Protik Prakash Banerjee, J. - (1.) This appeal is directed against the order dated December 4, 2017 passed by the learned Judge by which A.S.T. No. 401 of 2017 (Sumant Yadav v. Union of India and Ors. ) was dismissed on the ground that there was a provision of an appeal before the Chief Commercial Manager or recourse by way of arbitration.
(2.) According to the learned Judge in the impugned order, this was a writ petition which brought before the writ Court a dispute not involving any public law element. Also, according to the learned Judge, the question as to whether cancellation of the contract along with other punitive action was correct or not required adjudication upon receiving evidence and not by way of a writ petition. These findings of the learned Judge were in the context of an impugned order dated November 27, 2017 passed by the railway authorities purportedly in terms of a bilateral contract between the writ petitioner and the railways, under which the railways claimed that they had a power in certain contingencies not only for cancellation of contract but also to debar from fresh registration over all divisions and the zonal railways for the Indian Railways for a period of five years.
(3.) The relevant clauses 6.8 and 7.6 of the agreement on which reliance has been placed by the railway authorities are extracted hereinbelow for the sake of convenience:- "6.8 With a view to prevent fraud and leakage of railway revenue, the zonal railway must ensure that the cases where the lease holder applies for non loading/leave at originating station and same is granted, the originating station must convey the message to all the concerned to intermediate stations through commercial controller/telephonically. On such days loading should not be done by the lease holder at any of the intermediate station. If it is found to have been loaded the lease SLR/VP by the leaseholder from any of the intermediate station on the day(s) of leave/exemption/non-loading permission, his lease contract will be terminated and registration will be cancelled for forfeiting security deposit and Registration fee as per Para 4.15 of FM Circular no. 06 of 2014. (para 18.8) 7.6 If the registration of a leaseholder is cancelled as a punitive measure, either for reasons of repeated over loading or for repeated failure to start loading after award of contract or for attempt to deliberately defraud railways or for repeated violation of any of the existing stipulations where cancellation of registration has been legislated as the penalty, then the entire registration fee would be forfeited. In addition to forfeiture of registration fee, all his existing leasing contracts being operated from that division would also be cancelled. However, contract can be cancelled/terminated by the Railways with the approval of tender accepting authority. In addition to cancellation, such a leaseholder would be debarred from fresh registration for a period of 5 years. All the Railways should be informed the name of the Firm who has been debarred fresh registration will not be done by any of the Zonal Railways/Divisions by the name of such firm/or leaseholder for a period of five (05) years. (para 4.15);