Tender: Invitation of tender – The Tender call notice stipulated that the bidder should have valid Labour Licence of Labour Department – Respondent no. 1 was disqualified for want of valid Labour Licence i.e. a contract labour licence from competent authority – Writ petition by respondent no.1 was allowed holding that the stipulation in the tender never mandated the licence to be issued under the Contract Labour (Regulation and Arbitration) Act, 1970 and rather same is required under Odisha Shops and Commercial Establishments Act – Appeal by successful bidder – Held: The writ court does not have the expertise to correct decision by substituting its own decision for the decision of the authority – High Court clearly overstepped the bounds of judicial review in such matters – In any case, a registration certificate under s.4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department – A reading of s.4 of the Orissa Act would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act – High Court’s order set aside – Judicial review – Writ jurisdiction.
Allowing the appeals, the Court
HELD: 1. The authority concerned read its own TCN to refer to the licence to be submitted by bidders as the labour licence under the Contract Labour Act. This is also clear from a reading of the tender document as a whole, and in particular, clauses VI.20.6, VI.20.20 and VI.20.21. Sub-clauses (20) and (21), in particular, make it clear that the staff employed would be employed by the agency as contract labour, the agency being responsible to make alternative arrangements in cases where their staff goes on strike. [Para 10][398-C-D; 398-G-H]
2. Judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. The High Court has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. [Paras 11, 14][399-AB; 402-D] Tata Cellular v. Union of India (1994) 6 SCC 651 : [1994] 2 Suppl. SCR 122; Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. (2016) 16 SCC 818 : [2016] 3 SCR 551; Montecarlo Ltd. v. NTPC Ltd., (2016)
15 SCC 272 : [2016] 8 SCR 224; Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81 : [2019] 6 SCR 950; State of Madhya Pradesh v. U.P. State Bridge Corporation Ltd., (2020) SCC OnLine SC 1001; Galaxy Transport Agencies v. New J.K.
Roadways, (2020) SCC OnLine SC 1035 – relied on.
3. A reading of Section 4 of the Orissa Act would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act. [Para 14][403-D-E]
4. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced. The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority’s interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide. Except for an incantation of the expression malafide, no mala fide has in fact been made out on the facts of this case. [Paras 15, 16][403-E-F; 404-B-C; 405C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.