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TMI Blog2021 (4) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... eutic and non-therapeutic diet to government or private health institutions having a minimum of 200 beds for the year 2019-2020. In the "Terms of Reference" attached to the TCN, clauses VI.3.3 and VI.3.9 are important and are set out hereunder: "VI.3 Eligibility criteria: xxx xxx xxx 3. The bidder should have a minimum of 3 years' experience in diet preparation and its supply/services in Govt. or Private Health Institutions only having minimum 200 no. of beds. xxx xxx xxx 9. The bidder should have valid labour licence (registration no. & date) of Labour Department." Further, under clause VI.13, the right to reject any bid is set out as follows: "VI.13 Right to Accept or Reject the Bid: The Hospital Administration reserves the right to accept or reject any bid and the bidding process and reject all such bids at any time prior to award of contract, without showing any reason thereby." Equally, under clause VI.16, the administration of the SCB Medical College and Hospital reserves under its sole discretion to disqualify any bid document if any of the documents enumerated in the said clause have not been submitted by the bidder. Clause VI.16(f) reads as follows: "VI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hospital, we fail to concede to the submissions of requirement of labour license under the Contract Labour (Regulation and Abolition) Act, 1970. Rather the submission of the Petitioner that, the same is required under the Odisha Shops and Commercial Establishments Act appears more acceptable. Therefore, the contention of the Opposite Parties requiring the labour license under the Contract Labour (Regulation and Abolition) Act, 1970 does not seem justified in view of the stipulation made in the TCN. When the submission of labour license (registration no. and date) by the Petitioner under the Odisha Shops and Commercial Establishments Act is not disputed, in our considered opinion the same satisfies the requirement sought for at Clause 9. 10. Coming to the other shortfall as contended by the Opposite Parties regarding lack of three years' experience in terms of Clause 3 of the eligibility criteria, the admitted case of the parties are that the Petitioner has submitted the certificate issued by All India Institute of Medical Science, Bhubaneswar relating to experience of providing patient dietary service in AIIMS since 8th August, 2015 till 26th October, 2018. This has been neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Commercial Establishments Act, 1956 ["Orissa Act"] could replace a labour licence under the Contract Labour (Regulation and Abolition) Act, 1970 ["Contract Labour Act"], as required by the authority. He also argued that the minimum three years' experience, as per the requirement contained in clause VI.3.3 was missing, as the experience certificate furnished by Respondent no.1 had a gap period from 06.08.2017 to 31.07.2018 which could not be made up and which was wrongly sought to be made up by the High Court. He also argued that it was perverse to hold that the action of the authority in granting the contract in favour of the Appellant was mala fide, and further went on to argue that after quashing the work order in favour of the Appellant, the High Court exceeded its jurisdiction in directing the authority to grant the work order to Respondent no.1. 9. Shri Aditya Kumar Chaudhary, learned counsel appearing on behalf of Respondent no.1 countered each of the aforesaid submissions. He pointed out that under Section 1(4) of the Contract Labour Act, the Act would apply only to an establishment in which 20 or more workmen are employed. As the TCN did not require that establishments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. This has clearly been held in the celebrated case of Tata Cellular v. Union of India, (1994) 6 SCC 651, paragraph 94 of which states as follows: "94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035, after referring to paragraph 15 of Afcons (supra), it was held: "15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335, under the heading "Deference to authority's interpretation", this Court stated: "51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. 52. In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818) 53. The High Court ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. Section 4 of the Orissa Act reads as follows: "4. Registration of establishment. -- (1) Within the period specified in sub-section (4), the employer of every establishment shall send to the Inspector of the area concerned, a statement in the prescribed form, together with such fees as may be prescribed, containing- (a) the name of the employer arid the manager, if any; (b) the postal address of the establishment; (c) the name, if any, of the establishment; (d) the category of the establishment, that is whether it be a shop, commercial establishment, hotel, restaurant, cafe, boarding or eating house, theatre or other place of public amusement of entertainment; and (e) such other particulars as may be prescribed. (2) No adolescent shall be allowed to work in any employment for more than six hours in a day. (3) In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong, the Inspector shall refer the matter-to the Chief Inspector who shall, after such enquiry as may be prescribed, decide the category of such establishment and his decision shall be final for the purpose of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp. Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB, so accordingly, with a malafide intention both have connived and a pre-planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp. Party No. 3 is to create some litigation so that, the opposite parties can continue during pendency of the writ application." This plea was answered by the authority in its counter affidavit filed before the High Court as follows: "15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that, the bidding process has been concluded in a transparent manner adhering to the required guidelines made thereto. It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender ..... X X X X Extracts X X X X X X X X Extracts X X X X
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