M/S Thakur Traders And Engineers v. The Chief Engineer And Another
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA/354/2022 M/s Thakur Traders and Engineers ... Petitioner Vs.
The Chief Engineer and another ... Respondents Mr. Terence D. Cruz ... for the petitioner Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the respondents August 26, 2022 [SR] Item No.5 The petitioner seeks quashing of an order dated 23rd February 2022 of the Finance Officer to the Chief Engineer by which the petitioner was suspended for a period of one year from the date of issue of the order from taking part in any APWD's tender. The impugned order is premised on the petitioner failing to communicate its acceptance within the validity period of the tender. The respondents rely on the validity of the tender being up to 16.6.2021 in coming to the decision of suspending the petitioner.
From the e-Tender Notice dated 19th February, 2021 issued by the office of the Executive Engineer, it appears that the bid opening date and time was stated as 12.3.2021. An RTI application made by the petitioner on 4th April, 2022 resulted in the information published stating that the tender was kept open for 90 days from due date of its opening. If the bid opening date and time of the e-Tender Notice and the reply
to the RTI is taken into consideration, the validity of the tender would be 12.3.2021 + 90 days which would be 10.6.2021. The letter of acceptance of tender annexed to the writ petitioner shows that the Executive Engineer issued the said letter of acceptance to the petitioner on 14.6.2021. This would mean that the concerned respondents issued the LOA four days after closing of the validity of the tender. The letter of the petitioner is dated 26.6.2021 issued to the concerned respondents is also significant in this context. The petitioner clearly stated in the letter that the last date of submission of tender is 11.3.2021 but that further the acceptance letter of the respondents dated 14.6.2021 was received by the petitioner on 24.6.2021 after a gap of three months. The petitioner requested the authorities to cancel the tender on the reasons given in the said letter.
The respondents however proceeded to issue a Show Cause Notice to the petitioner on 25.1.2022 which was responded to by the petitioner on 28.1.2022 and the impugned order of suspension was passed thereafter on 23.2.2022. The limited issue before the Court is whether the petitioner withdrew from or modified the conditions specified in the tender documents during the period of validity of the tender. This would appear from a specific clause providing for the condition in the Proforma for Earnest Money Deposit Declaration which is a part of the tender documents. The Proforma further states in clause 2, if the petitioner fails to sign the contract or to submit the performance guarantee after
the award of work, the petitioner shall be suspended for one year and shall not be eligible to bid for APWD tenders from the date of issues of the suspensions order.
Although learned counsel appearing for the Administration has canvassed the second clause in the Proforma for issuing the impugned order, this Court is of the view that the second clause is not relevant since the petitioner cancelled the tender by its letter dated 26.6.2022 and hence the question of work being awarded to the petitioner did not arise.
On the other hand, clause 1 of the Proforma is the relevant clause for the present writ petition since it relates to withdrawing or modifying the terms in the tender documents during the period of validity of the tender. Since the documents on record clearly show that the validity of the tender was only till 10.6.2021, as also corroborated by the reply to the RTI query, and buttressed by the fact that the respondents issued the letter of acceptance after the validity of the tender, the petitioner cannot be held to be in default of any of the clauses of the tender documents.
The impugned order notably mentions the validity of the tender being upto 16.6.2021 which is contrary to the facts on record and also inconsistent with the respondents' answer to the RTI query. The reason for suspending the petitioner for one year is hence not supported in fact or by the tender conditions framed by the respondents. The suspension is wholly arbitrary and offends the mandate of the Constitution under Article 19.
It may also not be out of place to mention that the point of delay in filing the writ petition taken on behalf of the respondents is to be rejected at the outset. The petitioner admittedly filed a review/recall of the impugned order in March, 2022 soon after the impugned order. The authorities have done nothing in the matter and have kept the recalling application pending for the last five months. All these factors merit immediate relief to the petitioner.
WPA/354/2022 is accordingly allowed and disposed of by quashing the order dated 23rd February, 2022 suspending the petitioner for one year. The concerned respondents are directed to forthwith permit the petitioner to participate in APWD tenders on and from the date of this order. Since affidavits have not been called for, the allegations made in the petition are deemed not to have been admitted. ( Moushumi Bhattacharya, J.)