Kerala High Court
The Kumbala Labour Contract ... vs State Of Kerala
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936
WP(C).No. 25928 of 2013 (M)
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PETITIONER(S):
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THE KUMBALA LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD
NO S444, KUMBALA (PO), KASARAGOD DISTRICT
REPRESENTED BY ITS AUTHORISED DIRECTOR MR.P.MOHAMMED KUNHI
BY ADV. SRI.JOBI JOSE KONDODY
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY
FISHERIES AND PORT DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001
2. THE DIRECTOR OF PORTS
OFFICE OF THE DIRECTOR OF PORTS, VALIYATHURA
VALLAKKADAVU(PO), THIRUVANANTHAPURAM 695 008
3. THE PORT CONSERVATOR,
PORT OFFICE, KASARAGOD (PO)
KASARAGOD DISTRICT 671 121
4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
KASARAGOD (PO), KASARAGOD DISTRICT 671 121
5. THE REGISTRAR OF INDUSTRIAL CO-OPERATIVE SOCIETIES,
DISTRICT INDUSTRIES CENTRE, KASARAGOD (PO)
KASARAGOD DISTRICT 671 321
6. THE KASARAGOD HOLLOW BRICKS NIRMANA THOZHILALI
VYAVASAYA SAHAKARANA SANGHOM LTD NO IND(S) 60,NEAR M.G
ROAD,KASARAGOD 671 321
R1-R5 BYADV. GOVERNMENT PLEADER SRI JOSEPH GEORGE
R6 BYADV. SRI.AUGUSTINE JOSEPH
R6 BYADV. SRI.K.S.ROCKEY
R6 BYADV. SRI.TONYAUGUSTINE
R6 BYADV. SRI.K.K.CHANDRAN PILLAI (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 25928 of 2013 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 ATRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE
FOURTH RESPONDENT TO THE PETITIONER SOCIETY DATED 30-
11-2011
EXHIBIT P2 ATRUE COPY OF THE BYELAWS OF THE PETITIONER SOCIETY
EXHIBIT P3 ATRUE COPY OF THE G.O(MS) NO 17/2010/F&PD DATED 18-03-2010
ISSUED BY THE FIRST RESPONDENT
EXHIBIT P4 ATRUE COPY OF THE CIRCULAR DATED 29-06-2010 ISSUED BY THE
SECOND RESPONDENT IN SUPPORT OF EXHIBIT P3
EXHIBIT P6 ATRUE COPY OF THE BYELAWS OF THE SIXTH RESPONDENT
SOCIETY
EXHIBIT P7 ATRUE COPY OF THE REPRESENTATION DATED 25-09-2012
SUBMITTED BY THE PETITIONER SOCIETY BEFORE THE THIRD
RESPONDENT
EXHIBIT P8 ATRUE COPY OF THE JUDGMENT DATED 18-06-2013 PASSED BY THIS
HPONOURABLE COURT IN WPC NO 2507 OF 2013
EXHIBIT P9 ATRUE COPY OF THE ORDER DATED 07-08-2013 PASSED BY THE
THIRD RESPONDENT ON EXHIBIT P7 REPRESENTATION
EXHIBIT P10 A TRUE COPY OF THE G.O(MS) NO 54/2013/F&PD DATED 16-08-2013
ISSUED BY THE FIRST RESPONDENT
EXHIBIOT P11A TRUE COPY OF THE TENDER NOTICE DATED 17-08-2013 ISSUED
BY THE THIRD RESPONDENT
EXHIBIT P12 A TRUE COPY OF THE TENDER FORM SUBMITTED BY THE
PETITIONER SOCIETY BEFORE THE THIRD RESPONDENT DATED
03-09-2013
EXHIBIT P13 A TRUE COPY OF THE INFORMATION DTED 08-10-201`3 ISSUED BY
THE PUBLIC INFORMATION OFFICER,PROT OFFICE,KASARAGOD
EXHIBIT P14 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT OF FINE
AMOUNT PAID BY THE SIXTH REWSPONDENT SOCIETY TO THE
THIRD RESPONDENT DATED 18-04-2012
EXHIBIT P15 A TRUE COPY OF THE JUDGMENT DATED 17-07-2012 PASSED BY THIS
HONOURABLE COURT IN WPC NO 11010 OF 2012
EXHIBIT P16 A TRUE COPY OF THE COMMUNICATION DT. 30.12.2013 ISSUED BY
THE DIRECTOR, COMMERCE AND INDUSTRIES DEPARTMENT,
THIRUVANANTHAPURAM TO ONE K.C. MOHANAN WITH COPY TO
DIRECTOR VIGILANCE AND ANTI CURREPTION BUREAU,
THIRUVANANTHAPURAM AND ALSO THE REGISTRAR OF CO-
OPERATIVE SOCIETIES, THIRUVANANTHAPURAM
WP(C).No. 25928 of 2013 (M)
EXHIBIT P17 A TRUE COPY OF THE CIRCULAR DT 14.02.2014 ISSUED BY THEPORT
OFFICER, PONNANI, TO THE SELECTED SOCIETIES.
EXHIBIT P18 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES, KASARAGOD TO THE
PETITIONER SOCIETY DATED 30.08.2013
EXHIBIT P19 A TRUE COPY OF THE REGISTRATION OF THE AUTHORIZED
OFFICER OF THE PETITIONER WITH KERALA BUILDING AND
OTHER CONSTRUCTION WORKERS WELFARE BOARD.
EXHIBIT P20 TRUE COPIES OF THE IDENTITY CARDS ISSUED TO THE MEMBERS
OF THE PETITIONER SOCIETY BY MANGALPADY GRAMA
PANCHAYAT
RESPONDENTS' ANNEXURES:
EXT.R6(a) : TRUE COPY OF THE LETTER DATED 31.08.2013 ISSUED UNDER
THE CO-OPERATIVE SOCIETIES ACT TO THE 6TH RESPONDENT
EXT.R6(b) : TRUE COPY OF THE JUDGMENT DT 29.09.2011 IN W.A
NO.1354/2011
//TRUE COPY//
P.A. TO JUDGE
jma
K. VINOD CHANDRAN, J
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W.P(C) No. 25928 of 2013
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Dated this the 28th day of March, 2014
J U D G M E N T
The petitioner is a Co-operative Society, comprised of members engaged in manual sand mining who are also the residents of the locality. Various enactments having come into force, with emphasis on environmental protection, the traditional sand mining activities carried on, in the rivers in the locality, had come down considerably and the members of the petitioner society as also other similarly placed employees were rendered unemployed. The Port situated in the area, but, has to necessarily carry on sand dredging work, to keep the channels clear, without accumulation of sand, for free ingress and egress of vessels through such channels. The sand dredging activities, hence, were WPC.25928/2013 : 2 : carried on by the Port authorities through out the year.
2. From the year 2010 onwards, the Government thought it fit that such contracts should be granted to those Co-operative Societies, who have within their fold of membership, traditional sand mining employees, so as to ensure their sustenance. In such circumstances, the State decided to entrust such sand dredging work, in the Port area, to Co-operative Societies of traditional sand mining employees, which would also ensure the sustenance of such employees. Ext.P3 order, was issued in the year 2010, wherein stipulations were made, as to the eligibility of such Co-operative Societies, as also the manner in which tender should be invited, processed and awarded. WPC.25928/2013 : 3 : Exts.P5 and P10 Government Orders were issued in the subsequent years, to regulate such procedure in the award of contracts, in each of the said years. The Government Orders and the stipulations therein are more or less identical.
3. At present, we are concerned with Government order issued on 16.08.2013, (Ext.P10) wherein the Port, intended to award contracts, for the sand dredging work in the year 2013-14 . Bereft of the details, the eligibility for a Co-operative Society to participate in the tender, would be its area of operation being within a 10kms radius of the Port limits and at least 90% of its members being fully involved, in the activity of manual sand mining activities. It is also stipulated that, the members of the Co-operative Societies WPC.25928/2013 : 4 : should be local residents who are traditionally engaged in sand mining and the Identity Cards, should be produced from the local authority. It is evident that the bye-laws of such society, should contain as it is, the main objective of manual dredging; from which the members of the Co-operative Society, earn their livelihood.
4. It was pursuant to Ext.P10, that Ext.P11 tender notification was issued by the Port authorities. As per Ext.P11, the Kasaragod Port Conservator invited tenders for the award of the work of sand mining, in the areas comprised within the limits of the Port at Kasaragod, Manjeswaram and Cheruvathur. Ext.P11 divided the said area into 12 zones of which, the petitioner and the 6th respondent are concerned with only one, viz; WPC.25928/2013 : 5 :
"Shiriya Valayam", which zone was categorized as "K5". Both the petitioner and the 6th respondent admittedly applied as per the notification-Ext.P11 for the manual dredging work in the said zone. The petitioner has also produced Ext.P12, which is its tender, submitted pursuant to Ext.P11 notification.
5. Ext.P12, the tender form also stipulated that the Co-operative Societies, who were participating in the tender, ought to produce the certificate of the concerned Registrar, evidencing that the members are the local residents and the Society has its area of operation within 10 kms radius of the Port-limits. It was also mandated as per item No.3(b) that the bye-law of the Society along with the registration certificate were to be produced. The tender was eventually WPC.25928/2013 : 6 : awarded with respect to the zone "Shiriya Valayam", numbered as K5, to the 6th respondent Society as per Ext.P13, which included allotment of the other 11 zones also.
6. The petitioner is aggrieved with Ext.P13, only to the extent of awarding of the contract in K5 zone, to the 6th respondent. The primary objection put forward is that, the society as its name indicates, is a hollow-bricks construction workers Society, and it does not have, as its main or ancillary objective; manual sand mining or dredging. It is also contended that, by Ext.P14, the 6th respondent Society was penalised for violation of manual dredging norms which again, would be a disqualification as indicated in Clause 44(2) of Ext.P12. The petitioner's contention is that even in WPC.25928/2013 : 7 : the earlier years the 6th respondent ought not to have been participated. Though the petitioner had challenged the award, of the earlier years too, nothing fructified, since the petitioner could not successfully prosecute the issue before the period of award expired.
7. When the petitioner insisted for an interim order, this Court elaborately heard the petitioner, the 6th respondent as also the learned Government Pleader and passed an interim order dated 22.01.2014. This Court found that, the bye-laws of the 6th respondent produced by the petitioner, did not disclose any object as to manual sand mining or dredging. The specific contention of the 6th respondent that, they are comprised of members, who were traditionally engaged in sand WPC.25928/2013 : 8 : mining work and that the same is evident from the Identity Cards issued by the Port authorities was noticed. The 3rd respondent-Port Conservator also had filed a counter affidavit, contending that the members of the 6th respondent society, are traditionally manual sand dredging employees and that they are included in the registers maintained by the Port. This Court in the interim order, specifically found that, it is not disclosed as to when such register was introduced and on what basis the names were entered in the register. It was also not clear as to what was the provision which enabled the Port to maintain a register, including individuals as traditional sand mining employees,especially in the context of Ext.P10 Government Order, referring to proof by identity WPC.25928/2013 : 9 : cards issued by the local bodies. In any event, it is to be noticed that even now, neither the Port authorities nor the 6th respondent puts forward any statutory provision or executive orders; which enable them to construct and maintain such a register.
8. The learned counsel for the petitioner specifically pointed out the provisions in Exts.P10, P11 and P12 to contend that the 6th respondent did not satisfy the eligibility, for being considered under Ext.P11 notification. In the circumstance of there being only two contestants, for the particular zone K5, the 6th respondent's eligibility if found to be bad, necessarily, the work has to be awarded to the petitioner, is the argument.
9. The learned Senior Counsel appearing WPC.25928/2013 : 10 : for the 6th respondent, however, would contend that the members of the 6th respondent Society, were carrying on the work of manual dredging in the Port area, even prior to the introduction of the system of issuance of tenders for awarding of work of sand dredging to Co-operative Societies. It is also contended that a Division Bench of this Court in an earlier round of litigation by Ext.R6(b) permitted all types of Co-operative Societies to be participated in an identical tender. Hence there would be no infirmity, insofar as permitting the 6th respondent to participate in the tender. It is also contended that the petitioners being traditional sand dredging employees could not align themselves into a group, to register a society, since the members of the 6th respondent, as also the WPC.25928/2013 : 11 : petitioner; reside and engage in sand mining activities in the very same locality. The petitioner society having been already established, there could be no subsequent registration of another society with the very same purpose and object within the very same area of operation, is the grievance projected. It is also strenuously contended that, if at all, this Court finds that the award of the contract to the 6th respondent is defective, insofar as the 6th respondent being disqualified for not having the eligibility to participate; then, necessarily, a re-tender would have to be carried out since, even the claim of the petitioner being comprised of members carrying on traditional sand mining work is suspect.
10. The learned Government Pleader WPC.25928/2013 : 12 : would also take a contention that the 6th respondent did not definitely have as one of its objects, sand mining activity in its bye-laws and it was only in the context of the Division Bench judgment at Ext.R6(b) that they were participated in the tender process.
11. It is to be pointedly noticed that this Court had in the interim order dated 22.01.2014 itself, specifically taken note of the fact that the 6th respondent's bye-laws, does not disclose any object, as to manual sand mining or dredging. The 6th respondent also does not have a contrary contention. What is to be examined is the sustainability of the 6th respondents, very eligibility to be participated in the tender proceedings. Obviously, the participation could be, only on the WPC.25928/2013 : 13 : certification of the respective Registrar, that the members of the 6th respondent are having area of operation within 10kms radius of the Port. The respondent has also produced the certificate (Ext.R6(a)) they produced before the Port authority to evidence such certification.
12. Ext.R6(a) is issued by the Registrar of Industrial Co-operative Societies, wherein, though the area of operation is certified, it has been specifically indicated that the permission granted to participate in the open tender for manual dredging, would be as per the conditions stipulated in the bye-law provisions and the Co-operative Societies Act, 1969. Going by Ext.P12 tender form, the bye-laws of the Society are to be necessarily placed before the authority, to establish their initial WPC.25928/2013 : 14 : threshold eligibility. If such bye-laws were placed by the 6th respondent before the authority, then, necessarily, a cursory look into the various objectives stated therein would eminently disclose that the 6th respondent society is disqualified from participating, in the tender. The 6th respondent also does not have a case that the bye-laws contain an object with respect to the involvement of its members in manual dredging or sand mining activities. In such circumstance, necessarily, Ext.P13 insofar as awarding of the tender with respect to sand dredging activities in the Zone, K5- Shiriya Valayam granted to the 6th respondent is to be set aside. Ext.P13 is set aside only to that extent, finding that the 6th respondent is not pre- qualified to participate in the tender proceedings. WPC.25928/2013 : 15 :
13. The contention of the 6th respondent as also the Government Pleader, that the 6th respondent was participated only following Ext.R6
(b) is belied by the clarification in Ext.P15. Ext.R6
(b) judgment was issued in the first year, in which such tender notification was made. Many of the Co-operative Societies, who did not have the threshold eligibility were participated in the tender process. The Division Bench, only in the circumstances existing at that point of time, had directed that all the Societies be treated as qualified to prefer tenders, especially since, there was some confusion regarding the manner in which the tender proceedings had to be carried out.
14. But, however, later, in the next WPC.25928/2013 : 16 : preceding year when again, the tender proceedings were challenged before this Court, a learned Single Judge had disposed of the writ petitions by Ext.P15. In Ext.P15, the Division Bench judgment at R6(b) was specifically noticed. It was also found that the Division Bench's observation in Ext.R6(b) cannot be treated as directions laying down a permanent solution to the problem; so as to be continued year after year. The learned Single Judge specifically found, that the Division Bench, was only trying to resolve the problem that was thrown up by the cases before it, and the directions therein cannot be applied in the subsequent years. Ext.P15 categorically found that the societies who do not have the object of manual dredging cannot be participated in such tenders, quoting Rule 180 of WPC.25928/2013 : 17 : the Co-operative Societies Rules. In the teeth of the binding precedent, as disclosed in Ext.P15, neither the 6th respondent nor the Government can take up a contention that in participating the 6th respondent, the authorities were only following the directions in Ext.R6(b) judgment. This Court categorically found that, without qualifying the eligibility criteria, no society could stake a claim to be participated in the tender proceedings.
15. The award of the tender to the 6th respondent having been set aside, what remains is, as to how the tender proceedings are to be continued. The learned Senior Counsel would strenuously urge that the verification of the credentials of the petitioner and its members would be called for, in the given circumstances. This WPC.25928/2013 : 18 : Court, however, is not convinced to adopt such procedure, on the more assertion of a rival claimant; who does not even possess the essential eligibility criteria. The Government Order, as also the notification of tender and the tender form itself, provided specific eligibility conditions to be satisfied for each Co-operative Society offering themselves before the authority. The authorities necessarily, would consider the threshold eligibility first and only then move on to the ranking; purportedly adopted by the authorities, to decide upon the awarding of tender. The learned Government Pleader has, after looking into the records specifically pointed out that the ranking procedure, adopted by the authorities, shows that the marks awarded to the 6th respondent was 34 WPC.25928/2013 : 19 : and that to the petitioner society was 32.
16. If the threshold eligibility of the petitioner as also the 6th respondent stood satisfied then necessarily the tender was to be awarded to the 6th respondent, subject however, to an examination of the ranking system adopted. The defect pointed out in the present writ petition is as to the threshold eligibility of the 6th respondent. That was sought to be got over, by the Port authorities too, relying on Ext.R6(b) judgment. That, however, has been found by this Court to be an overreach of the Government Order and the provisions stipulated therein. The 6th respondent or the Government having not pointed out any defect in the threshold eligibility of the petitioner, this Court is not persuaded to either direct verification WPC.25928/2013 : 20 : of the petitioner's eligibility or to direct the authorities to go for a fresh tender; especially, since, the latter would only result in more expenditure to the State. This Court also cannot merely concede to a dog-in-the-manger policy, especially when the petitioner has produced the identity cards issued by the Local Self Government Institution, to many of their members (Ext.P20 series); certifying them to be "Sand Mining Workers".
17. A question was raised with respect to Ext.P14 penalty, but the 6th respondents threshold eligibility itself having been found to be defective, this Court is of the opinion that the same need not be considered at this stage. Especially since, the award of tender to the 6th respondent, has been set WPC.25928/2013 : 21 : aside on other grounds. On the reasoning above, it has to be directed that the respondent Port authorities; award the tender in favour of the petitioner, with respect to the zone "K5 Shiriya Valayam" for the year 2013-14. The same shall be done, within a period of two weeks from the date of receipt of a certified copy of this judgment.
Writ petition allowed. Parties to suffer their respective costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE)
jma //true copy//
P.A to Judge