IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:3-9-2010
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
W.P.No.5726 of 2010
R.Ravichandran ... Petitioner
Versus
1.The Chairman-cum-Managing Director
Tamilnadu State Marketing Corporation
Limited CMDA Tower,IV Floor,
Gandhi Irwin Bridge Road,
Egmore, Chennai-600 008.
2.The Senior Regional Manager,
Tamilnadu State Marketing Corporation
Limited No.131-132 Dayalan Street,
Kavundampalayam,
Coimbatore-641 030.
3.The District Manager,
Tamilnadu State Marketing Corporation
Limited No.131-132 Dayalan Street,
Kavundampalayam,
Coimbatore-641 030.
4.K.Jayakumar,
M/s.Kongu Transports,
No.7, Muthu Gounder Layout,
Pollachi. ... Respondents
Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records of the proceedings of the third respondent, dated 23.02.2010 bearing Ref.No.Na.Ka.442/2010/rv.3, awarding tender in favour of the fourth respondent for transporting Indian Made Foreign Liquor (IMFL) from the TASMAC, Pollachi Deport to retail units in Pollachi, Udumalpet and Valparai Taluks for the year 2010-2011 as confirmed by the consequential order dated 5.3.2010 passed by the second respondent, bearing Ref.No.Na.Ka.525/2010/A5 and set aside the same and further direct the respondents 1 to 3 to call for a fresh tender in respect of transporting Indian Made Foreign Liquor (IMFL) from the TASMAC, Pollachi Depot to retain units in Pollachi, Udumalpet and Valparai Taluks for the year 2010-2011 and complete the said process within the time frame.
For Petitioner :Mr.CPG.Yoyanand
for M/s.CPG.Yoganand Associates
For Respondents :Mr.J.Ravindran for RR 1 to 3
Mr.Anandaramani for R4
ORDER
The petitioner who is aggrieved by the awarding of transport contract to the 4th respondent by the third respondent is before this court.
2. The third respondent invited tender for transport of Indian Made Foreign Liquor through TASMAC depot, Pollachi to retail units and the said tender is valid for a period from 26.2.2010 to 25.2.2011. The petitioner participated in the tender (both Commercial Bit and Price Bid). The tender was opened on 19.2.2010 and the 4th respondent was declared as successful bidder inspite of objections raised by the petitioner that the Commercial Bid submitted by the 4th respondent did not fulfil the terms and conditions of the tender, especially clause 20(b) of the tender document of the Pollachi depot. In this regard, the petitioner gave a representation on 22.2.2010 for review of awarding contract to the 4th respondent, which was rejected by the third respondent on 23.2.2010. Against the said order an appeal dated 25.2.2010 was filed before the second respondent, which was rejected on 5.3.2010 confirming the order of the third respondent. Challenging the above said order only the present writ petition has been filed.
3. Mr.CPG.Yoganand learned counsel for the petitioner submitted that the bidders have to comply with the terms and conditions including Clause 20 (b) of the tender document which states that the statutory liabilities are to be borne by the Transport Corporation. Whereas the 4th respondent did not pay the EPF amount, and therefore he was not eligible to participate in the tender. He referred to the impugned order dated 15.3.2010 passed by the second respondent wherein in the last para it was confirmed that the 4th respondent was due, a sum of Rs.21353/- towards EPF. In this regard he also referred to a letter dated 18.2.2010 of the TASMAC Depot Tirupur, the third respondent, wherein the 4th respondent EPF due was confirmed. Secondly he submitted that the conditions in the tender document in Clause 20(b)is the mandatory to produce EPF number certificate at the time of tender. All the tender documents issued by the TASMAC depot are having the said clause uniformly, whereas the Pollachi Depot omitted such a condition and the omission was only to enable the 4th respondent to get the tender. He referred to the tender document of Tirupur depot, where it has been stated that EPF member certificate is to be produced at the time of tender. Therefore the learned counsel submits that the awarding of contract to the 4th respondent should be set aside and fresh tender is to be issued.
4. On the other hand Mr.J.Ravindran learned counsel for the respondents 1 to 3 submits that the 4th respondent quoted the lower rate and therefore he was awarded the tender. Moreover he submits that there is variation in tender conditions, place to place and depot to depot and there cannot be any uniformity regarding the conditions. He further submitted that the tender for Pollachi Depot was invited for the first time and previously it was conducted by the District Manager TASMAC, Tirupur. Since the tender is concerned only to Pollachi Depot, tender document issued by the Pollachi Depot alone would govern the tender process. He relied upon a judgement of the Hon’ble Supreme Court in Association of Registration Plates vs. Union of India and others reported in (2005) 1 SCC 679, wherein it has been held that, unless the tender authority is found to be malicious and misusing of its statutory power, the tender conditions are assailable. He further submits that the petitioner is a rival transporter and he is a Transport Contractor for TASMAC in various places in and around Tirupur District and he wants to create monopoly and out of business rivalry the present writ petition has been filed. Therefore he sought for dismissal of the writ petition. Similar argument was advanced by the learned counsel for 4th respondent.
5. It is seen from the records that the petitioner as well as the 4th respondent along with two others participated in the bid. The petitioner quoted Rs.4.50 and the 4th respondent quoted Rs.3.90 and therefore the 4th respondent’s bid was accepted and he was awarded the contract. If the petitioner is aggrieved with regard to the conditions of the tender, he should have objected the same before participating in the bid or before the opening of the bid on 19.2.2010 and only when the 4th respondent was declared as successful bidder, the petitioner objected and submitted a representation on 22.2.2010 i.e. three days after the opening of the tender. Having gone through the tender document and taken conscious decision to participate in the tender by quoting the bid amount, it is not open to the petitioner to make Hue and cry about the conditions belatedly, when the 4th respondent’s bid amount was found to be lower and the 4th respondent was awarded the tender.
6. Clause 20(b) of the tender document regarding Pollachi Depot reads as follows:
“(b) Payment of freight charges will be made by the respective depot within 7 days from the date of submission of invoices in duplicate in the name of the District Manager after the materials are received and furnishing of full details of Transport Order No.————, date of transportation, Lorry No.———-, delivery challan etc. The amount will be paid only after the counter checking and after satisfying that the bills are in order. Any delay in making payment by TASMAC will not entitle the transport contractor for payment of any interest. Separate invoices for every transport has to be made on unit basis and payment will be made after verification from the respective units for receipt of goods in good condition. Bills will be settled on fortnightly basis after deducting all statutory levies (Such as TDS etc.) imposed by Central and State Government from time to time. Since the rate finalised inclusive of service tax it will be deducted from transporters bill. EPF to coolie Workers (Loading) and if any other statutory liabilities will arise in future it will be borne by the Transport Contractors only.”
The conditions regarding EPF, Clause 20(b) of the tender document of TASMAC Tirupur Depot is extracted as follows:
“20(b) Payment of freight charges will be made by the respective depot within 7 days from the date of submission of invoices in duplicate in the name of the District Manager after the materials are received and furnishing of full details of Transport order No.———– Date of transportation Lorry No.————– , delivery challans etc. the amount will be paid only after the counter checking and after satisfying that the bills are in order. Any delay in making payment by TASMAC will not entitle the Transport contractor for payment of any interest separate invoice for every Transport has to be made on unit basis and payment will be made after verification from the respective units for receipt of goods in good condition. Bill will be settled on fortnightly basis after deducting all statutory levies (such as TDS etc. ) imposed by Central and State Government from time to time. Since the rate finalised inclusive of service tax it will be deducted from Transporter bill. Employees Provident Fund to coolie workers (loading) and if any other statutory liabilities will arise in future in will be borne by the Transport contractors only. Hence, the Transport Contractors should produce xerox copy of the employee provident fund numbers certificate which is produced by the commissioner of provident fund at the time of tender.”
7. The aforesaid conditions of tender documents of different depots of TASMAC would reveal that different tender forms are used for different depots. The clause 20(b) of Pollachi depot tender document would only states that EPF is only liability of the Transporter and it does not state that payment is a pre-condition.
8. Moreover the communication dated 17.4.2007 issued by the first respondent to the various Senior Regional Managers, District Managers, Depot Managers of TASMAC in Tamilnadu, the first respondent insisted about the payment of EPF charges by contactors. The said letter specifically stated that TASMAC is not any engaging labourers and is not paying any charges to them and it only permits them inside its godown for loading operations. It further states that the District Managers and Depot Managers are instructed to see that the payment of EPF for load-men are duly recovered and paid by the transport contractors engaged for transporting IMFS liquor. In the said communication it has been mentioned as follows:
” If necessary, specific clause may be added in the tender documents that for EPF contributions the transport contractors alone are responsible “.
9. The aforesaid communication would make it clear that an instruction was given to all the depots regarding inclusion of clause regarding EPF contribution in the tender documents. The said communication further reveals that the tender documents are prepared by each depot and only instructions are being given by the first respondent. Therefore the contention of the petitioner that the clauses are uniform in all the tender documents cannot be accepted.
10. It is well settled law that agreeing to the tender conditions and participated in the tender, the party cannot later challenge the conditions. If any condition in the tender document was unfavourable, or important covenant was omitted to be included, the petitioner should have printed out and raised his objection at the earliest point of time, or before submitting his tender. Otherwise the petitioner is estopped from challenging the same. The judgement of the Hon’ble Supreme Court in 2005(1) SCC 679 declares that unless the action of the tender authorities is found to be malicious and misuse of statutory power, the tender conditions are unassailable. In this case there is no such violation. The aforesaid said judgement is squarely applicable to the facts of the case. When the awarad contract is as per the tender document the same cannot be challenged by the unsuccessful bidder.
11. Apart from that one another important factor to be considered by this Court is that the period of contract is from 26.2.2010 to 25.2.2011. The 4th respondent was awarded contract on 19.2.2010 and he had already commenced his business and he is in the process of the execution of the contract. Almost half of the period is over and any interference at this stage would cause problem to the functioning of the third respondent and it would result in difficulty in the distribution of liquor bottles besides loss to the exchequer. Therefore the writ petition fails and the same is dismissed. No costs. Consequently connected M.P.No.1 of 2010 is also dismissed.
12. Our country is a Welfare State. Labourers are weaker section of society. To safeguard their interest only, beneficial legislation including EPF Act were enacted. Therefore, as an instrumentality of the State, TASMAC should see that the bidders who paid EPF contributions are alone allowed to take part in any tender by TASMAC. Therefore in the interest of labourers engaged, it is better that the first respondent makes it mandatory to include a specific clause regarding EPF contribution and production of no due certificate from the concerned EPF authority before bidder takes part in the tender. It is better to have uniform tender document containing same conditions. Otherwise it would give raise to this kind of litigation.
To
1.The Chairman-cum-Managing Director
Tamilnadu State Marketing Corporation
Limited CMDA Tower,IV Floor,
Gandhi Irwin Bridge Road,
Egmore, Chennai-600 008.
2.The Senior Regional Manager,
Tamilnadu State Marketing Corporation
Limited No.131-132 Dayalan Street,
Kavundampalayam,
Coimbatore-641 030.
3.The District Manager,
Tamilnadu State Marketing Corporation
Limited No.131-132 Dayalan Street,
Kavundampalayam,
Coimbatore 641 030
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