TMI Blog2021 (4) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have the expertise to correct such decisions by substituting its own decision for the decision of the authority - The High Court has not adverted to any of the decisions, and in second-guessing the authority s requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. The requirement of the Section 1(4) of Contract Labour Act, that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority s interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide. Thus, except for an incantation of the expression mala fide, no mala fide has in fact been made out on the facts of this case - appeal allowed. - Civil Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid document if the following documents have not submitted by the bidder: xxx xxx xxx f) Labour License from competent authority Under clause VI.20, sub-clause (6) states: VI.20 General Information to Bidder: xxx xxx xxx 6. The agency would recruit required number of staff for cooking and serving so that diet can be supplied to the indoor patients in time. List of personnel with their Aadhar card copy should be submitted to the office positively. 3. Pursuant to the aforesaid, four bids were received by the Tender Committee from the Appellant, Respondent no.1, Respondent no.5 and Respondent no.6. Vide the Technical Committee meeting dated 17.02.2020, Respondent no.1 and Respondent no.6 were held to be disqualified inter alia for the reason that they had not submitted a valid labour licence, i.e., a contract labour licence from the competent authority, as per the TCN requirement. The Appellant and Respondent no.5 were shortlisted for opening of financial bids. 4. At this stage, Respondent no.1 filed a writ petition on 19.02.2020 apprehending that it may be disqualified. This writ petition was dismissed as being premature on 20.02.2020. 5. On 24.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical order and the certificate furnished by the Petitioner was having gap period of extension order from 6th August, 2017 to 31st July, 2018. Such analysis of Opposite Parties in our considered view is flimsy on the face of Annexure-9 which is the experience certificate issued in favour of the Petitioner by the AIIMS, Bhubaneswar. Moreover, the period of experience from 8th August, 2015 to 26th October, 2018 when exceeds three years period, the same appears to be satisfying the requirement of Clause-3 without any hesitation. xxx xxx xxx 13. It is admitted by the Opposite Parties that in the meantime during pendency of the writ petition, Opposite Party No.5 has been issued with the work order on 27th November, 2020 and he commenced with the supply of work with effect from 1st December, 2020. This undoubtedly a development made during pendency of the writ petition and as such is governed by the principle of lis pendens and of course such development happened in the meantime is subject to final result of the writ petition. 14. In view of the discussions made above as the bid of the Petitioner is found rejected illegally and contrary to the conditions of the TCN and the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se VI.3.9 but it was the Orissa Act, the registration certificate under which was produced to the satisfaction of the High Court by Respondent no.1. He also countered the argument that three years experience was not made out in the case of Respondent no.1 and referred to certain certificates issued by the All India Institute of Medical Sciences, Bhubaneswar, which made it clear that it had such experience. He argued that in the present case, the High Court had not exceeded the parameters of judicial review as it found mala fides attributable to the authority and also argued that the contract was to be awarded to Respondent no.1 only if it was found that its financial bid was lower than that of the Appellant. 10. Having heard learned counsel appearing on behalf of the Appellant and Respondent no.1, what is clear is that the authority concerned read its own TCN to refer to the licence to be submitted by bidders as the labour licence under the Contract Labour Act. This is also clear from a reading of the tender document as a whole, and in particular, clauses VI.20.6, VI.20.20 and VI.20.21, which read as follows: VI.20 General Information to Bidder: xxx xxx xxx 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. xxx xxx xxx 12. Equally, this Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 [ Afcons ], has laid down: 14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. In this context, the use of the word metro in Clause 4.2(a) of Section III of the bid docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality. (emphasis in original) 16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows: 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn (2) below in respect of an establishment mentioned in Column (1), the statement together with fees shall be sent to the Inspector under sub-section (1) Establishment Date from which the period of 30 days to commence (1) (2) (i) Establishment existing on the date on which this Act comes into force The date on which this Act comes into force. (ii) New establishments The date on which the establishment commences its work. A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act. 15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced. Section 1(4) of the said Act reads as follows: 1. Short title, extent, commencement and application. xxx xxx xxx (4) It applies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e. (i) submission of valid Labour licence; (ii) submission of proper certificate of continuous three years experience in diet preparation and supply to Government/Reputed Private Health Institution having minimum 200 bed strength. As a result, the Tender Committee disqualified the bid of the petitioner. I t is further submitted that after thorough examination of the documents, M/s. Utkal Suppliers (O.P. No. 5) came out to be the L-1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393/Fdt.08.06.2012 after due examination of records has recommended to place the work order with the L-1 bidder. Accordingly, the work order has been issued in favour of the L-1 bidder (O.P. No. 5) vide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f. 01.12.2020. A reference to the aforesaid pleadings would also go to show that except for an incantation of the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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