Karnataka High Court
Indus Security Services And Detectives ... vs District Health And Family Welfare ... on 9 June, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
WP No. 103193 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 103193 OF 2023 (GM-TEN)
BETWEEN:
INDUS SECURITY SERVICES
AND DETECTIVES PRIVATE LIMITED,
A COMPANY REGISTERED,
UNDER THE COMPANIES ACT,
REPRESENTED BY ITS DIRECTOR,
SRI NAVEEN H.C.
S/O. H.S. CHANDRASHEKAR,
AGED ABOUT 43 YEARS,
OCC: BUSINESS, R/O. NO.202,
RANI CHANNAMMA NAGAR,
BHARATHI
DHARWAD, TQ: AND DIST: DHARWAD.
HM
High Court ...PETITIONER
of
Karnataka,
Dharwad
(BY SRI G.I. GACHCHINAMATH, ADVOCATE)
AND:
1. DISTRICT HEALTH AND
FAMILY WELFARE SOCIETY®
NATIONAL HEALTH MISSION,
NEAR K.C. PARK, HALIYAL ROAD,
DHARWAD,
REPRESENTED BY ITS
PRESIDENT/CHAIRMAN.
-2-
WP No. 103193 of 2023
2. THE DISTRICT HEALTH
AND FAMILY WELFARE SOCIETY®
NATIONAL HEALTH MISSION,
NEAR K.C. PARK, HALIYAL ROAD,
DHARWAD,
REPRESENTED BY ITS
VICE-PRESIDENT/VICE CHAIRMAN.
3. THE DISTRICT HEALTH OFFICER
DISTRICT HEALTH AND
FAMILY WELFARE OFFICE,
NEAR K.C. PARK, HALIYAL ROAD,
DHARWAD, DIST: DHARWAD.
...RESPONDENTS
(BY SRI PRASHANT V. MOGALI, HCGP FOR R1 AND R2)
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED DECISION OF THE RESPONDENTS REJECTING THE
TECHNICAL BID OF THE PETITIONER IN RESPECT OF TENDER
NOTIFICATION BEARING NO. DPMU/DWD/M.P.T/2022-23
PRODUCED AS ANNEXURE-C AND C1 DATED NIL BY ISSUE OF
WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT OR ORDER
OR DIRECTIONS AND ALSO TO ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENTS TO ACCEPT THE TECHNICAL BID
OF THE PETITIONER IN RESPECT OF TENDER NOTIFICATION
BEARING NO. DPMU/DWD/M.P.T/ 2022-23 MAKING THE
PETITIONER ELIGIBLE FOR FINANCIAL BID AND ETC., IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
-3-
WP No. 103193 of 2023
ORDER
Heard learned counsel for the petitioner and learned High Court Government Pleader for respondent.
2. This petition is filed by the petitioner seeking to quash Annexure-C and C1, wherein the technical bid of petitioner is rejected and further, he has sought for writ of mandamus to direct the respondents to accept the technical bid and enable the petitioner to be eligible for financial bid.
3. Respondents had invited the tender for supply of manpower services for the year 2022-23 through e-procurement portal. The tender is invited in two cover bid system consisting of technical and financial bid for providing services of manpower which included supply of Accountant, Data Entry Operators, programme Assistant, Group-D employees, Drivers, etc. The petitioner is a company registered under the Companies Act providing services of supply of manpower and he was eligible to be qualified for participating in the tender. Accordingly, he -4- WP No. 103193 of 2023 applied through e-portal for the tender bid document floated by the respondents. Learned counsel for the petitioner contends that as per note that condition No.6 in clause (3) specifies the tender must have Employee Provident Fund Registration Certificate issued by the Regional Provident Fund Commissioner and must have remitted at least Rs.1 crore to EPF account in the last three years and also EPF contribution certificate.
4. Learned counsel contends that despite having fulfilled all the necessary requirements and ingredients floated in the tender, the technical bid of the petitioner came to be rejected among four participants and the reason for rejection of the tender by the respondents is due to not having produced 'no due certificate' from EPF authorities, which is stated as not produced at page No.122, Annexure-R6 produced along with the statement of objection by respondents and also for the reason that in the statement of objections filed by the respondent at para No.5 it is stated that the committee cannot count/add the -5- WP No. 103193 of 2023 amount remitted by the petitioner to the EPF authority by going through each and individual challans uploaded by the petitioner and ascertain the veracity of the challans. Based on which, the petitioner has failed to fulfill the mandatory requirement of uploading the relevant documents from the concerned authority for payment of EPF amount at least Rs.1 crore. On these grounds, the rejection of the petitioner technical bid according to the learned counsel for the petitioner is bad in law and it is deliberately premised only with the mala-fide intention to delete the petitioner and to provide beneficial orders of grant of tender to the favorable candidate/agency.
5. Learned counsel for the petitioner contends that pursuant to rejection of the technical bid, financial bid is not yet opened and the work order has also not been issued. Under these circumstances, in view of violation of principles of natural justice and the rejection of technical bid on a very narrow and hyper technical manner, the same requires to be quashed and the petitioner's technical -6- WP No. 103193 of 2023 bid deserves to be accepted and permit him to participate in the financial bid. On these grounds, he seeks to allow this petition.
6. Per contra, learned HCGP representing the State vehemently opposes the arguments put forth by learned counsel for the petitioner preliminarily on the ground that the writ petition itself is not maintainable for the reason that an appeal provision is provided under Section 16 of the Karnataka Transparency In Public Procurement Act, 1999 (hereinafter referred as 'KTPP Act, 1999' for brevity) and he cannot approach this Court when there is an alternative efficacious remedy provided under the statute by deviating such well prescribed procedure by approaching this Court under Article 226 of the Constitution of India, which cannot be permitted as held by several catena of judgments of the Hon'ble Apex Court and this Court.
7. Learned HCGP further contends that the reasons for rejection of the technical bid of the petitioner -7- WP No. 103193 of 2023 has been stated in the rejection order for non production of the EPF certificate and not complying with the requirements of the tender mandatory documents having not been filed. On these grounds, he contends that petitioner cannot invoke the writ jurisdiction of this Court when there is an alternative efficacious remedy available. He can urge all these points and grounds by way of appeal which has deliberately not been done and has rushed to this Court violating the statutory appeal. Learned HCGP also submits that vide order dated 25.05.2023 this Court passed an order staying the further proceedings of the tender notification bearing No.DPMU/DWD/M.P.T/2022-23 for a limited extent of one week from the even date and the petitioner in the meanwhile was provided liberty to file an appeal as contemplated under Section 16 of the Act. Despite this Court having granted a week's time to file an appeal, petitioner has not bothered to file the appeal which is statutorily provided to him and therefore, he does not deserve an order from this Court when an opportunity was granted by this Court to approach the Appellate Authority -8- WP No. 103193 of 2023 by granting limited extent of reprieve for a period of one week. Under these circumstances, he seeks to dismiss the petition.
8. It is necessary to extract Section 16 of the KTPP Act, 1999 which is the appeal provision. Section 16 of the Act reads as under:
"16. Appeal.- (1) Any tenderer aggrieved by an order passed by the Tender Accepting Authority other than the Government under section 13 may appeal to the prescribed authority within thirty days from the date of receipt of the order:
Provided that the prescribed authority may, in its discretion allow further time not exceeding thirty days for preferring any such appeal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.
(2) The prescribed authority may after giving opportunity of being heard to both the parties pass such order thereon as it deems fit and such order shall be final.
(3) The prescribed authority shall as far as possible dispose of the appeal within thirty days from the date of filing thereof."
9. It is no more res integra with regard to aspect of party approaching writ Court under Article 226 of Constitution of India should make out an exceptional case to show that his fundamental rights have been violated, -9- WP No. 103193 of 2023 principles of natural justice are violated and the authority or Court passing the order does not have jurisdiction to pass such an order and that the virus of the Act is challenged. On only these circumstances, the writ Court would have jurisdiction to entertain the writ petition filed by aggrieved party despite there being an alternative efficacious remedy by way of an appeal provision available under the statute. Now this Court will have to see whether any of these grounds stated above have been violated by the authorities while rejecting the technical bid of the petitioner.
10. Learned counsel for the petitioner has relied on the judgment of Hon'ble Apex Court in the case of M/s Godrej Sara Lee Limited Vs The Excise and Taxation Officer-Cum-Assessing Authority and Ors in Civil Appeal No.5393 of 2010. Learned counsel lays stress on para Nos.4, 6 and 8 of the said judgment, which reads as under:
- 10 -WP No. 103193 of 2023
"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an
- 11 -WP No. 103193 of 2023
effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not
- 12 -WP No. 103193 of 2023
availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.
6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under:
(i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without jurisdiction; or
(iv) where the vires of an Act is challenged.
8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is
- 13 -
WP No. 103193 of 2023unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available.
11. I have carefully gone through the judgment of Hon'ble Apex Court which has dealt with the matter with regard to the aspect of an alternative efficacious remedy. It is no doubt true that the jurisdiction of the writ Court cannot be ousted merely for the reason that there is an alternative and efficacious remedy by way of an appeal provided when the controversy pertains to purely legal one and does not involve disputed question of fact and so also on the four grounds urged at para No.6 stated supra.
- 14 -
WP No. 103193 of 2023
12. In the present case on hand, admittedly as stated in para No.6 above, extraction of the judgment in M/s Godrej Sara Lee, the petitioner does not fall within the category of 1, 3, and 4. It is his contention that he would come within category-II where the violation of principles of natural justice exists and that there is a pure legal question, which does not involve disputed question of facts.
13. Learned HCGP representing the State relies on the judgment of Hon'ble Apex Court in the case of TATA Motors Limited Vs The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others reported in Civil Appeal No. 3897/2023 and lays stress at para Nos.48, 52 and 54 of the said judgment, which reads as under;
"48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in
- 15 -WP No. 103193 of 2023
contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489).
52. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the
- 16 -
WP No. 103193 of 2023employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679.
54. As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517, that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial
- 17 -
WP No. 103193 of 2023review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.
14. He also relies on the judgment of coordinate bench of this Court in W.P.No.115631/2019, dated 31.01.2020 in support of his case.
15. Having perused judgment relied by both the learned counsel, the law has been laid down by the Hon'ble Apex Court with regard to this Court exercising it's jurisdiction under Article 226 of the Constitution of India for deciding the matters when there is an appeal provision provided by way of an alternative efficacious remedy and the manner in which it should be entertained keeping in mind the limited ground of interference by this Court under Article 226 of the Constitution of India.
16. This Court exercises jurisdiction of a judicial review under Article 226 of Constitution of India to see whether there is any violation of fundamental rights, violation of principles of natural justice, any illegalities or blatant arbitrariness or mala-fides in passing of such order
- 18 -
WP No. 103193 of 2023by the Courts or the authorities. It is held by the Apex Court and also by this Court that whenever, any such blatant violations apparently seen then the jurisdiction of this Court under Article 226 of Constitution of India despite there being an appeal provision cannot be ousted.
17. However, Hon'ble Apex Court has further held that in the normal circumstances, the writ Court should not ordinarily interfered in the matter relating to tender or contract and also with regard to any proceedings where there is an appeal provision provided under the statute. As the very purpose of providing the appeal remedy gets frustrated. If all the matters are premised in the guise of violation of principles of natural justice, the writ Courts will get flooded with matters when there is an appeal provision provided under the statute. This Court is aware that award of tender contracts is primarily a commercial contract between two parties and the principles of equity and natural justice stay at a distance in such matters and that the same will have to be probed in the appeal proceedings
- 19 -
WP No. 103193 of 2023when any such violations of the principles of natural justice or rejection of the said tender is challenged by the aggrieved party. As it is not in dispute that the power of judicial review is very narrow and this Court under Article 226 of the Constitution of India cannot conduct a roving enquiry which would have to be done in the appeal proceedings. Therefore, the writ Courts will have to be very circumspect in dealing with such matters of the tender notification being challenged whether technical/hypertechnical grounds or other grounds when admittedly there is appeal provision provided to challenge such order. In the present case, KTPP Act, 1999 provides an appeal remedy under Section 16 of the Act which could have been availed by the petitioner aggrieved by any order passed by the tender accepting authority. It is relevant to mention at this stage that this Court vide order 25.05.2023, granted a limited reprieve to the petitioner of a stay of further tender process and granted liberty to the petitioner to file appeal proceedings as contemplated under Section 16 of the Act. But strangely, the petitioner
- 20 -
WP No. 103193 of 2023has not availed the remedy under the guise that this Court would grant the relief prayed for by him. In my opinion, this Court being guardian of fundamental rights and the writ jurisdiction being of a judicial review of narrow compass cannot go into factual aspects of disputed questions of fact and should not venture into interfering with the matters when there is an appeal provision available in the statute. Thereby, the very concept of providing an appeal under the Act gets frustrated.
18. This Court does not want to go into the merits and demerits of the contentions raised by the petitioner and respondents. But however in view of certain technical and hyper technical reasons stated for rejection of the technical bid of the petitioner, this Court deems it appropriate not to interfere in the writ jurisdiction under Article 226 of Constitution of India. However, I deem it appropriate to direct the petitioner to approach the Appellate Authority under the provisions of Section 16 of the Act. Accordingly, I pass the following:
- 21 -
WP No. 103193 of 2023
ORDER
i) This petition is disposed of.
ii) Liberty is provided to the petitioner to approach the Appellate Authority under Section 16 of the KTPP Act, 1999 within a week's time from today.
In view of the fact that the work order has not been issued yet, respondent shall not precipitate the matter with regard to issuance of work order for a period of 15 day's from today.
On filing of such appeal before the Appellate Authority prescribed under the statute and if any such application is filed, the same shall be considered within a period of 10 days from the date of filing of the said appeal/application.
All contentions of the parties are kept open to be adjudicated before the Appellate Authority. The Appellate Authority shall decide the matter without being influenced
- 22 -
WP No. 103193 of 2023by any of the observation or opinion expressed by this Court.
Sd/-
JUDGE AM