Orissa High Court
Sanjay Kumar Rout vs State Of Odisha And Others ......... ... on 18 July, 2018
Equivalent citations: AIR 2018 ORISSA 162, (2018) 126 CUT LT 986
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 21522 OF 2015
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Sanjay Kumar Rout ........ Petitioner
-Versus-
State of Odisha and others ......... Opp. Parties
For petitioner : M/s. G.M. Rath,
S.S. Padhy, S. Satpathy,
S. Mishra and S. Diwedi, Advocates.
For opp. parties : Mr. B.P. Pradhan,
Addl. Government Advocate
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 18.07.2018
--------------------------------------------------------------------------------- B.R.SARANGI, J. The Superintending Engineer, Rural Works Circle, Cuttack-opposite party no.3 on behalf of State of Odisha-opposite party no.1 through e-procurement portal invited National Competitive Bidding (NCB) for works under 2 Mukhya Mantri Sadak Yojana (MMSY) and accordingly published notice inviting tender vide Tender Online RWC-10 dated 01.07.2015. As per the NCB, 42 works under various divisions have been notified. The petitioner participated in three of such works under Cuttack Division at serial nos.4, 9 and 13, namely, "construction and maintenance of Sarakor to Sutinda Road under MMSY for 2015-16 in the district of Cuttack", "construction and maintenance of PWD Road to Nakhara Road under MMSY for 2015-16 in the district of Cuttack" and "construction and maintenance of Kakatpur Branch Canal to Arada Road under MMSY for 2015-16 in the district of Cuttack" with a time of completion of nine calendar months. As per such advertisement, the approximate cost has been fixed at Rs.284.56, 281.51 and 240.07 lakhs respectively. In respect of each of the work, EMD has been fixed to Rs.2.85, Rs.2.82 and Rs.2.41 lakhs respectively and the class of contractors has been specified for each of the work, i.e., 'A Class' and 'Special Class' contractors. As per the Detailed Tender Call Notice (DTCN), the process of evaluation of the tender comprises of two stages, i.e., technical bid evaluation and financial bid evaluation. The evaluation 3 procedure has been prescribed at clause-7 of the DTCN which mandates that the technical evaluation of all the bids shall be carried out as per the information furnished by the bidder and upon such evaluation, the procurement officer would evaluate the bid and finalize the responsive bidders.
2. Thereafter, the technical bid of the bidders shall be opened on 11.08.2015 at 11.00 AM and financial bid on 20.08.2015 at 11.00 A.M. as prescribed in the DTCN itself. At the time of evaluation of the technical bid, if any clarification is required, then the procurement officer would ask the bidder to clarify the same within a maximum period of 7 days, failing which, the technical bid will be evaluated on its own merit. As per the terms of the notice inviting tender, after the technical evaluation of the bids, the financial bid of the qualified bidders was evaluated by the procurement officer and as per result of such evaluation, the three bids submitted by the petitioner was declared to be responsive, which would be evident from the letter dated 19.08.2015 of opposite party no.3.
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3. The financial bid submitted by the petitioner in respect of all the three works were opened and the price offered by the petitioner has been evaluated as the most competitive offer and the petitioner was declared as L-1 in respect of all the three tenders, which would be evident from the finance bid opening summary. Though the petitioner was awaiting letter of acceptance of his bid on the basis of the financial bid evaluation, he has received a letter dated 30.09.2015 from opposite party no.3, wherein it has been stated that the certificate showing execution of similar nature of work submitted by him, upon verification, is found to be forged and accordingly he has been called upon to show cause as to why the EMD/Bid amount submitted by him shall not be forfeited and other punitive measures shall not be imposed upon him. In response to the same, the petitioner filed show cause reply denying the allegations made against him and asserted that the certificate submitted by him is genuine and the same has been issued by the competent authority, i.e., Executive Engineer, Rural Works Division, Cuttack-opposite party no.4 vide letter dated 10.08.2012 and the petitioner also submitted the original certificate before 5 opposite party no.3 for its verification and prayed for award of the works in his favour. But, opposite party no.3 vide letter dated 16.11.2015 forfeited the EMD/Bid security amount of Rs.8,08,000/- deposited by the petitioner in respect of all the three works and cautioned him not to repeat such act in future. Hence, this application.
4. Mr. S.S. Padhy, learned counsel for the petitioner argued with vehemence and contended that since the petitioner has qualified both in technical and financial bid and found L-1 and is otherwise eligible to be awarded with the contract, without any opportunity of hearing, forfeiture of EMD/Bid security amount of Rs.8,08,000/- is arbitrary, unreasonable and contrary to the provisions of law, inasmuch as the show cause reply filed by the petitioner having not been considered in proper perspective, the order so passed on 16.11.2015 should be quashed. More particularly, the authority without any application of mind has passed the order impugned, which cannot sustain in the eye of law. It is further contended that the petitioner had participated in the tender on the strength of execution of 6 similar nature of work and appropriate certificate in that regard has been issued by the Executive Engineer-opposite party no.4 on 10.08.2012 and, as such, verifying the correctness of such certificate the tender evaluation committee finalize the technical bids and thereafter the financial bid was opened, in that case, the order of forfeiture of EMD/Bid amount cannot sustain in the eye of law. Thereby, he seeks for quashing of the order impugned dated 16.11.2015 and further seeks for a direction to the opposite parties to allow him to perform the work in respect of items no.4, 9 and 13 as mentioned in the DTCN.
5. Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for the opposite parties contended that forfeiture of EMD/Bid amount has been done on the basis of submission of forged documents. The tender inviting authority has scrupulously followed the procedure as per law by issuing a show cause notice vide letter dated 30.09.2015 to the petitioner to show cause as to why his EMD/Bid amount shall not be forfeited under clause 3.6 of the DTCN for his furnishing false, fabricated and bogus certificate 7 regarding execution of similar nature of work which has been proved forged on verification. It is further contended that the petitioner could not prove that the documents furnished by him in the tender for three numbers of works regarding execution of similar nature of work were genuine. Thereby, action has been taken in consonance with the condition stipulated in the tender call notice. Consequentially, the order of forfeiture of EMD/Bid amount has been made pursuant to order dated 16.11.2015. Therefore, no illegality or irregularity has been committed by the authority so as to warrant interference by this Court at this stage.
6. We have heard Mr. S.S. Padhy, learned counsel for the petitioner and Mr. B.P. Pradhan, learned Addl. Government Advocate and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
7. The facts delineated above are undisputed. Admittedly, opposite party no.3 has issued a notice inviting tender for road works, i.e, (MMSY) at National Competitive 8 Bidding through e-procurement portal. In respect of three works against serial nos.4, 9 and 13, the petitioner participated in the tender knowing fully well the terms and conditions of the DTCN. The bid contains two parts, namely, technical bid and financial bid. The petitioner having satisfied with the requirements participated in the technical bid and consequentially in the financial bid. The technical evaluation committee has examined the bids as per the information furnished by the bidders on online. As per clause-7.2 of the DTCN, the bidder may be asked in writing/online (in their registered e-mail ids) to clarify on the uploaded documents provided in the technical bid, if necessary with respect any doubts or illegible documents. The officer inviting tender may ask for any other document of historical nature during technical evaluation on the tender. In such cases, furnishing of any document in no way alters the bidder's price bid.
8. After technical evaluation, on the basis of the information furnished by the petitioner, he was found qualified for three works as mentioned in serial nos.4, 9 and 9 13 and found to be the lowest bidder in financial bid, therefore, in all fairness, the work would have been issued in his favour. But unfortunately, he has been called upon vide letter dated 30.09.2015 to show cause within a period of 15 days as to why his tender for the above works will not be rejected with forfeiture of EMD/Bid security amount deposited for the works. In response to the same, the petitioner submitted his reply specifically stated as follows:-
".......... I beg to state that, I am not any forged similar nature of certificate for the above tender. If you will give permissions, I will produced the original certificate before you which certificate contains page no.1 and page no.2. both the certificate is issued to Rohit Kumar Barik, as a subletting Contractor of Sri Rohit Kumar Barik page-1 certificate is issued in my favour which was certified by executing Engineer, Rural Works Division, Cuttack on letter no.1955 dated 10.08.2012."
Thereafter, vide letter dated 16.11.2015, invoking clause-3.6 of the DTCN, the EMD amount of Rs.2.41, Rs.2.85 and Rs.2.85 lakhs in total Rs.8.08 lakhs in respect of all the three works deposited in favour of Executive Engineer, Rural Works, Cuttack Division, Cuttack, are forfeited and further warned the petitioner not to repeat such work in future. 10
9. For just and proper adjudication of the case, clause-3.6 of the DTCN is extracted below:
"Signing of Bid: The on-line bidder shall digitally sign on all statements, documents, certificates uploaded by him, owning responsibility for their correctness/authenticity as per IT Act, 2000. If any of the information furnished by the bidder is found to be false/fabricated/bogus, his EMD/Bid Security shall stand forfeited % his registration in the portal shall be blocked and the bidder is liable to be blacklisted."
10. On perusal of the above mentioned provisions, it appears that if any of the information furnished by the petitioner is found to be false/fabricated/bogus, his EMD/Bid security amount stands forfeiture and his registration in the portal shall be blocked and the bidder is liable to be blacklisted. The work certificate produced by the petitioner along with the bid document issued by opposite party no.4 on 10.08.2012, which has been placed at page no.63 of the writ petition and the having been granted by the competent authority and evaluated by tender inviting authority at the time of adjudging the technical bid, where the petitioner found in order and subsequently his financial bid was open, the authority cannot turn around and say that the document is forged one. The question of forgery of such 11 document does not arise at this stage because of the reason that the very same opposite party no.3 on the very same day i.e., 10.08.2012 has granted permission to the petitioner for subletting of 25% of work value in respect of Pradhan Manti Gramya Sadak Yojana packages. While forfeiting the technical bid, the tender inviting committee has not given any finding with regard to furnishing of any information stated to be false/fabricated/bogus, rather unequivocally the documents submitted by the petitioner has been considered and admitted, and accordingly found qualified to participate for second round in the financial bid. While coming to a conclusion that the petitioner has furnished a forged document, nothing has been placed on record to reach such a finding by any of the authority. Had the petitioner been given any opportunity to explain or to establish his contention that the documents are not fabricated, then he would have been explaind the same. Rather, the documents which have been placed on record clearly indicate that the same has been granted by opposite party no.4. Therefore, question of any false/fabricated/bogus document filed by the petitioner while evaluating technical bid does not arise. 12
11. As it appears from the record that even though the petitioner was called upon to show cause, but his reply has not been taken into consideration by the authority and, as such, no reasons has been assigned while passing the said order. More particularly, the bid could not have been rejected as the technical evaluation committee has adjudged the documents submitted by the petitioner and found that the petitioner has qualified in technical bid and subsequently the authority cannot turn round and say that the documents are false/fabricated/bogus. The bid of the petitioner has not been accepted even though the bid price has been accepted and the price quoted by the petitioner has been made kwon to everybody. As such, the order impugned forfeiting the EMD/Bid security amount has been passed without assigning any reason, therefore the order suffers from non- compliance of principles of natural justice.
12. In Siemens Engg. Mfg. Co. of India Ltd. v.
Union of India, AIR 1976 SC 1785 the apex Court held that the rule requiring reasons to be recorded by quasi-judicial 13 authorities in support of the orders passed by them is a basic principle of natural justice.
Hon'ble Justice Bhagwati (as he then was), speaking for the Court, observed as follows:
"If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."
The same view has been reiterated in Maneka Gandhi v. Union of India, AIR 1978 SC 597.
13. In CIT v. Walchand & Co. (P) Ltd., AIR 1967 SC 1435 the apex Court observed:
"The practice of recording a decision without reasons in support cannot but be deprecated."14
14. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 the apex Court observed:
"Except in cases where the requirement of recording reasons has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions must record reasons in support of their decisions. The considerations for recording reasons are :1) such decisions are subject to the appellate jurisdiction of the Supreme Court under Article 136 as well as supervisory jurisdiction of the High Courts under Article 227;
2) it guarantees consideration by the adjudicating authority; 3) it introduces clarity in the decisions;
and 4) it minimizes chances of arbitrariness and ensures fairness in the decision-making process."
15. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority.
In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt 15 support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice."
16. In view of the law discussed above, applying the same to the present context, this Court is of the considered view that the order dated 16.11.2015 forfeiting the EMD/Bid security amount in Annexure-6 cannot sustain in the eye of law and the same is liable to be quashed. Accordingly, the same is hereby quashed. The opposite party no.3- Superintending Engineer, Rural Works Circle, Cuttack is directed to refund the EMD/Bid security amount forfeited by the impugned order to the petitioner within a period of two months from the date of communication of this judgment.
17. The writ petition is allowed to the extent indicated above. However, there is no order to cost.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI)
Orissa High Court, Cuttack JUDGE
The 18th July, 2018, Ashok
True Copy
P.A.