Karnataka High Court
Banashankari Electricals Davanagere vs The Karnataka Power Transmission ... on 17 January, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 103456 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 103456 OF 2021 (GM-TEN)
BETWEEN:
SREE EKANATHESWARI ELECTRICALS,
2191/465, CHIKKAMMANI DEVARAJA
ARASA BADAVANI, NITUVALLI-8,
DAVANAGERE-570004, REP.BY
ITS PROPRIETOR SRI. VEERANNA.
- PETITIONER
(BY SRI D.R.RAVISHANKAR, SRI SARAVANA S,
AND SRI SIRI RAJASHEKAR, ADVOCATES)
AND:
1. THE KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED (KPTCL)
REP. BY MANAGING DIRECTOR,
CAUVERY BHAVAN, BENGALURU-560009.
2. THE SUPERINATENDING ENGINEER (ELE),
KARNATAKA POWER TRANSMISSION
Digitally signed by CORPORATION LIMITED (KPTCL),
CHANDRASHEKAR
LAXMAN OFFICE AT. TR (W & M) CIRCLE,
KATTIMANI
Location: High MUNIRABAD-583233.
Court of
Karnataka, - RESPONDENTS
Dharwad
(BY SRI SHIVARAJ P. MUDHOL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING QUASH
THE TENDER NOTIFICATIONS PRODUCED AS ANNEXURE-B,
DAGTED.11.08.2021 & ETC.
THIS WRIT PETITION COMING ON FOR HEARING
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT MADE
THE FOLLOWING:
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WP No. 103456 of 2021
ORDER
In this writ petition, the petitioner has sought for the following reliefs.
a) Issue a writ in the nature of certiorari quashing the tender notifications produced as Annexure-B dated 11.08.2021 vide Annexure-B1 and Annexure-B2 issued by the 2nd respondent;
b) Issue a writ in the nature of mandamus directions, directing the respondent to issue tender notification strictly in accordance with Regulation 3 and 29 of Regulations read with Rules 2012; and
c) Pass such other order or orders as this Hon'ble Court deems fit and proper to meet the ends of justice and equity.
2. I have heard learned counsel appearing for the petitioner and the learned counsel for the respondents and perused the material on record.
3. The material on record clearly indicates that the issue involved in the present writ petition is directly and squarely covered by the earlier judgments of this Court which have been reiterated by the recent judgment in the case of Sharada Electricals and another Vs. Karnataka Power Transmission Corporation Ltd. (W.P. No. 65/2021 and -3- WP No. 103456 of 2021 connected matters disposed of on 06.12.2021 wherein it is held as under:
"12. The afore-narrated facts are not in dispute and are therefore, not reiterated. A tender was notified in the year 2017. When applications from tenderers were invited from the Electrical Contractors possessing Class-I or Super-Grade Contractor license, the petitioners, were licensed contractors under the Rules. With the allegation that the petitioners were kept out by restricting them to Super-Grade Electric Contractors, a writ petition was filed before the Kalaburagi Bench of this Court. This Court on 21-06-2018 32 granted an interim order of stay of the said notification and its aftermath in Writ Petition No.202507 of 2017. After the interim order being granted, a communication was sent to all the Superintending Engineers of the Corporation in the works and maintenance circle for assimilation of documents for issuance of tender notification to arrange shift operation and maintenance. It is here, in this circular, the manpower agencies were sought to be brought in for the work of shift operations. The circular reads as follows:
"All Superintending Engineers(Elcl.), Works & Maintenance/Maintenance Circles of Bangalore/Tumkur/Mysore/Hassan/ Bagalkot/Karburgi Transmission Zones,KPTCL.
Sir, Sub: Tender Notification Documents for arranging shift Operations and maintenance of 220kV, 110kV and 66kV stations of KPTCL - reg.
Ref:: 1. This office order of even no. dated 27.12.2018 regarding nominating Electrical safety officer to supervise the staff deployed by manpower agencies.
2. Corporate Order No.KPTCL/B14/6014/ 2002-03 dated23-01-2019.
3. Note No.B14/6014/2002-03 dated 04.05.2019 approved by Managing Director, KPTCL on 23- 05-2019.
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With reference to the above, I am directed to enclose herewith the Tender Notification Documents for arranging 33 Shift Operations and Maintenance of 220kV, 110kV and 66kV stations of KPTCL. You are requested to take suitable action for entrusting the shift operations and maintenance of KPTCL stations according to the Tender Notification Document wherever needed, to the eligible man power agencies, duly calling tender and finalizing the same with due diligence to KPTCL norms.
In future, calling tenders for arranging Shift Operations and maintenance to KPTCL's 220kV, 110kV and 66kV Stations will be as per the above Tender Notification Documents only.
The sample format for arriving the minimum bid amount is enclosed herewith for information and needful action.
During the contractual period of such newly awarded station shift duties, the following shall be followed:
(a) As and when the statutory charges are revised, necessary arrangements shall be made to pay such increase from its effective date.
(b) Whenever GoK revises the minimum base wage and is found higher than that of the corresponding one indicated in the tender document, necessary arrangements shall be made to pay such increase effective from the date notified by KPTCL.
Any clarifications required regarding the labour related issues (ESI, EPF etc.), minimum wages to be paid from time to time to the manpower Agencies etc., shall be obtained from Asst. General Manager (Services)/Manager (Industrial Relations) and GST issue from FA (A&R) section.
The existing contract agreements with the Agencies in respect of Shift duties of KPTCL Sub-stations shall be continued until their expiry/alternate arrangements are made through tender and awarded.
This shall be followed with immediate effect."
(Emphasis added) The circular was issued on 04-06-2019 in furtherance of corporate order issued by the Corporation on 23-01-2019. This becomes the subject matter of Writ Petition No.10639 of 2019 filed by the KARNATAKA STATE SHIFT DUTIES AND MAINTENANCE ELECTRICAL CONTRACTORS WELFARE ASSOCIATION VS. STATE OF KARNATAKA AND OTHERS. This Court by its order dated 04-09-2019 considering the corporate order dated 23-01-2019 which led to issuance of the communication, has held as follows:
".... .... .... 2. The case of the petitioner in nutshell is that the members of the petitioner-Association are Class-I Technical Contractors and some of them have Super Grade Electrical -5- WP No. 103456 of 2021 Contractors License. The members of the petitioner'sAssociation are maintaining 66/11 KV Sub-Station Shift And Maintenance work for the Corporation for past more than 20 years. The Energy Department of Government of Karnataka had issued a Gazette Notification dated 01.10.2012, by which four classifications of Licensed Electrical Contractors viz., Super Grade, Class I, Class II and Class III was made. As per the aforesaid Notification, persons holding Super Grade License are eligible to undertake all types of Electrical Installation works of low, medium, high and extra high voltage installation. Class-I license is eligible to undertake electrical installation works of low medium and high voltage installation upto 33KV, whereas, contractors holding Class-II licence are eligible to undertake the aforesaid work upto 650 Volts, whereas, Class III licensees are eligible to undertake the electrical installation works of low voltage upto 250 Volts.
3. It is the case of the petitioner that on the strength of the aforesaid Gazette Notification, Corporation has issued a Circular dated 23.01.2019, which provides that Class-I Contractor is not eligible to execute the works of 66KV voltage class and above and instructions have been issued to all tendering authorities of the Corporation to insist for Super Grade License. It is averred in the writ petition that the board of the Corporation in its meeting held on 25.06.2016 has held that shift and maintenance work of 66KV and above has to be allotted only to contractors having Super Grade License. In the aforesaid factual background, the petitioner has approached this court, in which challenge has been made to the circular dated 23.01.2019.
4. Learned counsel for the petitioner while inviting the attention of this Court to Regulation 3.3 of the Regulations framed by Central Electricity Authority under Section 177 of the Electricity Act, 2003 submitted that no person can be designated to operate and carry out the work on electrical lines and apparatus until and unless he possesses a certificate of competency or electric work permit issued by the appropriate government. It is submitted that the impugned Circular is violative of Regulation 3.3 of the Regulations. It is also submitted that only licensed Contractor alone can maintain the Sub-Station through its employees. However, under the impugned Circular any person is now entitled to apply for undertaking the work of maintenance of power stations of the Corporation.
5. On the other hand, learned counsel for the respondent Nos.2 and 3 submitted that the Circular dated 23.01.2019 only pertains to Operation and Maintenance of power stations of the Corporation by shift duties and does not deal with the work on -6- WP No. 103456 of 2021 electrical lines and apparatus. Therefore, Regulation 3.3 of the Regulations has no application to the fact situation of the case. It is further submitted that Regulation 7 of the Regulations provides for safety measures for Operation And Maintenance of transmission and distribution systems. The Contractors will have to work under the supervision of Engineers/Supervisors who shall have Diploma in Electrical, Mechanical, Electronics and Instrumentation Engineering from a recognized Institute or University. It is also submitted that the Circular dated 23.01.2019 has been issued in consonance with Regulation 7 of 36 the Regulations and the petitioner is also eligible to apply for the work of Maintenance And Operation of power stations of the Corporation. Therefore, the Circular does not suffer from any infirmity.
6. I have considered the respective submissions made on both sides and have perused the record. Regulation 3.3 and 7 of the Regulations read as under:
3. Designating person (s) to operate and carry out the work on electrical lines and apparatus-
(1) xxxx (2) xxxx (3) No person shall be designated under subregulation (1) unless-
(i) he possesses a certificate of competency or electrical work permit issued by the Appropriate Government
(ii) his name is entered in the register referred to in sub-regulation(2).
7. Safety measures for operation and maintenance of transmission, distribution systems -
(1) Engineers or supervisors engaged in operation and maintenance of transmission and distribution systems shall hold diploma in electrical, mechanical, electronics and instrumentation Engineering from a recognized institute or university.
(2) The Technicians to assist engineers or supervisors shall possess a certificate in appropriate trade, preferably with a two years course from a Industrial Training Institute recognized by the Central Government or State Government.
(3) Engineers, supervisors and Technicians engaged for operation and maintenance of transmission and distribution systems 37 electric plants should have successfully undergone the type of training as specified in Schedule-II.
-7- WP No. 103456 of 2021Provided that the existing employees shall have to undergo the training mentioned in sub-regulation (3) within three years from the date of coming into force of these regulations.
(4) Owner of every transmission or distribution system shall arrange for training of their personnel engaged in the operation and maintenance of transmission and distribution system in his own institute or any other institute recognized by the Central Government or State Government.
7. Under the Regulations, the Corporation has nominated Nodal Officers as Electrical Safety Officers for ensuring observance of safety measures for Operation And Maintenance of Sub-Stations as prescribed in the Regulations. Thereafter, the Circular was issued for providing for preparation of tender documents for hiring personnel through manpower agencies for carrying out shift Operations And Maintenance of Sub-Stations under the supervision of the Nodal Officers of the Corporation. It is also pertinent to mention here that there are no electrical installation works to be carried out by manpower agency therefore, Regulation 3.3 of the Regulations do not apply in the fact situation of the case. It is pertinent to note that manpower agencies are not carrying out any electrical installation work either in violation of the Electricity Act, 2003 or the Regulations. The qualified Engineers and Diploma holders shall ensure that safety measures for Operation And Maintenance are undertaken as prescribed under Regulation 7 of the Regulations. The Contractors are also not carrying out any maintenance work. It is pertinent to mention here that all the manpower service providers can participate in the tender and the members of the petitioner, which is an Association of electrical contractors shall also be at liberty to participate in the tender as Manpower Service 38 Providers. The Circular issued by the Corporation is in the realm of policy decision. The aforesaid policy decision can neither be termed as arbitrary nor irrational. Therefore, no interference is called for in exercise of powers under Article 226 of the Constitution of India." (Emphasis supplied) Paragraphs 2 and 3 capture the case before this Court. The case of the petitioners therein was that its members are Class-I Technical Contractors and Super Grade Electrical Contractors and were aggrieved by the communication or the circular with regard to drawing of personnel from manpower agencies to man the substations. This was contended to be arbitrary, contrary to Electricity Act, 2003 and Regulations 3.3 of the Regulations framed by the Central Electricity Authority under Section -8- WP No. 103456 of 2021 177 of the Electricity Act. The contention of the Corporation therein was that Regulation 7 empowers it to deal with the maintenance of sub- stations and did have play in the joints, to get the work done by the manpower agencies as well. Considering the submissions, the coordinate Bench holds that the Corporation has nominated nodal officers as Electrical Safety Officers for ensuring safety measures for operation and maintenance. It is, therefore, the Circular was issued for preparation of tender documents. The Court holds that the action 39 of the Corporation in issuing a communication or passing an order to draw up manpower agencies to carryout shift operations and maintenance works at 66 KV sub-stations cannot be interfered with.
13. The co-ordinate Bench holds that the action of the Corporation is neither arbitrary nor unreasonable for this Court to interfere. This is tossed by the petitioner before the Division Bench in Writ Appeal No.313 of 2020. During the pendency of the writ appeal, the impugned tender notification is issued by the Corporation. The tender notification is issued on 10-11-2020, long after the order passed by the coordinate Bench upholding the action of the Corporation in directing all jurisdictional Superintending Engineers to prepare tender documents for drawing of manpower from the manpower agencies. After the finding rendered by the coordinate Bench that it was neither arbitrary nor unreasonable, the tender notification comes about. Therefore, the submission of the learned senior counsel for the petitioners that it is arbitrary and contrary to the Regulations would not hold water at this juncture, as they have all been considered by the coordinate Bench and negatived. The impugned tender notification is in consonance with 40 what is determined by the coordinate Bench. The scope of tender in the impugned tender document reads as follows:
"1. Scope of Tender The Superintendent Engineer (Elc.), Transmission (W&M) Circle, Davangere KPTCL (Referred to as Employer in these documents) invites tenders from eligible tenderers, for Providing manpower services for carrying out shift -9- WP No. 103456 of 2021 operations and minor maintenance works at 66kV Sub- statioins located at Mallappanahalli, Godabanalu, Vijapura and Neralagunte (as defined in these documents and referred to as "the services") as detailed in Table-1 if Invitation for Tenders (IFT). The trenderers shall submit tenders for the works as detailed in Table-1 of IFT".
The qualification of a tenderer is dealt with under Clause 3 of the tender. The tenderer should have provided manpower service is what is said to be the necessary qualification. The coordinate Bench considers this very point. Therefore, even if the submission of the learned senior counsel would merit consideration in its first blush, there cannot be deeper delving of such blush, as the coordinate Bench has already considered this, held so, which becomes binding on this Court. The contention advanced by the learned senior counsel would have merited certain consideration to its acceptance or otherwise, but for the aforesaid order passed by the coordinate 41 Bench, as the coordinate Bench considered every aspect of the matter.
14. The other circumstance is that the order of the coordinate Bench, as observed hereinabove, was challenged in Writ Appeal No.313 of 2020 (KARNATAKA STATE SHIFT DUTIES AND MAINTENANCE ELECTRICAL CONTRACTORS VS. STATE OF KARNATAKA). The Division Bench by its judgment dated 07-04-2022 rejects the appeal affirming the order of the coordinate Bench. The observations that are germane and would touch upon the contentions advanced in the case at hand in the judgment of the Division Bench are as follows:
".... .... ....
5. We have carefully considered the rival submissions of the learned counsel for the parties and gone through the material on record.
6. Regulation 29 of the Regulations reads thus :
29. Precautions to be adopted by consumers, owners, occupiers, electrical contractors, electrical workmen and suppliers. - (1) No electrical installation work, including additions, alterations, repairs and adjustments to existing
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installations, except such replacement of lamps, fans, fuses, switches, domestic appliances of voltage not exceeding 250V and fittings as in no way alters its capacity or character,shall be carried out upon the 42 premises of or on behalf of any consumer, supplier, owner or occupier for the purpose of supply to such consumer, supplier, owner or occupier except by an electrical contractor licensed in this behalf by the State Government and under the direct supervision of a person holding a certificate of competency and by a person holding a permit issued or recognized by the State Government.
Provided that in the case of works executed for or on behalf of the Central Government and in the case of installations in mines, oil fields, and railways, the Central Government and in other cases the State Government, may, by notification in the Official Gazette, exempt on such conditions as it may impose, any such work described therein either generally or in the case of any specified class of consumers, suppliers, owners or occupiers.
(2) No electrical installation work which has been carried out in contravention of subregulation (1) shall either be energized or connected to the works of any supplier.
7. The aforesaid provision only deals with electrical installation work, only by the electrical contractors who have license. The work of electrical installation is not assigned to the manpower agency but it will be assigned only to the contractors. Under the Regulations the Corporation has nominated Nodal Officers as Electrical Safety Officers for ensuring observance of safety measures for operation and maintenance of substations as prescribed in the Regulations. The circular provides for preparation of tender documents for hiring personnel through manpower agencies for carrying out shift operations and maintenance of substations under the supervision of the Nodal Officers of the Corporation. There are no electrical installation works to be carried out by manpower agency. The learned Single Judge referring to Regulation 3.3 and 43 7 of the Regulations and rightly held that these regulations do not apply to the fact situation of the case. The manpower agencies are not carrying out electrical installation work either in violation of Electricity Act or the Regulations. The qualified Engineers and Diploma holders shall ensure that safety measures for operation and maintenance
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WP No. 103456 of 2021are undertaken as prescribed under Regulation 7 of the Regulations.
8. As the appellant/petitioner is also allowed to participate in the tender process as observed by the learned Single Judge, which is based on the statement of objections of second and third respondents, it will not amount to discrimination or violation of Articles 14 and 16 of the Constitution of India. The appellant/petitioner should only have to ensure that they have to be registered with EPF and ESI scheme. Copy of the work orders furnished by second and third respondents will reveal that the tender has been processed and work order has been issued to the electrical contractors also who participated in the tender process. Therefore, the contention of the learned counsel for the appellant that the appellant/petitioner cannot participate in the tender process as they are not registered company has no substance. The learned Single Judge has taken into consideration all contentions of the appellant/petitioner and rightly dismissed the petition. The order passed by the learned Single Judge is a reasoned order and does not call for any interference by this Court. Hence, writ appeal is dismissed."
(Emphasis supplied) The Division Bench considers that the coordinate Bench referring to Regulations 3.3 and 7 has rightly held that the Regulations do not apply to the fact situation. The manpower agency does not carry out any electrical installation work for the circular to be in violation 44 of Electricity Act or the Regulations. Paragraph 8 of the said judgment supra captures the entire issue and holds that the appellants therein could not have participated in the tender process as it was restricted to manpower agencies and that being violative of Article 14 of the Constitution was negatived.
15. Therefore, the submissions broadly are all negatived by the coordinate Bench as affirmed by the Division Bench. Regulation 29 which is considered by the Division Bench clearly permits such play in the joints to the Corporation. Therefore, on a conjoint reading of Regulations 3.3, 7 and 29 all of which bear consideration at the hands of the coordinate Bench and the Division Bench, would definitely stare at the contentions advanced by the learned senior counsel for the petitioners. Therefore, any deeper delving into the matter is not available at the hands of this Court for the aforequoted becoming a binding
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WP No. 103456 of 2021precedent for this Court to hold otherwise, failing which, judicial discipline would be shaken, as there is no extenuating circumstance that is projected by the petitioners that would warrant any deviation from what is held by the coordinate Bench or the Division Bench.
16. For the aforesaid reasons, the writ petitions lacking in merit would necessarily meet their dismissal and are accordingly dismissed.
Consequently, pending applications also stand disposed.
4. As could be seen from the aforesaid judgment of the co-
ordinate Bench of this Court, earlier decisions of this Court have been referred to and followed for the purpose of coming to the conclusion that the writ petitions were liable to be dismissed.
5. In view of the facts and circumstances and judgment of this Court stated supra, I do not find any merit in the writ petition and the same is accordingly dismissed.
SD JUDGE CKK/BVV