9911796707
TMI Blog2017 (7) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... der condition. A wide interpretation - as held by this court, results in manifest injustice and arbitrariness, because it decrees exclusion and commercial limbo, as it were, to a party that is otherwise eligible and fit to enter into contract, merely because it has approached the courts. This exclusion is both in restraint of legal proceedings, as it prevents any entity from seeking legal redress, regardless of CGHS' unreasonableness in withholding any dues, and also is unfounded in law. For these reasons, the cancellation of the petitioners' bid is arbitrary and unreasonable. The decision to award the tender and the contract arising out of the award to the third respondent, Jai Prakash Security Agency is hereby set aside - Petition allowed. - W.P.(C) 6080/2017, C.M. APPL.25250-25251/2017 - - - Dated:- 31-7-2017 - HON'BLE MR. JUSTICE S. RAVINDRA BHAT AND HON'BLE MR. JUSTICE S.P.GARG For the Petitioner : Sh. Abhay Kumar, Sh. Saurabh Mishra, Sh. Khalid Akhtar, Sh. Amit Kumar Singh and Sh. Himanshu, Advocates. For the Respondent : Sh. Anurag Ahluwalia, CGSC with Dr. Dharan, CMO (NFSG), CGHS., Sh. B.B. Gupta, Senior Advocate with Sh. Anirudh Singh Chauh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers had quoted the same administrative charges, the bidder with the highest turnover was to be given preference. It is contended by the petitioner that since its turnover was in the range of overRs. 17 crores annually, the third respondent's bid could not have been accepted since its turnover was aboutRs. 8 crore. 3. The grievance articulated in the present proceeding is that despite its entitlement to be declared as L-1 and therefore further entitlement to enter into contract with CGHS, the petitioner's bid was rejected entirely based upon Jai Prakash's complaints/e-mail communications dated 02.06.2017 to 08.06.2017, alleging that the petitioner had been blacklisted for 4 years and that in addition a litigation or court case pertaining to the petitioner was pending. The petitioner also submits that CGHS furnished it with the copy of Jai Prakash's e-mail dated 02.06.2017 under cover of a letter dated 12.06.2017 and required it to furnish its reply. The letter of 12.06.2017 stated that CGHS was informed by Jai Prakash's Security Agency that it (the petitioner) had been debarred (blacklisted) for 4 years by Additional Commissioner (FM), Department of Trade an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that thereafter, the Commissioner did not impose the penalty of blacklisting and held the allegations to be baseless. It is also submitted that in the letter/reply, the petitioner had clarified that the pending case pertained to refund of earnest money deposit (EMD) and that it could not be regarded as a violation of any condition. 6. Learned counsel argued in addition, that the eligibility conditions relied upon by the CGHS, cannot be construed in the wide manner as was done in the petitioner's case. It is submitted that the relevant tender condition i.e. furnishing of an undertaking that the agency was not blacklisted by a Government Organization or that it was not involved in any litigation regarding security jobs and that the undertaking having to indicate whether or not any investigation by a competent authority was pending against it (i.e. the bidder), did not apply in this case. Learned counsel submitted that the initial blacklisting order was for 4 years; that order was set aside by this Court as far back as in 2010. So far as the pending litigation was concerned, it cannot be construed as a case or litigation regarding security jobs ; rather the claim wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and took the view that vital security of the Department could be compromised. (18) Invoking the principles of natural justice the Security Agency, during the hearing sought from the Department the documents and details of alleged complaint on mobile phone i.e. officer who received it, mobile number of caller / complainant, his statement; next, the details/ statements of senior officers in whose alleged presence Shri Sanjeev Kumar, Supervisor was allegedly frisked. The Department denied the details / documents to the Security Agency. (19) The Department failed to adduce the evidences to substantiate the alleged dereliction of duties by the Security Agency and also the allegation of collecting illegal money by the employee of the Security Agency. Thus, the allegations levelled against the M/s. Good Year Security Services are not proved beyond reasonable doubt. 8. Learned counsel Shri Anurag Ahluwalia appearing for the CGHS submitted that the affidavit/undertaking furnished by the petitioner was false because contrary to its contents (which stated that no litigation was pending with CGHS), in fact, a writ petition was pending. This was the only reason which led CGHS to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... job , is not something that can be gone into under Article 226 proceedings. 10. There is practically no controversy on relevant and material facts. The petitioner and Jai Prakash were the two bidders; the structure of the NIT in the present case is such that there is very little dispute with respect to the price component since major or substantial parts are determined by the CGHS. Both the bidders had quoted or rather claimed 5% administrative charges. This resulted in a bid tie. The tie-breaker provision meant that the bidder with a higher turnover had to be preferred. Again, here too, the record clearly shows that the petitioner had a higher turnover and was therefore entitled to the contract. What is in controversy is whether the petitioner suppressed material facts which it ought to have disclosed. Clause 16 states that an undertaking that no litigation relating to a Security Job with the CGHS should be pending. The condition for the purposes for facility of reference is extracted below; it reads as follows:- S.No. Eligibility of Bidders Documents to be scanned and uploaded as PDF documents against tender ID 2017_DHS_1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims of unsatisfactory service may and do arise. Such disputes may in the perception of the recipient organization entitle it to make cuts from the payment of the service provider, which in turn, may be enabled to seek redressal through an arbitration clause, failing which it has the right to approach courts. Therefore, the interpretation of the term the Agency has not been involved in any litigation regarding security jobs necessarily has to be a narrow one. The danger of proceeding on a wider interpretation would mean that the CGHS would be ruling out any party which makes a claim against it - genuine or otherwise, despite its entitlement to do so in law. Plainly, such a condition would be contrary to public policy as operating in restraint of legal proceedings. In other words, if a wide interpretation were to be preferred (as the CGHS has done, in rejecting the petitioners' bid), it would also mean that it would not involve or award contracts to anyone who claims anything against it - despite the genuineness of its cause or claim and the right of such party to seek redress, in the manner provided by law. Rather than proceeding on such a wide interpretation of the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
