High Court
Case Details
WP(C) 3565/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. B. Banerjee, learned counsel for the petitioners. Also heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. B.K. Das, learned counsel repr esenting the respondents ONGC. The petitioners are aggrieved by the Annexure-N communication dated 15/6/2013 by which the ONGC furnished the information regarding putting the petitioner on ho liday on account of cancellation of purchase order. While doing so, circular No. 23/12 dated 10.9.2012 has also been referred to. The said circular provides for putting the vendor on holiday on account of cancellation of PO/Termination of c ontract. In the instant case, we are concerned with the two tenders bearing No. RAIML/120 08 and tender No. ARAIML/12005 floated by the ONGC. Responding to the said tende rs, the petitioner submitted his tenders. Both the tenders were valid for 90 day s from the date of opening the tender. Tender No. RAIML/12008 was submitted on 1 6.8.2012 and the date of opening the tender was fixed on 7.9.2012. Similarly, th e tender No. RAIML/12005 was submitted on 17.9.2012 and was to be opened on 21.9 .2012 with the validity period of 90 days each. Thus, the crucial date for count ing the validity period of 90 days for both the tenders were 7.9.2012 and 21.9.2 012 respectively. On acceptance of the tenders submitted by the petitioner, the ONGC issued the le tter of award on 5/12/2012 in respect of tender No. RAIML/12008 and 19/12/2012 i n respect of RAIML/12005. According to the petitioner, offer of award issued by the said two letters dated 5/12/12 and 19/12/12 was after the expiry of the vali dity period of 90 days as the postal department delivered the said two letters t o the petitioner on 10/12/12 and 21/12/2012. Countering the above stand of the petitioner, the respondents have stated in the ir counter affidavit that the letter of award having been issued on the 90th day through e-mail, irrespective of receipt of the confirmation letters by postal s ervice beyond the stipulated date of 90 days, did not have any consequence. Acco rding to the respondents, the tender documents having specified correspondences through e-mail, the obligation on the part of the respondent ONGC stood discharg ed on furnishing the information regarding award of the contract through e-mail. Although the impugned order does not question the locus standi of the petitioner or state anything regarding wrong identity of the petitioner, but in the counte r affidavit as well as in the application seeking vacation of the interim order, registered and numbered as MC 1940/2013, the respondent ONGC has questioned the locus standi of the petitioner. Referring to some of the documents annexed to t he writ petition as well as the counter affidavit, it has been stated that M/s. A.R. Enterprise i.e. the petitioner No.1 was represented by Mr. Ajit Das as the sole proprietor and later on represented by the present petitioner No.2, namely, Sanjib Phukan. Countering the above stand of the respondents, Mr. B. Banerjee, learned counsel for the petitioners submits that unless due intimation is furnished regarding se nding of the information through e-mail and that too on the last day of expiry o f the validity period, the petitioner cannot be faulted with for not opening the e-mail. He has also questioned the validity of the e-mail as the same does not contain any scanned signature of the authority which had sent the e-mail. In thi s connection, he has referred to Clause 25.0 of the terms and conditions of the tender providing for e-mail bids and the bids containing scanned signature. Acco rding to him, the e-mail sent to the petitioner ought to have contained scanned signature of the authority. Mr. G.N. Sahewalla, learned counsel for ONGC on the other hand submits that ther e being specific provision for communication through e-mail, it does not lie on the mouth of the petitioner to say that he was not obliged to peruse the e-mail. In this connection, he has referred to Clause-42 of the terms and conditions of tender providing that the purchaser would notify the successful bidder in writi ng by registered letter or by cable/telex/fax to be confirmed in writing by regi stered letter that its bid has been accepted. He has also referred to the letter of award sent through e-mail, copies of which have been annexed as Annexure-4 a
Decision
nd 5 to the counter affidavit. There is no doubt that the petitioner received the intimation regarding acceptan ce of its tenders and offering of the award through postal service beyond the va lidity period of 90 days. The letters of award dated 5/12/2012 and 19/12/2012 we re received by the petitioner through postal service on 10/12/2012 and 21/12/201 2 respectively. However, it is the plea of the ONGC authority that since due int imation was furnished to the petitioner on the 90th day i.e. before expiry of th e validity period of 90 days, irrespective of receipt of intimation through post al service, the petitioner ought to have responded to the same. As per the requirement of the tender clause, the intimations regarding acceptanc e of tender and letter of award are required to be issued before expiry of 90 da ys. However, in the instant case, the intimation was sent through e-mail on the 90th day. Admittedly, the intimations were received by the petitioner much after expiry of the validity period of 90 days on 10/12/2012 and 21/12/2012. It will be too technical to say that since the petitioner was intimated through e-mail o n the 90th day, it should have responded to the same instead of waiting beyond t he validity period of 90 days. If we go by the plea of the petitioner that the l etter sent through e-mail did not bear any scanned signature. It will also not b e conducive and / or prudent to blame the petitioner in not seeing the e-mail le tter on the respective dates i.e. 5/12/2012 and 19/12/2012. In view of the above, I am of the considered opinion that the matter requires a fresh consideration of the respondent ONGC. As regards the plea of the locus sta ndi on the part of the petitioner, the said plea being not the foundation of the impugned letter, the respondent ONGC cannot harp on the same to defend the impu gned order. As has been held by the Apex Court in M.S. Gill Vs. Election Commiss ion of India reported in (1978) 1SCC 405, an order will have to be judged as it stood on the issuance of the same and not by any development made thereafter to justify the said order. In view of the above, the writ petition is disposed of directing the respondent ONGC to pass appropriate order consistently with the observations made above and in accordance with law. The impugned order stands set aside and quashed. Upon setting aside and quashing the impugned orders, the consequence thereof inc luding entitlement of the petitioner to participate in the tender process will f ollow.