Courts without questioning their correctness. However, in this case, the
manner in which the report has been submitted creates doubt with regard to
correctness thereof. There are various types of tests to be conducted and
even as per the procedure which has been attached alongwith the affidavit of
Dr. Kausik Ghosh, it is not possible to simultaneously carry out the tests.
It is true that we normally do not sit over the reports of the experts. But in
this case, the Respondents themselves constituted a committee to enquire into
the matter and report of the committee itself discloses that the FDDI, Chennai
does not have adequate facilities to carry out chemical tests. We also find that
the manner in which the report has been signed on 07.01.2016, which is now
stated to be signed on 11.01.2016, is not proper. This is a document of great
importance and if the head of the Institution is signing a document on a date
later to the date on which it is prepared, either he should correct the date on
the document itself or below his signature, he should clearly put the date to
show that on which date it was signed. Admittedly, Dr. Kausik Ghosh is the
head of FDDI, Chennai. For most of the period when these tests were
conducted, he was not in Chennai. No material has been placed by FDDI,
Chennai giving the names of the persons who carried out the tests, especially
the chemical test for which admittedly there are no facilities. We also find that
after this Court passed an order on 03.05.2016, tests were conducted by
FDDI, Noida and the tests reports are much more detailed and signed firstly by
the Scientists who carried out the tests and then co-signed by the Chief
Scientist of the Laboratory. This aspect is missing in the report of the FDDI,
Chennai. The FDDI, Noida has given separate test certificates with regard to
each type of test(s) conducted and we fail to understand why the same
procedure could not have been followed by the FDDI, Chennai.
In view of the above discussion, we are clearly of the view that FDDI,
Chennai did not act in the manner expected of a Government Laboratory. It
did not conduct tests properly. The tests have been conducted in a time
which is less than the minimum period required. The chemical tests were got
conducted outside and therefore, we have no option but to set aside the report
submitted by FDDI, Chennai (Annexure- R-1/3).
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (C) No. 239 of 2016
M/s XO Footwear Pvt. Ltd.,
V
1. Chhattisgarh State Minor Forest Produce (Trading & Development) Cooperative
Federation Limited,
Hon'ble Shri Deepak Gupta, Chief Justice
Hon'ble Shri P. Sam Koshy, J.
Dated:03 /08/2016
Citation:AIR 2016(NOC)619 CHH
1. Chhattisgarh State Minor Forest Produce (Trading & Development)
Cooperative Federation Limited (hereinafter referred to as “Respondent No.1”)2
provides footwear to the workforce engaged in collection of forest produce. It
is not disputed that Respondent No.1 got the product specifications of
footwear designed from Footwear Design & Development Institute at Noida
(hereinafter referred to as “FDDI, Noida). Since 2005, tenders have been
floated and the specifications have virtually remained unchanged till the last
notice inviting tender issued in the year 2015. The main change was that the
FDDI, Noida suggested to have durable light weight product and there should
be direct moulded PU sole instead of direct injected PVC sole.
2. On 28.11.2015, Respondent No.1 issued a Notice Inviting Tender
(hereinafter called 'the NIT'). The bids were invited in two parts, (a) technical
bid and (b) financial bid. The bids were to be submitted by 29.12.2015. In
terms of the NIT, each bidder was required to submit two pairs of sample of
ladies walking chappal with direct moulded PU sole, size 4, 7 and 10.
Respondent No. 1 instead of getting the samples tested from FDDI, Noida, got
them tested from Respondent No. 2-Footwear Design and Development
Institute, Chennai (hereinafter referred to as 'the FDDI, Chennai'). As per the
report of FDDI, Chennai, the samples submitted by the Petitioner did not meet
the required specifications with regard to thickness of sole (forepart) and sole
abrasion. All the samples of the Petitioner were found not to conform to the
standards on account of these defects.
3. The Petitioner filed the writ petition and the main challenge in the writ
petition was that the FDDI, Chennai does not have the necessary equipment,
knowhow or manpower to supervise, conduct and test 27 samples of 9 bidders
within a short period of 9 days. The samples reached Chennai on 31.12.20153
and the test report was sent on 07.01.2016. It is alleged that the samples
could not have been tested properly during this period. It is also alleged that
some tests require 7 days and some require additional days and therefore,
minimum 9 to 10 days are required for carrying out the tests.
4. The case of the Petitioner also is that before submitting its tender it had
got the samples of its footwear tested from FDDI, Noida and the FDDI, Noida
had found that the samples conformed to all standards. It is also alleged that
on 17.12.2015, the FDDI Noida stated that it would take 15 days time for
testing six pairs of ladies chappal and even in case of high urgency, it will take
minimum of 9 days to do the needful and 50% urgent charges would have to
be paid. The letter of the FDDI, Noida dated 17.12.2015 has been attached as
Annexure P/5. Therefore, the Petitioner contends that the testing done by
FDDI, Chennai is not proper.
5. Further, the case of the Petitioner is that it has supplied footwear to
Respondent No. 1 in the year 2011-2012, 2012-2013 and 2014-2015 and
there have been no complaints with regard to the footwear supplied by it. It is
also urged that Dr. Kausik Ghosh, Chief Technologist, FDDI, Chennai who has
signed the test report on 07.01.2016 was not actually present in Chennai on
the said date and the report is manipulated. It has also been urged that FDDI,
Chennai does not have any facilities to carry out chemical test and therefore
the test report is obviously manipulated. It has also been urged there is
cartelisation and the four successful bidders have quoted rates which are very
close to each other. It is further submitted that the difference in the price is
very high. The Petitioner had quoted Rs. 98.40 paise per pair, whereas, the
successful bids are approximately Rs. 150/- per pair and the loss caused to
the public exchequer will be to the extent of Rs. 6,37,50,000/-. On this basis, it
was prayed that the tender process initiated by the NIT dated 28.11.2015 be
cancelled and an enquiry be conducted into the circumstances under which
the FDDI, Chennai was chosen as Testing Lab and how the Testing Lab
completed the testing process in five clear days instead of minimum 9 clear
days.
6. This matter first came up before this Court on 29.01.2016 and the
Respondents were asked to reply to the same. Reply affidavit was filed by
Respondents No. 1 and 2. The entire original records were got produced in the
Court on 03.05.2016 when the following order was passed:
“The original records have been produced. Let them
be kept in sealed cover with Registrar General. Respondent
No. 1 is permitted to take xerox copy of the same for official
use.
Shri VS Lakda, Chief General Manager,
Chhattisgarh State Minor Forest Produce (T&D)
Cooperative Federation Limited, Raipur is present in Court.
Learned Counsel for Respondent No. 1 after taking
instructions from him, informs us that Respondent No. 1 is
ready and willing to send the second sample submitted by
the Petitioner as mentioned in the order dated 4.3.2016 to
the FDDI at Noida, the first of the sample having been sent
to FDDI, Chennai had failed and which is the bone of
controversy.
Learned Counsel for Respondent No. 1 submits that
the sample shall be so sent within a period of one week.
The FDDI, Noida shall make all endeavour to submit report
within a maximum period f 2-3 weeks from the date that it
receives samples from Respondent No. 1.”
7. It would be pertinent to mention that thereafter the Petitioner filed an
application for modification of the order dated 03.05.2016 on the ground that5
since the FDDI, Chennai did not have facilities for carrying out the chemical
test, the samples of all the bidders should be sent for fresh testing to FDDI,
Noida. We find no merit in this submission. This order was passed in presence
of the Petitioner and we see no reason to modify the said order at this stage.
The test report of FDDI, Noida reveals that the samples for size 4 and 7 meet
all the specific requirements except “Specification requirement No. 4.11
Electrical Insulation of Sole and Specification requirement No. 4.16 Chemical
Test – Phthalates”. With regard to sample for size 10, there were two other
objections which are “Specification requirement No. 4.1 Strap (In-sept
penetrating) and Specification requirement No. 4.9 thickness of sole (Heel
Height)”.
8. The Petitioner had filed an application for setting aside the report of
FDDI, Chennai dated 7.1.2016 stating that the report of the FDDI, Noida
contradicts the report of FDDI, Chennai and therefore, the report of FDDI,
Chennai should be rejected. In the said application, the Petitioner has
prepared a comparative chart and the same is as follows:
Sl.
No
Test Name Specified
Requirement
Report
issued
by
Sizes of Chappal Result
4 7 10
COMPARISION BASED ON REPORT ISSUED BY FDDI CHENNAI Claimed Dtd. 07.01.2016
1. 4.9 Thickness of
forepart of sole-
12 mm±
2mm
FDDI
Noida
11 10 10 Conforms
FDDI
Chennai
8.75 8.90 9.60 Not
Conforms
2. 4.3 Abrasion
Resistance of
Sole
150 mm3
max
FDDI
Noida
129 101 93 Conforms
FDDI
Chennai
166 184 170 Not
Conforms6
COMPARISION BASED ON REPORT ISSUED BY FDDI NOIDA Dtd. 03.06.2016
1 4.1 Strap (instep
Penetrating
Minimum
20 mm
FDDI
Noida
>20 >20 15MM Not
Conforms
FDDI
Chennai
>20 >20 >20 Conforms
2 4.9 Thickness of
sole
25± 2 mm FDDI
Noida
25 23 19mm Not
Conforms
FDDI
Chennai
23.01 23.0 23.02 Conforms
3 4.11 Electrical
Insulation of sole
100 K
ohm to
1000 M
ohm
FDDI
Noida
1.83 G
ohm
1.90 G
ohm
1.84 G
ohm
Not
Conforms
FDDI
Chennai
910 M
ohm
948 M
ohm
930 M
ohm
Conforms
4 4.16 Chemical
Tests (c)
Phthalates
0.05% FDDI
Noida
Not
Conforms
Not
Conforms
Not
Conforms
Not
Conforms
FDDI
Chennai
Conform Conform Conform Conforms
9. It is contended by Shri Mayank Rustagi, learned counsel for the
Petitioner that the objections raised by FDDI, Chennai are totally wrong and
this is confirmed by the report of FDDI, Noida. He further contends that the
samples of the Petitioner as per FDDI, Chennai did not meet the requisite
standards in relation to the thickness of forepart of the sole and abrasion
resistance of sole. He submits that now the chappals meet the requirement of
thickness of forepart of sole and abrasion resistance of sole. However, we find
that even now all the three samples failed the test of electrical insulation of
sole and also chemical test (c) Phthalates. With regard to the sample for size
10, strap (instep) penetrating does not conform of the standards and thickness
of the sole is also much below the prescribed specifications. We therefore
cannot accept the plea of the Petitioner that now its samples should be treated
to conform to the required standards. 7
10. Faced with the situation, Shri Mayank Rustagi, learned counsel for the
Petitioner contended that the contradiction in the test reports clearly proves the
allegation of the Petitioner that the tests conducted by FDDI, Chennai were not
done in a proper manner. He therefore submits that the entire tender process
should be cancelled and re-tendering be done.
11. In this regard, we may point out that this footwear was to be provided by
the Respondent No. 1 to the workforce engaged in the fields for plucking of
tendu leaves. The footwear was to be provided before the plucking season
and the said season is over. Though, there was no stay order passed by this
Court, keeping in view pendency of this writ petition and the fact that the
original records were in this Court, Respondent No. 1 did not issue any
purchase order.
12. We are not fully satisfied with the manner in which the FDDI, Chennai
has conducted the tests. It is pertinent to mention that the FDDI, both at Noida
and Chennai are Government of India undertakings coming under the purview
of Ministry of Commerce and Industry. The summary test report dated
07.01.2016 of the FDDI, Chennai has been filed by Respondent No. 1 and it
bears the signature of Dr. Kausik Ghosh, Chief Technologist. At the bottom of
the report, there is a note that “details reports of all '9' industries have been
enclosed”. Out of 9 industries, samples of 5 including the Petitioner were
rejected and samples of four industries were found to meet all the
specifications. The sample of the Petitioner has been found not to meet the
specifications with regard to thickness of sole (forepart) and sole abrasion. 8
13. The grievance of the Petitioner is that all these tests could not have
been conducted in a short time and also that the FDDI, Chennai did not have
the facilities to carry out the chemical test. It is also pointed out that Dr. Kausik
Ghosh, Chief Technologist was in Delhi from 01.01.2016 till 04.01.2016 as a
part of inspecting team to find out capacity of each bidder. On 06.01.2016, he
was in Mumbai and left Mumbai on 08.01.2016. The Petitioner therefore
questions how Dr. Kausik Ghosh could have signed the test report on
07.01.2016. It is also pointed out that the conditioning had to be done for 7
days and not for 24 hours. In this regard, reference has been made to
Annexure R/2-3 filed by FDDI, Chennai itself. The contention of the Petitioner
is that firstly, a sample which is sent for testing has to be prepared in terms of
clause 5.10.3.1 and if it requires wet conditions then, then clause 5.10.3.2 has
to be followed. Thereafter, conditioning has to be done in terms of clause
5.10.3.3 and this conditioning has to be done for seven days and the test has
to be performed within five minutes of the removal of the test piece from the
conditioning atmosphere. It is submitted that the samples admittedly reached
FDDI, Chennai only on 31.12.2015. The report itself was prepared on
07.01.2016 and therefore, there could not have been conditioning for seven
days.
14. In this regard, Dr. Kausik Ghosh has filed his affidavit and in
paragraph 5, it is stated as follows:
“5. That the Laboratory of FDDI is fully equipped with latest
best testing equipments and infrastructure alongwith the
team of expert personnel to carry out both Physical and
Chemical Testing of Leather, Textile, Fabrics, Complete
Footwear, Components and Allied Materials etc.”9
In paragraph 13 of the said affidavit, the procedure followed by FDDI,
Chennai has been set out in a tabular form. From this table, it appears that all
tests were done on 01.01.2016 or later except the electrical resistance test
which was performed on 31.12.2015 and hydrolisis (sole) was done for five
days between 31.12.2015 and 07.01.2016. There is no specific answer as to
why the conditioning was not done for seven days. Another affidavit was also
filed by the Petitioner and it was urged that tests of all the samples could not
have been carried out simultaneously and the schedule of testing mentioned in
the affidavit of Dr. Kausik Ghosh was not correct.
15. The Petitioner also raised doubts about the signing of the report by Dr.
Kausik Ghosh on 07.01.2016 since admittedly he was not in Chennai on that
day. Dr. Kausik Ghosh stated in his affidavit that in fact only summary of the
report had been conveyed on 07.01.2016 and that he had signed the report on
11.01.2016. He also states that the complete report was handed over at
Raipur only on 11.01.2016 in person. It is apparent that this statement of Dr.
Kausik Ghosh is not correct.
16. We have carefully perused the report which has been attached by
Respondent No. 1 and this clearly shows that the report was dated 07.01.2016
and Dr. Kausik Ghosh had signed below the report. He has not put any other
date. These are manual signatures and not scanned signatures. This clearly
indicates that the report was signed on 07.01.2016 and there is a note that
“details reports of all '9' industries have been enclosed”. If Dr. Kausik Ghosh
had not signed the report on 07.01.2016 and had signed on 11.01.2016 as
stated by him, he should have been careful enough to mention the date of
11.01.2016 below his signature. He is the Chief Technologist of FDDI,10
Chennai and should have ensured that the document is properly dated. His
explanation that only summary was sent by e-mail is also false since what has
been produced by the Respondents is a complete report signed by Dr. Ghosh
which carries the date 07.01.2016. There is no explanation how the report
alongwith "details reports of all 9 industries" was sent on 07.01.2016 when
Dr. Kausik Ghosh was not there at Chennai on the said date.
17. Reports issued by such Laboratories are normally accepted by the
Courts without questioning their correctness. However, in this case, the
manner in which the report has been submitted creates doubt with regard to
correctness thereof. There are various types of tests to be conducted and
even as per the procedure which has been attached alongwith the affidavit of
Dr. Kausik Ghosh, it is not possible to simultaneously carry out the tests. One
must remember that each bidder was required to submit alongwith the tender
two pairs of each samples of size 4, 7 and 10 i.e. total of six pairs. Out of this,
one pair of each size i.e. six chappals of each manufacturer was sent to the
FDDI, Chennai. It however appears that in fact only one chappal of each size
was sent to Chennai because in the report dated 07.01.2016, the subject was
“Test Report Summary of 27 PU Chappal Samples”. This means that there
was only 27 chappals available with the Laboratory at FDDI, Chennai I.e 3
chappals of each bidder. The tests are of different types and when one of the
tests requires that the chappal has to be conditioned in a particular
atmosphere for 7 days, then the chappal has to be kept in that atmosphere for
7 days and could not be sent out of the lab. It is also apparent from the letter
of the FDDI, Noida which clearly shows that it takes minimum 9 days to11
conduct all the tests. Hydrolysis test on the sole itself takes 6 days as per the
communication dated 16.12.2015 sent by FDDI, Noida. Test for Electrical
Insulation of sole in dry and wet conditions takes 8 days. This much time was
not available with the FDDI, Chennai.
18. In fact the Respondents themselves constituted a committee vide order
dated 12.02.2016 to enquire into the matter related to Inspection & Testing
Services for Tendupatta Pluckers of Respondent No. 1. With regard to
capacity of FDDI, Chennai, the committee gave its report that the FDDI,
Chennai was found to be adequate to carry out specific tests of tender
documents except the chemical tests recommended. In this report itself, it
is mentioned that the tests can be conducted in seven days as the lengthiest
test is the electric resistance test for which 7 days are required. But the report
acknowledges the fact that FDDI, Noida in its communication dated
17.12.2015 has mentioned that minimum 9 (7+2) days are required to conduct
the tests. It is also proved from the report that the samples were received at
FDDI, Chennai on 31.12.2015. However, the report is not clear as to at what
time the samples reached FDDI, Chennai. The relevant portion of the report is
as follows:
“IV. As per the tender specification provided by
Chhattisgarh State Minor Forest Produce (Trading &
Development) Co-operative Federation Limited the tests
can be conducted in 7 days' time as the lengthiest test is
Electrical Resistance Test for which 7 days conditioning is
required in a particular atmosphere and test shall be
performed within 5 minutes of removal of test piece from
the conditioning atmosphere, if the test is not carried out in
that atmosphere.
As all the submitted samples were found to be consumed
during the process of testing, hence test re-test could not
be conducted to verify the reports.
In case of availability of more samples with Chhattisgarh
State Minor Forest Produce (Trading and Development)
Co-operative Federation Limited re-testing can be carried
out.
4. The fact cannot be denied that the test results of a
sample tested at two different laboratories cannot differ in
the values report by each lab.”
19. Assuming for the sake of arguments that the tests could have been
conducted within 7 days but as mentioned in this report, the electrical
resistance test requires 7 days conditioning. This means that the sample had
to be kept in a particular condition, obviously within the laboratory for seven
days. Admittedly, the FDDI, Chennai does not have the facilities to carry out
the chemical tests. It is not disputed that chemical tests were required to be
carried out. The case of FDDI, Chennai is that it outsourced the work for
chemical tests. In our opinion, this is highly improper. If the FDDI, Chennai did
not have the facilities to carry out any test, then it should have informed
Respondent No. 1 that it does not have these facilities and that it would be
getting these tests done from some other laboratory. In the test report, neither
this fact was mentioned nor there is any whisper that these tests were
outsourced. There is no mention as to which laboratory carried out the
chemical test and therefore it cannot even be verified whether such laboratory
had the necessary wherewithal to carry out necessary tests. We therefore
have grave doubts with regard to the correctness and veracity of the tests.
20. It is true that we normally do not sit over the reports of the experts. But in
this case, the Respondents themselves constituted a committee to enquire into
the matter and report of the committee itself discloses that the FDDI, Chennai
does not have adequate facilities to carry out chemical tests. We also find that
the manner in which the report has been signed on 07.01.2016, which is now
stated to be signed on 11.01.2016, is not proper. This is a document of great
importance and if the head of the Institution is signing a document on a date
later to the date on which it is prepared, either he should correct the date on
the document itself or below his signature, he should clearly put the date to
show that on which date it was signed. Admittedly, Dr. Kausik Ghosh is the
head of FDDI, Chennai. For most of the period when these tests were
conducted, he was not in Chennai. No material has been placed by FDDI,
Chennai giving the names of the persons who carried out the tests, especially
the chemical test for which admittedly there are no facilities. We also find that
after this Court passed an order on 03.05.2016, tests were conducted by
FDDI, Noida and the tests reports are much more detailed and signed firstly by
the Scientists who carried out the tests and then co-signed by the Chief
Scientist of the Laboratory. This aspect is missing in the report of the FDDI,
Chennai. The FDDI, Noida has given separate test certificates with regard to
each type of test(s) conducted and we fail to understand why the same
procedure could not have been followed by the FDDI, Chennai.
21. We may point out that we find no defect in the system followed by
Respondent No. 1. Reckless allegations have been made by the Petitioner
against the officials of Respondent No. 1 that they were in connivance with the
successful bidders and therefore the samples were sent to FDDI, Chennai
instead of FDDI, Noida. We find no merit in this submission. The FDDI,
Chennai is also an undertaking of the Government of India. After going
through the entire documents, we feel the procedure followed by Respondent
No. 1 is absolutely just and proper.
22. In view of the above discussion, we are clearly of the view that the
manner in which the FDDI, Chennai conducted the tests and submitted its
report leaves much to be desired. We have already made detailed
observations in this regard above. We also find that the difference in the rates
is very high.
23. In view of the above discussion, we are clearly of the view that FDDI,
Chennai did not act in the manner expected of a Government Laboratory. It
did not conduct tests properly. The tests have been conducted in a time
which is less than the minimum period required. The chemical tests were got
conducted outside and therefore, we have no option but to set aside the report
submitted by FDDI, Chennai (Annexure- R-1/3).
24. This brings us to the issue as to what relief should be granted in this
case. We have held that the tender process other than the testing by the
laboratory at Chennai is legal and proper. We are, however, not satisfied with
the report of the laboratory at Chennai. We therefore, direct that the samples
of other successful bidders, namely, Respondents No. 3, 4, 5 and 6 shall be
sent to some other laboratory (which may include FDDI, Noida) for testing. We
are not directing sending of other samples because other than the Petitioner,
none of the other companies had approached us. In case, the samples
submitted by the Respondents No. 3, 4, 5 and 6 on re-testing are found to
meet the required standards, then Respondent No. 1 is free to place orders on
them. However, if their samples fail to pass necessary tests, then Respondent
No. 1 shall have to issue fresh tender for supply of footwear. As far as the
Petitioner is concerned, no relief can be granted to it in this behalf because its
samples have failed not only at FDDI, Chennai, but also at FDDI, Noida.
25. The writ petition is disposed of in the aforesaid terms. No order as to
costs.
Sd/- Sd/-
(Deepak Gupta) (P. Sam Koshy)
CHIEF JUSTICE JUDGE
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