EVEREST COMPUTER CARBONS PVT LIMITED Vs. COMMISSIONER OF PRINTING AND STATIONERY AND STORES PURCHASE DEPT OF ANDHRA PRADESH

JUDGEMENT

(1.) This writ appeal is directed against the order passed by the learned single Judge against the judgment dated, 24-12-1990 in Writ Petition No. 11676 of 1990 dismissing the writ petition filed by the appellant-petitioner herein. The writ petition was filed with the following material averments. The writ petition was filed for the issue of a writ of mandamus declaring the action of the 1st respondent in ordering 90 per cent, of the tender quantity in respect of Items Nos. 1, 2, 3, 5, 9 and 10 to the 2nd respondent by the Purchase Order No. SP/7/B1/90-91/Sche-dule-III/UCL/47 dated 6-8-1990 as highly illegal, arbitrary, unjust and void and consequently to direct the 1st respondent to award the tender only to the petitioner herein in respect of the items for which lowest rates were offered by the petitioner-appellant herein or in the alternative to award 50% of the tender to the petitioner-appellant herein and 50% to the 2nd respondent equally in respect of all the items accepting the lowest rates.

(2.) M/s. Everest Computer Carbons Private Limited, the petitioner-appellant in this writ appeal, is a small scale industry engaged in the manufacture of typewriter carbons, pencil carbons, typewriter ribbons, teleprinter rolls, duplicating ink and adding and parchment machine paper rolls. The appellant-petitioner is an S.S.I, unit established in the industrially backward area. It had become a sick unit and was later on revived with the help of the Andhra Pradesh State Financial Corporation and three new Directors were appointed to make the unit more viable. The appellant claimed that they are having the latest technology and expertise in the fields of manufacture of the above items. The 1st respondent invited sealed tenders from the manufacturers/ suppliers for the supply of the store articles as per Schedule III of the tender notice in respect of the following store items. The sealed tenders were to be submitted before 3 p.m. on 27-7-1990 and were to be opened on 27-7-1990 at 3.30 p.m. In response to the said tender notification, the appellant and the 2nd respondent herein and several others filed three tenders for the supply of the above articles. It may be mentioned that the 2nd respondent viz., M/s. Universal Carbons Limited, is a S.S.I, unit with an experience of about 25 years in the manufacture of the above items. It is not denied that the above items have been supplied by the 2nd respondent over a number of about 15 years and its performance has never invited an adverse comment. The 2nd respondent is also functioning in collaboration with A.P.S.S.I.D.C. The two rival tenderers therefore are contesting parties in this writ petition and claim to have a better right to supply the materials in question. The following table reproduced in the counter-affidavit filed by respondent No.1 shows the rates which have been offered by the appellant and the 2nd respondent respectively in regard to all the items mentioned therein and the I.S.I. Marks which have been put by the rival tenderer, for each item mentioned in the schedule. Item No. 1 :-- Advertised specification

(3.) The controversy arising in this case is with regard to items Nos. 1, 2, 3, 9 and 10. There is no controversy in so far as items Nos. 4 and 11 given in the above schedule are concerned. It would be necessary to deal with the aspect relating to the ISI Marks awarded by the Bureau of Indian Standards both to the appellant herein and to the 2nd respondent. As informed by the Bureau of Indian Standards al Hyderabad, the appellant is a licence holder for the following: "Typewriter ribbon as per IS. 4174/77 for Type-E medium inking only. 2. Carbon paper as per I. 3450/ 76 Grade 'A' only. 3. Carbon 'paper for Typewriter as per IS 1551/76 Grade-3 only." The ISI marking for these products has not yet been started by the appellant's firm and the appellant does not possess the ISI Mark licence for duplicating ink also. A perusal of the above chart/schedule reveals the fact that in so far as item No.1 is concerned, the appellant "has quoted Rs.1549-50 ps. per gross as against the 2nd respondent who has quoted Rs.1550.00 i.e. 50 paise more than the appellant. In so far as ISI Mark on this product is concerned, the appellant's sample contains rubber stamp of ISI Mark on container without IS number. The samples supplied by the 2nd respondent Sears printed ISI mark with IS No. 4174. In regard to item No. 2, the appellant has quoted Rs.181 per ream as against the 2nd respondent, who has quoted Rs.180.00 per ream. The sample of the appellant contains rubber stamp of ISI Mark. The sample furnished by the 2nd respondent was embossed with ISI Mark. In regard to item No. 3, the appellant has quoted Rs.362.00per ream. The 2nd respondent has quoted Rs.360.00 per ream. The sample furnished by the appellant bears rubber stamp of ISI Mark. The sample furnished by the 2nd respondent is embossed with ISI Mark. For Item No.9 the appellant quoted Rs.169-50ps. per ream. The 2nd respondent quoted Rs.170.00 per ream i.e. 50paise more than the appellant. The sample furnished by the appellant contains rubber stamp of ISI Mark. The sample furnished by the 2nd respondent has the ISI mark embossed. For Item No. 10 the appellant quoted Rs.339.00 per ream. The sample furnished by the appellant contains rubber stamp of ISI mark. The 2nd respondent quoted Rs.340 per ream for item No.10. The sample furnished by the 2nd respondent contains ISI mark embossed on it. It is a well known fact that the ISI marks are put on a product to ensure the excellence of the products which bear such stamps. It is an essential feature of the quality control of the goods which are marketed openly for purchase by the general members of the public. The ISI marks inspire confidence in the people, who are the consumers of such goods and are therefore of considerable importance in the market over the products which found place on the shelf of stores, shops or super-bazars, as the case may be. It would be necessary in this regard to examine the rival positions of the appellant as well as the 2nd respondent in so far as the ISI Marks are concerned, which they are entitled either to emboss or to rubber stamp on the products which are offered by them in these tenders and important feature to be kept in mind while doing so is to take into consideration the tender schedule, which has been issued in this regard. Even at the risk of certain length in the judgment, we deem it fit and necessary to reproduce the items l, 2, 3, 9 and 10, which are mentioned in the tender schedule and are in the following terms. The important feature which has to be kept in mind while dealing with this case is that in every item, which is mentioned above, it is the condition of the tender that the 1ST Mark prescribed therein has to be mentioned by the tenderer. We have examined in this regard some of the specimens, which have been produced by the appellant as well as respondent No. 2 to ensure whether this particular condition of the tender has been complied with or not. Taking at random some of the samples in regard to certain items furnished by the 2nd respondent, it is clear that on the wrapper in which the samples were enclosed, there is a tag pasted on it giving in printed or embossed form the ISI emblem with the necessary number assigned to such products for testing the quality of the product. As against these samples furnished by the appellant herein show that on the wrapper a rubber stamp has been put with ISI emblem giving the relevant number (for example like 1551/1976), so that the quality of the product supplied by the tenderer may be compared with the standard quality prescribed under the relevant number assigned to such product by the ISI. These numbers are not in a printed form, but are given on the wrapper in a rubber stamp form. The explanation offered for this apparent disparity in the two forms viz., one with the printed 1ST Mark and the other with the rubber stamp ISI emblem is in terms of the letter dated 22-8-1990 issued by the Bureau of Indian Standards. Since the letter is a short one, but of considerable importance, it would not be out of place to reproduce the entire letter in this judgment to clarify the position as to whether there is any difference between the status enjoyed by the appellant as against the 2nd respondent in so far as ISI certification is concerned. "This has reference to your letter No. SP/7/90-91/Sch-III dated 17-8-90 seeking information with respect to the ISI licence of M/s. Everest Computer Carbon Private Limited. The following is the information as desired: 1.They are the licence holders for the following. a) Typewriter ribbons as per IS 4173/77 for Type 1; b) Carbon paper, as per IS. 3450;76 Grade 'A' only; c) Carbon paper for typewriting as per IS 1551:76 Grade 3 only. From our records, it is for your information that the ISI marking of these products has not been started by the firm. M/s. Everest Computer Carbons do not possess an ISI Certification Marks Licence for duplicating ink as per IS: 1222:73 "specification for Ink, duplicating, for twin cylinder rotary machines and IS 1333:78 "specification for Ink, duplicating, for single drum rotary machine". It is requested that your Department may please provide samples of ISI marked products to enable this office to carry out testing of the same as a part of our certification Marks Activity as the same gives us a feed back from the market for ISI certified products. Hope the above information is as desired by you." It is significant to note that the "Bureau of Indian Standards" has written in the said letter that according to their information the ISI Marking of these products in so far as the appellant is concerned has not yet been started by the firm. This obviously means that the Unit which has regained health only recently has not yet embarked upon the manufacture of the goods is question. Even more important is the fact that it is mentioned in the letter that the Department is requested to provide samples of ISI mark products furnished by the appellant to enable the office of the Bureau to carry but testing of the same as a part of Certification Marks Activity and for the purpose of feed back from the market for ISI Certified products. The obvious conclusion to be drawn from a reading of this letter is that while it is true that the appellant is a licence holder of the ISI to sell its products, has not yet been fully tested by the Bureau of Indian Standards either because of the fact that the unit has not gone into production or that the articles in question have not been compared with the standard specifications laid down by the I.S.I. Bureau. This factor is one which has to be kept in mind while dealing with a case of this nature to arrive at a just conclusion out of the intricated controversy, which is raised in the writ petition by two rival tenderers.