IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 25825 of 2008(Y) -------------------------- PETITIONER: --------------- E.F.JOHNSON, ELAVUTHINKAL HOUSE, KOTTAPPADY.P.O, THRISSUR DISTRICT. BY ADV. SMT.DAISY A.PHILIPOSE RESPONDENTS: --------------- 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. 2. THE DIVISIONAL RAILWAY MANAGER (COMMERCIAL), SOUTHERN RAILWAY, DIVISIONAL OFFICE, COMMERCIAL BRANCH, THIRUVANANTHAPURAM-14. ADV. SRI.C.N.RADHAKRISHNAN FOR R1-2 SRI. T.B. SUNIL NATHA, SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vkm V.GIRI,J. ------------------------- W.P ( C) No. 25825 of 2008 -------------------------- Dated this the 22nd September, 2008 J U D G M E N T The 2nd respondent published Exhibit P1 notice inviting tenders in sealed cover for awarding of contract to execute the work of handling of parcels/luggage at Trichur Railway Station. One of the conditions mentioned in the notification is that the tenderer should state the wages proposed to be paid, which is not less than the minimum wages prescribed in respect of items that are mentioned in the tabular statement forming part of the tender notification. Apparently what was intended is that the tenderer should express a willingness and readiness to pay to the workers, wages which are not less than the minimum wages prescribed in that regard. It seems that the petitioner responded to Exhibit P1. There were other bidders also. The railway authorities, ultimately decided to conduct a fresh tender and the same has been challenged by the petitioner. According to the petitioner, he was the lowest bidder and therefore there was no W.P ( C) No. 25825 of 2008 2 reason why his tender should not have been accepted and contract awarded. 2. On instructions, a statement has been filed by the respondents. Apart from disputing that petitioner was the lowest tenderer, what has been further stated by the respondents in Para 7 (a) (a) merits reproduction and it reads as follows: “7a. Allotment of a tender to the lowest tenderer is not automatic. a. The petitioner is not the lowest tenderer. His financial offer was for an amount of Rs.16167/- whereas in the same tender, there was an offer for even a lesser amount clearly revealing that he is not the lowest tenderer and that he has submitted a false averment before the Hon'ble Court. It is also submitted that the petitioner has submitted an undertaking to load/unload 1000 Kgs. of hard parcels at a cost of just 19 paise and for loading/unloading 1000 Kgs. of perishable goods like vegetables at just 17 paise bringing out a serious infirmity in his offer in that to load/unload 1000 Kgs. no Minimum wage Laws of the land makes it possible to meet the expenses towards hiring of labour at this unworkable rate of 19 paise and 17 paise per tonne respectively. Whereas, the tender conditions clearly state that minimum wages should be ensured for the labaour hired by the tenderer. For these and many other infirmities in the tender offers received, a duly constituted Tender Committee had taken a decision with the approval of the Competent Authority to discharge the offers received in the W.P ( C) No. 25825 of 2008 3 arraigned tender. 3. I heard Smt.Daisy.A Philipose, learned counsel for the petitioner and Sri.C.N. Radhakrishnan, learned standing counsel for the railways. 4. What is under challenge is in the decision taken by the railways to conduct a fresh tender and award of the tender. There is no award of the tender as such at this stage. Obviously, there is no factor which stands in the way of the petitioner being participated in a fresh tender. 5. Learned counsel for the petitioner submits though it may not be mandatory for the railways to accept the lowest bid there must be some reason which would satisfy the conditions prescribed in the notification for not accepting the lowest tender. It is true that an arbitrary decision cannot be taken by the railways or any authority which satisfies the definition of 'State' and this will include a decision where the lowest tender is not accepted. But there is qualitative difference in cases where the State declines to accept the lowest tender and awards it to another person and cases where the State decides to go for W.P ( C) No. 25825 of 2008 4 a fresh tender altogether. 6. In the present case, the reason put forward by the railways to go for a fresh tender cannot be considered as a total arbitrary reason or otherwise reflecting on a total absence of application of mind. Tender conditions clearly state that minimum wages should be ensured for the labour hired by the tenderer. This was taken note of by the duly constituted tender committee and decision taken in this regard also met with the approval of the competent authority. Learned counsel for the petitioner submits that judgment of the Supreme Court in Dutta Associates Pvt. Ltd. Vs. Indo Merchantile Pvt. Ltd and Others [(1997) 1 SCC 53] held that the petitioner is to ensure minimum wages to the workers engaged by him and therefore the details given by him in this regard obviously should not have been a relevant factor in rejecting the petitioner’s tender. 7. In my view, once a tender condition prescribes the necessity on the part of the tenderer authority to give an undertaking that the minimum wages would be ensured W.P ( C) No. 25825 of 2008 5 by the tenderer if the contract is awarded and the tender does not reflect such an undertaking in specific terms or the financial bid does not reflect any such undertaking on the part of the tenderer then it is always open to the tender processing authority to reject the tender on the ground that it is not in terms of the notification. Apparently, all the tenders had been rejected on the same ground and it is accordingly the authority decided to issue a fresh tender. The dictum laid down in Dutta Associates Pvt. Ltd. Vs. Indo Merchantile Pvt. Ltd and Others [(1997) 1 SCC 53] does not apply to the present case as that was a case where there was further deliberations between the tender processing authority and the tenderer. For all these reasons, I do not find any reason to interfere with the action taken by the respondents. Accordingly the writ petition is dismissed. (V.GIRI,JUDGE) ma W.P ( C) No. 25825 of 2008 6 W.P ( C) No. 25825 of 2008 7