Telangana High Court
Sri Babu Jagjeevan Ram S.C. Labour ... vs The Nizams Institute Of Medical ... on 24 March, 2021
HE HON'BLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION No.23896 of 2020
ORDER:
1 This Writ Petition is filed seeking to issue a writ of Mandamus declaring the action of the respondent in issuing notification dated 12.12.2020 in Rc.No.Plng-1/55/2019/LC, cancelling the Tender Notification dated 26.8.2020 without there being any complaint or without assigning any reasons even after reducing the commission from 8% to 5% through negotiations as arbitrary and illegal.
2 Petitioner is a society registered with the Registrar of Societies and it is in the business of supply unskilled / semi skilled contract labour on out-sourcing basis for sweeping, floor cleaning, toilet cleaning, housekeeping and other incidental works relating to patient care through labour contractors. The respondent issued tender notification dated 26.7.2017 for the said purpose wherein the petitioner participated and became successful bidder. The petitioner entered into an agreement with the respondent for supply of unskilled and semi-skilled labour and the same was going to expire on 25.7.2019 and it was extended for three months with effect from 26.7.2019 to 25.10.2019. Subsequently, the contract was extended for a further period of three months i.e. from 26.10.2019 to 25.01.2020 subject to extension of bank guarantee of Rs.96.00 lakhs for the two areas, vide proceedings dated 24.10.2019. Thereafter the same extended from 26.01.2020 till finalization of fresh tenders by proceedings dated 25.01.2020.
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While so, the respondent issued a tender notification dated 31.01.2020, in response to which seven bidders have applied and only four bidders were declared eligible in the Technical Bid evaluation and two bidders were disqualified during the evaluation of the Technical Bid and two bidders were declared eligible for financial bid evaluation. But all of a sudden without any notice or intimation or assigning any reason, the said tender was cancelled.
The petitioner further asserts that the respondent has once again issued a fresh tender notice dated 26.8.2020. The petitioner Society participated in the pre-bid meeting and the opening of bids. The petitioner submitted bids for the areas 2 and 3 and was qualified for the same and M/s. P.S. Manpower Suppliers were qualified for areas 1 and 4. Subsequently price bid was also opened by the sub-committee of the respondent and the percentages noted by various bidders towards commission for supply of unskilled and semi-skilled labour for the areas were quoted and the same was also submitted through a report for the award of contract. It is learnt that the petitioner Society secured 72 out of 100 marks and the percentage of commission by the petitioner Society for both the areas 2 & 3 for both the unskilled and semi-skilled labour was 8%. Thereafter the petitioner Society and M/s.P.S. Manpower Suppliers were called for negotiations and the Petitioner Society submitted a letter agreeing to take 5% of the commission for each areas 2 & 3 for the supply of unskilled and semi-skilled labour.
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The grievance of the petitioner is that the respondent having called the petitioner Society and M/s. P.S. Manpower Supplies for negotiations, has unilaterally rejected the offers of the bidders and called for fresh tenders and intimated the same to the petitioner by proceeding dated 12.12.2020 cancelling the Tender Notification dated 26.8.2020 and that the Sub-Committee appointed for that purpose may submit its report very soon for relaxing the Tender conditions and basing on the said report, the respondent intends to issue a fresh tender calling for supply of Manpower to it. 3 The sole respondent filed counter denying the various averments made in the affidavit filed in support of the Writ Petition. In brief, the case of the respondent is that the Director, NIMS reserves the right to accept / cancel / recall the Tender of all the Tenders without assigning any reason thereof. It is further submitted that the tender was cancelled in terms of the CVC guidelines dated 27.4.2008 which empowers the Director to take a decision to cancel the Tender Notification wherever the rates quoted by the qualified bidders in the financial bid found to be abnormally higher side and that the quoted commission by the bidders should be less than 5%. It is further submitted that the respondent has issued a fresh Tender Notification on 13.01.2021 wherein the petitioner has participated. In the new Tender Notification certain new conditions were added empowering the Director to cancel the tenders for the reasons mentioned therein. Hence prayed to dismiss the Writ Petition.
44 The learned counsel for the petitioner submitted that the initial Tender Notification dated 31.01.2020 was cancelled without assigning any reasons at the stage of final bids were opened and that in the successive Tender Notification dated 26.8.2020 also though the petitioner has agreed for scaling down the commission from 8% to 5% the respondent has unilaterally cancelled the Tender Notification. He further submitted that the impugned action of the respondent cancelling the Tender Notification dated 26.8.2020 without any complaint even after reducing the commission to 5%, which is the same percentage granted in the earlier contract is arbitrary.
5 The learned counsel for the respondent submitted that in every Tender Notification the respondent has reserved right to cancel the Tender without assigning reasons and that the petitioner has participated in the Tender having knowledge of the same, therefore, he cannot complain of the same. The respondent has power to cancel the Tenders if the commission percentage is high since it should be less than 5%. He further submitted that since there was no competitive bid in response to the first Tender Notification the first Tender Notification dated 31.01.2020 was cancelled.
6 As seen from the record and also as rightly submitted by the learned counsel for the respondent, the respondent is justified in cancelling the first Tender Notification since there was no competitive bid in response to the first Tender Notification dated 31.01.2020. Moreover, as per condition No.7.6 (b) of the Tender 5 Notification dated 26.8.2020, reading, "The Director, NIMS reserves the right to accept / cancel / recall the Tender of all the Tenders without assigning any reason thereof. The decision of the Director NIMS in this regard will be final." Therefore, the participation of the petitioner in the Tender gives a reasonable thought that the petitioner has knowledge of the said condition and having accepted the said clause, he cannot complain that the action of the respondent is illegal. However, the petitioner has not challenged the same.
7 Further, the plea of the petitioner is that though the petitioner agreed to reduce the percentage of commission from 8% to 5%, the Tender was cancelled. However, as seen from the record it is manifest that as per the CVC guidelines dated 27.4.2008 and also as per the Government instructions, the quoted percentage of commission should be less than 5%. In the case on hand, the petitioner initially quoted the percentage of commission as 8%, but subsequently reduced to 5%. Therefore, the action of the respondent on this aspect also is justified.
8 As rightly submitted by the learned counsel for the respondent as per Article 127 of the Financial Code, no tenderer has any right to be told the reasons for rejecting his tender and the reasons for rejection should not be communicated to any tenderer. 9 There are no proven or strongly attributed mala fides against the respondent. The petitioner has, by his action, agreed with the instructions and proceedings of the Registrar and correspondence is made with the Registrar in terms of the tender and it is not now 6 open to the petitioner to say that the Registrar is not having jurisdiction to cancel the tenders. The Registrar on his own has not acted and it is only communicating the decision passed by the Committee as per the tender conditions. There is no violation on the part of the respondents in inviting the tenders or canceling the tenders. The underlying interest of the respondent is to see that the institution is benefited and accordingly reduced the margin of commission from 8% to 5% or even to less. Any action taken in the interest of the institution cannot be treated as any violation. 10 As seen from the record, after cancelling the Tender Notification dated 26.8.2020, the respondent has issued a fresh Tender Notification dated 13.01.2021 inviting new tenders for supply of manpower through labour contract for four areas in the premises of the respondent Institute while adding two new conditions in the Tender wherein the petitioner's tender for the areas 2 & 3 was accepted. So, the petitioner having participated in the new tender dated 13.01.2021, cannot challenge the action of the respondent in cancelling the earlier Tender dated 26.8.2020. The imposition of the said tender conditions cannot be said to open a red carpet welcome to blue eyed boys of institutions and to eliminate petitioners. The Registrar has only communicated the rejection order of the committee.
11 Taking into the totality of the facts and circumstances of the case, this Court is of the considered view that at every stage the respondent is justified in cancelling the Tenders and this Court finds no unreasonable or inexcusable action on the part of the 7 respondent and the complaint of the petitioner is misconceived. The petitioner has not substantiated any ground much less valid ground to grant the relief in exercise of ex-ordinary power of this Court under Article 226 of the Constitution of India. Therefore, the Writ Petition lacks merits and hence liable to be dismissed as such.
12 In the result, the Writ Petition is dismissed. No order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition shall also stand dismissed.
__________________________ T. AMARNATH GOUD, J.
Date:24.03.2021 Kvsn