DISTRICT : KOLKATA

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE.

W.P. NO. (W) OF 2006.

In the matter of :

An application under Article 226 of the

Constitution of India.

-And-

In the matter of :

A writ in the nature of Mandamus and/or

Certiorari and /or prohibition and/or any

other appropriate writ or writs and/or

order or orders and/or direction or

directions;

-And-

In the matter of ;

Notice inviting tender issued by the

Bharat Sanchar Nigam Ltd.

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(A Government of India Enterprise)

dated __________ for execution of

renovation work of

__________________________

-And-

In the matter of :

1. (P&T) Eastern Circle Electrical

Contractors’ Association, an

organization registered under Societies

Registration Act ,1860 having its

registered office at 141,Vivekananda

Road, Kolkata – 700 006;

2.Mrs. Rita Saha, Proprietress of Konark

Electrical a proprietorship firm having

its registered office at 4/3, Bhukailas

Road, Kolkata – 700 023 ;

3._____________________________

4.

5.

6.

7.Onwards

……………………………..Petitioners
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-Versus-

1. Bharat Sanchar Nigam Ltd. a

Government of India Enterprise having

its office at Yogayog Bhawan (2nd

Floor), P-36, C. R. Avenue, Kolkata –

700 012;

2. Chief Engineer, Bharat Sanchar

Nigam Ltd., having his office at 25/A,

Judges Court Road, (8th Floor), Alipore,

Kolkata – 700 027.

3. Superintending Engineer

(Electrical), Circle-II Bharat Sanchar

Nigam Ltd. having his office at 25/A,

Judges Court Road, (8th Floor), Alipore,

Kolkata – 700 027

4. Superintending Engineer

(Electrical), Circle-I, having its office at

Yogayog Bhawan (2nd Floor), P-36,

C. R. Avenue, Kolkata – 700 012;

……………….Respondents
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To

The Hon’ble Mr. Vikas Shridhar Sirpurkar, Chief Justice and His Companion

Justices of this Hon’ble Court.

The humble petition of the petitioners

above named most respectfully

SHEWETH .

1. The petitioner No. 1 is a society registered under the Societies

Registration Act, 1860 and the petitioner Nos. 2 to __ are all members of the

petitioner No.1 association. The petitioner Nos. 2 to __ are all citizens of India.

2. The respondent No.1 is a Public Sector Undertaking under the

control and supervision of the Ministry of Post and Telegraph, Union of India

and the respondent Nos. 2 to 4 are all servants of the respondent No.1.The

respondent no.1 is an a “State” within the meaning of Article 12 of the

Constitution of India and hence amenable to the writ jurisdiction of this

Hon’ble Court.

3. The petitioners are all experienced contractors performing and executing

contractual jobs for different organizations like Central Public Works

Department, Kolkata Municipal Corporation, Railways , West Bengal State

Electricity Board and such others organizations.

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4. The petitioners perform jobs relating to installation, maintenance,

commissioning of electrical wirings and apparatus. The petitioners have

installed Air-conditioning plants, devices for fire protection , generator sets in

different organizations as mentioned above. The petitioners also undertake jobs

for installation of all other types of electrical equipments including fans and

lights which are required for effective functioning of offices, factories and ,

departmental buildings. Apart from this the petitioners also undertake in the

usual course of business, maintenance jobs on long term contract basis

different electrical instruments and gadgets like A.C. Plants, generator sets, fire

protection devices. It may be mentioned that during the performance of the

aforesaid jobs the petitioners do not use any type of equipment requiring

electrical power for running the same. The petitioners perform there jobs

through manual labour.

5. The petitioners state that they have successfully executed all contracts so

far awarded to them by reputed organizations including the respondent

authorities in the capacity of principal employers. Specimen copies of the

work orders issued by the respondent authorities to the petitioners are

annexed hereto and collectively marked as “P-1”.

6. The petitioners are aggrieved by a purported notice inviting tender from

contractors enlisted with the respondent No.1,dated ________ issued by

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___________ of the respondent No.1 for performing _____________ for an

estimated cost of Rs. _____________ . Notice inviting tender contains inter

alia a condition under clause 3 to the effect that the intending tenderers will

have to submit along with their applications registration certificates relating to

coverage under the Employees’ Provident Fund and Misc. Provisions Act of

1952 and Employees’ State Insurance Act of 1948. Copy of the notice inviting

tender is annexed hereto and marked with the letter “P-2”.

7. The petitioners state that they have in the past executed similar type of

works as required to be executed in the instant notice inviting tender.

8. The nature of business carried on by your petitioners does not

require sufficient number of employees so as to bring the establishment of your

petitioners within the coverage of Employees’ Provident Fund and Misc.

Provision Act, 1952 or the Employees’ State Insurance Act, 1948. In this

regard it may be mentioned that with the object of achieving the eligibility

criterion as required under clause 3 of the tender conditions, as floated by the

respondent No.1 some of the petitioners applied for voluntary coverage before

the Employees’ Provident Fund authority and the Employees’ State Insurance

authority. The applications so made by them, were refused to be entertained

by the Provident Fund and the E.S.I on the ground that those petitioners did not

qualify for coverage under the abovementioned two Acts in as much as such
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petitioners did not employ the requisite number of employees so as to attract

the applicability of these two Acts.

In one case such refusal was formally communicated vide a letter

dated 29.03.2006 issued by the Provident Fund authorities addressed to the

concerned officer of the respondent no.1 in respect of the application of M/s

Electro Power Engineering Co. being petitioner no._________ . In case of the

petitioner no.2 such refusal was endorsed under the hand of the concerned

E.S.I officer on its application dated 7 th March 2006 seeking E.S.I

registration certificate

Copies of the said two documents dated 29.03.2006 and 07.03.2006

refusing coverage are annexed hereto and collectively marked as “P-3”.

7. The petitioners state that the tender documents are issued to the

intending tenderers who satisfy the eligibility criteria and the conditions

contained in the tender documents. Therefore the petitioners were not

furnished with the copies of the tender document so that they could participate

in the tender process. The respondent authorities refused to give them the

tender documents as because they could not disclose any Provident Fund Code

number allotted by Employees’ Provident Fund Organization or a Code

number allotted by the Employees’ State Insurance authorities.

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8. Your petitioners thereafter collected the notice inviting tender and

the along with the attached conditions by visiting the official web site of the

respondent authority.

9. Your petitioners state that except the required coverage under the

EPF and MP Act, 1952 and ESI Act, 1948 the petitioners satisfy all other

conditions necessary for participating in the tender process as will appear from

the documents which yours petitioners crave leave to refer to at the time of

hearing if necessary.

10. It is pertinent to mention that the tender conditions floated by the civil

wing of the respondent authorities do not contain a clause putting a mandate on

the tenderers that they have to be covered under the EPF and MP Act, 1952 or

the ESI Act, 1948. Execution of civil contracts as floated by the self same

respondent authorities requires a huge workforce and generally involve

prolonged employment and risks for the employees or workers employed in

such contracts. A copy of a tender along with its conditions floated by the

respondent authorities for executing a civil contract is annexed hereto and

marked with the letter “P-4.”

11. Your petitioners state that the Employees’ Provident Fund authority

by its letter dated 21-02-2006 allotted a separate code number being

WB/40747B, to the respondent No.1 for depositing the contributions with

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respect to the employees engaged by the contractors under them. Copy of such

letter dated 21st February, 2006 is annexed hereto and marked with the letter

“P-5”.

12. Your petitioners submit that the action of the respondent authorities

incorporating an unconscionable term in the tender condition is aimed at

favoring particular contractors at the cost of the petitioners there by laying

down a discriminatory standard or norm in the matter of distribution of work.

This is an instance of total violation of the fundamental rights guaranteed by

Article 14 of the Constitution of India.

12. By there insistence on production of EPF and ESI registration

certificates the respondent no. 1 is trying to circumvent the provisions of the

two aforesaid statutes which enjoin the responsibility upon the respondent

no.1 being the Principal Employer to collect the contributions for PF and ESI

from the contractors regarding the contractors’ labour force and deposit the

same with concerned authorities. Such insistence is made by the respondent

no.1 only to avoid its own statutory liability.

13. The incorporation of requirement of having a P.F Code and an ESI

code number so as to make a contractor eligible to even apply for the Tender

Document dose not have any nexus with the nature of job to be executed or the

purpose sought to be achieved.

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14. In the instant case, the respondent authority has manifested

encarnalized and arbitrary exercise of power and discretion which is not

structured by a rational, relevant and non-discriminatory standard or norm.

15. The terms and conditions embodied in the Tender Document have

been made for the purpose of not affording otherwise eligible candidates an

opportunity the allotment of State Largesse.

19. The action of the Tendering Authority is apparently malicious and

misuse of power making the tender condition of requirement of a PF Code an

ESI registration as a pre-condition for obtaining Tender Documents assailable

and subject to judicial review warranting interference by this Hon’ble Court in

exercise of its extra ordinary writ jurisdiction.

20. The incorporation of the clause requiring the intending tenders to be

covered under the EPF & MP Act 1952 and the ESI Act 1948 is itself an act of

inconsistency on the part of the respondent authority as the civil wing of the

respondent no.1 is not insisting on the requirements of the aforesaid coverage.

21. The respondent authority have sought to unfairly discriminate your

petitioners to the detriment of the public interest, inasmuch as most eligible

contractors may not even be able to participate in the Tender Process for non-

fulfillment of a term in the Tender Document which has no bearing with the

purpose and object sought to be achieved awarding the Contract.

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22. The action of the respondent in seeking to appoint otherwise

incompetent contractors by incorporating an unconscionable clause in the

Tender Document amounts to misfeasance in public office manifest, nepotism,

arbitrariness in accordance with set norms or criteria.

23. The officers of the respondents authorities hold position of Trustees

of public property in their charge and such action on their part in a show of

absolute discretion in an arbitrary and discriminatory manner has rendered the

purported clause of requirement of P.F and E.S.I registration for participating

in the Tender Process liable to be set aside.

24. The action of the respondent authority in introducing the impugned

clause requiring the P.F and E.S.I registration from the intending tenders failed

to take into account that its action will limit the scope of the tender amongst a

very limited number of participants leading to quotation of higher rates and in

the process, public money of which the respondent authorities are Trustees,

will be drained.

25. There is no reasonable or rational classification for incorporating the

clause of requirement of having a P.F or an E.S.I registration as a precondition

for obtaining Tender Documents for the purpose of such classification and, as
 12

such ,the action of the respondent authority is violative of the fundamental

rights guaranteed under Articles 14 and 16 of the Constitution of India.

26. The action of the respondent authorities also violates Article 19(1)

(g) and Article 21 of the Constitution of India, inasmuch as, the same purports

to prevent your petitioners from carrying on peaceful business.

27. In any event ,allotment of the P.F code number cannot have any

rational classification in the matter of awarding a contract for

_______________________________ as because it is the statutory liability of

a principle employer to make payment of Provident Contribution even in

respect of employees of the Contractor.

28. The action of the respondent authorities in incorporating such a term

of having P.F and E.S.I. registration of a contractor as a precondition for even

procuring the Tender Document as reflected in Annexure “P-2” is otherwise

bad in law and in fact.

29. Being aggrieved by and dissatisfied with the action of the respondent

authorities in issuing notice inviting tender containing the tender condition

under clause 3 requiring allotment of P.F & E.S.I registration as a precondition

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for procuring the tender documents as reflected in Annexure “P-2” herein, your

petitioners begs to move this application under Article 226 of the Constitution

of India, inter alia, on the following;

G R O U D S

I FOR THAT by there insistence on production of EPF and

ESI registration certificates the respondent no. 1 is trying to

circumvent the provisions of the two aforesaid statutes which

enjoin the responsibility upon the respondent no.1 being the

Principal Employer to collect the contributions for PF and

ESI from the contractors regarding the contractors’ labour

force and deposit the same with concerned authorities. Such

insistence is made by the respondent no.1 only to avoid its

own statutory liability.

II FOR THAT the incorporation of requirement of having a P.F

Code and an ESI code number so as to make a contractor

eligible to even apply for the Tender Document dose not have

any nexus with the nature of job to be executed or the purpose

sought to be achieved.

III FOR THAT in the instant case, the respondent authority has

manifested uncanalized and arbitrary exercise of power and

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discretion which is not structured by a rational, relevant and

non-discriminatory standard or norm.

IV FOR THAT the terms and conditions embodied in the

Tender Document have been made for the purpose of not

affording otherwise eligible candidates an opportunity the

allotment of State Largesse.

V FOR THAT the action of the Tendering Authority is

apparently malicious and misuse of power making the tender

condition of requirement of a PF Code an ESI registration as

a pre-condition for obtaining Tender Documents assailable

and subject to judicial review warranting interference by this

Hon’ble Court in exercise of its extra ordinary writ

jurisdiction.

VI FOR THAT the incorporation of the clause requiring the

intending tenders to be covered under the EPF & MP Act

1952 and the ESI Act 1948 is itself an act of inconsistency on

the part of the respondent authority as the civil wing of the

respondent no.1 is not insisting on the requirements of the

aforesaid coverage.
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VII FOR THAT the respondent authority have sought to unfairly

discriminate your petitioners to the detriment of the public

interest, inasmuch as most eligible contractors may not even

be able to participate in the Tender Process for non-

fulfillment of a term in the Tender Document which has no

bearing with the purpose and object sought to be achieved

awarding the Contract.

VIII FOR THAT the action of the respondent in seeking to

appoint otherwise incompetent contractors by incorporating

an unconscionable clause in the Tender Document amounts to

misfeasance in public office manifest, nepotism, arbitrariness

in accordance with set norms or criteria.

IX FOR THAT the officers of the respondents authorities hold

position of Trustees of public property in their charge and

such action on their part in a show of absolute discretion in an

arbitrary and discriminatory manner has rendered the

purported clause of requirement of P.F and E.S.I registration

for participating in the Tender Process liable to be set aside.

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X FOR THAT the action of the respondent authority in

introducing the impugned clause requiring the P.F and E.S.I

registration from the intending tenders failed to take into

account that its action will limit the scope of the tender

amongst a very limited number of participants leading to

quotation of higher rates and in the process, public money of

which the respondent authorities are Trustees, will be

drained.

XI FOR THAT there is no reasonable or rational classification

for incorporating the clause of requirement of having a P.F or

an E.S.I registration as a precondition for obtaining Tender

Documents for the purpose of such classification and, as

such ,the action of the respondent authority is violative of the

fundamental rights guaranteed under Articles 14 and 16 of the

Constitution of India.

XII FOR THAT the action of the respondent authorities also

violates Article 19(1)(g) and Article 21 of the Constitution of

India, inasmuch as, the same purports to prevent your

petitioners from carrying on peaceful business.

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XIII FOR THAT in any event ,allotment of the P.F code number

cannot have any rational classification in the matter of

awarding a contract for

_______________________________ as because it is the

statutory liability of a principle employer to make payment of

Provident Contribution even in respect of employees of the

Contractor.

XIV FOR THAT the action of the respondent authorities in

incorporating such a term of having P.F and E.S.I. registration

of a contractor as a precondition for even procuring the

Tender Document as reflected in Annexure “P-2” is otherwise

bad in law and in fact.

30. Unless the respondents are restrained by an order of injunction from giving

any effect or further effect to the clause requiring submission of E.P.F and E.S.I

registration certificates by the intending tenderer along with the application for

participation in the tender process being contained in the tender documents

dated__________ being annexure “P-2”herein, your petitioners will suffer

irreparable loss and injury.

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31. The balance of convenience and/or inconvenience is towards granting of an

order of injunction in favour of your petitioners.

32. Your petitioners submit that they are all persons interested in a common

cause of action and are aggrieved by same action of the respondents and the right

to relief in respect of the act of the respondents exist in your petitioners jointly and

severally and common question of law or fact would arise if separate petitions are

instituted by your petitioners. As such your petitioners are instituting this

application for a common interest, on a common cause in respect of facts and

question of law which are of self-same nature.

33. In the facts and circumstances of the case there is no scope of making any

demand for justice.

34. Your petitioners are not guilty of any willful delay and latches.

35. There is no other alternative efficacious remedy available to your

petitioners other than preferring the instant application and the relives as

prayed for herein, if granted, will give your petitioners full and complete relief.

36. On the self same facts and cause of action no other application has been

filed by your petitioners before this Hon’ble Court or any other Court.
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37. This application is made bonafide and in the interest of justice.

In the aforesaid circumstances, it is most

respectfully prayed that Your Lordships

would graciously be pleased to issue:

a) A writ in the nature of Certiorari

commanding the respondents and each one

of them ,their men ,agents ,assigns and

subordinates to certify and transmit to this

Hon’ble Court records of the case

including the notice inviting tender being

annexure “P-2” herein so that conscionable

justice may be administered by quashing

the particular clause in the tender

document which require a tenderer to

submit along with his application for

participation in the tender

process ,registration certificates allotted by

E.P.F and E.S.I authorities;

b) A writ in the nature of Mandamus

commanding the respondents and each one

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of them ,their men ,agents ,assigns and

subordinates to recall, revoke, rescind and

withdraw the particular clause in the

tender document being Annexure “P-2”

herein which requires a tenderer to submit

along with his application for participation

in the tender process ,registration

certificates allotted by E.P.F and E.S.I

authorities, and to forebear to give any

effect or further effect to the same;

c) A writ in the nature of Mandamus

commanding the respondents and each one

of them, their men ,agents ,assigns and

subordinates to allow the petitioners to

obtain the tender documents and to submit

the tender and participate in the tender

process if your petitioners fulfill all the all

the conditions but except for requirements

of production of registration certificates

allotted by the E.P.F and E.S.I authorities;

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d) Any other appropriate writ or writs

and/or orders of orders and/or

direction/directions;

e) Rule NISI in terms of prayers (a), (b),

(c),and (d) above;

f) An interim order restraining the

respondents from taking any step and/or

finalize the tender in terms of the notice

inviting tender being annexure“P-2” herein

till the disposal of this application;

g) An interim order allowing your

petitioners except the petitioner no1 to

participate in the tender process;

h) Ad interim order in terms of prayers

(f) and (g) above;

i) Costs and incidental to this application;

j) Such further and/or other order or

orders as this Hon’ble Court may deem fit

and proper;
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And for this act of kindness, your petitioners as in duty bound shall ever pray .

AFFIDAVIT

I,____________________, son of ___________________ aged about ______ years, by

occupation – Businessman, having office at __________________________________do

hereby solemnly affirms and say as follows :-

1. That I am the petitioner No. ____ to the above application and I have been

duly authorized by to affirm this affidavit on behalf of the above petitioners and I know

the facts and circumstances of the case an I am competent to depose to the same.

2. That the statements made in paragraphs

are true to my knowledge, those made in paragraphs

are my humble and respectful submissions

before this Hon’ble Court.

Prepared in my office The deponent is known to me.

Advocate Clerk to :

Advocate

Solemnly affirmed before me

on this the day of

July, 2006.

COMMISSIONER
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District – KOLKATA
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side

W. P. No. (W) of 2006

In the Matter of :
An Application under Article 226 of the
Constitution of India;

-And-
In the Matter of :
(P&T) Eastern Circle Electrical Contractors’
Association and Ors
…Petitioners

-Versus-
Bharat Sanchar Nigam Ltd
..Respondents

PETITON
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ANINDYA LAHIRI
Advocate,
10, Old Post Office Street,
Room No. 110,
Kolkata – 700001.