Kalinga Warrior Security Service, Cuttack vs. State Of Odisha

W.P.(C) No.33801 of 2022 Page 1 of 47 ORISSA HIGH COURT : CUTTACK W.P.(C) No.33801 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. --------------- Kalinga Warriors Security Service represented by its partner Sri Manas Jena son of Madhabananda Jena Plot No.202, Krishna Arcade B.K. Road, District: Cuttack … Petitioner -VERSUS- 1. State of Odisha represented by Commissioner-cum-Secretary Department of Health and Family Welfare Government of Odisha Bhubaneswar, District: Khurda 2. The Additional Chief Secretary Department of Health and Family Welfare Government of Odisha Bhubaneswar, District: Khurda 3. The Collector & District Magistrate Bhadrak 4. The Additional District Magistrate Bhadrak 5. The Chief District Medical & Public Health Officer Bhadrak 6. M/s. Bhabani Security Agency represented through its proprietor Mr. Akshya Kumar Dash W.P.(C) No.33801 of 2022 Page 2 of 47 Plot No.256/1081, Ground Floor Sahapur, Bhadrak 7. Sarala Security & Facility Services represented by partner Mr. Bishnu Mohan Nayak Plot No.A/5, Sahid Nagar Bhubaneswar – 751 010 … Opposite Parties Counsel appeared for the parties: For the Petitioner : M/s. Rakesh Behera, Siddharth Goutam Das, Advocates for the petitioner For the Opposite Parties : Mr. Amiya Kumar Mishra, Additional Government Advocate for the opposite party Nos.1 to 5; Mr. Kali Prasanna Mishra, Senior Advocate with M/s. Chittaranjan Pattnaik, Riza Das, Krishna Mohapatra, Advocates for the opposite party No.6 M/s. Rabi Narayan Behera, L.K. Padhi, S. Dora, Advocates for the opposite party No.7 P R E S E N T: THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 13.09.2023 :: Date of Judgment : 22.09.2023 MURAHARI SRI RAMAN, J.— THE CHALLENGE: W.P.(C) No.33801 of 2022 Page 3 of 47 The petitioner, a security and manpower service provider, laid challenge to the Letter No.12862, dated 18.11.2022 issued by the Chief District Medical & Public Health Officer, Bhadrak addressed to M/s. Bhabani Security Agency to accord consent along with declaration to provide service on outsourcing basis under “Nirmal” and Letter No.13126, dated 24.11.2022 calling upon said M/s. Bhabani Security Agency to furnish performance security deposit on acceptance of assignment vide Annexure-6 series for undertaking work in Request for Proposal: Outsourcing of Security Services at Government Health Institutions being RFP Reference No. Nirmal/Security Services/District: Bhadrak- 14/2020, dated 03.12.2020 (Annexure-8), invoking provisions of Article 226/227 of the Constitution of India. THE FACTS: 2. Sri Manas Jena, contractor, for executing security and manpower service under Executive Officer of Banki Notified Area Council in the District of Cuttack, got licence in the name and style “M/s. Kalinga Warriors Security Services”, At/P.O.: Basandhara, P.S.: Biridi, Jagatsinghpur, issued by Licensing Officer under Contract Labour (Regulation and Abolition) Act, 1970- cum-District Labour Officer, Cuttack. W.P.(C) No.33801 of 2022 Page 4 of 47 2.1. The Chief District Medical and Public Health Officer, Bhadrak, the opposite party No.5, vide RFP Reference No. Nirmal/Security Services/District: Bhadrak- 14/2020, dated 03.12.2020 (Annexure-8), invited proposals from eligible agencies to undertake security services at Government Health Institutions in Bhadrak District. Pursuant to the Request for Proposal (“RFP”, for short) ten bidders including the petitioner and the opposite party No.6-Bhabani Security Agency, participated. Out of the ten bidders, eight bids were found ineligible in the technical evaluation including that of the present petitioner on the ground that “submission of invalid labour license” vide Proceeding of Committee Meeting for opening of technical bids for outsourcing of security services under NIRMAL held on 18.12.2020 in the Office of the opposite party No.5. 2.2. M/s. Bhabani Security Agency, Bhadrak-opposite party No.6 and M/s. L&K Services, Bhubaneswar were found eligible in the Technical Bid evaluation and their Financial Bids were considered for opening. Whereas the opposite party No.6 was found to be L-2, M/s. L&K Services was declared L-1 in the Financial Bid opened on 30.03.2021. M/s. L&K Services declined to work. As a consequence, letter of acceptance of work order was issued to the opposite party No.6, which was accepted on 08.06.2021. Subsequently, on the opposite party W.P.(C) No.33801 of 2022 Page 5 of 47 No.6 depositing the performance security and submitting list of manpower, it was requested to sign the agreement to work. However, the opposite party No.5 issued a notice of cancellation of tender dated 18.08.2021. 2.3. Challenging said notice of cancellation dated 18.08.2021, the opposite party No.6 approached this Court in W.P.(C) No. 30911 of 2021, which came to be disposed off vide Order dated 08.04.2022 wherein the notice of cancellation of tender dated 18.08.2021 on the ground “due to unavoidable circumstances” was quashed with an observation that “It is open to opposite party No.2-Chief District Medical & Public Health Officer, Bhadrak (in the instant case opposite party No.5) to take necessary steps in accordance with law”. 2.4. While so, allegations of irregularities being received against the opposite party No.5, the Additional District Magistrate-opposite party No.4 was appointed by the Collector and District Magistrate-opposite party No.3 to enquire into the alleged irregularities vide Order No. 5487, dated 06.07.2021. Accordingly, enquiry being conducted, the opposite party No.4 submitted report dated 29.07.2021 by pointing out deficiencies in the documents pertaining to the experience certificate(s) furnished by the opposite party No.6. It transpires from the report that the experience certificate submitted by M/s. Bhabani Security Agency-opposite party No.6 “has W.P.(C) No.33801 of 2022 Page 6 of 47 been entertained after the period of receipt of tender papers which was not ipso facto available at the time of scrutiny and said experience certificate seems to be not genuine”. Therefore, the opposite party No.4 suggested for cancellation of tender awarded in favour of the opposite party No.6 and the opposite party No.5 was requested to go for fresh tender. 2.5. Acting upon the enquiry report of the opposite party No.4, notice of cancellation of tender dated 18.08.2021 was issued by the opposite party No.5 and fresh tender was floated vide Advertisement No. 10/2021, dated 23.09.2021. The petitioner has participated in the said fresh tender. Being unsuccessful, and the award of tender being declared in favour of the opposite party No.6-Bhabani Security Agency by the opposite party No.5, the petitioner knocked the doors of this Court in the present writ petition with the grievance that the opposite party No.5 in awarding the tender in favour of the Opp. Party No.6 had not acted in the interest of the State as well as public interest, rather acted with mala fide. The petitioner sought to impress upon that as an inquiry under Section 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 has been initiated against the opposite party No.5 by the Health and Family Welfare Department vide W.P.(C) No.33801 of 2022 Page 7 of 47 Memorandum dated 14.12.2021, the said Authority could not be part of the Tender Committee. 2.6. During pendency of the writ petition, and when the matter was adjourned at the behest of the Additional Government Advocate for obtaining necessary instructions, the petitioner has pressed petition being I.A. No.3711 of 2023, wherein this Court passed the following Order on 20.03.2023: “*** This Court vide Order dated 21.12.2022 issued notice to the opposite parties and on the request of learned State Counsel the matter was adjourned to 05.01.2023. Thereby, when the matter is pending before this Court, the opposite party-authority cannot and could not have settled the tender in favour of the opposite party No.6 by executing the agreement on 16.03.2023. In the above view of the matter, there shall be stay operation of the agreement dated 16.03.2023 executed between the opposite party No.6 and the authority, till the next date.” 2.7. Said interim order dated 20.03.2023 has been extended on subsequent dates and in the meantime pleadings were completed. RIVAL CONTENTIONS: 3. Counter-Affidavit has been filed by the opposite party Nos.3 to 5 by contending that the Tender Committee comprising of District Accounts Manager, National W.P.(C) No.33801 of 2022 Page 8 of 47 Health Mission; District Programme Manager, National Health Mission; Additional District Public Health Officer (Family Welfare); District Medical Officer (MS)-cum- Superintendent, District Headquarters Hospital, Bhadrak; District Public Health Officer, Bhadrak; Additional District Public Health Officer (VBD); Additional District Public Health Officer (TB); Additional Project Director, Finance DRDA on representative of Collector & DM; Chief District Medical & Public Health Officer, Bhadrak, considered papers of ten agencies who participated in the tender and while finding bids of eight participants “disqualified”, two agencies, namely, M/s. L&K Services and M/s. Bhabani Security Agency- petitioner were “qualified”. The proceeding was signed by all the Members of Tender Committee. Then the work plan was presented and Financial Bid was opened on 30.03.2021. M/s. L&K Services secured 44.50 marks when M/s. Bhabani Security Agency got 42.7 marks. As both the bidders quoted the same price in the Financial Bid, M/s. L&K Services and M/s. Bhabani Security Agency were selected as L-1 and L-2 respectively. All the Members of the Tender Committee signed it and the same was duly approved by the Collector & District Magistrate, Bhadrak. It is asserted that the entire exercise was done strictly following the RFP. W.P.(C) No.33801 of 2022 Page 9 of 47 3.1. It is further clarified that the inquiry under Section 15 of the Odisha Civil Services (Classification, Control and Appeals) Rules, 1962 has been initiated against the opposite party No.5 on the basis of allegation which were not true. After selection of L-1 and L-2 bidders, the L-1 bidder was asked to give an undertaking that he will work in 5 (five) Districts including Bhadrak. As he failed to give an undertaking, L-2 (M/s. Bhabani Security Agency) was selected for awarding the work order and the file was sent to the opposite party No.3 for approval on 11.05.2021. By providing material particulars as to conduct of enquiry into the irregularities committed by the opposite party No.5 and taking note of reports of the Chartered Accountant in respect of the opposite party No.6, it has been affirmed that “the allegation to the effect that the opposite party No.5 has awarded the tender in favour of the opposite party No.6 in a mala fide manner is completely false”. 3.2. In the Counter-Affidavit filed by the opposite party Nos.3 to 5 clear stand is taken that after receipt of statement dated 17.08.2022 from M/s. Bhabani Security Agency and perusal of Judgment of this Court rendered in the case of Gangadhar Jena Vrs. State of Odisha, 2017 (II) ILR-CUT 763 and Order dated 08.04.2022 of this Court passed in Bhabani Security Agency, W.P.(C) No.30911 of 2021, it has been found that the experience certificate W.P.(C) No.33801 of 2022 Page 10 of 47 submitted by M/s. Bhabani Security Agency was genuine and said Agency worked in District Headquarters Hospital, Bhadrak from 2008 till 17.07.2013. 3.3. Justification for action taken by the Tender Committee does find place in the Counter-Affidavit in the following manner: “The decision to award the tender to the Opp.Party No.6 was taken by the Tender Committee after considering the following reasons: a. Regarding signature of tender committee member on the experience certificate and body of forwarding letter, the members sign on the checklist page of the documents submitted by the bidders. Tender Committee members have not signed on the experience certificate of any of the bidders as it is practically not possible to sign on all the pages. b. The overwriting that was detected was not found in the initial scrutiny. c. Tender paper were opened on 18.12.20 in presence of all tender committee members and the representative of the agency and marks were given as per the documents available. So there is no possibility of inclusion of any document after opening of technical bid. d. In the inquiry conducted by opposite party No. 4. opportunity of hearing was not given to the agency (Opp. Party No.6) and views of other tender W.P.(C) No.33801 of 2022 Page 11 of 47 committee members including that of Opp Party No.5 was not taken. e. In the DAM report the auditor conducting audit on the financial activities of Bhabani Security Agency did not find any irregularities or have given any adverse remarks. f. As per RFP bidders can be disqualified only if he is black marked. There is no clause in RFP to disqualify a bidder if there is recovery or deduction from their dues. Taking into consideration the above facts tender committee decided to give work order in favour of M/s. Bhabani Security Agency and the file was sent to opposite party No.3 for approval. The opposite party No.3 accepted the decision of the Tender Committee. Then work order was issued vide Letter No.12862, dated 18.11.2022 and Letter No.13120, dated 24.11.2022 was issued after the agency accepted the work order.” 3.4. M/s. Bhabani Security Agency, Bhadrak-opposite party No.6 filed Counter-Affidavit on 13.04.2023 by contending that the petitioner is not entitled to any relief from this Court inasmuch as its bid was declared “disqualified” by the Technical Evaluation Committee on 18.12.2020 and around two years thereafter filed the writ petition on 09.12.2022 questioning the consent of the opposite party No.6 and award of work in its favour. 3.5. It has also been explained by the opposite party No.6 in its Counter-Affidavit that on the earlier occasion, W.P.(C) No.33801 of 2022 Page 12 of 47 violating principles of natural justice, and ascribing terse reason “due to unavoidable circumstances”, the tendering authority cancelled the Tender Notice No.14/2020, dated 03.12.2020 on 18.08.2021, against which this opposite party carried the matter to this Court in W.P.(C) No.30911 of 2021. Vide Order dated 08.04.2022, this Court following the ratio of Gangadhar Jena Vrs. State of Odisha, 2017 (II) ILR-CUT 763 and Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd., 2017 (II) ILR-CUT 1035, while setting aside the decision of cancellation of tender notice dated 18.08.2021, observed that it is open to the Chief District Medical & Public Health Officer, Bhadrak to take necessary steps in accordance with law. 3.6. It is brought to the notice of this Court by the opposite party No.6 that the tender inviting authority had issued the show cause notice to the opposite party No.6, to which it responded and submitted reply/defence statement proffering the details therein which got considered by the Tender Committee on 16.09.2022. The facts relating to enquiry conducted by the Additional District Magistrate, Bhadrak being placed before the Members, the same were discussed in the Meeting of Tender Committee held on 16.09.2022 at 11.00 AM (vide Annexure-G/5 of the Counter-Affidavit filed by the opposite party Nos.3 to 5) and said Committee accepting W.P.(C) No.33801 of 2022 Page 13 of 47 the genuineness of the experience certificate considered that the opposite party No.6-Bhabani Security Agency had, in fact, worked from 08.10.2007 to 30.06.2014 with the District Headquarter Hospital, Bhadrak. Having considered the bid of the opposite party No.6 in proper perspective, the work order was decided to be issued in favour of M/s. Bhabani Security Agency. Such decision of the Tender Committee was approved by the Collector, Bhadrak. In terms of the decision of the Tender Committee, the Letter No. 12862, dated 18.11.2022 and the Letter No. 13120, dated 24.11.2022 under Annexure-6 Series to the writ petition were issued by the opposite party No.5, Chief District Medical & Public Health Officer, Bhadrak in favour of the opposite party No.6, who was requested to submit letter of consent and deposit the performance security. Accordingly, the opposite party No.6 complied with the terms of said letters of the opposite party No.5. Subsequently, on 16.03.2023, agreement has been executed between the opposite party No.6 (M/s. Bhabani Security Agency) and the opposite party No.5 (Chief District Medical & Public Health Officer, Bhadrak). ARGUMENTS: 4. This Court at the stage of admission, on consent of all the parties heard the matter finally as the pleadings have been completed. Heard Sri Rakesh Behera, W.P.(C) No.33801 of 2022 Page 14 of 47 Advocate for the petitioner; Sri Amiya Kumar Mishra, Additional Government Advocate for the opposite party Nos.1 to 5; Sri Kali Prasanna Mishra, Senior Advocate with Sri Chittaranjan Pattnaik, Advocate for the opposite party No.6 ; and Sri Rabi Narayan Behera, Advocate for the opposite party No.7. 5. Sri Amiya Kumar Mishra, learned Additional Government Advocate and Sri Kali Prasanna Mishra, learned Senior Advocate along with Sri Chittaranjan Pattnaik, learned Advocate appearing for the opposite party No.6 made valiant attempt to persuade this Court that the relief sought for by the petitioner does not invite exercise of power of judicial review invoking provisions of Article 226/227 of the Constitution of India inasmuch as the petitioner has no locus standi to institute the present proceeding. The petitioner having participated in the tender process, after being unsuccessful in the Technical Bid evaluation itself, it could not question the propriety of the decision taken in the Meeting of the Technical Committee comprising as many as nine Members held on 16.09.2022. 5.1. It has been urged by the counsel for the opposite parties that it has been admitted and accepted at paragraph 4 of the writ petition that “the petitioner was disqualified in the Technical Bid” in connection with Advertisement No.14, dated 03.12.2020 and it also participated in the W.P.(C) No.33801 of 2022 Page 15 of 47 tender process in fresh advertisement No.10/2021, dated 23.9.2021 (paragraph 6 of writ petition). It has not laid challenge as to rejection of its Technical Bid. In consideration of Bids of ten participants, only two namely M/s. L&K Services and M/s. Bhabani Security Agency were found eligible for opening of the Financial Bids. On opening the Financial Bids, M/s. L&K Services was declared L-1. Since it could not comply with the terms, L-2, i.e., M/s. Bhabani Security Agency was offered to submit its consent and furnish performance security, which it did. 5.2. In opposition to the contention of Sri Rakesh Behera, learned Advocate for the petitioner that Tender Committee Members reviewed only one experience certificate of M/s. Bhabani Security Agency and having held it to be genuine, allowed to open its Financial Bid, leaving very many other experience certificates adduced by the opposite party No.6 untouched, by way of Affidavit dated 24.08.2023 the opposite party Nos.3 to 5 submitted as follows: “6. That it is respectfully submitted that the opposite party No.6 in Form-T4 submitted the following documents alongwith his technical bid: i) 16 documents regarding experience in Hospitals for the financial year 2017-18. W.P.(C) No.33801 of 2022 Page 16 of 47 ii) 38 documents regarding experience in organisations other than hospitals for the financial year 2017-18. iii) 11 documents regarding experience in hospitals for the financial year 2018-19. iv) 31 documents regarding experience in hospitals for the financial year 2018-19. v) 11 documents regarding experience in hospitals for the financial year 2019-20. vi) 58 documents regarding experience in hospitals for the financial year 2019-20. *** 7. That the documents filed by the opposite party No.6 in the Technical Bid along with other relevant documents, are voluminous in nature and there is no scope for the Tender Committee to verify the veracity of each and every documents and in the Reference for Proposal approved by the Government, there is also no guideline to verify such documents. The veracity of all the documents filed by all the bidders in the Technical Bid is not verified as per the approved Reference for Proposal and also it is not practically possible for the Tender Committee to very each and every document.” 5.3. Referring to paragraph 10 of the said affidavit, Sri Amiya Kumar Mishra, learned Additional Government Advocate further submitted that when L-1, i.e., M/s. L&K Services failed to comply with the terms, it was decided to award work to L-2, i.e., the opposite party No.6 as per Request W.P.(C) No.33801 of 2022 Page 17 of 47 for Proposal, whose bid was approved by the Collector and District Magistrate, Bhadrak. The inquiry by the District Accounts Manager, National Health Mission is not prior to such approval, report of said inquiry being received on 31.05.2021. Sri Mishra further submitted that in such view of the matter, the ratio laid down in Gangadhar Jena Vrs. State of Odisha, 2017 (II) ILR-CUT 763 while exercising judicial review in the matter of Government contracts, the primary concern of the Court is to see whether there is any infirmity in the decision making process or whether it is vitiated by mala fide, unreasonableness or arbitrariness. In the instant case, the experience certificate furnished by M/s. Bhabani Security Agency-opposite party No.6 was found to be genuine one in the Meeting of the Tender Committee held on 16.09.2022. There being no serious irregularity or illegality in the entire tender process, the writ petition is liable to be dismissed. 5.4. Sri Rakesh Behera, learned Advocate for the petitioner vehemently contended that the opposite party No.5-Chief District Medical and Public Health Officer, as a Member of the Tender Committee acted with bias and his mala fide action in awarding the work to the opposite party No.6-M/s. Bhabani Security Agency is ex facie clear from the record. Notwithstanding the fact that vide communication dated 07.08.2021 said opposite party W.P.(C) No.33801 of 2022 Page 18 of 47 No.5 was directed by Special Secretary (PH) to Government of Odisha in Health and Family Welfare Department to attend inquiry in connection with irregularities in the tender process for selection under “Nirmal” programme to undertake the security services for District Headquarter Hospital and different Community Health Centres of Bhadrak District, the opposite party No.5 being a Member of Tender Committee acted with material irregularity. 5.5. Per contra, to this allegation, it is submitted by Sri Amiya Kumar Mishra, learned Additional Government Advocate that aforesaid summons was on account of mere enquiry, but that is not conclusive proof of illegality or irregularity. Apart from the Chief District Medical and Public Health Officer, eight other Members were also part of the Committee. Therefore, it cannot be said that there was bias in the entire tender process, particularly so when the petitioner had participated in the said process. Belated objection to the constitution of Tender Committee cannot and should not be entertained. Furthermore, when mala fide and bias have been alleged against the Chief District Medical and Public Health Officer, without making him party in person (by name), such an averment cannot be examined by this Court. No specific irregularity could be demonstrated by the petitioner as to the conduct of the tender process in W.P.(C) No.33801 of 2022 Page 19 of 47 relation to the Government approved Request for Proposal. It is also pointed out by Sri Mishra that the alleged false experience certificates by the petitioner relate to other than “experience in hospitals”, which would have no impact on the nature of work in question. Therefore, in the present fact-situation, the writ petition being devoid of merit, deserves dismissal with cost. DISCUSSIONS AND ANALYSIS: 6. This Court takes up the first issue as to whether the petitioner has locus standi to maintain this writ petition. When the petitioner has admitted at paragraph 6 of the writ petition that it “participated in the fresh advertisement” being Advertisement No.10/2021, dated 23.09.2021, it shows its conduct. The petitioner appears to have not challenged the constitution of the Tender Committee which comprised of nine Members including the Chief District Medical and Public Health Officer- opposite party No.5. It waited till finalization of Financial Bid, wherein M/s. L&K Services became L-1 and M/s. Bhabani Security Agency-opposite party No.6 was declared L-2. Since L-1 could not comply with the terms, L-2 was offered the option to undertake the work, which it did. After the opposite party No.6 was issued with Letter dated 24.11.2022 requesting it to deposit performance security, the petitioner came up before this Court alleging that the opposite party No.5 has acted W.P.(C) No.33801 of 2022 Page 20 of 47 with mala fide. In the opinion of this Court the petitioner, having participated in the tender process with eyes wide open and remained contended with his Bid being declared “disqualified”, cannot challenge the successful bid on the ground of bias or mala fide by the one of the Members of the Tender Committee. This situation arises from the principle of estoppel, which prevents a party from asserting a claim or right that contradicts what they have previously stated or done. Estoppel is a legal doctrine that aims to prevent injustice by holding parties accountable for their previous statements or actions. It operates as a bar to a party’s ability to make assertions or claims that are inconsistent with their prior conduct. In this case, by not challenging its own rejection of bid, the petitioner is effectively precluded from challenging the successful bid on grounds of bias or mala fide. The principle of estoppel is based on fairness and equity. It ensures that parties are held to their previous positions and prevents them from taking advantage of their own prior actions or omissions. If the petitioner is allowed to challenge the successful bid after accepting its rejection or disqualification, it would undermine the integrity of the tender process and create uncertainty and instability in contractual relationships. W.P.(C) No.33801 of 2022 Page 21 of 47 6.1. On the inability of L-1 (M/s. L&K Services, Bhubaneswar) to perform the work, L-2 was offered to give consent which it did and furnished performance security by making deposit of required amount. This would not in any way affect adversely to the claims of the petitioner, inasmuch as its Technical Bid was declared “disqualified”, which it did not question at any stage. 6.2. It is important to note that estoppel is not an absolute rule and can be subject to exceptions. For example, if there is evidence of fraud or misrepresentation by the Tender Committee, it may be possible for the petitioner to challenge the successful bid on the ground of bias or mala fide. However, in the absence of such exceptional circumstances, estoppel would generally apply to prevent such challenges. Here in this case, the petitioner remained satisfied when its bid was rejected on participation in pursuance of the fresh advertisement dated 23.09.2021. 6.3. In Sterling Computers Ltd. Vrs. M & N Publications Ltd., (1993) 1 SCC 445 = (1993) 1 SCR 81 it has been held: “Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have W.P.(C) No.33801 of 2022 Page 22 of 47 been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive.” 6.4. In conclusion, when the petitioner has not laid challenge against the decision of the Tender Committee whereby its bid was rejected, it is estopped from challenging the successful bid on the specious plea of possible bias or mala fide of one of the Members of the Tender Committee, which comprised eight other Members. 6.5. Under the above circumstances, this Court accedes to the objection of Sri Amiya Kumar Mishra, learned Additional Government Advocate that the petitioner, after participating in the tender process remained contended without questioning the constitution of Tender Committee. It has come forward to challenge the decision to extend the benefit of execution of work enumerated in the fresh advertisement dated 23.09.2022 to the L-2 bidder-M/s. Bhabani Security Agency, after inability was expressed by the L-1 bidder, namely M/s. L&K Services. 6.6. Thus, the petitioner has no locus standi to maintain the present writ petition at the belated stage particularly when its Technical Bid got rejected on 18.12.2020 for want of valid labour licence on verification by as many W.P.(C) No.33801 of 2022 Page 23 of 47 as nine Members of the Tender Committee. Having not raised any objection at the initial stage, the petitioner is precluded from raking up the issue after L-2 bidder became successful to execute on the expression of inability to execute the work by the L-1 bidder. 7. Sri Rakesh Behera, learned counsel for the petitioner confined his argument to the point raised in the Written Note of Arguments filed on behalf of the petitioner on 04.08.2023. Reading of said Written Note would go to indicate that the petitioner seeks to put forth his grievance by alleging that fraud has been committed by the opposite party No.6 by furnishing “forged documents” and the Chief District Medical and Public Health Officer-opposite party No.5 should not have been the Member of the Tender Committee as he is facing enquiry and proceeding under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962. It is contested by learned Additional Government Advocate that mere enquiry into an allegation of irregularity will not disentitle the opposite party No.5 to be a Member of the Tender Committee, more so when the Committee was constituted with eight other Members. The petitioner has not brought forth any allegation against any other Member of the Tender Committee and has not placed any material particulars leading to concrete proof of bias or mala fide. W.P.(C) No.33801 of 2022 Page 24 of 47 7.1. At this juncture it is noteworthy to quote from the Written Note of Argument filed by the petitioner: “That before deciding to issue work order in favour of opposite party No.6, the opposite party No.3 had instructed through a marginal order to District Accounts Manager (DAM), Bhadrak to find out if any financial irregularities are committed by the opposite party No.6. The DAM, Bhadrak submitted report showing certain irregularities by the opposite party No.6. However, the opposite party No.5 did not place the said report before the opposite party No.3 and proceeded to award work order in favour of the opposite party No.6, which is illegal and arbitrary.” 7.2. To this, it is apt to refer to paragraph 10 of the Affidavit dated 24.08.2023 filed at the behest of the opposite party Nos.3 to 5, which is to the following effect: “That in reply to the averments made in paragraph 8 of the Rejoinder-Affidavit, it is humbly submitted that as per decision of the Tender Committee, the bid submitted by the opposite party No.6 was approved by the Collector & District Magistrate, Bhadrak vide Annexure-A/5 series. As per RFP, when L-1 was not eligible, it was proposed to give work order to L-2 i.e. the opposite party No.6. Hence, the inquiry by DAM is not prior to approval and the DAM enquiry report was received on 31.05.2021 vide Anenxure-D/5. Hence the ratio decided in case of Gangadhar Jena Vrs. State of Odisha passed in W.P.(C) No.19914 of 2016 [2017 (II) ILR-CUT 763] is applicable in this case, which was mentioned by the Hon’ble High Court in the order dated 08.04.2022 passed in W.P.(C) No.30911 of 2021 (Annexure-2 series). The opposite W.P.(C) No.33801 of 2022 Page 25 of 47 party No.6 was already approved as L-2 and in the inquiry report submitted by the DAM, Bhadrak, there was no serious financial irregularity to disqualify the opposite party No.6. As per RFP only the bidders, who are black marked will be disqualified. The eligibility criteria for the bidders is clearly mentioned in the RFP vide Clause No.2.2 of Section 2 vide Annexure- 8 to the writ petition.” 7.3. In order to appreciate the above explanation offered by the opposite party Nos.3 to 5, it is pertinent to refer to “Eligibility Criteria” contained in Clause 2.2 of Section 2— “Instructions to Bidders”, which are extracted herein below in extenso: “The bidder should fulfil the following Eligibility Criteria: I. Should be registered in India as a Company, Firm, Society or a Trust. II. Consortium is not allowed. III. Should have an average Annual Tornover of Rs. 3 Crores or more during the last three financial years (2017-18, 2018-19 & 2019-20) IV. Should have minimum 3 years of working experience in the field of Security services In Public/Private sector [State Govt./Govt. of India Institution/Govt. undertaking/Corporation/ Banks/ Govt. & Pvt. Hospitals/ Pvt. Organizations) on the stipulated date of bid submission. V. Should have enrolled at least 100 security guards as on date of bid submission. Work order / contract W.P.(C) No.33801 of 2022 Page 26 of 47 copies must be submitted in support of the no. of security guards deployed as per Format T4 VI. The Bidder must not have been blacklisted either by the tender inviting authority or by any State Govt. or Govt. of India organization. The agency shall submit undertaking regarding the same on Non- Judicial Stamp paper of Rs. 20/- as per Format T6 VII. Must have labour registration certificate VIII. Must have valid licence to engage in the business of Pvt. Security Agency from Home Dept., Govt. of Odisha. However, if the validity of the license is expired, then the bidder in their technical bid has to furnish the copy of the application letter for renewal to Home Dept. Govt. of Odisha alongwith acknowledgement proof of the same. But the bidder must have to furnish the valid renewal certificate at the time of signing of contract in case it gets selected for award of contract. IX. Must have ISO 9001 certification X. Must be registered under EPF XI. Must be registered under ESI XII. Must have a PAN XIII. Must have GST registration number.” 7.4. In the case of Afcons Infrastructure Limited Vrs. Nagpur Metro Rail Corporation Limited, (2016) 16 SCC 818, the Hon’ble Supreme Court of India has expounded by observing that the decision-making process in accepting or rejecting the bid should not be interfered with. W.P.(C) No.33801 of 2022 Page 27 of 47 Interference is permissible only if the decision-making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision-making process would not suffice. 7.5. It may be noted that when fraud is alleged against the public officer/authority to have committed malfeasance and misfeasance, onus rests heavily on the person who asserts. It is fairly well-settled that “fraud” has a definite meaning in law and it must be proved and not merely alleged and inferred. Reference can be had to Harjas Rai Makhija Vrs. Pushparani Jain, (2017) 1 SCR 1. Vide, Satish Chandra Chatterji Vrs. Kumar Satish Kantha Roy, AIR 1923 PC 73 = XXVIII Calcutta Weekly Notes 327 it has been well-nigh established that charges of fraud and collusion must, no doubt, be proved by those who make them— proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjectures are not permissible substitutes for those facts or those inferences, but that by no means requires that every W.P.(C) No.33801 of 2022 Page 28 of 47 puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape. 7.6. Analysis of the evidence on record would transpire that the petitioner by way of Rejoinder-Affidavit dated 02.05.2023 enclosed documents obtained under the Right to Information Act, 2005, which pertain to experience certificates of M/s. Bhabani Security Agency, opposite party No.6, issued by Organisations like St. Mary’s School, District Fisheries and Management Society of Dhamara Fishing Harbour. Relying such documents Sri Rakesh Behera, learned Advocate for the petitioner asserted that these organisations have denied to have engaged the petitioner. Nonetheless, Affidavit dated 24.08.2023 in opposition to said contention came to be filed by the opposite party Nos.3 to 5 by affirming that though the Tender Committee undertook verification of experience certificates, but being voluminous in nature, there was little scope to examine the veracity of each and every document furnished by bidders. Said Affidavit contained document at Annexure- K/5 with respect to “past experience in security services during the last three years” in Form T4 furnished by the W.P.(C) No.33801 of 2022 Page 29 of 47 petitioner, which was a requirement under Clause 2.6(d) of the Request for Proposal to furnish along with “Technical Proposal”. Said Form contained two categories namely “Experience in Hospitals” and “Experience in Other Organisations (Other than Hospitals)”. None of the experience certificate furnished in the category of “Experience in Hospitals” has been demonstrated by the petitioner to have been fake or obtained by practicing fraud. Thereby there is no scope also to hold that the decision of the Tender Committee, which comprised of nine Members including the Chief District Medical and Public Health Officer-opposite party No.5, was tainted with bias in favour of M/s. Bhabani Security Agency, which was declared L-2. 7.7. Notice Inviting Proposal being RFP No.Nirmal/Security/ Bhadrak/14/2020, dated 3rd December, 2020 which is enclosed as Annexure-8 to the writ petition, shows that the scope of Request for Proposal involves “to provide security services in DHH, SDHs, CHCs, PHCs of Bhadrak District”. Clause 2.6(a) of Section 2 of Request for Proposal requires bidders to submit in Cover A “Technical proposal for Security Services at Health Facilities, Bhadrak District/Office of the CDM&PHO, Bhadrak” and Cover B “Financial Proposal for Security Services at Health Facilities, Bhadrak District/Office of the CDM & PHO, Bhadrak”. Clause 2.6(d) which W.P.(C) No.33801 of 2022 Page 30 of 47 specifies “Content of the Proposal” inter alia requires “T4— Relevant Experience Details in managing security services in State Govt./Govt. of India Institution/Govt. Undertaking/Corporation/Banks during the last three years.” From the above analysis it is quite clear that there was no allegation of fraud or deception or falsity in the documents related to experience certificates furnished by the petitioner pertaining to hospital services. Therefore, no infirmity is attached to the decision taken by the Tender Committee. 7.8. During the hearing of this case, it is pointed out to the counsel for the petitioner that when scurrilous attack has been made against public authority like the Chief District Medical and Public Health Officer-opposite party No.5, as to why said authority is not impleaded as party to this proceeding in his personal capacity. No answer could be given by the counsel for the petitioner. 7.9. The issue of ‘malus animus’ was considered in Tara Chand Khatri Vrs. Municipal Corporation of Delhi, AIR 1977 SC 567, wherein the Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person W.P.(C) No.33801 of 2022 Page 31 of 47 who alleges it and there must be sufficient material to establish malus animus. 7.10. Similarly, in E.P. Royappa Vrs. State of Tamil Nadu, AIR 1974 SC 555, the Supreme Court observed as under: “Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. *** The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status... but because otherwise, functioning effectively would become difificult in a democracy.” 7.11. The Hon’ble Supreme Court of India in Sukhwinder Pal Bipan Kumar Vrs. State of Punjab, AIR 1982 SC 65; and Shivajirao Nilangekar Patil Vrs. Dr. Mahesh Madhav Gosavi & ors., AIR 1987 SC 294 has made similar observations. 7.12. In M. Sankaranarayanan, IAS Vrs. State of Karnataka, (1993) 1 SCC 54, the Supreme Court observed that: “12. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix W.P.(C) No.33801 of 2022 Page 32 of 47 cannot remain in the realm of insinuation, surmise or conjecture.” 7.13. In N.K. Singh Vrs. Union of India, (1994) 6 SCC 98 the Supreme Court of India has held that: “the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances.” 7.14. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. [Vide State of U.P. Vrs. Dr. V.N. Prasad, 1995 Suppl (2) SCC 151; Arvind Dattatraya Dhande Vrs. State of Maharashtra, (1997) 6 SCC 169; Utkal University Vrs. Dr. Nrusingha Charan Sarangi, (1999) 2 SCC 193; Kiran Gupta Vrs. State of U.P., (2000) 7 SCC 719; Netai Bag Vrs. State of W.B., (2000) 8 SCC 262]. 7.15. In State of Punjab Vrs. V.K. Khanna, (2001) 2 SCC 330, the Supreme Court of India examined the issue of bias and mala fide, observing as under: “Whereas fairness. is synonymous with reasonableness— bias stands included within the attributes and, broader purview of the word ‘malice’ which in common acceptation means and implies ‘spite’ or ‘ill will’. One redeeming feature in the matter of attributing bias or malice and is now well-settled that mere general statements will not be W.P.(C) No.33801 of 2022 Page 33 of 47 sufficient for the purpose of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice *** In almost all legal inquiries, ‘intention as distinguished from motive is the all-important factor’ and in common parlance a malicious act stands equated with an intentional act without just cause or excuse.” 7.16. Identical view has been reiterated in Samant Vrs. Bombay Stock Exchange, (2001) 5 SCC 323. 7.17. In First Land Acquisition Collector Vrs. Nirodhi Gangoli, (2002) 4 SCC 160; and Jasvinder Singh Vrs. State of J&K, (2003) 2 SCC 132, the Hon’ble Supreme Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations. 7.18. It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. [Vide State of Bihar Vrs. P.P. Sharma, I.A.S. of Delhi, AIR 1996 SC 326; All India State Bank Officers’ Federation Vrs. Union of India, (1997) 9 SCC 151; and I.K.Mishra Vrs. Union of India, (1997) 6 SCC 228]. 7.19. In Federation of Railway Officers Association Vrs. Union of India, AIR 2003 SC 1344, the Supreme Court of India W.P.(C) No.33801 of 2022 Page 34 of 47 has been pleased to hold that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration. 7.20. At this stage, reference to the Written Note of Submission dated 25.08.2023 filed by Sri Chittaranjan Pattnaik, learned Advocate for the opposite party No.6 is appropriate, wherein it has been specifically stated as follows: “Admitedly, this opposite party No.6 has submitted all the relevant documents in his reply to show cause before the Bidding Authority. Therefore, nine numbers of officials have examined the same and decided that this opposite party No.6 has satisfied all the requirements of the above said bid. But, none of them have been made parties by the petitioner, though bald allegation of mala fide is alleged against them.” 7.21. In the instance case, no factual foundation is laid to substantiate the scandalous allegation of mala fide against the Chief District Medical and Public Health Officer-opposite party No.5 and the petitioner has conveniently avoided to implead said opposite party No.5 by name as party to this proceeding. This Court having perused the documents on record and regard being had to the pleadings of the respective parties, it is observed that relevant and related experience of the petitioner in W.P.(C) No.33801 of 2022 Page 35 of 47 providing security services to the hospitals has been considered by the Tender Committee comprising of nine Members which are found to be genuine. This apart, this Court takes note of the Order dated 08.04.2022 passed in W.P.(C) No.30911 of 2021 (Bhabani Security Agency Vrs. State of Odisha), wherein the Chief District Medical and Public Health Officer, Bhadrak was directed to “take necessary steps in accordance with law”. 7.22. Therefore, this Court is unable to persuade itself that there are sufficient materials from which reasonable inference of malice, in fact for granting work order/awarding work to the petitioner, declared L-2, on the inability of L-1, can be taken. 7.23. The ratio of Judgments in United India Insurance Co. Ltd. Vrs. Rajendra Singh, AIR 2000 SC 1165 and S.P. Chengalvaraya Naidu Vrs. Jagannath, AIR 1994 SC 853, as relied upon by the counsel for the petitioner, is relating to “fraud” and its impact on the decree obtained by practicing fraud on Court, which has been discussed in the foregoing paragraphs. This Court has referred to the principles enunciated in these cases, but does not follow the result or ultimate decision of these cases for the simple reason that they are rendered under different context and distinguishing facts. In this context the dictum of the Hon’ble Supreme Court of India, as W.P.(C) No.33801 of 2022 Page 36 of 47 reflected in Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1, is felt to be quoted: “12. Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well-settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. (Ref.: Bharat Petroleum Corpn. Ltd. & Anr. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV), Mumbai E Vrs. State of Maharashtra, (2008) 1 SCC 494 and Bhuwalka Steel Industries Limited Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273).” 8. In the context of challenging the tender condition which is alleged to have been tailor-made to suit a particular bidder, and scope of intervention when mala fide is levelled against tendering authority, in Balaji Ventures Pvt. Ltd. Vrs. Maharashtra State Power Generation Company Ltd., 2022 LiveLaw (SC) 295 the Hon’ble Supreme Court has been pleased to observe as follows: W.P.(C) No.33801 of 2022 Page 37 of 47