petitioners submit that a particular warranty period is stipulated in the terms and conditions of the contract. The petitioners were intimated about the defect in the goods supplied after expiry of the stipulated warranty period. 3. The petitioners highlight that the guarantee period as mentioned in the contract lays down that the guarantee shall expire in respect of each item of stores on the expiry of thirty months from the date of its delivery or twenty-four months from the date of its placing in service, whichever is earlier, except in respect of defects notified to the contractor prior to the expiry of such date. 2 4. As the goods were supplied to the Railways in the year 2020 and the intimation of the defect was given in 2024, accordingly, the same is in contravention of the period mentioned in the guarantee clause of the contract. 5. It has been submitted that as a good gesture and due to the long standing business relationship in between the parties, the petitioners replaced the defective goods with fresh defect-free ones. 6. Prayer has been made to direct the authority not to impose any penalty upon the petitioners as the authority acted in contravention of the terms and conditions of the contract. 7. Prayer has also been made to direct the authority to return either the defective goods or the goods which have not been used by the Railways. 8. Learned advocate representing the respondents opposes the prayers of the petitioners. 9. It has been submitted that the items delivered by the petitioners are very vital and essential for maintaining public safety. The petitioners supplied defective goods and the same was intimated to the petitioners. The petitioners failed to take back the defective goods despite notice issued by the authority. 10. It has been submitted that the penal provision has been invoked in accordance with the terms and conditions of the contract. 11. I have heard the submissions made on behalf of both the parties and have perused the materials placed before the Court. 12. On a perusal of the impugned order dated 8th April, 2025, it appears that due to performance failure of the petitioners, the goods supplied by the petitioners were rejected by RDSO resulting in the delisting of the firm. 3 Because of their delistment, they are disqualified for further production of the elastic railway clips. 13. The fact of delistment was made known to the petitioners and the defective railway clips were not replaced despite request being made for the same. The petitioners were intimated that the replacement supply of 50,000 clips was lying in stock. 14. According to the Railways, poor performance was reported and a joint inspection was sought to be made. The petitioners did not cooperate with the process of joint inspection. The petitioners did not show any interest for providing witness to the testing of the samples collected. 15. The samples were, accordingly, tested in presence of the Railway officials and RDSO officials and were found to be not satisfactory as per IRS specification. 16. The firm stood delisted for a period of one year and the same was communicated vide communicating letter dated 24th September, 2024 following the order of delistment of the firm. 17. The petitioners were directed to deposit the equivalent amount of the failed lot. As the petitioners failed to deposit the amount claimed, the authority took steps to recover the said amount from the other payment due to the petitioners. 18. The Railways have already deducted a portion of the penalty amount and currently a sum of Rs. 47,96,773/- is recoverable from the petitioners. 4 19. It appears that the dispute in question arises out of a contract entered in between the parties. The subject material, that is, the elastic railway clips are necessary for maintaining passenger and track safety. 20. The authority has considered several factual aspects including the non- cooperative attitude of the petitioners and has come to a conclusion that the performance of the petitioners is adverse. 21. As per the terms and conditions of the contract, there is scope for invoking penal provision and the authority has invoked the same. 22. Whether the penal provision was rightly invoked or not and whether the petitioners would still be entitled to get back the elastic railway clips which are alleged to be in the custody of the Railways is an issue which cannot and ought not to be decided by the writ Court. 23. Learned advocate for the petitioners relies on the judgment delivered by the Hon’ble Supreme Court in the matter of M.P. Power Management Company Limited, Jabalpur –Versus- Sky Power Southeast Solar India Private Limited and Ors. reported in (2023) 2 SCC 703, paragraph 82 in support of the submission that the writ petition will be maintainable even if the same arises out of a contractual dispute in between the parties. 24. Reliance has also been placed on the judgment delivered by the Hon’ble Supreme Court in the matter of Unitech Limited and Others –Versus- Telangana State Industrial Infrastructure Corporation (TSIIC) and Others reported in (2021) 16 SCC 35, paragraphs 39.2 to 39.5. 5 25. In the instant case, it appears that there is hardly any violation of the constitutional or statutory right of the petitioners requiring interference by the writ Court. 26. For providing relief to the petitioners adducing evidence may be necessary. Without appreciation of facts supported by proper evidence and without perusal of necessary documents, it may not be possible for arriving at a just conclusion to the dispute that has cropped up. Such adducing of evidence in a purely contractual matter cannot be made before the writ Court. 27. There is no public element involved in the instant writ petition. On the contrary, it appears that the authority took steps keeping in mind the issue of public safety. The Court is not inclined to interpret the terms and conditions of the contract and whether the parties acted in accordance with the same. 28. In M.P. Power Management (supra) the Hon’ble Supreme Court reiterated that writ jurisdiction is a public law remedy. Ordinarily, the cases of termination of contract by the State, acting within its contractual domain may not lend itself for appropriate redress by the writ Court. It all depends upon the facts of each case as to whether, having regard to the scope of the dispute to be resolved, the Court will still entertain the petition. 29. The Court laid down that mere allegation of breach of contract will not be sufficient for entertaining a writ petition. The action/inaction of the authority must be palpably unreasonable or absolutely irrational and bereft of any principle. 30. In Unitech Limited & Ors. (supra) the Court laid down that while exercising jurisdiction under Article 226, the Court is entitled to enquire 6 whether the action of the authority is arbitrary or unfair and in consequence in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against arbitrary exercise of power or misuse of authority. 31. On the face of it, the action of the respondent authority does not appear to be so arbitrary or illegal requiring interference by the writ Court. The Court is not inclined to exercise the power of judicial review in the instant case. 32. In view of the above, the writ petition fails and is hereby dismissed. 33. No costs. 34. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities. (Amrita Sinha, J.)