IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.6342 of 2010 and M.P.Nos.1 and 2 of 2010 S.Jai Shankar ... Petitioner Vs. 1.Air Officer Commanding, Air Force Station Tambaram, Chennai - 46. 2.Chief Administrative Officer, Air Force Station Tambaram, Chennai - 46. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus, to call for the records of publication of Tender Notice published by the respondent in Indian Express Daily on 20.03.2010 and quash the same as illegal and further direct the first respondent to award contract to run the Regimental Shops as per the finalized Tender Notice published in Indian Express on 19.12.2009 as per the recommendations of the Board of Officers. For Petitioner :Mr.T.Sundaranathan for Mr.K.Perumal For Respondents :Mr.M.Ravindran, ASGI ORDER
The challenge made in the present writ petition filed under Article 226 of the Constitution of India is against the publication of Tender Notice made by the respondent in the Indian Express Daily on 20.03.2010 on the ground that the same is illegal, therefore, while praying for issuance of writ of certiorarified mandamus, sought for consequential direction to award the contract to the petitioner to run the Regimental Shops as per the finalized Tender Notice published in Indian Express on 19.12.2009.
2. In the Tambaram Air Force Station, the 1st respondent was the person to allot the regimental shops on contract basis and therefore, called for limited tender for every two years. When the 1st respondent, to run the regimental shops on contract basis for the period from 01.04.2008 to 31.03.2010, had made a publication of tender notice in the daily newspaper, Indian Express and Dinamani on 18.12.2009, the petitioner after purchasing the tender form at the cost of Rs.100/-, submitted the same for several shops after duly completing the said Tender Form by paying the EMD amount as per the tender conditions.
The 1st respondent has also appointed Board of Officer comprising of a Senior Officer as Presiding Officer and another member in the rank of Senior Non Commissioned Officer by SRO No.5/2010, dated 08.01.2010 and on the specified date, the Board of Officers assembled on 20.01.2010 at 10.00 hrs. and after opening the Tender Forms, finalized the same and thereafter, forwarded to the 1st respondent for approval of Cafeteria/Supper Bar (Main Camp), Trainees Cafeteria (Main Camp), Fruit Stall/Juice Bar for Trainees and all others at Shopping Complex (Main Camp), Ice Cream Parlour (Main Camp).
Therefore, the learned counsel appearing for the petitioner submits that after submitting his Tender Forms, he was waiting for a communication from the office of the 1st respondent. But, later on, when he approached the office of the 2nd respondent, he was informed that the previous tender in respect of all the shops were cancelled and re-tender notice was also published in the Indian Express on 20.03.2010. Therefore, it was contended by the learned counsel for the petitioner that the reason stated in the re-tender as unsatisfactory response is not genuine, and thereafter, when he made an attempt to meet the 1st respondent, he was not allowed to do so and on that basis, it was further contended that when his EMD amount paid by him as per the original tender notice, is still withheld by the respondents, publishing re-tender notice, even without returning the EMD amount and without giving any priority for Ex-Servicemen is illegal and malafide, therefore, he argued that when a huge amount of Rs.2,61,323/- deposited by the petitioner as EMD without being returned to the petitioner, the action of the respondents in issuing re-tender notice is against the principles of natural justice.
3. Per contra, the learned Additional Solicitor General appearing for the respondents contended that none of the bidders qualified for award of contract due to non availability of mandatory documents, payment towards monthly rebate and want of income tax and sales tax papers along with tender documents and since the bidders participated in the tender process proved to be non qualified for award of contract, the question of awarding contract to one of the existing contractor did not arise. Further, at the instance of the writ petitioner when this writ petition was filed challenging the publication of tender notice by the respondent in the Indian Express Daily on 20.03.2010, this Court, by order dated 01.04.2010, granted status quo to be maintained till 12.04.2010 and subsequently, the said interim order was extended till now. In view of that, the respondents have not made any decision with regard to the award of contract and only bids were opened. Further, it was heavily contended that it is a figment of imagination regarding the closeness of Mr.Surendran and Mr.D.Madan with the 2nd respondent for not awarding contract to the petitioner. Further, he has submitted that the present writ petition is not maintainable in challenging the re-tender process as he has not even paid EMD as per the instructions attached to the Tender Forms.
4. Further, it was urged before this Court that Ex.WO Arumugam and Ex.Sgt.K.Perumal submitted two sets of tender forms and without submitting original tender forms, they have submitted photo copies of tender forms. Therefore, all the applications were held invalid for the reasons that they have made only photocopies of the tender forms without paying Rs.100/- to the SI Office.
5. In his further submission, it was submitted that though the petitioner tendered for 8 shops and paid requisite EMD therefor, he had not submitted income tax and sales tax documents as part of the conditions mentioned in the tender notification. Further, his track record in past performances in handling food oriented regimental shops were not up to the mark and in view of frequent show cause notices issued to him, after the receipt of the show cause notice, the petitioner has also replied to the show cause notice admitting his lapse and therefore, it was also on record that he was issued with warnings on three occasions to improve his services, failing which he was also informed that necessary action should be initiated by letter dated 04.06.2007. But, even in the 2nd time also he failed to improve his services, therefore, he was issued with second show cause notice on 10.10.2007. Again, finding no reply, he was warned by letter dated 31.10.2007 to provide good services to keep the surroundings both at the supper bar and the extension counter at GIS neat and clean, with clear warning that his contract would be terminated. Further, another warning letter dated 11.12.2007 was issued to the petitioner complaining that on surprise check in supper bar on 18.12.2007 at around 12.30 hrs., some Ex-Servicemen were found having liquor and for which, the petitioner replied, by letter dated 28.11.2007, stating that no liquor would be allowed to be served inside the supper bar. Based on his explanations, by warning letter dated 11.12.2007, the petitioner was again warned to refrain from engaging in such unauthorized activities, even after that, again he was informed that his contract would be terminated and he would not be considered for any contract in future and on the basis of the above mentioned misconduct of the petitioner, the learned Additional Solicitor General for the respondents sought for dismissal of the present writ petition.
6. Heard the learned counsel appearing on either side and perused the materials available on record.
7. In the Tambaram Air Force Station, several regimental shops belonging to the 1st respondent are being given on contract basis by properly allotting on the basis of the open tender process for every two years. The petitioner was also awarded on contract basis to run Supper Bar within the camp area by the respondents upto 31.03.2008. For the period from 01.04.2008 to 31.03.2010, the petitioner was not the highest bidder and therefore, the contract for the said period was given to another highest bidder. But, he was also running cycle shop from 01.04.2008 to 31.03.2010. When the 1st respondent made a publication of Tender Notice in the daily Newspaper, Indian Express and Dinamani on 18.12.2009 to run the shops for the period from 01.04.2008 to 31.03.2010, the petitioner, after purchasing the Tender Forms, submitted for various shops by depositing a sum of Rs.2,68,323/- as EMD. Thereafter, the Board of Officers assembled on 20.01.2010 at 10.00 hrs. and after opening the tender forms, the Board of Officers finalized the same and thereafter, forwarded the same to the 1st respondent, recommending for Cafeteria/Supper Bar (Main Camp), Fruit Stall/Juice Bar for Trainees and all others at Shopping Complex(Main Camp), Trainees Cafeteria (Main camp) and Ice Cream Parlour (Main Camp). When he was waiting for communication, his offer for highest bidder was cancelled and re-tender was published in the Indian Express on 20.03.2010 is under challenge.
8. When the petitioner had applied for 8 shops, for being an Ex-Serviceman with previous experience for running the Supper Bar, the Board of Officers recommended the petitioner’s bid as being the highest one among others. Ignoring this, re-tender notice was published in Indian Express on 20.03.2010 without disclosing any tender conditions with respect to the payment of EMD and other priority to be given to the Ex-Servicemen. In the meanwhile, prior to the re-tender, when the petitioner approached the office of the 2nd respondent, it was replied to the petitioner that he had tendered for 8 shops and paid the requisite EMD and on scrutiny of his documents, it was found that he had not submitted income tax and sales tax documents, besides his past performances in handling the food oriented regimental shops and his tract records were not up to the mark and therefore, he was issued with show cause notices on several occasions to improve the quality as well as hygienic conditions in the shops and bars and only in view of warnings issued to the petitioner on various occasions, he was not considered as a suitable contractor for food related ventures. Though, his arguments appears to be attractive one, when the respondents issued the impugned re-tender, no tender conditions have been mentioned in the re-tender notice. In the event of publication of re-tender notice in the Indian Express Daily on 20.03.2010, if any other new person with more experience in running the above mentioned shops wants to participate, he would not be in a position to apply, as nobody could be able to find out what are the conditions for such re-tender, because the re-tender notice does not indicate what are the experience the contractor has to possess and how much is the EMD. Therefore, the re-tender notice having not mentioned the requisite qualification for the tenderer in order to apply for the tender, the same is liable to be set aside. Further, the contract given to Mr.Selvam was assailed on the ground that Mr.Selvam did not participate in the tender process, however, he has been allotted without following any existing procedures. These specific allegations have not been replied by the respondents in their counter filed before this Court.
9. Therefore, the action of the respondents in publishing the re-tender notification without properly informing the terms and conditions to the bidders is to be held as invalid, for the reason that the respondents in the re-tender notice have mentioned to refer a three months old advertisement inviting tenderers for regimental shops on 19.12.2009, by such advertisement, the respondents cannot expect the interested bidders to come forward for purchasing three months old newspaper dated 19.12.2009. Indeed, it is quite impossible to get the same also. Therefore, the impugned action of the respondents in going for publishing the re-tender notification dated 20.03.2010, without disclosing the terms and conditions for re-tendering, suffers for want of transparency in the dealings of the shops of the respondents and accordingly, this court is inclined to set aside the impugned re-tender notice.
10. However, the petitioner has asked for a prayer to award the contract to run the regimental shops as per the finalized tender published in the Indian Express on 19.12.2009 on the recommendations of the Board of Officers. Since the respondents have also repeatedly given show cause notices followed by the severe warnings, this Court, sitting under Article 226, does not incline to grant the second part of the prayer in his favour. However, the respondents are directed to hold fresh tender in accordance with law. It is needless to mention that the respondent shall return the petitioner’s EMD lying with them forthwith to the petitioner. In view of the earlier order passed by this court maintaining the status quo, in respect of the re-tender, this court for the reasons mentioned above, is inclined to confirm the interim order and as a result, the impugned publication of tender notice published by the respondent in the Indian Express on 20.03.2010 is hereby quashed as illegal.
11. For the reasons stated above, the present writ petition is partly allowed. No Costs. Consequently, connected miscellaneous petitions are closed.
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To
1.Air Officer Commanding,
Air Force Station Tambaram,
Chennai – 46.
2.Chief Administrative Officer,
Air Force Station Tambaram,
Chennai 46