1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.5320 OF 2009 (M/s. Public Organization vs. State and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND F.M.REIS, JJ. DATED : DECEMBER 11, 2009 Heard Shri Puranik, learned Counsel for the petitioner, and Mrs. Dangre, learned Additional Government Pleader for the respondents. Shri Puranik, learned Counsel for the petitioner, states that the grievance of the petitioner is in respect of awarding of contract of supply of labour in favour of M/s. Balaji Labour Cooperative Society on the ground that the said Society failed to submit document of payment of service tax along with tender document, which is a mandatory requirement as per the tender notice. It is contended that the said 2 Society failed to comply with the mandatory requirement and, therefore, respondents ought to have rejected the tender of the said Society after opening the technical bid and should not have opened the price bid of the said Society. However, the procedure adopted by the respondents is inconsistent with their own terms and conditions and, therefore, award of contract in favour of M/s. Balaji Labour Cooperative Society pursuant to tender notice is bad in law. Mrs. Dangre, learned Additional Government Pleader states that tender submitted by M/s. Balaji Labour Cooperative Society for supply of labour was lowest and so far as document of service tax is concerned, there is a dispute, which is pending before the Department of Excise on the ground that the said Society being a Labour Cooperative Society is exempted from paying the service tax. It is contended that while entering into formal agreement with M/s. Balaji Labour Cooperative Society, the respondents are going to put a specific condition that if the dispute before the Department of Excise fails, 3 in that event, M/s. Balaji Labour Cooperative Society shall pay the entire service tax and will have to place those documents on record. It is further contended that in the circumstances, acceptance of price bid submitted by the said Society was in the public interest and the procedure followed by the respondents is also consistent with the terms and conditions of the contract. We have considered the rival contentions of the learned Counsel for the parties. In the instant case, contract is of supply of labour and there are no technicalities involved in carrying out the work under contract and, therefore, terms and conditions more or less are of formal nature and cannot be termed as essential eligibility criteria, non-fulfillment of which can result in rejection of tender, though the same cannot be brushed aside in a casual manner. The tender submitted by M/s. Balaji Labour Cooperative Society was lowest and the dispute is pending before the Department of Excise whether Labour Societies are exempted from payment of service tax. In the circumstances, the decision of awarding contract to 4 the said Society, in our view, cannot be said to be inconsistent with the procedure. No case is made out for showing indulgence. The petition is dismissed. JUDGE JUDGE khj