The time limit prescribed in Section 5 of the Tender Conditions, which required the bidder to declare any previous transgression occurred in the last 3 years with any other company in the country or with any other public sector enterprises in India, could not be interpolated in Section 3 of the Tender Conditions, which entitled the appellant to disqualify the writ petitioner from the tender process if the bidder has acted in any other form such as to put his reliability and credibility in question.

JUDGMENT :

T.S. Sivagnanam, J.

1. These intra court appeals are directed against the common order passed in WPA No. 26117 of 2022 and WPA No. 27405 of 2022. Since the facts in both the cases are identical and common submissions were made by the learned advocates for the parties, with their consent the appeals are disposed of by this common judgement and order.

2. The first respondent in this appeal is the writ petitioner, BLA Projects Private Limited, Kolkata. The writ petitions were filed challenging the correctness of the decision taken by the appellant, DVC, as communicated to the respondent vide email dated 15.11.2022. By the said communication, the respondent writ petitioner was informed that their tender submitted for the subject work has been rejected during the technical evaluation by the duly constituted Committee for the reasons “administrative grounds”. The writ petition was filed challenging the rejection of the petitioners technical bid primarily on the ground that the order of rejection did not contain any reasons. On 24.11.2022 the appellant informed the respondent the reasons for rejection in reply to the writ petitioner’s letter dated 16.11.2022 wherein they sought for reasons for rejection. In the communication dated 24.11.2022 the following were the reasons for rejection:-

Reference to your letter dated 16.11.2022, the reasons on which the Technical Evaluation Committee has rejected your bid is furnished as below:

(1) Fraudulent practice was noticed against you related to pilferaging of DVC’s transported good quality coal and replacement of the same with some extraneous materials like boulders, mud, stones etc. While executing a coal transportation contract of RTPS, DVC. Same was proved on 01.06.2018 by RTPS officials in presence of contract’s representatives. Letter was issued to you on 02.06.2018 intimating this incident of ill practice by them FIR was registered on 09.06.2018 by DVC official. The Charge Sheet/Final Report was issued by Raghunathpur PS, Dist, Purulia, W.B. on 24.10.2019.

(2) You have repeatedly suppressed the above charge of pilferage and fraudulent practices.

(3) Thus, you have committed a transgression through a violation of Section 3 of Integrity Pact.

(4) Decision was taken on administrative grounds as per legal opinion as the above investigation towards the incident of pilferage and fraudulent practices is sub-judice at Hon’ble Calcutta High Court.

3. The writ petitioner contended that in the tender document/conditions of tender there is no clause requiring the petitioner to disclose any FIR or charge sheet. In any event the disclosure has to be made if it is within three years and in the instant case three years had lapsed from the date on which the FIR was lodged i.e. on 09.06.2018. The petitioner relied upon the stand taken by the appellant before the Hon’ble Supreme Court in Special Leave Petition arising out of an order passed by the Division Bench of this Court in WPA No. 23775 of 2022 wherein the appellant had stated that a transgression had been committed by the writ petitioner in June 2018 when the incident occurred. Therefore it is submitted that in terms of Section 5 of the tender conditions the three year period has been stipulated and the subject tender having been invited much after the period of three years, there is no requirement for any voluntary disclosure of the alleged transgression. Further by referring upon clause 2.3(iii) of the Policy for Withholding and Banning of Business Dealings, the voluntary disclosure is encouraged not with a view to reject the bid but to keep an alert watch on the bidder’s action in the tender and subsequent contract. Further it was contended that the action of the appellant in rejecting tender was arbitrary and meant for certain extraneous reasons and not as per terms of tender and therefore the action is not only arbitrary but mala fide as well. Further it was contended that in terms of the tender the Integrity Pact is required to be signed b