Udayamperoor Ioc Lpg vs Indian Oil Corporation Ltd
2021 Latest Caselaw 17484 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
 THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                  WP(C) NO. 14815 OF 2021
PETITIONER:

          UDAYAMPEROOR IOC, LPG,
          B.P CYLINDER AND GENERAL WORKER'S CONGRESS,
          NADAKAVU P.O., UDAYAMPEROOR (IOC-INTUC)
          REPRESENTED BY ITS PRESIDENT JOHN JACOB.
          BY ADVS.
          S.VINOD BHAT
          GREESHMA CHANDRIKA.R
          ANAGHA LAKSHMY RAMAN


RESPONDENTS:

    1     INDIAN OIL CORPORATION LTD.,
          KERALA STATE OFFICE, PANAMPILLY NAGAR,
          ERNAKULAM-682 036, REPRESENTED BY ITS CHIEF
          MANAGER.
    2     CHIEF PLANT MANAGER,
          INDANE BOTTLING PLANT (IOC),
          UDAYAMPEROOR-682 307. ERNAKULAM DISTRICT
    3     S.MAX INDIA,
          CONTRACOTR, INDANE BOTTLING PLANT,
          UDAYAMPEROOR, ERNAKULAM,PIN-682 307.
    4     ENKAY ASSOCIATES,
          NIYAS MANZIL, NETTOOR-682 040,
          ERNAKULAM DISTRICT
 W.P.(C) No.14815 of 2021        2




     5      C.M. KUNJUMOHAMMED,
            NIYAS MANZIL, NETOOR-682 040,
            ERNAKULAM DISTRICT
            ADV.E.K.NANDAKUMAR SR.
            SRI.M.GOPIKRISHNAN NAMBIAR
            SRI.K.JOHN MATHAI
            SRI.K.ANAND
            SRI.BENNY ANTONY PAREL
            SRI.JOSON MANAVALAN
            SRI.KURYAN THOMAS
            SRI.PAULOSE C. ABRAHAM
            SRI.RAJA KANNAN


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.14815 of 2021              3




                       P.B.SURESH KUMAR, J.
              -----------------------------------------------
                     W.P.(C) No.14815 of 2021
              -----------------------------------------------
          Dated this the 26th day of August, 2021.


                           JUDGMENT

Petitioner is a trade union of workers engaged in

loading and unloading works at the Liquefied Petroleum Gas

(LPG) bottling plant of the first respondent at Udayamperoor.

The first respondent invited bids for carrying out the loading

and unloading works at their bottling plant referred to above

for a period of one year from 01.08.2021. Ext.P1 is the tender

notice issued by the first respondent in this regard. It is

stipulated in Ext.P1 Tender Notice that the tentative maximum

number of labourers required to be engaged for loading and

unloading work at the location in a day is estimated as 66. It is

stated by the petitioner that the tentative maximum number of

labourers required to be engaged for loading and unloading

work at the location in a day specified in the previous tender

was only 52 and it is at the instance of the petitioner, having

regard to the quantum of work at the bottling plant, the first

respondent raised the strength of the labourers from 52 to 66. It

is alleged by the petitioner that after having floated the tender

specifying the strength of the labourers as 66, the first

respondent is now taking steps to award the contract by

reducing the strength of the labourers to 52. The case set out

by the petitioner in the writ petition is that after having

specified the strength of the labourers as 66 in the tender

notice, the first respondent is precluded from varying the

strength of the labourers. It is also the case of the petitioner

that reducing the strength of the labourers would entail the

labourers being forced to work in inhuman and undignified

working conditions, infringing the fundamental rights

guaranteed to them under Articles 19 and 21 of the

Constitution. The petitioner, therefore, seeks directions to the

first respondent to award the work covered by Ext.P1 tender

notice specifying the tentative maximum number of labourers

required to be engaged for loading and unloading work at the

location in a day as 66.

2. Heard the learned counsel for the petitioner as

also the learned Senior Counsel for the first respondent.

3. As noted, the case set out by the petitioner in

the writ petition is that after having specified the strength of

the labourers as 66 in the tender notice, the first respondent is

precluded from varying the strength of the labourers while

awarding the work, and the reduction of the strength of the

labourers would entail the labourers being forced to work in

inhuman and undignified working conditions, infringing the

fundamental right guaranteed to them under Articles 19 and 21

of the Constitution. The relevant clause in the tender notice

relied on by the petitioner to show that the number of labourers

to be engaged for the work in terms of the tender stipulation is

66, reads thus:

"Tentative maximum number of labourers required to be engaged at the location in a day has been estimated as 66 Nos. Any increase or decrease to be done by contractor as per the advice of Location In-charge. During the pendency of the contract, if the need was felt to reduce the contract labourers in view of any automation, then same shall be complied immediately as per advice from location - in - charge. The discretion shall vest with the Corporation to operate/discontinue specific items of the work schedule."

As evident from the extracted stipulation, the first respondent

has only indicated in the tender notice the tentative maximum

number of labourers required to be engaged at the location in a

day and in terms of the very same stipulation, the first

respondent has reserved the right to increase or decrease the

maximum number of labourers required to be engaged at the

location. In other words, the case of the petitioner that the first

respondent has stipulated in the tender notice the number of

labourers required to be engaged at the location in a day as 66

cannot be accepted, for there is no such stipulation in the

tender notice. Even assuming that there was such a stipulation

in the tender notice and the first respondent is taking steps to

vary the same after the culmination of the tender process, the

petitioner will not have any locus standi to institute a writ

petition seeking directions to the first respondent to award the

work covered by the tender notice specifying the number of

labourers as 66, for it is for the first respondent to take a

decision essentially as to the number of labourers required to

be engaged at the location in a given day. Be that as it may, the

relevant portion of Ext.P5 communication relied on by the

petitioner to show that the specification as regards the number

of labourers to be engaged for the work has been altered after

the tender process, reads thus:

"In this regard, we would like to also inform you that the Udayamperoor IOC LPG BP cylinder & General Workers Congress has filed a WP praying for direction to IOC to engage additional labourers and thus the matter is subjudice.

In view of the above, you are advised to engage not more than the currently deployed work force (which we understand is 52 labourers per day) for the work of loading/unloading of cylinders at Cochin Bottling plant wef 01.08.21 when the work will commence."

In terms of the said communication, the first respondent has

instructed the successful bidder not to engage more than 52

workers in view of the pendency of this writ petition. Ext.P5

does not show that the first respondent has decided to vary the

tender specification as regards the tentative number of

labourers required to be engaged at the location in a day.

Ext.P5 would only show that in view of the pendency of this writ

petition, the first respondent has decided to maintain status

quo as regards the tentative maximum number of labourers

required to be engaged at the location in a day. In other words,

the case of the petitioner that the first respondent has decided

to vary the stipulation as regards the tentative maximum

number of labourers to be engaged at the location in a day has

also not been established by the petitioner.

In the circumstances, I do not find any merit in the

writ petition and the same is, accordingly, dismissed. It is,

however, made clear that the dismissal of this writ petition will

not preclude the petitioner from availing appropriate remedies

against the first respondent, if inhuman or undignified working

conditions exit at the premises of the first respondent.

Sd/-

P.B.SURESH KUMAR, JUDGE YKB

APPENDIX OF WP(C) 14815/2021

PETITIONER EXHIBITS Exhibit P1 COPY OF SPECIAL TENDER CONDITIONS (RELEVANT PAGES) Exhibit P2 COPY OF LETTER DATED 16-07-2021 SENT BY THE PETITIONER TO 1ST RESPONDENT Exhibit P3 COPY OF LETTER DATED 18-07-2021 SENT BY THE PETITIONER TO 2ND RESPONDENT EXHIBIT P4 COPY OF LETTER NO.SM1/IOC/01 DATED 26-

07-2021 SENT BY THE 3RD RESPONDENT O THE PETITIONER EXHIBIT P5 COPY OF LETTER NO.CBP/L&UL DATED 23-07-

2021 ISSUED BY THE 2ND RESPONDENT TO 3RD RESPONDENT

RESPONDENT EXHIBITS EXHIBIT R3(A) TRUE COPY OF THE TECHNICAL BID TENDER NO:SRCC/PT/004/KESO/2021-22 OF INDIAN OIL CORPORATION LTD.

EXHIBIT R3(B) TRUE COPY OF THE LOA SRCC/PT/004/KESO/2021-22 DATED 22.07.21 EXHIBIT R3(C) TRUE COPY OF THE RELEVANT PAGE OF THE CORRIGENDUM EXHIBIT R3(D) TRUE COPY OF SITE VISIT REPORT NO.SM1/IOC/BP DATED 28.04.2021 EXHIBIT R3(E) TRUE COPY OF THE COMMUNICATION NUMBER CBP/L&UL DATED 23.07.2021 EXGHIBIT R3(F) TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 28.07.2021.