Multitask Solutions vs Zila Parishad Washim on 17 August, 2021

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Supreme Court of India
Multitask Solutions vs Zila Parishad Washim on 17 August, 2021Author: A.S. Bopanna

Bench: Hemant Gupta, A.S. Bopanna

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2021
(Arising out of SLP (Civil) No.13683 of 2018)

Multitask Solutions .…Appellant(s)

Versus

Zilla Parishad Washim & Ors. …. Respondent(s)

JUDGMENT

A.S. Bopanna,J.

1. Leave granted.

2. 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
Signature Not Verified

Digitally signed by
Jayant Kumar Arora
Date: 2021.08.17
17:26:17 IST
said order, the High Court has directed the State of
Reason:

Maharashtra and the Chief Executive Officer of Zilla Parishad,

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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.

3. Though the writ petition in which the impugned order

was passed is considered as a petition in public interest, the

genesis of the same is necessary to be noted so as to consider

whether an order of the present nature is justified in the

instant case without reference to the contractual obligation

between the parties.

4. The Zilla Parishad, Washim had issued an e­tender

notice for purchase of E­learning kits under the Sarva Shiksha

Abhiyan scheme. The notification inviting tender was published

on the website vide letter No.1/2014­2015 dated 13.06.2014.

An advertisement was also published in the local newspapers.

The tender was to be opened on 10.07.2014 at 17:00 hours.

Due to technical glitch the same could not be opened, but the

e­tenders were opened on 11.07.2014. However, due to certain

lacunae in the process committed by all the tenderers, the e­

tender was published afresh on 13.06.2014, both on the

website as well as in the local newspapers. The opening of e­

tender was scheduled on 19.08.2014 at 11:00 am. The four

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tenderers, namely the appellant, respondents 2, 3 and 5 had

participated in the tender process. In the ultimate analysis the

5th respondent’s concern namely M/s Kasturi Suppliers, Nagpur

was technically disqualified due to which the financial bid of

the remaining three tenderers were opened. The appellant

herein being the lowest, was awarded the supply order dated

19.08.2014 for supplying the E­learning Kits to 22 Zilla

Parishad Schools.

5. The respondent No.5 herein claiming to be aggrieved by

the tender process whereby they had been disqualified, filed the

writ petition before the Bombay High Court. The challenge in

the writ petition was therefore to the tender process whereby

the respondent No.5 was disqualified and the supply order was

ultimately placed with the appellant. The High Court by order

dated 06.04.2015 did not see reason to entertain the writ

petition on the issue relating to the grievance put forth by the

respondent No.5 with regard to the tender process wherein they

were disqualified since several disputed questions of fact arise

for consideration and work order was already implemented. The

High Court in that view, through order dated 13.04.2015 took

cognizance of the writ petition in public interest while

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continuing to retain the petitioner who was a business

competitor and proceeded further with the matter only because

the amount was released in haste. In the said process, the High

Court was of the opinion that there was a prima­facie case to

conduct inquiry into the handling of matter by the then Chief

Executive Officer of Zilla Parishad, Mr. Ruchesh Jaivanshi.

6. Further, the High Court also took note of the contentions

put­forth by respondent No.5 herein, a business competitor of

the appellant that on an average, in the other Zilla Parishads

similar equipment had been procured at a price which is lesser

by Rs.90,000/ to Rs.1,00,000/­ per unit. Certain other

discrepancies were also referred to. In that light, the High Court

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

made by the High Court. In the said process, the High Court

had directed the respondent No.4 herein to secure details

relating to similar systems which were supplied to the schools

in the other Zilla Parishads in the State and also the price at

which it was procured.

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7. When the writ petition was listed before the Court on

07.12.2015 it was indicated to the Court that an appropriate

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

additional written submission. Further, affidavit of Mr. Ruchesh

Jaivanshi, CEO, Zilla Parishad was placed on record. In that

background, the High Court had been informed that the

Headmaster of the school is responsible for clearing the supply

and installation of kits, which had been done. It was further

brought to the notice that the upgradation of the software and

the training could not be performed by the appellant herein due

to the order of status­quo. The High Court noted the nature of

the supplies made by the appellant to the schools under the

Zilla Parishad, Washim and observed that the supply order at

Gadchiroli Zilla Panchayat was issued to the respondent No.2

herein, also by same CEO. Since both these suppliers had

participated in both the places, the High Court has assumed

foul play and has abruptly arrived at the conclusion that the

State Government and the Chief Executive Officer of Zilla

Parishad, Washim are to proceed in the matter as per law and

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initiate steps to recover all amounts paid to the appellant

herein and further directed the filing of police complaints. The

appellant being successful in the tender process regarding

which no fault was found is aggrieved by the directions issued

by the High Court to recover the amount despite the kits being

supplied by him.

8. We have heard Ms. Bansuri Swaraj, learned counsel for

the appellant and Shri Hrishikesh Chitaley, learned counsel for

the respondent No.5. The respondents No.1 to 4 though served

are unrepresented. We have perused the appeal papers

including the counter­affidavit filed on behalf of the respondent

No.5.

9. At the outset, as already noted the genesis of the petition

was the challenge to the tender process wherein the appellant

had succeeded and the supply order was placed on them. The

writ petition though ultimately considered as being in public

interest was initiated by the respondent No.5 herein who is the

proprietor of M/s Kasturi suppliers, one of the participants in

the tender process who had failed in the technical evaluation.

Hence, essentially what is to be taken note is that the writ

petition entertained by the High Court though ultimately styled

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as in public interest was initiated by a rival business competitor

who had also participated in the tender process and failed. The

reason for which the High Court had thought it fit to treat the

petition in public interest is due to the contentions put forth by

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

aspect and an inquiry report at Annexure P­14 to this petition

was filed before the High Court. A perusal of the order

impugned passed by the High Court does not indicate any

reference made to the details contained in the inquiry report or

to the subsequent affidavit filed by the then CEO of the Zilla

Parishad so as to analyse and arrive at its conclusion. On the

other hand, the High Court has abruptly proceeded to direct

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the recovery of the amount from the appellant and also directed

to proceed further in the matter by filing complaints.

10. 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 E­learning kits by the various Zilla Parishads and the price

at which it was procured. Though, certain 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 E­learning kits, that is an aspect for which the

appellant cannot be faulted. The appellant, like the respondent

No.5 had participated in the tender process in response to the

notification which was published both on the website and the

newspapers. It was not for the appellant to find out as to how

the project was funded. In terms of the tender, the bids were

submitted and ultimately the supplies were made. For

acknowledging that the kits have been supplied and installed,

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the certificate was required to be issued by the Chairman and

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

Committee and as such the certificates issued indicate that the

supplies were made is the contention on behalf of the appellant.

In any event, the High Court has not recorded a finding that the

supplies were not made by the appellant and the installation

had not been completed. In fact, the High Court by its earlier

order dated 06.04.2015 had declined to entertain the challenge

to the tender process since the work order was already

implemented even as on the date when notice was issued in the

writ petition on 08.09.2014.

11. Even that be so, since the supply order had been issued

in favour of the appellant, the supplies will have to conform to

the terms and conditions failing which the official respondents

in any event would have the right to proceed against the

appellant pursuant to the terms of contract. Such proceeding in

any event will have to be conducted after providing opportunity

to the appellant. At this stage, no such process has been

conducted. As such the recovery of the amount ordered is

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premature. The lacuna noticed by the inquiry committee

relatable to the appellant is that, appellant has not updated the

software and that the training of the teachers for two days as

agreed has not been conducted. In that regard, the explanation

put­forth by the learned counsel for the appellant is that the

appellant though was willing to comply with the terms of supply

order, the same could not be done in view of the status­quo

order dated 08.09.2014 passed by the High Court which was in

force during the pendency of writ petition. To that extent, we

find the explanation to be justified but the appellant cannot be

absolved of their obligation and they will have to perform the

same at least at this stage and the payment towards that will be

subject to compliance. Hence, the appellant shall undertake the

upgrading of software as agreed under the contract and also

impart training to the teachers. However, at this distant point

of time if the same is not technically and practically feasible,

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

supplies made also cannot be recalled as ordered by the High

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Court since the cost of equipment already installed cannot be

denied.

12. 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

whether the payment of the price as quoted by the appellant is

justified or if it is exorbitant and whether over quoted amount

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

respondents to look into that aspect.

13. In that circumstance, the withdrawal of the payment

made to the appellant and restraint against balance payment

without reference to all these aspects would not be justified.

However, the ends of justice would be met if liberty is reserved

to the respondent No.4 to provide opportunity to the appellant

and the Zilla Parishad concerned and take stock of the actual

supplies made by the appellant. In that regard, an appropriate

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conclusion shall be reached as to whether the payment made is

commensurate to the supplies already made by the appellant in

furtherance to the terms agreed in the contract. Further, with

regard to the upgradation of the software agreed under the

contract the same be also completed. With regard to the

determination to be made in that regard, if the appellant has

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

justifies the balance payment, there shall be no impediment to

release the same.

14. 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

judgment will be with the participation of the petitioner therein

and the proceedings shall be taken up on their own merits

being uninfluenced by any observations in the impugned

judgment. The said order will apply in so far the proceedings if

any in the action contemplated against the then CEO. Insofar

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as the appellant herein who was a party to the writ petition, all

action shall be in the manner as indicated herein.

15. In the light of the above, the order dated 24.02.2018

passed by the High Court, impugned herein is not sustainable

and the same is set aside.

16. The appeal is accordingly allowed subject to the above

observations. There shall be no order as to costs.

17. Pending applications, if any, shall stand disposed of.

……………………….J.
(HEMANT GUPTA)

……………………….J.
(A.S. BOPANNA)

New Delhi,
August 17, 2021

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