Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 77 (ORI)

Maa Kanak Durga Enterprises v. State Of Odisha

2021-02-23

B.P.ROUTRAY

body2021
JUDGMENT B.P. Routray,J. - The Petitioner participated in the bidding process pursuant to Tender Call Notice (TCN) dated 30th December, 2019 issued by Opposite Party No.3 for supply of diet (dry and cooked) for SCB Medial College and Hospital, Cuttack. The TCN prescribed the conditions of submission of required documents, inter alia, the labour license and food license with three years relevant experience. 2. It is the case of the Petitioner that he having fulfilled all the conditions of eligibility participated in the tender along with Opposite Party Nos.4, 5 and 6. He was intimated to remain present before the Tender Committee on 17.2.2020 at SCB Medical College and Hospital, Cuttack for finalization of the technical bid. During scrutinization, he was intimated of non-submission of uptodate renewal labour license. So apprehending rejection of his technical bid, he earlier filed W.P.(C) No.6574 of 2020 before this Court, which was dismissed by order dated 20th February, 2020 observing the same as pre-mature since no final decision has been taken on the tender. Thereafter coming to know about the rejection of his technical bid and selection of Opposite Party No.5 as the successful bidder through RTI application, he preferred the present writ petition praying to accept his offer and to award the contract in his favour. 3. Opposite Party No.3, the Superintendent of SCB Medical College and Hospital, Cuttack, has filed the reply refuting the claim of the Petitioner. As per their statement, the technical bid of the Petitioner was rejected for non-submission of appropriate labour license and proper certificate of three years experience in diet preparation and supply and as such, the Petitioner being disqualified in the technical bid was debarred from participating further. 4. Opposite Party No.5, who was selected as the successful bidder, has also come to contest the writ petition by filing his counter. Said Opposite Party No.5 in his counter reply has supported the stand of Opposite Party No.3 that, the Petitioner being disqualified in the technical bid has been debarred from participating in the financial bid. It is also stated that, by order dated 27th November, 2020, the work order has been issued in his favour and presently he is supplying the diet with effect from 1st December, 2020. 5. It is submitted by Mr. It is also stated that, by order dated 27th November, 2020, the work order has been issued in his favour and presently he is supplying the diet with effect from 1st December, 2020. 5. It is submitted by Mr. Dalai, learned counsel for the Petitioner that the labour license submitted by the Petitioner is valid and is as per the requirement in terms of the conditions prescribed in the TCN. Further the experience certificate of three years in diet preparation and supply is also as per the requirements. But Opposite Party No.3 in connivance with Opposite Party No.5 has rejected his technical bid with mala fide intentions as he has quoted the lowest price. It is also submitted that the theory of labour license under the Contract Labour (Regulation and Abolition) Act, 1970 is a new concept advanced by Opposite Party No.3 which was never the requirement as per the conditions of the TCN. 6. Having considered the submissions of the respective parties, it is seen from Annexure-1 that the conditions stipulated as per the Clause VI.3.3 and VI.3.9 are as follows: "VI.3. Eligibility Criteria: xx xx xx 3. The bidder should have a minimum of 3 years experience in diet preparation and its supply/services in Govt. or Private Health Institutions only having minimum 200 no. of bed. xx xx xx 9.The bidder should have valid labour license (registration no. & date) of Labour department." 7. The main thrust of argument of Mrs. S. Pattanayak, learned Additional Government Advocate on behalf of Opposite Party No.3 is that, the bidders are required to submit the labour license issued by the Labour Department in terms of Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970. But what is submitted by the Petitioner is the registration certificate granted under the Odisha Shops and Commercial Establishments Act, which is not sufficient for the purpose. 8. Mr. Nanda, learned counsel appearing for the Opposite Party No.5 also argued in the same line persuading us to go through the eligibility criteria prescribed in the TCN under Annexure-1. 9. As mentioned above, Clause 9 of the eligibility criteria is candid and clear requiring valid license of Labour Department. The said stipulation never mandates the license to be issued under the Contract Labour (Regulation and Abolition) Act, 1970. 9. As mentioned above, Clause 9 of the eligibility criteria is candid and clear requiring valid license of Labour Department. The said stipulation never mandates the license to be issued under the Contract Labour (Regulation and Abolition) Act, 1970. In the wake of the purpose, which is to supply diet, therapeutic and nontherapeutic to the patients to the hospital, we fail to concede to the submissions of requirement of labour license under the Contract Labour (Regulation and Abolition) Act, 1970. Rather the submission of the Petitioner that, the same is required under the Odisha Shops and Commercial Establishments Act appears more acceptable. Therefore, the contention of the Opposite Parties requiring the labour license under the Contract Labour (Regulation and Abolition) Act, 1970 does not seem justified in view of the stipulation made in the TCN. When the submission of labour license (registration no. and date) by the Petitioner under the Odisha Shops and Commercial Establishments Act is not disputed, in our considered opinion the same satisfies the requirement sought for at Clause 9. 10. Coming to the other shortfall as contended by the Opposite Parties regarding lack of three years experience in terms of Clause 3 of the eligibility criteria, the admitted case of the parties are that the Petitioner has submitted the certificate issued by All India Institute of Medical Science, Bhubaneswar relating to experience of providing patient dietary service in AIIMS since 8th August, 2015 till 26th October, 2018. This has been negatived by the Opposite Party No.3 by saying that the period of service of the Petitioner in AIIMS, Bhubaneswar was not in chronological order and the certificate furnished by the Petitioner was having gap period of extension order from 6th August, 2017 to 31st July, 2018. Such analysis of Opposite Parties in our considered view is flimsy on the face of Annexure-9 which is the experience certificate issued in favour of the Petitioner by the AIIMS, Bhubaneswar. Moreover, the period of experience from 8th August, 2015 to 26th October, 2018 when exceeds three years period, the same appears to be satisfying the requirement of Clause-3 without any hesitation. 11. As such upon a close scrutiny of the submissions made by the parties and the documents filed on record, we hold that the rejection of technical bid of the Petitioner is illegal, arbitrary and contrary to the terms of the TCN. 12. 11. As such upon a close scrutiny of the submissions made by the parties and the documents filed on record, we hold that the rejection of technical bid of the Petitioner is illegal, arbitrary and contrary to the terms of the TCN. 12. In the case of Jagdish Mandal vs. State of Orissa and others, (2007) 14 SCC 517 , the Hon'ble Supreme Court considering the scope of the Court to interfere in tender and contractual matters in exercise of powers of judicial review has held as follows: "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; Or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; (ii)Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." 13. It is admitted by the Opposite Parties that in the meantime during pendency of the writ petition, Opposite Party No.5 has been issued with the work order on 27th November, 2020 and he commenced with the supply of work with effect from 1st December, 2020. This undoubtedly a development made during pendency of the writ petition and as such is governed by the principle of lis pendens and of course such development happened in the meantime is subject to final result of the writ petition. 14. In view of the discussions made above as the bid of the Petitioner is found rejected illegally and contrary to the conditions of the TCN and the Petitioner specifically states that he was the lowest in the financial bid which the Opposite Parties has not replied cleverly, the action of Opposite Parties in rejecting the bid of the Petitioner and selecting Opposite Party No.5 for the purpose to grant him the contract, the same can safely be opined as mala fide action of the Opposite Parties. Accordingly, the grant of contract in order dated 27th November, 2020 under Annexure-F/3 is quashed. 15. Accordingly, the grant of contract in order dated 27th November, 2020 under Annexure-F/3 is quashed. 15. In the result while quashing Annexure-F/3, Opposite Party Nos.1 to 3 are directed to issue work order in favour of the Petitioner in the event his financial bid is found lower than Opposite Party No.5 to commence the supply work with effect from 1st March, 2021. Needless to say that Opposite Party No.5 may continue his supply till 28th February, 2021. 16. The writ petition is accordingly allowed. There shall be no order as to costs.