ORDER : Arup Kumar Goswami, J. Heard Mr. Aman Saxena, learned counsel for the petitioner. Also heard Mr. Vaibhav Shukla, learned counsel, appearing for the respondent Nos. 1 and 2. 2. The writ petition is filed assailing the order dated 10.11.2021, which is on the subject of cancellation of contract, recovery of penalty and debarment under Clauses 6.1 and 9.2 of the General Terms and Conditions of the Contract. 3. The petitioner was the successful tenderer in respect of Tender Notice No.SECL/BSP/CMC/e-Tende 457 dated 17.06.2021 issued by South Eastern Coalfields Limited (for short, ‘SECL’) for Hiring of HEMM for excavating all kinds of strata/over-burden/in-situ, loading into tippers, transportation and uploading of excavated materials and silt, dumping, dozing, scraping/removal of all bands, preparation/maintenance of haul road, water sprinkling and spreading of material at the site shown in plan and as per directives of the Management. Engineer in Charge of Rampur Bhatura OCP, Sohagpur Area for total quantity of 3,00,67,891 Cum [Soft Soil (Not requiring drilling)] Top soil (0.30M) – 2,66,858 Cum, Soft-Soil – 27,23,173 Cum, Total Soft Soil 29,90,031 Cum and Hart Strata (Requiring Drilling) – 2,70,77,860 Cum for a period of 1095 days with minimum excavation quantity 27,459 Cum per day, Lead (Soft Soil) Min. 0.664 KM and Max is 1.848 KM & Hard Strata (Min. 0.100 KM and Max 0.551 KM), Lift : Soft Soil (Min. - 0.00 Metre and Msx – 28.00 Metre) & Hard Strata (Min. - 0.00 metre and Max – 100.00 metre) Total Quantity (A+B) 3,00,67,891 Cum for a period of 1095 days @ 27,459.00 Cum/day for total contract value of 198,89,57,449.05 (One hundred ninety nine crore, eighty nine lakh, fifty seven thousand, four hundred forty nine only) (inclusive of GST). 4. Accordingly, a Letter of Intent (for short, LOI) dated 22.09.2021 was issued at the bid of the petitioner which is Rs. 168,55,57,160.38 (One Hundred Sixty Eight Crore, Fifty Five Lakhs, Fifty Seven Thousand, One Hundred Sixty only). 5. The petitioner was awarded two other LOIs also in respect of similar nature of work. All his LOIs were cancelled and penalty was imposed. The petitioner was also debarred and blacklisted. Therefore, apart from filing this petition, the petitioner had approached this Court by filing in WPC No. 1359 of 2022 and WPC No. 1914 of 2022. 6. 5. The petitioner was awarded two other LOIs also in respect of similar nature of work. All his LOIs were cancelled and penalty was imposed. The petitioner was also debarred and blacklisted. Therefore, apart from filing this petition, the petitioner had approached this Court by filing in WPC No. 1359 of 2022 and WPC No. 1914 of 2022. 6. The cancellation of contract, imposition of penalty and blacklisting of the petitioner had genesis in non-deposit of performance security. 7. WPC No. 1994 of 2022 and WPC No. 1359 of 2022 were decided on 17.08.2022 and 06.09.2022, respectively. In both the aforesaid cases, while upholding the orders of cancellation of contract and blacklisting, imposition of penalty was set aside on the ground that no notice was issued intending to impose penalty and accordingly, respondents were left at liberty to proceed in accordance with law with regard to imposition of penalty. 8. On 23.08.2022, this Court had passed the following order in this petition : “Mr. Aman Saxena, learned counsel for the petitioner submits that this case is covered by the judgment dated 17.08.2022 passed in Writ Petition (C) No.1914 of 2022 except the issue decided on penalty imposed. It is submitted by him that in Writ Petition (C) No.1914 of 2022, no notice proposing levy of penalty was issued and on that count, the order imposing penalty was set aside. In the instant case, though a notice was issued, it is submitted by him that the imposition of penalty reflects total non-application of mind and that aspect of the matter is covered by the judgment dated 16.02.2021 passed in Writ Petition (C) No.2577 of 2020. Mr. Vaibhav Shukla, learned counsel for the respondents would also agree that the only issue to be decided in this case is with regard to the penalty imposed. He prays that this case may be taken up after a week so that the writ petition can be disposed of on that date. List on 06.09.2022.” 9. As learned counsel for the parties submit that the order of cancellation of the contract and blacklisting necessarily have to be upheld in view of the judgments rendered in WPC No. 1994 of 2022 and WPC No. 1359 of 2022, order of cancellation and blacklisting is not interfered with. 10. List on 06.09.2022.” 9. As learned counsel for the parties submit that the order of cancellation of the contract and blacklisting necessarily have to be upheld in view of the judgments rendered in WPC No. 1994 of 2022 and WPC No. 1359 of 2022, order of cancellation and blacklisting is not interfered with. 10. As noted earlier in the order dated 23.08.2022, only issue that is now to be decided by this Court is as to whether imposition of penalty on the basis of Clause 9.2 of the General Terms and Conditions of the Contract is legally sustainable or not. 11. Mr. Saxena submits that identical Clause 9.2 of the General Terms and Conditions of the Contract had fallen for consideration of this Court in WPC No. 2577 of 2020 ( M/s. Jai Ambey Roadlines Vs. South Eastern Coalfields Limited and Another), which was also referred to in the order dated 23.08.2022 in this case and accordingly, on the basis of the said judgment, it is submitted by him that in absence of any application of mind in computing loss, imposing penalty at a flat rate of 20% of the incomplete work cannot be sustained in law. 12. Mr. Shukla submits that procedure, as prescribed under Clause 9.2, was followed and by following that procedure, assessment was done and therefore, there is no infirmity in imposition of penalty. 13. Clause 9.2 of the general terms and conditions of the contract reads as follows : “9.2. On termination of the contract or on cancellation of the contract, the Engineer-in-charge shall have powers : a. xxx xxx xxx b. xxx xxx xxx c. xxx xxx xxx In such an event, the contractor shall be liable for loss/damage suffered by the employer because of action under this clause and to compensate for this loss or damage, the employer shall be entitled to recover higher of the following : i) Forfeiture of security deposit comprising of performance guarantee and retention money and additional performance security, if any, at disposal of the employer. Or ii) 20% of value of incomplete work. The value of the incomplete work shall be calculated for the items and quantities remaining incomplete (as per provision of agreement) at the agreement rates including price variation as applicable on the date, when notice in writing for termination of work was issued to the contractor. 14. Or ii) 20% of value of incomplete work. The value of the incomplete work shall be calculated for the items and quantities remaining incomplete (as per provision of agreement) at the agreement rates including price variation as applicable on the date, when notice in writing for termination of work was issued to the contractor. 14. It is an admitted position that in view of the Circulars issued by the Government of India in the wake of Covid-19 pandemic, no security deposit was made by the petitioner. 15. A perusal of Clause 9.2, as extracted in WPC No. 2577 of 2020 (M/s. Jai Ambey Roadlines Vs. South Eastern Coalfields Limited and Another) would go to show that Clause 9.2 in the instant case is identical with 9.2 in WPC No. 2577 of 2020 (M/s. Jai Ambey Roadlines Vs. South Eastern Coalfields Limited and Another). 16. Clause 9.2 was interpreted by this Court in the following manner : “19. Similarly, the Quantum of Penalty, if to be awarded in terms of Clause 9.2, also depends on various facts and circumstances, as Penalty cannot be imposed as a matter of course; but to be ordered with proper application of mind, depending upon the culpability involved. Further, the 'Penalty' to be imposed as per Clause 9.2 of the 'General Terms & Conditions' of the tender is with reference to the “loss caused to the Company”. This shows that there has to be proper application of mind with regard to all the relevant facts and figures in computing the 'loss' as well and to have it realised in the form of Penalty to be mulcted on the parties concerned. Here again, the Respondents have gone wrong in pursing the 'decision making process' and hence it requires reconsideration.” 17. Mr. Shukla had submitted that since Clause 9.2 (ii) provided penalty at 20% of value of incomplete work, assessment was done on incomplete work and since no work was started, 20% was worked out from total value of work and thus, procedure prescribed in Clause 9.2 was duly followed. 18. We are unable to accept submission in view of the judgment rendered by this Court in WPC No. 2577 of 2020 (M/s. Jai Ambey Roadlines Vs. South Eastern Coalfields Limited and Another), where this Court specifically held that 20% cannot be imposed as a matter of course and that loss has to be ascertained. 19. 18. We are unable to accept submission in view of the judgment rendered by this Court in WPC No. 2577 of 2020 (M/s. Jai Ambey Roadlines Vs. South Eastern Coalfields Limited and Another), where this Court specifically held that 20% cannot be imposed as a matter of course and that loss has to be ascertained. 19. In that view of the matter, this petition is allowed so far as penalty is concerned and the respondents are left at liberty to take further steps in the matter of imposition of penalty, if so advised, in accordance with law.