Full Text
HIGH COURT OF DELHI
W.P.(C) 13019/2024, CM APPL.54268/2024 & CM APPL.
54282/2024 GAURAV ENTERPRISES .....Petitioner
Through: Mr. Ramesh Singh, Senior Advocate alongwith Mr. Randhir Kumar, Advocate.
Through: Mr. Prashant Manchanda, ASC, GNCTD alongwith
Ms. Nancy Shah, Ms. Haridas Medha Dilip, Advocates and Dr. Ashish Goyal, Director, RGSSH and
Dr. Piyush Verma, Medical Officer, RGSSH.
Mr. I.S. Chauhan, Advocate alongwith Ms. Nisha Chauhan, Advocate for UCO
Bank.
Date of Decision: 27th September, 2024
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
1. Present petition has been filed seeking a direction to quash and set aside the Bid Document vide Bid Number GEM/2024/B/4997414 dated 22nd June, 2024 alongwith a direction for the respondents to consider the petitioner’s letters dated 05th July, 2024, 15th July, 2024 and 09th August,
2024.
2. After briefly stating the background facts, Mr. Ramesh Singh, learned senior counsel primarily focuses on what according to him are core shortcomings/deficiencies in the Bid Document, viz., (i) non stipulation of a Security Supervisor over every set of twenty (20) Security Guards; (ii) Non-Inclusions of bonus in the impugned Bid Document, which according to him, is mandatory as per the Payments of Bonus Act and; (iii) number of working days stipulated in the Bid Document as twenty-six (26) days should have been taken as thirty (30) days keeping in view that the services are needed 24x[7] for all the thirty (30) days as the premises is a Hospital.
3. He submits that despite the fact that the impugned bid document is suffering from various shortcomings/deficiencies which was duly brought to notice of the concerned tender issuing authorities by various letters/representations, there was no response from the respondents who decided to proceed with the tender process with the same deficiencies.
4. Heard.
5. So far as the submission regarding non-mention of Security Supervisor in the tender requirement is concerned, the same is not for the petitioner to determine. It is well settled that the conditions and requirements sought from the bidder is the exclusive domain of the tender issuing authority. Moreover, learned senior counsel for the petitioner relied upon some provisions and stipulations contained in The Private Security Agencies (Regulation) Act, 2005, (for short “PSAR Act”) stipulating the conditions in respect of a requirement of a Security Supervisor in tenders sought from Private Security Agencies empanelled on the Directorate General of Resettlement, licensed under the PSAR Act. It is not understood as to how the conditions relating to and regulating Private Security Agencies licensed under the PSAR Act and empanelled with the Directorate General of Resettlement could be made applicable to the present facts. Neither the petitioner is a Private Security Agency licensed under the said Act nor empanelled with the DGR, nor has any such eligibility condition stipulated in the present tender document. It is pertinent to note that this is not even the case of the petitioner. Thus, the submission being alien to the facts of this case, merits rejection.
6. So far as the submission respecting non inclusion of payment of Bonus is concerned, learned counsel for the respondent handed over to the Bench a document claimed to be the Minutes of the Meeting dated 10th January, 2019, held under the Chairmanship of Secretary (H&FW Department) which was held to discuss various issues related to outsourcing of services through GeM. He relies upon the Para 2 of the said meeting. A copy of the said minutes is handed over to the learned senior counsel for the petitioner and the same is also taken on record. The same are extracted hereunder:- “GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI HEALTH & FAMILY WELFARE DEPARTMENT 9TH LEVEL ‘A’ WING DELHI SECRETARIAT, NEW DLEHI – F.NO. PA/OCA/HFW/1ROI-GeM/2018/COA 112531503/8648-52 Dated: 10/01/2019 Minutes of Meeting A meeting was held under the Chairmanship of Secretary(H&FW), on 03.01.2019 at 11.00 AM. In the Conference Room at 9th Level, A- Wing, Delhi Secretariat to discuss the various issues related to outsource services like Security, Sanitation, Nursing Orderlies through GeM. The Meeting was attended by MD/MSs and DCA/Accounts Functionaries as per list attached herewith as annexure-A. After detailed discussion with regard to issue of components to be included in minimum wages for hiring of outsourced services, days for which wages are to be pad, applicability of GST and bonus, following has been decided:-
1. Components to be included in Minimum Wages for procurement of outsource services through GeM. (Amount in Rs. Per day) S.No. Components Unskilled Category (Nursing Orderlies/Sanitation) Semi Skilled Category (Security)
1. Minimum Wages*
534.00 588.00
2. EPF (....) OF Sr. No.1
69.42
3. ESI (.... ) of Sr. No.1
25.32 27.93 Total 628.79 (Say Rs.529/-) 615.93 (Say Rs. 616/-) *The rates are applicable as per minimum wages act notified by Labour Department, GNCTD from time to time.
2. Bonus should not be included in the price bid and the same will be reimbursed by the hospital as per Labour Laws/other statutes notified from time to time.
3. It must be …… that monthly payment of employees shall not be paid more than the total strength proposed in the concerned tender. Further, hospital for which tender have already been approved shall ensure that the expenditure is incurred for number of sanctioned post @ 26 days per month.
4. GST should be paid as applicable from time to time.
5. Administrative Charges shall be paid as per GeM Portal. Meeting ended with a vote of thanks to the Chair. Sd /- (Surinder Narang) Dy. Secretary (O&M)” (Emphasis supplied) As per para 2 of the aforenoted Minutes of the Meeting, the respondent/hospital would reimburse in actual, the Bonus paid by the successful contractor to the security guards. Upon such consideration, learned senior counsel states that the petitioner is satisfied with the same.
7. Last but not the least. The submission that as per the Bid Document, the number of working days in a month is taken as twenty-six (26) days, whereas it should have been taken as thirty (30) days keeping in view that the services are needed 24x[7] for all the thirty (30) days in the Hospital, is noted only to be rejected. As per the Bid Document, the bidder is to have a total staff strength of one hundred twenty (120) security guards. It is obvious that the contractor would be rotating the security guards as per the requirements of deployment. It goes without saying that each security guard would be entitled to four (4) days leave in a month. There appears to be sound reasoning behind such stipulation. Thus, the additional requirement of number of working days to be twentysix (26) days in a month appears to be prudent.
8. In view of the above, this Court is of the considered opinion that the petition lacks merits and is accordingly dismissed alongwith pending applications.
ACTING CHIEF JUSTICE TUSHAR RAO GEDELA, J SEPTEMBER 27, 2024