Foul play in e-tender resulting is misappropriation of balance payment: Supreme Court of India
A Public Interest Litigation (PIL) is a petition that can be filed by any member of the public for any matter of public interest, for redress of public wrong or injury. A Writ Petition may be filed by an aggrieved person(s) to seek legal remedies for violation of fundamental rights. In context of Civil Appeal No. of 2021(Arising out of SLP (Civil) No.13683 of 2018) Multitask Solutions versus Zilla Parishad Washim &amp; Ors. The judgment was passed by A.S.Bopanna.J. The appellant herein is assailing the order dated 24.02.2018 passed by the High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No.4789 of 2014. Through the said order, the High Court has directed the State of Maharashtra and the Chief Executive Officer of Zilla Parishad, Washim to initiate steps to recover all amounts paid to the appellant herein. Further, direction is also issued to file appropriate police complaints in the matter. The writ petition in which the impugned order was passed is considered as a petition in public interest. The brief facts of the case are as follows: The Zilla Parishad Washim had issued an e-tender notice for purchase of E-learning kits, the notification inviting tender was finally published afresh on 13.07.2014 both on website as well as in local newspaper. The four tenderers participated in the tender process. The appellant was awarded the supply order dated 19.08.2014 for supplying e-learning kits to 22 Zilla Parishad schools as his financial bid was the lowest. The respondent herein claiming to be aggrieved by the tender process filed the writ petition before the Bombay High Court. But, the High Court order dated 06.04.2015 did not see any reason to entertain the writ petition because several disputed questions of fact arise for consideration and work order was already implemented. The High Court then gave the opinion that there was a prima-facie case to conduct inquiry into the handling of matter by the then CEO of Zilla Parishad, Mr. Ruchesh Jaivanshi. When the writ petition was listed before the court as well as then CEO Mr. Ruchesh Jaivanshi submitted his report, the High Court assumed the foul play and has abruptly arrived at the conclusion that the State Government and the CEO of Zilla Parishad, Washim are to proceed in the matter as per law and initiate steps to recover all amount paid to the appellant herein and further directed the filing of police complaints. A perusal of the inquiry report would indicate that it refers to three dimensions (i) It relates to the manner in which the funds have been utilised by the Zilla Parishad, Washim (ii) It refers to the tender process wherein the four tenderers had participated and the appellant being the lowest tenderer and (iii) The report refers to comparative statement of the purchase of E-learning kits by the various Zilla Parishads and the price at which it was procured. Observations have been made in the inquiry report indicating that the Zilla Parishad had not appropriately dealt with the funds which had been allotted for other purposes but had diverted the same for purchase of E-learning kits, that is an aspect for which the appellant cannot be faulted. The judgment framed is, “the statement contained in the inquiry report relating to the purchase made by the various Zilla Parishads, there is no clear finding in the report as towhether the payment of the price as quoted by the appellant isjustified or if it is exorbitant and whether over quoted amountis approved. Be that as it may, the supply of Elearning kits being of different types, the further details relating to the configuration; the features; the brand and such other technical details are necessary to compare the different sets of devices supplied which is not an exercise that can be done in a proceeding of the present nature, but it is left to the official respondents to look into that aspect. The appeal is accordingly allowed subject to the above observations. There shall be no order as to costs. Pending applications, if any, shall stand disposed of.”   Click here for Judgement  
The appellant herein is assailing the order dated said order the High Court has directed the State of Washim to initiate steps to recover all amounts paid to the appellant herein. Further direction is also issued to file Though the writ petition in which the impugned order whether an order of the present nature is justified in the instant case without reference to the contractual obligation The Zilla Parishad Washim had issued an e­tender on the website vide letter No.1 2014­2015 dated 13.06.2014 The tender was to be opened on 10.07.2014 at 17:00 hours tender was published afresh on 13.06.2014 both on the tender was scheduled on 19.08.2014 at 11:00 am. The four tenderers namely the appellant respondents 2 3 and 5 had was technically disqualified due to which the financial bid of the remaining three tenderers were opened. The appellant 19.08.2014 for supplying the E­learning Kits to 22 Zilla dated 06.04.2015 did not see reason to entertain the writ cognizance of the writ petition in public interest while continuing to retain the petitioner who was a business Court was of the opinion that there was a prima­facie case to by Rs.90 000 to Rs.1 00 000 ­ per unit. Certain other through the order dated 08.09.2014 directed the parties to maintain status­quo and the petitioner was directed to serve the respondents. Pursuant thereto the response was filed by the respondents to the writ petition and a consideration was had directed the respondent No.4 herein to secure details When the writ petition was listed before the Court on inquiry would be made and a report would be submitted Accordingly an inquiry report was submitted to which response was filed by the appellant herein in the form of an Jaivanshi CEO Zilla Parishad was placed on record. In that background the High Court had been informed that the and installation of kits which had been done. It was further the supplies made by the appellant to the schools under the herein also by same CEO. Since both these suppliers had participated in both the places the High Court has assumed State Government and the Chief Executive Officer of Zilla initiate steps to recover all amounts paid to the appellant appellant being successful in the tender process regarding are unrepresented. We have perused the appeal papers writ petition though ultimately considered as being in public Hence essentially what is to be taken note is that the writ such rival business establishment which had failed in the tender process. The contention was with regard to the difference in price of the kits supplied to Zilla Parishad Washim and to the schools in other Zilla Parishads. It is no doubt true that the High Court thereafter directed the respondent No.4 herein State of Maharashtra to place on record the affidavits indicating the details pertaining to such purchase of E­learning kits by the other Zilla Parishads and also the process adopted by the Zilla Parishad Washim. The State Government had accordingly made an inquiry on this was filed before the High Court. A perusal of the order impugned passed by the High Court does not indicate any other hand the High Court has abruptly proceeded to direct A perusal of the inquiry report would indicate that it the funds have been utilised by the Zilla Parishad Washim (ii participated and the appellant being the lowest tenderer and at which it was procured. Though certain observations have been made in the inquiry report indicating that the Zilla purchase of E­learning kits that is an aspect for which the submitted and ultimately the supplies were made. For Secretary of the School Management Committee as per condition No.5 to the supply order. The Headmaster of the school is also the Secretary of the School Management to the tender process since the work order was already in any event would have the right to proceed against the to the appellant. At this stage no such process has been conducted. As such the recovery of the amount ordered is premature. The lacuna noticed by the inquiry committee order the same could not be done in view of the status­quo upgrading of software as agreed under the contract and also the appellant cannot be allowed to enrich themselves to that extent and the proportionate amount will be deductible after following due process. However the entire payment for the Further with regard to the statement contained in the inquiry report relating to the purchase made by the various Zilla Parishads there is no clear finding in the report as to is approved. Be that as it may the supply of E­learning kits being of different types the further details relating to the configuration the features the brand and such other technical details are necessary to compare the different sets of devices supplied which is not an exercise that can be done in a proceeding of the present nature but it is left to the official In that circumstance the withdrawal of the payment without reference to all these aspects would not be justified regard to the upgradation of the software agreed under the contract the same be also completed. With regard to the any grievance liberty is reserved to avail the remedy in accordance with law before the appropriate forum. If the upgradation and training is undertaken and the appellant It is relevant to take note that Mr. Ruchesh Jaivanshi the then CEO of Zilla Parishad was before this Court in SLP No.13869 2018 assailing the same order dated 24.02.2018 This Court by order dated 09.05.2018 clarified that all proceedings referred in paragraph 12 of the impugned and the proceedings shall be taken up on their own merits being uninfluenced by any observations in the impugned as the appellant herein who was a party to the writ petition all In the light of the above the order dated 24.02.2018 The appeal is accordingly allowed subject to the above Pending applications if any shall stand disposed of Page 1