P.D.Martin vs. The Union Of INDIA - Kerala High Court, 21 May 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUE AY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941 WP(C).No. 25772 of 2018 PETITIONER: P.D.MARTIN AGED 47 YEARS PUTHENPURACKAL ENTERPRISES,PUTHENPURACKAL HOUSE, CHILAVANNOOR,P.O. KADAVANTHRA, COCHIN - 682 020. BY ADVS. SRI.ANIL SIVARAMAN SMT.RAJI VINCENT RESPONDENTS: 1 THE UNION OF INDIA REP. BY THE DIVISIONAL RAILWAY MANAGER (ELECTRICAL OPERATIONS), SOUTHERN RAILWAY,THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM - 695 014. 2 THE DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY,THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM - 695 014. 3 P.B. VINU PATHAPPILLY HOUSE,P.O. PARAPURAM, KANJOOR,ERNAKULAM DISTRICT - 683 575. BY ADVS. R1 & R2 BY SRI.C.S.DIAS,SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 25772 of 2018 2 JUDGMENT Petitioner is a contractor providing outsourcing for manpower and service contracts, who has submitted a tender in response to an e-tender notification issued by the 1st respondent for the upkeep and maintenance of running room at Ernakulam Junction Railway Station. The case projected by the petitioner is that, even though he had submitted the lowest tender, petitioner has been orally informed that his tender has been disqualified, which according to the petitioner is, for absolutely untenable and frivolous reasons and consequently the contract is proposed to be awarded to the 3rd respondent, the only other tenderer in this contract. According to the petitioner, the tender awarded to the 3rd res overlooking the lowest bid submitted by the petitioner is illegal and similar question was considered by this court and has rendered Ext.R1(5) judgment to the effect that in such circumstances the lowest bidder should have been provided with an opportunity of hearing before finalising the tender. These are the

WP(C).No. 25772 of 2018 3 basic facts projected by the petitioner in order to secure the following reliefs: a) call for the records of all proceedings taken by the 1st res pursuant on Ext.P6 notice, and to quash any order or proceedings whereby the bid submitted by the petitioner has been rejected or disqualified and whereby the contract in question has been decided to be awarded to the 3rd respondent by the issuance of a writ in the nature of certiorari, or any other such appropriate writ, order or direction. b) issue any other such other appropriate writ, order or direction as this Honourable court may deem fit and necessary to issue in order to meet the ends of justice in the facts and on the circumstances of the instant case; and c) award the costs of the petitioner in these proceedings.

A counter affidavit is filed by 1st and 2nd respondents refuting the allegations and claims and demands raised by the petitioner and justifying the stand adopted by the said respondents since according to the respondents, rates quoted by the petitioner is unworkable and experience of the Railway shows that, such persons discontinue the work after the award of work to them.

I have considered the rival submissions made

WP(C).No. 25772 of 2018 4 across the Bar. Learned counsel for petitioner has specifically invited my attention to Ext.R1(5) judgment rendered by this court dated 31.3.2016 in W.P.(C) No.6845/2016, from where, what I could gather is that, in similar situation this court directed to consider such an issue by receiving proper explanation from the lowest tenderer.

In that view of the matte, I think it is only appropriate that, a direction is issued to the respondents to consider any such explanation offered by the petitioner before the 2nd respondent. Therefore, there will be a direction to the petitioner to offer explanation within two weeks from the date of receipt of a copy of this judgment, which shall be considered by the 2nd respondent in accordance with law, after providing a notice of hearing to the petitioner as well as the 3rd respondent at the earliest and at any rate within three weeks thereafter. I make it clear that, such a direction is necessitated since, when this writ petition was admitted to the files, an interim order was passed, that if any contract is already awarded to the 3rd respondent, it will be subject to the result of this writ petition, and even

WP(C).No. 25772 of 2018 5 though a notice was served on 3rd respondent, there is no appearance. Writ petition is disposed of accordingly. SHAJI P.CHALY Smv 21.5.2019. JUDGE

WP(C).No. 25772 of 2018 6 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1.OF CERTIFICATES DATED 1.11.2017 EXHIBIT P2.OF CERTIFICATE 5.06.2018 EXHIBIT P3.OF MSME REGISTRATION CERTIFICATE EXHIBIT P4.OF GST CERTIFICATE EXHIBIT P5.OF LICENSE DATED 24.5.2018 EXHIBIT P6.OF E-TENDER NOTICE RESPONDENTS'M EXHIBITS: EXHIBIT R1 (1)OF THE CERTIFICATE OF REGISTRATION BEARING NO.CL/R-11/2015 DATED 14-10-2015 ISSUED BY THE REGIONAL LABOUR COMMISSIONER (CENTRAL), TRIVANDRUM - 695 001 EXHIBIT R1 (2)OF THE REMAINING PORTION OF THE TENDER NOTICE DATED 5.6.2018. EXHIBIT R1 (3)OF THE MINUTES OF THE TENDER COMMITTEE MEETING HELD ON 9.7.2018 WHICH FINALIZED THE TENDER EXHIBIT R1 (4)OF THE LETTER DATED 20.7.2018 ISSUED TO THE 3RD RESPONDENT EXHIBIT R1 (5)OF THE JUDGMENT DATED 31.3.2016 PASSED BY THIS HONOURABLE COURT IN W.P.(C) NO.6845 OF 2016 EXHIBIT R1 (6)OF THE LETTER DATED 14.6.2017 ISSUED TO THE 1ST RESPONDENT.