Kerala High Court

Raghunadh K T K vs The State Of Kerala Represented By ... on 1 February, 2023

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                  &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                         WA NO. 124 OF 2023
AGAINST THE JUDGMENT DATED 22.12.2022 IN WP(C) 26178/2022
                       OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

           RAGHUNADH K T K, AGED 50 YEARS, PWD CONTRACTOR,
           KKS VILLA KARIYAD P.O SOUTH, THALASSERY , KANNUR
           (DT), PIN-673 316.

            BY ADVS.
            C.A.JOJO
            S.JIJI



RESPONDENTS/RESPONDENTS:

    1       THE STATE OF KERALA REPRESENTED BY ITS SECRETARY
            DEPARTMENT OF PUBLIC WORKS, KERALA GOVERNMENT
            SECRETARIAT, THIRUVANATHAPURAM-695 001.

    2       THE EXECUTIVE ENGINEER, LID&EW DIVISION,
            KOZHIKODE DISTRICT PANCHAYATH, CIVIL STATION
            P.O, KOZHIKODE -673 020.

    3       THE ASSISTANT EXECUTIVE ENGINEER, LID&EW SUB
            DIVISION, VATAKARA BLOCK PANCHAYATH KOMBLA,
            AZHIYUR P.O, KOZHIKODE (DT), PIN- 673 308.

    4       THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR
            SAHAKARANA BHAVAN, DPI JUNCTION, THYCAD P.O,
            PIN-695 014.

    5       THE URALUNGAL LABOUR CONTRACT CO-OPERATIVE
            SOCIETY, REPRESENTED BY ITS SECRETARY,
            MADAPPILLY COLLEGE RD, MDAPPALLY POST, VATAKARA,
            KOZHIKODE-673 102.
 WA NO. 124 OF 2023

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    6      THE SECRETARY, VADAKARA BLOCK PANCHAYATH OFFICE,
           AZHIYUR P.O, KOZHIKODE DISTRICT, PIN-673 308.

           B. UNNIKRISHNA KAIMAL SR. GP


        THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.02.2023,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WA NO. 124 OF 2023

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                   J U D G M E N T

A. Muhamed Mustaque, J

The unsuccessful contractor, who bid a lowest

amount in a tender issued on 12.07.2022, for the

work "Rebuild-RKI-Onchiyam GP-Madappally

Underpass Vellikulangara Crash Road" is before us

in appeal. The issue relates to giving

preferential treatment to Labour Contract Co-

operative Society. As per the Government Order

dated 13.11.1997, the Labour Contract Society has

a preferential treatment in the matter of award

of contract work. The present dilemma is arisen

in the context of introduction of PRICE Software.

The considerable amount of confusion arose

consequent upon the introduction of PRICE

software.

2. The Government Order dated 19.02.2022,

mandates registration of contractors in the WA NO. 124 OF 2023

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online portal. However, the PRICE Software

cannot distinguish between the individual

contractor and the Labour Contract Society. The

Government Order, therefore, stipulates as

follows:

"If LCCS are ready to register under clause 1900 of PWD Manus! like other PWD contractors without claiming any benefits for LCCS as per the Govt. Orders of Cooperative Department read above, these Contractors shall apply for tender in the same procedure as other PWD Contractors and privileges available for LCCS provided by Co-operative Department and 10% price preference will not be applicable for these LCCS.

If LCCS requires the privileges given by the Co-operative Department's Govt. Orders read above, they can apply for the PWD works even without registration in Contractor's Portal and the tendering authority should verify the qualification criteria as per Cooperative Department's Govt. Orders and other relevant PWD norms for considering their tenders."

3. In one of the similar matter, the

Uralungal Labour Contract Co-operative Society to

whom the work has been awarded, was not given the

contract in respect of the Court complex in

kannur citing the Government Order dated

19.02.2022. This was because of wrong WA NO. 124 OF 2023

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interpretation given to the Government Order as

above.

4. On last day, in an appeal made by the

above society, we interpreted the above

Government Order and held as follows:

The interpretation of the above said clauses is the subject matter of the dispute in this case. The first part of the above clause refers that if the Labour Societies are ready to register under the relevant clause of PWD manual without claiming any benefits of the Government Order giving preferential treatment, they can apply for tender. Placing reliance on this, PWD officials understood that the Society have given up the preferential treatment, which they are entitled in terms of the Government Order dated 13/11/1997. There were many discussions on the second part of the above Government Order dated 19/2/2022. This is crucial in this context.

Admittedly, the appellant is a registered contractor and the registration has been accorded manually. According to them, the second part would come to their aid for the award of such contract. The second part would indicate that the PRICE software cannot recognise the tender registration and the tender of individuals and labour contractors separately. In the software, uniformity have to be followed, that exactly is the dilemma for the officials and others in this matter. The second part would indicate that the Society can apply for PWD works even without registration in Contractor's Portal and the tendering authority should verify the qualification WA NO. 124 OF 2023

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criteria as per the Co-operative Department's Government Orders and other relevant PWD norms for considering their tenders. The second part in fact is more of an exemption accorded to the Co- operative Society; such Society without registering online is entitled to submit the tender and avail the benefits of the relevant Government Orders. The introduction of PRICE software appears to have created a certain amount of dilemma among officials as well as contractors. This has been now corrected by the subsequent Government Order, dated 29/7/2022 and a uniform pattern is followed irrespective of nature of the applicant, whether an individual group of persons or a co-operative society etc. But in this matter, the tender was invited on 6/6/2022 and at that time, Ext.P8 was in vogue. As seen from the second part of Ext.P8, it is not mandatory for the Co-operative Society to register in the portal to participate in the tender. If they want to register in the portal, they will not be entitled for the benefit. The appellant Society in fact obtained manual registration which is evident from Ext.P4 and that is still in force till 31/3/2023. Therefore, their case is that, they should be given preferential treatment in the light of the second part of the above clause. It appears that the PWD officials relied on the first part of the clause not to award the contract in favour of the appellant. The plain reading of the second part clearly indicates that, it was intended to benefit the Labour Co-operative Society as a class, who may find it difficult to register in the portal and take part in such tender. Such clause has been made in Ext.P8 for the reason that the PRICE software cannot differentiate such class of societies from individual WA NO. 124 OF 2023

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contractors. In the light of the fact that the second part will take care of the class of Society of the nature of the appellant, we are of the view that the appellant cannot be denied the benefit of the Government Order dated 13.11.1997 for preferential treatment.

(sic)

5. In fact, in the present case, the work

appears to have been awarded relying on the

second part of the above clause. This shows that

there is a considerable amount of dilemma among

the PWD officials in following the Government

Order dated 19.02.2022. Anyway, that dilemma is

over by the subsequent Government Order dated

29.07.2022, wherein the software has been made in

such a way which could distinguish between the

individual contractor and the Labour Contractor.

Here in this case, admittedly, the labour society