Disposed

M/S Yamuna Fabricators v. Union of India & Ors.

Punjab & Haryana HC18 Mar 2014CWP/18444/2013

Case brief

AI extract

What is this about?

Petitioner challenged the award of a sand blasting tender to a higher bidder. The Court noted that minor penalty proceedings had been initiated against officials and the tender documents were defective. Finding no further ground for intervention as corrective actions were taken, the Court disposed of the writ petition.

What did the court decide?

The writ petition stands disposed of without any further direction being given to the respondents.

M/S Yamuna Fabricators Vs Union of India & Ors. — Company and Corporate | Punjab & Haryana HC (2014)

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CWP No.18444 of 2013

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No. 18444 of 2013(O&M)

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Date of Decision: March 18, 2014.

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M/s Yamuna Fabricators

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...... PETITIONER (s)

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Versus

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Union of India and others

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...... RESPONDENT (s)

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CORAM:- HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON'BLE MR.JUSTICE ARUN PALLI

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Present: Mr. Navdeep Chhabra, Advocate, for the petitioner.

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Mr. Puneet Jindal,

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Advocate, for respondents No.1 to 3.

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Mr. Gurinder Pal Singh, Advocate, for respondent No.4.

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Mr. Nitin Kumar,

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Advocate, for respondent No.5.

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Whether reporters of local papers may be allowed to see the judgment?

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To be referred to the reports or not?

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Whether the judgment should be reported in the digest?

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SANJAY KISHAN KAUL, CHIEF JUSTICE, J. (Oral)

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A tender for sand blasting of bogie components was floated by respondent No.2 in which petitioner participated by quoting price at 99,94,992/against the estimated cost of work of 1,10,40,000/-. It is the case of the

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Singh Omkar 2014.03.20 11:00 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.18444 of 2013

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petitioner that the tender has been wrongly awarded to respondent No.4, who had quoted a higher rate than the petitioner i.e., `1,04,40,000/-. Since the representation did not evince any response, the petitioner filed Civil Writ Petition No.15317 of 2013, which was disposed of on 19.07.2013 with a direction to the respondents -authorities to give reasons for rejecting the tender of the petitioner within seven days. These reasons were, thus, communicated to the petitioner on 06.08.2013 by making available to the petitioner a copy of the Minutes of the Tender Committee meeting held on 03.04.2013. In terms of these minutes, the tender filled in by the petitioner was not found in accordance with the norms and was, thus, treated as technical incomplete whereupon, the tender was assigned to respondent No.4 as L-2 as per the final recommendations.

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The aforesaid reasons are sought to be assailed by the petitioner by filing the present writ petition under Article 226 of the Constitution of India.

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The counter affidavit filed by respondent No.5/General Manager, Vigilance Department states that on the basis of complaint made by the petitioner on 08.05.2013, the investigation was undertaken and that the same complaint was also received from the channel of the Railway Board as “CVC referred complaint”. Since it was not clear as to what was the aspect which was being examined by respondent No.5, a direction was issued to file an affidavit in this behalf, which has since been filed. The said affidavit engrosses the relevant decisions in minutes.

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The Central Vigilance Commission is stated to have perused the investigation report and advised as under:-

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“The Commission has perused the investigation report and the comments of the administrative authorities thereon. Accordingly, the

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Singh Omkar 2014.03.20 11:00 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.18444 of 2013

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Commission would advise “Minor penalty proceedings” with a view to impose minor penalty commensurate with the gravit of the proven charges, if they sustain; to the following officials:

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(i) Shri Ajay Kishan, SSE/Tender/JUDW;

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(ii)Shri Mahesh Chandra, WM/C/JUDW;

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(iii)Shri Bachhittar Singh, SAO/JUDV;

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(iv)Shri Vinit Kumar, the then SMM/JUDW and now SMM/RCF/RBL;

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(v)Shri Sanjay Priyadarshanam, Sr.EDPM/JUDW; and

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(vi)Shri Vikas Anand, The then Sr.EDPM and now Sr.DME/UMB.

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The Commission would also advise the Railway Board to suitably address the following system improvements and apprise the Commission about the matter in due course:

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(i)The tender documents should have optimum clarity, especially with reference to the parameters that are going to be counted significantly in the selection process.

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(ii) Further, the tendering authorities should go for optimum number of pre-bid meetings within the available time so that maximum possible clarity with regard to various parameters may be given to the potential bidders. This will not only result in clarity among the potential bidders about the tender requirements but will also minimize the legal complications due to possible perception of bias in the tendering process and hence will result in ensuring the fairness and equity.

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Action taken in pursuance of Commission's advice may please

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be intimated.

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The Railway Board ID No.2013/V3/N/Mech/27-CVC dated 24.02.2014 refers and its file is sent herewith.”

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The aforesaid recommendations were in the context of the consideration by the FC, who is the highest officer in the railways dealing with such matters, wherein, he opined as under, which we are reproducing for convenience:-

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“xx xx xx xx xx

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2.3 In this regard the investigation report in its para 8.2 brought out the following:-

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(i) The offer of M/s Yamuna Fabricators was rejected as the firm has

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Singh Omkar 2014.03.20 11:00 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.18444 of 2013

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left the column against painting activity blank, though the perusal of schedule of rates page does not clearly bring out the painting activity as a separate activity as it is neither serial numbered nor quantity of bogie frames to be painted is mentioned against this activity. Moreover, the firm has quoted total amount in the last row.

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(ii) In the offer of M/s Jamuna Industries there were over writings/ alteration on the schedule of rates page which were not attested by the firm in violation of general conditions of contracts para 7 & 9 and this issue was not deliberated in the tender committee minutes.

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(iii) In the offer of M/s Jamuna Industries the rate and total amount were not written in words in violation of general conditions of contract para 4 & 10 and the issue waas not deliberated in the tender committee minutes.

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(iv) In spite of the shortcomings in both the offers as discussed above, the offer of M/s Jamuna Industries was recommended by the Tender Committee for acceptance whereas the offer of M/s Yamuna Fabricators was rejected.

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2.4 It is also seen from the scope of work that nowhere it has been stated that the tenderer was required to quote the rate of two items separately, The scope of work also does not indicate separately the quantity/number of bogie frames along with bolsters to be painted. It specifies only the quantity of sand blasting i.e. 4,800 sets in area (page 265 of S.No.3). The schedule of rates page also does not state that tenderer is required to quote two rates separately. Normally, in such cases where tenderers do not quote rates for any item, tenders are evaluated based on the total cost of the work, treating the cost of the item of work for which no rate has been quoted by the tenderer as nil. It is considered that cost of this item for which no rate is quoted has been included in other items, as the activity of tem is covered in the scope of work as stated in the tender document.

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2.5. In view of above in my opinion there is no valid ground for bypassing the offer of M/s Jamuna Fabricators. Thus the allegation made by the complainant (i.e. their firm stood at rank L-1 in this tender but was ignored and Tender Committee had neither approached not communicated regarding any ambiguity and had issued Letter of Acceptance (LOA) to the firm which was at rank L-2 and whose rates were higher than the complainant firm) stands substantiated.

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2.6 For the above irregularity, Tender Committee members i.e. S/Shri

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Singh Omkar 2014.03.20 11:00 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.18444 of 2013

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Mahesh Cahnder, WM/JUDW, Bachittar Singh, SAO/JUDW and Vinit Kumar, the then SMM/JUDW and now SMM/RCF/RBL are responsible as per para 8.2 at np-32. Tender Accepting Authority is also partially responsible for not considering above aspects in detail.

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Considering the fact that the tender document itself was defective and Sr. Scale officers do not have enough experience in dealing with tenders, a le view needs to be taken. Thus, I recommend following action;-

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*S.N.*	*Name & Designation* *S/Shri*	*GM's /SDGM's* *Recommendation*	*Board's* *Recommendation*
1	Ajay Kishan, SSE/Tender/JUDW	Recorded Warning	Minor Penalty
2	Mahesh Chandra, WM/C/JUDW	Recorded Warning	Minor Penalty
3	Bachhittar Singh, SAO/JUDW	Recorded Warning	Minor Penalty
4	Vinit Kumar, the then SMM/JUDW and now SMM/RCF/RBL	No Action	Minor Penalty
5	Sanjay Priyadarshanam, Sr.EDPM/JUDW	No Action	Recorded Warning
6	Vikas Anand, the then Sr.EDPM and now Sr.DME/UMB	Recorded Warning	Recorded Warning.

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With the above remarks and recommendations the case is required to be sent to CVC for their 1^st stage advice after routing the case through Board (i.e. MM and FC)

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As noticed above, the aforesaid was issued with the approval of F.C.,

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who opined on the aforesaid decision as under:-

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“I have gone through the investigation report and views of Vigilance directorate. In the instant case, it is an undisputed fact that L1 bidder had not quoted any rate for the item relating to “painting of bogie frames”. Therefore, the TC has rightly concluded that the offer of L1 was incomplete. The TC has rightly rejected the offer in terms of Condition 4

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Singh Omkar 2014.03.20 11:00 I attest to the accuracy and integrity of this document Chandigarh

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CWP No.18444 of 2013

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of GCC (Section II). There is no mala fide in this decision of the TC.

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As far as the issue of corrections/over-writings in the bid of M/s Jamuna Industries is concerned, it is clear from the documents placed on file that officials who have opened the tenders have recorded that there are over-writings in the bid. However, they have failed to point out that these over-writings have not been attested by the bidder. The TC could have made a mention of the same in their minutes. The fact that this was not brought out in the minutes does not make any material difference to the decision to award the contract to M/s Jamuna Industries. Nor has the decision caused any loss to the railways.

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Therefore, I am of the considered view that “recorded warning” will suffice in the case of Shri Bachittar Singh, SAG/JUDW.

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Sd/- FC”

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The aforesaid shows that the necessary corrective actions have been taken. In any case, it does not validate the case of the petitioner nor gives any advantage to him. The time period of the contract is also getting over in April, 2014.

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In view of the aforesaid position, we are of the view that no further

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direction is required to be given.

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The writ petition stands disposed of, accordingly.

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Sealed record produced in Court is returned to Mr. Nitin Kumar,

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Advocate, for respondent No.5.

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( SANJAY KISHAN KAUL ) CHIEF JUSTICE

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( ARUN PALLI ) March 18, 2014. JUDGE ‘om’

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Singh Omkar 2014.03.20 11:00 I attest to the accuracy and integrity of this document Chandigarh

M/S Yamuna Fabricators v. Union of India & Ors.

Case brief

What is this about?

What did the court decide?

M/S Yamuna Fabricators v. Union of India & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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