Dharitree Enterprises v. Odisha State Warehousing Corporation
2017-08-24
B.R.SARANGI, VINEET SARAN
body2017
DigiLaw.ai
JUDGMENT : DR. B.R.SARANGI, J. The Odisha State Warehousing Corporation, Bhubaneswar (OSWC), by notification dated 01.12.2016, invited online tenders through e-tender portal from the interested parties for appointment of regular handling and transporting contractors for handling of foodgrains of different depositors in the warehouses of the OSWC for a period of two years. The tender documents contained detailed terms and conditions, and the last date and time of online submission of bid was 26.12.2016 up to 5.00 PM. 2. Pursuant to the above notification, petitioner submitted its bid in respect of 8 number of warehouse locations vide serial no.12 to 18 in Bhawanipatna Zone and serial no.9 in Berhampur Zone, out of total number of 29 Zones advertised. On 02.02.2017, the technical bids of the tenderers qualified/disqualified in technical bids, as decided by the tender committee in its meeting held on 31.01.2017 and approved by the Managing Director, OSWC, was notified. The petitioner, who was a bidder in respect of Nayagarh (Internal) as mentioned in serial no.9, as well as in respect of locations at Junagarh (Internal), Junagarh (RH Kesinga), Kesinga (Internal and RH), Jaipatna (Internal), Jaipatna (RH Kesinga), Dharmagarh (Internal), Dharmagarh (RH Kesinga) and Nayagarh (Internal) as mentioned in serial nos.12 to 18, was disqualified due to non-furnishing of EPF code number. Hence this application. 3. Mr. P.K. Ray, learned counsel appearing for the petitioner strenuously urged before this Court that the petitioner submitted the letter dated 25.09.2013 issued by the Assistant Provident Fund Commissioner, SRO, Berhampur to the Enforcement Officer, Rayagarh wherein the EPF Code has been prescribed, but the authority illegally disqualified the petitioner on the ground of non-supply of EPF Code. Therefore, he states that disqualification of the petitioner due to non-filing of EPF Code cannot sustain in the eye of law. It is further contended that in view of the communication made on 09.02.2017 whereby the petitioner has been provided with 15 digit number of EPF Code, referring to the allotted EPF Code No. OR-11201 in the year 2013, the opposite party could not have disqualified the petitioner for non-filing of EPF code number. 4. Er.
It is further contended that in view of the communication made on 09.02.2017 whereby the petitioner has been provided with 15 digit number of EPF Code, referring to the allotted EPF Code No. OR-11201 in the year 2013, the opposite party could not have disqualified the petitioner for non-filing of EPF code number. 4. Er. N.K. Mohanty, learned counsel appearing for the OSWC argued with vehemence that the tender documents containing detailed terms and conditions, which were made available in the website of the Corporation, clearly stipulated the details of documents required in “Technical Bid” where in Clause-7 it is specifically stated “copy of EPF code number”. Since the petitioner did not furnish the “copy of EPF code number”, which is an essential requirement for technical bid, the authority is well justified in disqualifying the petitioner’s technical bid. It is further contended that the reliance so placed on Annexure-3, the letter dated 25.09.2013, which is stated to have been submitted for consideration of the technical bid, cannot be said to be the document issued by the authority indicating EPF Code number for the purpose of consideration of bid submitted by the petitioner. It is also contended that in Misc. Case No.3444 of 2017 filed by the opposite party for vacation of interim order dated 14.02.2017, the documents at Annexure-A/1 series which have been provided by the EPF Commissioner to other similarly situated bidders wherein EPF Code numbers have been prescribed, no such document has been filed by the petitioner save and except the letter dated 25.09.2013 which is filed under Annexure-3 to the writ petition and that also does not indicate the coverage period and as such the same cannot be taken into consideration by the authority while considering the technical bid of the petitioner. Therefore, no illegality or irregularity can be said to have been committed by the authority in rejecting the technical bid of the petitioner. 5. This Court heard learned counsel for the parties and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. 6.
5. This Court heard learned counsel for the parties and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. 6. Undisputedly, OSWC issued advertisement inviting e-tender on 01.12.2016 for appointment of regular handling and transporting contractors for handling of foodgrains in various zones and the petitioner had participated in respect of 8 locations as mentioned in serial no.9 in Berhampur Zone, and serial nos.12 to 18 in Bhawanipatna Zone, out of total number of 29 locations of different zones. The e-tender contained two bids system and interested parties were to submit their tenders for appointment of regular handling and transporting contractors for handling and transportation of foodgrains stock of different depositors in the warehouses for a period of two years, extendable by a further three months at the discretion of the Corporation. The tender documents were available in the portal from 11.00 AM of 05.12.2016 to 5.00 PM of 26.12.2016. The last date and time of submission of bid was 26.12.2016 up to 5.00 PM. The submission of original demand draft towards tender paper cost and EMD (Earnest Money Deposit) was up to 3.00 PM of 27.12.2016. The date and time of online opening of bid was 27.12.2016 at 3.30 PM. The online opening of price bid was to be intimated later on. The interested parties were to purchase tender paper on deposit of Rs.525/-for each location. The details of the documents required in technical bid had also been mentioned where clause-7 required for furnishing of “copy of the EPF code number”. It was also clarified that the technical bid was to be opened online in the office of the OSWC at the scheduled date and time indicated in the notice inviting tender. The tenderer would be at liberty to be present either in person or through an authorized representative at the time of opening of the tender bid with bid acknowledgement receipt or they could view the bid opening even online at their remote end. 7.
The tenderer would be at liberty to be present either in person or through an authorized representative at the time of opening of the tender bid with bid acknowledgement receipt or they could view the bid opening even online at their remote end. 7. In compliance of the conditions, the petitioner, who had applied for 8 locations from the Bhawanipatna Zone and 1 location from Berhampur Zone, had furnished, in support of EPF code number, the letter dated 25.09.2013 in Annexure-3 issued by the Assistant Provident Fund Commissioner, SRO, Berhampur to the Enforcement Officer, Rayagada. On perusal of the said letter, it appears that the letter has been addressed by the Assistant Provident Fund Commissioner, SRO, Berhampur to the Enforcement Officer, Rayagada which reads thus: “Sri D.K. Dalai, Enforcement Officer Rayagada may please find enclosed herewith a copy of coverage memo issued to Ms. Dharitree Enterprises, At/P.O.-Kesinga, Kalahandi 766012 ,OR/11201 applying under EPF & MP Act’1952 with effect from . In accordance with the Central Office direction contained in the Letter No Compliance-2001 / Circular E-P44946 dated 31.8.2000, the Enforcement Officer is advised to visit the establishment within a month with a view to educate and guide the employer in filling the initial returns properly. The Enforcement Officer should also find out whether the establishment is coverable from the date earlier than the date of present coverage by examining the post records like Cash Book, Wage Payment Register, Attendance Register, Ledger, Voucher, Balance Sheet, Work Order received from various department Organisation and Certificate issued by the different statutory authority to justify the date of set up and engagement of employees. The employees’ strength and up to date compliance position is also required to be checked thoroughly. While submitting his report he should specifically mention the document verified by him and to furnish the copies of the balance sheet and other documentary evidence to support the date of set up and employees’ strength. Further, he is directed to submit the nomination in Form No. 2 (R) in respect of all the employees and to educate the employer for timely reporting of compliance and submission of statutory returns.” Vide memo no. 3529 dated 25.09.2013, copy of which has been addressed to the petitioner, it has been stated as follows: “To Sh.
Further, he is directed to submit the nomination in Form No. 2 (R) in respect of all the employees and to educate the employer for timely reporting of compliance and submission of statutory returns.” Vide memo no. 3529 dated 25.09.2013, copy of which has been addressed to the petitioner, it has been stated as follows: “To Sh. D.K. Dalai, E.O., Rayagada Memo No. 3529 Date 25.9.13 Copy to M/s. Dharitree Enterprises, At/P.O.-Kesinga Kalahandi -766012 for information with a request to extend the cooperation in submitting the records documents as may be called for by the Enforcement Officer during the time of his inspection in order to justify the date of set up and engagement of employees as has been furnished in their coverage proposal for allotment of Code Number to this office. Now, Employer E-Sewa Portal has already been launched by the Employees Provident Fund Organisation by providing a link through the EPFINDIA website (www.epfindia.com) to facilitate collection of the ECR (Electronic Return cum Challan) from the employer on a monthly basis. The ECR will be an electronic monthly return that has to be uploaded by the employers by login to the Employer E-Sewa Portal using the permanent user ID and password created during the process of registration of their establishment. As per the instruction of the Employees Provident Fund Organisation Head Office, New Delhi, the employers have to upload the ECR through the Employer E-Sewa Portal from the month of April, 2012 when the returns for the wage month of March, 2012 are to be submitted. For any further query, you may contact the following area Enforcement Officer.” On perusal of the above mentioned correspondence, it clearly reveals that a code number “OR/11201” has been mentioned, but from which date it has been given effect to, has not been indicated. More so, in the memo addressed to the petitioner it has been indicated to extend the cooperation in submitting the records/ documents as may be called for by the Enforcement Officer during the time of his inspection in order to justify the date of set up and engagement of employees as has been furnished in their coverage proposal for allotment of code number to the office of the Assistant Provident Fund Commissioner, SRO, Berhampur (emphasis supplied).
This clearly indicates that for the purpose of allotment of EPF code number the said correspondence has been made by the Assistant Provident Fund Commissioner to the Enforcement Officer to take necessary steps calling upon the petitioner to find out whether the establishment is coverable from the date earlier than the date of present coverage by examining the past records like cash book, wage payment register, attendance register, ledger, voucher, balance sheet. While submitting his response, the Enforcement Officer should specifically mention the documents verified by him and to furnish the copies of the balance sheet and other documentary evidence to support the date of set up and employees’ strength and further he to submit the nomination in Form No.2 (R) in respect of all the employees and to educate the employer for timely reporting of compliance and submission of statutory returns. But this cannot be construed to be the document in support of providing “copy of EPF Code number”. 8. In Misc. Case No.3444 of 2017 filed by the opposite party for vacation of interim order dated 14.02.2017, the documents marked as Annexure-A/1 series have been issued by the EPF Commissioner to other similarly situated bidders wherein EPF Code numbers have been prescribed, and the date from which it has been brought within the purview of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and the Scheme framed thereunder. If such documents are taken into consideration vis-à-vis the document filed by the petitioner in Annexure-3, it would reveal that Annexure-3 does not contain the date from which the establishment was brought into the purview of Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and the Scheme framed thereunder. 9. However, after the petitioner was declared disqualified on 02.02.2017, a document has been furnished by way of rejoinder in Annexure-5 series, wherein it has been indicated that the petitioner has been allotted with a 15 digit EPF code number where incidentally the EPF code number “OR-11201” in the year 2013 has been indicated. Such correspondence has been made on 09.02.2017. The petitioner having not furnished the document as mentioned in Annexure-A/1 series to the Misc. Case No.3444 of 2017, the tender submitted by it has been declared as disqualified.
Such correspondence has been made on 09.02.2017. The petitioner having not furnished the document as mentioned in Annexure-A/1 series to the Misc. Case No.3444 of 2017, the tender submitted by it has been declared as disqualified. The copy of the EPF code, as required to be furnished under clause 7 of the details of the documents in technical bid, means the documents which have been duly issued by the competent authority, namely, the Provident Fund Commissioner in support of allotment of EPF code wherein it has been specifically mentioned with regard to bringing the establishment within the purview of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and the Scheme framed thereunder, as has been indicated in Annexure-A/1 series and furnished by other bidders. In absence of such documents, the correspondence made by Asst. Provident Fund Commissioner, SRO, Berhampur to the Enforcement Officer, Rayagada to verify the documents, cannot and could not have been stated to be the EPF code allotted in favour of the petitioner. Rather, that was the stage of enquiry to be conducted by the Enforcement Officer on the direction of the Assistant Provident Fund Commissioner. Consequentially, the same cannot be construed to be a proper document to take into consideration for determination of the bid, as required under clause-7 of the details of documents required for technical bid. 10. Be that as it may, any document filed by the petitioner subsequent to its disqualification cannot be taken into consideration. As such, as per the terms and conditions of the bid the Managing Director reserves the right to reject any/all the tenders without assigning any reason thereof. The petitioner having been declared disqualified for not furnishing “copy of EPF code number”, this Court is of the considered view that the decision of the authority in disqualifying the petitioner for non-furnishing of the EPF code number and rejecting its technical bid does not warrant interference of this court. 11. In Laxmi Sales Corporation v. Bolangir Trading Co., (2005) 3 SCC 157 : AIR 2005 SC 1962 the apex Court held that where the advertisement inviting tender stated that a tenderer must have a turn-over of Rs. 25 lakhs and nothing more, the tenderer had to submit all supporting documents/informations and it was not correct to say that the production of documents was not mandatory. 12.
25 lakhs and nothing more, the tenderer had to submit all supporting documents/informations and it was not correct to say that the production of documents was not mandatory. 12. In Subas Chandra Panda v. Superintending Engineer, Rural Works, Koraput, AIR 2004 Ori 124 : Vol. 97 (2004) CLT 734 this Court held where the petitioner did not satisfy the basic requirements as stipulated in the bidding documents, the authorities committed no illegality or irregularity in rejecting the bid of the petitioner. 13. Applying the law laid down by the apex Court, as well as this Court, as discussed above, this Court is of the considered opinion that furnishing of EPF code number was a mandatory requirement for consideration of technical bid. The basic requirements, as stipulated in the bid documents, having not been satisfied by the petitioner, the authority has not committed any illegality or irregularity, in declaring the petitioner disqualified and rejecting its technical bid, so as to warrant interference of this Court in exercise of extraordinary jurisdiction under Article 226 and 227 of the Constitution of India. 14. Accordingly, the writ petition merits no consideration and the same is hereby dismissed.