TaxTMI 
TaxTMI 
2021 (4) TMI 1326
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....eld of preparation and distribution of therapeutic and non-therapeutic diet to government or private health institutions having a minimum of 200 beds for the year 2019-2020. In the "Terms of Reference" attached to the TCN, clauses VI.3.3 and VI.3.9 are important and are set out hereunder: "VI.3 Eligibility criteria: xxx xxx xxx 3. The bidder should have a minimum of 3 years' experience in diet preparation and its supply/services in Govt. or Private Health Institutions only having minimum 200 no. of beds. xxx xxx xxx 9. The bidder should have valid labour licence (registration no. & date) of Labour Department." Further, under clause VI.13, the right to reject any bid is set out as follows: "VI.13 Right to Accept or Reject the Bid: The Hospital Administration reserves the right to accept or reject any bid and the bidding process and reject all such bids at any time prior to award of contract, without showing any reason thereby." Equally, under clause VI.16, the administration of the SCB Medical College and Hospital reserves under its sole discretion to disqualify any bid document if any of the documents enumerated i....
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....the Contract Labour (Regulation and Abolition) Act, 1970. In the wake of the purpose, which is to supply diet, therapeutic and non- therapeutic to the patients to the hospital, we fail to concede to the submissions of requirement of labour license under the Contract Labour (Regulation and Abolition) Act, 1970. Rather the submission of the Petitioner that, the same is required under the Odisha Shops and Commercial Establishments Act appears more acceptable. Therefore, the contention of the Opposite Parties requiring the labour license under the Contract Labour (Regulation and Abolition) Act, 1970 does not seem justified in view of the stipulation made in the TCN. When the submission of labour license (registration no. and date) by the Petitioner under the Odisha Shops and Commercial Establishments Act is not disputed, in our considered opinion the same satisfies the requirement sought for at Clause 9. 10. Coming to the other shortfall as contended by the Opposite Parties regarding lack of three years' experience in terms of Clause 3 of the eligibility criteria, the admitted case of the parties are that the Petitioner has submitted the certificate issued by All India Institu....
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....ehalf of the Appellant, has argued that the High Court could not have second-guessed the authority's reading of its own tender and held that a registration certificate granted under the Orissa Shops and Commercial Establishments Act, 1956 ["Orissa Act"] could replace a labour licence under the Contract Labour (Regulation and Abolition) Act, 1970 ["Contract Labour Act"], as required by the authority. He also argued that the minimum three years' experience, as per the requirement contained in clause VI.3.3 was missing, as the experience certificate furnished by Respondent no.1 had a gap period from 06.08.2017 to 31.07.2018 which could not be made up and which was wrongly sought to be made up by the High Court. He also argued that it was perverse to hold that the action of the authority in granting the contract in favour of the Appellant was mala fide, and further went on to argue that after quashing the work order in favour of the Appellant, the High Court exceeded its jurisdiction in directing the authority to grant the work order to Respondent no.1. 9. Shri Aditya Kumar Chaudhary, learned counsel appearing on behalf of Respondent no.1 countered each of the aforesaid submissions.....
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....cy as contract labour, the agency being responsible to make alternative arrangements in cases where their staff goes on strike. 11. This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. This has clearly been held in the celebrated case of Tata Cellular v. Union of India, (1994) 6 SCC 651, paragraph 94 of which states as follows: "94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open....
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....ntly followed repeatedly - see Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 [at paragraph 25], Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81 [at paragraphs 38 and 39], and State of Madhya Pradesh v. U.P. State Bridge Corporation Ltd., 2020 SCC OnLine SC 1001 [at paragraphs 24 to 26]. 13. In Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035, after referring to paragraph 15 of Afcons (supra), it was held: "15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335, under the heading "Deference to authority's interpretation", this Court stated: "51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. 52. In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respo....
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..... The High Court has not adverted to any of these decisions, and in second-guessing the authority's requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. Section 4 of the Orissa Act reads as follows: "4. Registration of establishment. -- (1) Within the period specified in sub-section (4), the employer of every establishment shall send to the Inspector of the area concerned, a statement in the prescribed form, together with such fees as may be prescribed, containing- (a) the name of the employer arid the manager, if any; (b) the postal address of the establishment; (c) the name, if any, of the establishment; (d) the category of the establishment, that is whether it be a shop, commercial establishment, hotel, restaurant, cafe, boarding or eating house, theatre or other place of public amusement of entertainment; and (e) such other particulars as may be prescribed. (2) No adolescent shall be a....
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....king it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority's interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide. 16. The High Court's characterising the action of accepting the Appellant's tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows: "22. That, in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp. Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB, so accordingly, with a malafide intention both have connived and a pre-planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp. Party No. 3 is to create some litigation so that, the opposite parties can continue during pendency of the writ ....