The Chhattisgarh High Court recently has recently disposed of a PIL with the observation that it is for the tendering authority to decide the best way of achieving the objective of rice distribution to marginalised sections of society.
The Division Bench of Chief Justice Arup Kumar Goswami and Justice Goutam Bhaduri heard a PIL filed by Advocate Anuj Kumar Mishra challenging the tender issued by the Managing Director, Chhattisgarh Marketing Federation Limited, inviting request for proposal (RFP) for supply of semi-skilled and unskilled labourers at paddy collection centres for the kharif marketing year 2021-2022.
A specific prayer is made for insertion of a clause in the RFP requiring licence under the Private Security Agencies (Regulation) Act, 2005.
In terms of the RFP, the bid start date was October 13, 2021 and the bid open date was scheduled on November 16 at 12 noon. It is pleaded that as per the existing policy of the State of Chhattisgarh, paddy is purchased at the government prescribed fixed rate from the farmers which is double the market rate for their benefit, and after processing the same, rice is distributed through the PDS to marginalised sections of society through government fair price shops.
It is further pleaded that while some loss is expected during the process on account of various reasons, of late it has been noticed that such loss is increasing from 2% consistently, which was considered to be normal loss.
Prateek Sharma, counsel for the petitioner, submitted that it is only the private security agencies which are having licence under the Act of 2005 who can supply security personnel for the purpose of safety and security of any material/personnel and it is in that context, counsel submitted that in the present RFP semi-skilled labourers and un-skilled labourers are entrusted with the obligation and duty to ensure the safety and surveillance of stored paddy, and therefore, the tender is not sustainable in law.
It is also contended that from the Kharif Marketing Year 2018-2019, the practice of inviting tenders/RFPs for supply of security personnel has been discontinued for no good reason. The entrustment of the job of security and safety of the collected paddy from pilferage, etc. would be adequately safeguarded through the deployment of security staff from the licenced contractors as they can be held responsible and loss can be recovered from the contractors and this aspect of the matter has not been taken note of by the respondent authorities while issuing the present RFP, Sharma added.
Counsel for the respondents submitted that there is no requirement in law that a contractor through his labourers cannot keep vigil on the property entrusted to them and therefore Sharma’s submission is misconceived.
The duties of semi-skilled labourers and unskilled labourers are enumerated in clauses 4.1 and 4.2 of the terms and conditions of the RFP. The translated version of the same (translated by the Court) are as follows:
“4. Duties of the labourers who are to be employed –
4.1 Duties of the semi-skilled employees:-
1. Making a stack of sacks as per stack plan.
2. Stacking the paddy variety-wise while unloading the trucks.
3. Counting and emptying the sacks while unloading the truck.
4. Inspecting and examining the quality of paddy while unloading the truck.
5. Loading the sacks in the truck after counting for the purpose of delivery.
6. Delivery of paddy variety-wise.
7. Maintaining stack-wise record of sacks.
8. Collecting the sweepage paddy accumulated during movement of paddy, putting it in the stacks and thereafter, making entries.
9. Arrangement of drain etc. for removal of water as per requirement by the side of the stack.
10. Entry and exit of vehicles are done by android based gate-pass entry app at the entry/exit gate of collection center.
11. Safety/surveillance of stored paddy in collection centers.
4.2 Duty of unskilled employees:-
1. Daily surveillance, counting and ensuring safety of stack from piling of stack till its lifting.
2. Putting the cap cover on the stack.
3. Sprinkling of pesticides as per requirement over paddy stacks.
4. Counting of sacks while receiving the paddy.
5. Counting of sacks while making delivery of paddy, lifting of sweepage paddy and its stacking.”
Clause 17 of the terms and conditions of the RFP in the translated version (translated by the Court) reads as follows: “17. The bidder will entirely be responsible for the safety of the Marketing Federation’s property and shall also be liable to compensate the loss caused to the property of the Marketing Federation or for any other kind of damage. The bidder will be bound to compensate the loss for any damage caused due to any activity or negligence of any semi-skilled/unskilled labourers deployed failing which the earnest money of bidder will be forfeited and he shall be black-listed to restrain him from doing any work of the Marketing Federation.
On perusal of clause 15 of the RFP for supply of security guards for the Kharif Marketing Year 2018-2019, the Court noted that the same is verbatim reproduction of clause 17 which is inserted in the present RFP.
Therefore, the High Court did not accept the submission of Sharma that in the event of unexpected loss, there is no mechanism to haul up and make good the loss through the contractor as the same clause finds place in respect of the RFP for supply of security staff through the licenced security agencies.
“A perusal of the provisions of the Act of 2005 would go to show that no person can carry on or commence the business of a private security agency unless he holds a licence under the Act. Present is not a case of any private security agency being engaged to provide security. Present is a case where during the process of collection, stacking and finally for delivery of the paddy by the contractor, the contractor is also made responsible for ensuring safety and surveillance of the paddy collected. It is for the tendering authority to decide what is the best way of achieving the objective of distribution of rice to the marginalised sections of the society,”
-the order reads.
Considering the matter in its entirety, the Court opined that it is not a case where this public interest litigation ought to be entertained for the reliefs prayed for.