Punjab-Haryana High Court
Vinod Kumar Malik_ vs State Of Haryana And Others on 21 April, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Writ Petition No. 26235 of 2013
Date of Decision: 21.04.2014
Vinod Kumar Malik_ ..Petitioner
Versus
State of Haryana and others ..Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
HON'BLE MR. JUSTICE ARUN PALLI
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Akshay Bhan, Sr. Advocate with
Mr. Amandeep Singh, Advocate, for the petitioner.
Mr. Ajay Gupta, Addl. Advocate General, Haryana,
for respondent No.1.
Mr. Kamal Sehgal, Advocate, for respondent No.2.
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SANJAY KISHAN KAUL C.J. (Oral)
CM No. 4174 of 2014
Leave is granted to place on record replication to the written statement of respondent No.2 and the application is allowed.
CWP No. 26235 of 2013Haryana State Roads and Bridges Development Corporation Ltd.-respondent No.2 invited bids on-line for franchising toll collection at toll point 9 (Sardulgarh-Sirsa road near Punjab Border) for a period of one year on 26.04.2013, in which the petitioner participated.
The bid security amount of ` 5.7 lacs was to be submitted with the on-line bid and the physical EMD Envelope had to be submitted on or before 13.00 Hrs on 27.05.2013 at the time of opening of the bid. The petitioner, however, for the reasons best known to it, submitted EMD amount of ` 13 lacs through on-line system.
The controversy has arisen on account of the fact that at the stage of submission of physical form of EMD, a fresh draft of ` 6 lacs was prepared which was submitted at 16.00 Hrs. instead of 13.00 Hrs. on Sharma Ravinder 2014.04.22 16:57 I attest to the accuracy and integrity of this document CWP 26235 of 2013 2 27.05.2013 i.e. after delay of three hours. The consequences of not submitting the physical form of EMD are set out as per terms of the clauses in the following terms:-
" xx xx xx xx
xx xx xx xx
Envelope 'TI'-
'TI'- Technical Bid Envelope
Online Technical Envelope- To be
submitted mandatory online, all the information and scanned copies of the Documents/Certificates as required to be submitted as per the Tender.
"In case process of Hash submission for financial bid and technical bid is completed and the re-encryption of on-line bid is not carried out or physical earnest money deposit is not submitted by any bidder, then bidder would be debarred from further tendering in HSRDC/Haryana PWD B&R for a period of minimum two years."
" In case EMD is deposited aftr schedule time time for manual submission of EMD, it would be treated as if it is not deposited and same action of debarring from further tendering in HSRDC/Haryana PWD B&R for a period of minimum two years would be taken against such bidder."
bidder."
It may be clarified that the aforesaid is as per para No. 7 of Section 1(ii) of the bid document.
There were only two bids submitted out of which one was of the petitioner and at the time of opening of the bid, since there was only one bidder (petitioner being disqualified on account of not having submitted the physical form of EMD), the bidding process was cancelled. It may also be noticed that fresh bidding process was held in which the petitioner was successful bidder and the contract was awarded to the petitioner.
The aforesaid was in the circumstances that the consequence of the petitioner not submitting the physical form of EMD was yet under consideration of respondent No.2 and thus the tender was awarded to the petitioner. However, on consideration of the conduct of the petitioner, a communication dated 12.08.2013 was issued to the petitioner post having issued a show cause notice and consideration of the reply of the petitioner Sharma Ravinder 2014.04.22 16:57 I attest to the accuracy and integrity of this document CWP 26235 of 2013 3 whereby the petitioner was sought to be debarred from further tendering with respondent No.2 and Haryana P.W.D. (B&R) for a period of two years in terms of the clause extracted aforesaid.
It is this order which is sought to be assailed by the petitioner in the present petition filed under Article 226 of the Constitution of India. The petitioner also seeks to assail the clause providing for such debarment by an additional prayer.
On pleadings being completed, we have heard learned counsels for the parties at length.
The factual matrix is not in dispute. Infact, learned Senior Counsel for the petitioner concedes that there is three hours delay in submission of physical EMD but states that the consequences are very harsh and disproportionate, as the petitioner has been debarred for a period of two years. It is his say that there was no malafide in the conduct of the petitioner as the draft was prepared in Uttar Pradesh and the person carrying the draft got delayed in the way. On the other hand, the stand of learned counsel for respondent No.2 is that these are part of the tender documents, the petitioner is not a new participant in the tender. The objective is to ensure that there is no pooling and thus that is the reason why this clause ought not to be interfered with. Apart from this fact, it would really not be within the domain of the Court to sit as an Appellate Authority over the terms of the tender which must be left to the commercial parties.
We are in agreement with the submission of learned counsel for respondent No.2 and cannot find fault with the terms of the tender. It has to be appreciated that there is no EMD actually available with respondent No.2 in the absence of physical form being filed with the result that it is not as if the EMD has been encashed for non-compliance of the conditions. Infact, there is no consequence whatsoever on a defaulting party other than what is provided as per the terms of the contract. The petitioner as a prudent contractor is well versed and ought to have taken due care to ensure that EMD was filed within time. Thus we cannot fault the decision of debarring the petitioner for a period of two years in terms of the impugned letter dated 12.08.2013. We may hasten to add that learned counsel for respondent No.2 has fairly stated that the contract already awarded to the petitioner which is to expire in a month's time would not be affected by this process. We clarify that though we had suspended operation of the impugned order on Sharma Ravinder 2014.04.22 16:57 I attest to the accuracy and integrity of this document CWP 26235 of 2013 4 29.11.2013, that should not amount to excluding the period till today as the petitioner has not gained any contract in the meantime either with respondent No.2 or P.W.D. (B&R), Haryana.
We are of the view that it is not for this Court to determine whether there should be a debarment for a period of six months, or one year or two years. Suffice to say that a period of two years cannot be said to be so disproportionate for this Court to intervene. The objective is to prevent malpractices. However, what apparently troubled the petitioner as contended by learned Senior Counsel for the petitioner is that such debarment though is confined to respondent No.2 and P.W.D. (B&R), other Government or Public Sector Enterprises are also seeking to debar the petitioner as a consequence of the impugned order.
In our view it is to be kept in mind that the petitioner defaulted technically in complying with the requirement of submitting the physical form of EMD within time though submitted belatedly. The consequences visited upon by the impugned order would more than sufficient but this should not bring the business of the petitioner to a stand still for even all other entities and thus we clarify that the impugned order would be confined in its effect to the tenders relatable to respondents No.1 and 2 alone and not to any other government entity or Public Sector Enterprises as it is not a case of abandonment of contract, improper performance or breach in that sense.
The petition is accordingly disposed of in the aforesaid terms leaving the parties to bear their own costs.
(SANJAY KISHAN KAUL) CHIEF JUSTICE (ARUN PALLI) JUDGE 21.04.2014 'ravinder' Sharma Ravinder 2014.04.22 16:57 I attest to the accuracy and integrity of this document