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Sini Beny vs. The Cochin Shipyard Limited-Isrf

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WP(C)/2825/2018HC KeralaGSTCNR KLHC01034415201802 March 2018Bench: HONOURABLE MR. JUSTICE SHAJI P.CHALY14 pages

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Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939 WP(C).No. 2825 of 2018 ----------------------- PETITIONER: ----------- SINI BENY, W/O. LATE BENY, MARRAM VEEDU, CHERUKULAM ROAD, PALLURUTHY - 682 006. BY ADVS.SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.MARIA ROY SMT.VEENA RAVEENDRAN RESPONDENT(S): ------------- 1. THE COCHIN SHIPYARD LIMITED - ISRF, REPRESENTED BY ITS CHAIRMAN, SOUTH END, WELLINGTON ISLAND, COCHIN - 682 003. 2. WORKSHOP CANTEEN MANAGING COMMITTEE REPRESENTED BY ITS CONVENOR, AGM(ISRF-SRM & OS), CSL-ISRF, W/ISLAND, COCHIN - 682 003. 3. RAJANI ARAVINDAKSHAN, D/O. NARAYAN, KURASHERIPARAMBU, PAMBAYIMOOLA, EDAKOCHI - 682 010. *ADDL. R4 TO R8 IMPLEADED 4. J.P. JAYAPRAKASH, BMS, WORKER, WORKSHOP CANTEEN MANAGING COMMITTEE, CSL-ISRF, W/ISLAND, COCHIN - 682 003. 5. JOSEY K. JACOB, BMS, WORKER, WORKSHOP CANTEEN MANAGING COMMITTEE, CSL-ISRF, W/ISLAND, COCHIN - 682 003. 6. A. RAJASHEKARAN, CPSA, WORKER, WORKSHOP CANTEEN MANAGING COMMITTEE, CSL-ISRF, W/ISLAND, COCHIN - 682 003. 7. E.G. MOHANAN, CPSA, WORKER, WORKSHOP CANTEEN MANAGING COMMITTEE, CSL-ISRF, W/ISLAND, COCHIN - 682 003. WP(C).No. 2825 of 2018 (C) ------------------------- 8. A.A. GEORGE, CPU, WORKER, WORKSHOP CANTEEN MANAGING COMMITTEE, CSL-ISRF, W/ISLAND, COCHIN - 682 003. ADDL. R4 TO R8 ARE IMPLEADED AS PER ORDER DATED 28.02.2018 IN I.A.1968/2018. R1 BY ADV. SMT.MARIAM MATHAI R1 & R2 BY ADV. SRI.SAJI VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 2825 of 2018 (C) ------------------------- APPENDIX PETITIONERS' EXHIBITS: --------------------- EXHIBIT P1 TRUE COPY OF THE TENDER DOCUMENT SUBMITTED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE PAPER PUBLICATION DATED 4.1.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 19.1.2018. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF MSME REGISTRATION OF THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE GST REGISTRATION FORM AND THE EXPERIENCE CERTIFICATES OF THE PETITIONER. RESPONDENTS' EXHIBITS: NIL --------------------- /TRUE COPY/ P.S.TO JUDGE mbr/ 05.03.2018. SHAJI P. CHALY, J. ----------------------------------------------- W.P.(C) No.2825 of 2018 ----------------------------------------------- Dated this the 2nd day of March, 2018

J U D G M E N T Petitioner submitted sealed tender for running a canteen in accordance with the terms and conditions stipulated in Exts.P1 and P2. Petitioner is one among the four bidders and according to her, her bid was the lowest among the others observing the fact that, 3rd respondent submitted a price bid without including GST in separate figures. It is also stated that, 3rd respondent's bid was not in accordance with the terms and conditions prescribed in the tender document and contained major anomalies, which ought not have been overlooked while evaluating the technical bid. However, the tender submitted by the 3rd respondent was accepted by 1st and 2nd respondents in a totally illegal and arbitrary manner when the price bid of the petitioner is lower than the 3rd respondent without including GST component. These are the background facts projected by the petitioner to secure the following reliefs: i) Issue a writ of mandamus declaring that the decision taken by the 1st and 2nd respondents to accept the bid submitted by R3 in deviation of the tender conditions is arbitrary and illegal. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding respondents 1 and 2 to ensure that only sealed tenders submitted by tenderers should be considered for evaluation of tenders. iii) Issue a writ of mandamus or any other appropriate writ order or direction, commanding respondents 1 and 2 to ensure that only those tenders with the documents submitted in accordance with the terms and conditions described in Ext.P1 is considered. iv) To issue such other appropriate writ order or direction which this Hon'ble Court may deem fit and just under the circumstances of the case.

2.

A counter affidavit is filed for and on behalf of respondents 1 and 2 evaluating the circumstances pointed out by the petitioner and traversing through all contentions raised in the writ petition. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and denying the contentions raised in the counter affidavit filed by respondents 1 and 2. 3. I have heard learned counsel for petitioner, learned Government Pleader and perused the pleadings and documents on record. Even though notice is served on 3rd respondent, there is no appearance.

4.

Apparently the technical bid was opened. The case put forth by the petitioner is that, 3rd respondent is not a qualified person since the parameters provided under Ext.P1 is not undertaken by the 3rd respondent. Even though 3rd respondent is served with notice, there is no appearance. However, learned Standing Counsel for respondents 1 and 2 submitted that, the technical bid was evaluated and the 3rd respondent was found to be qualified enabling the 3rd respondent to participate in the commercial bid and the commercial bid is also opened. However, the tender is not finalized, consequent to the stay granted by this court. The fact discussion made above would make it clear that, the contentions put forth by the petitioner is that, 3rd respondent is not technically qualified in accordance with Ext.P1 instructions to the tenderers so participated in the tender floated by the 1st respondent to run the canteen for CSL/ISRF. The prime contention advanced is that, the bid submitted by the 3rd respondent in respect of technical and financial was not in separate sealed covers. However, learned Standing Counsel for respondents 1 and 2 submitted that, sealed envelope is insisted upon in Ext.P1 in respect of technical and price bids but merely because the technical and price bids were not kept in separate envelops in sealed cover, that will not in any manner disqualify the 3rd respondent . It is also stated by the learned counsel for respondents 1 and 2 that, the bid was submitted by the 3rd respondent in sealed cover. However, inside the said cover, the technical and price bid was kept separately in folded papers. Therefore, the bid submitted by the 3rd respondent is substantially complied with the conditions contained under Ext.P1. It is also submitted that, 3rd respondent is having the required two year experience. Yet another contention advanced by the petitioner is that, the experience certificate produced by the 3rd respondent is not attested by a gazetted officer. To the said contention, it is submitted by respondents 1 and 2 that, experience certificate in original itself is produced by the 3rd respondent and therefore, non-production of an attested copy is not fatal. It is also contended by the petitioner that, the price bid of the 3rd respondent is the rate quoted by the 3rd respondent not inclusive of GST. To the said aspect, respondents 1 and 2 submitted that, the allegation is baseless and incorrect since the requirement was only the price all inclusive as shown in page 15 of the tender document and there is no additional head shown as GST in the financial bid submitted by them. It is only the petitioner, who has shown GST separately though there is no such requirement/column as per the format in page 15 of the tender document. Therefore, there is no irregularity in the price bid of the 3rd respondent. Moreover, it is stated by respondents 1 and 2 that, the rate quoted by the petitioner is Rs.2,47,564/- per month while the rate quoted by the 3rd respondent is Rs.2,10,000/- per month and 3rd respondent is L1 and the petitioner is L2. Therefore, the rate quoted by the petitioner is higher by an amount of Rs.4,50,768/- for one year than the rate quoted by the 3rd respondent. It is also stated that, there is no essential deviation on the part of the 3rd respondent from the tender conditions. Learned counsel for respondents 1 and 2 has also invited my attention to the judgment of the Apex Court in Poddar Steel Corporation v. Ganesh Engineering Works [(1991)3 SCC 273] wherein the question with respect to minor technical irregularity was considered and held that, it can be waived. Paragraph 6 of the judgment is relevant to the context, which read thus:

6.

It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non- compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories — those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs.

5.

Therefore, according to the learned counsel for respondents 1 and 2, there is no ground made out by the petitioner justifying interference of this court under Article 226 of the Constitution of India. Having evaluated the contentions advanced by the respective counsel at the Bar, the sole question to be considered is whether, there is any illegality, arbitrariness or irregularity in accepting the technical bid submitted by the 3rd respondent. The fact

discussion makes it clear that, technical as well as price bid was submitted by the 3rd respondent in a sealed cover. Even though the bids were kept in the sealed cover, the same were separately kept only in folded papers, whereas the requirement was that, it could have been kept in separate envelope. In my considered opinion, there is no material deviation made by the 3rd respondent from the requirements contained under Ext.P1 instructions to the tenderers since bids were kept in sealed envelops, which is the sole requirement as per page 2 of the instructions. The stipulations with respect to the bids to be kept in separate envelops does not prescribe that, separate envelopes containing technical and price bid in sealed envelopes should be sealed.

6.

Looking at any angle, I am of the considered opinion that, it cannot be said that, there is any violation with respect to the instructions to the bidders contained under Ext.P1. It is also clear from the counter affidavit filed by respondents 1 and 2 that, 3rd respondent has 2 years experience and he has produced the experience certificate in original and therefore, there is no requirment for production of attested copy of the experience certificate. Moreover, it is clearly evident that, there is no separate column provided for entering GST rates separately. All the tenderers have shown the rates inclusive of GST, whereas the petitioner without any column, shown the price of the tender as well as the GST rates separately. Therefore, it is evident that, there is no violation of any requirement by the 3rd respondent as is alleged by the petitioner.

7.

Having regard to the aforesaid circumstances, there is no patent illegality, arbitrariness or unfairness on the part of respondents 1 and 2 in accepting the bid submitted by the 3rd respondent. When this writ petition was admitted to the files of this court, a stay was granted against the finalization of the tender. Therefore, even though the bids were opened, the tender could not be finalized. Therefore, the writ petition is disposed of directing the 2nd respondent to finalize the tender proceedings in accordance with law at the earliest possible time. SHAJI P. CHALY

JUDGE smv 2.3.2018

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.