Kumar Services vs Jharkhand State Electricity Board and Others

Vikramaditya Prasad J.

The petitioner has filed this writ for commanding upon the respondents to include the bid submitted by the petitioner and to negotiate price with him considering the facts that the petitioner is fully entitled to be considered in the tender number 119/J.S.E.B./PR/ 2002, dated 27.06.2002 and as the respondent Nos. 6 to 10 are either not eligible or not entitled to be considered so for a direction upon respondent no. 1 & 2 to make a thorough enquiry into the entire matter of aforesaid tender considering the facts that the respondent no. 3 has intentionally and due to the reasons best known to him not opened the financial bid of the petitioner on frivolous or non disclosed ground and not to award the tender aforesaid in favour of any of the respondents Nos. 6 to 10 or a group of them unless the financial bid of the petitioner is also opened and the petitioner is also given opportunity to substantiate his claim so far the tender in question is concerned.

Short question to be answered in this writ is whether the petitioner has been discriminated against the respondent No. 6 to 10 on account of any malafide on the part of respondent No. 3 against the petitioner.

The short facts of the case are--The respondent No. 3 had invited a tender-

(i) for meter reading

(ii) Meter surveillance

(iii) Billing and

(iv) For bill distribution in Jamshed-pur town and suburbs vide tender notice No. 119/J.S.E.B./PR/2002, dated 27.06.2002. The petitioner submitted his tender papers commercial and technical part (part-1) and price part (part-II), then according to the petitioner as per Clause (7) of the terms and conditions mentioned in the tender the agencies should possess all the required man power, computers, printers, soft wares and other tools and plants and should enclose list of the same along with the list of technical and skilled personnel working with them. The Clause 14 of the tender also directed that the document aforesaid must be submitted and the tenderers were supposed to submit details of experience of similar work carried out within past 2 years or carrying out at present with certificate from the clients for satisfactory performance, write up on proposed methodology for effective carrying out the assignment bio-data of key personnel to be deployed, registration against PR/Service tax etc.

According to petitioner, which is a partnership firm. The Board respondent i.e. respondent No. 1 to 3 are still taking work of bill preparation/bill distribution through two separate private agencies that is to say one agency was for preparation of the monthly energy bills and the other agency is engaged in serving the bills to consumers. The petitioner admits that as per the new proposed system (tender) one agency is now supposed to do all jobs as mentioned in the tender. The petitioner claims that he is a working contractor of the respondent at Ranchi and Jamshedpur and is engaged in distribution of bills, he has also got full infrastructure for bill preparation and other connected works. The petitioner alongwith respondent No. 6 to 10 and as many as 13 other tenderer submitted his bid alongwith required document/certificates hence he got a right to be considered in the commercial and technical part as well as also in the price part of the bidding in connection with the tender in question. The further claim of the petitioner is that respondent Nos. 6 to 10 did not submit any of the requisite documents and papers and so far respondent No. 6 to 10 are concerned they do not even have the requisite experience as required as per the terms and conditions of the tender. Specifically with regard to respondent No. 6 it has been averred that he did not submit the methodology of working which was compulsory to be submitted and he had no experience of working in the last 2 years and he submitted the experience certificate of some other firms, which was not supposed to be accepted. With regard to respondent No. 7 it was stated that he had no experience as required but he also gave the experience of other firms. The respondent No. 8 also did not submit requisite experience. Respondent No. 9 did not submit Income Tax Clearance Certificate and it also did not submit the methodology. With regard to respondent No, 10 it was stated by the petitioner that he also had not submitted the experience details in the filed.

The respondent No. 1 in their counter affidavit while answering this claim of inexperience of the respondents made in paragraph 14 and 15 of the writ simply denied this allegation. The respondent No. 3 against whom malafide was alleged was directed to me his counter affidavit and he filed the same. In the first counter affidavit dated 3.1.2003 the respondent No. 3 did not reply the allegations made in paragraph 14 (with regard to inexperience and non submission of the documents by the respondents) because his counter affidavit starts from the answer to the averments made in the writ after paragraph 15 and 16 though he stated in paragraph 8 of the counter affidavit that no favour was shown to respondent No. 6 to 10. As this was not the satisfactory counter affidavit filed by him the respondent No. 3 was again directed to file another counter affidavit which he did on 9.1.2003. In that counter affidavit the reply was not given to the averment made in paragraph 13 and 14 of the writ though the respondent No. 3 averred that before the tender in question the respondents were managing their work from two agencies i.e. one for bill preparation and other for distribution and during any mistake the responsibilities were being transferred to one another and as such the Board as per its policy decided to allot all the ancillary job to one person for easy monitoring. It was averred by the respondent No. 3 that the petitioner was in bill distribution that is of courier service and does not have any experience as per the tender for preparation of the bill which requires expertise. The petitioner did not submit any certificate regarding his experience in his technical/commercial bid and as such his price part was not opened rightly by the deponent. With regard to allegation of showing favoritism to respondent No. .6 to 10 it was averred that they had submitted requisite experience certificate and as such their tenders were opened and settled. The allegation of favoritism was denied. Annexure-A was attached to this counter affidavit to show that how the comparative chart was prepared to compare the respective merits of bidders. It was further averred in that counter affidavit that the deponent after opening the price part of the tender, negotiated with respondent No. 6 to 10 to agree at a lower rate in view of the huge volumes of work to be taken with expertise.

Before I proceed to examine the substance of allegation made, I feel it worthwhile to peruse the relevant terms of tender necessary for the disposal of this writ.

The tenders were in two parts, Technical and commercial part (Part-I) and Price Part (Part II). With regard to experience and qualification following is stated-

(I) Tenderer should possess all the required Manpower, computer, printers, software and other tools and plants and . should enclose list of the same along with the list of the technical and skilled personnel working with them.

(II) Tenders must spell out their experiences in the filed of work for which they have offered, supported by certificates and testimonial.

(III) Tenderers should be financially sound and should submit their latest Income Tax Clearance certificate, Sales Tax Certificate and Bank Statement.

The scope of work part of the tender reads as follows:--

In keeping this, the Jharkhand State Electricity Board intends to entrust the work of meter reading, meters condition surveillance and billing work to other parties in order to increase the effectiveness and accountability of meter reading, meter fitness and billing system. To start with Jamshedpur town & its suburbs are selected for its Implementation.

The scope of Services is incorporated in Clause 2 of scope of work which reads as follows :--

The intent of the NIT is to invite bids from the prospective and capable parties/organizations for earning out and provide the following services to the Board.

(i) Congs to each metering point at consumers premises, and taking readings of the meters and entering in meter reading card at consumer''s premises.

(ii) Comple and systematically prepare a statement of meter reading and report on status or meter and submit the same to the specified office and Authority of Board within the specified time schedule arid in a manner intrinsically clear and devoid of faults so as to prepare the consumer bills faultlessly.

(iii) Preparation of monthly computerized energy bills as per tariff in vogue and delivery of bills to consumers within prescribed time period.

(iv) Submission or submission of composite monthly status Report to the Board about rate of bills to the consumers i.e. bill abstract.

(v) To provide all support and information/clarification to the Board in case of any descripancy/dispute arising out of the meter Readings/Condition of the meters and consumers bills.

(vi) Preparation and supply of consumers''s ledger & other statements in prescribed format.

(vii) ...... review of security deposit of consumers as per tariff provision and issue .....bill if required.

(viii) Compromise of annual interest on security deposit of consumers and adjustment in .....with of April every year.

(ix) Surveillance of the condition of the meters and submit the quarterly report on the .... To the board, any irregularity/tampering noticed in the meter be highlighted to the meter surveillance Report drawing special attention to that even nil reports are to be submitted.

The qualification required for bidder is that they should have an experience of same/similar assignment. The respondent in his second counter affidavit in paragraph-8 had also stated as follows:--"The respondent No. 3 was not alone in the tender process. There was a team of 7 members who has finalized the tender". This contention of the respondent No, 3 is not disputed by filing rejoinder thereto by the petitioner. The main contention of the petitioner is that the respondent had no experience and they had use experience certificate of some other firms and consequently that certificate could not have been a ground for grant of tender to those respondents.

There are three respondents whose cases are requiring examination in face of allegation. Respondent No. 6 is Crystal Computer whose director is Sri Dineshwar Pandey the Crystal Computer Informatics Center had taken over the Computer Informatics Center vide annexure-R-7/Z to R-6/Z-2 which had an experience of meter reading and also of detailed billing vide annexure R.C/B-4. Annexure 6-C shows that one of its subscribers was Dhaneshwar Pandey. The Crystal Computer Informatics did this taking over on 12 December 2001.

Another is Respondent No. 7 Info Soft Data Services Private Limited through its director Virendra Kumar Yadav, M/S Soft data Services was taken over the Info Soft Data Services Privated Limited on 10th December 2001 and Virendra Kumar Singh Yadav became one of its Directors. He was also one of the directors/subscribers at M/S Soft Data Services thus Soft Data Services had experience of preparing bills Reconciliation of dividend vide annexure R-7/D-2 to R-7/D-3.

Then respondent No. 9 M/S Prakriti Enterprises who has filed experience certificate annexure-A and the claim of the Prakriti Enterprises is not very much in dispute because it was not focussed by the learned counsel for the petitioner.

The respondent No. 10 is Data Management Services; it has an experience of billing annexure-3.

The question now is whether these respondents had experience of the same/ similar nature. The word same/similar has been used in the tender notice. In the context of doing particular type of work like billing, the experience of billing, ISD or STD in a Government of India concern comes within the definition of similar nature of work if exactly not in the same nature of work. Without speaking much on this point it can be said that since this was a new type of venture therefore, exactly same nature of experience could not have been possible, therefore it appears while floating the tender this precaution was taken and the word similar was also used. Now if earlier Soft Data Services or Computer Informatics Centre were doing the similar nature of work and were subscribed by the same persons but subsequently took over those concerns as Info Data Services Private Limited or Crystal Computer Informatics Private Limited and also the director of that company was same then it can not be said that the experience which was possessed in the respective field by Computer Informatics Center or Soft Data Services as the case may be, did not become the experience of Info Soft Data Private Limited or Crystal Computer Informatics Centre because the technology that was adopted by the previous concern, was to be transferred or taken over by the new concern. Therefore it is not fair on the part of the petitioner to say that those two respondents particularly the Info Data Services and Crystal Computer had no experience in the respective branch of the work.

Second question raised was whether all those four works i.e. Meter reading. Meter surveillance, bill distribution and computerized billing could have been given to different four persons in terms of the tender or should have been given to the same party. In order to appreciate the object of the tender it is worthwhile to come to the tender notice which motivated respondent No. 1 to 3 to float the tender. The background reads as follows:--

The T & D losses in supplying electrical power to the consumer in the State are astonishingly high, resulting In avoidable loss of revenue to the State besides the other related difficulties inconveniences both to the Board and the consumer. The distribution network acorns for a major chunk, Contrary wide reform programmes are being implemented in order to get over the problem. The financial instructions who Finance the Reform Projects, are assessing for greater accountability in this regard by reaching the losses targeted to 18 @ by 2003 has this increase the Revenue of the Board and so also its financial viability. In keeping with this, the Jharkhand State Electricity Board, intends to entrust the work of meter Reading meters condition surveillance and billing work to other party/ies in order to increase the effectiveness and accountability of meter Reading meter fitness and billing system.

Now the whole exercise was being made for reducing the loss and increasing the efficiency. The averment of the respondent No. 3 in one of the paragraphs of his counter affidavit requires some attention. Paragraph 6 (d) reads as follows:--

Before the tender in question the respondents were managing their work from two agencies i.e. one for bill preparation and other for distribution and during any mistake the responsibilities were being transferred to one another and as such the Board as per its policy decided to allot all the ancillary job to one person for easy monitoring.

The petitioner has not controverted this when we scrutinized the terms of the tender we found one thing, (i) The work will be given to party/parties. This very much indicates that board had discretion to give the work to a party or parties there can be no two interpretation of this clause appearing in the tender. Thus Board at its own discretion would have been given the tender to the one party for the reason recorded in the counter affidavit of this respondent No. 3 (supra). Thus if the board had accepted the tender of other respondents in respect of all the four works it is not against the terms of the tender.

During the course of the argument the learned counsel for the petitioner also conceded that it is fact that the job tenders was given by a committee and not by a individual member i.e, respondent No. 3. The moment a decision is taken by a committee duly constituted for accepting the tender then the allegation of malafide against one of the member of the committee cannot be substantiated or allowed.

Now the learned counsel for the petitioner during the course of argument pointed out that after the work was assigned to the respondents there were certain reporting of loss to the board on account of their inefficiency which according to the petitioner is due to their inexperience. I find this argument completely out of place for a simple reason that as the tender has been granted to certain persons on their merit so if they are causing loss to the board, then it is for the board to decide the action to be taken against them. This is quite a different matter and cannot be a subject of scrutiny in present writ.

Now we again come to the question of discrimination, 1 have already stated above that there was no provision in the tender itself that the work should be given to four different persons or parties. There was no specific mention in the tender that the same experience is necessary rather the word similar was also used and why this word similar would have been used has been discussed in the preceding paragraphs. Then one of the important document in this case context would be annexure (D) filed by the respondent No. 3 which is a comparative chart of all the bidders and this was profusely referred by the learned counsel for the petitioner during the course of his argument. The chart annexure- D has the signature of all the members of the committee, which decided the tender. On a bare perusal of the chart it becomes clear that in every respect the respondent No. 6 to 10 had some edge over the petitioner, thus the respondent No. 6 has 7 technical personnel and 6 non technical personnel and the petitioner has 5 technical and 7 non technical personnel similar is the case with another requirements, so it appears to me that on the basis of annexure-D the allegation of discrimination is refuted.

The question now is whether this Court could interfere with the tenders, which have been already granted to the respondents. The settled principle of law as stated in different decision of the Supreme Court is that generally the Court should not interfere with the bids Dr. A.R. Aruna Kumar Vs. Smt. Nalini, , except when the Court finds that there has been arbitrariness and discrimination. For the facts discussed above the arbitrariness and discrimination has not been proved, consequently, this Court does Dr. A.R. Aruna Kumar Vs. Smt. Nalini, not find reason to interfere with the decision already taken and to give any direction to the Board in terms of the prayer made by the petitioner.

Before 1 part 1 must observe that if the Board is suffering loss after giving the tender to respondent No. 6 to 10 then it is for the board to consider what can be done under the four corners of the provision of law. This Court takes notice of the fact that this allegation has been altogether denied by respondent having heard, because such a letter has not been received/served on them and the petitioner has obtained a copy of this prior to its service on them.

This writ is dismissed at this stage of admission.