JUDGMENT B.P. Dharmadhikari, J. 1. Petitioner 3-A before us is a joint venture firm (JV) of other petitioners and all of them challenge the order dated 19.2.2014 by which the Letter Of Allotment i.e. LOA of the contract of petitioner to supply hiring of equipments (HOE) for removal of overload burden of Padmapur opencast mine came to be cancelled and its earnest money deposit of Rs.42,76,100/- came to be forfeited. Similarly, the said JV and its all constituent firms or partners are debarred from participation in future tenders which may be floated by respondents for a period of one year. Letter of allotment by respondent is dated 20.9.2013 and as per the petitioners, as site was placed in its possession on 12.11.2013, events prior to that date are not decisive and not relevant. Clause 6 of Letter Of Allotment (LOA) is relied upon to urge that it casts obligation upon petitioners to commence work within 10 days thereafter. Show cause notice dated 18.10.2013 asking it to commence the work immediately therefore became redundant. Again another show cause notice was issued for very same purpose on 29.11.2013 and impugned order dated 19.2.2014 is passed in pursuance thereof. 2. On the 11.03.2014, this court has by interim order directed respondents to permit petitioner to participate in fresh tender process without prejudice to rights of parties and subject to further orders of the court. In this situation, with consent of parties, we have issued Rule and heard the matter finally by making it returnable forthwith. 3. Attention is invited by senior advocate Shri Bhangde to clause 6.1 of the LOA to contend that show cause notice (SCN) is without considering the ingredients thereof. Petitioner should have been given time to make amends or to start work and therefore not only SCN but impugned action based upon it is premature SCN dated 29.11.2013 pointed out that petitioner did not start work till then and called upon the petitioner to show cause as to why any of the actions suggested in it should not be taken for its failure to start work within 15 days. Petitioners were called for hearing on 5.12.2013. They were cautioned that if they did not appear for hearing or submit their explanation in writing, the respondents would take recourse to measures stipulated in it. Petitioners were called for hearing on 5.12.2013. They were cautioned that if they did not appear for hearing or submit their explanation in writing, the respondents would take recourse to measures stipulated in it. Petitioner on 28.12.2013 submitted the manpower, list of equipments and sought permission of respondent to allow it to be deployed. On 30.12.2013, petitioners gave list of staff/workers for initial medical examination (IME) and vocational training (VT). Communication dated 4.1.2014 is relied upon to show that petitioners had started work on 25.12.2013 but it was suspended by the respondents and that petitioners were asked to start work on 2.1.2014. Respondents replied to it on 6.1.2014 pointing out that petitioner did not commence work and did not submit performance security for Rs.2,36,40,765/-. It also points out that no list of employees was submitted for IME and VT. Petitioners argue that performance security was not the cause mentioned in SCN. On 16.1.2014, petitioners made grievance about absence of a barrier on Tadoba road. On 22.1.2014, the respondents replied and pointed out that barrier was ready to operate and asked petitioners to start work. 4. Petitioners then wrote to respondents on 20th January 2014 and pointed out that they have already supplied two performance guarantees and remaining documents about performance security would be submitted up to 22nd January 2014, they requested respondents to grant permission to deploy manpower and machinery to start the work. Petitioners explain that this request became necessary as work was discontinued by respondents. This communication was replied to by respondents on 23rd January 2014. Respondents pointed out that some formalities needed to be completed by petitioners before starting actual execution of work. They pointed out that performance security deposit amounting to rupees 2,36,40,765/- was not supplied and site was handed over to petitioners on 12th November 2013. They were called upon to start work immediately. Learned senior advocate points out that the respondents had also informed petitioners that permission to deploy manpower and machinery can be granted to them only after completion of the formalities mentioned in this communication. 5. In this background, our attention has been invited by Advocate Bhangde to submissions filed in reply to oppose petition by respondents. Learned senior advocate points out that the respondents had also informed petitioners that permission to deploy manpower and machinery can be granted to them only after completion of the formalities mentioned in this communication. 5. In this background, our attention has been invited by Advocate Bhangde to submissions filed in reply to oppose petition by respondents. Stand in the said reply that the employees named by petitioners passed medical fitness test and that the defense of absence of permission to commence the work is erroneous as never such permission to start was required to be given, taken therein is highlighted. Petitioners replied to this communication on 29th January 2014 pointing out that constituent firms of joint venture had executed several works in past and deposited the performance security deposit on the later date which never encountered any objection. They pointed out that 70% of performance security deposit in the form of bank guaranty was already deposited and remaining 30% would be supplied within 30 days from the date of communication. They accordingly had sought permission to start work. 6. It is further argued that non-supply of bank guaranty is not the cause for cancellation and respondents in their reply also accept that language of communication dated 23rd January 2014 is cryptic. On 13th February 2014, petitioners submitted a bank guaranty in the sum of Rs.78,41,000/- but it was not accepted. Petitioners, therefore, sent an email immediately. It is also stated that a bank guaranty submitted earlier and also later on, were in the name of some constituent firm and even earnest money was not deposited in the name of joint venture. Stand in reply affidavit that such performance guaranty ought to have been submitted by joint venture therefore is misconceived and by way of afterthought. The bank guaranty which has been encashed after impugned order was also in the name of a constituent firm. It was directed to be kept valid till 19th February 2014, was accordingly kept valid and came to be encased by impugned order. 7. Learned Senior Advocate also argues that hearing scheduled on 5th December 2013 was before expiry of time granted to file reply to show cause notice. Filing of reply was rendered nugatory due to subsequent events and petitioner was also misled by the fact that earlier show cause notice dated 18th of October 2013 was not acted upon. 7. Learned Senior Advocate also argues that hearing scheduled on 5th December 2013 was before expiry of time granted to file reply to show cause notice. Filing of reply was rendered nugatory due to subsequent events and petitioner was also misled by the fact that earlier show cause notice dated 18th of October 2013 was not acted upon. It is argued that in any case material already available on the record and subsequent events needed evaluation before reaching any decision. Impugned order passed only on the facts and position prevailing on the date of SCN, is unsustainable. There is no finding in impugned order that non-commencement of work by petitioner was without a valid or reasonable cause. It is further contended that in any case constituent firms or individual partners could not have been debarred. Said petitioners completed several works individually or as constituent firms and are also having current contracts. The fact that petitioners were not given permission to commence work has been totally lost sight of. Stand taken by respondents in defense about absence of machinery at site is again by way of afterthought and there is no such mention in show cause notice or document. Our attention has also been invited to photographs placed on record along with the rejoinder to urge that availability of machinery on spot can be verified through these photographs. 8. Our attention has been invited to various clauses of letter of allotment to urge that merely because performance bank guaranty was not supplied, the blacklisting was not possible. Bank guaranty needed to be supplied within 28 days of the date of letter of allotment which is dated the 20 September 2013. Period of 28 days expired on 17th October 2013 and thereafter, show cause notice was issued on 18th October 2013. Impugned order overlooks the fact that two bank guarantees of Rs. 79 lac each were given on 20th January 2014. 9. Various judgments on the points like power to debar, blacklisting of contractors, high degree of fairness and doctrine of proportionality and malice in law are relied upon by Advocate Bhangde. We find it convenient to refer to all these judgments little latter in the body of the judgment to avoid repetition. 10. 9. Various judgments on the points like power to debar, blacklisting of contractors, high degree of fairness and doctrine of proportionality and malice in law are relied upon by Advocate Bhangde. We find it convenient to refer to all these judgments little latter in the body of the judgment to avoid repetition. 10. Learned counsel for respondent has pointed out that contract between parties is not statutory but commercial one and, hence respondents are justified in taking the action as per law. Strict compliance with procedure and various principles as urged by petitioners is not warranted. Few judgments are cited by him to substantiate this contention. According to him, starting of work within 10 days was an essential condition of contract. After letter of allotment was issued on 20th September 2013, on the next day, petitioners were asked to send their representative for joint survey treating it as most urgent. Reminder was also sent on 27th September, 2013 pointing out that work needed to be commenced within 10 days and another letter on same lines was again sent on the same day. Petitioners then submitted a communication in backdate pointing out that a residential quarter was not allotted. This request was contrary to clause 11 [ix] of the letter of allotment. On 28th, they raised the issue of high tension line. On 4.10.2013, a fax message was forwarded to petitioner to depute its representative and on 5th October 2013, they were called upon to report compliance with provisions of Mine Act, 1952. It is further stated that on 10th October 2013, petitioners sought supply of electricity at their campsite and it was made available on very same day but it was never used. 11. On 18th October 2013, since work was not started, first show cause notice was issued. Petitioners had two options i.e. either to show cause in writing or appear and point out their defense orally during hearing. Reply was given on 21.10.2013 explaining that joint survey could not take place and camp was not erected. These reasons, according to respondents were contradictory to letter dated 10th October 2013, wherein petitioner sought electric supply at campsite for proceeding with the work awarded to them. This defense was contrary to clause (ix) of condition 3.09 of LOA. Reply was given on 21.10.2013 explaining that joint survey could not take place and camp was not erected. These reasons, according to respondents were contradictory to letter dated 10th October 2013, wherein petitioner sought electric supply at campsite for proceeding with the work awarded to them. This defense was contrary to clause (ix) of condition 3.09 of LOA. Attention is also invited to minutes of meeting dated 23rd October 2013 in which petitioner agreed to start work by 11th November 2013 and admitted that campsite was handed over to it on 22nd October 2013. On 12th November 2013, letter was written pointing out that an initial survey was over and routes as per plan be followed. On the same day, site was handed over and a residential quarter was also allotted. As per clause 6.1 of terms and conditions of tender invitation, petitioner was duty-bound to visit site, obtain necessary information and then prepare bid. Clause 6.2 is also pressed into service to show that a deeming fiction is created to infer such a site visit. In spite of this, on 14th November 2013, petitioner gave four lame excuses. It was given a reminder to commence work on that day and even on 15.11.2013. It was expressly informed that its excuses were without any merit. On 23rd November, 2013; it was also warned of action in terms of letter of allotment. Show cause notice came to be issued on 28th November 2013. On 29th December 2013, again a reminder was sent to report compliance with Mines Act in continuation of earlier letter dated 5th October 2013. Petitioner, on 28th December 2013, submitted list of manpower and requested respondent for permission to allow them to work. Counsel for Respondents urges that this exercise needed to be completed within 10 days of issuance of letter of allotment. On 4th January 2014, petitioner indicated that work was commenced on 25th December 2013 and on 28th December 2013, it had submitted list of equipments and manpower deployed. On 6th January 2014, reminder was sent pointing out to petitioner that work was not commenced, performance bank guaranty was not furnished within 28 days and no matching equipments were deployed. Petitioner was called upon to comply with advice letter dated 29.12.2013. Petitioner did not give any reply to it. On 6th January 2014, reminder was sent pointing out to petitioner that work was not commenced, performance bank guaranty was not furnished within 28 days and no matching equipments were deployed. Petitioner was called upon to comply with advice letter dated 29.12.2013. Petitioner did not give any reply to it. On 28th December 2013, letter was sent by petitioner in this background seeking permission to allow them to work. Shri Anil Kumar, learned advocate for respondents submits that this exercise should have been undertaken within 10 days and not after 3 months. In this background, an attempt to create wrong impression has been made by petitioner in first para of its communication dated 4th January 2014 to show that work had already commenced on 25th December 2013 and it was discontinued on 28th December 2013. Similarly, on 16th January 2014, unnecessary dispute about barrier was raised which were secured immediately. On 20th January 2014, petitioner sought time to furnish bank guaranty and permission to deploy manpower and machinery which request is inconsistent with its earlier communication dated 4th January 2014. On 21st of January 2014, respondents informed it that barrier is already in place and work should be commenced immediately. This was repeated on 23rd January 2014. Petitioner on 29th January 2014 submitted bank guaranty in part and sought time of 30 days to submit the remaining 33% thereof. It is urged that petitioner has maintained absolute silence about work progress since 29th January 2014 till the date of impugned order. In this background, on 15th February 2014, Board of Directors i.e. body at the highest level of respondent decided to cancel the contract and debar petitioners. The petitioners submitted a first bank guaranty belatedly on 7th January 2014, 2nd bank guaranty on 9th January 2014, 3rd bank guaranty on 12th February 2014 and 4th on 13th February, 2014. Attention is invited to definition of word "contractor" to urge that it does not include a joint venture and therefore, action has been taken against constituents and partners. 12. It is further submitted that there is no plea of malice in law in writ petition. He further states that only prayer clause (a) in the petition could have been considered but other prayers raise disputed questions which require recording of evidence. 12. It is further submitted that there is no plea of malice in law in writ petition. He further states that only prayer clause (a) in the petition could have been considered but other prayers raise disputed questions which require recording of evidence. In support of the submissions, learned counsel Shri Anil Kumar has placed reliance upon certain judgments and we will be referring to the same in the body of this judgment after-words as and when occasion there-for arises. 13. In his reply arguments, Advocate Bhangde submits that respondents have not elaborated what they mean by commercial contract. He points out two judgments already cited to urge that even in commercial matters, in such circumstances, an interference in the writ jurisdiction is permissible. He also points out that as propriety of blacklisting and therefore, reputation is involved, article 21 of the Constitution of India gets attracted. He contends that events prior to 12th November 2013 are not relevant and were therefore not pointed out. Joint survey was necessary before undertaking the work and therefore, on 21st September 2013, respondent sent a letter to petitioner. On 26.9.2013, petitioner authorized its representative for said purpose but joint survey could not be conducted as rainfall was going on. Initial survey was then agreed to be conducted on 17th October 2013 and as land was wet and not clear, Doser or equipment could not be moved. Staff of petitioner was available since 7th October 2013 and petitioners were informed that survey would take about one month. Our attention has also been invited to proceedings of meeting held on 23rd October 2013 in order to demonstrate that campsite was handed over on 22nd October 2013, electricity was to be supplied, camp was to operate by 7th November 2013 and all equipments were to be ready by 10th November 2013. Part initial survey was to be completed by 31st October 2013 and plans were to be signed by 5th November 2013. After these initial stages, petitioner contractor was to start work from 11th November 2013. Communication sent by respondents on 12th November 2013 is relied upon to show that initial survey was conducted from 17th October 2013 till 10th November 2013 and then plan prepared and sent to general manager was accepted by competent authority. This acceptance was communicated on 11/12th November 2013 and thereafter work site was handed over to petitioner. Communication sent by respondents on 12th November 2013 is relied upon to show that initial survey was conducted from 17th October 2013 till 10th November 2013 and then plan prepared and sent to general manager was accepted by competent authority. This acceptance was communicated on 11/12th November 2013 and thereafter work site was handed over to petitioner. In a joint meeting conducted on 23rd October 2013 when time bound programme was decided, nobody has blamed petitioner for delay. Letter dated 4th October 2013 sent by respondent contains false assertion and has been created only for its use against petitioner. 14. He invites our attention to communication dated 14th November 2013 sent after receipt of possession of site to show that there was no sufficient camping-land and therefore camp as required, could not have been built. High tension overhead wires also obstructed the work and overhaul road could not be used freely. Its widening and proper grading was necessary. Petitioners were therefore waiting for these hurdles to be removed. Clause 6 dealing with site visit in tender invitation governs contracts for construction works and is not attracted in present contract. Pleadings contained in paragraph 26, 27 and 28 of the writ petition are read out to show assertion of malice in law. Other prayer clauses in writ petition are argued to be only consequential and can be granted. Advocate Bhangde submits that correspondence between parties after site was handed over to petitioner is important and on 29th December 2013, respondents sought certain details within 7 days to avoid violation of Mines Act 1952 and Mines Rules 1955. Petitioner gave that list on 28.12.2013 and respondents never informed that manpower so provided was inadequate. Correspondence shows that work was discontinued by respondents and it was permitted to be resumed vide reply communication dated 21st/22nd January 2014. He invites attention to communication dated 23.01.2014 sent by respondent to show that permission to start the work was to be given by respondents after alleged compliance made by petitioners. Inviting attention to resolution passed by Board of Directors of the respondents, he contends that it also does not contain any reasons. This lacuna cannot be filled in latter on before this court. Judgment reported at Central Bank of India v. Devi Ispat Ltd., (2010) 11 SCC 186 , is relied upon by him for said purpose. 15. Inviting attention to resolution passed by Board of Directors of the respondents, he contends that it also does not contain any reasons. This lacuna cannot be filled in latter on before this court. Judgment reported at Central Bank of India v. Devi Ispat Ltd., (2010) 11 SCC 186 , is relied upon by him for said purpose. 15. He also invited attention to victimization of petitioner to state that it is planned conspiracy of the respondents. Power available to respondent under clause 30.2 was not used on 18th October 2013 though period of 28 days had expired on 17th October 2013 as this could have only enabled them to forfeit earnest money and they could not have blacklisted petitioners. Clauses like clause 4 dealing with earnest money, 14 about bid validity and 15.5 [b](ii) are read out. Petitioner was therefore directed to keep the guarantee valid till 19.02.2014 and in the meanwhile impugned action has been taken. According to learned senior advocate, this is nothing but an abuse of position and therefore, malice in law. 16. In view of these arguments, Advocate Anil Kumar for respondents stated that performance guaranty was to be submitted within 28 days and, therefore, petitioner got extension. Respondents have a right to recover loss from petitioner if in fresh tender process, it is required to pay more for same work. He further points out that contracts completed earlier are by constituents and not by joint venture firm. Petitioners never had matching machinery and manpower deployment as contract is for hiring of equipments. 17. Our perusal of impugned order dated 19.02.2014 reveals that petitioner did not appear for personal hearing on 5th December 2013 and also did not submit any reply to show cause notice. Because of this omission on its part, letter of allotment dated 20th September 2013 has been canceled, earnest money deposit came to be forfeited and joint venture firm as also its individual constituent firms, partners and their individual proprietors and partners or directors in individual capacity as well as forming joint venture partnership with any other firm or limited company have been debarred from participating in the future tender of respondents for a period of one year as per clause 6.1 of the general terms and conditions of notice inviting tenders. This document obviously makes reference to show cause notice dated 28/29 November 2013. This document obviously makes reference to show cause notice dated 28/29 November 2013. This show cause notice does not contain any reference to earlier show cause notice dated 18th October 2013. Later show cause notice points out handing over of possession on 12.11.2013, requirement of commencing work within 10 days and its not starting till date of show cause notice and resulting heavy losses to respondents. Petitioner is called upon to explain why actions stipulated therein should not be taken against it as a firm jointly and severally, if it failed to commence work within 15 days of its issuance. Cancellation of letter of allotment, forfeiture of earnest money deposit and debarring from future participation are the measures threatened. If personal hearing was desired, petitioner was asked to appear before area general manager on 5th December 2013. Failure to so appear or to submit explanation within 15 days of receipt of show cause notice, was to be construed as non-availability of any defense with petitioner leaving management free to take decision without any further intimation. 18. This note therefore shows grant of an opportunity to petitioner to commence work within 15 days after its receipt. We have referred to correspondence exchanged between parties and also noted subsequent events. Earlier show cause notice dated 18th October 2013 also alleged that petitioner did not start work immediately in spite of letter dated 21.9.2013, 27.09.2013 and 13 October 2013. Petitioner was then given 25th October 2013 as date for hearing. Other contents of this show cause notice match with contents of latter show cause notice. Possession of site itself is handed over admittedly on 12th November 2013 and hence as per letter of allotment, work should have been started within 10 days of receipt of possession. Show cause notice on the basis of which impugned decision is taken, is itself issued after expiry of period of 10 days and gave petitioner further time of 15 days to start work. 19. Also on the record, we get a document recording proceedings of meeting held on 23rd October 2013. Both parties mention therein the time bound action programme in respect of HOE work. As per stage number 5 as recorded therein, part initial survey was to be completed by 31st October 2013 and plans were to be signed by 5th October 2013. Petitioner contractor was to start work by 11th November 2013. Both parties mention therein the time bound action programme in respect of HOE work. As per stage number 5 as recorded therein, part initial survey was to be completed by 31st October 2013 and plans were to be signed by 5th October 2013. Petitioner contractor was to start work by 11th November 2013. So there was no question of starting any work prior to said date. Hence relevant inquiry has to be about steps taken by petitioner after 12.11.2013. Respondents have given petitioner time of 15 days to commence work after receipt of show cause notice dated 28/29th of November 2013. This time admittedly expires/expired after 5th December 2013 which was the date scheduled for hearing. Developments noted by us show that list of manpower and deployment submitted by petitioner on 28th December 2013 was accepted by respondents. In fact, they have called upon petitioner to submit certain details within 7 days of its communication dated 28/29th of December 2013 to avoid the violation of Mines Act 1952 and Mines Rules 1955. Thus again, petitioners were given time at least till the first week of January 2014, to report that compliance. In their submissions filed before this court, respondents state that some workers of petitioners were also referred for medical fitness test and passed the same and were advised to commence work. Respondents also plead that there was no question or need of any permission to commence the work and communication dated 23rd January 2014 sent by it to petitioners is being wrongly read. Respondents in their written submissions, in paragraph 31, state that this communication is rather cryptic and must be read as whole. The compliance sought for therein from petitioners is of Mines Act and Mines Rules. However, we find that respondent's write on 23rd January 2014 that "While concluding, we will like to make it clear that you will be permitted to deploy the manpower and machinery as requested by you without any delay after the completion and implementation of the aforesaid formalities from your end.". In the opening paragraph of this letter, respondents point out that petitioner has completed some of the mandatory formalities, and other formalities mentioned in said letter needed completion before starting actual execution of work. Thus, even after expiry of period of 15 days given in show cause notice, respondents were expecting petitioners to fulfill certain requirements and to start work. In the opening paragraph of this letter, respondents point out that petitioner has completed some of the mandatory formalities, and other formalities mentioned in said letter needed completion before starting actual execution of work. Thus, even after expiry of period of 15 days given in show cause notice, respondents were expecting petitioners to fulfill certain requirements and to start work. This may also show that within 15 days time stipulated in SCN, circumstances might have been such that the work could not have been commenced by the petitioners. As we find that subsequent events pressed into service by petitioners may have some bearing on this aspect and these events do not find any consideration in impugned order of blacklisting, we avoid observing any thing more in this respect. We only note that a road-barrier which was necessary came to be provided by the respondents on 21st January 2014 and thereafter abovementioned communication dated 23rd January 2014 was sent. Petitioners have placed certain photographs before this court to show that necessary equipment was made available by them on site. According to them, work commenced in fact on 25.12.2013 by it was suspended by respondents on 28th December 2013. 20. We, therefore, find that though several disputed questions seem to arise, approach of both parties need to be appreciated in the perspective of terms and conditions of contract. If show cause notice dated 18.10.2013 was never acted upon and ultimately dropped, action taken belatedly on 19th/20th February 2014 on the basis of show cause notice issued about 2 months earlier ie on 28/29th November 2013; could not have been without looking into events and developments in the meanwhile. Similarly, non-deployment of equipments is not the issue reflected in SCN. Hence, it could not have been normally made a ground for such a decision. As impugned order itself does not evaluate these aspects or events, we also do not find it necessary to record a conclusive finding in relation thereto. 21. Neither respondents nor petitioners have pointed out to this Court any provision in contract between parties which enables respondents to temporarily suspend the execution of contract or letter of allotment issued to petitioner. Though a show cause notice may be issued, adjudication in terms thereof is bound to take some time. 21. Neither respondents nor petitioners have pointed out to this Court any provision in contract between parties which enables respondents to temporarily suspend the execution of contract or letter of allotment issued to petitioner. Though a show cause notice may be issued, adjudication in terms thereof is bound to take some time. If in absence of such power, contract cannot be suspended as an interim measure, it is apparent that parties can legitimately continue further with the execution of contract and party at fault also may attempt to make amends to avoid proposed action. In such an eventuality, merely because there are subsequent events, the show cause notice cannot lapse or get eclipsed. The impact of such subsequent events or developments on omissions, lacunae or irregularities indicated in such a show cause notice will be required to be judged by employer like respondents. If they are satisfied that till the date of their decision, appropriate improvements or compliances have been recorded or amends have been made, they can drop the proposed action and permit contractor to go on. However, this will be a decision to be reached by respondents after ascertaining all the relevant material and safeguarding their own interests. But then, they cannot refuse to evaluate the impact of such subsequent events. 22. Provision for issuing show cause notice and for initiating action against contractor like petitioner is contained in clause 6.1 of the conditions of contract. Clause 6 speaks of time for completion of contract, extension thereof, defaults and compensation for delay. It also contains a deeming provision to the effect that work shall be deemed to have commenced on expiry of 10 days from the issue of letter of acceptance or work order or handing over of the site of work, whichever is later. In present facts, site has been handed over on 12.11.2013 and, as already noted above, show cause notice itself gave petitioner time beyond the period of 10 days envisaged in clause 6. Clause 6.1 contemplates a situation in which contractor, without reasonable cause or valid reason commits default in commencing the execution of work within 10 days time stipulated in clause 6. Clause 6.1 contemplates a situation in which contractor, without reasonable cause or valid reason commits default in commencing the execution of work within 10 days time stipulated in clause 6. In that event respondent, without prejudice to any other right or remedy, is at liberty, by giving 15 days notice in writing to contractor to commence the work, to forfeit the earnest money deposited by him, if he does not commence the work accordingly. Additionally it reserves to respondent, the right to debar such a defaulting contractor from participating in future tenders for a minimum period of one year. Petitioner was accordingly given time of 15 days to commence work from 28/29th November 2013 initially, and significantly, even thereafter as noted above. Impugned order only mentions omission on part of petitioner to file a reply to show cause or to attend personal hearing. It does not mention that petitioner has without any reasonable cause or valid reason committed default in commencing the execution of work either within 10 days or then, in 15 days. Such a finding could not have been recorded without considering the events relied upon by petitioner as subsequent developments or those surfacing through communications exchanged between parties. Such an exercise is not possible without critical appreciation thereof which, in turn, will introduce element of objectiveness and diminish subjectivity in the decision making process. 23. It is in this background that we proceed to consider the precedents. In Sushila Chemicals (P) Ltd. v. Bharat Coking Coal Ltd., (2010) 10 SCC 388 , in para 20 & 21, the Hon'ble Apex Court has observed that it is settled by a series of its decisions starting from Shrilekha Vidyarthi v. State of U.P that even in the domain of contractual matters, the High Court can entertain a writ petition on the ground of violation of Article 14 of the Constitution when the impugned act of the State or its instrumentality is arbitrary, unfair or unreasonable or in breach of obligations under public law. Hon'ble Court states that in Sterling Computers Ltd. v. M & N Publications Ltd, in para 28 it held : “28. … Public authorities are essentially different from those of private persons. Hon'ble Court states that in Sterling Computers Ltd. v. M & N Publications Ltd, in para 28 it held : “28. … Public authorities are essentially different from those of private persons. Even while taking decision in respect of commercial transactions a public authority must be guided by relevant considerations and not by irrelevant ones.” Hon. 3 Judge Bench in Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 , observe that : "7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fair- play in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.". In para 10, Hon. Court states that : "From the above, it is clear that even though the highest tenderer can claim no right to have his tender accepted, there being a power while inviting tenders to reject all the tenders, yet the power to reject all the tenders cannot be exercised arbitrarily and must depend for its validity on the existence of cogent reasons for such action." 24. Hon'ble 3 Judges Bench in Erusian Equipment & Chemicals Ltd. v. State of W.B., (1975) 1 SCC 70 , in para 20 observe that:" Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist." In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, while laying down the scope of interference in contractual matters, Hon'ble Apex Court also states that the cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licenses, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action. Hon'ble 3 Judges Bench in Tata Cellular v. Union of India, (1994) 6 SCC 651 , observed in para 77 that the duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Hon'ble Apex Court lays down that, therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. As laid down by the Hon'ble Apex Court these grounds are only the broad grounds but it does not rule out addition of further grounds in course of time. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. As laid down by the Hon'ble Apex Court these grounds are only the broad grounds but it does not rule out addition of further grounds in course of time. It points out that in R. v. Secretary of State for the Home Department, ex Brind, Lord Dip-lock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted as laid down is that the court should, “consider whether something has gone wrong of a nature and degree which requires its intervention". 25. In Teri Oat Estates (P) Ltd. v. UT, Chandigarh, (2004) 2 SCC 130 ,: Hon'ble Apex Court considers three options viz. (1) resumption of the land, (2) resumption of the building, and (3) forfeiture of the entire amount paid or deposited and finds that the situation warranted application of the doctrine of proportionality to maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. Managing Director, HSIDC v. Hari Om Enterprises, (2009) 16 SCC 208 is relied upon for or showing that when two remedies to enforce a contract are available, the power should be exercised in reasonable manner. So construed, a harsher remedy may not ordinarily be resorted to. Observations of Hon. Apex Court in para 18 in Swaran Singh Chand v. Punjab SEB, (2009) 13 SCC 758 , are relied upon to urge that though the petitioner has not alleged malice of fact, the breach of requirement to consider subsequent developments and omission to extend an opportunity of hearing to it, would amount to malice in law. This precedent shows that when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal is wholly unsustainable. This precedent shows that when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal is wholly unsustainable. In Central Bank of India v. Devi Ispat Ltd., (2010) 11 SCC 186 , : In para 28, Hon'ble Apex Court has observed that in the contract (a) if there is a clause for arbitration, normally, a writ court should not invoke its jurisdiction; (b) the existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under Article 226; and (c) if the instrumentality of the State acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of Article 14 of the Constitution of India in its contractual or statutory obligation, writ petition would be maintainable. However, a legal right must exist and corresponding legal duty on the part of the State and if any action on the part of the State is wholly unfair or arbitrary, writ courts can exercise their power. In the light of this legal position, writ petition is maintainable even in contractual matters, in the circumstances mentioned in the earlier paragraphs. 26. Respondent has placed strong reliance upon AIR 2001 SC 3707 (2001) 8 SCC 604 Grosons Pharmaceuticals (P) Ltd. v. State of U.P. In this case, when the matter came up in first round before the Apex Court, Hon'ble Court felt that the State Government was required to reconsider the matter along with the explanation submitted by the appellant while keeping the impugned order intact. With the direction to adapt that course, the special leave petition was disposed of. The State Government reconsidered the matter and affirmed its earlier order of blacklisting the appellant. The appellant again challenged said order before the High Court which found that elaborate reasons were recorded to support the order of blacklisting. High Court judgment was questioned before the Hon. Apex Court. The appellant urged that seeing the nature and seriousness of the order passed against it, the respondent ought to have supplied entire materials on which the charges contained in the show-cause notice were based along with the show-cause notice and in the absence of supply thereof, the order impugned was against the principles of natural justice. The appellant urged that seeing the nature and seriousness of the order passed against it, the respondent ought to have supplied entire materials on which the charges contained in the show-cause notice were based along with the show-cause notice and in the absence of supply thereof, the order impugned was against the principles of natural justice. Hon. Court did not find any merit in this contention. The appellant had only contractual relationship with the State Government and the said relationship was not governed by any statutory rules. There was no statutory rule providing that an approved contractor should not be blacklisted without giving an opportunity of show-cause. Hon. Apex Court noted that an order blacklisting an approved contractor results in civil consequences and in such a situation in the absence of statutory rules, the only requirement of law while passing such an order was to observe the principle of audi alteram partem which is one of the facets of the principles of natural justice. The supply of the material on which the charges against the appellant were based, was held not to be the requirement of the principle of audi alteram partem. It was sufficient that an opportunity to show-cause was given to the appellant before it was blacklisted. It was not disputed that in the said case, the appellant was given an opportunity to show cause and it did reply to the show-cause which was duly considered by the State Government. Hon'ble Apex Court therefore dismissed the challenge. This ratio is not attracted here because the records show later communications which bring on record subsequent events like need to seek permission to start work, medical clearance and providing a road-barrier etc. SCN dated 18.10.2013 died its own death and these events, if correct, may show an intention to permit the petitioners to start work if certain compliances were made even after the period stipulated in SCN expired. Impugned order dated 19.2.2014 bases itself on state of affairs not in existence in view of these events. In the light of later developments, its possible bearing on the notice dated 28/29th November, 2013 is not gone into. Respondents also rely upon Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, which we have already considered above. In AIR 2012 SC 2342 -- (2012) 11 SCC 257 Patel Engg. In the light of later developments, its possible bearing on the notice dated 28/29th November, 2013 is not gone into. Respondents also rely upon Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, which we have already considered above. In AIR 2012 SC 2342 -- (2012) 11 SCC 257 Patel Engg. Ltd. v. Union of India, Hon'ble Apex Court upholds blacklisting and records findings as under - "33. From the impugned order it appears that the second respondent came to the conclusion that: (1) the petitioner is not reliable and trustworthy in the context of a commercial transaction; (2) by virtue of the dereliction of the petitioner the second respondent suffered a huge financial loss; and (3) the dereliction on the part of the petitioner warrants exemplary action to “curb any practice of ‘pooling’ and ‘mala fide’ in future. 34. We do not find any illegality or irrationality in the conclusion reached by the second respondent that the petitioner is not (commercially) reliable and trustworthy in the light of its conduct in the context of the transaction in question. We cannot find fault with the second respondent’s conclusion because the petitioner chose to go back on its offer of paying a premium of Rs 190.53 crores per annum, after realizing that the next bidder quoted a much lower amount. Whether the decision of the petitioner is bona fide or mala fide, requires a further probe into the matter, but, the explanation offered by the petitioner does not appear to be a rational explanation." In facts before us, respondent has not shown that petitioner joint venture went back on its decision to discharge its obligation or was avoiding it. In fact by show cause notice, petitioners were given time of 15 days to start work and failure to provide bank guarantee or performance guarantee, is not the ground in it. 27. In Delhi Development Authority & another vs. UEE Electricals Engg. (P) Ltd. 2004 (11) SCC 213, Hon'ble Apex Court has pointed out that Courts do not sit in appeal over administrative decisions and interference is possible only if there is any infirmity in the decision making process and not in the decision itself. 27. In Delhi Development Authority & another vs. UEE Electricals Engg. (P) Ltd. 2004 (11) SCC 213, Hon'ble Apex Court has pointed out that Courts do not sit in appeal over administrative decisions and interference is possible only if there is any infirmity in the decision making process and not in the decision itself. State of Bihar vs. Jain Plastics & Chemicals reported at (2002) 1 SCC 216 finds consideration in Zonal Manager, Central Bank of India v. Devi Ispat Ltd., (2010) 11 SCC 186 (supra) which is already referred above by us. In Pimpri Chinchwad Municipal Corpn. v. Gayatri Construction Co., (2008) 8 SCC 172 , Hon'ble Apex Court has pointed out that merely because a contract is entered into in exercise of an enabling power conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statute, then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory, then the said contract to that extent, is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporated therein as a result of mutual agreement between the parties. Therefore, the PPAs can be regarded as statutory only to the extent that they contain provisions regarding determination of tariff and other statutory requirements of Section 43A( 2). Opening and maintaining of an escrow account or an escrow agreement are not the statutory requirements and, therefore, merely because PPAs contemplate maintaining escrow accounts that obligation cannot be regarded as statutory. But in said case, the contractor had already failed to complete the work of road construction within stipulated time and a new advertisement was issued by the Corporation inviting fresh tenders for that work. In High Court, the Contractor contended that cost of completing work payable to him would be much less. Clause 58 in the contract also provided an alternate in house remedy. Corporation did raise three grounds in defense i.e. (i) disputed questions relating to facts were involved; (ii) to enforce the terms and contractual rights, remedy under the civil law is available, and (iii) in any event, the writ petition was not maintainable in respect of contractual matters. Clause 58 in the contract also provided an alternate in house remedy. Corporation did raise three grounds in defense i.e. (i) disputed questions relating to facts were involved; (ii) to enforce the terms and contractual rights, remedy under the civil law is available, and (iii) in any event, the writ petition was not maintainable in respect of contractual matters. It was pointed out that the writ petitioners were seeking relief of enforcement of their contractual rights, and that several relevant and material facts had been suppressed. Maa Binda Empress Carrier vs. Northeast Frontier Railway 2013 (14) SCALE 226 is the matter which considers challenge to cancellation of tender process. There, after noticing serious lapses in the tender process in paragraph 7 of the judgment, Hon'ble Apex Court in para 11, upholds the cancellation. Here, the petitioner JV does not have an in house remedy and facts on record, at least prima facie demonstrate that the work could not have been commenced within 15 days as demanded in SCN. However, this aspect needs to be answered by the respondents and hence, we leave it open for its free and uninfluenced consideration. 28. On 21st & 23rd January 2014, present respondents informed petitioner that barrier is already in place and work should be commenced immediately. Respondents urge that petitioner maintained absolute silence about work since 29th January 2014 till the date of impugned order. In this background on 15th February 2014, Board of Directors of respondent decided to cancel the contract and debar petitioners. But impugned order or said board resolution does also not contain any reference to such silence or the subsequent events. Construed in the background of SCN, impugned order only means that forfeiture or debarring is for not commencing work within 15 days after its issuance. When there is no provision for suspending the mutual obligations during pendency of such SCN proceedings, it is obvious that petitioner could not have discontinued its work or respondents could not have refused to cooperate with petitioner. Hence, LOA itself permits further execution of contract or discharge of their respective obligations by parties. Therefore, such performance after SCN can not be ignored and if SCN proceedings take long time, the steps taken in the meanwhile assume importance to gather the readiness and willingness of such contractor. Hence, LOA itself permits further execution of contract or discharge of their respective obligations by parties. Therefore, such performance after SCN can not be ignored and if SCN proceedings take long time, the steps taken in the meanwhile assume importance to gather the readiness and willingness of such contractor. A finding that he has failed to commence the work within stipulated period of 15 days is must before debarring such contractor or before forfeiture of his earnest money deposit. In present matter, when on later dates, respondents provide a barrier or then, seek certain compliance from petitioner for permitting it to start work, prima facie it appears that work could not have been commenced within said 15 days after 28/29th November,2013. If, on account of such or similar difficulties, the work could not have been commenced within initial period of 10 days stipulated in clause 6, a finding that petitioner, without reasonable cause or excuse, failed to commence work within said period is not possible. If this conclusion is not reached or possible, power with respondents to invoke clause 6.1 can not become available and exercised or even resorted to. In absence of proper findings in impugned order by the respondents, we can only point out need of findings on these aspects therein. This seems to be a material lacuna sufficient to vitiate the decision-making process leading to the impugned order. 29. Such an SCN under clause 6.1 is a composite move and can not be split in to two stages as urged by petitioner. As there is no power to put an end to LOA on interim basis like suspending it till further decision, the reasons leading to SCN and facts prevailing on the date of its issue are bound to change due to later steps of contractor like petitioner. SCN, therefore, gives him time of 15 days to start work and simultaneously warns him of adverse consequences in default. It offers him an oral hearing or opportunity to file defense in writing. This opportunity is meant to be used only if work is not so started and it becomes necessary to find out whether contractor was at fault or not. It offers him an oral hearing or opportunity to file defense in writing. This opportunity is meant to be used only if work is not so started and it becomes necessary to find out whether contractor was at fault or not. When no reply is filed, chance of oral hearing is not taken and work is/was not commenced within said 15 days by present petitioner, respondents could have taken the suitable punitive action immediately at the end of said period of 15 days. When respondents do not take such decision after 15 days and allow petitioner to make amends or to start work even thereafter, a different inference may be drawn. When steps taken by petitioner after expiry of 15 days are reciprocated by the respondents, later conduct of parties itself may bring on record material enough to exonerate the contractor for not commencing the work within stipulated time. Hence, evaluation of impact or relevance of such subsequent events must form part of decision-making process. When LOA itself enables petitioner to commence work within 15 days, it could have been brought to an end immediately after expiry of said period for the reasons as recorded in the impugned order. But when that decision is postponed, subsequent changes in situation must enter the consideration process. Whether subsequent conduct of both the parties here leaves an impression that like first SCN dated 18.10.2013, later SCN was also dropped is the moot issue. In any case, when such a type of decision is being taken after permitting the situation to change, it must be reached after considering the facts and situation prevailing on the date on which it is being taken. Absence of power to suspend the execution of contract with the respondent, necessarily paves way for changes in the situation prevailing on the date on which SCN was issued and therefore mandates evaluation of impact of such change on decision to be taken. This is the obligation cast upon respondent which is an instrumentality under Article 12 of the Constitution of India. Contract under LOA has direct bearing on coal mining. A duty to act fairly, to avoid arbitrariness and highhandedness therefore obliged respondents not to avoid to consider any relevant aspect having direct bearing on the decision which in turn may cast stigma on any contractor or spoil its/his future. 30. As such, impugned order dated 19.2.2014 is unsustainable. Contract under LOA has direct bearing on coal mining. A duty to act fairly, to avoid arbitrariness and highhandedness therefore obliged respondents not to avoid to consider any relevant aspect having direct bearing on the decision which in turn may cast stigma on any contractor or spoil its/his future. 30. As such, impugned order dated 19.2.2014 is unsustainable. It is quashed and set aside. The respondents to evaluate the relevance and impact of subsequent events on its SCN and to find out whether by said date petitioner JV had failed to commence the work in terms of clause 6 or 6.1. Our observations above are only for highlighting the error in the decision making process and shall not influence the respondents while assessing impact of such subsequent events on its action and measures proposed in SCN. If respondents find it suitable, they are free to extend an opportunity to petitioner to file a defense statement and/or to extend opportunity of hearing to them. Accordingly, fresh decision shall be taken within three weeks from today. Till then, interim orders passed by this Court shall continue and shall cease to operate automatically thereafter. 31. Writ petition is thus partly allowed by making rule absolute accordingly with no orders as to costs. Petition disposed of.