Calcutta High Court
Pho Com Net Pvt Ltd And Anr vs The Office Of The Chief Electoral … on 20 April, 2026
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
APO/80/2025
WITH
WPO/509/2025
PHO COM NET PVT LTD AND ANR
VS
THE OFFICE OF THE CHIEF ELECTORAL OFFICER
GOVERNMENT OF WEST BENGAL
BEFORE: The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE APURBA SINHA RAY
For Appellant : Mr. Anirban Ray, Sr. Adv.
Mr. Sourav Ray, Adv.
Mr. V.V.V. Sastry, Adv.
For the Respondent : Mr. S.N. Mookherjee, Sr. Adv.
Mr. Suddhasatva Banerjee, Adv.
Mr. Anuran Samanta, Adv.
Mr. Suryaneel Das, Adv.
Mr. Dhruv Chadha, Adv.
Judgment on : 20.04.2026 Arijit Banerjee, J. :-
1. This appeal is directed against a judgement and order dated July 15, 2025,
passed by a learned Judge of this Court whereby the Appellants’ writ petition being
WPO 509 of 2025 was dismissed.
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2. The material facts of the case relevant for the present purpose are that an E-
Tender dated January 17, 2024, was floated by the office of the Chief Electoral
Officer, West Bengal (in short “the respondent”), for selection of reputed companies,
agencies and organisations to provide Webcasting solution and live monitoring of
poll-related activities in connection with the Lok Sabha election which was
scheduled to be held between April 17, 2024 and June 1,2024, in the State of West
Bengal.
3. The appellant company (in short “the appellant”) submitted its bid and
emerged as the successful tenderer. A work order dated April 13,2024, was issued
in favor of the appellant. The total contract value was Rs. 25,90,00,000.
Subsequently, an agreement was entered into by and between the appellant and
the respondent for the period April 17, 2024, to June 1, 2024.
4. Earnest Money Deposit (in short “EMD”) was paid in terms of the tender
documents. Security equivalent to 10 per cent of the bid value was also furnished
by the appellant in the form of irrevocable and unconditional Performance Bank
Guarantees in favor of the respondent. Two Bank Guarantees dated April 4, 2024
and April 10,2024, for the sums of Rs 1,91,00,000/- and Rs 68,00,000/-
respectively, were furnished.
Appellant’s submission
5. The appellant says that the entire work was successfully completed by it
under the supervision of the District Election Officers (DEOs). The deliverables
including technical support throughout the contract period, were provided by the
appellant.
6. After successful completion of the work, the appellant received certificates
issued and endorsed by the DEOs from the 23 districts involved.
7. By a letter dated May 4, 2024, the appellant requested the respondent to
expedite the process of refund of the EMD.
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8. The respondent sought clarifications through multiple letters in connection
with the Webcasting services provided by the appellant during the Lok Sabha
Election 2024. The appellant duly responded to such letters which the respondent
acknowledged. Thereafter, no queries / disputes were ever raised by the
respondent.
9. The appellant says that in the above factual background, it submitted its tax
invoices to the respondent for the contract value enclosing thereto the completion
certificates duly issued and endorsed by the DEOs of the concerned 23 districts.
10. Through several letters dated September 13, 2024, October 21, 2024, and
October 28, 2024, the appellant requested the respondent to refund the EMD and
release the bank guarantees on an early date.
11. By a communication dated December 30, 2024, the appellant was informed
that the contract price for a sum of Rs. 26,45,96,612/- was being released subject
to deduction of tax and deduction of a sum of Rs. 93,80,556/- as per
recommendation of the IT Steering Committee. The appellant received the payment
in its designated bank account on January 2, 2025.
12. The appellant says that the document dated December 30, 2024, was issued
by the Government of West Bengal after consideration of all alleged failures and /
or delays on the part of the appellant and after making deduction from the bills in
that connection. In other words, all complaints against the appellant culminated in
the final deduction from its bills as indicated in the document dated December 30,
2024.
13. It is contended that, the contract in question, therefore, stood discharged by
performance to the satisfaction of the respondent. The appellant received the
agreed payments but the respondent failed to release the security amount. Letters
dated January 16, 2025, April 28, 2025, May 14, 2025 and May 31, 2025, were
written by the appellant calling upon the respondent to release the EMD and the
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bank guarantees, but in vain. Such action of the State is vexed with mala fide and
is unfair and unbecoming of a State agency. The State is attempting to enrich itself
unjustly at the cost of the appellant by not refunding the EMD and/or by invoking
the performance bank guarantees.
14. A notice dated July 7, 2025, was received by the appellant whereby the
respondent threatened to forfeit the EMD, invoke the bank guarantees, and impose
appropriate penalties, including blacklisting, on the appellant.
15. Challenging the notice dated July 7, 2025, the appellant filed the instant
writ petition. Apart from praying that the said notice be quashed, a prayer was also
made for directing the respondent to refund the EMD of Rs. 10.00,000/- and
released the bank guarantees dated April 9, 2024, and April 10, 2024, for the sums
of Rs. 1.91 crore and Rs. 68 lakh respectively.
16. Learned Single Judge dismissed the writ petition. Hence this appeal at the
instance of the writ petitioners.
17. Before the learned Single Judge as also before us, the appellant argued as
follows:-
(a) Clause 3.21 of the EOI and Clause 2.16 of the contract between the
parties provide that payment will be made as mentioned in terms of the
agreement and will be paid on receipt of the bill on the basis of
satisfactory completion of the work within the given time frame duly
certified by the District Election Officers.
(b) Upon issuance of completion certificates by all the 23 District
Election Officers, processing of the invoices submitted by the appellant,
deduction of an amount of Rs. 93,80,556/- from the bill amount as per
recommendation of the IT Steering Committee and payment of the
contract value, the contract stood fully discharged by performance. The
respondent, having accepted performance and having released payment,
5cannot subsequently reopen a concluded contract without establishing a
legally sustainable breach.
(c) Clause 3.22 in the EOI (Security Deposit) as well as Clause 2.17 of
the subject contract provide that “in case of failure to execute the work
as per terms and conditions of the NIT/Work order, the security deposit
will be forfeited. Security deposit will also be forfeited in case the selected
agency fails to enter into agreement or refuses to work even after work is
offered on the basis of technical and financial evaluation criterion as per
provisions of the tender.”
(d) None of the above contingencies are attracted in this case. The
appellant successfully executed the work in terms of the NIT/Work
Order, duly certified by the competent authorities. Payment was released
after deduction of a sum of Rs. 93,80,556/- purportedly on account of
alleged failures and shortcomings on the part of the appellant. Eight
months after releasing payment, the appellant is further penalized by
sudden invocation of the bank guarantees in the total sum of Rs. 2.59
Crore. This is a case of the appellant suffering irretrievable injustice
calling for interference by the Court.
(e) The entire action of the respondent is without jurisdiction, the
forfeiture of EMD and invocation of the bank guarantees is also without
jurisdiction.
(f) The issuance of the show-cause notice dated July 7, 2025, discloses a
closed mind of the respondent. The notice smacks of pre-judgment. It is
obvious that issuance of the said notice is merely a pretence to try and
give legality to a decision already taken.
(g) The action of the respondent in issuing the show-cause notice dated
July 7, 2025, is arbitrary, whimsical, unreasonable and in violation of
6the principles of natural justice. The arbitration clause in the contract
between the parties does not bar the invocation of the writ jurisdiction.
(h) The respondent has sought to approbate and reprobate. Having
accepted performance, certified completion, deducted sums and released
payment, the respondent thereafter cannot mechanically invoke the
bank guarantees without quantifying loss or establishing breach. Such
conduct fails the fairness test under Article 14 of the Constitution.
(i) Existence of an alternative remedy is not a bar to the maintainability
of a writ petition. Further, the arbitration clause in this case would not
be an alternative efficacious remedy since the present action of the
respondent is riddled with unfairness and mala fide intent. Hence,
relegation to the alternative forum of Arbitral Tribunal would not and
cannot be an efficacious remedy for the appellant.
(j) The learned Judge wrongly held that there are disputed questions of
fact in this case. All controversies, if any, ended with the Government of
West Bengal issuing the document dated December 30, 2024. The
Government already deducted the sum of approximately Rs. 93 lakh
from the bills of the appellant. Having done so and having paid the
balance contract value to the appellant, the respondent cannot now
reopen the entire case by issuing the notice dated July 7, 2025. This is a
classic case, where, after completion and acceptance of the works,
allegations are being made pertaining to incidents prior to completion
certificates and memos for releasing payment being issued. The learned
Single Judge failed to appreciate the true import of the judgments relied
upon by the appellant.
18. Learned Advocate for the appellant relied on the following decisions: –
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(i) M/S. Techno Prints v. Chhattisgarh Textbook Corporation & Anr.
reported at (2025) 3 S.C.R. 208 : 2025 INSC 236.
(ii) Siemens Ltd v. State of Maharashtra & Ors. reported at (2006)
12 SCC 33.
(iii) M.P. Power Management Company Limited, Jabalpur v. Sky
Power Southeast Solar India Private Ltd. & Ors., reported at (2023)
2 SCC 703.
(iv) Subodh Kumar Singh Rathour v. Chief Executive Oficer & Ors.
reported at (2024) 15 SCC 461.
(v) Union of India and Anr. v. Vicco Laboratories, reported at (2007)
13 SCC 270.
(vi) Unitech Limited & Ors. v. Telangana State Industrial
Infrastructure Corporation (TSIC) & Ors., reported at (2021) 16 SCC
35.
(vii) M.S. Sanjay v. Indian Bank & Ors., reported at 2025 INSC 177.
(viii) Gujarat Maritime Board v. Larsen & Toubro Infrastructure
Development Projects Ltd. & Anr., reported at (2016) 10 SCC 46.
19. Appearing for the respondent, Mr. Mookherjee, learned Senior Advocate,
submitted as follows: –
(i) The order impugned was passed by the learned Single Judge in
exercise of discretion. The appellant has not demonstrated that such
exercise of discretion was arbitrary or unreasonable or perverse in any
manner.
(ii) In any event, a Court should not interfere with the issuance of a show
cause notice.
(iii) In the present case, the show cause notice dated July 7, 2025, has
not yet been replied to by the appellant. The respondent has not made
8up its mind as regards the liability of the appellant. The writ petition is
premature.
(iv) By issuance of the show cause notice, no right of the appellant has
been affected.
(v) The writ petition is not maintainable. Apart from the fact that a
contractual dispute is generally not entertained by a writ Court, the
present case involves disputed questions of fact for the adjudication of
which the writ Court is not an appropriate forum.
(vi) In the instant case, the conduct of the appellant is to be examined by
the respondent which can only be done after it submits its response to
the show cause notice.
(vii) The decision in the case of M/S. Techno Prints, (supra) is of no
assistance to the appellant since the said decision was rendered in the
peculiar facts of that case. The factual matrix in that case expanded over
a period of 8 months and the authority had issued 5 notices prior to
issuance of the show cause notice. The case concerned fulfilment of a
contract during the COVID period. The authority in that case gave up its
case of deliberate violation of tender conditions by the private party.
Relief was granted in that case as the Court came to a finding that the
decision of the respondent authority was a foregone conclusion.
(viii) The decision in the case of Siemens Ltd., (supra) also does not
advance the case of the appellant. In that case, the affidavit filed by the
respondent authority made it clear that the authority had made up its
mind and only thereafter had issued the show cause notice with a closed
mind. Hence relief was granted.
(ix) No order of injunction can be passed restraining invocation of a bank
guarantee by the Writ Court. In this connection reliance was placed on
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the decision of the Hon’ble Supreme Court in the case of Gujarat
Maritime Board v. Larsen and Toubro Infrastructure Development
Projects Ltd. & Anr., reported at (2016) 10 SCC 46. Para 9.
(x) The ends of justice would be served by allowing the appellant to
submit its reply to the show cause notice. The respondent will take its
decision after providing a hearing to the appellant. Should the
respondent decide to take action against the appellant after considering
the response and submissions of the appellant, while encashment of
earnest money deposit/ bank guarantees will be immediate, decision to
black list the appellant, if at all taken, will be kept in abeyance for a
period of 2 weeks.
20. The learned Single Judge, after noting the submissions made on behalf of
the respective parties, dismissed the writ petition with the following observations: –
“16. The impugned notice requesting the petitioners to show sufficient
reasons indicates many factual issues for which clarification has been
sought for from the petitioners. It is only after response is given to the
said notice that the authority will arrive at a conclusion whether to
forfeit the EMD and the bank guarantee and whether to impose any
penalty or not. As on date no decision has been taken by the authority
imposing any penalty or taking coercive step against the petitioners.
17. The dispute in question, admittedly, arises out of a contract entered
by and between the parties. Whether the authority could have issued a
notice to show reasons prior to taking any punitive action against the
petitioners is a matter to be decided upon interpretation of the terms and
conditions of the contract.
18. The Hon’ble Supreme Court in Vicco Laboratories (supra), inter
alia, laid down that normally, the writ Court should not interfere at the
10stage of issuance of show cause notice. Interference at the show cause
notice stage should be rare and not in a routine manner. Mere assertion
by the writ petitioner that the notice was without jurisdiction and/or
abuse of process of law would not suffice. It should be prima facie
established to be so. Where factual adjudication is necessary,
interference is ruled out. The Court also held that where show cause
notice is issued either without jurisdiction or in an abuse of process of
law, the Writ Court would not hesitate to interfere at the stage of
issuance of show cause notice.
19. In the instant case it does not appear that the authority acted
without jurisdiction. No case alleging abuse of the process of law has
been made out. The respondent authority is one of the parties to the
contract. The bank guarantee in favour of the respondent authority is
still active, and the respondent authority being the beneficiary may take
step to invoke and encash the same in accordance with law.
20. The petitioners assert that the action of the authority is arbitrary.
The aforesaid submission of the petitioners cannot be accepted by the
Court. Prima facie it does not appear that the authority acted arbitrarily.
Whether the authority could have acted in the manner in which it has
acted is required to be adjudicated by the competent forum which is
certainly not the Writ Court.
21. In Unitech Limited (supra) the Court reiterated that writs are
maintainable for asserting contractual rights against the State or its
instrumentalities. It was also held that presence of an arbitration clause
does not oust the jurisdiction under Article 226 in all cases and it needs
to be decided from case to case as to whether recourse to a public law
11remedy can justifiably be invoked. The Court held that the State and its
instrumentalities are not exempt to act fairly.
22. To decide as to whether the action of the authority is fair or not,
various factual aspects are required to be verified. There are several
disputed questions of facts and for adjudication of the same evidence
may also be required to be taken. Such factual aspects cannot be
conclusively decided by the Writ Court.
23. In Indian Oil Corporation. Ltd. and Ors v. Saumajit Roy
Chowdhury reported at 2025 SCC OnLine Cal 2197, the Hon’ble
Division Bench of this Court relied upon the exceptions carved out by
the Hon’ble Supreme Court in the judgment delivered in the matter of
Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai
reported in (1998) 8 SCC 1 and held that writ petition will not be
maintainable when the contractual agreement provides for an efficacious
alternate remedy.
24. In the case at hand the petitioners have entered into a contract with
the respondent authority and assert rights flowing from the said
contract. The authority has called for a response from the petitioners
with regard to certain issues. At this stage, it does not appear that any of
the fundamental rights of the petitioners have been infringed requiring
interference by the Writ Court.
25. In view of the discussions made hereinabove, the Court is not
inclined to exercise jurisdiction in the matter. The writ petition
accordingly fails and is hereby dismissed.
26. However, since the petitioners approached the Court immediately
after the notice to show cause was issued and the writ petition remained
pending till the last date within which a reply was to be given by the
12petitioners, accordingly, the Court directs the respondent authority to
permit the petitioners to submit their reply to the notice dated 7th July,
2025 within 21st July, 2025. If the petitioners file the reply within the
aforesaid extended time period, then the authority shall proceed to
consider the same. If no reply is filed, the authority shall proceed
accordingly.”
Court’s view
21. Before expressing our opinion, let us note the scope of the contract that was
entered into by and between the parties. The terms and conditions of the contract
were substantially the same as were mentioned in the notice inviting e-tender dated
January 17, 2024.
22. Clause 1.1 of the written contract captioned “Project Objectives” reads as
follows:-
“1.1 Project Objectives:
a) Through Expression of Interest (EOI)/ NIT vide No. NIT CEO
WB/2024/e-TENDER/001/ Web Casting Solution Dated
17.01.2024, the Chief Electoral Officer, West Bengal invites
proposals for “Provision of Webcasting solution” from reputed
companies/agencies/organizations who have proven experience in
providing successful large volume Web casting services indifferent
states across India. The Pho-Com-Net-Pvt Ltd, has been selected by
the e-Tender process and hereinafter referred to as the Selected
Agency.
The key objectives of this facility are enunciated below:
i) Live webcasting of polling activity from ALL polling stations.
ⅱ) Live content monitoring from browser interface from multiple
ends.
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iii) Recording of clear video and audio stream from webcasting in
server for subsequent retrieval and review.
b) Al based Intelligent Event analysis of video/audio streaming contents
obtained from webcasting for detection and feedback of defined events
associated with those PS which have certain need based criteria for
maximum outreach. Provision for auto selection of PS for which the Al
system detects anomaly based on defined events criteria.”
23. The scope of the project was delineated in Clause 1.2 of the contract which
reads as follows: –
“1.2 Scope of Project
The Selected Agency is required to webcast day long live video on the day of
elections in connection with the General Election to the House of People,
2024 from polling stations in West Bengal i.e. from multiple end points and
preserve recorded data stream in appropriate storage facilities with copies
at multiple locations within India, as per relevant Information Technology
Laws & Guidelines laid down by the Government of India, to mitigate data
loss and prevent single point of failure. Onstorage -media for subsequent
viewing by the appropriate authority. The deliverables by the selected
agency are as defined below:
1) 18400 IP Cameras with WiFi Modem (if required), rechargeable
battery, AC power cord and all accessories including camera base,
chargers, converters, transducers etc as may be required.
2) Mobile 3G/4G internet SIM having optimum signal strength.
3) Server for the purpose of storing of web stream and hosting of
monitoring application and recording of video and audio stream.
4) Developing and providing browser based monitoring application with
feature for assignment of physical location to IP Camera.
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5) Installation and de-installation of IP Camera including setting of date
and time as per IST at the webcasting location, packing and unpacking
for transportation, charging of battery (where required).
6) Providing unedited backup of webcast in physical media immediately
after actual webcast to the District Election Officer (DEO). In addition
backup of all unedited recorded streams to be handed over to CEO, West
Bengal in local server before sign off.
7) Technical support services for entire duration including one
supervisor for every ten webcasting locations/for every Sector on each
date of webcast.
8) Training of users for monitoring web cast stream as may be required.
9) Providing Training Manual/ User Manual.
10) The Selected Agency should provide Solution of Manpower, camera,
Cloud server, and one Ul for entire state.
11) Al based Intelligent Event analysis of video/audio streaming contents
obtained from webcasting for detection and feedback of defined events
associated with those PS which have certain need based criteria for
maximum outreach. Provision for auto selection of PS for which the Al
system detects anomaly based on defined events criteria.
12) The agency must comply with the Cyber rule of Cloud of Government
Department and that all the server of cloud and DR site and resources
shall be within India.
Deliverables from the end of Chief Electoral Officer, West Bengal/District
Election Officer and team:
1. Providing transport for materials and manpower to designated
webcasting locations from the district/sub-divisional head quarter.
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2. Providing one exclusive electric connection for operation of
Camera etc.”
24. Clause 1.3 of the contract stipulated the functional liability of the selected
agency. That clause reads as follows: –
“1.3 Functional Liability for the selected Agency:
The Functional scope given below is indicative. The selected agency will
provide webcast services according to, but not limited to the broad scope
given below:
1. Providing Web casting of Poll day events inside polling station from
separate IP cameras to be installed in selected Polling stations for a day
in each phase of General Election to House of People, 2024 in the State
of West Bengal.
2. Total duration of Webcasting will be in 7 phases and multiple
locations during the entire election extending over a period of 45 days.
One IP Camera may be deployed multiple times depending upon the
number of phases in separate and distinct locations.
3. Cost of resources and manpower to the districts having elections in
the first phase, to be intimated by Chief Electoral Officer, West Bengal,
will have to be borne by the selected Agency. Thereafter transportation
cost of both resources and manpower, if any, from one district to another
after completion of each phase will be borne by the concerned District
Election Officers (DEOs).
4. Undertake trial to be conducted two day prior to actual webcast from
designated location with actual device configuration after completion of
installation. Trail run will be considered successful, if successful live
webcast with video and audio output from the polling station can be
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viewed by the concerned District Election Officer for a period of 1 (one)
continuous hour uninterruptedly.
5. Undertake installation including appropriately mounting the IP
Camera and commissioning including configuration and implementation
of the web based audio & video streaming software in the Cloud Server
with adequate capacity (to be procured by the Selected Agency).
a. The web camera should be so placed to cover the maximum
possible area in polling station without hampering the secrecy of
vote.
b. The camera should be placed to receive light optimally.
6. Undertake mapping of IP Cameras with District – Assembly
Constituency No. & Name and Polling Station No. & Name in the
monitoring panel to ensure easy retrieval. Such mapping to be provided
in the browser setup itself.
7. The browser application for monitoring the webcast shall provide live
video streaming with audio (4K) and Video (360P) with zero inbuilt
latency. Application to be password protected to view district wise,
parliamentary constituency/assembly constituency wise and polling
station wise videos which are streamed from the polling stations. The
software shall provide for secure data streaming over the internet, with
viewing access only to the Election Commission of India (ECI), Chief
Electoral Officer (CEO), District Election Officer (DEO), Returning Officer
(RO) and such other Offices as authorized by the ECI/CEO/DEO/RO
with user id and password. The data streaming shall in no case be
accessible for viewing by unauthorized person over the internet The
Commission shall also provided with the link to view live strumming on
need based.
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8. The browser solution should be able to display multiple streams
happening at the same time in at least 6 PIP mode for viewing in the
Offices of the CEO,DEOS & ROs and ECI by authorized users. The web
application must run on all currently available browsers.
9. Browser application should have real time MIS report on uptime of
webcast stream front each location with date and time stamp. Real time
log of webcast from each camera to be maintained and provided to
District Election Officer/Returning Officer for records. The Selected
Agency shall develop the application software such that it monitors the
data feed from each Polling Station on the polling day based on which
the performance status of the data feed, and the live streaming at the
offices of the RO/DBO/CEO, will be arrived on the Service Levels
provided, to levy penalties as indicated under penalty clause of NIT CEO
WB/2024/e-TENDER/001/ Web Casting Solution Dated 17.01.2024.
This software should be vetted from CEO, WB a week before deployment.
The Selected Agency shall provide access to dashboard view for more
than one locations, i.e. RO, DEO, CEO and ECI HỌ which should reflect
point of failures, network status, recording status and downtime status.
Network quality indicator on each camera should be made available in
the User view mode and this should be computed and displayed
automatically.
10. Establishment of a centralized Help Desk at the Office of the Chief
Electoral Officer, West Bengal headed by competent senior Technical
personnel to effectively manage and fix the complaints/issues coming up
on the day of Poll. In addition, one competent technical personnel to be
provided to District Election Officer from one day prior to installation
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and up to the point of completion of loading for transportation to next
district.
11. The software shall be able to record video in H.264 compression or
other equivalent open formats which can be read by a variety of open
source software solution that can be opened in popular browsers.
12. Web cast shall be able to record at least 4 kbps audio in a good
quality. This may be either encoded within the video stream or recorded
as a separate stream.
13. Further, it must be insured that in the framework used for
webcasting, advertisement of any kind is not displayed.
14. The browser application provided should have been developed by the
Selected Agency and should not be the free software or shareware
available on the internet. During the recording, the user should be able
to see the actual video that is being recorded without any inbuilt delay.
15. The software should be able to offer graceful degradation of the
recording quality in case there is deterioration in the network speed.
This should be automated without any user inputs to be required on this
i.e. there should be inbuilt network access negotiation.
16. The necessary load testing should also be carried out simulating real
time requirements, so that web streaming event meets the demand and
goes through smoothly with good performance.
17. Software provided shall be able to perform query of the video and
audio content of the storage. The software shall be able to burn CD and
DVD disks on Windows based computers and be able to query the
content available based on multiple parameters as Data, Time, Location,
etc.
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18. The data should in no point be hosted or stored outside India and
Selected Agency will not access the data unless authorized by the
CEO/DEO.
19. The list of polling station locations from where live web casting has
to be undertaken, will be informed in writing to the authorized
representative of the Selected Agency at least 3 days prior to the day of
actual webcast by the concerned District Election Officer.
20. The web camera should have facility of local recording, with
minimum of 3 Megapixel camera resolution. The camera should have
night vision capability, wide angle with 30/ 170 degrees coverage. The
camera should be having capability of 10x zooming. The camera should
have minimum illumination of .05 lux.
21. The camera should support 16-4096 Kbps code rate, support
constant bit rate/ variable frame rate of up to 30 fps. Image Control:
Backlight compression, automatic white balance, 3D digital noise
reduction. The display resolution should be 1920 x1080.
22. IP Camera shall have Pan, Tilt and Zoom Back Control and IR for
lowlight/ no light casting. Viewing software may have optional alert
based upon Intelligent face detection and audio detection algorithm that
can be set in the monitoring application.
23. The recorded material shall be the exclusive property of the CEO and
neither the Selected Agency nor any other party will be entitled to utilize
the same.
24. The ordered items shall be delivered, installed and commissioned
within the time-frame mentioned in the Work Order. The Selected
Agency after obtaining the Consignee address shall visit the sites to
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assess the readiness of the site for installation. A report in this respect
shall be submitted to Client.
25. It should be kept in mind that the requirement of total number of IP
cameras may vary depending upon the actual requirement approved by
the Chief Electoral Officer, West Bengal. In case of change in the number
of cameras, the payment will be made on pro-rata basis of the accepted
bid value.
26. Al based Intelligent Event analysis of video/audio streaming contents
obtained from webcasting for detection and feedback of defined events
associated with those PS which have certain need based criteria for
maximum outreach. Provision for auto selection of PS for which the AI
system detects anomaly based on defined events criteria.
27. The agency must comply the Cyber rule of Cloud of Government
Department and that all the server of cloud and DR site and resources
shall be within India.”
25. Clause 1.4 of the contract stipulated the deliverables by the Agency for
implementation of webcasting from the polling stations. That clause reads as
follows:-
“1.4 Deliverables by the Agency for Implementation of Web Casting
from Polling Station for General Election to the House of People,
2024
a) IP Cameras with WiFi Modem (if required), rechargeable battery, AC
power cord and all accessories including camera base, chargers,
converters, transducers etc. as may be required. Number of IP
Cameras will be detailed in the work order issued from this Office.
b) Mobile 3G/4G Internet SIM having optimum signal strength.
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c) Server and Cloud storage for the purpose of storing of web stream
and hosting of monitoring application and recording of video and
audio stream.
d) Developing and providing browser based monitoring application
with feature for assignment of physical location to IP Camera.
e) Installation and de-installation of IP Camera including setting of
date and time as per IST at the webcasting location, packing and
unpacking for transportation, charging of battery (where required).
f) Providing unedited backup from each location with date and time
stamp of webcast in physical media after actual webcast to the
District Election Officer. In addition backup of all unedited recorded
streams to be handed over to CEO, West Bengal.
g) Technical support services for entire duration including one
supervisor (in addition to one District Nodal Person) for every ten
webcasting location on each date of webcast.
h) Nodal Person of the agency will maintain a close liaison with the
District Nodal Officer for Web Casting of the district and extend
solution for any technical problem faced at district level.
i) There will be a help desk of the agency at the State Level with a
technical person to assist in case of any technical problem faced by
the district.
j) The agency should ensure that the manpower deployed by them are
above 18 years of age and should not have any direct political
allegiance.
k) Training of users for monitoring web cast stream.
l) Providing Training Manual/ User Manual as required.
22
m) The browser application for monitoring the webcast shall provide
live video streaming with audio (4K) and Video (360P) with zero inbuilt
latency. Application to be password protected to view District wise
videos which are streamed from the designated venues. The software
shall provide for secure data streaming over the internet, with viewing
access only to the CEO/DEO, and such other Offices as authorized by
the CEO/DEO with user id and password. The data streaming shall in
no case be accessible for viewing by unauthorized person over the
internet.”
26. In the show-cause notice dated July 7, 2025, the respondent alleged certain
deficiencies in the service rendered by the appellant and also deficiencies in the
equipment/instrument that the appellant was required to supply for
implementation of the contract. For the sake of convenience, the notice is
reproduced hereunder:-
"No.2292 - Home (Elec) Dated the 7th
July,2025
To,
Mr. Tauqeer Eram
Sr. Manager, Business Development
Pho Com Net Pvt. Ltd
Sub: Seeking clarification relating to webcasting in Parliament General
Election, 2024 and release of EMD/Bank Guarantee.
Dear Sir,
I am directed to state that you had been assigned the work of
live streaming/webcasting for more than 80,000 (eighty thousand)
polling stations in West Bengal from 6 am till the end of poll during
the Parliament General elections 2024, which were conducted in
seven phases from 19.04.2024 01.06.2024.
23
2. I am further directed to remind you that vide letter No. 2931-
Home (Elec) dated 6th May, 2024, clarification was sought regarding
the details of cameras along with the time frame during which they
had become offline during 1 and 2 phase of the election (copy
enclosed)
3. You were requested for clarification, regarding cameras along
with timeframes which went offline in the 3 rd phase of the said
elections vide this office memo. No. 3061-Home (Elec) dated 10
May, 2024. (copy enclosed)
4. You were requested to provide complete recording of webcasting
footage of certain polling stations where elections were held on 25th
May, 2024 and no recording was made available for them after 12
noon vide this office no. 3720- Home (Elec) dated 30th May. 2024.
(copy enclosed)
5. Despite the issue of advisory from this end vide letter No. 3755
Home (Elec) 31.05.2024, we were compelled to send you an e-mail
on 01.06.2024 (date of polling of 7 th Phase) seeking clarification as
to why more than 1300 booths were offline at 08:30 AM and so
many booths were showing offline after 03:00 PM. (copy enclosed)
6. In none of the above cases you supplied the list of cameras along
with the timeframe during which they went offline or provided the
complete footage as was repeatedly requested for. Your contention
that the cameras had gone off because of the network service
providers’ inability to make the network available could not be
substantiated rather pending software upgrade was a major reason
for this fault.
24
7. Vide email sent at 07:46 PM 01.06.2024 you stated that
substances like Vaseline, Fevikwik or toothpaste had been applied
on camera lenses and you were facing difficulties, especially in
Falta from elements that might uninstall or damage cameras. (copy
enclosed)
8. It is absolutely clear that your representatives and technicians
never visited the polling booths to ensure the continuity of
webcasting which is a crucial component of the ECI mandated non-
force multipliers for maintaining vigil over the polling exercises.
Your such explanations are nothing but an after thought exercise
since you made no efforts to contact the RO/DEO/O/o CEO during
the polls and did not file any FIR against the alleged miscreants.
9. Despite repeated requests for ‘No Hit’ data, no report has been
submitted by you till date.
10. You were requested for providing the cameras to be used for
validation by TEC eastern region, DOT, but you willfully disobeyed
the direction.
11. Cameras used were only supporting IOT sim which created lots
of problems during recharge exhaust period.
12. Very few of your representatives were present for monitoring in
the control room and you have failed to provide us a list of persons
deployed in the CEO Office/DEO Office/Other Offices for
monitoring the webcasting feed. No Training material was provided
for training of requisite stall to be undertaken by you.
13. In all the seven phases it was found out that on an average
4500-5000 cameras were switched off for continuous time frame of
2 to 4.30 hours spanning over different time ranges of the day. 2 nd
25
phase of the poll showed 2 hours of continuous interruption and 7 th
phase (being worst) showed 4.30 hours of continuous interruptions.
14. Worst performing camera details could not be received live in
the system and could only be obtained offline when live streaming
was over.
15. Cameras were showing poor temperature sensitivity in many
locations due to improper installations, thereby created lot of
interruptions.
16. Due to non-panning facility of the cameras, it could not be
rotated to the desired object when the situation demanded.
In the above context, I am further directed to request you to
show sufficient reasons why the EMD and the Bank guarantee
should not be forfeited and appropriate penalties including black
listing be imposed on you.
Your reply should reach this office by 4 pm on 15 th July, 2025
positively, failing which further action will be taken ex parte.
Yours faithfully,
Additional Chief Electoral Officer
West Bengal”
27. We have set out certain clauses of the contract hereinabove to indicate the
obligations of the appellant under the contract. Diverse factual issues pertaining to
alleged failure of the appellant to discharge its contractual obligations have been
raised in the show-cause notice which cannot be gone into by the Writ Court. The
proper course of action would be for the appellant to reply to the show cause notice
dealing with the allegations made therein.
26
28. It is established law that generally the court does not interfere with a show
cause notice. The Court leaves the noticee to respond to the show cause notice.
Exceptionally, however, if the show-cause notice is issued by an authority having
no jurisdiction to do so or if the same is otherwise an abuse of process, the Court
may interfere at the very inception.
29. In the present case, we agree with the learned Single Judge that the
impugned notice cannot be said to be without jurisdiction nor can be said to be an
abuse of process. It is urged on behalf of the appellant that the respondent had
issued the notice with closed mind. In other words, the show cause notice is only
an eye wash and the respondent has already made up its mind to penalize the
appellant. We however do not find any material on record to suggest that the
respondent has already pre-judged the issue. A mere apprehension of the appellant
that penalizing it is a foregone conclusion on the part of the respondent, is not
enough. We find no tangible basis for such apprehension.
30. It is true that even contractual disputes between the State or an authority
within the meaning of Article 12 of the Constitution on the one hand and a private
party on the other, can be entertained by the Writ Court. There is no bar in law in
that regard. However, if the dispute is of a factual nature, the Writ Court will do
well to stay away from it. The Writ Court is not an appropriate or convenient forum
to decide factual disputes which can be decided only upon evidence being adduced
through examination of witnesses or otherwise.
31. Similarly, the presence of an arbitration clause in a contract between the
Government and a private party does not preclude the Writ Court from entertaining
disputes arising out of or in relation to such contract. In other words, there being
an arbitration clause in the concerned contract, does not act as a bar to the Writ
Court entertaining a dispute pertaining to such contract. However, if resolution of
such dispute can only be done upon evidence being adduced, it may be prudent for
27the Writ Court not to entertain the writ petition and relegate the parties a civil
court or to the chosen forum for dispute resolution, i.e., arbitration in the present
case.
32. In the present case, the primary reason for the learned Single Judge to
dismiss the writ petition was that factual disputes are involved. It is not on the
basis of existence of an arbitration clause or because the disputes arise from a
contract that the learned Judge dismissed the writ petition.
33. The main argument advanced by the appellant is that the very fact that its
bills were paid would establish that the respondent was satisfied with the
performance of the contract by the appellant. Otherwise, the bills would have been
withheld. Having cleared the bills and the competent authority having issued
certificates to the effect that the appellant “successfully completed the supply
installation, commissioning and successful implementation of online webcasting
services”, the respondent cannot reopen the issue.
While there may be some apparent logic in this argument, it is not so forceful
as to persuade us to quash the show cause notice at the very outset. The appellant
will be at liberty to urge all points, including this point, in its reply to the show
cause notice. It is possible that before clearing the bills of the appellant and before
issuing the completion certificates, it escaped the notice of the respondent
authorities that there were deficiencies in performance of the contract by the
appellant. It is possible that such deficiencies came to their notice or knowledge
after paying the bills of the appellant. Hence, we are not minded to interfere with
the show cause notice at this stage. We repeat, we do not see any reason to
conclude that the show cause notice in question is without jurisdiction or is an
abuse of process or has been issued solely to harass the appellant.
34. In so far as the prayer in the writ petition for restraining invocation of the
bank guarantees is concerned, the guarantees being irrevocable and unconditional
28in nature and since the bank guarantees constitute independent contracts between
the issuing bank and the respondent, we are not inclined to interfere with the
same, particularly in the writ jurisdiction.
35. In this connection we may note the observations at paragraph 9 of the
decision in the case of Gujrat Maritime Board v. Larsen & Toubro
Infrastructure Development Projects Ltd. & Anr., Supra. which read as follows:
“9. Unfortunately, the High Court went wrong both in its analysis of facts
and approach on law. A cursory reading of LoI would clearly show that it is
not a case of forfeiture of security deposit “… if the contract had frustrated
on account of impossibility…” but invocation of the performance bank
guarantee. On law, the High Court ought to have noticed that the bank
guarantee is an independent contract between the guarantor-bank and the
guarantee-appellant. The guarantee is unconditional. No doubt, the
performance guarantee is against the breach by the lead promoter, viz., the
first respondent. But between the bank and the appellant, the specific
condition incorporated in the bank guarantee is that the decision of the
appellant as to the breach is binding on the bank. The justifiability of the
decision is a different matter between the appellant and the first respondent
and it is not for the High Court in a proceeding under Article 226 of the
Constitution of India to go into that question since several disputed
questions of fact are involved.”
36. Let us now advert to the decisions cited by learned Advocate for the
appellant:-
(i) M/S. Techno Prints v. Chhattisgarh Textbook Corporation & Anr.,
Supra. In that case, after conducting a tender process a contract for
printing of books was awarded to the private party who was the
appellant before the Supreme Court. A show cause notice was issued by
29the respondent corporation calling upon the contractor firm to show
cause as to why it should not be black listed for a period of three years
and the earnest money deposit should not be forfeited due to default in
fulfilling contractual terms, thereby causing loss to the respondent
corporation. The show cause notice was challenged by the contractor by
way of a writ petition. The learned Single Judge dismissed the writ
petition. The contractor’s appeal to the Division Bench was also
dismissed. The matter having reached the Supreme Court, it was held
that ordinarily a writ Court should not entertain a petition seeking to
challenge a show cause notice unless the Court is convinced that the
same has been issued by an authority having no jurisdiction or the same
is tainted with mala fides. The Supreme Court held that the nature of
the breach of contractual terms on the part of the contractor was not
such as to justify issuance of the show-cause notice. “In the peculiar
facts of this case”, the Supreme Court concluded that asking the
contractor / appellant to file reply to the show cause notice will be an
empty formality. The show cause notice was set aside permitting the
respondent corporation to forfeit the earnest money deposit of Rs. 5
Lakh.
In our opinion, the facts of that case were completely different. In the
peculiar facts of that case the Hon’ble Supreme Court found that the
Corporation had issued the show cause notice with pre-determined mind
and also that its proposal to blacklist the contractor was unreasonable
given the nature of breach on the part of the contractor. Accordingly, the
show cause notice was set aside. We are of the view that in the present
case the show cause notice does not suffer from the vices that the
Supreme Court found to exist in the aforesaid case.
30
(ii) Siemens Ltd v. State of Maharashtra & Ors., Supra. A similar
principle of law was laid down in this case. The Supreme Court held that
although ordinarily a writ court may not exercise its discretionary
jurisdiction in entertaining a writ petition questioning a notice to show
cause unless the same, inter alia, appears to be without jurisdiction, the
question has to be considered from a different angle when a notice is
issued with pre-meditation. In such a case a writ petition would be
maintainable. In such an event, even if the Court directs the statutory
authority to hear the matter afresh, ordinarily such hearing would not
yield any fruitful purpose. In the facts of that case, the Supreme Court
found that the respondent authority had clearly made up its mind as
regards the liability of the appellant company even prior to issuance of
the show cause notice. Hence, the Court held that a writ petition was
maintainable.
This principle of law is well established. However, in our opinion, it
has no manner of application to the facts of the present case. It cannot
be said that the show cause notice issued in this case is by an authority
having no jurisdiction to do so or has been issued with a closed mind.
(iii) M.P. Power Management Company Limited, Jabalpur v. Sky
Power Southeast Solar India Private Ltd. & Ors., Supra. This
decision has been included in the written notes of argument but was not
cited in the course of hearing. Hence we refrain from dealing with this
decision.
(iv) Subodh Kumar Singh Rathour v. Chief Executive Oficer & Ors.,
Supra. This decision also has been included in the written notes of
argument but was not cited in the course of hearing. Hence we refrain
from dealing with this decision.
31
(v) Union of India and Anr. v. Vicco Laboratories, Supra. Paragraphs
31 and 32 of the reported judgment in this case were relied upon. It was
held by the Hon’ble Supreme Court that abstinence from interference at
the stage of issuance of show cause notice in order to relegate the parties
to the proceedings before the authorities concerned is the normal rule.
However, such rule is not without exceptions. Where a show cause
notice is issued either without jurisdiction or in an abuse of process of
law, in that case, the writ court should not hesitate to interfere even at
the stage of issuance of show cause notice. However, such interference
should be rare and not in a routine manner. Mere assertion by the writ
petitioner that the notice was without jurisdiction and / or abuse of
process of law would not suffice. It should be prima facie established to
be so. Where factual adjudication would be necessary, interference is
ruled out. (Emphasis is mine.)
Again, this is an established principle of law. However, as we have
already opined, the present show cause notice in our view, is neither
without jurisdiction nor has been issued in abuse of process of law.
Further, factual adjudication is necessary in this case.
(vi) Unitech Limited & Ors. v. Telangana State Industrial
Infrastructure Corporation (TSIC) & Ors., (Supra). This case was
relied upon in support of the following propositions:- (a) In an
appropriate case a writ petition against a State or an instrumentality of a
State arising out of a contractual obligation is maintainable. (b) Merely
because some disputed question of fact arises for consideration, the
same cannot be a ground to refuse to entertain a writ petition in all
cases as a matter of rule. (c) The plenary power under Article 226 of the
Constitution must be used with circumspection when other remedies
32
have been provided by the contract. But as a statement of principle, the
jurisdiction under Article 226 is not excluded in contractual matters.
The presence of an arbitration clause in a contract between a state
instrumentality and a private party does not act as an absolute bar to
availing remedies under Article 226. (d) In determining as to whether
jurisdiction should be exercised in a contractual dispute the Court must
eschew disputed questions of fact which would depend upon an
evidentiary determination requiring a trial. (Emphasis is mine) However,
the jurisdiction under Article 226 cannot be ousted only on the basis
that the dispute pertains to the contractual arena. This is for the reason
that the State and its instrumentalities are not exempt from the duty to
act fairly merely because in their business dealings they have entered
into the realm of contract. Similarly the presence of an arbitration clause
does not oust the jurisdiction under Article 226 in all cases though, it
needs to be decided from case to case as to whether recourse to a public
law remedy is justified.
Again, these propositions of law are unexceptionable and indeed binding
on us. However, the said decision does not advance the appellant’s case
to any extent.
(vii) M.S. Sanjay v. Indian Bank & Ors., Supra. This case was relied
upon in support of the proposition that the writ court, for the ends of
justice can mould the relief prayed for in the writ petition. In the present
case, the Court should have directed refund of the bank guarantee
amount to the appellant since invocation of the bank guarantee was not
justified.
As a general principle of law, no doubt the Writ Court can mould the
reliefs prayed for and pass appropriate orders. However, as discussed
33
hereinbefore, this is not a case where invocation of the bank guarantees
should be interdicted, particularly in the writ jurisdiction.
37. We therefore do not find any infirmity in the judgment and order under
appeal. The learned Single Judge has duly recorded the facts of the case and has
applied the correct law in dismissing the writ petition. It is a well-considered and
well-reasoned judgment which does not warrant interference.
38. The appeal therefore stands dismissed. The appellant will be at liberty to file
its reply to the show cause notice dated July 7, 2025, within a fortnight from date.
In the event the same is done, the competent authority shall take a decision on the
show cause notice, in accordance with law, after granting an opportunity of hearing
to the appellant. Being a public authority, we hope and trust that the competent
authority shall decide the issues involved, fairly and in an impartial manner,
without any pre-conceived notion, observing the principles of natural justice. In the
event any adverse decision is taken by the competent authority, no effect be given
thereto for a period of 2 weeks from the date of the decision so that the appellant
gets a window to challenge such decision, if so advised, before the appropriate
forum, in accordance with law.
39. In the event the appellant does not submit its reply to the show-cause notice
within the time period indicated above or there is no interdiction by a higher forum,
the respondent will be at liberty to proceed with the matter on the basis of the
show-cause notice, in accordance with law.
40. APO/80/2025 is disposed of accordingly.
41. Urgent Photostat certified copies of this judgment and order, if applied for,
be supplied to the parties on compliance of all necessary formalities.
I agree.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)