Gujarat High Court
Skanray Technologies Pvt. Ltd vs State Of Gujarat & 2 on 13 July, 2017
Author: M.R. Shah
Bench: M.R. Shah, B.N. Karia
C/SCA/4558/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
SPECIAL CIVIL APPLICATION No. 4558 of 2016
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SKANRAY TECHNOLOGIES PVT. LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance :
MR VIRAL M PANDYA, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR UMESH A TRIVEDI, ADVOCATE for the Respondent(s) No. 3
MR UTKARSH R SHARMA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE Mr. JUSTICE M.R. SHAH
and
HONOURABLE Mr. JUSTICE B.N. KARIA
13th July 2017
ORAL ORDER (PER : HONOURABLE Mr. JUSTICE M.R. SHAH)
By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ, order or direction to declare the action of the respondent no. 2-Gujarat Medical Services Corporation Limited [hereinafter referred to as "GMSCL"] in decision making process of confirming the subject matter tender in favour of the Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Aug 12 00:11:00 IST 2017 C/SCA/4558/2016 ORDER respondent no. 3-Ms. Allengers Medical Systems Limited, as unfair, arbitrary and unreasonable; and also to direct the respondent no. 2-GMSCL to disqualify the said bidder ie., the respondent no. 3 herein viz., Ms. Allengers Medical Systems Limited, who had committed glaring irregularities and illegalities while submitting the tender form.
When the present petition was filed, it was a specific case on behalf of the petitioner that at the time when the respondent no. 3 submitted the tender documents, the respondent no. 3 produced a false and fabricated "Performance Certificate" of the quoted model as per the tender specifications. It was the case on behalf of the petitioner that vide communication dated 2nd November 2015, attention of the Managing Director of GMS Corporation was drawn and it was requested to look into the matter and to disqualify the respondent no. 3 in Technical Bid itself and also in the Commercial Bid. It is the case on behalf of the petitioner that without holding any proper inquiry, the Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Aug 12 00:11:00 IST 2017 C/SCA/4558/2016 ORDER Managing Director of GMS Corporation vide communication dated 9th March 2016 opined that there is no substance in the allegations of the petitioner that Ms. Allengers Medical Systems Limited has submitted false and fabricated details/documents, while submitting the tender in question. It is the case on behalf of the petitioner that thereafter and despite the fact that the respondent no. 3 tendered false and fabricated details/documents while submitting the tender in question, the bid submitted by the respondent no. 3 was considered to be technically qualified and thereafter, the commercial bid of the respondent no. 3 also came to be considered and the contract was awarded to the respondent no. 3. It is the case on behalf of the petitioner that thereafter, pursuance to the order passed by this Court in the present proceedings, a detailed inquiry was held and the allegations made by the petitioner against the respondent no. 3 ie., M/s. Allengers Medical Systems Limited of submitting false and fabricated details and Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Aug 12 00:11:00 IST 2017 C/SCA/4558/2016 ORDER documents while submitting the tender in question are found to be true. It is submitted that if at the relevant time, proper inquiry would have been made, in that case, the respondent no. 3 could not have been considered technically qualified and its commercial bid would not have been opened and the respondent no. 3 could not have been awarded the contract for supply of mobile X-Ray machines. It is submitted that only after passing of the order by this Court, the Managing Director of GMS Corporation was compelled to hold an inquiry and the allegations made against the respondent no. 3 were found to be true. It is submitted that though the Inquiry Report was submitted on 27th March 2017; except issuing a show cause notice upon the respondent no. 3, no further action was taken which was required to be taken as per the terms and conditions of the tender. It is the case on behalf of the petitioner that thereafter when the present petition came up for hearing before this Court on 29th June 2017, only thereafter, an order has been passed on 7th Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Aug 12 00:11:00 IST 2017 C/SCA/4558/2016 ORDER July 2017 taking further penal action against the respondent no. 3 and that too disqualifying the respondent no. 3 to participate in future tender processes of Mobile X-Ray Machines for a period of three years. It is submitted that in other cases when it has been found that the bidder had submitted false/fabricated documents, order has been passed disqualifying it for a period of five years to deal with GMS Corporation.
It is the case on behalf of the petitioner that if at the relevant time when the petitioner submitted the complaint/representation on 2nd November 2015, even the Work-Order would not have been issued in favour of the respondent no. 3. It is submitted that at the relevant time, the Managing Director of GMSCL did not hold proper inquiry and despite the respondent no. 3 produced fabricated performance certificate along with tender documents, the Bid submitted by the respondent no. 3 was considered to be technically qualified and even thereafter, its Commercial Bid also Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Aug 12 00:11:00 IST 2017 C/SCA/4558/2016 ORDER came to be accepted.
Shri Umesh Trivedi, learned advocate for the respondent no. 3 has tried to explain production of Certificate and/or discrepancy. He has submitted that according to him, even the conduct on the part of the petitioner is also required to be considered.
Having heard learned advocates appearing on behalf of the respective parties and considering the aforesaid facts and circumstances; more particularly, when the Gujarat Medical Services Corporation Limited, which is entrusted the work of procuring the medical equipments, medicines, etc., great care and caution is required to be taken at every stage; including the tender process for procurement of medical devices/instruments and even the medicines. Therefore, before passing any order in the matter, we are of the opinion that let the head of department; more particularly, the Principal Secretary & Commissioner [Health] may look into the matter and submit his response so that in future such an Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Aug 12 00:11:00 IST 2017 C/SCA/4558/2016 ORDER eventuality may not happen and the aforesaid inquiry; more particularly the fact that the respondent-GSM Corporation is entrusted with the work to procure medical devices/instruments and the medicines for the Hospitals.
Stand over to 25th July 2017.
[M.R Shah, J.] [B.N Karia, J.] Prakash Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Aug 12 00:11:00 IST 2017