Partly allowed

The Kalpetta Zone Labour Contract Co-Operative Society Ltd. v. the State of Kerala

Kerala HC2 Aug 2023WP(C)/3903/2023

Case brief

AI extract

What is this about?

This judgment disposed of two connected writ petitions regarding a government work tender dispute involving a Labour Contract Co-operative Society and a civil contractor. The Court refused to interfere in the tender proceedings, noting the tender was competitive and the Labour Contract Society was recommended as the successful bidder based on price preference. One petition was dismissed, while dir

What did the court decide?

W.P.(C) No.35912/2022 dismissed. W.P.(C) No.3903/2023 disposed of directing respondents to proceed with and finalise the tender in accordance with the law.

The Kalpetta Zone Labour Contract Co-Operative… — Public Procurement and Tenders | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 2^ND DAY OF AUGUST 2023 / 11TH SRAVANA, 1945

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WP(C) NO. 3903 OF 2023

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PETITIONER:

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THE KALPETTA ZONE LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD NO.W.209, KALPETTA (P.O), WAYANAD DISTRICT, REPRESENTED BY ITS SECRETARY, PIN - 673121 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) SAMEER M NAIR GEETHU KRISHNAN SAILAKSHMI MENON

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, OFFICE OF EXECUTIVE ENGINEER, BUILDING DIVISION, WAYANAD DISTRICT, PIN - 673122 3 K.M KURIAKOSE AGED 60 YEARS S/O MATHAI, KAVANAKUDIYIL HOUSE, CHENDAKKUNI, MEENANGADI P.O, WAYANAD DISTRICT, PIN - 673591 BY ADV ADVOCATE GENERAL OFFICE KERALA

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OTHER PRESENT:

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SMT.VIDYA KURIAKOSE, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2023, ALONG WITH WP(C).35912/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos.3903/2023 & 35912/2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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WEDNESDAY, THE 2^ND DAY OF AUGUST 2023 / 11TH SRAVANA, 1945

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WP(C) NO. 35912 OF 2022

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PETITIONER:

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K.M. KURIAKOSE AGED 60 YEARS, S/O. MATHAI, KAVANAKUDIYIL HOUSE, CHENDAKKUNI, MEENANGADI P.O, WAYANAD DISTRICT., PIN - 673591 BY ADVS.JACOB SEBASTIAN K.V.WINSTON ANU JACOB

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, SECRETARIAT P.O, THIRUVANANTHAPURAM DISTRICT., PIN - 695001 2 THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, OFFICE OF THE EXECUTIVE ENGINEER, BUILDING DIVISION, WAYANAD DISTRICT., PIN - 673122 ADDL.R3. THE KALPETTA ZONE LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD NO.W.209, KALPETTA (P.O), WAYANAD DISTRICT-673121, REPRESENTED BY ITS SECRETARY

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(IMPLEADED AS PER ORDER DATED 16/02/2023 IN IA 1/2023) BY ADVS.MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) SAMEER M NAIR GEETHU KRISHNAN SAILAKSHMI MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2023, ALONG WITH WP(C).3903/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).Nos.3903/2023 & 35912/2022

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).Nos.3903 of 2023 & 35912 of 2022

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---------------------------------------------Dated this the 02^nd day of August, 2023

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JUDGMENT

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These two writ petitions are connected and therefore,

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I am disposing of these writ petitions by a common judgment. I will narrate the facts in W.P.(C). No.3903/2023 first:

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Petitioner is an ‘A’ Class Labour Contract Cooperative Society under the definition of the Kerala Cooperative Societies Act. It is submitted that the State Government has granted certain privileges and concessions to the Labour Contract Co-operative Societies in the matter of awarding tenders for government works in PWD, Local Self Government Institutions etc. Ext.P1 is an order passed by the State Government stipulating revised procedures and conditions for awarding

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WP(C).Nos.3903/2023 & 35912/2022

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government contracts to the Labour Contract Co-operative Societies. Ext.P1 Government Order was thereafter amended by G.O(MS) No.44/04/PWD dated 19.03.2004 to the effect by taking away the post tender negotiation/consultation with the Labour Contract Cooperative Societies regarding their willingness to do work as contemplated in the Clause 8(b)(i) of Ext.P1 Government Order. Thereafter Ext.P2 Government Order was issued on 04.08.2012. As per Ext.P2 Government Order, such post tender consultation was taken away and the 10% price preference given to the Labour Contract Cooperative Societies for participating and quoting rates in the tender procedure were retained over the lowest private tenderer. In other words, when Labour Contract Co-operative Societies are participating in a tender and if the tender amount quoted by them are not more than 10% of the lowest quote of a private contractor, then the society will get a price preference and qualify itself to be

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WP(C).Nos.3903/2023 & 35912/2022

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the lowest tenderer is the submission.

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The petitioner had participated in the tender floated by the 2^nd respondent with tender title ‘General-PK Kalan Memorial College — Conversion of Classroom building in PKKMCAS, Mananthavady Composite Work’ with Tender No: PWD/BLDG/TR/18589/2022_23_2_1/1 and submitted the bid. Ext.P3 is the notice inviting tender. The bids were opened on 22.10.2022 and as per the details available with the 2^nd respondent, the lowest tenderer quoted 17.30% below the estimate and the petitioner-society quoted 10.51%. It is the case of the petitioner that the price preference benefit conferred upon the Labour Contract Societies as evident by Exts.P1 and Ext.P2 comes into play in the said situation and since the bid amount quoted by the petitioner-society comes within the 10% of the bid amount of the lowest tenderer, the bid of the petitioner-society ought to be accepted. Ext.P4 is the list of participating contractors in Ext.P3 tender. It is

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WP(C).Nos.3903/2023 & 35912/2022

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submitted that the 3^rd respondent, who quoted 8.49% below and placed as L7 as per Ext.P4, came up with the contention to reject the tender submitted by others in respect of Ext.P3 tender notification except him since others have not complied with the stipulations to submit a copy of MOU entered with the electrical/electronic contractor along with the bid as directed in Ext.P5 Government Order. It is the case of the petitioner that the stipulations contained in Ext.P5 Government Order were not expressly mentioned in Ext.P3 notice inviting tender though the Ext.P3 did state that the existing conditions related to bidding in force in Kerala Public Works Department will be applicable in this tender also unless expressly defined in the bidding document. It is submitted that other than the above, Ext.P3 notice inviting tender did not had any stipulation mandating the submission of MOU as stipulated in Ext.P5. It is also submitted that Ext.P5 Government order was not published in the

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WP(C).Nos.3903/2023 & 35912/2022

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Government Gazette to make the same known to all bidders and hence the attempt to make it applicable to Ext.P3 tender proceedings is arbitrary and hence liable to be interfered with is the contention. Hence this writ petition is filed with following prayers:

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Declare that the Exhibit P5 G.O(MS) No.27/2020/PWD dated 26.02.2020 is not applicable to the Exhibit P1 tender proceedings;

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To issue a writ of mandamus or any other appropriate writ or order or direction, directing the 2nd respondent to finalize the tender proceedings pursuant to Exhibit P3 in accordance with law and in terms of Exhibit P1 and Exhibit P2 Government Orders, within a time limit fixed by this Hon’ble Court, in the interest of justice;

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Dispense with filing of English translation of exhibits in vernacular;

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Issue such other orders or directions which deems necessary for the ends of justice and in the circumstances of the case.

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(SIC)

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W.P.(C). No.35912/2022 is filed by the 3^rd

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respondent in W.P.(C). No.3903/2023. The petitioner in this case is also a PWD contractor and he also submitted

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WP(C).Nos.3903/2023 & 35912/2022

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the tender. It is the case of the petitioner that, Ext.P2 (Ext P5 in W.P.(C). No.3903/2023) inter alia mandate that, if the bidder is a civil contractor, a memorandum of understanding entered into with an electrical contractor would be furnished along with the bid. It is the case of the petitioner that 8 bidders participated in the tender in pursuance of Ext.P1 and only the petitioner submitted a memorandum of understanding as mandated by Ext.P2. Since the other bidders failed to produce the memorandum of understanding mandated by Ext.P2 along with their bids, their tender should have been rejected as defective and the work ought to have been awarded to the petitioner. According to the petitioner, he is the only qualified contractor and the bid submitted by the other bidders are not in order. Hence this writ petition is filed with following prayers:

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(i) Issue a writ in the nature of mandamus commanding the second respondent to award the petitioner the work ‘General-P.K. Kalan Memorial

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WP(C).Nos.3903/2023 & 35912/2022

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College-conversion of classroom building in PKKMCAS, Mananthavady-composite work’, forthwith;

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(ii) Declare that only the petitioner submitted a valid bid in pursuance of Exhibit-P1; and

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(iii) Issue such other writ, order or direction, which this Hon’ble court may deem fit and proper in the circumstances of this case.

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(SIC)

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Heard the learned counsel for the petitioners in

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these writ petitions and the learned Government Pleader.

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The counsel for the petitioners reiterated the contentions raised in the writ petitions. A counter affidavit is filed by the 2^nd respondent in W.P.(C). No.3903/2023. It will be better to extract the relevant portion of the counter affidavit:

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“3. The 3^rd respondent has approached the Court and hence the awarding of this tender not done by this office till date. Awaiting for an order from Hon'ble High Court in WPC 35912/2022 for awarding the work.

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After opening the tender, tender approval procedures were taken. Meanwhile WPC No.35912/2022

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WP(C).Nos.3903/2023 & 35912/2022

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was filed by one of the bidder and hence the awarding of the tender is delayed.”

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Similarly the 2^nd respondent in W.P.(C).

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No.35912/2022 filed a statement and the relevant portion is extracted hereunder:

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“2. It is submitted that the composite tender system is introduced in PWD as per Order No. GO(Ms) No. 27/2020/PWD dated 26.02.2020 and the implementation of this order is not of followed in the strict sense so far in. This works tendered in this office are as per the normal tender procedures being followed in the previous tenders.

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It is submitted that the dispute is with regard to a civil work and in the tender 8 bidders were participated. Among them, the lowest tender (L1) is Sri. Ammed Haji who has quoted 17.30% below the Estimate Rate. The petitioner quoted 8.49% below the Estimate Rate. During the tender approval on PRICE, it is recommended by PRICE to award the work to the Kalpetta Zone Labour Contract Co-operative Society who has quoted at the rate of 10.51% below Estimate Rate since they have the preferential consideration in PWD lenders.

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WP(C).Nos.3903/2023 & 35912/2022

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It is submitted that being a competitive tender, the work has to be awarded to the lowest tenderer. Since the Labour Contract Society has the rate preference than the lowest bidders up to 10%, the PRICE selected the Labour Contract Co-operative Society as the qualified bidder. The work could not be awarded due to the pendency of the present case.

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In this tender major part is civil work and it consists of 94.5% and Electrical part consists of 5.5%. The selected contractor from PRICE software is the Labour Contract Co-operative Society. There is no merit in the allegations made by the petitioner. Any further delay in starting the work would be against public interest. Hence it is humbly prayed that the writ petition may be dismissed in the interest of justice.”

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7. From the above it is clear that the contention of

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the petitioner in W.P.(C). No.35912/2022 cannot be accepted. The 2^nd respondent in W.P.(C). No.35912/2022 submitted that the composite tender system is introduced in PWD as per GO(MS) No.27/2020/PWD dated 26.02.2020 (Ext.P2) and implementation of the same is not strictly followed in the strict sense so far. The main

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WP(C).Nos.3903/2023 & 35912/2022

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contention of the petitioner in W.P.(C). No.35912/2022 is based on the above government order which is produced

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as Ext.P2. The 2^nd respondent submitted that, implementation of Ext.P2 Government Order is not followed in the strict sense. In such such circumstances, I am of the considered opinion that this Court need not interfere in the tender proceedings initiated by the respondents. The jurisdiction of this Court in tender proceedings is very limited.

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It is also submitted by the 2^nd respondent in W.P.(C) No.35912/2022 that the petitioner in that case quoted 8.49% below the estimated rate and during the tender approval on price, it was recommended to award the work to the petitioner in W.P.(C) No.3903/2023. I see no reason to interfere with that finding. Therefore, W.P. (C) No.35912/2022 is to be dismissed and W.P.(C) No.3903/2023 is to be disposed of with directions.

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WP(C).Nos.3903/2023 & 35912/2022

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Therefore, these writ petitions are disposed of

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with the following directions:-

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W.P.(C) No.35912/2022 is dismissed

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W.P.(C) No.3903/2023 is disposed of

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directing the respondent Nos.1& 2 to proceed

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with the tender and finalise the same in accordance with the law.

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Sd/-

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P.V.KUNHIKRISHNAN

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JV/bng

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JUDGE

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WP(C).Nos.3903/2023 & 35912/2022

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APPENDIX OF WP(C) 35912/2022

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PETITIONER EXHIBITS

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Exhibit-P1 A TRUE COPY OF THE NOTICE INVITING TENDERS FOR WORK DATED 12.10.2022. Exhibit-P2 A TRUE COPY OF THE GOVERNMENT ORDER DATED 26.02.2020. Exhibit-P3 A TRUE COPY OF THE TENDER SUMMARY REPORT DATED 05.11. 2022 ISSUED BY THE 2ND RESPONDENT. Exhibit-P4 A TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING SUBMITTED BY THE PETITIONER ALONG WITH HIS BID. RESPONDENT EXHIBITS Exhibit R3(a) The true copy of the list of participating contractors in the Ext.P1 tender with details of their bids PETITIONER EXHIBITS Exhibit-P5 A TRUE COPY OF THE BOQ SUMMARY DETAILS RELATING TO THE TENDER.

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WP(C).Nos.3903/2023 & 35912/2022

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APPENDIX OF WP(C) 3903/2023

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PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE G.O(MS) NO. 135/97/CO-OP DATED 13.11.1997 Exhibit P2 THE TRUE COPY OF THE G.O(P) NO.58/12/PWD DATED 04.08.2012 Exhibit P3 THE COPY OF THE NOTICE INVITING TENDER OF TENDER NO: PWD/BLDG/TR/18589/2022_23_2_1/1 THE 2ND RESPONDENT DATED 12.10.2022 Exhibit P4 THE TRUE COPY OF THE LIST OF PARTICIPATING CONTRACTORS IN THE EXT.P3 TENDER WITH DETAILS OF THEIR BIDS Exhibit P5 THE TRUE COPY OF THE G.O(MS) NO.27/2020/PWD DATED 26.02.2020

The Kalpetta Zone Labour Contract Co-Operative Society Ltd. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

The Kalpetta Zone Labour Contract Co-Operative Society Ltd. v. the State of Kerala

Case brief

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What did the court decide?

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