Kerala High Court
P. Gangadhara Alva vs Icar- Central Plantation Crops ... on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 18TH DAY OF JANUARY 2021/28TH POUSHA, 1942
WP(C).No.25493 OF 2020(J)
PETITIONER:
P. GANGADHARA ALVA,
AGED 67 YEARS,
S/O.KORAGAPPA ALVA,
RESIDING AT PITHRU KRIPA, BADIADKA,
PARDALA (PO), KASARAGODE, PIN-671 551.
BY ADVS.
SRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
SRI.JAISON ANTONY
RESPONDENTS:
1 ICAR- CENTRAL PLANTATION CROPS RESEARCH
INSTITUTE, REPRESENTED BY ITS DIRECTOR,
KUDLU (P.O), KASARAGODE, PIN-671 124.
2 THE CONTRACTUAL SERVICE COMMITTEE,
REPRESENTED BY ITS CHAIRMAN,
ICAR- CENTRAL PLANTATION CROPS RESEARCH
INSTITUTE, KUDLU (P.O),
KASARAGODE, PIN-671 124.
3 THE FINANCIAL EVALUATION COMMITTEE,
REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE
OFFICER(ESTATE),
ICAR- CENTRAL PLANTATION CROPS RESEARCH
INSTITUTE, KUDLU (PO), KASARAGODE, PIN-671 124.
4 SHRI.RAMESH NAIK.B.N.,
SREE VINAYAKA NILAYA, BALLIMOGARU,
KUDLU(PO), KASARAGOD, PIN-671 124.
R1 BY SRI.P.SANTHOSH KUMAR, SC, ICAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.25493/2020
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 18th day of January, 2021
The petitioner, who submitted his bid pursuant to
Ext.P1 Notification Inviting Tender published by the 1 st
respondent, seeks to set aside Ext.P5 and to declare that the
decision of the 2nd respondent to permit the participation of
bidders, who quoted rates much below the wages determined
under the Minimum Wages Act, is illegal and arbitrary.
2. On 08.09.2020, the 1st respondent issued Ext.P1
Notice Inviting Tender through e-procurement for outsourcing
manpower on contract basis at ICAR-CPCRI Kasaragod for
one year (2020-2021). Clause 11(26) of Ext.P1-NIT is as
follows:-
"Minimum wages shall be paid to the
workers by the Agency/Contractor at the rate fixed
by the State Govt./Central Labour Commissioner
whichever is the higher rate as per the Minimum
Wages Act. The contractor/Firm shall also pay all
such benefits to its employees as envisaged under
various acts and laws like ESI Act, EPF & MP Act,
Payment of Bonus Act, Taxes etc. The contractor
WP(C) No.25493/2020
shall also ensure compliance of all laws and/or to be
made applicable and ICAR shall not be liable for the
same and the contractor/firm shall will indemnify
ICAR-CPCRI, Kasaragod in all respects. The
contractor/firm would sign an undertaking as per
Proforma every month for compliance of the
provisions of contract labour Act, Rules and other Law
applicable along with the monthly bill."
Annexure-V Tender Schedule indicated that the minimum
wage for Agriculture Works of Hard Nature is ₹490/- for 08
hours and Agriculture Works of Light Nature is ₹410/- for 08
hours. Ext.P1 made it clear that the minimum wages
mentioned is based on prevailing Kerala State Government
Wages for Agricultural Operations 2017 and that the ICAR-
CPCRI, Kasaragod shall not bear any extra charge other than
the statutory admissible contributions.
3. The petitioner would submit that 10 persons
including the petitioner and the 4th respondent responded to
Ext.P1 notification. The Technical Evaluation Committee
cleared the bids of the petitioner, the 4th respondent and four
others, and rejected the bids of all others.
4. According to the petitioner, disregarding the
conditions in the NIT, the 1 st respondent accepted the quote of
WP(C) No.25493/2020
the 4th respondent on 20.10.2020 as per Ext.P5. Ext.P5 is
highly arbitrary and illegal for various reasons, contended the
petitioner.
5. The first and foremost submission of the petitioner
is that the minimum wages prescribed by the Government of
Kerala consist of basic wages as well as Variable Dearness
Allowance (VDA). According to the petitioner, inclusive of
VDA, the minimum wages for Agriculture Works of Hard
Nature would be ₹613/- for 08 hours and for Agriculture Works
of Light Nature, the minimum wages will be ₹533/- for 08
hours. Therefore, the 1st respondent ought to have
considered the bids of only those persons who quoted
amounts above the said rates. Only the petitioner and one
M/s.New Malabar Ex-SM quoted amounts equal to or above
the minimum wages inclusive of VDA. However, the 1 st
respondent illegally proceeded with the finalisation of tenders
and awarded the tender to the 4th respondent for the reason
that he was the person who quoted the lowest service
charges. The petitioner argued that the work cannot be
WP(C) No.25493/2020
assigned to a bidder for the sole reason of quoting the lowest
service charges, when the wages quoted by that bidder is
below minimum wages.
6. Though the learned counsel for the petitioner put
forth many other arguments forcefully to unsettle Ext.P5, I do
not deem it necessary to consider all those arguments in view
of my findings on the legality of award of contract as per
Ext.P5, based on the issue of minimum wages.
7. The learned Standing Counsel for the 1 st
respondent filed counter affidavit and additional counter
affidavit and opposed the arguments of the petitioner.
According to the 1st respondent, a pre-bid meeting was
conducted on 21.08.2020 and it was communicated to the
participants that the competition of financial bidding will be
only on service charges quoted by the bidders. It was also
clarified in the pre-bid meeting that minimum wages specified
in the Bill of Quantity and tender schedule is as per the
Government of Kerala notification and any revision and
variation of wages by the Government will be admitted. The
WP(C) No.25493/2020
Contractual Service Committee met on 30.09.2020 evaluated
the six bids which were technically clear. The Committee
found that the 4th respondent has quoted the lowest service
charge and also quoted the minimum wage as per
Government of Kerala notification.
8. The counsel for the 1st respondent further argued
that the tendering process was transparent and every step
went through online e-tendering mode at Central Public
Procurement (CPP) Portal. The tender was uploaded in the
Institute website also. The decision of the 1 st respondent to
award the bid to the 4th respondent is not arbitrary or malafide.
9. I have heard the learned counsel for the petitioner
and learned Standing Counsel appearing for respondents 1
to 3.
10. A reading of Ext.P1-NIT would disclose that
payment of minimum wages to the manpower to be supplied
by the successful bidder was mandatory. Ext.P1-NIT does not
show that the bidders will be selected solely on the basis of
service charges. Ext.P1-NIT was in fact misleading, inasmuch
WP(C) No.25493/2020
as Annexure-V tender schedule attached to Ext.P1 showed
that minimum wage for Agriculture Works of Hard Nature is
only ₹490/- for 08 hours and Agriculture Works of Light Nature
is ₹410/- for 08 hours. In fact, inclusive of VDA, which is an
integral part of the minimum wages, the minimum wage
amount would be much higher. A perusal of the documents
made available by the counsel on either side would show that
most of the bidders have proceeded treating the minimum
wages payable as ₹490/- and ₹410/-, for Agriculture Works of
Hard Nature and Agriculture Works of Light Nature
respectively.
11. Exts.P9 and P10 price schedule would show that
the 4th respondent has quoted only ₹490/- and 410/- as wages
for 08 hours which is less than minimum wages, whereas
another bidder has quoted ₹613/- and 533/-, which amount is
equal to statutory minimum wages as on date. In short, it is
clear that the 1st respondent has awarded the bid to a bidder
who has quoted less than the minimum wages, which cannot
be sustained, minimum wages being a statutory mandate.
WP(C) No.25493/2020
12. In fact, the entire confusion arose due to
mentioning of wrong amount of minimum wages by the 1 st
respondent in Ext.P1-NIT, so much so, even in the counter
affidavit first filed by the 1st respondent, the 1st respondent
asserted that the minimum wage prescribed is only ₹490/- and
₹410/- respectively and VDA is not a component of minimum
wages. However, subsequently, the 1 st respondent corrected
their stand conceding that VDA is also a component of
minimum wages.
13. Thus, it is evident that the whole bidding process
proceeded on a wrong notion of a material part of the contract,
namely minimum wages. Only two bidders quoted above the
statutory minimum wages, but their bid was not accepted on
the ground that the service charge quoted by them is not the
lowest. At the same time, the 4th respondent who has quoted
amounts below minimum wages was selected in the process
for the reason that the 4th respondent has quoted the lowest
service charge.
WP(C) No.25493/2020
14. In the circumstances, it has to be held that the
entire bidding process commencing from Ext.P1 was
erroneous and on a wrong notion of statutory requirements.
Ext.P5 is therefore set aside. The respondents are directed to
proceed afresh for award of the work publishing fresh
notification. The tender proceedings shall be completed within
a period of two months.
Writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/18.01.2021
WP(C) No.25493/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE DATE
08.09.2020 WHEREBY THE 1ST RESPONDENT
INVITED TENDER FOR THE SUPPLY
AGRICULTURAL LABOURS.
EXHIBIT P2 TRUE COPY OF THE TECHNICAL EVALUATION
REPORT DOWNLOADED FROM THE E-
PROCUREMENT WEBSITE.
EXHIBIT P3 TRUE COPY OF THE LIST OF BIDDERS WHOSE
FINANCIAL BID WAS EXPECTED.
EXHIBIT P4 TRUE COPY OF THE SCREENSHOT DOWNLOADED
FROM THE WEB SITE ON 16.11.2020 AT
20.15 HRS.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED
20.10.2020 WHEREBY THE WORK INVITED AS
PER EXHIBIT P1 IS AWARDED TO THE 4TH
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE CIRCULAR DATED
12.11.2020 ISSUED BY THE 1ST
RESPONDENT INSTITUTE.
EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER
DATED 19.05.2017 BEARING
NO.39/2017/LABOURS.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED
18.08.2020 PUBLISHED BY THE DEPARTMENT
OF ECONOMICS AND STATISTICS.
EXHIBIT P9 TRUE COPY OF THE PRICE SCHEDULE
SUBMITTED BY THE 4TH RESPONDENT
CONSEQUENT TO EXHIBIT P1 TENDER.
EXHIBIT P10 TRUE COPY OF THE PRICE SCHEDULE
SUBMITTED BY THE PETITIONER CONSEQUENT
TO EXHIBIT P1 TENDER.
WP(C) No.25493/2020
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED
25.10.2017 IN WPC NO.30860/2017 OF
THIS HON'BLE COURT.
EXHIBIT P12 TRUE COPY OF THE OFFICE MEMORANDUM
DATED 28-1-2014 ISSUED BY THE
DEPARTMENT OF EXPENDITURE, MINISTRY OF
FINANCE, NEW DELHI.
EXHIBIT P13 TRUE COPY OF THE WORK ORDER DATED 7-1-
2021.
EXHIBIT P14 TRUE COPY OF THE WORK ORDER DATED 7-1-
2021.
EXHIBIT P15 TRUE COPY OF THE WORK ORDER DATED 7-1-
2021.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE AGREEMENT DATED
28.10.2020
EXHIBIT R1(b) A TRUE COPY OF THE STATEMENT OF
SERVICE CHARGE QUOTED BY ALL THE
TECHNICALLY QUALIFIED BIDDERS.
EXHIBIT R1(c) A TRUE COPY OF THE SCREEN SHOT IN THE
NEW WEBSITE VIZ, "CPCRI.ICAR.GOV.IN"
PAGE IN WHICH THE WORK ORDER IS
UPLOADED AS ITEM NO.8
EXHIBIT R1(d) A TRUE COPY OF THE MINIMUM RATE OF
WAGES AS PER GO DATED 19.01.2017.
SR
