Judgment:
1. The petitioner-The Orissa Printers & Binders Mahasangha being represented by its President, Sri Rabindranath Kar, has filed this writ petition challenging the resolution made on 25.8.2009 by the State Government in the Department of School & Mass Education under Annexure-1 deciding to invite national tender with regard to printing of Nationalised Text Books for the academic session 2010-11 and the Tender Call Notice issued by the Director, Text Book Production & Marketing, Bhubaneswar, O.P.3, on 11.2.2010 in the local newspaper "The Samaj" (Annexure-7), which according to the petitioner, contravenes the Industrial Policy Resolutions 1988 to 2009 issued by the State Government in Industries Department.
2. The case of the petitioner, in brief, is that it is a member of the Small Scale Industry, which involves in the business of printing and binding of books and the association comprises of 5000 printing presses and binding units, which were set up under the approval of the respective District Industries Centers and come within the meaning of Small Scale Industries. Nearly 70000 workers including Technicians, Skilled and Unskilled Labourers have been engaged in this trade and they mainly depend upon the printing presses to earn their livelihood.
According to the petitioner, in the Industrial Policy Resolution 1980, several incentives were given to Small Scale Industrial Units (SSI Units) and the Policy of the State Government is to ensure that those SSI Units get marketing support and the said marketing support includes facility of preferential purchase of the products manufactured by those industries by the State Government Departments and Agencies under its control. A Purchase Review Committee has been constituted with the Additional Chief Secretary to Government as its Chairman and the Secretaries to Government, Finance Department and Industries Department and the Director, Export, Promotion and Marketing as its Members to review and see proper implementation of the policies by the State Government Departments and the Agencies under its control.
According to the petitioner, the benefits of the Industrial Policy Resolution, as indicated above, were enjoyed by the petitioner for more than 15 years as the petitioner was entrusted with the work of printing and binding of text books by O.P.1 and the decision taken under Annexure-1 for floating national tender for printing and binding of text books will take away the bread of thousands of workers and the same is also in violation of the statutory provision, as contained in the Micro, Small and Medium Enterprises Development Act, 2006 as well as the Industrial Policy Resolution 2007.
Our attention was drawn to the contents of the writ petition wherein it is averred that the Orissa Industrial Policy Resolution 2007 contemplates of marketing support to micro and small enterprises in Government procurement in consonance with the Micro, Small and Medium Enterprises Development Act, 2006 and the corresponding rules.
4. The sum and substance of the argument of Mr.Kanungo, learned counsel for the petitioner, is that the resolution under in Annexure-1 is contrary to the statutory provision and the benefit conferred by the statutory provision cannot be taken by an executive decision and, therefore, the decision in Annexure-1 for floating national tender for printing and binding of text books is illegal, arbitrary and liable to be quashed.
5. By order dated 18.2.2010, this Court while issuing notice to the O.Ps. directed that till the next date, no final decision would be taken with regard to the Tender Call Notice dated 11.2.2010 under Annexure-7 and the said interim order is still continuing.
6. In the counter affidavit filed on behalf of O.Ps.1 & 3, a stand has been taken that under the policy frameworks of I.P.R. 2007and the Orissa M.S.M.E. Development Policy, 2009, it has been made mandatory for the State Government Departments and the agencies under its control to procure all the goods and services only from "EPM Rate Contract Holders" or from the list of goods and services reserved for "Exclusive Purchase" from Micro and Small Enterprises, located within the State of Orissa. The printing press and book binding are neither enlisted in "E.P.M. Rate Contract" nor find place in the "Exclusive Purchase List" of items/services that are protected for mandatory orders by the State Government or any of its agencies. Moreover, in the Schedule of Annexure-II of the I.P.R.2007 (Annexure-7), such printing press and book binding industries have been excluded from eligible list of industries, which can claim any kind of fiscal incentives. The further stand taken by the O.Ps. is that during the last academic session, the total cost of outsourcing of private printing/binding of nationalized text books was to the tune of Rs.5,73,06,536/-. Since spending of such large amount of public money is involved, it was decided by the Government in School & Mass Education Department to composite both printing and binding operations and go for national tender mechanism.
7. We may refer to Section 11 of the Micro, Small and Medium Enterprises Development Act, 2006, which reads thus :
"11. Procurement preference policy-For facilitating promotion and development of micro and small enterprises, the Central Government or the State Government may, by order notify from time to time, preference policies in respect of procurement of goods and services, produced and provided by micro and small enterprises, by its Ministries or departments, as the case may be, or its aided institutions and public sector enterprises."
In this regard, we may also refer to the notification dated 17th February, 2009 issued by the Industries Department, i.e., Orissa MSME Development Policy, 2009, Clause-2 of which provides for ample opportunity to local entrepreneurial talent and strengthen the institutional support in alignment with the present requirement of the MSME Sector. Clause-5 speaks that State Government will ensure procurement of goods and services by the Government Departments and Agencies from MSEs. located within the State via rate contract system, purchase from exclusive list and purchase by open tender with 10% price preference to local MSEs. K & VI units including Coir, Handloom and Handicrafts vis-a-vis local medium and large industries as well as outside industries. In view of the stand taken in the counter affidavit, that the printing press and book binding are not enlisted in the E.P.M.Rate Contract nor find place in the Exclusive Purchase List of items, preference cannot be given to them and the interested bidders are free to participate and quote competitive rates in the said tender, we may refer to the aims and objective and reasons of the Micro, Small and Medium Enterprises Development Act, 2006.
" xxx xxx The world over, the emphasis has now been shifted from "industries" to "enterprises". Added to this, a growing need is being felt to extend policy support for the small enterprises so that they are enabled to grow into medium ones, adopt better and higher levels of technology and achieve higher productivity to remain competitive in a fast globalisation area. Thus, as in most developed and many developing countries, it is necessary, that in India too, the concerns of the entire small and medium enterprises sector are addressed and the sector is provided with a single legal framework. As of now, the medium industry or enterprise is not even defined in any law."
There is no dispute that the petitioner is a micro enterpriser and for the last 18 years they are getting the marketing support, which is legitimate and now by virtue of the national tender, the small entrepreneurs as well as those workers who earn their livelihood by binding the books and printing will lose their job. It is not expected that the small entrepreneur can compete with the bigger industries which will come forward to participate in the national tender. So the very purport of Micro, Small and Medium Enterprises Development Act, 2006 and various provisions in the Industrial Policy Resolution to protect the small scale industries as well as small entrepreneurs will be frustrated. If we accept the argument of the learned counsel for the State that those micro entrepreneurs can participate in the tender, definitely it would be a competition between large mighty industrialists and the micro and small entrepreneurs, i.e., a competition between two unequals, in which ultimately the poor binders and printers will suffer.
10. Part-IV of our Constitution, i.e., Directive Principles of State Policy has been described as forerunners of the U.N.Convention on right to Development as an inalienable human right. Though the same are not enforceable in court of law, they are fundamental to the governance of the country. The Directives have been held to supplement fundamental rights in achieving a Welfare State. The object of Directive Principles is to embody the concept of Welfare State. In view of the fact that Articles 39(a) and 41 require the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. (See Olga Tellis & Others vrs. Bombay Municipal Corporation & Others, AIR 1986 SC 180).
Apart from this, in the Industrial Policy Resolution 1980, several incentives were given to the SSI Units and the policy of the State Government is to ensure that the SSI Units get marketing support, which includes facility of preferential purchase of the products manufactured by those industries and a Purchase Review Committee was constituted, as indicated in the foregoing paragraph, with the Additional Chief Secretary to Government as its Chairman. There is no dispute that the petitioner's units are the SSI Units. That apart, there is nothing to show that the incentives given in the I.P.R. 1980 have ever been withdrawn by the State Government. By virtue of the resolution dated 25.8.2009 made by the State Government in the Department of School & Mass Education, the benefits granted under the I.P.R. 1980 cannot be taken away.
11. Law in this regard is well settled that the Industrial Incentive Policy is issued by the State Government after such Policy is approved by the Cabinet itself and the State Government cannot deny any benefit, which is otherwise available to the Industrial Units under the Incentive Policy.( See State of Bihar & Others vrs. Suprabhat Steel Ltd. & Others, AIR 1999 SC 303).
In the present case the Industrial Incentive Policy was issued by the State Government after such policy was approved by the Cabinet itself and, therefore, it is not permissible for the Government Departments to deny any benefit, which is otherwise available to the SSI Units under the Industrial Policy Resolution.
12. In view of the aforesaid judicial pronouncements, we have no hesitation to quash the resolution made on 25.8.2009 by the State Government in the Department of School & Mass Education under Annexure-1 and the Tender Call Notice dated 11.2.2010 issued by the Director, Text Book Production & Marketing, Bhubaneswar, O.P.3, under Annexure-7 and accordingly we do so and direct the O.Ps. to award the printing and binding of text books work to S.S.I. Units of the State. The writ petition is accordingly allowed but without any order as to cost. Writ petition allowed.