Commr. of police, Bombay v. Gordhandas Bhanji

Judgment

4. State of Telangana, Represented by Principal Secretary, Medical Health and Family Welfare Secretariat, Telangana The Superintendent, District Head Quarter Hospitals Mahmudabad District, Telangana The Commissioner, Telangana Vaidya Vidhana Parishad Koti, Hyderabad District Collector, Mahmudabad District ...RESPONDENTS

Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to(i) to issue an appropriate writ, order or direction more particularly in the nature of Mandamus to declare the impugned Termination Order vide RC-No.21-1IIHFMS/2023 dated 01.08.2023, whereby the Petitioner l'.1o.1 Firms services were terminated without considering the Clarification Letler dated 141712023 issued by Petitioner No.1 Firm as iltegal arbitrary, unconslitutional, violative of principles of natural justice, equity and integrity and violative of Article 14 and 21 of the constitution of lndia and consequently set asirle the impugned Termination Orders vide RC.No.21- 1llHFMSl2O23 daled O1lO8l2O23. lA NO: 'l OF 2023 Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High court may be preased to suspend the lmpugned rermination order vide RC.No.21-1IIHFMS/2023 dated 01logl2o23 issued by Respondent No. 2, pending disposar of main writ petition. counsel for Petitioner : sRl A.vENKATESH for SRI GANDHAM DURGA BosE Counsel for the Respondents No.1,2&4 : Gp FOR MEOICAL HEALTH FW Counsel for the Respondents No.3 : SRI M.p.K.ADlTyA, SC FOR TWp The Court made the followiirg: ORDER HON'BLE SRI JUSTICE NAGESH BHEEMAPAXA WRIT PETITION No.2L342 OF 2023 ORDER: The l"t petitioner, provider of security services, housekeeping and sanitation services, on outsourcing basis, to various governmental and private entities was declared Ll bidder pursuant to the e-procurement notification dated O2.O7.2O22 for provision of IHFMS in Communit5r Health C€ntres (CHC) Gudur and Garla for ttrree years from 2022-23 to 2024-25. They were awarded contract on 07.71.2022 for providing 1) sanitation & pest control sen'ice 2) securit5r services and 3) patient care services at 23 bedded CHC Gudur and 30 bedded CHC, Garla. While things stood thus, the Security Association of Telangana (SAT) ude letter dated 0I.06-2023 addressed to the 2nd respondent alleged that the l"t petitioner had entered into an MoU with M/s Rajdeep Enterprises who got declared as Ll and awarded contract in tender document dated

02.11.2022 for providing IHFMS at Government Medical College, Mahabubabad on the strength of the MoU for pest control & PASARA licence which is nothing but violation of tender condition 8.3.4 and 8.3.5. Based on which, t}:re 2d respondent issued letter dated 13.07.2O23 for which, the lst petitioner clarified oo 14.07 -2O23 that they bid only for five hospitals and 2 accordingly, tl.ey submitted undertaking while entering the agreement with hospital as per Condition g.3.5 ald the allegations levelled by SAT are misleading as they have entered MoU with M/s Rajdeep Enterprises only for pest Control Servicrs and not for securit5r or sanitation as per the eligibility criteria mentioned at Conditions 4.2 | 4.2. I / 4.2.2 / 9.3.5; they are not bidders nor agreement was entered in the name of the lst petitioner for six hospitals. Dissatisfied, the 2"a respondent issued termination letter dated O1.O8.2O23, impugned in this Writ Petition, which according to petitioners is violation of principles of natural justice. On the same day, petitioners, it is stated, made a representation requesting to cancel termination order, but the same was not considered.

2. l,earned Senior Counsel Sri A- Venkatesh appearing for Sri Durga Bose Gandham submits that the l"t petitioner Erm had entered into MoU with M/s Rajdeep Enterprises only for provision of pest control licence purpose under Condition a -2.3(il of Tender notification and not under Conditi on 4.2 of tender notification which has to be read independently from Condition 4.2.311].. Further, it is argued that MoU referred to in Condition 4.2.31il, specifically indicates that MoU has to be provided as per Annexure S attached to tender 3 notification while MoU referred to in Condition 4.2, 8.3.4 and

8.3.5 does not provide any reference to Annexure-S, therefore, MoU issued under Condition 4.2.3(i) to M/s Rajdeep Enterprises was purely a technical document but does not form part of crucial documents as required under Condition 4.2 attd. 4.2.1. l,earned Senior Counsel further submitted that the l"t petitioner is neither Ll bidder nor a co-bidder with M/s Rajdeep Enterprises for the tender released with respect to GMC, Matrabubabad and M/s Rajdeep Enterprises was declared L1 because of its past experience and not because of the MoU provided by the I"t petitioner. To show the bona.,ftdes, the l"t petitioner frled Annexure-6A in respect of IHFMS in CHC, Shamshabad indicating its inability to accept the tender as they were already awarded with five works under clause 8.3.4. Therefore, the action of respondents in issuing the impugned order is blatantly tillegal, arbitraSr ald not maintainable. I,earned Senior Counsel relied on the judgment of tlre Hon'ble Supreme Court in Mohind.er Sittgh Gill rt. The Chief Election Commissioner to conGnd that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be 'etR tg78 sc as r 4 supplemented by fresh reasons in the shape of a_fEdavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. In the said judgment, it is observed further as follows: may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088: AIR 1952 SC 161 : "Public orders, publicly made, in exercise of a stat!_rtory autlority cannot be construed in the light of explanations subsequently grven by the ofhcer making the order of what he meant, or of what was in his mind, or what he intended to do. public orders made by pubtic authorities are meant to have public effect and are intended to actings ald conduct of those to whom they are addressed arrd must be construed objectively with reference to the talguage us(:d in the order itself." "fielt Or<lers are not like old wine becoming better as they grow older,.

3. [rarned Government pleader for Medical, Health and Family Welfare based on the counter filed by the 2d respondent submits that SAT gave written complaint dated 07.06.2C23 stating that the lst petitioner illegally and unlawfully entered into an agreement / MOU with R4i. Deep Enterprises by violhting IHFMS guidetines which would have been followed as mandatory in e-procurement tender system; at the time of participating in tender bid, the lst petitioaer had already given written consent as per Annexure 6 as on 07 .11.2022 stating that in case it is found later that petitioners 5 entered into agreements / MoU for more ttran five IHFMS works, they would kept in blacklist duly terminating the agreement /MoU for violation of clause 8.3.4 IHFMS guidelines. It is argued that, admittedly, the l st petitioner along with M/s Raj Deep Enterprises entered MoU with the GMC, Mahabubabad for pest control services and because of the said agreement, M,/s Raj Deep Enterprises was declared L1 pursuant to tender dated O2.L1.2O22. To prove the same, tJle 2"d respondent along with counter filed material papers which include at pa€e 31 to 33 t1le agreement signed on 21.01.2023 between the Principal, GMC, Mahabubad and M/s Rajdeep Enterprises ald the MoU (Annexure 5) dated 25-1L.2O22 between M/s Rajdeep Enterprises (l.ead Member) and the lst petitioner (Member for Pest Control) for providing pest control services, based on which, M/s Rajdeep Enterprises was awarded contract in respect of GMC, Mahabubabad. Learned Government Pleader therefore, submits that in view of the same, as per written consent in the MoU (Annexure-6), the impugrred termination order is right and arbitrary.

4. Having heard learned counsel on either side and having perused the terms and conditions of the notification and other material placed on record, it is discernible that the main 6 argument of learned Senior Counsel is that Condition 4.2 dtd not require pest control services and it speaks only about sanitation and securigr services; the said Condition should be read in isolation but not in conjunction with Condition 4.2.3 which prescribes production of supportive documents. At this juncture, a perusal of tender notification.particularly Condition

1.1.1 shows the components of IHFMS as l) sanitation and pest control services, 2) security services and 3) patient care services. Condition No.4 deals with eligibility criteria; clause 4.2 dea.Is udth past experience, likewise, clause 4.2.3 deals with submission of valid supportive docurnents. Clause a.2.3(i) is cornmercial pesticid.e applicator licence obtained fr.om controlling authority to carr5r out tJle busirless or MoU with agency having licence (as per Annexure-S). Tender document itseE shows that IHFMS includes sanitation and pest control services. Hence, the argument of learned Senior Counsel tJlat MoU which was entered by the l"t petitioaer firm with M/s Rajdeep Enterprises was not under Clause 4.2 and g.3.5 but was given under Clause 4.2.3(il and it does not form part of crucial documents cannot be countenanced. Clauses mentioned in Condition No.4 shall be read as a whole. The further zLrgument was that M/s Rajdeep Enterprises was declared Ll based on its past performance but not on the MoU 7 submitted as Annexure 5. To rebut this argument, the 2'd respondent, along with ttre counter, enclosed certain documents, including MoU between M/s Rajdeep Enterprises and the lst petitioner based on which M/s Rajdeep Enterprises was declared L1 in respect of GMC, Mahabubabad fulfilling Clause 4.2.3111. The factum of entering into the said MoU was also not denied by petitioners. In view of the same, it is clear that the 1st petitioner had quoted for more than five hospitals and became Ll for more than five hospitals and now, it was proved that he also entered MoU with M/s Rajdeep Enterprises for providing pest control services to GMC,Mahabubabad which is t-Ile 66 hospital, violating Conditions 8'3'4 and 8'3'5 of tender notification, hence, the termination order calnot be found fault with- The judgment relied on by the learned Senior

5. Counsel it Mohinder Singh Gitls's case is not applicable to the facts of the case for Condition 8.3.4 itself stipulates that the 1't petitioner would be blacklisted if found later that they had entered into agreement for more than five hospita-ls' Another contention raised by learned Senior 6. Counsel is that the 2.,d respondent without arranging any alternative services for the patients in the hospita-ls' issued the , ) 8 termination order, which, in turn, may cause great inconvenience to patients. In view of the same, while granting time to file counter in that regafd, this Court by order dated o8'o8'2o23 suspended the termination ord.er for four weeks. Now, it is clarified in the counter that after termination order passed against petitioners, the 2od respondent had already taken alternative measures for providing seryices to patients in CHC at Garla and Gudur and the authorities are in the process of issuing fresh tender notification. However, suppressing these facts, petitioners approached this Court and obtained interim order, hence sought to vacate tl e said order. Taking into consideration the totality of circumstances, this Court is of the opinion that Writ petition is liable to be dismissed. 7 The Writ petition is accordingly, dismissed. consequently, the interim order stands vacated automatically. No costs. //TRUE COPY// ,^o-:3+^hI''+H"l#nH '[ '\-_-- ] I fo, 1 2 t one cc to SRIGANDHAM DURGA "... *rl,"l IU,ir*i:rB[ FoR MEDT.AL ".^.;;;:;ffi ; to sRI M'P'K'AD,rYA SECTION OFFICER toPUCl urt for the State of SC for Telanga na VaidyaVidhana parishad ,8rir".? W

4. Two CD Copies. 8SK GJP HIGH COIJRT DATED:28l02t2lZs THs S )k a- J t: \, -.//. 0I "tUrV 26 ( i, ORDER WP.No.21342 of 2023 DISMISSING THE WRIT PETITION WITHOUT COSTS 7 v,), L, ,1