Kerala High Court
P.Gangadhara Alva vs Icar-Central Plantation Crops ...
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939
W.P(C).No.30860 of 2017 (F)
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PETITIONER(S):-
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P.GANGADHARA ALVA, AGED 64 YEARS, S/O KORAGAPPA ALVA,
RESIDING AT PITHRU KRIPA, PERDALA (P.O),
KASARAGOD DISTRICT, PIN - 671551.
BY ADVS.SRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
RESPONDENT(S):-
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1. ICAR-CENTRAL PLANTATION CROPS RESEARCH INSTITUTE,
KUDLU (P.O.), KASARAGOD, PIN 671124.
REPRESENTED BY ITS DIRECTOR.
2. THE TECHNICAL EVALUATION COMMITTEE,
ICAR - CENTRAL PLANTATION CORPS RESEARCH INSTITUTE,
KUDLU (P.O), KASARAGOD, PIN - 671124.
REPRESENTED BY ITS CHAIRMAN DR.RAVI BHAT,
PRINCIPAL SCIENTIST.
3. THE CONTRACTUAL SERVICE COMMITTEE,
ICAR - CENTRAL PLANTATION CROPS RESEARCH INSTITUTE,
KUDLU (P.O), KASARAGOD, PIN - 671124.
REPRESENTED BY ITS CHAIRMAN DR.RAVI BHAT,
PRINCIPAL SCIENTIST.
4. VISHAL MANPOWER AND SECURITY CONSULTANTS,
KAMALA TOWERS, NEAR URWA MARKET,
ASHOK NAGAR (P.O.), MANGALORE, PIN 675006.
R1 TO R3 BY ADVS. SRI.JACOB VARGHESE. P. (SENIOR ADVOCATE)
SRI.VIVEK VARGHESE P.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C).No.30860 of 2017 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT-P1: TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION
DATED 17.7.2017 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT-P2: TRUE COPY OF THE CORRIGENDUM DATED 27.7.2017 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT-P3: TRUE COPY OF THE DETAILS OF BID UPLOADED BY THE
PETITIONER.
EXHIBIT-P3(a): TRUE COPY OF THE DETAILS OF BID UPLOADED BY THE
4TH RESPONDENT.
EXHIBIT-P3(b): TRUE COPY OF THE COVERING LETTER SUBMITTED BY THE
4TH RESPONDENT.
EXHIBIT-P4: TRUE COPY OF THE GOVERNMENT NOTIFICATION
DATED 9.5.2017 BEARING NUMBER G.O.(P)-39/2017/L.B.R.
EXHIBIT-P5: TRUE COPY OF THE SUMMARY REPORT ALONG WITH THE
DECISION WHICH WAS UPLOADED IN THE WEBSITE OF
E-PROCUREMENT.
RESPONDENT(S)' EXHIBITS/ANNEXURES:-
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ANNEXURE R1(a) THE TRUE COPY OF CPCRI WORK ORDER
NO.40(2)36-2017-ESTATE XV II DATED 27.09.2017
ISSUED TO THE 4TH RESPONDENT.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).No.30860 of 2017-F
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Dated this the 25th day of October, 2017
JUDGMENT
The petitioner is aggrieved with the selection of the 4th respondent for supply of un-skilled labourers as notified in Exhibit P1, along with supply of highly skilled, skilled and semi-skilled workers.
2. Exhibit P1 notification was brought out by the 1st respondent, inviting tenders for supply of highly skilled, skilled, semi-skilled and un-skilled workers. The petitioner, admittedly, applied only under the "un-skilled category". The 4th respondent was chosen for all the categories as notified in Exhibit P1. The challenge in the writ petition is confined to that of the award of the contract for supply of unskilled workers to the 4th respondent.
3. The petitioner's contention against the selection of the 4th respondent is two-fold; that (i) an un-skilled worker, as per the notification issued by the Government of Kerala, has to be paid a minimum wage of Rs.420/- for each day's work and the 4th respondent had quoted only Rs.350/- per day; while the petitioner WP(C) No.30860 of 2017 - 2 - had quoted Rs.439/-, in excess of the minimum wages prescribed by the Government; and (ii) the 4th respondent has not deposited the required Earnest Money Deposit [EMD]. A computation is made in page 3 of the memorandum of writ petition, which indicates that going by the Corrigendum issued by the 1st respondent, the petitioner was obliged to make EMD of Rs.98,291.02. The petitioner deposited Rs.1,00,000/- when quoting for the un-skilled category alone in accordance with the Corrigendum issued. The 4th respondent was obliged to make a payment of Rs.76,003.81, as EMD, while he paid only Rs.30,000/- for the entire four categories, as is evidenced from Exhibit P3(b).
4. The learned Senior Counsel appearing for the 1st respondent would submit that the quotation of Rs.350/- being the lowest in the case of unskilled workers, was granted to the 4th respondent. The failure of the 4th respondent to comply with Exhibit P4 notification is their sole liability. Though the higher wages as in the notification will have to be paid by the 4th respondent; it cannot be mulcted on the 1st respondent, is the contention. The learned Senior Counsel would also contend that as far as EMD is concerned, the WP(C) No.30860 of 2017 - 3 - Corrigendum was issued after the notification and hence the same was not insisted upon by the 1st respondent. It is also submitted that since no specification has been made in Exhibit P2, the EMD could also be 2.5% of the daily wage paid to a single workman.
5. This Court is unable to countenance the contentions of the 1st respondent on both aspects. The 1st respondent while engaging labour, under a contractor, is in the status of a principal employer and is obliged to ensure that the minimum wages is paid as per the notification issued at Exhibit P4. In such circumstance, the 1st respondent ought not to have accepted a tender which quoted below the rate of wages as prescribed by the State in Exhibit P4. The liability to pay the minimum wages is not confined to the contractor and the principal employer has an equal responsibility; the failure of which would invite penal proceedings both on the contractor and the principal employer.
6. Further, the computation of EMD cannot be so elastic so as to put it to the vagaries of the tenderer to pay amounts either by computing the payment per day per workman or for a month or for the entire period. When quotation is invited for seven months and the WP(C) No.30860 of 2017 - 4 - tenderer has to make the bid for the entire period, the wages of individual workman is not the quoted amount. Exhibit P1 specifically, under the unskilled workers, demanded supply of 34 workers. Hence, this Court is inclined to accept the contention of the petitioner that the quoted amount would be the total amount payable to these 34 workmen for seven months considering 25 working days of each month, which is the computation made as seen from the memorandum of writ petition and noticed hereinabove.
7. It is unfortunate that the 1st respondent, after issuing the Corrigendum, accepted the quotation without the EMD as specified in Exhibit P2. It also does not lie in the mouth of the 1st respondent to disown the Corrigendum issued. The 4th respondent definitely could have raised a contention that the revision of EMD was without notice; but, however, they have refused to accept notice of this writ petition. In such circumstances, the prayer of the petitioner being only to set aside the grant of contract to the 4th respondent under the "un-skilled" category, this Court would set aside the award made to the 4th respondent by the 1st respondent for the supply of workmen under the "un-skilled" category. The 1st WP(C) No.30860 of 2017 - 5 - respondent would be entitled to consider the quotations afresh or even go for a fresh tender in the matter.
8. Before leaving the matter, having noticed the reduction from the minimum wages, this Court cannot permit the quotations in the other categories also to be continued, if the same is below that of the prescribed minimum wages. The 1st respondent would ensure that the quotation made by the 4th respondent for all the other 3 categories are also in accordance with the notification issued under the Minimum Wages Act, 1948 and in compliance with the rates specified therein. If there is any reduction in the rates as specified in the notifications issued by the State, the said contract also shall be terminated. The 1st respondent would also ensure that in future when such notifications are made, it shall be made in compliance with the notifications issued under the Minimum Wages Act.
The writ petition is allowed. No costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]