Karnataka High Court
M/S Infotech Computer Educatuion vs The Karnataka Institute Of Medical ... on 30 October, 2018
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE R DEVDAS
W.P.NO.105630/2018 (GM-TEN)
C/W
W.P.NO.104524/2018,
W.P.NO.101624/2018 & W.P.NOS.101709-713/2018
W.P.NO.101547/2018
IN W.P.NO.105630/2018
BETWEEN:
M/S. INFOTECH COMPUTER EDUCATION,
(A PROPRIETARY CONCERN)
OFF: KOPPIKAR ROAD, MALLIKARJUN AVENUE,
SHOP NO.12/6, DESHPANDE NAGAR,
HUBBALLI-580029,
BY ITS PROPRIETOR SHRI SRINIVAS P. KYARKATTI,
AGE 35 YEARS, OCC: BUSINESS,
R/O. NO.19, CHAITANYA NAGAR,
R.N.SHETTY FACTORY ROAD, GOKUL ROAD,
HUBBALLI-580030, TQ. HUBBALLI, DIST. DHARWAD.
... PETITIONER
(BY SRI. F.V.PATIL, ADVOCATE)
AND:
1 THE KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
REP. BY ITS DIRECTOR,
KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, TQ. HUBBALLI,
DIST. DHARWAD.
2 THE DIRECTOR,
THE KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, TQ. HUBBALLI, DIST. DHARWAD.
2
3 THE CHIEF ADMINISTRATIVE OFFICER,
THE KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI - 580022, TQ. HUBALLI, DIST. DHARWAD.
... RESPONDENTS
(BY SRI. T.H.AVIN &
SRI VIDYASHANKAR G. DALWAI, ADVTS. FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO (A) QUASH
THE IMPUGNED ORDER DATED 07.07.2018 BEARING
NO.PUV(6)101/2018-19 PASSED BY THE RESPONDENT NO.2
VIDE ANNEXURE-G, (B) DIRECT THE RESPONDENT NO.1 TO
PAY THE SALARY FOR THE MONTH OF APRIL, MAY AND JUNE,
2018 IN TERMS OF THE REPRESENTATION DATED 11.07.2018
VIDE ANNEXURE-H, AND (C) DIRECT THE RESPONDENT NOS.1
AND 2 NOT TO ALLOT THE WORK ORDER OF PACKAGE I & II
WITHOUT CALLING FOR FRESH TENDER.
IN W.P.NO.104524/2018
BETWEEN:
M/S. INFOTECH COMPUTER EDUCATION,
(A PROPRIETARY CONCERN)
OFF: KOPPIKAR ROAD, MALLIKARJUN AVENUE,
SHOP NO.12/6, DESHPANDE NAGAR,
HUBBALLI-580029,
BY ITS PROPRIETOR SHRI SRINIVAS P. KYARKATTI,
AGE 35 YEARS, OCC: BUSINESS,
R/O. NO.19, CHAITANYA NAGAR,
R.N.SHETTY FACTORY ROAD, GOKUL ROAD,
HUBBALLI-580030, TQ. HUBBALLI, DIST. DHARWAD.
... PETITIONER
(BY SRI. F.V.PATIL, ADVOCATE)
AND:
1 THE KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
REP. BY ITS DIRECTOR,
KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, TQ. HUBBALLI, DIST. DHARWAD.
3
2 THE DIRECTOR,
THE KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, TQ. HUBBALLI,
DIST. DHARWAD.
3 THE CHIEF ADMINISTRATIVE OFFICER,
THE KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI - 580022, TQ. HUBALLI, DIST. DHARWAD.
... RESPONDENTS
(BY SRI. T.H.AVIN &
SRI VIDYASHANKAR G. DALWAI, ADVTS. FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.07.2018 BEARING
NO.KIMS/POOVI(6)/100(A)/2018-19 PASSED BY THE
RESPONDENT NO.2 VIDE ANNEXURE-E.
IN W.P.NO.101624/2018
& W.P.NOs.101709-713/2018
BETWEEN:
M/S. INFOTECH COMPUTER EDUCATION,
(A PROPRIETARY CONCERN)
OFF: KOPPIKAR ROAD, MALLIKARJUN AVENUE,
SHOP NO.12/6, DESHPANDE NAGAR,
HUBLI-580029,
BY ITS PROPRIETOR SHRI SRINIVAS P. KYARKATTI.
... PETITIONER
(BY SRI. F.V.PATIL, ADVOCATE)
AND:
1 KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, BY ITS DIRECTOR.
2 KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, BY ITS C.A.O.
... RESPONDENTS
(BY SRI.C.V.ANGADI, ADV. FOR R1 AND R2)
4
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO :
[A] CALL FOR THE ENTIRE RECORDS PERTAINING TO ; -E-
NOTIFICATION DATED:08.02.2018 NO.KIMS/POOVI-
6/TENDER/305/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-A, A1 & A2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON 09.02.2018
; -E-NOTIFICATION DATED:12.02.2018 NO.KIMS/POOVI-
6/TENDER/312/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-B, B1 & B2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON 13.02.2018
; -E-NOTIFICATION DATED:14.02.2018 NO.KIMS/POOVI-
6/TENDER/315/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-C, C1 & C2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON 15.02.2018
; -E-NOTIFICATION DATED:12.02.2018 NO.KIMS/POOVI-
6/TENDER/316/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-D, D1 & D2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON 15.02.2018
; -E-NOTIFICATION DATED:14.02.2018 NO.KIMS/POOVI-
6/TENDER/317/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-E, E1 & E2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON 15.02.2018
; -E-NOTIFICATION DATED:17.02.2018 NO.KIMS/POOVI-
6/TENDER/325/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-F, F1 & F2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON 18.02.2018
; -E-NOTIFICATION DATED:17.02.2018 NO.KIMS/POOVI-
6/TENDER/326/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-G, G1 & G2
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON
18.02.2018.
[B) ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING ;
-E-NOTIFICATION DATED:12.02.2018 NO.KIMS/POOVI-
6/TENDER/312/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-B ISSUED BY
RESPONDENT NO.1 AND PUBLISHED ON 13.02.2018 ; -E-
NOTIFICATION DATED:14.02.2018 NO.KIMS/POOVI-
6/TENDER/315/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-C ISSUED BY
RESPONDENT NO.1 AND PUBLISHED ON 15.02.2018 ; -E-
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NOTIFICATION DATED:12.02.2018 NO.KIMS/POOVI-
6/TENDER/316/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-D ISSUED BY
RESPONDENT NO.1 AND PUBLISHED ON 15.02.2018 ; -E-
NOTIFICATION DATED:14.02.2018 NO.KIMS/POOVI-
6/TENDER/317/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-E ISSUED BY
RESPONDENT NO.1 AND PUBLISHED ON 15.02.2018 ; -E-
NOTIFICATION DATED:17.02.2018 NO.KIMS/POOVI-
6/TENDER/325/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-F ISSUED BY
RESPONDENT NO.1 AND PUBLISHED ON 18.02.2018 ; -E-
NOTIFICATION DATED:17.02.2018 NO.KIMS/POOVI-
6/TENDER/326/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-G ISSUED BY
RESPONDENT NO.1 AND PUBLISHED ON 18.02.2018.
[C) DIRECT THE RESPONDENT NO.1 & 2 TO ACCEPT THE
REPRESENTATION OF QUERIES/CLARIFICATION FOR PACKAGE
2-5 AND 7-8, WHICH THE AUTHORITIES ARE NOT ACCEPTING
BY HAND AS THERE IS NO EFFECIENT PROVISION FOR THE
SAME TO BE UPLOADED IN THEIR E-PORTALS AND CLARIFY
THE CONDITIONS IMPOSED IN THE SAID PACKAGES IN THE E-
TENDER NOTIFICATION AS PER ANNEXURE-B TO B1-B2,
ANNEXURE-C TO C1-C2, ANNEXURE-D TO D1-D2, ANNEXURE-E
TO E1-E2, ANNEXURE-F TO F1-F2, ANNEXURE-G TO G1-G2
AND TILL THEN DIRECT THE REPONDENT NO.1 AND 2 TO
POSTPONE THE LAST DATE OF SUBMISSION OF TENDER TILL
CLARIFICATION AND RECTIFICATION MADE BY THEM.
IN W.P.NO.101547/2018
BETWEEN:
M/S. INFOTECH COMPUTER EDUCATION,
(A PROPRIETARY CONCERN)
OFF: KOPPIKAR ROAD, MALLIKARJUN AVENUE,
SHOP NO.12/6, DESHPANDE NAGAR,
HUBLI-580029,
BY ITS PROPRIETOR SHRI SRINIVAS P. KYARKATTI.
... PETITIONER
(BY SRI. F.V.PATIL, ADVOCATE)
6
AND:
1 KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, BY ITS DIRECTOR.
2 KARNATAKA INSTITUTE OF MEDICAL SCIENCE,
HUBBALLI-580022, BY ITS C.A.O.
... RESPONDENTS
(BY SRI.C.V.ANGADI, ADV. FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO : A) CALL
FOR THE ENTIRE RECORDS PERTAINING TO THE E-
NOTIFICATION DATED 08.02.2018 NO.KIMS/POOVI-
6/TENDER/305/2017-18 FROM THE OFFICE OF THE
RESPONDENT NO.1 AND 2 AS PER ANNEXURE-A, B & C ISSUED
BY RESPONDENT NO.1 AND PUBLISHED ON 09.02.2018.
B) QUIASH THE NOTIFICATION DATED 08.02.2018
NO.KIMS/POOVI-6/TENDER/305/2017-18 FROM THE OFFICE
OF THE RESPONDENT NO.1 AND 2 AS PER ANNEXURE-A,
ISSUED BY RESPONDENT NO.1 AND PUBLISHED ON
09.02.2018. C) DIRECT THE RESPONDENT NO.1 TO CLARIFY
AND RECTIFY THE QUERIES/CLARIFICATION SOUGHT AS PER
ANNEXURE-D AND TILL THEN DIRECT THE RESPONDENT NO.1
AND 2 TO POSTPONE THE LAST DATE OF SUBMISSION OF
TENDER TILL CLARIFICATION AND RECTIFICATION MADE BY
THEM.
THESE WRIT PETITIONS COMING ON FOR HEARING-
INTERLOCUTORY APPLICATION THIS DAY, THE COURT MADE
THE FOLLOWING:
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COMMON ORDER
R.DEVDAS J., (ORAL):
In all these writ petitions the petitioner is either calling in question the order of termination or blacklisting of the petitioner by the respondent- Karnataka Institute of Medical Sciences, which is a Government of Karnataka undertaking. In another writ petition the same petitioner has called in question a communication made by the respondents to the petitioner stating that the wages to the contract labourers, for the period from April to June, 2018 will be paid directly by the respondents to the contract labourers. In W.P.No.101624/2018 and W.P.No.101547/2018, the very same petitioner has called in question the tenders called for the similar services restricted to certain packages, i.e., package Nos.1 to 5, 7 and 8. Since the matters pertain to the same parties, with respect to tender notification and the subsequent termination and blacklisting of the 8 petitioner by the very same respondent, all the matters are heard together and disposed of by this common order.
2. Reg: W.P.No.104524/2018:
In this petition, the petitioner is aggrieved by the order dated 06.07.2018 whereby the contract entered through due process of tender, for providing contract labourers for the purpose of maintenance of the hospital, stands terminated and the petitioner-company is blacklisted.
3. It is an admitted fact that the tender for certain packages was awarded to the petitioner for providing contract labourers, services of manpower to the respondent hospital. It is also an admitted fact that the work order was issued on 08.09.2016. The period of contract was initially for a period of one year, renewable on the basis of the performance of the petitioner. At this juncture, the learned counsel for the petitioner submits 9 that in fact the contract was entered into with effect from 01.10.2016 with a specific understanding that the contract will be in force until further orders.
4. On going through the pleadings and annexures produced along with the writ petition, it is quite clear that on inspection made by the officers of the Labour Department, it was found that the contract labourers were not being paid as per the Payment of Minimum Wages Act. At the instance of the Labour Department, respondents issued certain communications to the petitioner bringing to its notice that the Labour Department has found that the petitioner has not been paying contract labourers the minimum wages as required under the payment of Minimum Wages Act and the petitioner was guilty of non-payment of ESI contribution and PF contribution. In this regard, a notice dated 05.12.2017 was issued by the respondents to the petitioner bringing to its notice 10 the observations of the officers of the Labour Department. In the said notice it was specifically stated that insofar as package No.1 was concerned, for 58 labourers, for a period of six months, contractor was found to have made short payment of Rs.7,41,588/-. It was also stated that the petitioner was liable for payment of penalty of ten times the difference in payment of minimum wages as stated in the notice. The respondent called upon the petitioner to make the difference of payment by depositing the same in the bank account of the labourers, within a period of three days from the date of notice.
5. The learned counsel for the petitioner submits that by letter dated 08.12.2017 the petitioner has explained the position to the respondents and in fact submits that the petitioner called upon the respondents to pay a sum of Rs.3,18,38,495/- so that the short payment made to the labourers could be made 11 good. Subsequently respondent has issued the order dated 06.07.2018 terminating the services of the petitioner and at the same time blacklisted the petitioner company. Being aggrieved, the petitioner is before this Court calling in question the impugned order dated 06.07.2018.
6. Reg: W.P.No.105630/2018:
This is a matter in continuation of the order of termination and blacklisting. After termination of the contract of the petitioner, the respondent has communicated by letter dated 07.07.2018 that the respondent would directly pay the salary and allowances to the labourers, for the period April 2018 to July 2018, in terms of the Contract Labour (Regulation and Abolition) Act, 1970 as provided under Section 21(4) of the Act. This communication has been called in question in W.P.No.105630/2018.12
7. W.P.No.101624 & W.P.Nos.101709- 713/2018, petitioner has called in question the tender notification issued by the respondents with respect to package No.2 to 5, 7 and 8. Similarly, in W.P.No.101547/2018, the petitioner has called in question the tender notification with respect to package No.1.
8. The main ground on which the tender notifications are called in question is that the tender does not provide for the mandatory period of 30 days for effective participation which is in grave violation of the Karnataka Transparency of Public Procurement Act, 1999.
9. Sri.F.V.Patil, learned counsel strenuously contends that the action of the respondents insofar as terminating the contract and blacklisting the petitioner company is clearly opposed to the principles of law. The learned counsel places reliance on the judgment of the 13 Hon'ble Supreme Court in the case of Gorkha Security Services Vs Government (NCT of Delhi) and Others reported in (2014) 9 Supreme Court Cases 105. The learned counsel points out to paragraph No.21 of the judgment and submits that the Hon'ble Supreme Court has clearly held that the fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same.
10. It is also held that in the show cause notice the nature of action which is proposed to be taken for such a breach should also be clearly stated. The learned counsel would therefore submit that in the show cause notice issued by the respondent, all these requirements are absent and therefore the action of the respondent is 14 not in terms of the directions issued by the Hon'ble Supreme Court and therefore submits that the order of termination and black listing deserves to be set aside.
11. Per contra, the learned counsel appearing for the respondent institution would submit that the respondent has clearly intimated the petitioner not only by way of the show cause notice dated 5.12.2017, the respondent has also communicated to the petitioner by letters dated 20.12.2017, 22.12.2017 and 14.2.2018 that the petitioner is guilty of non payment of minimum wages as required under law and as found by the officers of the Labour Department, the petitioner is guilty of non payment of the contribution towards ESI and Provident Fund. The learned counsel would submit that sufficient opportunity was given to the petitioner to rectify the mistakes that it had committed insofar as payment of minimum wages and payment of the other contributions to the labourers are concerned. 15
12. During the course of the arguments, the learned counsel for the respondent has also produced certain documents to establish the fact that the petitioner is also guilty of forging manipulating certain documents. With specific reference, the learned counsel would point out to documents which were submitted by the petitioners which show that the petitioner has deposited the minimum wages into the bank account of the labourers. The learned counsel would point out from the records that these documents were in fact created and fabricated by the petitioner which is evidenced by the letter written by the concerned bank which would substantiate that the information provided by the petitioner is incorrect and in fact a fabricated one. The learned counsel for the respondent would further submit that the respondent institution has been put into grave difficulty on account of the misconduct of the petitioner.
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13. The learned counsel representing the institution in the other two matters would also submit that in view of the interim directions issued by this Court with respect to packages No.2 to 5, 7 and 8, the respondent institution is not in a position to provide for the required labour force and the institution is suffering for want of sufficient hands to maintain huge infrastructure created by the respondent institution.
14. Having heard the learned counsels and on perusing the pleadings and records on the file, what is to be seen is, whether the writ petitions deserve to be allowed in the light of the allegations made by the respondent institution with respect to the petitioner.
15. Primarily this Court is of the opinion that in matters of tender, the role of the writ Court is very limited. When a matter pertains to tender, even if the tender is awarded by the State or a state entity, still the matter could be in the realm of private contract. The 17 extraordinary writ jurisdiction of this Court could be invoked only in cases where the allegation is made against an arbitrary exercise of power in the matter of tender, by the State or state entities. In these matters, the petitioner is before this Court challenging the order of termination passed by the respondent institution. The records would also reveal that prima facie the petitioner is guilty of non compliance of the provisions of the Payment of Minimum Wages Act. The respondent institution was in fact notified by the Department of Labour that the minimum wages and contribution towards ESI and Provident Fund is not being made to the labourers employed in the institution. In this regard what this Court finds is, sufficient opportunity was provided to the petitioner to rectify and remedy the situation. Since the petitioner failed to comply with the provisions of law, the petitioner was forced to invoke the provisions of the contract and cancel the tender. In the writ petitions, the petitioner has not made any 18 allegations of mala fides against any of the authority of the respondent institution. The petitioner would only try to substantiate that he has in fact made the payment of wages in accordance with law. This Court is of the opinion that the letters written by the bank would substantiate that the claim of the petitioner as regards payment of due wages has been proved to be incorrect. Nevertheless without going into the aspects as to whether the communication made by the bank is justified or not, it is left open for the petitioner to prove that the petitioner has in fact made the payment in accordance with law. Prima facie, the petitioner does not inspire confidence in the matter of exercising discretionary power under Article 226 of the Constitution of India.
16. In the light of the above, this Court is of the opinion that the petitions deserve to be dismissed as one without merits.
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17. As regards writ petitions No.101709- 713/2018 and 101624/2018, this Court is of the opinion that since the tender was called almost a year back, even the financial bid would require changes in view of the passage of time. Therefore in the best interest of the respondent institution, this Court is of the opinion that the tenders called in question in both these writ petitions will have to be reconsidered by the respondent institution. Therefore the tenders may be recalled and fresh tenders may be called for. In the meanwhile if the petitioner absolves himself of allegations made against the petitioner and the black listing is recalled, the petitioner may also participate in the process of the new tender.
18. With these observations, all the writ petitions stand dismissed.
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19. In view of the dismissal of the petitions, all interlocutory applications do not survive for consideration and are accordingly disposed of.
Sd/-
JUDGE MBS/Mrk/-