The above writ petition is an off-shoot of the earlier litigation, the judgments in which are produced as Exhibits P11 and P12.
2. The brief facts are that, the petitioner, a Co-operative Society, comprising of members who were said to be traditional manual sand mining workers, claim sand dredging work carried on by the respondent-Port. The respondent-Port notified the said work by Exhibit P8, pursuant to and in compliance with Exhibit P7 Government Order. The petitioner submitted Exhibit P9, tender form. The petitioner-Society staked their claim by virtue of their members being identified as traditional sand mining workers, by the Local Self Government Institution [for brevity “LSGI”] and the factum of residence of these members within the local area of the Port. These were the essential qualification for applying under the notification.
3. The dispute centres around the contract awarded to one of the zones named “Shiriya Valayam”, categorized as K5 Zone. The award was given to one another society, being “The Kasargod Hollow Bricks Nirmana Thozhilali Vyavasaya Sahakarana Sanghom”, who was the 6th respondent in Exhibit P11 judgment. The petitioner challenged the award on the contention that, as the name indicates, the awardee is a Hollow Bricks construction workers society and it does not have, as its main or ancillary object, manual sand mining or dredging work.
4. The Port supported the award on the ground that the employees in the awardee-Society were all included in the registers maintained by the Port as “traditional manual sand mining employees”. This Court, in Exhibit P11 judgment, found that it is not disclosed as to when such register was introduced and on what basis the names were entered in the register. The provision which enabled the Port to maintain such register; including individuals as “traditional sand mining employees”, was found to have been not pointed out either by the Port or the awardee. The award was found to be regulated only by Exhibits P7 and P8 orders. Exhibits P7 and P8 produced herein were produced as Exhibits P10 and P11 in the earlier writ petition [W.P.(C).No.25928 of 2013]. There is no dispute that Exhibit P8 notification was issued in pursuance of Exhibit P7 Government Order.
5. This Court, in Exhibit P11 judgment, found that there was nothing in Exhibit P7 indicating any verification with the register maintained by the Port. Exhibit P7 Government Order was found to have referred to proof “by identity cards issued by the local bodies'. No executive order or statutory provision having been pointed out by the Port or the awardee, the reliance on the register maintained by the Port was found to be wrong. The threshold eligibility of the awardee was found to be lacking, on there being no object in the bye-laws with respect to sand mining or dredging. The bye-laws were perused to find that even a cursory look would indicate that the awardee was not qualified to proffer a tender as per Exhibit P8 notification. The award was set aside. The records were perused and despite the learned Senior Counsel then appearing for the awardee having urged before Court that the verification of the credentials of the petitioner and its members would be called for, before award in such contract, this Court negatived such contention. This Court found that the threshold eligibility of both the tenderers were verified and they were given marks by the Tender Verification Committee. The awardee got 34 marks and the petitioner got 32 marks. The award was set aside only for the threshold eligibility of the awardee being found to be lacking. Hence, this Court directed award of the tender to the petitioner; since none had any dispute with respect to the threshold eligibility of the petitioner-Society.
6. The original awardee filed an appeal, which was disposed of by Exhibit P12. The Division Bench upheld Exhibit P11 judgment; but, however, found that Exhibit P11 ought not to have directed grant of the award to the petitioner-Society. Paragraph 5 is extracted hereunder:
“5. The further question to be considered is whether once the appellant is found to be ineligible, the learned Single Judge was justified in directing that the tender be finalised in favour of the 1st respondent. In this context, we should make reference to another condition of Ext.P10 Government Order which prescribe that at least 90% of the members of the Society should be involved in the activity of manual dredging in the port limits and the averments in the affidavit filed by the 3rd respondent that the 1st respondent Society is failed to prove that more than 90% of its members are fully engaged in manual dredging within the port limit. In such a situation, once the learned Single Judge found that the award of tender in favour of the appellant illegal, the proper course that the learned Single Judge should have adopted was to direct the official respondents to have assessed the eligibility of the 1st respondent and to take a decision on that basis applying the norms set by the Government and by themselves in Exts.P10 and P11”.
Hence, the Division Bench interfered with the award made in Exhibit P11 and directed consideration of the eligibility specifically looking at the norms set out by the Government and by the Port in Exhibits P10 and P11 [which Exhibits are produced herein as Exhibits P7 and P8]. In the present writ petition what is assailed is the reconsideration done on the basis of the Division Bench judgment [Exhibit P12], by Exhibit P13.
7. The rejection was made on the following grounds in Exhibit P13:
“1. None of the individuals named in the society's members list find a place in the register of dredging workers in Kararagod port except for one person namely Sri.Ibrahim, S/o.Ahammed, Kumbala.
In the light of the above findings, the Kumbala labour contract co-op. Society ltd is hereby declared to be ineligible for selection to the award of manual dredging work in Kasaragod port”.
When Exhibit P11 found that there can be no sanctity attached to the register maintained by the Port and when such a register was not the standard of verification either in Exhibit P7 and P8, the respondent-Port ought not to have declined the threshold eligibility on such ground, is the contention which can be easily accepted.
8. In the present writ petition, in fact, the 3rd respondent, who declined Exhibit P13, was impleaded in the personal capacity as the 4th respondent. The 4th respondent was issued with notice and his presence was also called for. The 4th respondent appeared through counsel. The learned Senior Counsel, instructed to appear for the 4th respondent, would argue on the conditions stipulated in Exhibit P8 order as also Exhibit R4(d). The learned Senior Counsel would contend that there is nothing in Exhibit P7 to indicate that the identity cards of LSGI have to be accepted. Exhibit R4(d) is a Circular, issued by the Directorate of Ports, Thiruvananthapuram, which, according to the learned Senior Counsel, indicates that a Register was maintained in Kasaragod Port and directed all Ports to open a Traditional Port Manual Dredging Workers Register. Hence, the 4th respondent, who transferred and took charge, after the earlier litigation, had passed Exhibit P13 order, is the contention.
9. This Court had specifically heard the learned Senior Counsel on the ground of contempt, since this Court was, prima facie, of the opinion that the reliance on the Register would invite suo motu proceedings for contempt.
10. On the question of contempt, the learned Senior Counsel addressed this Court and pointed out that this Court, in Exhibit P11 judgment, had merely doubted the sanctity of the Register, since nothing was pointed out which could enable maintenance of such Register. Exhibit R4(d) gives the Register a legal backing, according to the learned Senior Counsel. Further, it is also pointed out that the direction to award the contract to the petitioner was set aside by the Division Bench and a re-consideration was directed. The Division Bench had directed consideration of the issue as per the norms set out by the Government or the Port and Exhibit R4(d) would be such a norm, is the argument.
11. This Court is not convinced of both the aforesaid arguments, since Exhibit R4(a) is issued after Exhibits P7 Government Order and Exhibit P8 notification and the Division Bench specifically directed consideration of the petitioner's eligibility applying the norms set by the Government and by themselves in Exts.P10 and P11. However, there is considerable weight in the submission of the learned Senior Counsel that if at all contempt can be found, it can only be of the judgment of the Division Bench. This Court, therefore, refrains from initiating any suo motu proceedings for contempt.
12. Looking at the aspect of sustainability of Exhibit P13 and the reliance on Exhibit R4(d), this Court cannot but express its displeasure in the decision taken. This Court specifically found that the Register maintained by the Port has no role to play in deciding the award of tender as per Exhibits P7 and P8. The Division Bench also specifically directed consideration, applying the norms set out by the Government and by themselves in Exhibits P10 and P11 [Exhibits P7 and P8 herein]. Hence, it cannot be said that any other norm can be looked into by the authority considering the award of tender.
13. Further, Exhibit P7 is dated 16.08.2013. Exhibits P8 is issued on 17.08.2013. The tender form at Exhibit P9, submitted by the petitioner, itself has been signed and dated on 03.09.2013. Exhibit R4 (d) is dated 30.09.2013 and could have nothing to do with respect to the notification or with respect to the consideration of eligibility.
14. The Government having come out with Exhibit P7 notification, that too after examining the norms proposed by the Director of Ports, the Directorate of Ports could not have brought in any further condition. True, there is a reference to maintenance of a Register in the Azheekal and Kasaragod Ports in Exhibit R4(d). But, that cannot regulate the tender notification made earlier nor can it have prospective application, since the tender norms are regulated by the Government Orders. Exhibit R4(d) also directed maintenance of a permanent record and the same was to be done as follows:
“Only persons with documentary proof are to be entered in the register and certified by the Port Conservator for accuracy of the traditional manual dredging workers permanent residence status and verification of the same in the field (sic)”.
Hence, even Exhibit R4(d) directed documentary proof to be entered in the Register and cross-verified in the field. For the documentary proof, one definitely has to go to Exhibit P7.
15. The specific norms contained in Exhibit P7, which comes up for consideration are (2) and (3):
“A. Norms for the Co-operative Societies:
xxx xxx xxx
(2) At least 90% of the members of the society should be fully involved in the activity of manual dredging in the port limits and directly experienced in manual dredging, being traditional sand dredging workers of the area and manual sand dredging should be the main means of livelihood for all the members.
(3) All the members of the co-operative society should be local residents who are traditionally making their living by manual dredging. An Identity Card should be obtained and produced by these traditional sand workers from the local authorities.
xxx xxx xxx”.
16. The Division Bench specifically noticed the norm with respect to 90% members being involved in the activity of manual dredging in the Port limits. The identity card to be obtained is from the local authorities, which can only be the LSGI. Though the learned Senior Counsel would draw a distinction, this Court does not find any distinction insofar as the first two sentences of norm (3) are concerned. Norm (3) insists that all the members of the Co-operative society should be local residents who are traditionally making their living by manual dredging and stipulates an identity card to be obtained and produced from the local authorities. The norm (4) also indicates that each of the workers engaged should be only members of the society and the society cannot act as a contractor by employing non-members. The membership of the society would be evident by the identity card issued in Form 6A of the Kerala Co-operative Societies Rules, 1969, which are produced herein as Exhibit P14 and attested by the LSGI.
In the above circumstances, the writ petition is allowed. Exhibit P13 is set aside and the 3rd respondent is directed to reconsider the issue in terms of the specific directions in Exhibit P12 judgment of the Division Bench as also the observations made herein above. The same shall be done within two weeks from the date of receipt of a certified copy of this judgment. Parties are left to suffer their respective costs.
vku.
( true copy ) Sd/-
K.Vinod Chandran, Judge