Kerala High Court

Jose Jacob vs The Chairman And Managing ... on 18 March, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

     THURSDAY, THE 18TH DAY OF MARCH 2021/27TH PHALGUNA, 1942

                      WP(C).No.25014 OF 2020(B)


PETITIONER:

               JOSE JACOB, AGED 50 YEARS,
               S/O. K.M.CHACKO, PROPRIETOR,
               KAVUMPURATH TRAVELS, KOTHAMANGALAM,
               RESIDING AT KAVUMPURAM, THRIKARIYOOR P.O.,
               KOTHAMANGALAM, ERNAKULAM,PIN-686 691.

               BY ADVS.
               SRI.G.SANTHOSH KUMAR (P).
               SRI.V.R.SASSIDHARAN

RESPONDENTS:

      1        THE CHAIRMAN AND MANAGING DIRECTOR,
               KERALA STATE CIVIL SUPPLIES CORPORATION LTD.,
               MAVELI BHAVAN, P.B.NO.2030, GANDHI NAGAR,
               KOCHI,PIN-682 020.

      2        THE MANAGER, N.F.S.A,
               KERALA STATE CIVIL SUPPLIES CORPORATION LTD.,
               MAVELI BHAVAN, P.B.NO.2030, GANDHI NAGAR,
               KOCHI,PIN-682 020.

      3        THE REGIONAL MANAGER,
               KERALA STATE CIVIL SUPPLIES CORPORATION LTD.,
               MAVELI BHAVAN, P.B.NO.2030, GANDHI NAGAR,
               KOCHI, PIN-682 020.

      4        THE ASSISTANT MANAGER,
               SUPPLYCO TALUK DEPOT,
               MUVATTUPUZHA, ERNAKULAM-686 673.

      5        T.M.YOUSEFF, THEKKUMKATTIL HOUSE,
               PEZHAKKAPILLY, MUVATTUPUZHA,
               ERNAKULAM-686 673.

               R1-R4 BY SMT.MOLLY JACOB,SC,SUPPLYCO
               R5 BY ADV. SRI.K.I.MAYANKUTTY MATHER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.25014/2020

                                 2




                          JUDGMENT

Dated this the 18th day of March, 2021

The petitioner who is a Transporting Contractor has

filed this writ petition seeking to direct respondents 1 to 4 to

initiate appropriate action against the 5th respondent in the

light of violation of Clause 9 of Ext.P2 contract as admitted

in Ext.P4 and to declare that the 5 th respondent is not

qualified to participate in Ext.P1 tender in the light of Clause

11(i)(g) of Ext.P1 and in the light of Sl.No.6 of Ext.P6

corrigendum.

2. Respondents 1 to 4 floated a tender for lifting,

transportation, handling and delivery of ration articles, as

per Ext.P1 on 15.07.2020. A corrigendum to the tender

notification was published on 30.07.2020. As per the

corrigendum, those persons to whom a contract work of WP(C)No.25014/2020

Supplyco/Government Agency was previously awarded and

failed to perform the contract or work awarded by Supplyco

or any other Government Agencies and blacklisted formally

by Supplyco as on date of opening the tender, will be

disqualified for participation in the tender.

3. Pursuant to Ext.P1 tender notification, four

bidders made their offer. Respondents 1 to 4 found that the

5th respondent in the writ petition is the lowest bidder.

Accordingly, he was selected for award of contract.

4. The learned counsel for the petitioner pointed out

that as per Clause 11(i)(g) of Ext.P1 tender notification, a

Firm/person against whom action has been taken by

Supplyco by cancelling the work or terminated the contract

for not complying with the terms and conditions stipulated

by Supplyco for the tender for transportation or any other

reason which come forth based on an enquiry/inspection or

report, will not be eligible to apply for the tender. The

petitioner further relied on Clause 11(i)(j) newly added as WP(C)No.25014/2020

per Ext.P6 corrigendum, in which it was stated that a person

to whom a contract work of Supplyco/Government Agency

was previously awarded and failed to perform the contract

or work awarded by Supplyco or any other Government

Agencies and blacklisted formally by Supplyco as on date of

opening the tender, will be disqualified.

5. The learned counsel for the petitioner pointed out

that the 5th respondent has entered into Ext.P2 agreement

with respondents 1 to 4. The agreement was for one year.

However, the 5th respondent failed to discharge the

obligations under Ext.P2. The 5 th respondent worked in

pursuance of the said agreement only for five days.

Therefore, the 5th respondent having failed to discharge his

obligations under Ext.P2 Contract, will stand disqualified

from bid pursuant to Ext.P1 in view of Clause 11(i)(g) of

Ext.P1 and Clause 11(i)(j) newly added as per Ext.P6. The

contract pursuant to Ext.P1 tender is therefore liable to be

granted to the petitioner.

WP(C)No.25014/2020

6. The 1st respondent filed counter affidavit. The 1st

respondent stated that Ext.P2 agreement executed by the

5th respondent is not one executed pursuant to any tender

process. Ext.P2 agreement happened to be executed as

the duly engaged contractor refused to do the transportation

work after three months. Ext.P2 was only a temporary

arrangement. Ext.P2 was not in pursuance of any tender.

Therefore Clause 11(i)(g) of Ext.P1 and Clause 11(i)(j) of

Ext.P6 would not apply to the 5th respondent.

7. The 5th respondent also contested the writ

petition filing a counter affidavit. The 5th respondent stated

that his contract was not terminated by the Supplyco. The

work in pursuant to Ext.P2 agreement was stopped on

account of labour issues and the petitioner could not do

transporting contract after 23.11.2017. It was a voluntary

cancellation of Ext.P2 agreement. Therefore Clauses 11(i)

(g) and 11(i)(j) will not apply. The counsel for the 5 th

respondent further pointed out that for disqualifying a WP(C)No.25014/2020

contractor under Clause 11(i)(j), a formal blacklisting of the

contractor is required. The 5th respondent has not been

blacklisted by respondents 1 to 4 or any other Government

Agency.

8. I have heard the learned counsel for the

petitioner, the learned Standing Counsel for respondents 1

to 4 and the learned counsel appearing for the 5 th

respondent.

9. The arguments of the petitioner is that the 5 th

respondent is disqualified in view of Clause 11(i)(g) of

Ext.P1 and Clause 11(i)(j) of Ext.P6. Clause 11(i)(g) of

Ext.P1 reads as follows:

"A firm/person against whom action has been taken by Supplyco by cancelling the work or terminated the contract for not complying with the terms and conditions stipulated by Supplyco for the tender for transportation or any other reason which comeforth based on an enquiry/inspection or report."

It is clear from afore Clause that only if the persons against

whom action has been taken by Supplyco by cancelling the WP(C)No.25014/2020

work or terminated the contract for not complying with the

terms and conditions stipulate by Supplyco for the tender for

transportation or any other reason which come forth based

on an enquiry/inspection or report that the disqualification

will apply. The learned Standing Counsel for respondents 1

to 4 has stated that Ext.P2 agreement was not pursuant to

any tender. Similarly cancellation or termination of contract

with the 5th respondent is not based on enquiry/inspection or

report. In the circumstances, this Court is of the considered

view that Clause 11(i)(g) cannot be invoked to disqualify the

5th respondent from Ext.P1 tender.

10. Clause 11(i)(j) brought out by Ext.P6 reads as

follows:

"Those persons to whom a contract work of Supplyco/Government agency was previously awarded and failed to perform the contract of work awarded by Supplyco or any other Government Agencies and blacklisted formally by Supplyco as on date of opening of the tender."

The argument of the petitioner is that since the 5 th

respondent has failed to discharge his obligations under

Ext.P2, Clause 11(i)(j) will apply and the petitioner will stand

disqualified in bidding in pursuance of Ext.P1 tender

notification. A reading of Clause 11(i)(j) would show that it

will apply only to those persons to whom a contract work of

Supplyco/Government agency was previously awarded and

failed to perform the contract or work awarded by Supplyco

or any other Government Agencies and blacklisted formally

by Supplyco as on date of opening the tender. The

argument of the petitioner is that as per Ext.P6

Corrigendum, blacklisting the 5th respondent is not required

to disqualify him and if the 5 th respondent has failed to

perform any contract awarded by respondents 1 to 4, then

the disqualification will apply.

11. This Court cannot agree to such a proposition. A

reading of Clause 11(i)(j) would show that even if there is

under the Contract, Clause 11(i)(j) contemplates that there

should be a formal blacklisting by the Supplyco.

In the afore circumstances, this Court do not find any

merit in the contentions of the petitioner. Accordingly, the

writ petition fails and it is dismissed.

Sd/-

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE TENDER NOTICE DATED
                     15.07.2020   ISSUED   BY   THE   1ST
                     RESPONDENT

EXHIBIT P2           TRUE COPY OF THE AGREEMENT DATED
                     18.11.2017    ENTERED   BETWEEN    THE

SUPPLYCO DEPOT MANAGER THODUPUZHA, AND THE 5TH RESPONDENT

EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 09.10.2020 SUBMITTED BY THE PETITIONER AS PER THE RTI ACT

EXHIBIT P4 TRUE COPY OF THE REPLY DATED 05.11.2020 RECEIVED BY THE PETITIONER AS PER THE RTI ACT

EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS INITIATED BY THE 4TH RESPONDENT AGAINST ONE MR.

                     TRANSPORTS DATED 9.10.2020

EXHIBIT P6           TRUE COPY         OF THE CORRIGENDUM   DATED
                     30.07.2020          ISSUED  BY   THE     1ST
                     RESPONDENT

EXHIBIT P7           TRUE COPY OF THE REPRESENTATION DATED

29.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT

EXHIBIT P8 TRUE COPY OF TENDER DETAILS SUBMITTED BY THE PETITIONER AS WELL AS 5TH RESPONDENT

RESPONDENTS' EXHIBITS:

EXHIBIT R5(a) TRUE COPY OF REQUEST PUT IN BY 5TH RESPONDENT TO THE ASSISTANT MANAGER, SUPPLYCO DEPOT, THODUPUZHA.