Enkay Associates vs Indian Oil Corporation Ltd
2021 Latest Caselaw 17489 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. 15191 OF 2021
PETITIONER:

          ENKAY ASSOCIATES
          NIYAS MANZIL, NETTOOR, COCHIN-682040,
          REPRESENTED BY SRI.MUHAMMED NIYAS C.K, AGED 49,
          S/O.C.M.KUNJUMUHAMMAD, NIYAS MANZIL, NETTOOR,
          COCHIN-682040.
          BY ADVS.
          T.K.RADHAKRISHNAN
          S.SREEDEVI
          CHITHRA R.SHENOY
          T.R.HARI KRISHNAN
          HARITHA ULLAS
          MOHAMMED SABIR
RESPONDENTS:

    1     INDIAN OIL CORPORATION LTD.
          KERALA STATE OFFICE, PANAMPILLY AVENUE,
          PANAMPILLY NAGAR P.O., KOCHI-682036, REPRESENTED
          BY ITS CHIEF MANAGER (LPG OPS).
    2     INDIAN OIL CORPORATION LTD.,
          INDANE BOTTLING PLANT, NADAKKAVU P.O.,
          UDAYAMPEROOR-682307, ERNAKULAM, REPRESENTED BY
          PLANT MANAGER.
 W.P.(C).No.15191 of 2021      2




    3    S.MAX INDIA,
         C.C.NO.57/2131, FIRST FLOOR, KP VALLON ROAD,
         OPP.ST.JOSEPH CHURCH, KADAVANTHRA, KOCHI-682020,
         REPRESENTED BY ITS MANAGER.
         BY ADV.
         E.K.NANDAKUMAR, SC

     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.15191 of 2021             3




                     P.B.SURESH KUMAR, J.
             -----------------------------------------------
                    W.P.C.No.15191 of 2021
             -----------------------------------------------
         Dated this the 26th day of August, 2021.


                         JUDGMENT

Petitioner is a concern undertaking loading and

unloading works on works contract basis. The first respondent

invited bids for carrying out the loading and unloading works in

their Liquefied Petroleum Gas(LPG) bottling plant at

Udayamperoor for a period of one year from 1.8.2021. 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. The petitioner as also the third respondent participated

in the tender process. Though the petitioner was the lowest

tenderer, in the reverse auction process provided for in the

tender notice, the third respondent became the lowest tenderer

and became eligible to be awarded the work. It is stated by the

petitioner that after finalisation of the tender, the first

respondent has varied the stipulation in the tender notice as

regards the number of labourers required to be engaged for the

work from 66 to 52. The case set out by the petitioner in the

writ petition is that they have participated in the tender

process on the premise and assumption that the number of

labourers required to be engaged for the work is 66 and had the

first respondent indicated in the tender notice that the number

of labourers required to be engaged for the work is 52, the

petitioner would have quoted a lower rate. It is stated by the

petitioner that on coming to know of the variation in the tender

stipulation aforesaid, they preferred Ext.P5 representation to

the first respondent praying for re-tendering the work. The writ

petition is filed thereafter seeking orders quashing Ext.P1

tender notice and all further proceedings thereto and also

seeking directions to the first respondent to re-tender the work.

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 they have participated in the tender

process pursuant to Ext.P1 notice on the premise and

assumption that the number of labourers required to be

engaged for the work would be 66 and had the first respondent

indicated in the tender notice that the number of labourers

required to be engaged for the work is 52, the petitioner would

have quoted a lower rate. In other words, the case of the

petitioner is that the proceedings initiated pursuant to Ext.P1

tender notice is vitiated by misrepresentation. 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 they

have participated in the tender process on the premise and

assumption that the number of labourers required to be

engaged at the location in a day would be 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 has varied the same after the

culmination of the tender process, the petitioner is not entitled

to the reliefs sought for in the writ petition on that ground, for

all those who have participated in the tender process including

the third respondent were proceeding on the same premise and

assumption. In other words, if other bidders participating in the

tender process could quote a lesser rate, there is absolutely no

justification in contending that the petitioner was misled by the

stipulations in the tender notice.

4. Be that as it may, the relevant portion of Ext.P4

communication relied on by the petitioner to show that the

specification as regards 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."

As evident from Ext.P4 communication, the stipulation made by

the first respondent as regards the number of labourers

required to be engaged for the work prior to Ext.P1 tender

notice was 52. In terms of the said communication, the first

respondent has instructed the third respondent not to engage

more than 52 workers in view of the pendency of the writ

petition filed by the Trade Union of workers engaged in the

bottling plant. The writ petition referred to in Ext.P4

communication is W.P.(C) No.14815 of 2021 which has been

heard along with the present writ petition. The said writ petition

is one filed by the Trade Union seeking directions to the first

respondent to award the work covered by Ext.P1 notice with the

stipulation that the number of labourers required to be engaged

for the work shall be 66. The case set out by the petitioner in

the said writ petition is that a minimum of 66 workers are

required for carrying out the works at the bottling plant of the

first respondent; that after floating the tender, the first

respondent is taking steps to reduce the number of labourers

required to be engaged for the work from 66 to 52 and that the

attempt of the first respondent is to exploit the labour force.

Ext.P4 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. The

said document would only show that in view of the pendency of

W.P.(C) No.14815 of 2021, 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 company has

varied 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 at all in

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

Sd/-

P.B.SURESH KUMAR, JUDGE PV

APPENDIX OF WP(C) 15191/2021

PETITIONER'S EXHIBITS

Exhibit P1 COPY OF THE RELEVANT PORTION OF THE TENDER DOCUMENTS SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P2 COPY OF THE SCHEDULE OF WORK ISSUED BY THE 2ND RESPONDENT.

Exhibit P3 COPY OF TENDER SUMMARY REPORT REGARDING THE ACCEPTANCE OF TENDER ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT RECEIVED FROM THE OFFICE OF LABOUR UNION.

Exhibit P5 COPY OF REPRESENTATION ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.