Decision Of Adjudicating Authority Can't Be Doubted Merely Because It Is Govt Limb, Reliable Evidence Indicating Bias Is Must: Karnataka High Court

A division bench of Acting Chief Justice Alok Aradhe and Justice J M Khazi made the observation while dismissing an intra-court appeal filed by Philips India Limited challenging an order passed by Single Judge, by which writ petition preferred by it seeking quashing of tenders was disposed of with the direction to the appellate authority to decide the appeal within four weeks.

The tender pertained to supply and installation of 3.0 Tesla MRI and 128 Slice CT Scanners to Medical colleges/ hospitals.

Philips claimed that it had sent a communication to the Director of Medical Education, pointing out some discrepancies in the bids submitted by respondent No.4- a Limited Liability Partnership and Respondent No.5- Shanghai United Imaging Healthcare Co Ltd, incorporated under the Laws of the People's Republic of China. However, the aforesaid communication failed to evoke any response.

The company thereupon preferred an appeal before the appellate authority under Section 16 of Karnataka Transparency in Public Procurement Act, 1999 and filed applications seeking stay of all further tender proceedings. It is the case of Philips that during the course of hearing, the appellate authority indicated that the application for stay has been rejected; however, copy of the order was not provided.

Thus, the writ petition was filed arguing that the appellate remedy is rendered illusory and contrary to principles of natural justice.

The single judge noted that pursuant to award of tender, respondent No.4 had already executed the work and CT scanners were installed. The writ petition was finally disposed of with a direction to the appellate authority to decide the appeal preferred by the appellant.

Senior Advocate Sajan Povvayya for the company submitted that the appellate authority, which had implemented a part of the order could not be expected to decide the issue in a fair and impartial manner. He contended that the single Judge erred in holding that the apprehension of the appellant about the official bias is without any basis. Thus it was urged that the State Government be directed to nominate any other officer in place of the appellate authority to adjudicate the appeal preferred by the appellant.

Additional Advocate General Dhyan Chinnappa submitted that the appellant's apprehension about lack of impartiality and official bias is unfounded. He further submitted that no question of bias is involved in the adjudicatory process before the appellate authority.

Findings:

At the outset, the bench observed that the issue of official bias has to be determined on the touchstone whether there is a "real danger of bias" on the part of a person against whom such apprehension is expressed in the sense that he might favour or disfavour a party.

Relying on the judgment of the Supreme Court in J.Y.Kondala Rao Vs. A.P.State Road Transport Corporation, AIR 1961 SC 82, the bench said,

"There has to be reliable evidence to indicate that the authority adjudicating the objection is biased and the decision cannot be questioned merely because officer is a limb of the Government."

Then the court noted that that the MRI machine had been delivered to DIMHANS. It thus observed,

"The appellate authority has complied with the direction issued by this Hon'ble Court and has ensured supply of one MRI machine out of total of 3 tesla MRI, 1.5 tesla MRI and 128 CT Scanners each which had been tendered. The appellate authority has in the aforesaid process of ensuring compliance with the orders of this court, has not adjudicated the issue raised by the appellant either with regard to irregularities in the tender or with regard to ineligibility of respondent No.4 on the ground that it is a company based in China. It is pertinent to mention here that the appeal before the Appellate Authority has been preferred after the filing of the affidavit dated 04.03.2022."

Accordingly it held, "There is no material on record to infer any official bias on the part of the appellate authority and the same cannot be inferred merely because the appellate authority has complied with the directions contained in the order passed by the division bench of this court in a Public Interest Litigation."

Case Title: Philips India Limited v. State of Karnataka & Others

Case No: W.A. NO. 557 OF 2022

Citation: 2022 LiveLaw (Kar) 258

Date of Order: 7th July 2022

Appearance: Senior Advocate Sajan Povvayya a/w Advocate Manu Kulkarni for appellant; AAG Dhyan Chinnappa a/w AGA Vijaykumar Patil for R1, R2; ASG Shanthi Bhushan H for R3; Senior Advocate R V S Naik for Advocate Nithin Prasad for R4.

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