Rajasthan High Court - Jodhpur
M/S. Shri Devnarayan Elec.& Co. & Ors vs Ajmer Vidyut Vitaran Nigam Ltd. & Ors on 3 May, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9476 / 2017
1. M/s Shri Devnarayan Electricals & Company, Village Kaliyas,
District Bhilwara Through Its Proprietor Rajendra Prasad Gurjar
S/o Sh. Devalal, Aged About 30 Years, Resident of Village Kaliyas,
District Bhilwara (Raj.)
2. M/s Angad Electricals, Village & Post Sukhwara, Tehsil Bhadesar,
District Chittorgarh Through Its Proprietor Ratanlal Gadari S/o
Devaram, Aged About 35 Years, Resident of Village & Post
Sukhwara, Tehsil Bhadesar, District Chittorgarh.
3. M/s Komal Electricals, Village Modasara Ka Bas, Post Sigra,
District Jhunjhunu Through Its Proprietor Brajlal S/o Sh. Pyare Lal,
Aged About 59 Years, By Caste Jat, Resident of Village Modasara
Ka Bas, Post Sigra, District Jhunjhunu (Raj.)
----Petitioners
Versus
1. Ajmer Vidhyut Vitran Nigam Ltd., Vidyut Bhawan, Panchsheel
Nagar, Makarwali Road, Ajmer Through Its Managing Director.
2. The Superintending Engineer (TW), Ajmer Vidyut Vitaran Nigam
Ltd., Vidyut Bhawan, Panchsheel Nagar, Makarwali Road, Ajmer
(Raj.)
3. The Superintending Engineer (BWC), Ajmer Vidhyut Vitaran
Nigam Ltd., Bhilwara (Raj.)
4. The Superintending Engineer (BWC), Ajmer Vidyut Vitaran
Nigam Ltd., Jhunjhunu (Raj.)
5. The Superintending Engineer (TW), Ajmer Vidyut Vitaran Nigam
Ltd., Chittorgarh (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Sajjan Singh
For Respondent(s) : Mr. Anil Mehta with Mr. B.S.Baghel, OIC
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Judgment : 3rd May, 2018 Through this writ petition under Article 226 of the Constitution of India, the petitioner firms have approached this (2 of 7) [CW-9476/2017] Court being aggrieved of the rejection of their tenders for operation and maintenance of 33/11 KV Station in furtherance of N.I.T. Specification No. AJD/SE/TW/TN-291-302 floated by the A.V.V.N.L. on 14.6.2017.
At the outset learned counsel Mr. Sajjan Singh stated that the petitioners no. 2 and 3 have already been awarded other work contracts under the fresh tenders issued by the respondents and thus he seeks to pursue the writ petition to the extent of the petitioner no.1 only.
The petitioner M/s. Shri Devnarayan Electricals & Company claims to have filed its bid for providing labour to the procuring entity in furtherance of the N.I.T. dated 14.6.2017 and its bid was found to be lowest amongst all bidders. Initially the writ petition was filed in order to challenge the cancellation of the entire tender process vide order Annex.-6 dated 10.7.2017 but respondents floated a fresh N.I.T. dated 11.8.2017 for the very same work. Thereupon, this Court passed an order dated 25.8.2017 allowing the petitioners to participate in the fresh N.I.T. while directing the respondents to treat the previously deposited earnest money to be deposited in the fresh tender process. Thereupon fresh tender process was undertaken, and the petitioner M/s. Shri Devnarayan Elec. & Co. was declared to be the lowest bider in terms of the rates offered by it. The other two petitioners were awarded the work orders. However, despite the petitioner No.1's bid being found to be the lowest, the respondents did not consider the same and did not issue the work order. Upon this the petitioner filed I.A. No. 610/2018 praying for a direction to the respondents to issue (3 of 7) [CW-9476/2017] the LOI/work order in favour of petitioner M/s. Shri Devnarayan Elec. Co. The respondents have filed reply to the writ application taking recourse of the Minimum Wages Act, 1948 and have countered the claim of the petitioner for being awarded the work order in question on the pretext that the labour rates quoted by the petitioner in the tender process did not meet the requirements of Act of 1948 and thus the petitioner's bid was liable to be rejected. The respondents have submitted a calculation chart Annex-R-17 of the labour charges in terms of the Act of 1948 and have calculated the applicable minimum wages to be paid to three labourers at Rs. 28422.62 per month whereas the rate quoted by the petitioner is only Rs. 26,899/- and on this pretext the respondents claim that the petitioner is disqualified in the questioned bid process as its rates are not in consonance with the Minimum Wages Act.
Mr. Sajjan Singh, learned counsel representing the petitioner urged that the labour rate quoted by the petitioner in the questioned tender process is in consonance with the requirements of Minimum Wages Act and the notifications issued thereunder. He submitted that the respondents require three skilled labourers for the purpose of work contract in question. The rate of a skilled labour prescribed under the notification dated 3.7.2017 is Rs. 227 per day or Rs. 5902/- for the whole of month taking in account 4 weekly off days. He submits that the rate which is calculated by the respondent S.E., AVVNL in the chart Annexure R-17 was arrived at by accounting for 30 working days at the rate of 227/- per day per skilled labour whereas the daily wage prescribed (4 of 7) [CW-9476/2017] under the Minimum Wages Act is arrived at for one month including four weekly off days. He submits that if at all, the skilled worker is made to work for extra hours, then overtime would have to be paid and the onus of the same would be on the employer. However, while offering the rate as per the Minimum Wages Act in the bid, only 26 working days and not 30 have to be accounted for as claimed by the respondents. He thus urges that the writ petition deserves to accepted and the respondents be directed to issue the work order in question to the petitioner.
Per contra Mr. Anil Mehta learned counsel representing the respondents assisted by Mr. B.S.Baghel, Executive Engineer, AVVNL stuck to the plea taken in the reply that the labour charges are to be calculated in accordance with the Minimum Wages Act and the respondents have duly calculated such labour charges which work out to Rs. 28422.62 for three persons for a period of 30 days. He thus urged that as the rate quoted by the petitioner at Rs. 26899.62 falls well below the yardstick of minimum wage payable under the Minimum Wages Act the petitioner's bid is not compliant as per law and was rightly rejected.
I have given my thoughtful consideration to the arguments advanced by learned counsel at bar and have gone through the material on record.
After marshaling the facts noted hereinabove, the basic bone of contention boils down to the issue as to whether the minimum labour charges should be calculated for 30 working days as claimed by the respondents or at 26 working days as claimed by petitioner. The relevant portions of the notification dated 3.7.2017 (5 of 7) [CW-9476/2017] issued under the Minimum Wages Act which is relied upon by both the sides are quoted hereinbelow for the sake of ready reference:-
"1- nSfud etnwjh ikus okys fdlh deZpkjh dks ns; etnwjh dh U;wure njksa dh x.kuk ftl oxZ dk og deZpkjh gS] ml oxZ ds fy;s fu;r ekfld etnwjh dh nj esa 26 dk Hkkx nsdj dh xbZ gS A 2- blesa fdlh ckr ds vUrfoZ'V gksrs gq;s Hkh ;fn mi;qZDr njksa ds izHkko esa vkus dh rkjh[k ij mDr fu;kstuksa esa ls fdlh deZpkjh dh etnwjh mijksDr njksa ls vf/kd gks rks mlds }kjk mDr fnu dks izkIr dh xbZ okLrfod etnwjh mlds laca/k esa fu;r dh xbZ etnwjh dh U;wure nj gksxh A 3- vuqlwph esa fufnZ'V U;wure etnwjh dh njksa esa fuokZg HkRRkk] cqfu;knh ewY; vkSj lqfo/kkvksa ds ,ot esa jksdM+ ewY;] ;fn dksbZ gks] lfEefyr gS A 4- mDr fu;kstuksa esa dk;Zjr deZpkjh ds fy;s fu;r njksa esa lkIrkfgd vodk"k dk osru "kkfey gS A 5+- fu/kkZfjr lkekU; dk;Z ds ?k.Vksa ¼8?k.Vsa izfrfnu½ ls vf/kd fdlh deZpkjh ls dk;Z djokus ij vf/kle; ¼overtime½ dk;Z dk Hkqxrku lkekU; etnwjh nj dh nqxquh nj ls fd;k tkosxk -------------------------------- A "dq'ky & eS'ku] feL=h LokxrdŸkkZ] c<bZ] yqgkj] 5902@& 227@& nthZ] peZdkj] eSdsfud fQVj] ykbZueSu] isUVj] IyEcj] cuZjj --------------------------------A"
(Emphasis supplied) The above quoted portion of the notification makes it amply clear that monthly wage payable to skilled labour has been quantified at Rs. 5902/- whereas the daily wage payable to such skilled labour is quantified at Rs. 227/- per day. The wage of Rs.
(6 of 7) [CW-9476/2017] 227 per day or Rs. 5902/- per month for a skilled labour has been calculated while accounting for four weekly holidays and other permissible allowances. If the employer proposes to use the workman for more than 8 hours and beyond the stipulated duration, he would have to pay overtime to the workman as per Clause 5 reproduced hereinabove.
As per Section 13(1)(b) of the Minimum Wages Act, whilst fixing the hours for a normal working day etc. in regards to any scheduled employment and for fixing minimum rates of wages under this Act, the appropriate Government is required to provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such day of rest. Thus the rate of Rs. 227/- per day or Rs. 5902/- per month prescribed by the Government in the schedule can be presumed to have been arrived at after taking into account 4 days off period to which every workman is entitled. In this background, the plea put-forth by the respondents in the reply that the Labour rate is required to be calculated by the employer while accounting for 30 days duty by each labour and multiplying the daily wage by 30 is per-se contrary to the mandate of the Minimum Wages Act and the notifications issued thereunder.
Accordingly, the labour rates quoted by the petitioner in its bid contract cannot be branded as falling below the yardstick of the Minimum Wages Act and the notification issued thereunder.
In this background, action of the respondents in failing to awarding the work order to the petitioner despite its bid being (7 of 7) [CW-9476/2017] found to be lowest in the questioned tender process is grossly arbitrary and illegal. Without entertaining any doubt, the petitioner is entitled for issuance of the work order in question in furtherance of its successful lowest bid.
Thus, the writ petition deserves to be and is hereby allowed. The respondents decision in holding the petitioner's bid to be non- responsive/non qualified is hereby struck down and they are directed to forthwith, issue work order to the petitioner as per terms and conditions of the N.I.T. No order as to costs.
(SANDEEP MEHTA), J.
/sushil/