M/S UTKAL SUPPLIERSversusM/S MAA KANAK DURGA ENTERPRISES & ORS.

                         [2021] 3 S.C.R. 391                              391


                     M/S UTKAL SUPPLIERS                                  A
                                  v.
      M/S MAA KANAK DURGA ENTERPRISES & ORS.
                (Civil Appeal Nos. 1517-1518 of 2021)
                           APRIL 09, 2021                                 B
    [ROHINTON FALI NARIMAN AND B. R. GAVAI, JJ.]
       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
                                                                          C
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 –             D
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
                                                                          E
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         F
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          G
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
                                                                          H
                                 391
392            SUPREME COURT REPORTS                      [2021] 3 S.C.R.


A     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
B     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-A-
C     B; 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)
D           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.
E           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
F     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
G     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-


H
    M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                              393
                ENTERPRISES & ORS.

guessing the authority’s interpretation of its own TCN which, as            A
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; 405-
C]
                                                                            B
                        Case Law Reference
[1994] 2 Suppl. SCR 122                relied on            Para 11
[2016] 3 SCR 551                       relied on            Para 12
[2016] 8 SCR 224                       relied on            Para 12         C
[2019] 6 SCR 950                       relied on            Para 12
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1517-
1518 of 2021.
       From the Judgment and Order dated 23.02.2021 and 02.03.2021
                                                                            D
of the High Court of Orissa at Cuttack in W.P. (C) No. 9475 of 2020 and
I.A. No. 3581 of 2021 arising out of W.P. (C) 9475 of 2020 respectively.
      Siddhartha Dave, Sr. Adv., Ms. Saumya Gupta, Avnish Kumar
Sharma, Debabrata Reddy, Ramendra Mohan Patnaik, Advs. for the
Appellant.
                                                                            E
     Aditya Kr. Choudhary, Gurmehar Vaan Singh, Vaibhav Prasad
Deo, Alok Pandey, Vivek, Babu Malayil, Rajesh Singh Chauhan,
Subhasish Mohanty, Kedar Nath Tripathy, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      R. F. NARIMAN, J.                                                     F
      1. Leave granted.
       2. These appeals arise out of a Tender Call Notice [“TCN”] dated
30.12.2019 issued by Respondent No.4, viz., the Office of the
Superintendent, SCB Medical College and Hospital, Cuttack. By this
                                                                            G
TCN, sealed tenders in a two-bid system (technical and financial) are
invited from eligible registered diet preparation and catering firms/
suppliers etc. having a valid labour licence and a food licence with a
minimum of three years of relevant experience in the field of preparation
and distribution of therapeutic and non-therapeutic diet to government
or private health institutions having a minimum of 200 beds for the year    H
394             SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A     2019-2020. In the “Terms of Reference” attached to the TCN, clauses
      VI.3.3 and VI.3.9 are important and are set out hereunder:
            “VI.3 Eligibility criteria:
            xxx xxx xxx
B           3. The bidder should have a minimum of 3 years’ experience in
            diet preparation and its supply/services in Govt. or Private Health
            Institutions only having minimum 200 no. of beds.
            xxx xxx xxx
            9. The bidder should have valid labour licence (registration no. &
C           date) of Labour Department.”
            Further, under clause VI.13, the right to reject any bid is set out as
      follows:
            “VI.13 Right to Accept or Reject the Bid:
D           The Hospital Administration reserves the right to accept or reject
            any bid and the bidding process and reject all such bids at any
            time prior to award of contract, without showing any reason
            thereby.”
            Equally, under clause VI.16, the administration of the SCB Medical
E     College and Hospital reserves under its sole discretion to disqualify any
      bid document if any of the documents enumerated in the said clause
      have not been submitted by the bidder. Clause VI.16(f) reads as follows:
            “VI.16 Disqualification:
            The Administration of the SCB Medical College Hospital, seeking
F           this bid, reserves under its sole discretion to disqualify any bid
            document if the following documents have not submitted by the
            bidder:
            xxx xxx xxx
            f) Labour License from competent authority”
G
            Under clause VI.20, sub-clause (6) states:
            “VI.20 General Information to Bidder:
            xxx xxx xxx

H
     M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                                 395
          ENTERPRISES & ORS. [R. F. NARIMAN, J.]

      6. The agency would recruit required number of staff for cooking          A
      and serving so that diet can be supplied to the indoor patients in
      time. List of personnel with their Aadhar card copy should be
      submitted to the office positively.”
       3. Pursuant to the aforesaid, four bids were received by the Tender
Committee – from the Appellant, Respondent no.1, Respondent no.5                B
and Respondent no.6. Vide the Technical Committee meeting dated
17.02.2020, Respondent no.1 and Respondent no.6 were held to be
disqualified inter alia for the reason that they had not submitted a valid
labour licence, i.e., a contract labour licence from the competent authority,
as per the TCN requirement. The Appellant and Respondent no.5 were
shortlisted for opening of financial bids.                                      C

       4. At this stage, Respondent no.1 filed a writ petition on 19.02.2020
apprehending that it may be disqualified. This writ petition was dismissed
as being premature on 20.02.2020.
       5. On 24.02.2020, the Tender Committee opened the financial              D
bids of the Appellant and Respondent no.5, and found the Appellant to
be the lowest bidder, quoting an average cost of Rs.82/- per patient per
day.
      6. Meanwhile, Respondent no.1 filed a writ petition dated
13.03.2020, praying that the Tender Committee proceedings be set aside          E
and that Respondent no.1 be awarded the tender.
       7. By a work order dated 27.11.2020, the Appellant was awarded
the tender at the approved rate. Pursuant thereto, an agreement dated
27.11.2020 was entered into between the Appellant and Respondent
no.4 for a period of one year. The High Court, by the impugned judgment         F
dated 23.03.2021, referred to the facts and thereafter held:
      “9. As mentioned above, Clause 9 of the eligibility criteria is candid
      and clear requiring valid license of Labour Department. The said
      stipulation never mandates the license to be issued under the
      Contract Labour (Regulation and Abolition) Act, 1970. In the wake
                                                                                G
      of the purpose, which is to supply diet, therapeutic and non-
      therapeutic to the patients to the hospital, we fail to concede to
      the submissions of requirement of labour license under the Contract
      Labour (Regulation and Abolition) Act, 1970. Rather the submission
      of the Petitioner that, the same is required under the Odisha Shops
      and Commercial Establishments Act appears more acceptable.                H
396      SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A     Therefore, the contention of the Opposite Parties requiring the
      labour license under the Contract Labour (Regulation and
      Abolition) Act, 1970 does not seem justified in view of the
      stipulation made in the TCN. When the submission of labour license
      (registration no. and date) by the Petitioner under the Odisha Shops
      and Commercial Establishments Act is not disputed, in our
B
      considered opinion the same satisfies the requirement sought for
      at Clause 9.
      10. Coming to the other shortfall as contended by the Opposite
      Parties regarding lack of three years’ experience in terms of
      Clause 3 of the eligibility criteria, the admitted case of the parties
C     are that the Petitioner has submitted the certificate issued by All
      India Institute of Medical Science, Bhubaneswar relating to
      experience of providing patient dietary service in AIIMS since
      8th August, 2015 till 26th October, 2018. This has been negatived
      by the Opposite Party No.3 by saying that the period of service of
D     the Petitioner in AIIMS, Bhubaneswar was not in chronological
      order and the certificate furnished by the Petitioner was having
      gap period of extension order from 6th August, 2017 to 31st July,
      2018. Such analysis of Opposite Parties in our considered view is
      flimsy on the face of Annexure-9 which is the experience certificate
      issued in favour of the Petitioner by the AIIMS, Bhubaneswar.
E     Moreover, the period of experience from 8th August, 2015 to 26th
      October, 2018 when exceeds three years period, the same appears
      to be satisfying the requirement of Clause-3 without any
      hesitation.”
      xxx xxx xxx
F
      “13. It is admitted by the Opposite Parties that in the meantime
      during pendency of the writ petition, Opposite Party No.5 has
      been issued with the work order on 27th November, 2020 and he
      commenced with the supply of work with effect from 1st
      December, 2020. This undoubtedly a development made during
G     pendency of the writ petition and as such is governed by the
      principle of lis pendens and of course such development happened
      in the meantime is subject to final result of the writ petition.
      14. In view of the discussions made above as the bid of the
      Petitioner is found rejected illegally and contrary to the conditions
H     of the TCN and the Petitioner specifically states that he was the
     M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                                397
         ENTERPRISES & ORS. [R. F. NARIMAN, J.]

      lowest in the financial bid which the Opposite Parties has not           A
      replied cleverly, the action of Opposite Parties in rejecting the bid
      of the Petitioner and selecting Opposite Party No.5 for the purpose
      to grant him the contract, the same can safely be opined as mala
      fide action of the Opposite Parties. Accordingly, the grant of
      contract in order dated 27th November, 2020 under Annexure-F/
                                                                               B
      3 is quashed.
      15. In the result while quashing Annexure-F/3, Opposite Party
      Nos.1 to 3 are directed to issue work order in favour of the
      Petitioner in the event his financial bid is found lower than Opposite
      Party No.5 to commence the supply work with effect from 1st
      March, 2021. Needless to say that Opposite Party No.5 may                C
      continue his supply till 28th February, 2021.”
       8. Shri Siddhartha Dave, learned Senior Advocate, appearing on
behalf of the Appellant, has argued that the High Court could not have
second-guessed the authority’s reading of its own tender and held that a
registration certificate granted under the Orissa Shops and Commercial         D
Establishments Act, 1956 [“OrissaAct”] could replace a labour licence
under the Contract Labour (Regulation and Abolition) Act, 1970
[“Contract Labour Act”], as required by the authority. He also argued
that the minimum three years’ experience, as per the requirement
contained in clause VI.3.3 was missing, as the experience certificate          E
furnished by Respondent no.1 had a gap period from 06.08.2017 to
31.07.2018 which could not be made up and which was wrongly sought
to be made up by the High Court. He also argued that it was perverse to
hold that the action of the authority in granting the contract in favour of
the Appellant was mala fide, and further went on to argue that after
quashing the work order in favour of the Appellant, the High Court             F
exceeded its jurisdiction in directing the authority to grant the work order
to Respondent no.1.
       9. Shri Aditya Kumar Chaudhary, learned counsel appearing on
behalf of Respondent no.1 countered each of the aforesaid submissions.
He pointed out that under Section 1(4) of the Contract Labour Act, the         G
Act would apply only to an establishment in which 20 or more workmen
are employed. As the TCN did not require that establishments/firms etc.
that applied have 20 or more workmen, it is obvious that it is not this Act
that was the subject matter of clause VI.3.9 but it was the Orissa Act,
the registration certificate under which was produced to the satisfaction      H
398            SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A     of the High Court by Respondent no.1. He also countered the argument
      that three years’ experience was not made out in the case of Respondent
      no.1 and referred to certain certificates issued by the All India Institute
      of Medical Sciences, Bhubaneswar, which made it clear that it had such
      experience. He argued that in the present case, the High Court had not
      exceeded the parameters of judicial review as it found mala fides
B
      attributable to the authority and also argued that the contract was to be
      awarded to Respondent no.1 only if it was found that its financial bid
      was lower than that of the Appellant.
             10. Having heard learned counsel appearing on behalf of the
      Appellant and Respondent no.1, what is clear is that the authority
C     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, which read as follows:
            “VI.20 General Information to Bidder:
D
            xxx xxx xxx
            6. The agency would recruit required number of staff for cooking
            and serving so that the diet can be supplied to indoor patients in
            time. List of personnel with their Aadhar card copy should be
E           submitted to the office positively.
            xxx xxx xxx
            20. The behaviour of the staff of the agency towards the patients/
            attendants should be conducive and disciplinary action would be
            taken by the Hospital Administration against the staff of the said
F           agency violating the behavioural norm in consultation with the
            concerned agency.
            21. The agency would be responsible to make alternative
            arrangements in cases of situations such as staff strike, local strike
            [Bandh/Hartal] etc. ensuring that the patients get diet in the
G           appropriate time.”
             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.
H
     M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                                  399
          ENTERPRISES & ORS. [R. F. NARIMAN, J.]

        11. This Court has repeatedly held that judicial review in these         A
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. This has clearly been
held in the celebrated case of Tata Cellular v. Union of India, (1994)
                                                                                 B
6 SCC 651, paragraph 94 of which states as follows:
       “94. The principles deducible from the above are:
              (1) The modern trend points to judicial restraint in
              administrative action.
              (2) The court does not sit as a court of appeal but merely         C
              reviews the manner in which the decision was made.
              (3) The court does not have the expertise to correct the
              administrative decision. If a review of the administrative
              decision is permitted it will be substituting its own decision,
              without the necessary expertise which itself may be fallible.      D
              (4) The terms of the invitation to tender cannot be open
              to judicial scrutiny because the invitation to tender is in the
              realm of contract. Normally speaking, the decision to accept
              the tender or award the contract is reached by process of
              negotiations through several tiers. More often than not, such      E
              decisions are made qualitatively by experts.
              (5) The Government must have freedom of contract. In
              other words, a fair play in the joints is a necessary
              concomitant for an administrative body functioning in an
              administrative sphere or quasi-administrative sphere.              F
              However, the decision must not only be tested by the
              application of Wednesbury principle of reasonableness
              (including its other facts pointed out above) but must be
              free from arbitrariness not affected by bias or actuated by
              mala fides.
                                                                                 G
              (6) Quashing decisions may impose heavy administrative
              burden on the administration and lead to increased and
              unbudgeted expenditure.
              xxx xxx xxx”
                                                                                 H
400            SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A           12. Equally, this Court in Afcons Infrastructure Ltd. v. Nagpur
      Metro Rail Corpn. Ltd., (2016) 16 SCC 818 [“Afcons”], has laid
      down:
            “14. We must reiterate the words of caution that this Court has
            stated right from the time when Ramana Dayaram Shetty
B           v. International Airport Authority of India [Ramana Dayaram
            Shetty v. International Airport Authority of India, (1979) 3 SCC
            489] was decided almost 40 years ago, namely, that the words
            used in the tender documents cannot be ignored or treated as
            redundant or superfluous — they must be given meaning and their
            necessary significance. In this context, the use of the word “metro”
C           in Clause 4.2(a) of Section III of the bid documents and its
            connotation in ordinary parlance cannot be overlooked.
            15. We may add that the owner or the employer of a project,
            having authored the tender documents, is the best person to
            understand and appreciate its requirements and interpret its
D           documents. The constitutional courts must defer to this
            understanding and appreciation of the tender documents, unless
            there is mala fide or perversity in the understanding or appreciation
            or in the application of the terms of the tender conditions. It is
            possible that the owner or employer of a project may give an
E           interpretation to the tender documents that is not acceptable to
            the constitutional courts but that by itself is not a reason for
            interfering with the interpretation given.”
            This view of the law has been subsequently followed repeatedly
      – see Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 [at paragraph
F     25], Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd.,
      (2019) 14 SCC 81 [at paragraphs 38 and 39], and State of Madhya
      Pradesh v. U.P. State Bridge Corporation Ltd., 2020 SCC OnLine
      SC 1001 [at paragraphs 24 to 26].
            13. In Galaxy Transport Agencies v. New J.K. Roadways,
G     2020 SCC OnLine SC 1035, after referring to paragraph 15 of Afcons
      (supra), it was held:
               “15. In the judgment in Bharat Coking Coal Ltd. v. AMR
               Dev Prabha, 2020 SCC OnLine SC 335, under the heading
               “Deference to authority’s interpretation”, this Court stated:
H
M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                               401
     ENTERPRISES & ORS. [R. F. NARIMAN, J.]

   “51. Lastly, we deem it necessary to deal with another                A
   fundamental problem. It is obvious that Respondent No. 1 seeks
   to only enforce terms of the NIT. Inherent in such exercise is
   interpretation of contractual terms. However, it must be noted
   that judicial interpretation of contracts in the sphere of commerce
   stands on a distinct footing than while interpreting statutes.
                                                                         B
   52. In the present facts, it is clear that BCCL and India have
   laid recourse to Clauses of the NIT, whether it be to justify
   condonation of delay of Respondent No. 6 in submitting
   performance bank guarantees or their decision to resume
   auction on grounds of technical failure. BCCL having authored
   these documents, is better placed to appreciate their                 C
   requirements and interpret them. (Afcons Infrastructure
   Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC
   818)
   53. The High Court ought to have deferred to this understanding,
   unless it was patently perverse or mala fide. Given how BCCL’s        D
   interpretation of these clauses was plausible and not absurd,
   solely differences in opinion of contractual interpretation ought
   not to have been grounds for the High Court to come to a
   finding that the appellant committed illegality.”
                                              (emphasis in original)     E

 16. Further, in the recent judgment in Silppi Constructions
 Contractors v. Union of India, 2019 SCC OnLine SC 1133, this
 Court held as follows:
   “20. The essence of the law laid down in the judgments referred       F
   to above is the exercise of restraint and caution; the need for
   overwhelming public interest to justify judicial intervention in
   matters of contract involving the state instrumentalities; the
   courts should give way to the opinion of the experts unless the
   decision is totally arbitrary or unreasonable; the court does not
   sit like a court of appeal over the appropriate authority; the        G
   court must realise that the authority floating the tender is the
   best judge of its requirements and, therefore, the court’s
   interference should be minimal. The authority which floats the
   contract or tender, and has authored the tender documents is
   the best judge as to how the documents have to be interpreted.
                                                                         H
402             SUPREME COURT REPORTS                             [2021] 3 S.C.R.


A               If two interpretations are possible then the interpretation of
                the author must be accepted. The courts will only interfere to
                prevent arbitrariness, irrationality, bias, mala fides or perversity.
                With this approach in mind we shall deal with the present case.”
                                                             (emphasis in original)
B           17. In accordance with these judgments and noting that the
            interpretation of the tendering authority in this case cannot be
            said to be a perverse one, the Division Bench ought not to have
            interfered with it by giving its own interpretation and not giving
            proper credence to the word “both” appearing in Condition No.
C           31 of the N.I.T. For this reason, the Division Bench’s conclusion
            that JK Roadways was wrongly declared to be ineligible, is set
            aside.”
             14. The High Court has not adverted to any of these decisions,
      and in second-guessing the authority’s requirement of a licence under
D     the Contract Labour Act, 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. Section 4 of the Orissa Act
      reads as follows:

E           “4. Registration of establishment.–(1) Within the period
            specified in sub-section (4), the employer of every establishment
            shall send to the Inspector of the area concerned, a statement in
            the prescribed form, together with such fees as may be prescribed,
            containing–

F               (a) the name of the employer arid the manager, if any;
                (b) the postal address of the establishment;
                (c) the name, if any, of the establishment;
                (d) the category of the establishment, that is whether it be a
                shop, commercial establishment, hotel, restaurant, cafe, boarding
G               or eating house, theatre or other place of public amusement of
                entertainment; and
                (e) such other particulars as may be prescribed.
            (2) No adolescent shall be allowed to work in any employment
H           for more than six hours in a day.
    M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                                  403
         ENTERPRISES & ORS. [R. F. NARIMAN, J.]

      (3) In the event of any doubt or difference of opinion between an         A
      employer and the Inspector as to the category to which an
      establishment should belong, the Inspector shall refer the matter-
      to the Chief Inspector who shall, after such enquiry as may be
      prescribed, decide the category of such establishment and his
      decision shall be final for the purpose of this Act.
                                                                                B
      (4) Within thirty days from the date mentioned in Column (2) below
      in respect of an establishment mentioned in Column (1), the
      statement together with fees shall be sent to the Inspector under
      sub-section (1)–
                                                                                C




                                                                                D

       A reading of this Section 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.                         E

      15. The argument of Respondent no.1 with reference to Section
1(4) of Contract Labour Act is wholly misplaced. Section 1(4) of the
said Act reads as follows:
      “1. Short title, extent, commencement and application.—                   F
      xxx xxx xxx
      (4) It applies—
         (a) to every establishment in which twenty or more workmen
         are employed or were employed on any day of the preceding
                                                                                G
         twelve months as contract labour;
         (b) to every contractor who employs or who employed on any
         day of the preceding twelve months twenty or more workmen:
      Provided that the appropriate Government may, after giving not
      less than two months’ notice of its intention so to do, by notification   H
404             SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A           in the Official Gazette, apply the provisions of this Act to any
            establishment or contractor employing such number of workmen
            less than twenty as may be specified in the notification.”
             The requirement of this Act that its applicability be extended only
      to establishments in which there are 20 or more workmen can be done
B     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 malafide.
C           16. The High Court’s characterising the action of accepting the
      Appellant’s tender as mala fide is itself open to question. The plea of
      mala fide made in the writ petition reads as follows:
            “22. That, in the meantime the petitioner ascertained that the tender
            inviting authorities have connived with the Opp. Party No. 4 to 6
D           and it is also ascertained that Opp. Party No. 4 to 6 belong to one
            establishment and are supplying the same contract to the SCB, so
            accordingly, with a malafide intention both have connived and a
            pre-planned attempt has been made to oust the petitioner on a
            flimsy ground. The entire exercise has been done by Opp. Party
            No. 3 to award the contract to Opp. Party No. 5 as they are still
E           continuing the aforesaid work and the entire endeavour of the
            Opp. Party No. 3 is to create some litigation so that, the opposite
            parties can continue during pendency of the writ application.”
             This plea was answered by the authority in its counter affidavit
      filed before the High Court as follows:
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            “15. That in reply to the averments made in paragraphs 22 to 25
            of the writ petition it is humbly and respectfully submitted that, the
            bidding process has been concluded in a transparent manner
            adhering to the required guidelines made thereto.
            It is further stated that the petitioner failed to comply with two
G
            basic requirements under eligibility criteria stipulated in the tender
            conditions i.e. (i) submission of valid Labour licence; (ii) submission
            of proper certificate of continuous three years’ experience in diet
            preparation and supply to Government/Reputed Private Health
            Institution having minimum 200 bed strength. As a result, the
H           Tender Committee disqualified the bid of the petitioner.
     M/S UTKAL SUPPLIERS v. M/S MAA KANAK DURGA                                  405
          ENTERPRISES & ORS. [R. F. NARIMAN, J.]

       It is further submitted that after thorough examination of the            A
       documents, M/s. Utkal Suppliers (O.P. No. 5) came out to be the
       L-1 bidder in the tender process and the same was sent to the
       higher authorities for detailed examination of technical and financial
       bids. SLPC being the competent authority as per F.D. Notification
       No.22393/Fdt.08.06.2012 after due examination of records has
                                                                                 B
       recommended to place the work order with the L-1 bidder.
       Accordingly, the work order has been issued in favour of the L-1
       bidder (O.P. No. 5) vide this office letter No. 23347 dated
       27.11.2020 and the selected firm has taken up diet services work
       in the hospital w.e.f. 01.12.2020.”
       A reference to the aforesaid pleadings would also go to show that         C
except for an incantation of the expression malafide, no mala fide has
in fact been made out on the facts of this case.
      17. The High Court’s judgment is consequently set aside and the
appeals are allowed. The Appellant is to be put back, within one week
from the date of this judgment, to complete performance under the                D
agreement entered into between the Appellant and the authority on
27.11.2020.


Devika Gujral                                                 Appeals allowed.
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