Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2021
(Arising out of SLP (Civil) No.13683 of 2018)
Multitask Solutions .…Appellant(s)
Versus
Zilla Parishad Washim & Ors. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. Leave granted.
2. The appellant herein is assailing the order dated
24.02.2018 passed by the High Court of Judicature at Bombay,
Nagpur Bench in Writ Petition No.4789 of 2014. Through the
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2022.04.29
17:19:26 IST
Reason:
said order, the High Court has directed the State of
Maharashtra and the Chief Executive Officer of Zilla Parishad,
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Washim to initiate steps to recover all amounts paid to the
appellant herein. Further, direction is also issued to file
appropriate police complaints in the matter.
Though the writ petition in which the impugned order
3.
was passed is considered as a petition in public interest, the
genesis of the same is necessary to be noted so as to consider
whether an order of the present nature is justified in the
instant case without reference to the contractual obligation
between the parties.
The Zilla Parishad, Washim had issued an etender
4.
notice for purchase of Elearning kits under the Sarva Shiksha
Abhiyan scheme. The notification inviting tender was published
on the website vide letter No.1/20142015 dated 13.06.2014.
An advertisement was also published in the local newspapers.
The tender was to be opened on 10.07.2014 at 17:00 hours.
Due to technical glitch the same could not be opened, but the
etenders were opened on 11.07.2014. However, due to certain
lacunae in the process committed by all the tenderers, the e
tender was published afresh on 13.06.2014, both on the
website as well as in the local newspapers. The opening of e
tender was scheduled on 19.08.2014 at 11:00 am. The four
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tenderers, namely the appellant, respondents 2, 3 and 5 had
participated in the tender process. In the ultimate analysis the
th
5 respondent’s concern namely M/s Kasturi Suppliers, Nagpur
was technically disqualified due to which the financial bid of
the remaining three tenderers were opened. The appellant
herein being the lowest, was awarded the supply order dated
19.08.2014 for supplying the Elearning Kits to 22 Zilla
Parishad Schools.
5. The respondent No.5 herein claiming to be aggrieved by
the tender process whereby they had been disqualified, filed the
writ petition before the Bombay High Court. The challenge in
the writ petition was therefore to the tender process whereby
the respondent No.5 was disqualified and the supply order was
ultimately placed with the appellant. The High Court by order
dated 06.04.2015 did not see reason to entertain the writ
petition on the issue relating to the grievance put forth by the
respondent No.5 with regard to the tender process wherein they
were disqualified since several disputed questions of fact arise
for consideration and work order was already implemented. The
High Court in that view, through order dated 13.04.2015 took
cognizance of the writ petition in public interest while
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continuing to retain the petitioner who was a business
competitor and proceeded further with the matter only because
the amount was released in haste. In the said process, the High
Court was of the opinion that there was a case to
primafacie
conduct inquiry into the handling of matter by the then Chief
Executive Officer of Zilla Parishad, Mr. Ruchesh Jaivanshi.
6. Further, the High Court also took note of the contentions
putforth by respondent No.5 herein, a business competitor of
the appellant that on an average, in the other Zilla Parishads
similar equipment had been procured at a price which is lesser
by Rs.90,000/ to Rs.1,00,000/ per unit. Certain other
discrepancies were also referred to. In that light, the High Court
through the order dated 08.09.2014 directed the parties to
maintain statusquo and the petitioner was directed to serve
the respondents. Pursuant thereto, the response was filed by
the respondents to the writ petition and a consideration was
made by the High Court. In the said process, the High Court
had directed the respondent No.4 herein to secure details
relating to similar systems which were supplied to the schools
in the other Zilla Parishads in the State and also the price at
which it was procured.
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7. When the writ petition was listed before the Court on
07.12.2015 it was indicated to the Court that an appropriate
inquiry would be made and a report would be submitted.
Accordingly, an inquiry report was submitted, to which
response was filed by the appellant herein in the form of an
additional written submission. Further, affidavit of Mr. Ruchesh
Jaivanshi, CEO, Zilla Parishad was placed on record. In that
background, the High Court had been informed that the
Headmaster of the school is responsible for clearing the supply
and installation of kits, which had been done. It was further
brought to the notice that the upgradation of the software and
the training could not be performed by the appellant herein due
to the order of statusquo. The High Court noted the nature of
the supplies made by the appellant to the schools under the
Zilla Parishad, Washim and observed that the supply order at
Gadchiroli Zilla Panchayat was issued to the respondent No.2
herein, also by same CEO. Since both these suppliers had
participated in both the places, the High Court has assumed
foul play and has abruptly arrived at the conclusion that the
State Government and the Chief Executive Officer of Zilla
Parishad, Washim are to proceed in the matter as per law and
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initiate steps to recover all amounts paid to the appellant
herein and further directed the filing of police complaints. The
appellant being successful in the tender process regarding
which no fault was found is aggrieved by the directions issued
by the High Court to recover the amount despite the kits being
supplied by him.
8. We have heard Ms. Bansuri Swaraj, learned counsel for
the appellant and Shri Hrishikesh Chitaley, learned counsel for
the respondent No.5. The respondents No.1 to 4 though served
are unrepresented. We have perused the appeal papers
including the counteraffidavit filed on behalf of the respondent
No.5.
9. At the outset, as already noted the genesis of the petition
was the challenge to the tender process wherein the appellant
had succeeded and the supply order was placed on them. The
writ petition though ultimately considered as being in public
interest was initiated by the respondent No.5 herein who is the
proprietor of M/s Kasturi suppliers, one of the participants in
the tender process who had failed in the technical evaluation.
Hence, essentially what is to be taken note is that the writ
petition entertained by the High Court though ultimately styled
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as in public interest was initiated by a rival business competitor
who had also participated in the tender process and failed. The
reason for which the High Court had thought it fit to treat the
petition in public interest is due to the contentions put forth by
such rival business establishment which had failed in the
tender process. The contention was with regard to the
difference in price of the kits supplied to Zilla Parishad,
Washim and to the schools in other Zilla Parishads. It is no
doubt true that the High Court thereafter directed the
respondent No.4 herein – State of Maharashtra to place on
record the affidavits indicating the details pertaining to such
purchase of Elearning kits by the other Zilla Parishads and
also the process adopted by the Zilla Parishad, Washim. The
State Government had accordingly made an inquiry on this
aspect and an inquiry report at Annexure P14 to this petition
was filed before the High Court. A perusal of the order
impugned passed by the High Court does not indicate any
reference made to the details contained in the inquiry report or
to the subsequent affidavit filed by the then CEO of the Zilla
Parishad so as to analyse and arrive at its conclusion. On the
other hand, the High Court has abruptly proceeded to direct
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the recovery of the amount from the appellant and also directed
to proceed further in the matter by filing complaints.
10. A perusal of the inquiry report would indicate that it
refers to three dimensions (i) it relates to the manner in which
the funds have been utilised by the Zilla Parishad, Washim, (ii)
it refers to the tender process wherein the four tenderers had
participated and the appellant being the lowest tenderer and
(iii) the report refers to comparative statement of the purchase
of Elearning kits by the various Zilla Parishads and the price
at which it was procured. Though, certain observations have
been made in the inquiry report indicating that the Zilla
Parishad had not appropriately dealt with the funds which had
been allotted for other purposes but had diverted the same for
purchase of Elearning kits, that is an aspect for which the
appellant cannot be faulted. The appellant, like the respondent
No.5 had participated in the tender process in response to the
notification which was published both on the website and the
newspapers. It was not for the appellant to find out as to how
the project was funded. In terms of the tender, the bids were
submitted and ultimately the supplies were made. For
acknowledging that the kits have been supplied and installed,
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the certificate was required to be issued by the Chairman and
Secretary of the School Management Committee as per
condition No.5 to the supply order. The Headmaster of the
school is also the Secretary of the School Management
Committee and as such the certificates issued indicate that the
supplies were made is the contention on behalf of the appellant.
In any event, the High Court has not recorded a finding that the
supplies were not made by the appellant and the installation
had not been completed. In fact, the High Court by its earlier
order dated 06.04.2015 had declined to entertain the challenge
to the tender process since the work order was already
implemented even as on the date when notice was issued in the
writ petition on 08.09.2014.
11. Even that be so, since the supply order had been issued
in favour of the appellant, the supplies will have to conform to
the terms and conditions failing which the official respondents
in any event would have the right to proceed against the
appellant pursuant to the terms of contract. Such proceeding in
any event will have to be conducted after providing opportunity
to the appellant. At this stage, no such process has been
conducted. As such the recovery of the amount ordered is
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premature. The lacuna noticed by the inquiry committee
relatable to the appellant is that, appellant has not updated the
software and that the training of the teachers for two days as
agreed has not been conducted. In that regard, the explanation
putforth by the learned counsel for the appellant is that the
appellant though was willing to comply with the terms of supply
order, the same could not be done in view of the statusquo
order dated 08.09.2014 passed by the High Court which was in
force during the pendency of writ petition. To that extent, we
find the explanation to be justified but the appellant cannot be
absolved of their obligation and they will have to perform the
same at least at this stage and the payment towards that will be
subject to compliance. Hence, the appellant shall undertake the
upgrading of software as agreed under the contract and also
impart training to the teachers. However, at this distant point
of time if the same is not technically and practically feasible,
the appellant cannot be allowed to enrich themselves to that
extent and the proportionate amount will be deductible after
following due process. However, the entire payment for the
supplies made also cannot be recalled as ordered by the High
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Court since the cost of equipment already installed cannot be
denied.
12. Further, with regard to the statement contained in the
inquiry report relating to the purchase made by the various
Zilla Parishads, there is no clear finding in the report as to
whether the payment of the price as quoted by the appellant is
justified or if it is exorbitant and whether over quoted amount
is approved. Be that as it may, the supply of Elearning kits
being of different types, the further details relating to the
configuration; the features; the brand and such other technical
details are necessary to compare the different sets of devices
supplied which is not an exercise that can be done in a
proceeding of the present nature, but it is left to the official
respondents to look into that aspect.
13. In that circumstance, the withdrawal of the payment
made to the appellant and restraint against balance payment
without reference to all these aspects would not be justified.
However, the ends of justice would be met if liberty is reserved
to the respondent No.4 to provide opportunity to the appellant
and the Zilla Parishad concerned and take stock of the actual
supplies made by the appellant. In that regard, an appropriate
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conclusion shall be reached as to whether the payment made is
commensurate to the supplies already made by the appellant in
furtherance to the terms agreed in the contract. Further, with
regard to the upgradation of the software agreed under the
contract the same be also completed. With regard to the
determination to be made in that regard, if the appellant has
any grievance, liberty is reserved to avail the remedy in
accordance with law before the appropriate forum. If the
upgradation and training is undertaken and the appellant
justifies the balance payment, there shall be no impediment to
release the same.
14. It is relevant to take note that Mr. Ruchesh Jaivanshi,
the then CEO of Zilla Parishad was before this Court in SLP D.
No.13869/2018 assailing the same order dated 24.02.2018.
This Court by order dated 09.05.2018 clarified that all
proceedings referred in paragraph 12 of the impugned
judgment will be with the participation of the petitioner therein
and the proceedings shall be taken up on their own merits
being uninfluenced by any observations in the impugned
judgment. The said order will apply in so far the proceedings if
any in the action contemplated against the then CEO. Insofar
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as the appellant herein who was a party to the writ petition, all
action shall be in the manner as indicated herein.
15. In the light of the above, the order dated 24.02.2018
passed by the High Court, impugned herein is not sustainable
and the same is set aside.
16. The appeal is accordingly allowed subject to the above
observations. There shall be no order as to costs.
17. Pending applications, if any, shall stand disposed of.
……………………….J.
(HEMANT GUPTA)
……………………….J.
(A.S. BOPANNA)
New Delhi,
August 17, 2021
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