Yogesh Gupta v. Food Corporation Of India And ANR
CWP No. 10055-2021 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH CWP No.10055 of 2021 (O&M) Date of decision:( 21.05.2021 Yogesh Gupta .....Petitioner
Versus
Food Corporation of India and another
...Respondents
Present:( Mr. J.S.Arora, Advocate, for the petitioner.
Mr. Sunish Bindlish, Advocate, for the respondent No.1(FCI. (The aforesaid presence is being recorded through video conferencing since the proceedings are being conducted in virtual Court). * * * *
! In response to the NIT dated 12.03.2021, floated by respondent(FCI for appointment of handling and transport contractor (HTC) at the Killianwali Centre under FCI Division, Faridkot, the petitioner submitted his tender. This petition has been filed for the technical bid submitted by the petitioner has since been rejected by the authorities on 04.05.2021 and whereafter even his representation against his disqualification has also been rejected vide order dated 11.05.2021. Learned counsel for the petitioner submits that the petitioner's tender was rejected on two grounds; firstly, the note recorded by the auditors on the profit & loss account as also the balance sheet for the financial year 2017(18 was missing in the documents (profit & loss account and Balance Sheet) for the subsequent year i.e. financial year 2018(19. Secondly, there was also a discrepancy as regards the dates mentioned on the balance sheet and the profit & loss account for the same year (2018(19), appended with the bid submitted by the petitioner.
CWP No. 10055-2021 2 It is urged that the note upon which insistence is placed by the respondents was not an essential part of the audited accounts and therefore, even in the absence of the alleged note, the petitioner's bid on the basis of the audit report and accounts submitted by him could not have been rejected. Learned counsel for the petitioner further submits that even though the date mentioned on the balance sheet is 30.10.2020 and profit & loss account was 28.10.2020, but that was only a typographical mistake/error and therefore, ought to have been ignored by the Technical Evaluation Committee.
Further the rates submitted by the petitioner were lower than the rates submitted by respondent No.2 and therefore, the act of the respondent authorities in rejecting the petitioner's technical bid would result in financial loss to the Food Corporation of India. Thus, the impugned orders dated 04.05.2021 and 11.05.2021 deserve to be set aside. Learned counsel for the respondent(Food Corporation of India submits that the petitioner's audited accounts for the year 2018( 19 did not contain an audit note and this fact is admitted by the petitioner. It is further submitted that the discrepancy in the dates mentioned on the profit & loss account and the balance sheet is also not disputed by the petitioner.
It is submitted that in such circumstances as these requirements were mentioned in the tender notice itself and were to be strictly complied with by all tenderers, they cannot be treated as minor discrepancies, and therefore, could not have been ignored. It is urged that the authorities have examined all the objections raised by the petitioner vide a detailed order dated 11.05.2021 and have rejected the representation of the petitioner, which does not call for any interference.
CWP No. 10055-2021 3 Learned counsel for the respondent(FCI further submits that a bare perusal of the documents/accounts submitted by the petitioner for the financial year 2017(18 at page Nos. 140 and 141 of the petition clearly show that the audit note was appended separately by the auditors in the profit & loss account and the balance sheet whereas the audit note is missing in the profit & loss account and the balance sheet submitted by the petitioner for the year 2018(19.
Learned counsel for the respondent(FCI further submits that in such circumstances and in view of the provisions of Clause 8(iii), Clause 8(c)(iii) as well as clause 8(f) and (g) of Appendix(II of the MTF, the tender documents submitted by the petitioner were termed as incomplete and therefore, he was technically disqualified.
We have heard learned counsel for the parties at length. As far as the factual aspect is concerned, it is pertinent to note that the petitioner in his representation filed before the respondent( authorities, while replying to the deficiency in relation to the audit note, has stated that "
As regards the discrepancy in the dates mentioned on the profit & loss account and the balance sheet for the financial year 2018(19, the petitioner in the said representation has stated "
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When confronted with the aforesaid two statements made by the petitioner in the representation dated 05.05.2021, learned counsel for the petitioner has not disputed the same and, therefore, in the instant case, the deficiencies/lacunas that have been pointed out by the respondents are
CWP No. 10055-2021 4 admitted and not disputed. Infact, the same are also borne out and established by the documents filed by the petitioner. The issue raised by the petitioner regarding absence of the note in the audit documents being a minor discrepancy is concerned, it is observed that the authorities while rejecting the petitioner's representation had also taken into account the opinion of the certified Chartered Accountant of the Food Corporation of India:( "+
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From a perusal of the Model Tender Form (MTF), it is clear that a duly audited profit & loss account and the balance sheet are mandatorily required to be filed by the tenderer along with the tender application and as per the instructions issued by the Institute of Chartered Accountants, referred to by the respondents in their order dated 11.05.2021 rejecting the representation of the petitioner, it is clear that a note on the audited documents is an integral and necessary part of the audited profit &
CWP No. 10055-2021 5 loss account and the balance sheet. It is also clear that as there is a discrepancy and mismatch in the date of the balance sheet and the audited profit & loss account filed by the petitioner for the year 2018(19, cannot be said to be in accordance with the requirements of the tender documents. It is also clear from a perusal of paragraph 8(d) of the MTF that a tender which does not comply with the instructions contained in the MTF would be summarily rejected and that a tender which is not accompanied by all the schedules/annexures intact and duly filled in and signed may be ignored under paragraph 8(g) and that the tenderer does not have any right or opportunity to alter, modify or withdraw any offer at any stage after submission of the tender form.
From a perusal of the impugned order dated 04.05.2021 passed by the respondent(authorities, it is clear that the reasons for rejection of the petitioner's technical bid are that the note on audit is not given in the profit & loss account and the balance sheet submitted by the petitioner for the financial year 2018(19 and that there is a discrepancy in the dates between the balance sheet and the profit & loss account. Likewise, the impugned order dated 11.05.2021 (Annexure P(12) shows that the authorities duly considered the issues raised by the petitioner but in the wake of his admissions, regarding absence of an audit note in the profit & loss account, balance sheet as also the discrepancies in the dates mentioned in the balance sheet and profit & loss account for the financial year 2018(19, rejected his representation.
It is settled law that the scope of the interference by the High Court in exercise of its powers under Article 226 of the Constitution of India in tender matters or in respect of judicial review of administrative action is limited and restricted to cases of arbitrariness, unreasonableness and
CWP No. 10055-2021 6 procedural impropriety. Further in such cases the Court is not required to look into the soundness of the decision but the lawfulness of the decision making process. The Courts cannot sit in appeal over the decisions of the Executive Authorities or instrumentalities and the State in such cases ought to be granted latitude and play in the joints while exercising such powers. The law also requires that in such cases paramount public interest should also be kept in mind by the Courts.
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In the light of the aforesaid principles laid down by the Supreme Court, it is to be seen as to whether the impugned decision making process undertaken by the respondent(authorities suffers from wednesbury unreasonableness or whether it is and not in public interest or is so arbitrary or perverse that it is patently illegal. In the instant petition, there is no allegation of Quite apart from the above, in view of the admitted deficiencies and the requirements of the Model Tender Form for filing the documents along with the audit note with no discrepancies and the fact that the authorities while rejecting the technical bid of the petitioner has taken these aspects into
CWP No. 10055-2021 13 consideration. Further, the terms and conditions of the MTF were uniformly applied to all the tenderers. Thus, there is no procedural impropriety, illegality or arbitrariness in the decision taken by the respondent(authorities. In view of the aforesaid analysis made in the light of the law laid down by the decisions of the Supreme Court we are of the considered opinion that the decisions of the Technical Evaluation Committee dated 04.05.2021 and 11.05.2021 are in accordance with law and do not suffer from any legal infirmity warranting interference by this Court. The impugned orders dated 04.05.2021 and 11.05.2021 are accordingly upheld. The petition filed by the petitioner being meritless is accordingly dismissed. (RAVI SHANKER JHA) CHIEF JUSTICE (ARUN PALLI) 21.05.2021 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No