Kottarakkara Public Works Skilled Workers Labour Contract Co Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1016506
CourtKerala High Court
Decided OnJul-30-2013
JudgeHONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
AppellantKottarakkara Public Works Skilled Workers Labour Contract Co
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice p.r.ramachandra menon tuesday,the 30th day of july 2013 8th sravana, 1935 wp(c).no. 16549 of 2013 (p) ---------------------------------------- petitioner: ------------------- kottarakkara public works skilled workers - labour contract co-operative society ltd., q-459, kottarakkara, represented by its secretary, rejani .a. by adv. sri.t.v.ajayakumar. respondents: ------------------------ 1. state of kerala, rep by the chief secretary to the government, secretariat, thiruvananthapuram-695 001.2. the executive engineer, p w d (roads) division, kollam-691 001. by sr. government pleader sri. joseph george. this writ petition (civil) having come up for admission on 30-07-2013, the court on the same day delivered the following: prv. w.p.(c).no.16549/2013-p: appendix petitioner's exhibits: ext.p1:- true copy of the go(ms)135/97/co-op.dtd. 13/11/1997. ext.p2:- true copy of the government order dtd. 18/6/2011. ext.p3:- true copy of the order dtd. 29/7/2011 issued by the addl.registrar of co-operative societies(consumer). ext.p4:- true copy of the judgment dtd. 5/2/2009 of this hon'ble court in w.p.(c). no. 36527/08. ext.p5:- true copy of the go(ms)no 44/04/pwd dtd. 19/3/2004. ext.p6:- true copy of the notificatin dtd. 13/6/2013 issued by the 2nd respondent. ext.p7:- true copy of the order no d1-3229/12 dtd. 24/9/2012 issued by the 2nd respondent. ext.p8:- true copy of the order no 31-3230/12 dtd. 24/9/2012 issued by the 2nd respondent. respondents' exhibit: ext.r.2.a: copy of the notice on 19/06/2013 issued by the r.2. //true copy// p.a. to judge. prv. p.r. ramachandra menon, j.:::::::::::::::::::::::::::::::::::::::::::::::: w.p.(c). no. 16549 of 2013 ...................................................... dated this the 30th day of july, 2013 judgment the petitioner society has approached this court, challenging the correctness and sustainability of the conditions imposed as per ext.p6 tender notification, virtually denying the opportunity to participate in the tender for such labour contract co-operative societies, holding that, labour contract societies are not eligible to participate in the tender.2. the specific case of the petitioner is that, there is no rhyme of reason for stipulating such condition and that the same is only with intent to extend undue favour to the persons of choice. many a ground has been raised in the writ petition referring to the sequence of events and as to the actual facts and figures. when the matter came up for consideration before this court on 02.07.2013, the following interim order was passed: "learned government pleader seeks for time to get instructions with regard to the stipulation contained in ext.p6 tender notice, placing a bar to the persons like the petitioner society in respect of items 11 to 14. post on 08.07.2013. opening of the tender shall be kept in abeyance till that date. learned government pleader is required to w.p.c. no. 16549 of 2013 -2- communicate the position to all concerned." it was subsequently extended from time to time.3. now, a counter affidavit has been filed on behalf of the 2nd respondent virtually conceding the position that, the adverse situation in ext.p6 was never intended, however, seeking to explain the position as only an 'inadvertent mistake'. it is stated that a corrigendum notification was issued on 19.06.2013 vide ext.r2(a), despite which the petitioner did not turn up to participate in the bid and has approached this court by filing this writ petition with a malafide intent. it is also stated that, 3 persons participated in the bid in respect of serial no.11, while 3 persons participated in respect of serial no.12 including a labour contract co-operative society, 5 persons in respect of work mentioned in serial no.13 and 4 persons including one labour contract co-operative society in respect the remaining item. with reference to r2(a), it is sought to be asserted that, the petitioner having not chosen to participate in the tender, despite issuance of ext.r2(a), is not entitled to project the cause in the writ petition and seeks to vacate interim order.4. heard the learned counsel for the petitioner and also the learned government pleader at length. w.p.c. no. 16549 of 2013 -3- 5. fact remains that the petitioner was virtually prevented from participating in ext.p6 bid by virtue of the status of the petitioner as a labour contract co-operative society, in respect of works at serial nos. 11 to 14. the respondents have now conceded in the counter affidavit that, it was only an 'inadvertent mistake'. the stand taken by the concerned respondent is discernible from paragraphs 3 to 5 of the counter affidavit, which are extracted below: "3. it is hereby submitted that the above mentioned additional condition in ext.p6 was incorporated due to an inadvertent mistake. ext.p6 tender notification was published on 13.06.2013. altogether 25 numbers of civil works were included in ext.p6 tender notification. the impugned condition is meant for supply of bitumen and the same was mistakenly included in ext.p6. on noting the above mistake the 2nd respondent published a notice on 19.06.2013 by informing all concerned that the condition regarding bitumen conveyance in ext.p6 tender was deleting. true photocopy of notice on 19.06.2013 issued by the 2nd respondent is produced herewith and marked as ext.r2(a).4. it is hereby submitted that the last date for acceptance of tender in respect of item nos. 11 to 13 in exhibit was specified as 3 p.m. on 02.07.2013 and in respect of item nos.14 to 35 as 3 p.m. on 05.07.2013. in exhibit p6, it is clearly mentioned that any clarification regarding the w.p.c. no. 16549 of 2013 -4- tenders can be enquired directly to the office of the 2nd respondent. the petitioner never made any attempt to get clarification in respect of the additional condition incorporated in exhibit. ext.r2 (a) notice was published on 19.06.2013 and the petitioner waited till the last date of acceptance of tender and moved the above writ petition. there is absolutely no explanation for the delay on the part of the petitioner in filing the above writ petition.5. it is hereby submitted that, three persons participated in serial no.11, three persons participated in serial no.12 including a labour contract co-operative society, 5 persons submitted tenders in respect of the work mentioned as serial no.13 and 4 persons including one labour contract co-operative society participated in the tender after the publication of ext.r2(a) notice. the petitioner willfully abstained from participating in the tender process and approached this honourable court on the last moment with a view to sabotage the tender process. it is reiterated that the incorporation of the impugned condition was not intentional and happened due to an inadvertent mistake. the same was corrected by giving sufficient time to the participants to submit there tender." 6. from the above undisputed pleadings which do not require any further proof, the fact remains that, the condition in respect of the items at serial nos. 11 to 14, preventing labour contract co-operative societies from participating in the bid w.p.c. no. 16549 of 2013 -5- ought not to have been there in ext.p6. admittedly, ext.p6 tender was published in 'newspapers' proclaiming the position to the notice of all concerned; as a result of which, several co- operative societies like the petitioner might have been made to wait outside, without having entry to submit their bid.7. coming to ext.r2(a), the alleged corrigendum seeking to delete the said stipulation, admittedly it has not been published in any newspaper. in what way the respondents caused the same to be published, bringing the corrected position to the notice of all concerned is not known. having found that the stipulation was only a mistake, adequate care and caution should have been taken by the respondents to have it had published, bringing it to the notice of all concerned who happened to be prevented as per ext.p6 notification which was originally published in the newspaper. it cannot but be said that, the course pursued by the 2nd respondent in confining ext.r2(a) notification enabling a very few persons alone who came across the doors of the 2nd respondent to have noted ext.r2(a) and participate in the tender, while preventing several other similarly situated persons from coming to the forefront with their competitive bids. if anybody doubts the bonafides on the part of w.p.c. no. 16549 of 2013 -6- the concerned respondents and the absence of required prudence to be shown by the concerned officer, he can't be found fault with. this court finds that, the proceeding sought to be finalized by the 2nd respondent in respect of the tender items at serial nos. 11 to 14 is not at all correct, transparent or sustainable either on facts or on law.8. in the said circumstance, the tender in respect of serial nos. 11 to 14 notified as per ext.p6 is set aside. the 2nd respondent is directed to effect a fresh tender notification incorporating the relevant conditions, after correcting the mistakes conceded before this court, by giving vide publicity including by publication in the daily in which ext.p6 notification was issued earlier, with opportunity to all concerned to participate in the bid. on such an event, the petitioner also will stand eligible to make the offer. the writ petition stands allowed. no cost. p.r. ramachandra menon, judge. kp/-
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY,THE 30TH DAY OF JULY 2013 8TH SRAVANA, 1935 WP(C).No. 16549 of 2013 (P) ---------------------------------------- PETITIONER: ------------------- KOTTARAKKARA PUBLIC WORKS SKILLED WORKERS - LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD., Q-459, KOTTARAKKARA, REPRESENTED BY ITS SECRETARY, REJANI .A. BY ADV. SRI.T.V.AJAYAKUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

2. THE EXECUTIVE ENGINEER, P W D (ROADS) DIVISION, KOLLAM-691 001. BY SR. GOVERNMENT PLEADER SRI. JOSEPH GEORGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.16549/2013-P: APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF THE GO(MS)135/97/CO-OP.DTD. 13/11/1997. EXT.P2:- TRUE COPY OF THE GOVERNMENT ORDER DTD. 18/6/2011. EXT.P3:- TRUE COPY OF THE ORDER DTD. 29/7/2011 ISSUED BY THE ADDL.REGISTRAR OF CO-OPERATIVE SOCIETIES(CONSUMER). EXT.P4:- TRUE COPY OF THE JUDGMENT DTD. 5/2/2009 OF THIS HON'BLE COURT IN W.P.(C). NO. 36527/08. EXT.P5:- TRUE COPY OF THE GO(MS)NO 44/04/PWD DTD. 19/3/2004. EXT.P6:- TRUE COPY OF THE NOTIFICATIN DTD. 13/6/2013 ISSUED BY THE 2ND RESPONDENT. EXT.P7:- TRUE COPY OF THE ORDER NO D1-3229/12 DTD. 24/9/2012 ISSUED BY THE 2ND RESPONDENT. EXT.P8:- TRUE COPY OF THE ORDER NO 31-3230/12 DTD. 24/9/2012 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBIT: EXT.R.2.A: COPY OF THE NOTICE ON 19/06/2013 ISSUED BY THE R.2. //TRUE COPY// P.A. TO JUDGE. Prv. P.R. RAMACHANDRA MENON, J.

:::::::::::::::::::::::::::::::::::::::::::::::: W.P.(C). No. 16549 of 2013 ...................................................... Dated this the 30th day of July, 2013 JUDGMENT The petitioner Society has approached this Court, challenging the correctness and sustainability of the conditions imposed as per Ext.P6 tender notification, virtually denying the opportunity to participate in the tender for such Labour Contract Co-operative Societies, holding that, Labour Contract Societies are not eligible to participate in the tender.

2. The specific case of the petitioner is that, there is no rhyme of reason for stipulating such condition and that the same is only with intent to extend undue favour to the persons of choice. Many a ground has been raised in the writ petition referring to the sequence of events and as to the actual facts and figures. When the matter came up for consideration before this Court on 02.07.2013, the following interim order was passed: "Learned Government Pleader seeks for time to get instructions with regard to the stipulation contained in Ext.P6 tender notice, placing a bar to the persons like the petitioner society in respect of items 11 to 14. Post on 08.07.2013. Opening of the tender shall be kept in abeyance till that date. Learned Government Pleader is required to W.P.C. No. 16549 of 2013 -2- communicate the position to all concerned." It was subsequently extended from time to time.

3. Now, a counter affidavit has been filed on behalf of the 2nd respondent virtually conceding the position that, the adverse situation in Ext.P6 was never intended, however, seeking to explain the position as only an 'inadvertent mistake'. It is stated that a Corrigendum Notification was issued on 19.06.2013 vide Ext.R2(a), despite which the petitioner did not turn up to participate in the bid and has approached this Court by filing this writ petition with a malafide intent. It is also stated that, 3 persons participated in the bid in respect of Serial No.11, while 3 persons participated in respect of Serial No.12 including a Labour Contract Co-operative Society, 5 persons in respect of work mentioned in Serial No.13 and 4 persons including one Labour Contract Co-operative Society in respect the remaining item. With reference to R2(a), it is sought to be asserted that, the petitioner having not chosen to participate in the tender, despite issuance of Ext.R2(a), is not entitled to project the cause in the writ petition and seeks to vacate interim order.

4. Heard the learned counsel for the petitioner and also the learned Government Pleader at length. W.P.C. No. 16549 of 2013 -3- 5. Fact remains that the petitioner was virtually prevented from participating in Ext.P6 bid by virtue of the status of the petitioner as a Labour Contract Co-operative Society, in respect of works at serial Nos. 11 to 14. The respondents have now conceded in the counter affidavit that, it was only an 'inadvertent mistake'. The stand taken by the concerned respondent is discernible from paragraphs 3 to 5 of the counter affidavit, which are extracted below: "3. It is hereby submitted that the above mentioned additional condition in Ext.P6 was incorporated due to an inadvertent mistake. Ext.P6 Tender Notification was published on 13.06.2013. Altogether 25 numbers of civil works were included in Ext.P6 tender notification. The impugned condition is meant for supply of bitumen and the same was mistakenly included in Ext.P6. On noting the above mistake the 2nd respondent published a notice on 19.06.2013 by informing all concerned that the condition regarding bitumen conveyance in Ext.P6 tender was deleting. True photocopy of notice on 19.06.2013 issued by the 2nd respondent is produced herewith and marked as Ext.R2(a).

4. It is hereby submitted that the last date for acceptance of tender in respect of item Nos. 11 to 13 in Exhibit was specified as 3 p.m. on 02.07.2013 and in respect of item Nos.14 to 35 as 3 p.m. on 05.07.2013. In Exhibit P6, it is clearly mentioned that any clarification regarding the W.P.C. No. 16549 of 2013 -4- tenders can be enquired directly to the office of the 2nd respondent. The petitioner never made any attempt to get clarification in respect of the additional condition incorporated in Exhibit. Ext.R2 (a) notice was published on 19.06.2013 and the petitioner waited till the last date of acceptance of tender and moved the above writ petition. There is absolutely no explanation for the delay on the part of the petitioner in filing the above writ petition.

5. It is hereby submitted that, three persons participated in Serial No.11, three persons participated in serial No.12 including a Labour Contract Co-operative Society, 5 persons submitted tenders in respect of the work mentioned as serial No.13 and 4 persons including one Labour Contract Co-operative Society participated in the tender after the publication of Ext.R2(a) notice. The petitioner willfully abstained from participating in the tender process and approached this Honourable Court on the last moment with a view to sabotage the tender process. It is reiterated that the incorporation of the impugned condition was not intentional and happened due to an inadvertent mistake. The same was corrected by giving sufficient time to the participants to submit there tender." 6. From the above undisputed pleadings which do not require any further proof, the fact remains that, the condition in respect of the items at Serial Nos. 11 to 14, preventing Labour Contract Co-operative Societies from participating in the bid W.P.C. No. 16549 of 2013 -5- ought not to have been there in Ext.P6. Admittedly, Ext.P6 tender was published in 'Newspapers' proclaiming the position to the notice of all concerned; as a result of which, several Co- operative Societies like the petitioner might have been made to wait outside, without having entry to submit their bid.

7. Coming to Ext.R2(a), the alleged Corrigendum seeking to delete the said stipulation, admittedly it has not been published in any Newspaper. In what way the respondents caused the same to be published, bringing the corrected position to the notice of all concerned is not known. Having found that the stipulation was only a mistake, adequate care and caution should have been taken by the respondents to have it had published, bringing it to the notice of all concerned who happened to be prevented as per Ext.P6 notification which was originally published in the newspaper. It cannot but be said that, the course pursued by the 2nd respondent in confining Ext.R2(a) notification enabling a very few persons alone who came across the doors of the 2nd respondent to have noted Ext.R2(a) and participate in the tender, while preventing several other similarly situated persons from coming to the forefront with their competitive bids. If anybody doubts the bonafides on the part of W.P.C. No. 16549 of 2013 -6- the concerned respondents and the absence of required prudence to be shown by the concerned officer, he can't be found fault with. This Court finds that, the proceeding sought to be finalized by the 2nd respondent in respect of the tender items at serial Nos. 11 to 14 is not at all correct, transparent or sustainable either on facts or on law.

8. In the said circumstance, the tender in respect of serial Nos. 11 to 14 notified as per Ext.P6 is set aside. The 2nd respondent is directed to effect a fresh tender notification incorporating the relevant conditions, after correcting the mistakes conceded before this Court, by giving vide publicity including by publication in the daily in which Ext.P6 notification was issued earlier, with opportunity to all concerned to participate in the bid. On such an event, the petitioner also will stand eligible to make the offer. The writ petition stands allowed. No cost. P.R. RAMACHANDRA MENON, JUDGE. kp/-