NARENDRA NATH TIWARI, J. - (1.) IN this writ petition, the petitioner has prayed for a direction on the respondents to open the Financial Bid of the petitioner and consider the same along with other bidders and in case, the petitioner is found successful, to allot the work to the petitioner for which he has submitted his tender in response of NIT No. CCL/CGM(T}/Kuju/2003 -317 dated 12th December, 2006.
(2.) PETITIONER 's case, in short, is that a notice Inviting Tender (in short 'NIT') was published by the Central Coalfields Ltd. (in short 'CCL'), Ranchi, being NIT No. CCL/CGM(T)/Kuju/2003 -317 dated 12th December, 2006 (Annexure -1) for the work, transfer of coal by Contractor's Pay Loader into Contractor's Tipping Trucks at Topa Reorganisation, O.C. Project, Surface Stock and Transportation to NR Siding after weighment at Ara Road Weighbridge and Siding Weighbridge. According to the NIT the tenders were to be received in the office till 2nd January, 2007 and to be opened at 11 a.m. on 4th January, 2007, in the office of Chief General Manager (Transportation), CCL. The petitioner, who has experience of similar nature of work since 1984 and is eligible in all respect, submitted his tender on 2nd January, 2007 in the office of the respondent No. 1 along with the certificate issued by Allahabad Bank, SSIFB, Ramgarh to Hazaribagh show the adequate working capital, the list of equipments Le. 30 numbers of Tipping Trucks, 4 numbers of Pay Loaders and other equipments, which were required, as per Clause 3.3(c) of the NIT, certificate relating to Financial Turn Over of Rs. 7,52,98,467.03/ - for the Financial Year 2005 -06 as also the certificate of the work completed during the previous year. He also submitted other required documents along with his Bid/Tender. The tender was to be submitted in two parts; (i) Technical Part and (ii) Financial (Price) Part, as per the requirement of the NIT. As per the schedule, Technical Bid was opened by the Tender Committee on 4th January, 2007 in the office of the Chief General Manager (Transport), CCL. The petitioner was found fulfilling all the terms and conditions required for Technical Bid. However, on the appointed date, the Financial Bid (Price Bid) of the petitioner was not opened. It was verbally communicated to him that he did not fulfill the criteria, as required in Clause 5(c) of the NIT and did not submit certificate of registration with Provident Fund Authorities and as such, his Financial Bid (Price Bid) was not opened. It has been stated that the petitioner is engaged in the work relating to transportation in colliery area under the respondents -authorities and he is depositing the employer's share/contribution in the office of Coal Mines Provident Fund (in short 'CMPF') through the Principal Employer, namely, Project Officer, Topa, Kuju Area, CCL, for which the certificate has also been issued by the Senior Personnel Manager, Topa Colliery, dated 26th December, 2006. It has been stated that the employees, who are eligible for the provident fund, their accounts have been opened in the office of the CMPF and account numbers have also been allotted to them. The contributions are being regularly deposited in the office of the CMPF. The certificate issued by the Colliery/Manager, Principal Employer, to that regard has been also submitted by the petitioner. The instant work is related to the same area and in the past, on the basis of similar certificate issued by the concerned Project Officer, the petitioner was allotted similar nature of work by the respondents. It has been stated the work related to the colliery area where the provisions of Coal Mines Provident Fund is applicable and there is no provision for registration with CMPF Authority. However, on coming to know about the objection raised, regarding non -submission of certificate of registration with the Provident Fund Organisation, the petitioner applied for registration also with the Employees Provident Fund Organisation, Jhiarkhand, Ranchi on 2nd January, 2007 and the certificate of registration was issued on 9th January, 2007 (Annexure -8). But, in spite of the compliance of the required terms for award of the contract, the petitioner's Price Bid was not opened on the ground that he has not submitted the registration certificate issued by the Employees Provident Fund Organisation, Jharkhand. The petitioner, in order to meet the same, then submitted the certificate of registration issued by the Employees Provident Fund Organisation on 9th January, 2007, but even after submission of the said certificate, the petitioner's Price Bid was not opened. It has been stated that as per Clause 5(b) of the NIT, in question, the bidders were required to submit Labour Licence. The petitioner has submitted Labour Licence, being Licence No. 29 dated 1st September, 2005, which is valid up to 31st August, 2007, (Annexure - 11). Two other, bidders, namely, M/s. Rajiv Transport Coal Agency and M/s. Sainik Transport Pvt. Ltd. who applied for the same work, have not submitted their Labour Licence, as required under Clause 5(b) of the NIT, but their Financial Bids were opened by the respondents -authorities, whereas the petitioner's Financial Bid was not opened on the ground of want of registration certification with Provident Fund Authority. Counter affidavit has been filed on behalf of M/s. CCL justifying the denial of opening of the Financial Bid of the petitioner. It has been stated, inter alia, that the dispute raised by the petitioner is covered under Clause 32.1 of the instruction to the bidders and Clause 12 of the condition of the contract and that the petitioner has got remedy before the District Court and this writ petition is not maintainable. There was no illegality and arbitrariness on the part of the respondents. Financial Bid of the petitioners was not opened due to his failure to comply with the requirement and conditions of the NIT. The petitioner failed to submit the certificate of registration with Provident Fund Authority, which is required under Clause 5(c) of Parts -I and II, Sec. 2 of the Contractor's Bid. Parts -I and II of the Tender were required to be submitted in one envelope up to 3.00 p.m. by 2nd January, 2007, Part -I of the Bid was to be opened on 4th January, 2007 at 11.00 a.m. in the office of the Chief General Manager (Transport), CCL Darbhanga House, Ranchi. The Management reserved right to accept or reject any or all the tenders wholly or partly without assigned any reason whatsoever. Petitioners' Technical Bid was opened, but the Financial Bid was not found in proper order due to non -submission of the registration certificate with Provident Fund Authority, which was required as per Clause 5(c) of the NIT. Clause 24.3 of the tender document provides for rejection of the bid by the employer, if a bid is not found substantially responsive. As per Clause 26.3 of the NIT, the employer has right to accept or reject any variation or deviation and has also got unfettered right to accept or reject any bid wholly or partly, Clause 24.1 of the NIT providers for scrutiny of the bid and determination of responsiveness by the company. If the bidder does not comply with the terms and the bid is not substantially responsive to the requirements of the NIT, the same is liable to be rejected. In terms of Clause 27 of the NIT only that bid is acceptable which has been determined to be substantially responsive to the bidding documents and of the bidder who has offered the lowest evaluated bid price and who is eligible in accordance with the provision of Clause 2 and qualified in accordance with the provision of Clause 3, employer also got right to accept any bid, negotiate or reject any or all bids under Clause 28 of the NIT. It has been stated that the petitioner is an old contractor working under the respondents and he had been depositing the employer's contribution towards CMPF of the workers, but that is not the due compliance of Clause 5(c) of the NIT. The requirement was the registration certificate with Provident Fund Authority and submission thereof with the tender papers. The petitioner has been depositing the contribution of two workers, as would be evident from Annexure -8. It has been stated that the Financial Bid was opened on 5th January, 2007 and by that time, the registration certificate with Provident Fund Authority was not submitted by the petitioner. The certificate was obtained subsequently on 9th January, 2007. The decision for not opening the petitioner's Financial Bid (Price Bid), Part -II, was thus valid and legal and there is no arbitrariness on the part of the respondents. No right of the petitioner has been infringed or violated. It has been stated that the petitioner is still working with the respondents and if the work is not awarded due to litigation, the Management shall be compelled to get the work executed by the petitioner even after expiry of the contract period. The respondents have denied the petitioner's allegation that the Financial Bids of other two contractors are accepted without submission of Labour Licence. It has been submitted that the said contractors have submitted the required documents including the Labour Licence with their bids and the contrary allegation is baseless.
(3.) MR . A.K. Sinha, learned senior counsel, appearing on behalf of the petitioner submitted that the petitioner has been executing and doing the similar nature of work since 1984. He fulfilled all the terms and conditions laid down in the NIT (Annexure -1). The essential qualification for award of work is mentioned in Clause 3.3 of the NIT. The petitioner fulfilled all the essential conditions and is qualified for the bid. The certificate of registration with Provident Fund Authority was not required for awarding the contract, as per Clause 3.3. of the NIT. The award criteria has been specifically mentioned in Clause 27 of the NIT. According to Clause 27.1, the employer has to award the contract to the bidders, whose bid has been determined to be substantial responsive to the bidding document and who has offered the lowest evaluated bid price. Eligibility criteria for the bidder is provided in Clause 2, while qualification for awarding the contract is provided in Clause 3. The petitioner is eligible in accordance with the provision of Clause 2 and is qualified in accordance with the provision of Clause 3, but the respondents have arbitrarily denied to open Financial Bid of the petitioner only on the ground that the petitioner has not produced the certificate of registration with Provident Fund Authority, as mentioned in Clause 5(c) of the NIT, which is not an essential condition for awarding the work. Criteria for awarding the work does not include submission of the certificate of registration with the Provident Fund Authority with the tender. It has not been mentioned any where in the tender document that the bid will be rejected for non -fulfilment of the condition, mentioned in Clause 5(c) of the NIT. The certificate of registration with the Provident Fund Authority is not required at that stage. In view Clause 11 of the NIT, which, inter alia, provides that the contractor shall make payment of the provident fund for the workmen, employed by him, for the work as per the laws prevailing under the provisions of CMPF and Allied Miscellaneous Provisions Act, 1952. The work, in question, is related with coalmines and the provision of Coal Mines Provident Fund Act is applicable and not the provision of Employees Provident Fund Act, 1958. The petitioner has been working with the respondents and has been depositing his contribution i.e. employer's share in the office of CMPF through the Principal Employer, M/s. CCL. The Senior Personal Manager has issued the certificate to that effect (Annexure -5). The petitioner submitted the certificate of registration with Provident Fund Authority dated 9th January, 2007 (Annexure -8) before the decision of the Tender Committee dated 3rd February, 2007. The petitioner was earlier awarded work on 13th March, 2007 (Annexure -7) on the ground that he has been depositing the provident fund amount in the office of CMPF, as there is no provision of registration of contractor in the office of CMPF and the amount of provident fund relating to the employees is deposited through the Principal Employer, namely, CCL. ;