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2018 DIGILAW 829 (ORI)

G. Ashok Kumar v. State of Odisha

2018-12-05

K.R.MOHAPATRA, K.S.JHAVERI

body2018
ORDER K.S. JHAVERI, CJ. - Heard learned counsel for the petitioners, learned Additional Government Advocate for the State opposite parties and learned counsel for the opposite party Nos.5 and 6. 2. By way of this writ petition, the petitioners have challenged the action of the opposite parties-State Government in cancelling the tender call notice dated 03.03.2018 (Annexure-6) vide order/cancellation notice dated 27.03.2018 (Annexure-8) and also the decisions of the State Government dated 04.05.2018 (Annexures-9 and 10) and praying for restoration of the earlier tender notice. 3. Learned counsel for the petitioners aggressively has argued the matter that this case is squarely covered by a reported decision of this Court in the case of United Contractors Association vs. State of Odisha, 2018 (I) ILR CUT 254, wherein in paragraph 12 and 13 a Division Bench of this Court has observed as under: “12. Taking into consideration the principles laid down by the apex Court, as discussed above, to the present context, it is only indicated in the 4th Corrigendum that cancellation of tenders for the works from serial no.1 to 168 has been done “due to unavoidable circumstances”. While considering the provisions contained in Section 25-FFF of Industrial Disputes Act in Kuttanecherry Quseph Antony v. P.V. Kumaran, 1979 LAB IC 1165, it has been held as follows: “Legislative intent is to limit the scope of the expression ‘unavoidable circumstances’ to such cases where closure was for reasons connected with the business. If the closure of the undertaking was on account of unavoidable circumstances beyond the control of an employer, but those circumstances are not connected with the functioning of the undertaking, although such reasons are personal to him, the closure cannot come within the ambit of the Section 25-FFF(1) proviso.” 13. In view of the above mentioned factual and legal discussion, there is no iota of doubt that 4th corrigendum dated 13.06.2017 has been issued without assigning any reason and, as such, the meaning of unavoidable circumstances cannot and could not be inferred from the circumstances mentioned in the said letter. Therefore, the cancellation of tenders so made with regard to the works from serial no.1 to 168 of annexure to NIT No.974 dated 07.04.2017 cannot sustain in the eye of law. Consequentially, the National Competitive Bidding through e-procurement issued under Annexure-6 dated 21.08.2017 during pendency of the writ application also cannot sustain and is liable to be quashed. Therefore, the cancellation of tenders so made with regard to the works from serial no.1 to 168 of annexure to NIT No.974 dated 07.04.2017 cannot sustain in the eye of law. Consequentially, the National Competitive Bidding through e-procurement issued under Annexure-6 dated 21.08.2017 during pendency of the writ application also cannot sustain and is liable to be quashed. Accordingly, 4th corrigendum notice dated 13.06.2017 cancelling tenders for the works from serial no.1 to 168 of annexure to NIT No.974 dated 07.04.2017 and consequential National Competitive Bidding through e-procurement dated 21.08.2017 vide Annexure-5 and 6 respectively are hereby quashed.” Therefore, he contended that on the face of it, the State Government has flouted the order of this Court and has cancelled the same contract which was earlier tendered by the State Government. He also contended that originally the bid was invited where four different kinds of contractors could have participated in the contract. Clause (1) of National Competitive Bidding Through e-Procurement dated 07.04.2017 is reproduced hereunder for better appreciation of the fact: “1. Class of Contractor (a) Estimated cost more than 10.00 Crores Super Class Contractor of (Odisha PWD) or relevant class of other licensing authorities. (b) Estimated cost more than 4.00 crores up to Rs.10.00 crores. Special Class & Super Class contractor of (Odisha PWD) or relevant class of other licensing authorities. (c) Estimated cost more than 1.50 crores up to Rs.4.00 crores. A Class & Special Class contractor of (Odisha PWD) or relevant class of other licensing authorities. (d) Estimated cost more than 40.00 Lakhs up to Rs.1.50 Crores. B Class & A Class Contractor of (Odisha PWD) or relevant class of other licensing authorities. 4. He has also pointed out that the Superintending Engineer, Southern Circle RW, Sunabeda has not assigned any reason in its order dated 27.03.2018 (Annexure-8) in cancelling the tender of the petitioners, which is contrary to law as declared by this Court. He further pointed out the letter dated 04.05.2018 (Annexure-9) where a decision was taken by the Government to handover the project for inviting proposal for assignment of 174 nos of PMGSY projects in the district of Koraput to the CPSU, Ms. NBCC Ltd. 5. He further pointed out the letter dated 04.05.2018 (Annexure-9) where a decision was taken by the Government to handover the project for inviting proposal for assignment of 174 nos of PMGSY projects in the district of Koraput to the CPSU, Ms. NBCC Ltd. 5. In support of his contention, he also pointed out that the action of the State Government is arbitrary in view of the statement of the MLA which was sought to be relied upon the 47th Koraput Zilla Parishad Meeting Schedule dated 13.03.2018 under Annexure-12 to the rejoinder affidavit. He has, however, pointed out the letter dated 22.01.2018 issued by the said MLA regarding engagement of CPSU M/s. NBCC Ltd. for executing PMGSY works in IAP districts under Batch-III PMGSY in R.W. Division, Jeypore, he contended that the poor contractors of the poor State of Odisha are deprived of their legitimate expectation to participate in the tender and the prime work of State of Odisha has been handed over to the Central Government undertakings. 6. Mr. B.P. Pradhan, learned Additional Government Advocate for the opposite parties-State has pointed out only one point in the counter affidavit, which is reproduced hereinbelow: “It may be mentioned here that on earlier occasion, Sri Kaliprasad Mishra had forcibly stopped the execution of some packages under PMGSY works entrusted to CPSU (Central Public Sector Undertaking), M/s NBCC Ltd. On the basis of written complaint submitted by M/s.NBCC, the Opp. Party No.1 requested the Collector and SP, Koraput vide letter No.28585302792015/RD dtd.22.02.2017 to provide necessary protection to the concerned agencies who have been engaged in execution of PMGSY projects so that they will be able to complete the works smoothly without any threatening or hindrances. It is pertinent to mention that one news item was published in Odia Daily News paper “The Sambad” on 23.03.2018 that one Sri Kaliprasad Mishra, Super Class Contractor (President of United Contractor Association, Koraput) has been involved in tender fixing. Ultimately, on 22.03.2018 the local police arrested Sri Kaliprasad Mishra in Jeypore P.S. Case No. 74/2018, under Section 386/387/ 294/506/34 of IPC and forwarded to the Court. Due to lapse of time the tender notice no.924 dtd. 07.04.2017 (1st call) came to an end as the participating bidders to the different packages (from Sl. No.1 to 168) did not submit the letter of willingness for extending the validity of the tender. Due to lapse of time the tender notice no.924 dtd. 07.04.2017 (1st call) came to an end as the participating bidders to the different packages (from Sl. No.1 to 168) did not submit the letter of willingness for extending the validity of the tender. State Government has decided to assign the work to CPSU M/s. NBCC for the following reasons: I. The MoRD, GoI has preponed completion date of PMGSY sanctioned projects of all unconnected habitations of the State under PMGSY from the year 2021-22 to March, 2019. Unless funds are utilized within specified period, same shall be liable to be borne by the State. II. There is a huge balance target of 11000 Km. length of road under PMGSY in the State for the year 2018-19. Hence, there is necessity to engage more no. of PIUs (Programme Implementation Units) or CPSUs (Central Public Sector Undertaking) in some IAP (Integrated Action Plan District) Districts where existing workload is high. III. That the CPSU M/s NBCC has been assigned the PMGSY works sanctioned under different phases during 2016-17 & 2017-18 in 6 nos. of IAP Districts i.e. Koraput, Nuapada, Kalahandi, Rayagada, Kandhamal & Sundargarh. The said CPSU has achieved their annual target in respect of Koraput District as well as other Districts also for 2017-18. Hence, in order to enhance the executing capacity of the State to meet the desired target for the year 2018-19, it was decided to assign the above projects to CPSU, M/s NBCC for executing the work through tender. The written complaint of the Hon’ble MLA, Jeypore regarding fixing of tender vide his letter no.324 dtd. 14.03.2018 is annexed herewith as ANNEXURE-A/4. The copy of confidential letter of Collector, Koraput dtd. 23.03.2018 is annexed herewith as ANNEXURE-B/4. The copy of letter of MoRD, GoI dtd.19.05.2016 is annexed herewith as ANNEXURE-C/4. The copy of letter No.8062 dtd. 27.03.2018 for cancellation of Tender Notice is enclosed herewith as ANNEXURE-D/4. The copy of tripartite agreement dtd. 03.03.2015 is annexed herewith as ANNEXURE-E/4. The copy of minutes of proceeding of 30th State Level Standing Committee Meeting on PMGSY held on 23.06.2017 is annexed herewith as ANNEXUREF/ 4. The copy of news paper clipping published in the daily news “Sambad” dt.23.03.2018 is annexed herewith as ANNEXURE-G/4. The copy of guidelines for PMGSY-II issued by Director (Technical), NRRDA, MoRD, GoI is annexed herewith as ANNEXURE-H/4. The copy of minutes of proceeding of 30th State Level Standing Committee Meeting on PMGSY held on 23.06.2017 is annexed herewith as ANNEXUREF/ 4. The copy of news paper clipping published in the daily news “Sambad” dt.23.03.2018 is annexed herewith as ANNEXURE-G/4. The copy of guidelines for PMGSY-II issued by Director (Technical), NRRDA, MoRD, GoI is annexed herewith as ANNEXURE-H/4. The copy of letter No.28585302792015/ RD dtd.22.02.2017 is annexed herewith as ANNEXUREJ/4.” 7. It is pertinent to mention here that one news item was published in local odia daily “The Sambad” on 3rd March, 2018 that one Kali Prasad Mishra, Super Class Contractor, President of the United Contractors Association, Koraput has been involved in the tender fixing and ultimately on 23rd March, 2018 the police arrested Kali Prasad Mishra in connection with Jaypore Town P.S. Case No.74 of 2018 corresponding to G.R. Case No.292 of 2018 under Sections 386, 387, 506, 294, 34 I.P.C. 8. The same association was before this Court on earlier writ petition and at that time there was no such report of the Collector which has changed the complete scenario. For ready reference, we are producing the confidential report which has been given by the Collector, Koraput on 23rd March, 2018 as under: “xx xx xx Sub: Allegation of Hon’ble MLA, Jeypore regarding Tender fixing in PMGSY works. Ref: Your letter No.23/RD, dtd: 17.03.2018. Sir, With reference to the letter on the subject cited above, I am to inform you that during confidential enquiry from various sources including Superintendent of Police, Koraput and Sub- Collector, Jeypore, it appears that allegations against Sri Kali Prasad Mishra involved in fixing of PMGSY Tenders are true. It also appears that fixing of Tender by Sri Kali Prasad Mishra is in connivance with some of the RD staff. In this regard, I would request you to kindly cancel these Tenders which were invited by S.E., RW, Circle, Sunabeda and to undertake tendering of works centrally at Bhubaneswar or any other safe place.” However, an endeavour is made by the counsel for the petitioners that with a view to come out to support its case vide letter dated 24th March, 2017 the MLA got a fictitious complainant lodged against Kali Prasad Mishra. 9. 9. Learned counsel for the opposite party-NBCC pointed out the report of the Collector, Koraput and government decision dated 31.03.2018 (Annexure-E/5) to the counter affidavit filed on behalf of opposite party Nos.5 and 6, paragraphs-6 and 7 whereof read as under: “6. The said CPSU has completed 193 Km. length of PMGSY road till 29.03.2018 out of target of 228 Km. during current year in Koraput district & it is expected that the said CPSU will complete the target. Likewise in other IAP districts Sudargarh & Kandhamal the said CPSU has achieved their respective target for the 2 districts during 2017-18. 7. In view of the above, it is recommended to assign 174 nos. of projects costing Rs.353.04 Cr. to construct 168 nos. of roads having 687.33 Km. length and 6 nos of long span bridges to CPSU M/s. NBCC Ltd. in Koraput district to enhance the executing capacity of the State to meet the desired annual target for the year 2018-19.” In view of the above, he contended that now work is already handed over and the same is under progress. However, this Court on 30.05.2018 has passed the interim order; which reads as under: “xx xx xx As an interim measure, the process of tender pursuant to the tender call notice dated 12.05.2018 in Annexure-11 shall continue but the same shall be abide by the result of the writ petition.” Before proceeding with the matter, it will not be out of place to mention that the State Government is making endeavour to implement the scheme by executing the work as per the list within the time limit of the financial year as the grant which the Government (both the Central as well as the State) have provided, is to be used during the relevant financial year for which tendering, retendering, cancellation and everything has to be completed in all respect by the State Government. 10. In that view of the matter, pursuant to the report of the independent officer i.e. Collector, Koraput, the State Government has taken decision to hand it over to the independent agency. In our considered opinion, the decision taken seems to be prima facie germane. 11. 10. In that view of the matter, pursuant to the report of the independent officer i.e. Collector, Koraput, the State Government has taken decision to hand it over to the independent agency. In our considered opinion, the decision taken seems to be prima facie germane. 11. It is well settled in law that the High Court while exercising power under Article 226 of the Constitution should not substitute its opinion when an administrative decision is taken after following the due procedure and when the report of the Collector is received, where it has been categorically mentioned that the Contractors are controlled by some head strong persons, it will not be appropriate for this Court to sponsor those head strong persons while exercising power under Article 226 of the Constitution of India. 12. In that view of the matter, when the State Government has independently taken decision to control the head strong persons like Kali Prasad Mishra, such an administrative decision cannot be substituted by the High Court under Article 226 of the Constitution of India. 13. Lastly, learned counsel for the petitioners submitted that e-procurement cannot be interfered with by the local people. 14. It is well settled that the contactor while applying for a tender also takes stock of the situation as to whether the work could be allowed to be done peacefully or not. Taking into consideration the history and the situation, which is prevailing in the district, it will not be appropriate to substitute our opinion on e-procurement. 15. In that view of the matter, the judgment referred to above which is sought to be relied upon will not apply in the facts of the case since the facts which have come on record and now it is established in view of the counter affidavit filed on behalf of opposite party Nos.1 to 4 that the earlier writ petition filed by that same Kali Prasad Mishra. Needless to say that the petitioners counsel and the counsel in that petition appears to be coincidentally the same. In that view of the matter, prima facie we are of the view that this is nothing but the petitioners are sponsored by the head strong persons to file such petition. Needless to say that the petitioners counsel and the counsel in that petition appears to be coincidentally the same. In that view of the matter, prima facie we are of the view that this is nothing but the petitioners are sponsored by the head strong persons to file such petition. We are of the opinion that we should not be a party to such a sponsorship litigation, hence, we deprecate the practice and the writ petition is liable to be dismissed with cost. Accordingly, the writ petition stands dismissed with cost of Rs.5/- (rupees five). Petition dismissed.