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Judgment
The present petition has been filed by the petitioners herein against the order dated 25.01.2018 whereby the respondent No.2 passed the impugned order and decided to cancel the tender proceedings in Notice Inviting Tender (herein after referred to as NIT No.15/17).
According to the learned counsel for the petitioners, the said order was addressed to the respondent No.3 without communicating to the petitioners who were the successful bidders in the NIT. According to the learned counsel for the petitioners, the only reason that the impugned order/letter dated 25.01.2018, which is marked and annexed herewith as Annexure-P/1 at page-10, was passed to please the near and dear one of the respondent No.5 namely, contractor Sajal Rai. It is also specifically stated that before passing the impugned order dated 25.01.2018, no notice or communication was ever given to the petitioners and other parties.
Learned counsel for the petitioners has drawn the attention of this Court to the NIT No.15/17, which is dated 06.12.2017, by which the office of the Executive Engineer, Rural Engineering Service, Division Katni, invited tenders for the execution of civil works by the Rural Engineering Service. The last date for purchase of the online form was 22.12.2017 till 5:30 p.m. and the last date for submission of the online bid was 28.12.2017. The petitioners are stated to have participated in the said bidding process and were declared L-1. However, no work order was placed upon them. Thereafter, the impugned order dated 25.01.2018 was passed by which the bid process itself was cancelled and a fresh NIT was called. Thereafter, one of the participants in the bid process, who is the respondent No.5 herein, raised an objection to the effect that the last date for submission of the physical form/hard copies of the bid papers and the last date for the online submission of e-bids were one and the same which is stated to be a violation of the rules. On the basis of the said complaint, the office of the Executive Engineer (respondent No.3) constituted a committee to decide the fate of the bid process. It would be beneficial to reproduce the operative part of the impugned order.
"विषयांतर्गत संदर्भ में आज दिनांक 25.01.2018 को निविदा मूल्यांकन समिति के समक्ष उपस्थित सदस्यों एवं आपत्तिकर्ता ठेकेदार श्री सजल राय के प्रतिनिधि की उपस्थिति में निम्नलिखित अधिकारी उपस्थित रहे, जिनका विवरण निम्नानुसार हैः-
श्री एस.के. टेकाम, कार्यपालन यंत्री ग्रामीण यांत्रिकी सेवा कटनी
श्री आर.एस. धुर्वे, कार्यपालन यंत्री, ग्रा.यां.से. क्षेत्रीय कार्यालय जबलपुर
श्री शरद खरे, सहायक यंत्री, ग्रा.यां.से. क्षेत्रीय कार्यालय जबलपुर
श्री सजल राय ठेकेदार प्रतिनिधि कार्यपालन यंत्री ग्रामीण यांत्रिकी सेवा कटनी द्वारा प्रस्तुत निविदा प्रकरणों में ठेकेदार श्री सजल राय द्वारा उठाये गये बिन्दुओं पर परीक्षण किया गया, जिसमें 28.12.2017 को आॅन लाइन बिड अपलोड करने की अंतिम तिथि थी एवं 28.12.2017 को ही अपलोड किये गये डाक्यूमेंट्स के हार्डकाॅपी के लिफाफे स्पीड पोस्ट से भेजने की अंतिम तारीख भी दी गई थी, ऐसी परिस्थिति में उनके द्वारा त्रुटि स्वीकार की गई एवं लिफाफे प्राप्त किये जाने हेतु 3 से 4 दिवस का समय दिया जाना था जो कि नहीं दिया गया।
अतः उपरोक्त स्थिति में निविदा प्रक्रिया दूषित होने से निविदा मूल्याकंन समिति द्वारा निविदा क्रमांक 15 दिनांक 06.02.2017 सर्वसम्मित से निरस्त किये जाने एवं पुनः निविदा आमंत्रित किये जाने का एतद्् द्वारा निर्णय लिया गया।"
On the basis of the objections taken by the respondent No.5, a committee was constituted and the respondent No.5 through his representative and three other officers were present before the tender evaluation committee. The three officers were from the department itself. Thereafter, the order goes on to quash the tender proceedings initiated on 06.12.2017 in which the petitioners had succeeded as L-1 and the orders were given for floating a fresh NIT. The said order deserves to be quashed for the following reasons:-
Firstly, the entire NIT was sought to be quashed on the basis of the complaint given by one of the participants who is the respondent No.5. If there was an impartial enquiry in the absence of the respondent No.5, the fate of the order may have been different. But where the department itself says that alongwith the three officers, the representative of the respondent No.5 was also present before the tender evaluation committee in exclusion to the petitioners or any representative of the petitioners, is violative of the principles of natural justice. It is also stated by the learned counsel for the petitioners that no notice was ever issued to the petitioners to participate in the said proceedings before the NIT was terminated.
One of the principles of natural justice is that a man shall not be a judge in his own case which also goes to the extent that he shall not be in a position to influence the outcome of his own case in the absence of another who has an equivalent right. The same is enshrined in the maxim nemo debet es judex in propria sua causa. The said order clearly reveals that the representative of the respondent No.5 or upon whose objection the entire NIT was set aside was present in the proceedings before the tender evaluation committee and was most certainly in a position to influence the outcome which is reflected against the petitioners who otherwise was L-1 and to whom the work order should have otherwise be given. It would have been another case entirely if the respondent No.5 was never made a part and parcel of the proceeding before the tender evaluation committee so that an element of fairness would have been reflected in the impugned order. When an interested party, who fail to succeed in the tender at the end of process, is allowed to participate and influence the outcome of the proceedings in the absence of the party who was L-1 and who was never invited as has been stated by the learned counsel for the petitioners, then bias is writ large on the proceedings and also in the order which is a final outcome.
Learned counsel for the respondent No.5 and learned counsel for the State have not been able to clear this preliminary hurdle and give a plausible explanation for the presence of the representative of the respondent No.5. In such a situation, the presumption of bias inheres in the impugned order itself and, therefore, cannot be allowed to survive.
Under the circumstances, the petition is allowed and the impugned order dated 25.01.2018 is quashed and all consequences arising from the said order are quashed.
Certified copy as per rules.