Kerala State Labourfed vs Travancore Sugars And Chemicals ...
2021 Latest Caselaw 7012 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

 MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

                        WP(C).No.146 OF 2021(P)


PETITIONER:
              KERALA STATE LABOURFED,
              SANGEETH NAGAR - 506,
              TC OLD 24/451, TC NEW 28/622,
              OPP. SRI. SWATHI THIRUNAL COLLEGE OF MUSIC,
              GANDHI BHAVAN ROAD,
              ARISTO, NEAR THAMPANOOR,
              THYCAUD P.O, TRIVANDRUM - 695014,
              REPRESENTED BY ITS MANAGING DIRECTOR.

              BY ADVS.
              SMT.M.SANTHI (K/868/2011)
              SRI.G.RANJU MOHAN


RESPONDENT:

              TRAVANCORE SUGARS AND CHEMICALS LTD.,
              VALANJAVATTOM P.O, THIRUVALLA,
              PATHANAMTHITTA DISTRICT, PIN - 689104,
              REPRESENTED BY ITS MANAGING DIRECTOR.

              R1   BY   ADV.   SRI.M.GOPIKRISHNAN NAMBIAR
              R1   BY   ADV.   SRI.K.JOHN MATHAI
              R1   BY   ADV.   SRI.JOSON MANAVALAN
              R1   BY   ADV.   SRI.KURYAN THOMAS
              R1   BY   ADV.   SRI.PAULOSE C. ABRAHAM
              R1   BY   ADV.   SRI.RAJA KANNAN
              R1   BY   ADV.   SRI.JAI MOHAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.146/2021
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 1st day of March, 2021

The petitioner, an Apex Body of Primary Labour

Co-operative Societies has approached this Court seeking to

direct the respondents to re-tender Ext.P1 tender process, for

supply of Extra Neutral Alcohol.

2. The petitioner would contend that they are engaged

in blending, bottling and sale of Indian Made Foreign Liquor.

The respondent published a tender notification (Ext.R1(a))

inviting tenders for Extra Neutral Alcohol for the period from

01.01.2021 to 30.06.2021. The said notification provided that

the tenderers should remit tender fee of ₹1,250/- and EMD of

₹7.5 lakhs.

3. The petitioner would contend that the petitioner is a

Micro Enterprises falling under the Micro, Small and Medium

Enterprises Development Act and is entitled for exemption WP(C) No.146/2021

from payment of EMD in view of Ext.R1(c) GO(P)

No.6/2014/SPD. Therefore, the petitioner did not remit the

EMD. The bid made by the petitioner was not entertained by

the respondent for non-payment of EMD.

4. The learned counsel for the petitioner pointed out

that as per GO(P) No.6/2014/SPD dated 17.05.2014, the

MSMEs need not pay EMD or Tender Fee. The said G.O. is

applicable to State Government Departments as well as Public

Sector Undertakings. The Micro, Small and Medium

Enterprises should be given exemption from payment of

tender fee and EMD. Therefore, non-consideration of the

petitioner's tender is illegal, arbitrary and ultravires.

5. The learned Senior Counsel assisted by the

counsel appearing for the respondent, on the other hand,

would submit that Ext.R1(a) is a Stores Purchase Manual. Its

applicability to the respondent company is admitted.

However, what is being procured under the tender notification

is not 'Store'. Therefore, the petitioner cannot claim benefit of

GO(P) No.6/2014/SPD dated 17.05.2014. The learned WP(C) No.146/2021

Standing Counsel further pointed out that the petitioner has

participated in the tender after noticing the tender conditions.

Therefore, after participating in the tender proceedings with a

clear understanding of the terms and conditions of the tender,

the petitioner cannot be permitted to challenge the outcome of

the tender.

6. Heard learned counsel for the petitioner and

learned Standing Counsel for the respondent.

7. The fact that the petitioner is a Micro Enterprises

Unit is not under serious dispute. The applicability of

Ext.R1(c) Government Order to the respondent company is

also not disputed. However, from Ext.R1(d) Stores Purchase

Manual, it can be seen that the Government of Kerala has

framed the said Manual for the purpose of purchase of Stores.

The term "Store" has been defined under Clause 1.16 of

Ext.R1(d). As per Clause 1.16, the term "Stores" means all

articles and materials (other than cash and documents) which

come into the possession of a Government servant for use in

the Public Service. This will also include Annual Maintenance WP(C) No.146/2021

Services/Contract for maintenance of machinery/equipment,

computers, etc. This term does not, however, include items

like dietary articles of the animals in zoos, sundry articles like

fuel, dietary products, etc.

8. What is sought to be purchased under Ext.R1(a)

notification is Extra Neutral Alcohol. It is not intended for use

in the public service. The Standing Counsel for the

respondent would state that the Extra Neutral Alcohol is being

purchased for using as a raw material for manufacturing

purpose.

9. There is nothing in the pleadings to show that the

purchase of Extra Neutral Alcohol is for the purpose of use in

public service. In the circumstances, the exemptions granted

to MSMEs under Ext.R2(d) will not enure to the benefit of the

petitioner, in respect of purchase of Extra Neutral Alcohol by

the respondent.

10. Furthermore, the petitioner has already made their

bid and participated in the tender. After having participated in

the tender, the petitioner cannot now turn around and WP(C) No.146/2021

challenge the conditions of tender.

In the circumstances, I find no merit in the writ

petition and it is accordingly dismissed.

Sd/-

N. NAGARESH, JUDGE

aks/02.03.2021 WP(C) No.146/2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1          TRUE COPY OF THE NOTICE INVITING
                    TENDERS    BEING    NOTIFICATION   NO.

MPA/ENA/2021/1 DATED 11.12.2020 ISSUED BY THE RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 28.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 28.12.2020 ISSUED BY THE RESPONDENT. EXHIBIT P4 TRUE COPY OF THE UDYOG ADHAR REGISTRATION CERTIFICATE ISSUED BY THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES.

RESPONDENT'S EXHIBITS:

EXHIBIT R1(a) TRUE COPY OF THE TENDER CONDITIONS FOR THE SUPPLY OF EXTRA NEUTRAL ALCOHOL (ENA) FOR THE PERIOD 01.01.2021 TO 30.06.2021 ISSUED BY THE RESPONDENT WHICH ARE PART OF EXHIBIT P1 NOTICE INVITING TENDER.

EXHIBIT R1(b)       TRUE COPY OF THE PETITIONER'S LETTER
                    DATED   28.12.2020   BEARING    REF.NO.
                    LF/4491/TENDER/97-1/2020     TO     THE
                    RESPONDENT.

EXHIBIT R1(c)       TRUE COPY OF G.O.(P) NO.06/2014/SPD
                    DATED   17.05.2014  ISSUED   BY   STORE

PURCHASE DEPARTMENT, GOVT OF KERALA.

EXHIBIT R1(d) TRUE COPY OF THE RELEVANT PAGES OF THE STORES PURCHASE MANUAL REVISED EDITION 2013 ISSUED BY THE AUTHORITY UNDER THE GOVERNMENT OF KERALA, STORE PURCHASE DEPARTMENT AS AVAILABLE ON KERALA.GOV.IN WEBSITE.

WP(C) No.146/2021

EXHIBIT R1(e) TRUE COPY OF G.O. (P) NO. 2/2019/SPD DATED 24.01.2019 ISSUED BY THE STORE PURCHASE DEPARTMENT, GOVT. OF KERALA.

EXHIBIT R1(f) TRUE COPY OF THE RELEVANT PAGES OF GO(P) NO. 07/2014/SPD ISSUED BY STORES PURCHASES DEPARTMENT, GOVT OF KERALA, DATED 28.08.2014.

EXHIBIT R1(g) TRUE COPY OF THE GO(RT) NO.

5382/2020/FIN. DATED 18.09.2020 ISSUED BY FINANCE DEPARTMENT, GOVT OF KERALA.

SR