Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.558 of 2013 ====================================================== M/S Sharda Construction, a Partnership Firm Having Its Office At New Area, Maharajganj Road, Aurangabad, Bihar through its parter Sri Kaushal Kumar Singh, S/O Late Ambika Narayan Singh, R/O New Area , Aurangabad, P.S.&Distt-Aurangabad(Bihar) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Secretary, Rural Works Department , Government Of Bihar, Patna 2. The Secretary, Rural Works Department , Government Of Bihar, Patna 3. The Engineer-In-Chief, Rural Works Department, Government Of Bihar, Patna 4. The Chief Engineer-1, Rural Works Department , Govt. Of Bihar, Patna 5. The Superintending Engineer,(Headquarter), Rural Works Department, Govt. Of Bihar, Patna 6. The Superintending Engineer, Rural Works Department, Works Circle, Sasaram 7. The Executive Engineer, Rural Works Department , Works Division, Bhabhua ====================================================== .... .... Respondent/s With Civil Writ Jurisdiction Case No.1704 of 2013 ====================================================== M/S Tirupati Balaji Enterprises through its Proprietor Yogendra Sharma S/O Late Thakur Sharma R/O Vill - Newari, P.S. - Makhdumpur, District - Jehanabad .... .... Petitioner/s Versus 1. The State Of Bihar through the Secretary, Rural Works Department, Government of Bihar, Patna 2. The Chief Engineer-1, Rural Works Department, Government Of Bihar, 2 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 2 / 33 Patna 3. The Technical Superintendent, the Chief Engineer-1, Rural Works Department, Government of Bihar, Patna 4. The Superintending Engineer, Rural Works Department, RWD Work Circle, Aurangabad 5. The Executive Engineer, Rural Works Department, RWD Work Division, Jehanabad ====================================================== .... .... Respondent/s with Civil Writ Jurisdiction Case No.2227 of 2013 ====================================================== Arvind Kumar S/O Sri Raghunandan Prasad Resident Of Village Chansandi, P.O. Nimthu, P.S. Nimchak Bathani, District Gaya. .... .... Petitioner/s Versus 1. The State Of Bihar through the Secretary, Rural Works Department, Government of Bihar, Patna. 2. The Engineer in Chief, Rural Works Department, Government of Bihar, Patna. 3. The Chief Engineer-1, Patna Rural Works Department, Patna. 4. The Superintending Engineer (Head Quarter), Rural Works Department, Govt. Of Bihar, Patna. 5. The Superintending Engineer, Rural Works Department, R.W.D. Work Circle, Aurangabad. 6. The Executive Engineer, Rural Works Department, Work Division, Aurangabad. ====================================================== .... .... Respondent/s with Civil Writ Jurisdiction Case No.251 of 2013 ====================================================== 3 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 3 / 33 M/S Sri Ram Enterprises, A Partnership Firm Having Its Office At 5th Floor, Sadbhawna, A.C. Road, Bhagalpur, Post Office And District- Bhagalpur Through Its Authorized Representative Sri Sumit Drolia S/O Sri Kailash Drolia, R/O Station Chowk, P.S. Tatarpur, District- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary cum Commissioner Department of Rural Works, Government of Bihar, Patna 2. The Engineer in Chief, Department of Rural Works, Govt. Of Bihar, Patna 3. The Chief Engineer-Ii, Department of Rural Works, Govt. Of Bihar, Patna 4. The Superintending Engineer, Department of Rural Works, Govt. Of Bihar, Purnia 5. The Executive Engineer, Department of Rural Works, Baisi, Purnia 6. M/S Shiv Durga Cons. & Engg. Pvt. Ltd., Bawan Bigha, Deoghar
Legal Reasoning
through it's Proprietor Shri Sanjeev Chowdhary ====================================================== .... .... Respondent/s with Civil Writ Jurisdiction Case No.5868 of 2013 ====================================================== M/S Tirupati Balaji Enterprises through its Proprietor Yogendra Sharma S/O Late Thakur Sharma R/O Vill - Newari, P.S. - Makhdumpur, District - Jehanabad .... .... Petitioner/s Versus 1. The State Of Bihar through the Secretary, Rural Works Department, Government of Bihar, Patna 2 The Chief Engineer-1, Rural Works Department, Government Of Bihar, Patna 3 The Technical Superintendent, the Chief Engineer-1, Rural Works 4 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 4 / 33 Department, Government of Bihar, Patna 4 The Superintending Engineer, Rural Works Department, RWD Work Circle, Aurangabad 5 The Executive Engineer, Rural Works Department, RWD Work Division, Jehanabad .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.5870 of 2013 ====================================================== M/S Tirupati Balaji Enterprises through its Proprietor Yogendra Sharma S/O Late Thakur Sharma R/O Vill - Newari, P.S. - Makhdumpur, District - Jehanabad .... .... Petitioner/s Versus 1. The State Of Bihar through the Secretary, Rural Works Department, Government of Bihar, Patna 2. The Chief Engineer-1, Rural Works Department, Government Of Bihar, Patna 3. The Technical Superintendent, the Chief Engineer-1, Rural Works Department, Government of Bihar, Patna 4. The Superintending Engineer, Rural Works Department, RWD Work Circle, Aurangabad 5. The Executive Engineer, Rural Works Department, RWD Work Division, Jehanabad ====================================================== .... .... Respondent/s with Civil Writ Jurisdiction Case No.5866 of 2013 ====================================================== M/S Sri Ram Enterprises, A Partnership Firm Having Its Office At 5th Floor, Sadbhawna, A.C. Road, Bhagalpur, Post Office And District- Bhagalpur Through Its Authorized Representative Sri Giriraj Sharma S/O Late Ammi Lal Sharma, R/O Jagarnath Suri Lane Mandroja, P.O. Bhagalpur P.S. Tatarpur, District- Bhagalpur 5 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 5 / 33 .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary cum Commissioner Department of Rural Works, Government of Bihar, Patna 2. The Engineer in Chief, Department of Rural Works, Govt. Of Bihar, Patna 3. The Chief Engineer-Ii, Department of Rural Works, Govt. Of Bihar, Patna 4. The Superintending Engineer, Department of Rural Works, Govt. Of Bihar, Purnia 5. The Executive Engineer, Department of Rural Works, Baisi, Purnia 6. M/S Shiv Durga Cons. & Engg. Pvt. Ltd., through the Director, Shri Sanjeev Chowdhary S/o Late Baleshwar Chaudhary, R/o Bhattacharya Colony, 52 Bawan Bigha, Caster Town, Deoghar .... .... Respondent/s ====================================================== With Civil Writ Jurisdiction Case No.5867 of 2013 ====================================================== M/S Sri Ram Enterprises, a Partnership Firm Having Its Office At 5th Floor, Sadbhawna, A.C. Road, Bhagalpur, Post Office And District- Bhagalpur Through Its Authorized Representative Sri Giriraj Sharma S/O Late Ammi Lal Sharma, R/O Jagarnath Suri Lane Mandroja, P.O. Bhagalpur P.S. Tatarpur, District- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary cum Commissioner Department of Rural Works, Government of Bihar, Patna 2. The Engineer in Chief, Department of Rural Works, Govt. Of Bihar, Patna 3. The Chief Engineer-Ii, Department of Rural Works, Govt. Of Bihar, Patna 4. The Superintending Engineer, Department of Rural Works, Govt. Of Bihar, Purnia 6 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 6 / 33 5. The Executive Engineer, Department of Rural Works, Baisi, Purnia 6. M/S Shiv Durga Cons. & Engg. Pvt. Ltd., through its Director Shri Sanjeev Chowdhary, S/o Late Baleshwar Chaudhary, R/o Bhattacharya Colony, 52 Bawan Bigha, Caster Town, Deoghar ====================================================== .... .... Respondent/s With Civil Writ Jurisdiction Case No.5869 of 2013 ====================================================== M/S Sri Ram Enterprises, a Partnership Firm having its Office at 5th Floor, Sadbhawna, A.C. Road, Bhagalpur, Post Office and District- Bhagalpur through its Authorized Representative Sri Giriraj Sharma S/O Late Ammi Lal Sharma, R/O Jagarnath Suri Lane Mandroja, P.O. Bhagalpur P.S. Tatarpur, District- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary cum Commissioner Department of Rural Works, Government of Bihar, Patna 2. The Engineer in Chief, Department of Rural Works, Govt. Of Bihar, Patna 3. The Chief Engineer-II, Department of Rural Works, Govt. Of Bihar, Patna 4. The Superintending Engineer, Department of Rural Works, Govt. Of Bihar, Purnia 5. The Executive Engineer, Department of Rural Works, Baisi, Purnia 6. M/S Indian Progressive Construction Pvt. Ltd. through its Director Umesh Kr. Pandey, s/o Late Dinanath Pandey, R/o Pokhana Tilla, B.N.Jha Road, Deoghar, Office Address- Astha Bhawan , near Gita Devi DAV School, Caster Town, Deoghar ====================================================== .... .... Respondent/s Appearance : (In CWJC No.558 of 2013) For the Petitioner/s : Mr. Raj Kishore Prasad For the Respondent No.8: M/s. Bindhyachal Singh & Sushil Kumar 7 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 7 / 33 Singh For the State : Mr. Ravindra Ray, AC to GP 22 (In CWJC No.1704 of 2013) For the Petitioner/s : Mr. Md. Nadim Seraj For the State : Mr. Devendra Kr Sinha AAG-2 Mr. Alok Kr. Rahi, AC to AAG-2 (In CWJC No.2227 of 2013) For the Petitioner/s : Mr. Shailesh Kumar For the Respondent/s : Mr. Ravindra Kr Choubey SC-8 Ms. Minu Kumari and Mr. Ashok Kumar, ACs to SC-8 (In CWJC No.251 of 2013) For the Petitioner/s : Mr. Gautam Kumar Kejariwal & Mr. Akash Chaturvedi For the State : Mr. Prashant Kumar, AC to GP-1 & Mr. Pathak Dhananjay Kumar (In CWJC No.5868 of 2013) For the Petitioner/s : Mr. Nadim Seraj For the State : Mr. Shiv Kumar, AC to GA 7 (In CWJC No.5870 of 2013) For the Petitioner/s : Mr. Md. Nadim Seraj For the State : Mr. Ranjeet Kumar, Ac to AAG-8. (In CWJC No.5866 of 2013) For the Petitioner/s : Mr. Gautam Kumar Kejariwal For the State : Mr. Rajeev Lochan, AC to GA-9 For Rest. 6 : M/s. Umesh Pd. Singh, Sr. Advocate & Pathak Dhananjay Kumar (In CWJC No.5867 of 2013) For the Petitioner/s : Mr. Gautam Kumar Kejariwal For the State : Mr. Ranjeet Kumar, AC to AAG-8. (In CWJC No.5869 of 2013) For the Petitioner/s : Mr. Gautam Kumar Kejariwal For the State : Mr. Bindhyachal Rai, AC to GA-8 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA 8 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 8 / 33 ORAL ORDER 8 05-04-2013 Heard learned counsel for the petitioners in all the writ applications as also learned counsels for the State and the private respondents in those cases in which they have been impleaded. All the writ applications raise common issues and they have, accordingly, been heard together and are
Decision
being disposed of by this common order. The grievance of the petitioners is that the petitioners have been disqualified by the Tender Committee at the stage of technical bid with respect to various notices inviting tender issued by the Rural Works Department, Government of Bihar, pertaining to construction of roads and in come cases bridge work also. The ground of rejection is that the petitioners do not hold labour licence in terms of the tender notice/SBD. The facts involved in the present matter are not required to be noticed in detail in view of the essentially legal nature of the issues involved. However, briefly the facts of CWJC No. 558/2013 are being stated. The Executive Engineer, Rural Works Department, Works Division, Bhabhua issued e-tender for 9 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 9 / 33 construction of road in Chainpur Block under the district of Bhabhua. The estimated cost of the work was Rs. 486.32 lacs and the period of completion of work was 18 months from the date of execution of the agreement. The petitioner along with other contractors participated in the tender and submitted the bid in time. On 24.12.2012 the Technical Evaluation Committee headed by the Engineer-in-Chief held that the petitioner was disqualified in the technical bid in terms of Clause 1.1 (c ) of the Criteria of Eligibility for issue of Tender Document. Clause 1.1 (c ) provided that labour licence (renewed) in the State of Bihar was required to be submitted at the time of submission of the bid duly attested by a Gazetted Officer on photo copy in case of contractor registered with the State Government. However, with respect to a contractor registered with Central Government/ any other State Government or any PSU as also any agency of national or international repute who did not have the registration of the concerned Department for issuance of LOA and other documents including the latest labour licence in State of Bihar, they had the facility to submit the same after letter of acceptance. Admittedly, the petitioner has a labour licence duly renewed in the State of Bihar issued in Form-6 by the Licensing Officer, Aurangabad dated 16.7.2012 which is 10 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 10 / 33 valid up-to 11.7.2013. In this regard it is also pointed out that the petitioner had submitted another tender before the Executive Engineer, Road Construction Department, Road Division, Bhabhua on the basis of the same labour licence and his technical bid was considered and the petitioner was also declared as the successful bidder without rejecting the same on the ground as in the present tender notice. Learned counsels for the petitioners submit that the rejection of the tender documents of the petitioners, although they have valid labour licence in the State of Bihar though not in the concerned district for which the tender has been invited, is not justified as the requirement in the tender notice is only of a labour licence (renewed) in the State of Bihar. It is submitted that it is not open to the Technical Evaluation Committee to override what has been stated in the SBD and their action is not justified on a plain reading of the said condition and is in fact contrary to the law relating to the issuance of such a labour licence. It is also contended by learned counsel for the petitioners that the rejection of the tender in view of the legal provisions for the issuance of such labour licence would amount to hostile discrimination against the petitioners and 11 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 11 / 33 arbitrary action on the part of the respondents. In this regard, learned counsels for the petitioners rely upon the various provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and also the Bihar Contract Labour (Regulation and Abolition) Rules, 1972. Reliance in this regard is made to Sections 2(c), (e) and (g), 11,12 and 20 of the Act which are in the following terms:- “2(c ) “contractor”, in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor;” “(e) “establishment” means – (i) any office or department of the Government or a local authority, or (ii) any place where any industry, trade, business, manufacture or occupation is carried on;” “(g) “principal employer” means – (i) in relation to any office or department of the 12 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 12 / 33 Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf, (ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named, (iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named, (iv) in any other establishment, any person responsible for the supervision and control of the establishment.” “11. Appointment of licensing officers.- The appropriate Government may, by an order notified in the official Gazette,- (a) appoint such persons, being Gazetted Officers of Government, as it thinks fit to be licensing officers for the purposes of this Chapter; and (b) define the limits, within which a licensing 13 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 13 / 33 officer shall exercise the powers conferred on licensing officers by or under this Act.” “12. Licensing of contractors.- (1) With effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer. (2) Subject to the provisions of this Act, a licence under sub-section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed.” 14 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 14 / 33 “20. Liberty of principal employer in certain cases. – (1) If any amenity required to be provided under section 16, Section 17, Section 18 or Section 19 for the benefit of the contract labour employed in an establishment is not provided by the contractor within the time prescribed therefor, such amenity shall be provided by the principal employer within such time as may be prescribed. (2) All expenses incurred by the principal employer in providing the amenity may be recovered by the principal employer from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.” Learned counsels also rely upon Rules 21(1) and (2) and 29 as also forms 5 and 6 to the Rules. It is submitted by learned counsels for the petitioners that from perusal of the aforesaid provisions of the Act and the Rules, it is evident that the labour licence which are issued under the 15 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 15 / 33 Contract Labour Act and Bihar Contract Labour Rules are with respect to specific establishment, which may be a Department of Government, in relation to which the applicant for the licence is employed as a contractor and the application for such licence has to be accompanied by a certificate of the principal employer in form V stating that the applicant has been employed as a contractor in relation to that establishment and further that the principal employer shall be bound by all the provisions of the Act and the Rules. It is thus, contended that a labour licence under the aforesaid Act and the Bihar Rules is for a specific establishment and with respect to each establishment a separate labour licence has to be issued. Further, the licence is to be applied for before the Licensing Officer of the area in which the establishment is located and it is not that a labour licence issued by Licensing Officer of the concerned District is valid for entire district with respect to all other establishments in the said district. Thus if a person is not already a contractor for the establishment in question, he cannot produce a labour licence with respect to that establishment or even for that district or with respect to any other establishment in that district, if he is not already working with respect to an establishment in the said 16 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 16 / 33 district. It is urged by learned counsels that for the said reasons, the SBD provided regarding possession of a labour licence (renewed) in the State of Bihar and not restricted to either the district or particular establishment since any such stipulation would be quite contrary to the scheme of the Contract Labour Act and the Bihar Rules and would also lead to discrimination against those who are not already working for the particular establishment in the particular district. It is also urged that any other interpretation of the conditions in the SBD would tantamount to creating a monopoly in favour of the contractors who are already working in the district and against other contractors in the State of Bihar who are otherwise eligible and had labour licence for working in other projects within the State. It is also contended by learned counsels that the discrimination would be more hostile considering the fact that the contractors of other States are not required to file the labour licence at the time of bidding and thus if the interpretation as sought to be given by the respondents is accepted then it would be a competition between the contractors already working in the particular establishment and the 17 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 17 / 33 contractors from outside the State or those registered with the Central Government, PSU or any Agency of National or International repute. Such, according to learned counsels, is neither the scheme of the SBD in which the condition has been laid down nor a fair and just constitutional interpretation of the said conditions. Learned counsel for the respondents, on the other hand, submits that on a reasonable interpretation of the provisions of the SBD, it has to be held that the rejection of the technical bid of the petitioners is fully justified. It is submitted that the petitioners not having labour licence for the concerned district, they cannot be permitted to participate in the tender process. It is urged by learned counsel that there is noting wrong in preferring a contractor in the particular establishment who holds a labour licence in relation to that particular establishment as he would be more knowledgeable about the work done and would have better infrastructure available in the district for the purpose of work which cannot be the case with contractors who come from outside the district and do not have labour licence with respect to that particular district. Learned counsel for the respondents have also placed reliance on a decision of a learned single Judge of 18 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 18 / 33 this Court in CWJC No. 20785/2012 (M/s Sharda Construction Vs. State of Bihar and others) in which in similar situation, it was held as follows: “Considering the rival submissions of the parties and their respective pleading/affidavits, it would appear that the work in question is to be carried on in the Bhabhua division. The Labour Superintendent, Bhabhua has not issued the license registration certificate in favour of the petitioner. The same was issued by the Labour Superintendent, Aurangabad division and on such ground the technical bid of the petitioner was rejected where the certificate issued in favour of the successful bidder was issued by the Labour Superintendent, Dalmianagar who was having the additional charge of Labour Superintendent of Kaimur as well, and as such, the certificate issued by the Labour Superintendent, Dalmianagar was valid certificate in favour of the successful bidder. As regards the submissions advanced on behalf of the petitioner that the terms of tender notice simply shows that it should be renewed from the State of Bihar, and as 19 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 19 / 33 such, the certificate granted by the Labour Superintendent, Aurangabad was valid cannot be accepted since the work is to be carried on at Bhabhua. Therefore, the competent authority for issuing the certificate was the Labour Superintendent, Bhabhua. For the reasons and discussions made above, I do not find any merit in the writ application. It is accordingly dismissed.” It is thus, submitted by learned counsel that the issue stands already decided by this Court and the present writ applications deserve to be dismissed on that ground alone. In this regard learned counsel refers to a decision of the Supreme Court in the case of Official Liquidator Vs. Dayanand and others: (2008) 10 SCC 1, in para-90 of which it has been held as follows:- “90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow 20 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 20 / 33 and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.” There can hardly be any doubt that previous decision of a coordinate Bench binds the subsequent Bench in view of the rule of stare decisis in the doctrine of precedents. However, the said rule contains an exception which is the 21 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 21 / 33 principle of doctrine of per incuriam; but the said principle cannot be applied merely to disagree with what had been decided by an earlier judgment except on the very limited ground that are available, namely, whether the earlier decision has noticed the previous binding authority or failed to notice statutory provisions which has direct bearing on the decision of the case. In this regard reliance may be made to paras 8 and 9 of the decision of the Supreme Court in the case of State of Bihar Vrs. Kalika Kuer alias Kalika Singh and ors: (2003) 5 SCC 448 which is in the following terms: “8. In State of U.P. V. Synthetics and Chemicals Ltd.: (1991) 4 SCC 139 this Court observed: „Incuria‟ literally means „carelessness‟. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law‟ is avoided and ignored if it is rendered, „in ignoratium of a statute or other binding authority‟. (Young V. Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while 22 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 22 / 33 interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law”. 9. In Fuerst Day Lawson Ltd. V. Jindal Exports Ltd. : (2001) 6 SCC 356 this Court observed: A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment „per incuriam‟. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.” From a perusal of the earlier decision of this Court dated 10.12.2012 in CWJC No. 20785/2012, it appears 23 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 23 / 33 that there is no reference at all to the provisions of law under which the labour licence is issued either in the arguments of learned counsels for the parties or in the final consideration of the issue by this Court. It appears from the said decision that this Court had proceeded on the assumption that a labour licence can be obtained with respect to any district by applying before the licensing authority of the said district and therefore not producing the labour licence of the said district would rightly disqualify the tenderer from being awarded the contract. The provisions of the Contract Labour (Regulation and Abolition) Act, 1970, on the other hand, clearly show that the labour licence issued by the licensing authority of the concerned district or area is specific to a particular establishment and is not even valid for all establishments in the district concerned. Thus, the effect of a reading of the provisions of the SBD in the manner as has been done by the respondent authorities would be to restrict the competition in the tender among those contractors who are already working in the particular establishment for which the tender process has been issued and excluding all the other contractors registered with the State Government whereas the contractors from outside the State or even within the State registered with the Central Government, other State 24 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 24 / 33 Governments or PSU and agencies of national or international repute would be competent to apply. Any such interpretation, keeping in view the provisions of the Contract Labour Act and the Bihar Rules, would lead to grossly unconstitutional and arbitrary results. Thus, it is essential to look into the present matter from the perspective of the Contract Labour Act and the Bihar Rules. It is evident from the aforesaid Act that a contractor is only one in relation to an establishment and not general as per the definition of contractor given in Section 2(c ) of the Act. This has to be read with the definition of principal employer given in Clause (g) of Section 2 of the Act. Similarly, establishment has been defined in Clause 2(e) of the Act to mean any office or Department of the Government or a local authority. Thus, those definitions read with the provisions of Sections 11, 12 and 13 and the corresponding Rule 21 of the Bihar Rules, clearly go to show that labour licence is to be granted only to a contractor who is already performing work for and employed by the concerned establishment and is a contractor in relation to that establishment. The labour licence is not issued in general terms to the contractor, rather it is only on the basis of a certificate issued by the principal employer to the effect that the contractor 25 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 25 / 33 is working for that establishment. The Act also makes it clear under Section 20 that in case the contractor fails to provide amenities to the contract labours as required by Sections 16,17,18 and 19 of the Act, then the liability for the same falls upon the principal employer to provide such amenities with the power to recover the expenses incurred from the contractor. These provisions go to show that there is nothing in the Act which permits the labour licence to be taken from any and every district at the sweet will of the contractor. The licence can only be issued to the contractor if already working with a particular establishment after obtaining a certificate from the principal employer in that regard. Seen from the aforesaid angle, it is evident that the interpretation put by the respondents on Clause 1.1(c ) of the SBD and similar clauses of the notice inviting tender to the requirement of labour licence (renewed) in the State of Bihar, is contrary to what was intended by the State Government while laying down such conditions in the SBD to be followed for all such tenders. The requirement of labour licence for the particular district or establishment has been insisted upon by the Technical Bid Committee in the matter without the same being borne out either in the notice inviting tender or the concerned SBD clause 26 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 26 / 33 without keeping in view the statutory provisions in that regard which, prima facie, appears to have been kept in mind by the State Government while laying down the requirement of Labour Licence (renewed) in the State of Bihar. It is thus, evident that the action of the respondents in disqualifying the petitioners only on the ground of not having the labour licence for the concerned establishment is contrary to the scheme of the provisions of SBD and not in consonance with the Contract Labour (Regulation and Abolition) Act, 1970 read with the Bihar Contract Labour (Regulation and Abolition) Rules, 1972. The decisions of the Technical Bid Committee are thus contrary to law and cannot stand. They are, accordingly, quashed. I may here refer to certain other submissions made by learned counsels for the respondents. One of the submissions is that the petitioner M/s. Sri Ram Enterprises in CWJC Nos. 251/2013, 5866/2013, 5867/2013 and 5869/2013 by letter dated 22.1.2013 to the respondents requested for return of the earnest money deposit by way of bank guarantee with respect to the tenders involved in the said cases and thus it cannot be permitted the challenge the tender process. In response to the same it is submitted by learned counsel for the petitioner in those cases that due to ignorance of the effect of such demand, 27 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 27 / 33 the petitioner of those cases had sought return of the bank guarantees, but immediately upon learning about such consequences it had by letter dated 12.2.2013 withdrawn its earlier request and further made a request to the authorities not to release the bank guarantees in all the aforesaid cases. It is thus, submitted by learned counsel for the petitioner that since it has not really received the bank guarantees towards EMD and has withdrawn the earlier letter, it cannot be disqualified from challenging the action of the respondents in the writ petition. On a consideration of the aforesaid circumstances and facts brought on the record, I find force in the submission of learned counsel for the petitioner in the aforesaid four writ petitions. The EMD not having been actually received by the petitioner rather the request having been withdrawn, the petitioner continues to be eligible to maintain the said writ applications. Certain other submissions have been made by some of the learned counsels for the private respondents. In CWJC No. 5869/2013, it is submitted by learned counsel that the State respondents had already entered into agreement with the private respondent on 11.1.2013 whereas the stay order dated 7.1.2013 was really placed before the official respondents on 28 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 28 / 33 14.1.2013 and the private respondent was informed about the same by the Executive Engineer by his letter dated 22.1.2013 which was received by him on 27.1.2013 and in the meantime he has done about 25-30% of the work that has been allotted to him. It is thus urged by learned counsel that he cannot be allowed to suffer. This Court does not find any force in the submission of learned counsel for the private respondents in this regard. It is evident that the agreement itself was made four days after the said order dated 7.1.2013. The State authorities were represented before this Court when the said order was passed and it was not open to them to flout the order by entering into agreement for the said purpose and any such action of the State- respondents who are one of the parties to the agreement, would be non-est in the eye of law and thus the agreement itself cannot stand and no benefit can be sought by the private respondent by virtue of any such agreement which is in violation of the order of this Court. Similarly, in CWJC No. 558/2013 the intervener-private respondent has submitted that while the work was allotted on 21.1.2013 but the interim order was issued only on 7.2.2013 and thus in the meantime he has already deposited 29 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 29 / 33 the security of Rs. 12 lacs and taken other actions which have financial involvement. It is also submitted by learned counsel for the private-respondent that the issue of work order by letter dated 21.1.2013 has not been challenged by the petitioner and thus the writ application should be dismissed. In reply learned counsel for the petitioner submits that no formal agreement has been signed by the State- respondents with the private respondent and thus there is no question of challenging the same as the writ petition itself was filed much earlier on 9.1.2013 in which he has challenged the tender process and thus any consequential action of the authorities would fall if their action in rejecting the technical bid is held to be bad. This Court is in agreement with the submission of learned counsel for the petitioner. In CWJC No. 2227/2013 a second ground of rejection has also been given by the Technical Bid Committee, namely, that the Bank certificate filed by the petitioner was a conditional certificate and contrary to Clause 4.2(i) of the SBD and thus the petitioner was disqualified. It is submitted by learned counsel for the petitioner that the Bank certificate filed by him is not really a conditional certificate rather it is substantially in terms of the form of Bank certificate provided in 30 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 30 / 33 the SBD and the last paragraph of the said certificate which is stated to be conditional, really does not make any difference as even as per the sample form of Bank certificate given in the SBD, the fact would be the same and any such certificate would not amount to a binding commitment by the bank. It is further submitted that the same is a rectifiable defect. In support of the said submission learned counsel relies upon a decision dated 21.2.2013 of this Court in the case of M/s. Hari Om Constructions Vs. The State of Bihar & ors.: CWJC No. 443 of 2013 in which it has been held as follows:- “With respect to the Certificate issued by the Bank, I find some force in the submission of learned counsel for the petitioner. It is true that the requirement is that the technical bid should be substantially responsive to the requirements of the bidding document. Further it has been clearly provided that at the stage of technical bid with respect to rectifiable defects, the bidder will be asked in writing (usually within 10 days of opening of the Technical Bid) to clarify or modify his technical bid, if necessary, with respect to any rectifiable 31 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 31 / 33 defects but the same has not been specified at all in the S.B.D. and neither of the learned counsels for the respondents has been able to show any provision of SBD which specifies the rectifiable defects. From a perusal of the format and the Bank Certificate filed by the petitioner, I find that the Bank Certificate issued to the petitioner is not so much a conditional document as it is sought to be made out as the conditional word used in the Bank Certificate is in the nature of precaution used by the Bank while issuing the certificate mentioning the factual position that there is no confirmation of sanction of the loan/limit which would be subject to the fulfilment of the terms and conditions adhered to by the Bank. It is evident from the format of the Bank Certificate under SBD that there is no specific commitment stated in the said Certificate that the overdraft/credit facility has already been granted rather it is only averred that the Bank shall be able to provide the same to the extent 32 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 32 / 33 mentioned in the certificate to meet their working capital requirements for executing the contract in question. Thus, even with the Bank Certificate under the format, it cannot be said that there is commitment by the Bank to provide the working capital requirement for executing the contract in question. Hence, in my view there being a provision for rectification of certificate during the consideration of the technical bid, the petitioner should have been provided an opportunity of rectifying the Bank Certificate.” In view of the aforesaid proposition laid down by this Court in M/s. Hari Om Construction (supra), the rejection of the technical bid on the said ground is also held to be bad. Thus, on a consideration of the entire facts and circumstances, I am of the view that the Technical Bid Committee has wrongly rejected the technical bids of the petitioners. The petitioners are entitled to have their financial bids considered and final decisions taken accordingly after opening of their financial bids. Let the same be done within 33 Patna High Court CWJC No.558 of 2013 (8) dt.05-04-2013 33 / 33 three weeks from the date of receipt/production of a copy of this order. The writ applications are allowed with the aforesaid observations and directions. S.Pandey/- (Ramesh Kumar Datta, J)