Calcutta High Court
Birendra Prasad Singh And Etc. vs State Of West Bengal And Ors. Etc. on 8 November, 2002
Equivalent citations: AIR2003CAL142, 2002(4)CHN697, AIR 2003 CALCUTTA 142, (2002) 4 CAL HN 697
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ORDER Bhaskar Bhattacharya, J.
1. By filing these two separate writ applications, two of the participators have challenged the process of tender and the ultimate selection of one Dipak Mukherjee, the private respondent, upon whom the Chandannagore Municipal Corporation ("Corporation") has entrusted the responsibility of running the Ranighat-Jagatdal Motor Launch Ferry Service for the next three years on the basis of yearly payment of Rs. 13,20,000/-.
2. The Corporation on August 14, 2002 gave a public notice inviting tender in sealed envelope from the persons having at least three years' experience of management of ferry ghat service after revoking an earlier notice dated August 13, 2002. One of the present writ petitioners viz., Swapan Kumar Bose, in the past, challenged the notice dated August 14, 2002 by filing a writ application on the allegation that by replacing the phrase "Lanuch Ghat Service" appearing in the notice dated August 13, 2002 with the one "Ferry Ghat Service" appearing in the latter one, the Corporation intended to entertain tenders from the persons having no experience in "Launch Ghat Service".
3. Mr. Sirkar, the learned counsel appearing on behalf of the Corporation having conceded before this Court that by virtue of such notice a person having no experience in management of launch service for three years would not be eligible to participate, the said writ application was disposed of with the observation that nobody without having experience of running launch service for three years would be entitled to take part in the process of tender.
4. It was further stipulated in the said notice that the highest bidder was required to pay in cash the offered amount for the first year immediately after the acceptance of his bid, otherwise, his right to get the lease would stand cancelled and the security deposit would be forfeited.
5. In both the writ applications, the selection of Dipak Mukherje, the private respondent has been impugned principally on twofold grounds; first, he had no requisite qualification of running launch ferry service for three years and secondly, on August 29, 2002, the date of opening of the tender, he could not deposit his offered amount as per condition but in spite of such default. Corporation permitted him to deposit the same on August 31, 2002, although for the similar reason, the bid of the highest bidder viz. One Hemanta Kumar Pathak was cancelled on August 29, 2002. Dipak Mukherjee, there is no dispute, was the second highest bidder.
6. The aforesaid allegations of the petitioners have been seriously disputed by the Corporation and the private respondent by filing separate affidavits-in-opposition.
7. As regards the allegation of lack of prescribed eligibility, both the Corporation and the private respondent In one voice have asserted that the private respondent worked as an Assistant Manager of Hooghly Nadi Jalapath Paribahan Samabay Samiti Ltd. a Co-operative Society for more than nineteen years and while working in such capacity he acquired experience of supervision and running launch service of the said co-operative society. A certificate dated May 16, 2002 issued by the Chairman of the said Co-operative Society declares that the private respondent worked in the society from October 14, 1980 to November 30, 1999 as Assistant manager in Supervision and running launch service of that Society and that he is a competent person in running launch service.
8. The writ petitioners on the other hand contend that three years' experience in management of a ferry service necessarily includes operation, maintenance, management and all other fields including safety as well as public relation required to be maintained. An employee of a Co-operative Society, they maintain, cannot claim such experience simply because he acted as an Assistant Manager of a Society when such Society was in management of a ferry service. In such a situation, they allege that the Cooperative Society, but not the employee thereof, has the requisite capability. Moreover, they point out that under the provisions of Section 27 of the West Bengal Co-operative Society Act, the management of a Cooperative Society vests with the Board of the Society to be constituted in terms of the Bye-Laws of the Society. Thus, a paid employees of a Co-operative Society cannot, they contend, take the credit of the experience of the Society.
9. As regards the allegation of non-payment of bid on August 29, 2002, the answer of the Corporation however varies from the one given by the private respondent.
10. The version of the Corporation in this regard may be summarized thus :
11. On August 29, 2002, after the finalization of the process of tender it was found that one Hemanta Kumar Pathak was the highest bidder but he was absent on call. In the absence of Sri Pathak, Sri Dipak Mukherjee, the next highest bidder wanted to deposit the money but the same could not be accepted as by that time the office was closed. August 30, 2002 was a public holiday for Janmastami. On August 31, 2002, Sri Pathak submitted a letter dated August 29, 2002 praying for extension of time to deposit the bid. On that day he gave another letter clarifying that the amount mentioned in his offer letter was for three years and not for one year. In view of such letter his position went down and Sri Dipak Mukherjee became the highest bidder and his bid was accepted. Sri Mukherjee immediately deposited the money on August 31. 2002.
12. Dipak Mukherjee, the private respondent, however has not come forward with a case that after his bid was accepted he offered the money on August 29, 2002 but the Corporation could not accept the money as the office was by that time closed; on the other hand, in paragraph 13 of the affidavit-in-opposition to W.P. No. 12762(W) of 2002 he categorically stated that as Sri Hemanta Kumar Pathak did not turn up and fulfil the conditions, his offer was accepted on August 31, 2002 and he deposited the money on August 31, 2002.
13. In paragraph 4(c) of the other affidavit-in-opposition to W.P. No. 12742(W) of 2002 he specifically averred that auction was held on August 29, 2002, that August 30, 2002 was a holiday and that on August 31, 2002, he being the second highest bidder, was offered to run the ferry service provided he paid the required amount and as such no question of relaxation of time arose.
14. In paragraph 13 of the said affidavit he has reiterated that there was no violation of conditions as Hemanta Pathak, the highest bidder, did not appear arid his offer was accepted. He further stated that there was no relaxation in his case since tender was opened on August 29. 2002, the next day was a holiday and on the very next day he deposited the money. He thus never claimed that on August. 29, 2002 the Corporation could not accept the money after the close of office hours although he intended to deposit.
15. The following points thus arise for determination in these writ applications :--
(a) Whether the private respondent had the necessary competency of management of a ferry service as per conditions imposed by the Corporation?
(b) Even if the private respondent had such qualification, whether the Corporation abused its power in giving extension of time to such respondent for deposit of the tendered amount resulting in vitiation of the process of tender?
Point (a) :--
16. After hearing the learned counsel for the parties and after going through the contents of the notice of tender dated August 14, 2002 I find that only the persons having minimum three years' experience in management of a ferry service were entitled to bid. The aforesaid experience "in management of a ferry service" necessarily refers to such experience not as employee of a person entrusted with management but to that of the person actually invested with such responsibility. Therefore the Co-operative Society which employed the private respondent could itself bid by virtue of its experience but not its employee who worked under the guidance of the Society in the management of the ferry service.
17. An employee is a person who works in the service of another person (employer) under an express or implied terms of employment, under which the employer has the full right to control the details of work performance, the employer, on the other hand, is left free to do the assigned work and to choose the method of accomplishing it. For any loss suffered by a third party even due to the mistake of an employee, the employer will be held responsible.
18. It is therefore apparent that no public authority in the past ever put into the hands of the private respondent the management of any ferry service as a lessee thereof and thus he had no such experience. His experience as an employee of a lessee of such ferry service while working under the control and guidance of such a lessee has not qualified him to bid as per requirement mentioned in the notice of tender dated August 14, 2002.
19. I therefore hold that Dipak Mukherjee, the private respondent did not attain the requisite qualification to take part in the process of tender. Point (b) :--
20. According to the terms mentioned in the notice of tender, the highest bidder was required to deposit the tendered amount in cash the moment his bid would be accepted; it is further made clear that in default of such payment his bid would stand cancelled.
21. There is no dispute that Hemanta Pathak, the highest bidder was not present at the time of opening of the tender and he did not deposit the amount. It appears from record that he submitted a letter dated August 29, 2002, on August 31, 2002 before the Corporation expressing his inability to pay that amount and prayed for seven days time. Subsequently, by writing another letter, on the same day he reduced his offer.
22. Under the aforesaid circumstances, it was the duty of the Corporation to cancel the bid of Hemanta Pathak on August 29, 2002 when he failed to deposit the amount mentioned in the bid and asked the second highest bidder to deposit the amount offered by such bidder.
23. The Corporation at this stage has come forward with a case that although the private respondent offered the amount on August 29, 2002, the same could not be accepted as the office was by that time closed. The private respondent on the other hand never claimed that he intended to deposit his offered amount on August 29, 2002 but he stated that his offer was accepted on August 31, 2002 after the bid of Sri Pathak was cancelled and he deposited the money on August 31, 2002. Thus, the private respondent claimed, there was no question of extension of time.
24. In my view, there was no reason why the Corporation should not accept the money on August 29, 2002 on the plea that the office was by that time closed. The tender was opened in the office of the Corporation and the office was very much functioning as the process of tender was in progress. The notice having directed the bidders to put in the amount in cash, it was the duty of the Corporation to make arrangement for receiving the cash at the spot.
25. It is therefore clear that the Corporation by taking the plea of "close of office" has favoured the private respondent by giving him an opportunity of procuring the amount by August 31, 2002. When the bid of Sri Pathak was rejected on August 29, 2002 there was no justification of relying upon his letter deposited in the office of Corporation on August 31, 2002 reducing his bid. If the Corporation was really not in a position to accept money on August 29, 2002 due to close of office, the opening of the tenders ought to have been postponed. However, in my view, the Corporation should have made special arrangement for acceptance of money on that day.
26. I thus answer the second point by holding that the Corporation abused its power by giving extension of time to deposit the bid to the private respondent by not following the terms of the tender.
27. Both Mr. Sirkar appearing on behalf of the Corporation arid Mr. Banerjee appearing on behalf of the private respondent vigorously contended that in the facts of the present case, this Court should not interfere with the decision of the Corporation. They also disputed the locus standi of the petitioners to maintain these applications. In support of their contention they placed strong reliance upon the decision of the Supreme Court in the case of Tata Cellular v. Union of India reported in 1994 (6) SCC page 651.
28. I am quite alive to the position of law that while deciding a writ application involving this type of a case, the duty of the Court is to see whether the decision-making authority (a) exceeded its power, (b) committed an error of law, (c) committed a breach of the rules of natural Justice, (d) reached a decision which no reasonable authority would have reached, (e) abused Its powers. Over and above, the Court should bear in mind that it does to sit as an Appellate Court and thus the decision-making process and not the merits of the decision is reviewable.
29. In the case before us, the Corporation itself framed the qualifications of the bidders after taking into consideration the safety and security of the public but ultimately selected a person having no such competency. The Corporation has further outrageously extended the time limit of de-posit of the offered amount by taking the blame upon itself notwithstanding the fact that the terms of tender do not permit any relaxation of the conditions. Therefore this is a case where in furtherance of public interest the selection of the private respondent should be quashed.
30. As regards the plea of absence of locus standi of the petitioners. I am of the opinion that the same is devoid of any substance. It is settled law that a person whose tender has been rejected may very well complain that the tender of one else has been wrongly accepted. In the case of Ramana v. I.A. Authority, the Supreme Court has even gone to the extent that a person who has not participated in the process of tender can also impugn the selection on the ground that if it were known that non-fulfilment of condition of eligibility would be no bar to consideration of a tender, he would also have submitted a tender and competed for obtaining a contract. I thus find no substance in such contention.
31. Under the aforesaid circumstances these two writ applications are disposed of by declaring that Dipak Mukherjee, the respondent No. 7 in W.P. No. 12762(w) of 2002 and the respondent No. 4 in W.P. No. 12742 (w) of 2002 had no requisite qualification to bid pursuant to the notice dated August 14, 2002 issued by Chandannagore Municipal Corporation for lease of Ranighat-Jagatdal Motor Launch Ferry Service and consequently the decision of the Corporation accepting the bid of Dipak Mukherjee is quashed. The Corporation is directed to take back the management of the ferry service from the said private respondent immediately. The Corporation will refund the balance amount from the sum of Rs. 13,20,000/- deposited by the private respondent after adjusting the proportionate less from September 1, 2002 till today which the private respondent had enjoyed. The amount should be refunded within a week. The Corporation will now consider the bids given by the participants other than that of Dipak Mukherjee, having no requisite competence and of Hemanta Pathak whose bid has been cancelled for non-deposit of the amount mentioned in the original offer.
32. The Corporation after considering the remaining bids will take its decision within a week, from date strictly in accordance with the conditions mentioned in the notice dated August 14, 2002. Till such decision is taken, the Corporation is free to entrust the management of the said ferry service to any competent person having necessary experience mentioned in the notice dated August 14, 2002 for running of such essential service for such limited period. But I make it clear that Dipak Mukherjee having no such expertise should not be permitted to continue even for this limited period inasmuch as such extension may endanger public safety.
33. No order as to costs.