N. N. Mithal, J. - (1.) -Diesel Locomotive Works (DLW for short) is a unit of Indian Railways engaged in the manufacture of locomotives near Varanasi. For the manufacture of locomotives it requires steel plates and sheets and other ferrous and non-ferrous material leaving huge quantities of ferrous melting scrap including steel plates and sheets as-waste. This scrap is stored in the scrap yard by DLW and is periodically disposed of by inviting tenders for its purchase and removal. In respect of one such lot of nearly 2000MT (plus-minus 25%) sealed tenders were invited, to be opened on 29th March, 1990.
(2.) 21 offers by sealed tenders were received from various parties. The tender submitted by respondent No. 6 was finally accepted. This is challanged by the petitioner, who was also one of the tenders, on the ground that it had tendered the highest rate and its tender had been wrongly rejected. It is also contended that the tender of respondent No. 6 has been wrongly accepted even though it had not complied the tender conditions. Respondent Nos. 1 to 5 have denied these allegations contending that the petitioner's tender was rightly rejected as no earnest money was deposited by it. It is further contended that as per tender conditions the respondents were under no obligation to accept the highest tender and could reject it without assigning any reason. The facts as they emerge from the record are that in pursuance of the notice inviting tenders 23 parties had purchased the tender papers but only 21 tenders were submitted. Out of these 8 tenders, including petitioners, had been submitted without the requisite earnest money and were accordingly rejected summarily. Along with the remaining 13, the tenderers had deposited Rs. 50,000/- each as earnest money by demand draft or bankers cheque. Amongst these 13 tenderers the offer given by the respondent no. 6 being the highest was accepted on the basis of a comparative statement of all the offers prepared by the department after due scrutiny. The scrutiny report dated 18-4-90 submitted by the Tender Committee was accepted by the General Manager, DLW on 19-4-90. The allegation of arbitrariness or unfairness levelled against respondent was denied and it is submitted that all offers accompanied by earnest money were all duly considered and highest rate of respondent No. 6 amongst them was accepted.
(3.) IN the rejoinder affidavit the petitioner claims to have submitted a crossed cheque along with tender papers which appears to have been removed mala fide with a view to award the tender to respondent No. 6. Particulars of the cheque could not be furnished 'by the petitioner as according to it, there was no column in the tender papers for this purpose and it had no opportunity to point this out as it was not conveyed the rejection of petitioner's tender. It is also alleged that a loss of atleast four lacs has been caused to the Government due to rejection of petitioner's offer which was much higher than that of respondent No. 6. Lastly, acceptance of offer made by respondent No. 6 was challanged as the mode of depositing the earnest money along with tender was not as prescribed having been submitted by loose cheque drawn on personal account and not in cash or by demand draft. Fhe rival contentions give rise to two questions asking for decision by us. First, whether the petitioner had complied with tender condition and second, if not, can he still challange the acceptance of offer made by respondent No. 6 merely because it had also violated the terms of the tender. But before proceeding to do this perhaps it would be appropriate first to examine the relevant clause 6 of the tender notice which reads as under: "Earnest money of 5% of the tender sale value subject to a maximum of Rs. 50,000/- with the stipulation that full 10% security deposit should be made by the successful tenderer before ordering sale. Earnest money are rendered to be deposited along with offer in cash or by demand draft drawn on DLW Branch of SBI in favour of Assistant Chief Cashier. DLW/ Varanasi. Cash receipt deposit/Demand Draft are to be enclosed along with tender, otherwise tender will be liable to be rejected. No demand draft on other branches, banks nor cheques, postal orders, money-orders etc. will be acceptable. For successful purchaser security deposit of balance amount to be deposited in the same manner I. T. C C. to be enclosed along with offer".;