Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 996 (JHR)

Brahm Rishi Shewa Munch v. State Of Jharkhand

2018-05-02

RAJESH SHANKAR

body2018
ORDER Rajesh Shankar, J. - The petitioner herein has challenged the notice inviting tender (NIT) dated 02.08.2016 issued under the signature of Civil Surgeon-cum-Chief Medical Officer, Bokaro (respondent no. 6) on the ground that the said NIT contains a condition that only those companies, which are registered under the provisions of the Companies Act can apply for the tender. 2. The factual background of the case as stated in the writ petition is that earlier also, a notice inviting tender was published on the website on 02.05.2016 under the signature of respondent no. 6 for supply of para medical staffs, security guards, sweepers and for other related purposes at different health institutions like Sadar Hospital, Diagnostics Center, Blood Bank, District T.B Center, Community Health Centers, Primary Health Centers etc. within the District of Bokaro through outsourcing which contained a condition that the bidders have to file the license showing registration with the Labour Department, Government of Jharkhand. The petitioner participated in the said tender, however his bid was cancelled due to non-submission of the license. Subsequently, the earlier NIT dated 02.05.2016 was cancelled and a fresh NIT dated 02.08.2016 has been issued for the same work however with a condition that only those companies which are registered under the Companies Act can apply for the tender. 3. Learned counsel for the petitioner submits that the condition contained in NIT dated 02.08.2016 is arbitrary as the petitioner being the society registered under the Society Registration Act, 1860 has been prevented from participating in the tender. It is further submitted that the present condition has been laid down just to put favour to some bidders and in order to deprive the bonafide organisations like the petitioner. The petitioner wrote letter to the Labour Superintendent, Bokaro enquiring about the legal requirements for inviting tender as the same was not in conformity with the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (in short "the Act, 1970") and the Bihar (now Jharkhand) Contract Labour (Regulation and Abolition) Rules, 1972 (in short "the Rules, 1972") and was issued only with a view to provide benefit to the private companies, which is illegal and arbitrary. It is also submitted that the action of the respondents reflects unfair and corrupt practises by putting the unreasonable condition in the impugned tender. 4. It is also submitted that the action of the respondents reflects unfair and corrupt practises by putting the unreasonable condition in the impugned tender. 4. Learned A.C. to A.G. submits that the petitioner had made complaint relating to the condition mentioned in the earlier NIT dated 02.05.2016 before the Labour Superintendent, B.S. City who by issuing letter no. 494 dated 09.06.2016 asked reasons for insertion of the condition of production of registration certificate from the Labour Department, Government of Jharkhand and further asked the respondents to obtain registration certificate as a principal employer in view of the Act, 1970. Thereafter, the respondent authorities obtained the registration certificate on 20.07.2016. Thus, to remove the legal/statutory difficulty, the tender dated 02.05.2016 was cancelled and the fresh tender was issued on 02.08.2016. It is further submitted that there are many instances to suggest that the Trust, Society and NGOs have been facing labour problems. It is wrong to allege that in order to give benefit to some persons, the said condition has been incorporated as it would be evident that 13 numbers of companies have participated in the said tender. It is also submitted that no condition for submitting registration certificate/license has been incorporated in the fresh NIT, thus there is no question of any violation of the Act, 1970. It is further submitted that the impugned condition has been incorporated so as to keep the hospitals and other establishments free from any future litigation as these have to provide 24 hours emergency and essential services connected with human life. 5. Heard learned counsel for the parties and perused the materials available on record. The respondent authorities have published the impugned NIT for supply of manpower in the Government hospitals and other establishments through outsourcing. The petitioner being a Society registered under the Society Registration Act, 1860 has challenged the condition mentioned in the NIT whereby only those entities which are registered under the Companies Act, have been allowed to participate in the tender. 6. The Hon''ble Supreme Court in a judgment rendered in the case of Global Energy Ltd. & Anr. v. M/s. Adani Exports Ltd. & Ors. reported in, (2005) 4 SCC 435 , held as under:- "9. In Tata Cellular v. Union of India, AIR 1996 SC 11 , a Three Judge Bench has explained what is a tender and what are the requisites of a valid tender. v. M/s. Adani Exports Ltd. & Ors. reported in, (2005) 4 SCC 435 , held as under:- "9. In Tata Cellular v. Union of India, AIR 1996 SC 11 , a Three Judge Bench has explained what is a tender and what are the requisites of a valid tender. It has been held that the tender must be unconditional and must conform to the terms of the obligation and further the person by whom the tender is made must be able and willing to perform his obligations. It has been further held that the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. In Air India Ltd. v. Cochin International Airport Ltd., 2000 (2) SCC 617 the same view was reiterated that the State can fix its own terms of invitation of tender and that it is not open to judicial scrutiny. Whether and in what conditions the terms of a notice inviting tenders can be a subject matter of judicial scrutiny, has been examined in considerable detail in Directorate of Education v. Educomp Datamatics Ltd., 2004 (4) SCC 19 . The Directorate of Education, Government of National Capital Territory of Delhi had taken a decision to establish computer laboratories in all Government schools in NCT area and tenders were invited to provide hardware for this purpose. For the final phase of 2002-03, tenders were called for 748 schools and the cost of project was approx. Rs. 100 crores. In view of the difficulty faced in the earlier years where the lowest tenderers were not able to implement the entire project, a decision was taken to invite tenders from firms having a turnover of Rs. 20 crores or more for the last three financial years ending with 31.3.2002, as it was felt that it would be easier for the department to deal with one company which is well managed and not with several companies. Some of the firms filed writ petitions in Delhi High Court challenging the clause of the NIT whereby a condition was put that only such firms which had a turnover of Rs. 20 crores or more for the last three financial years would be eligible. Some of the firms filed writ petitions in Delhi High Court challenging the clause of the NIT whereby a condition was put that only such firms which had a turnover of Rs. 20 crores or more for the last three financial years would be eligible. It was contended before the High Court that the aforesaid condition had been incorporated solely with an intent to deprive a large number of companies imparting computer education from bidding and monopolise the same for big companies. The writ petition was allowed and the clause was struck down as being arbitrary and irrational. In appeal, this Court reversed the judgment of the High Court basically on the ground that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract and the Government must have a free hand in settling the terms of the tender. The courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice. It was further held that while exercising the power of judicial review of the terms of the tender notice, the Court cannot order change in them. 10. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. -------" 7. In the aforesaid case, the Hon''ble Supreme Court has held that the constitutional courts should not interfere with the terms and conditions of the tender notice unless the same appear to be either arbitrary, discriminatory or actuated by malice. 8. In the case in hand, the stand of the respondents is that the Trust/Society or NGOs are non-profitable organisations and it has been observed that on earlier occasions, the non-profitable organisations have faced labour problems as they were not in a position to compete with the modern labour expectations. The petitioner, although alleged arbitrariness on the part of the respondent authorities, has not been able to controvert the justification given by the respondents in putting the said condition in the impugned NIT. 9. The petitioner, although alleged arbitrariness on the part of the respondent authorities, has not been able to controvert the justification given by the respondents in putting the said condition in the impugned NIT. 9. The learned counsel for the petitioner has given much stress to the argument that the present NIT is in violation of the Act, 1970 as well the rules framed thereunder, however the respondents have specifically stated in the counter affidavit that although the submission of certificate/license issued by the Labour Department was one of the terms and conditions of the earlier NIT, the same is not the condition in the present NIT. Thus, the NIT dated 02.08.2016 can neither be said to be contrary to the Act, 1970 nor the Rule-21 of the Rules, 1972. Accordingly, I do not find any force in the submission of the learned counsel for the petitioner. 10. Though the petitioner has alleged malafide against the respondent authorities, but the said allegation is not supported by any cogent material, rather the respondents have controverted the said allegation by stating that altogether 13 companies have participated in the said tender. Moreover, the impugned NIT dated 02.08.2016 was issued to supply the manpower in different health institutions which is an emergency service. Thus, the respondent authorities are well within their jurisdiction to put appropriate condition so as to ensure smooth functioning of the hospitals and other health establishments. 11. Under the aforesaid facts and circumstances, the present writ petition being devoid of any merit is accordingly dismissed. 12. Consequently, I.A. No. 2935 of 2018 also stands dismissed.