The casual labourers shall be entitled to the wages according to the rates specified in the order dated 14.01.2010 passed by this Court in Civil Appeal Nos. 94729473/2003 and the
contractor shall not be entitled to 471% ASOR basis with respect to supply of casual labourers as claimed by him.
Therefore, it is specifically observed and held that the FCI shall be liable to pay the wages payable to the casual labourers under the subject contract according to the rates specified in the judgment and order dated 14.01.2010 passed by this Court in Civil Appeal Nos. 94729473/2003 and not on 471% ASOR basis. It goes without saying that the contractor shall be entitled to reimburse the wages paid by him, i.e., Rs.106.38 per labourer, if the same is not reimbursed/paid to the contractor.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9127 OF 2019
(Arising from SLP(C) No.21970 of 2019)
Food Corporation of India …Appellant
Versus
Pratap Kundu …Respondent
WITH
CIVIL APPEAL NO.9128 OF 2019
(Arising from SLP(C) No.28248 of 2019)
@ Diary No.35242/2019
Pratap Kundu …Appellant
Versus
Food Corporation of India …Respondent
J U D G M E N T
M.R. SHAH, J.
Delay condoned. Leave granted.
1
2. Both these appeals which, as such, can be said to be cross
appeals arise out of the impugned judgment and order dated
12.04.2019 passed by the High Court of Calcutta in F.M.A. No.
1168 of 2017, filed by the original appellants – Food Corporation
of India and others.
3. The facts leading to the present appeals in nutshell are as
under:
By judgment and order dated 23.06.1998, the Calcutta High
Court in Writ Petition No. 1491 of 1997 filed by the contract
casual labourers supplied by an earlier contractor for the Bikna
Depot directed that the contract casual labourers would be
entitled to payment of wages equivalent to Class IV employees.
The appeal filed by the Food Corporation of India (for short ‘FCI’)
came to be dismissed by the Division Bench of the High Court on
16.07.1998. The judgment and order passed by the Division
Bench of the High Court dated 16.07.1998 was challenged by the
FCI before this Court by way of Civil Appeal Nos. 60646065 of
1998. That on 16.12.1999 after the earlier contract period came
to an end, the appellant – FCI floated tender for appointment of
Handling and Transport Contractor for the Bikna Depot. The
respondent – contractor submitted his tender in which he quoted
2
471% above the schedule of rates fixed in the tender. Appendix
VIII of the tender provided the schedule of rates for the contract
and printed rates were provided on all items. The tenderer was
required to quote rates above the schedule rates provided in the
contract. Item No. 24 was for supply of casual labour. That the
aforesaid Civil Appeals arising out of special leave petitions were
pending before this Court so far as Item No. 24 which was for
supply of casual labour and therefore it was stated in the tender
that “relevant rate of wages is to be paid and such rate shall
abide by the decision of pending SLP as filed by FCI in the
Hon’ble Supreme Court”. That by judgment and order dated
28.09.2000, this Court dismissed the aforesaid Civil Appeal Nos.
60646065 of 1998 upholding the judgment of the Division
Bench of the High Court dated 16.07.1998. That vide
communication dated 17.01.2000, tender of the respondent was
accepted and he was appointed as Handling and Transport
Contractor for a period of two years at the negotiated rate of
471% ASOR (above the schedule rates). That the original
contract was meant for a period of two years, i.e., up to
16.01.2002. That after the original contract was over, the
respondentcontractor submitted a bill dated 19.07.2002
3
claiming ASOR of 471% on the amount paid to the contract
casual labourers. In the meantime, one contempt petition was
filed before the High Court alleging noncompliance of the earlier
judgment and order passed by the learned Single Judge,
confirmed up to this Court. The High Court vide judgment and
order dated 04.04.2003 convicted the officers of the FCI for
contempt of court and sentenced them to undergo three months
imprisonment and fine for violation of the orders for nonpayment to the contract casual labour. The order passed by the
High Court in the contempt petition was the subject matter
before this Court in Civil Appeal Nos. 94729473 of 2003. This
Court stayed the further proceedings before the High Court. That
the demand of the contractor claiming ASOR of 471% on the
amount paid to the contract casual labourers was rejected by the
FCI. The contractor filed Writ Petition No. 7790 of 2004 seeking,
inter alia, additional amount for payment of the contract casual
labourers. By judgment and order dated 14.01.2010, this Court
disposed of Civil Appeal Nos. 94729473 of 2003 and directed the
FCI to make payment of wages to the workmen in ScaleII, as
revised from time to time, and also directed that the arrears and
wages should be directly paid to the workmen and legal
4
representatives of the workers without involving any contractor
or other agency. It was also directed that once the payments
were made, the sentence awarded would stand set aside. That
thereafter contempt petition Nos. 5657 of 2011 were filed by the
contract casual labourers alleging noncompliance of order dated
14.01.2010 passed in Civil Appeal Nos. 94729473 of 2003
passed by this Court. The same came to be dismissed by this
Court by order dated 04.07.2011. That in Writ Petition No. 7790
of 2004 filed by the contractor, the High Court vide order dated
08.12.2011 directed the CMD of FCI to pass a reasoned and
speaking order on the grievance raised by the contractor. The
CMD of FCI passed a detailed speaking order dated 15.03.2012
holding, inter alia, that the contractor was not entitled to claim
raised by him regarding 471% of ASOR on the wages actually
paid to the casual labour because the claim was contrary to the
contract between the parties. The contractor amended the
aforesaid petition. In the aforesaid amended writ petition No.
7790 of 2004, the contractor prayed for the following reliefs:
“b) A writ in the nature of Mandamus commanding the
respondents and their men and agents to make payment
A.S.O.R as per the bill submitted by the petitioner in
terms of Clause 24 of the tender at the rate of 471%
A.S.O.R. above the Schedule Rate immediately being
5
Annexure “P4” and “P11” to this writ petition and
further commanding the respondents to delete the
liability as fixed up upon the petitioner towards payment
of E.P.F., Administrative Charges and Income Tax liability
by the District Manager, Food Corporation of India,
Bankura vide his letter dated 24.04.2004 and the
statement annexed thereto being Annexure “P10” to the
writ petition.”
3.1. That the learned Single Judge of the High Court, by
judgment and order dated 12.04.2016, allowed the aforesaid Writ
Petition No. 7790 of 2004 and quashed and set aside the
speaking order dated 15.03.2012 passed by the CMD, FCI and
directed the CMD to verify the bill and make payment of the
unpaid dues with liberty to deduct the payment already made.
3.2 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Single Judge, the FCI
preferred appeal before the Division Bench of the High Court
being MAT No. 1151 of 2016/F.M.A. 1168 of 2017. That by the
impugned judgment and order, the High Court has disposed of
the appeal with the following directions:
“(a) the appellant will furnish details to the Chairman
of how the Supreme Court judgment and order dated 14th
January, 2010 was applied to fix the differential daily
rate of casual labourers between Rs.308.85/ per day
and Rs.353.19/ per day between January and March,
2000 and October to December, 2001 respectively and
6
the differential rate for the subsequent period up to July,
2004.
(b) the Chairman shall also determine the exact
amount of wages that was payable, applying the above
Supreme Court judgment the amount that was actually
paid by the appellant directly to the labourers and the
wages outstanding, if any. According to the said
Supreme Court judgment, such outstanding wages is to
be paid directly to the workers/their heirs.
In fact, the said judgment of the Supreme Court dated
14th January, 2010 has left open other issues to be
determined.
One such issue is the amount representing the profit
receivable by the respondent.
The Chairman will determine the profit to be earned by
the respondent out of this contract, in accordance with
law.
He shall make the determination with intelligible reasons
within four months of communication of this order, upon
hearing the parties.
If any amount is determined by the Chairman to be
payable to the respondent the same shall be released by
the appellant to him within 8 weeks of making the
determination.”
3.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, both the FCI as
well as the contractor have preferred the present appeals.
4. Shri N.K. Kaul, learned Senior Advocate has appeared on
behalf of the FCI and Mrs. Meenakshi Arora, learned Senior
7
Advocate has appeared on behalf of the Contractor in respective
appeals.
4.1 Shri N.K. Kaul, learned Senior Advocate appearing on behalf
of the FCI has vehemently submitted that as such the High Court
in the impugned judgment and order has clearly given a finding
that after the judgment of this Court dated 14.01.2010, the rate
of wages payable to the labourers under the said contract would
be according to the rate specified in that judgment and not on
471% ASOR basis, still the High Court has dismissed the appeal
and has directed the CMD to calculate the amount of wages.
4.2 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that it is required to be
noted that the contract specifically provided that the rate quoted
by the contractor and agreed to between the parties of 471% was
above the schedule of rates provided in Appendix VIII of the
contract. It is submitted that Appendix VIII clearly shows that
such a schedule of rate was only provided regarding Item Nos. 1
to 23 and 25 of the Appendix. It is submitted against Item No.
24, which was with respect to supply of casual labourers, it was
specifically provided that “Relevant rate of wages is to be paid and
such rate shall abide by the decision of pending SLP as filed by
8
the FCI in the Hon’ble Supreme Court”. It is submitted that there
was no schedule of rate for Item No. 24 which was for supply of
casual labour and therefore the claim of 471% above schedule of
rates (ASOR) has no application to the quotation pertaining to
supply of casual labour.
4.3 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that the High Court has
failed to consider the fact that after the order passed by the
Supreme Court dated 14.01.2010, a contempt petition was filed
which came to be dismissed by this Court on 4.7.2011 as the
order passed by this Court was complied with. It is submitted
that therefore the High Court has materially erred in passing the
impugned judgment and order, more particularly directing the
CMD to recalculate the wages.
4.4 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that the High Court has
materially erred in directing the Chairman to determine the profit
to be earned by the contractor out of his contract. It is submitted
that while passing such a direction, the High Court has not
properly appreciated and considered the order passed by this
Court dated 14.01.2010. It is submitted that in the order dated
9
14.01.2010 passed by this Court, this Court never kept an issue
left open, more particularly with respect to profit received by the
contractor. It is submitted that therefore the High Court has
clearly erred in directing the CMD to determine the profit to be
earned by the contractor.
4.5 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that, in fact, the
contractor paid the wages @ Rs.106.38/ per day and if his
enhanced claim of 471% ASOR on the wages paid to the casual
labour is accepted, in that case, there would be unjust
enrichment to the contractor. It is submitted that the additional
claim of the contractor for Item No. 24 is Rs. 5,34,41,520/. It is
almost three times the amount due to him under the contract. It
is submitted that in any case this Court having decided the rate
of wages to be paid to the casual labour and in view of the
direction to pay the same directly to the labour without any
intermediary, there was no question of payment of any further
amount as per the additional claim made by the contractor of
471% ASOR on the wages paid to the casual labour.
5. Ms. Meenakshi Arora, learned Senior Advocate appearing on
behalf of the contractor has vehemently submitted that as such
10
the Division Bench of the High Court has materially erred in
referring the matter back to the Chairman of the FCI to decide
certain issues and even consider to determine the profit
receivable by the contractor. It is submitted that referring the
matter back to the Chairman of the FCI would be nothing but a
futile exercise of power by the Chairman, who has already
rejected the claim of the contractor by its order dated 15.03.2012.
5.1 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that even
otherwise the Division Bench of the High Court has materially
erred in interfering with the decision of the learned Single Judge
in which the learned Single Judge rightly held that Clause 24 of
the agreement of wages of the casual labourers is covered by
471% of ASOR, which the FCI was obliged to pay to the
contractor as per the terms of the agreement.
5.2 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that, as
such, both the parties were bound by the terms and conditions of
the agreement and therefore when the contractor submitted the
tender with 471% ASOR and the same was accepted, the
11
contractor shall be entitled to 471% ASOR on every item
including the supply of the casual labourers.
5.3 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that, as
such, the contractor had to pay provident fund etc. over and
above the wages to be paid and therefore the same was required
to be compensated by the FCI. It is submitted therefore that the
FCI authorities are obliged to pay ASOR at the tune of 471% for
supply of casual labourers, as categorically laid down in the
agreement.
5.4 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that even
according to FCI the contractor shall be entitled to 471% ASOR
with respect to Item Nos. 1 to 23 and 25. It is submitted that
therefore there is no question of not paying 471% ASOR with
respect to supply of casual labourers. It is submitted therefore
that the demand of the contractor making the claim of 471%
ASOR with respect of supply of casual labourers is absolutely just
and proper and as per the agreement between the parties, which
the learned Single Judge rightly appreciated. It is submitted
therefore that the Division Bench of the High Court has materially
12
erred in interfering with the judgment and order passed by the
learned Single Judge which was absolutely in consonance with
the terms and conditions of the agreement.
6. We have heard the learned counsel for the respective parties
at length.
At the outset, it is required to be noted that the controversy
centres around the interpretation of Clause 24 of the agreement
and the dispute is whether the contractor is entitled to 471%
ASOR in respect of all items including item No. 24 for supply of
casual labourers? It is required to be noted that the original
contract period was from 18.01.2000 to 17.01.2002 and it was
extended till 13.07.2004. It is also required to be noted that at
the time when the contract between the FCI and the contractor
was entered into, there was already a dispute pending with
respect to the rate of wages to be paid to the casual labourers.
Therefore, so far as Item No.24 for supply of casual labourers is
concerned, it was provided that “relevant rate of wages is to be
paid and such rate shall abide by the decision of pending SLP as
filed by the FCI in the Hon’ble Supreme Court”. It is also required
to be noted that in Appendix VIII with respect to other items,
namely item nos. 1 to 23 and 25, specific rates were mentioned,
13
however, with respect to Item No. 24 – supply of casual labourers,
it was blank and with respect to Item No. 24, it was specifically
provided that the wages to be paid to the casual labourers shall
abide by the decision of the pending SLP. The contractor paid the
wages to the casual labourers at the rate of Rs.106.38 per day.
The first SLP came to be dismissed by this Court on March 29,
2004. However, still the dispute continued. Contempt
proceedings were initiated which ultimately reached this Court by
way of Civil Appeal Nos. 94729473 of 2003. Civil Appeal Nos.
94729473 of 2003 came to be finally disposed of by this Court
on 14.01.2010 and it was directed that the FCI shall fix the pay of
the casual labourers as also of the deceased workers, who were
petitioners in the first or second case filed in the High Court, in
ScaleII, as revised from time to time (as on 1.1.1997, the scale
was Rs.43207330). This Court also directed that all the
payments shall be made to the workers and legal representatives
of the deceased workers directly without involving any contractor
and other agency. Therefore, the dispute with respect to wages
came to be finally settled/disposed of by this Court by its order
dated 14.01.2010 passed in Civil Appeal Nos. 94729473 of 2003.
Therefore, the casual labourers were entitled to the wages as per
14
the final order passed by this Court dated 14.01.2010 in Civil
Appeal Nos. 94729473 of 2003, and as per the terms and
conditions of the contract, more particularly with respect to Item
No. 24 the wages were required to be paid as per the
determination in the pending SLP, i.e., Civil Appeal Nos. 9472
9473 of 2003.
6.1 At this stage, it is also required to be noted that even
subsequently the workers filed contempt petition before this
Court which came to be dismissed as this Court was of the
opinion that order dated 14.01.2010 passed in Civil Appeal Nos.
94729473 of 2003 has been complied with. That thereafter the
contractor made the claim claiming 471% ASOR with respect to
supply of casual labourers at 471% ASOR as per the claim the
contractor claimed between Rs.607.43 to Rs.1225.19 per day.
The FCI determined and paid the wages as per the direction
issued by this Court in the order dated 14.01.2010 ranging
between Rs. 308.85 to 391.35 per day. The statement with
respect to claim made by the contractor and the amount paid to
the casual labourers as determined and paid by the FCI is as
under:
15
Period Bill raised by
Pratap Kundu,
HTC & paid by
FCI (per
day/Casual
Labourer
Now being
Claimed by
Contractor
Pratap Kundu
@ 471% on
wages raised
Amount paid
to Casual
Labourers for
the contract
period of
Pratap Kundu
(18.01.2000 to
13.07.2004)
after order
dated
14.01.2010 of
Hon’ble
Supreme
Court in SLP
No. 94729473
of 2003 filed
by FCI v. Bijoy
Kumar Singh
& Ors.
JanMar, 00 Rs.106.38 Rs. 607.43 Rs.308.85
AprMay,00 Rs.106.38 Rs. 607.43 Rs.306.31
June, 2000 Rs.106.38 Rs.607.43 Rs.317.42
JulySept, 00 Rs.106.38 Rs.607.43 Rs.321.46
OctDec.,00 Rs.106.38 Rs.607.43 Rs.325.31
JanMar, 01 Rs.106.38 Rs.607.43 Rs.333.88
AprJun, 01 Rs.106.38 Rs.607.43 Rs.331.92
JunSept, 01 Rs.106.38 Rs.607.43 Rs.334.08
OctDec, 01 Rs.106.38 Rs.607.43 Rs.343.00
JanMar, 02 Rs.106.38 Rs.607.43 Rs.353.19
AprJun, 02 Rs.106.38 Rs.607.43 Rs.352.54
JulySept.,02 Rs.106.38 Rs. 607.43 Rs.353.85
OctDec.,02 Rs.106.38 Rs.607.43 Rs.360.73
JanMar, 03 Rs.106.38 Rs.607.43 Rs.372.23
AprJun, 03 Rs.206.73 Rs.1180.42 Rs.369.96
JulSept, 03 Rs.209.96 Rs.1198.87 Rs.374.96
OctDec, 03 Rs.213.23 Rs.1217.54 Rs.379.96
JanMar, 04 Rs.214.58 Rs.1225.25 Rs.389.23
AprJun, 04 Rs.214.57 Rs.1225.19 Rs.390.19
July, 04 Rs.214.57 Rs.1225.19 Rs.391.35
16
The aforesaid claim has been rejected by the Chairman of the FCI
and according to us the same was rightly rejected by the
Chairman as the wages to the casual labourers were required to
be determined and paid as per the order passed by this Court
dated 14.01.2010 in Civil Appeal Nos. 94729473/2003.
Therefore, as such, the Division Bench of the High Court has
rightly observed and held that after this Court’s judgment and
order dated 14.01.2010, the rate of wages payable to the
labourers under the subject contract would be according to the
rate specified in that judgment and not on 471% ASOR basis. We
are in complete agreement with the said finding recorded by the
Division Bench. Therefore, it is observed and held that the
contractor shall not be entitled to the wages to be paid to the
casual labourers on 471% ASOR basis and the wages to be paid
to the labourers would be at the rate specified in the order dated
14.01.2010 in Civil Appeal Nos. 94729473/2003. However, the
Division Bench of the High Court was of the opinion that there is
no clarity how judgment and order dated 14.01.2010 has been
applied by the FCI to calculate the wages of the casual labourers,
therefore, the Division Bench of the High Court has referred the
matter back to the Chairman of the FCI to consider how the
17
differential rate of casual labourers between Rs. 308.85/ per day
and Rs.353.19/ per day between January and March, 2000 and
October to December, 2001 respectively and the differential rate
for the subsequent period up to July, 2004 has been determined
and the Chairman is directed to determine the exact amount of
wages that was payable, applying the judgment and order passed
by this Court dated 14.01.2010 in Civil Appeal Nos. 9472
9473/2003.
6.2 So far as the direction issued by the Division Bench of the
High Court directing the Chairman to determine the profit earned
by the contractor out of his contract is concerned, the same is not
sustainable at all. The Division Bench of the High Court has
observed that the judgment and order of this Court dated
14.01.2010 has left open other issues to be determined. We do
not find anything in the order dated 14.01.2010. On bare reading
of the order dated 14.01.2010 there does not appear to be left
open other issues to be determined, as observed by the High
Court in the impugned judgment and order. Under the
circumstances, that part of the direction issued by the Division
Bench directing the Chairman to determine the profit earned by
the contractor deserves to be quashed and set aside.
18
7. In view of the above and for the reasons stated above, the
appeal filed by the FCI being Civil Appeal arising from SLP (C) No.
21970 of 2019 is hereby partly allowed. It is observed and held
that the casual labourers shall be entitled to the wages according
to the rates specified in the order dated 14.01.2010 passed by
this Court in Civil Appeal Nos. 94729473/2003 and the
contractor shall not be entitled to 471% ASOR basis with respect
to supply of casual labourers as claimed by him. Therefore, it is
specifically observed and held that the FCI shall be liable to pay
the wages payable to the casual labourers under the subject
contract according to the rates specified in the judgment and
order dated 14.01.2010 passed by this Court in Civil Appeal Nos.
94729473/2003 and not on 471% ASOR basis. It goes without
saying that the contractor shall be entitled to reimburse the
wages paid by him, i.e., Rs.106.38 per labourer, if the same is not
reimbursed/paid to the contractor. Therefore, remand to the
Chairman of the FCI shall be restricted to the determination of
the wages as per the judgment and order dated 14.01.20120
passed by this Court in Civil Appeal Nos. 94729473/2003, more
particularly as contained in paragraph a & b of the operative
portion of the impugned order. However, that part of the
19
direction issued by the Division Bench in the operative portion of
the order by which the Chairman is directed to determine the
profit earned by the contractor, the same is hereby quashed and
set aside. The appeal preferred by the FCI is partly allowed in
terms of the above. Consequently, the appeal preferred by the
contractor being Civil Appeal arising out of Diary No. 35242/2019
stands dismissed. There shall be no order as to costs.
…………………………………J.
[ASHOK BHUSHAN]
NEW DELHI; …………………………………J.
NOVEMBER 29, 2019. [M.R. SHAH]
20
contractor shall not be entitled to 471% ASOR basis with respect to supply of casual labourers as claimed by him.
Therefore, it is specifically observed and held that the FCI shall be liable to pay the wages payable to the casual labourers under the subject contract according to the rates specified in the judgment and order dated 14.01.2010 passed by this Court in Civil Appeal Nos. 94729473/2003 and not on 471% ASOR basis. It goes without saying that the contractor shall be entitled to reimburse the wages paid by him, i.e., Rs.106.38 per labourer, if the same is not reimbursed/paid to the contractor.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9127 OF 2019
(Arising from SLP(C) No.21970 of 2019)
Food Corporation of India …Appellant
Versus
Pratap Kundu …Respondent
WITH
CIVIL APPEAL NO.9128 OF 2019
(Arising from SLP(C) No.28248 of 2019)
@ Diary No.35242/2019
Pratap Kundu …Appellant
Versus
Food Corporation of India …Respondent
J U D G M E N T
M.R. SHAH, J.
Delay condoned. Leave granted.
1
2. Both these appeals which, as such, can be said to be cross
appeals arise out of the impugned judgment and order dated
12.04.2019 passed by the High Court of Calcutta in F.M.A. No.
1168 of 2017, filed by the original appellants – Food Corporation
of India and others.
3. The facts leading to the present appeals in nutshell are as
under:
By judgment and order dated 23.06.1998, the Calcutta High
Court in Writ Petition No. 1491 of 1997 filed by the contract
casual labourers supplied by an earlier contractor for the Bikna
Depot directed that the contract casual labourers would be
entitled to payment of wages equivalent to Class IV employees.
The appeal filed by the Food Corporation of India (for short ‘FCI’)
came to be dismissed by the Division Bench of the High Court on
16.07.1998. The judgment and order passed by the Division
Bench of the High Court dated 16.07.1998 was challenged by the
FCI before this Court by way of Civil Appeal Nos. 60646065 of
1998. That on 16.12.1999 after the earlier contract period came
to an end, the appellant – FCI floated tender for appointment of
Handling and Transport Contractor for the Bikna Depot. The
respondent – contractor submitted his tender in which he quoted
2
471% above the schedule of rates fixed in the tender. Appendix
VIII of the tender provided the schedule of rates for the contract
and printed rates were provided on all items. The tenderer was
required to quote rates above the schedule rates provided in the
contract. Item No. 24 was for supply of casual labour. That the
aforesaid Civil Appeals arising out of special leave petitions were
pending before this Court so far as Item No. 24 which was for
supply of casual labour and therefore it was stated in the tender
that “relevant rate of wages is to be paid and such rate shall
abide by the decision of pending SLP as filed by FCI in the
Hon’ble Supreme Court”. That by judgment and order dated
28.09.2000, this Court dismissed the aforesaid Civil Appeal Nos.
60646065 of 1998 upholding the judgment of the Division
Bench of the High Court dated 16.07.1998. That vide
communication dated 17.01.2000, tender of the respondent was
accepted and he was appointed as Handling and Transport
Contractor for a period of two years at the negotiated rate of
471% ASOR (above the schedule rates). That the original
contract was meant for a period of two years, i.e., up to
16.01.2002. That after the original contract was over, the
respondentcontractor submitted a bill dated 19.07.2002
3
claiming ASOR of 471% on the amount paid to the contract
casual labourers. In the meantime, one contempt petition was
filed before the High Court alleging noncompliance of the earlier
judgment and order passed by the learned Single Judge,
confirmed up to this Court. The High Court vide judgment and
order dated 04.04.2003 convicted the officers of the FCI for
contempt of court and sentenced them to undergo three months
imprisonment and fine for violation of the orders for nonpayment to the contract casual labour. The order passed by the
High Court in the contempt petition was the subject matter
before this Court in Civil Appeal Nos. 94729473 of 2003. This
Court stayed the further proceedings before the High Court. That
the demand of the contractor claiming ASOR of 471% on the
amount paid to the contract casual labourers was rejected by the
FCI. The contractor filed Writ Petition No. 7790 of 2004 seeking,
inter alia, additional amount for payment of the contract casual
labourers. By judgment and order dated 14.01.2010, this Court
disposed of Civil Appeal Nos. 94729473 of 2003 and directed the
FCI to make payment of wages to the workmen in ScaleII, as
revised from time to time, and also directed that the arrears and
wages should be directly paid to the workmen and legal
4
representatives of the workers without involving any contractor
or other agency. It was also directed that once the payments
were made, the sentence awarded would stand set aside. That
thereafter contempt petition Nos. 5657 of 2011 were filed by the
contract casual labourers alleging noncompliance of order dated
14.01.2010 passed in Civil Appeal Nos. 94729473 of 2003
passed by this Court. The same came to be dismissed by this
Court by order dated 04.07.2011. That in Writ Petition No. 7790
of 2004 filed by the contractor, the High Court vide order dated
08.12.2011 directed the CMD of FCI to pass a reasoned and
speaking order on the grievance raised by the contractor. The
CMD of FCI passed a detailed speaking order dated 15.03.2012
holding, inter alia, that the contractor was not entitled to claim
raised by him regarding 471% of ASOR on the wages actually
paid to the casual labour because the claim was contrary to the
contract between the parties. The contractor amended the
aforesaid petition. In the aforesaid amended writ petition No.
7790 of 2004, the contractor prayed for the following reliefs:
“b) A writ in the nature of Mandamus commanding the
respondents and their men and agents to make payment
A.S.O.R as per the bill submitted by the petitioner in
terms of Clause 24 of the tender at the rate of 471%
A.S.O.R. above the Schedule Rate immediately being
5
Annexure “P4” and “P11” to this writ petition and
further commanding the respondents to delete the
liability as fixed up upon the petitioner towards payment
of E.P.F., Administrative Charges and Income Tax liability
by the District Manager, Food Corporation of India,
Bankura vide his letter dated 24.04.2004 and the
statement annexed thereto being Annexure “P10” to the
writ petition.”
3.1. That the learned Single Judge of the High Court, by
judgment and order dated 12.04.2016, allowed the aforesaid Writ
Petition No. 7790 of 2004 and quashed and set aside the
speaking order dated 15.03.2012 passed by the CMD, FCI and
directed the CMD to verify the bill and make payment of the
unpaid dues with liberty to deduct the payment already made.
3.2 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Single Judge, the FCI
preferred appeal before the Division Bench of the High Court
being MAT No. 1151 of 2016/F.M.A. 1168 of 2017. That by the
impugned judgment and order, the High Court has disposed of
the appeal with the following directions:
“(a) the appellant will furnish details to the Chairman
of how the Supreme Court judgment and order dated 14th
January, 2010 was applied to fix the differential daily
rate of casual labourers between Rs.308.85/ per day
and Rs.353.19/ per day between January and March,
2000 and October to December, 2001 respectively and
6
the differential rate for the subsequent period up to July,
2004.
(b) the Chairman shall also determine the exact
amount of wages that was payable, applying the above
Supreme Court judgment the amount that was actually
paid by the appellant directly to the labourers and the
wages outstanding, if any. According to the said
Supreme Court judgment, such outstanding wages is to
be paid directly to the workers/their heirs.
In fact, the said judgment of the Supreme Court dated
14th January, 2010 has left open other issues to be
determined.
One such issue is the amount representing the profit
receivable by the respondent.
The Chairman will determine the profit to be earned by
the respondent out of this contract, in accordance with
law.
He shall make the determination with intelligible reasons
within four months of communication of this order, upon
hearing the parties.
If any amount is determined by the Chairman to be
payable to the respondent the same shall be released by
the appellant to him within 8 weeks of making the
determination.”
3.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, both the FCI as
well as the contractor have preferred the present appeals.
4. Shri N.K. Kaul, learned Senior Advocate has appeared on
behalf of the FCI and Mrs. Meenakshi Arora, learned Senior
7
Advocate has appeared on behalf of the Contractor in respective
appeals.
4.1 Shri N.K. Kaul, learned Senior Advocate appearing on behalf
of the FCI has vehemently submitted that as such the High Court
in the impugned judgment and order has clearly given a finding
that after the judgment of this Court dated 14.01.2010, the rate
of wages payable to the labourers under the said contract would
be according to the rate specified in that judgment and not on
471% ASOR basis, still the High Court has dismissed the appeal
and has directed the CMD to calculate the amount of wages.
4.2 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that it is required to be
noted that the contract specifically provided that the rate quoted
by the contractor and agreed to between the parties of 471% was
above the schedule of rates provided in Appendix VIII of the
contract. It is submitted that Appendix VIII clearly shows that
such a schedule of rate was only provided regarding Item Nos. 1
to 23 and 25 of the Appendix. It is submitted against Item No.
24, which was with respect to supply of casual labourers, it was
specifically provided that “Relevant rate of wages is to be paid and
such rate shall abide by the decision of pending SLP as filed by
8
the FCI in the Hon’ble Supreme Court”. It is submitted that there
was no schedule of rate for Item No. 24 which was for supply of
casual labour and therefore the claim of 471% above schedule of
rates (ASOR) has no application to the quotation pertaining to
supply of casual labour.
4.3 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that the High Court has
failed to consider the fact that after the order passed by the
Supreme Court dated 14.01.2010, a contempt petition was filed
which came to be dismissed by this Court on 4.7.2011 as the
order passed by this Court was complied with. It is submitted
that therefore the High Court has materially erred in passing the
impugned judgment and order, more particularly directing the
CMD to recalculate the wages.
4.4 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that the High Court has
materially erred in directing the Chairman to determine the profit
to be earned by the contractor out of his contract. It is submitted
that while passing such a direction, the High Court has not
properly appreciated and considered the order passed by this
Court dated 14.01.2010. It is submitted that in the order dated
9
14.01.2010 passed by this Court, this Court never kept an issue
left open, more particularly with respect to profit received by the
contractor. It is submitted that therefore the High Court has
clearly erred in directing the CMD to determine the profit to be
earned by the contractor.
4.5 It is further submitted by Shri N.K. Kaul, learned Senior
Advocate appearing on behalf of the FCI that, in fact, the
contractor paid the wages @ Rs.106.38/ per day and if his
enhanced claim of 471% ASOR on the wages paid to the casual
labour is accepted, in that case, there would be unjust
enrichment to the contractor. It is submitted that the additional
claim of the contractor for Item No. 24 is Rs. 5,34,41,520/. It is
almost three times the amount due to him under the contract. It
is submitted that in any case this Court having decided the rate
of wages to be paid to the casual labour and in view of the
direction to pay the same directly to the labour without any
intermediary, there was no question of payment of any further
amount as per the additional claim made by the contractor of
471% ASOR on the wages paid to the casual labour.
5. Ms. Meenakshi Arora, learned Senior Advocate appearing on
behalf of the contractor has vehemently submitted that as such
10
the Division Bench of the High Court has materially erred in
referring the matter back to the Chairman of the FCI to decide
certain issues and even consider to determine the profit
receivable by the contractor. It is submitted that referring the
matter back to the Chairman of the FCI would be nothing but a
futile exercise of power by the Chairman, who has already
rejected the claim of the contractor by its order dated 15.03.2012.
5.1 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that even
otherwise the Division Bench of the High Court has materially
erred in interfering with the decision of the learned Single Judge
in which the learned Single Judge rightly held that Clause 24 of
the agreement of wages of the casual labourers is covered by
471% of ASOR, which the FCI was obliged to pay to the
contractor as per the terms of the agreement.
5.2 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that, as
such, both the parties were bound by the terms and conditions of
the agreement and therefore when the contractor submitted the
tender with 471% ASOR and the same was accepted, the
11
contractor shall be entitled to 471% ASOR on every item
including the supply of the casual labourers.
5.3 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that, as
such, the contractor had to pay provident fund etc. over and
above the wages to be paid and therefore the same was required
to be compensated by the FCI. It is submitted therefore that the
FCI authorities are obliged to pay ASOR at the tune of 471% for
supply of casual labourers, as categorically laid down in the
agreement.
5.4 It is further submitted by Ms. Meenakshi Arora, learned
Senior Advocate appearing on behalf of the contractor that even
according to FCI the contractor shall be entitled to 471% ASOR
with respect to Item Nos. 1 to 23 and 25. It is submitted that
therefore there is no question of not paying 471% ASOR with
respect to supply of casual labourers. It is submitted therefore
that the demand of the contractor making the claim of 471%
ASOR with respect of supply of casual labourers is absolutely just
and proper and as per the agreement between the parties, which
the learned Single Judge rightly appreciated. It is submitted
therefore that the Division Bench of the High Court has materially
12
erred in interfering with the judgment and order passed by the
learned Single Judge which was absolutely in consonance with
the terms and conditions of the agreement.
6. We have heard the learned counsel for the respective parties
at length.
At the outset, it is required to be noted that the controversy
centres around the interpretation of Clause 24 of the agreement
and the dispute is whether the contractor is entitled to 471%
ASOR in respect of all items including item No. 24 for supply of
casual labourers? It is required to be noted that the original
contract period was from 18.01.2000 to 17.01.2002 and it was
extended till 13.07.2004. It is also required to be noted that at
the time when the contract between the FCI and the contractor
was entered into, there was already a dispute pending with
respect to the rate of wages to be paid to the casual labourers.
Therefore, so far as Item No.24 for supply of casual labourers is
concerned, it was provided that “relevant rate of wages is to be
paid and such rate shall abide by the decision of pending SLP as
filed by the FCI in the Hon’ble Supreme Court”. It is also required
to be noted that in Appendix VIII with respect to other items,
namely item nos. 1 to 23 and 25, specific rates were mentioned,
13
however, with respect to Item No. 24 – supply of casual labourers,
it was blank and with respect to Item No. 24, it was specifically
provided that the wages to be paid to the casual labourers shall
abide by the decision of the pending SLP. The contractor paid the
wages to the casual labourers at the rate of Rs.106.38 per day.
The first SLP came to be dismissed by this Court on March 29,
2004. However, still the dispute continued. Contempt
proceedings were initiated which ultimately reached this Court by
way of Civil Appeal Nos. 94729473 of 2003. Civil Appeal Nos.
94729473 of 2003 came to be finally disposed of by this Court
on 14.01.2010 and it was directed that the FCI shall fix the pay of
the casual labourers as also of the deceased workers, who were
petitioners in the first or second case filed in the High Court, in
ScaleII, as revised from time to time (as on 1.1.1997, the scale
was Rs.43207330). This Court also directed that all the
payments shall be made to the workers and legal representatives
of the deceased workers directly without involving any contractor
and other agency. Therefore, the dispute with respect to wages
came to be finally settled/disposed of by this Court by its order
dated 14.01.2010 passed in Civil Appeal Nos. 94729473 of 2003.
Therefore, the casual labourers were entitled to the wages as per
14
the final order passed by this Court dated 14.01.2010 in Civil
Appeal Nos. 94729473 of 2003, and as per the terms and
conditions of the contract, more particularly with respect to Item
No. 24 the wages were required to be paid as per the
determination in the pending SLP, i.e., Civil Appeal Nos. 9472
9473 of 2003.
6.1 At this stage, it is also required to be noted that even
subsequently the workers filed contempt petition before this
Court which came to be dismissed as this Court was of the
opinion that order dated 14.01.2010 passed in Civil Appeal Nos.
94729473 of 2003 has been complied with. That thereafter the
contractor made the claim claiming 471% ASOR with respect to
supply of casual labourers at 471% ASOR as per the claim the
contractor claimed between Rs.607.43 to Rs.1225.19 per day.
The FCI determined and paid the wages as per the direction
issued by this Court in the order dated 14.01.2010 ranging
between Rs. 308.85 to 391.35 per day. The statement with
respect to claim made by the contractor and the amount paid to
the casual labourers as determined and paid by the FCI is as
under:
15
Period Bill raised by
Pratap Kundu,
HTC & paid by
FCI (per
day/Casual
Labourer
Now being
Claimed by
Contractor
Pratap Kundu
@ 471% on
wages raised
Amount paid
to Casual
Labourers for
the contract
period of
Pratap Kundu
(18.01.2000 to
13.07.2004)
after order
dated
14.01.2010 of
Hon’ble
Supreme
Court in SLP
No. 94729473
of 2003 filed
by FCI v. Bijoy
Kumar Singh
& Ors.
JanMar, 00 Rs.106.38 Rs. 607.43 Rs.308.85
AprMay,00 Rs.106.38 Rs. 607.43 Rs.306.31
June, 2000 Rs.106.38 Rs.607.43 Rs.317.42
JulySept, 00 Rs.106.38 Rs.607.43 Rs.321.46
OctDec.,00 Rs.106.38 Rs.607.43 Rs.325.31
JanMar, 01 Rs.106.38 Rs.607.43 Rs.333.88
AprJun, 01 Rs.106.38 Rs.607.43 Rs.331.92
JunSept, 01 Rs.106.38 Rs.607.43 Rs.334.08
OctDec, 01 Rs.106.38 Rs.607.43 Rs.343.00
JanMar, 02 Rs.106.38 Rs.607.43 Rs.353.19
AprJun, 02 Rs.106.38 Rs.607.43 Rs.352.54
JulySept.,02 Rs.106.38 Rs. 607.43 Rs.353.85
OctDec.,02 Rs.106.38 Rs.607.43 Rs.360.73
JanMar, 03 Rs.106.38 Rs.607.43 Rs.372.23
AprJun, 03 Rs.206.73 Rs.1180.42 Rs.369.96
JulSept, 03 Rs.209.96 Rs.1198.87 Rs.374.96
OctDec, 03 Rs.213.23 Rs.1217.54 Rs.379.96
JanMar, 04 Rs.214.58 Rs.1225.25 Rs.389.23
AprJun, 04 Rs.214.57 Rs.1225.19 Rs.390.19
July, 04 Rs.214.57 Rs.1225.19 Rs.391.35
16
The aforesaid claim has been rejected by the Chairman of the FCI
and according to us the same was rightly rejected by the
Chairman as the wages to the casual labourers were required to
be determined and paid as per the order passed by this Court
dated 14.01.2010 in Civil Appeal Nos. 94729473/2003.
Therefore, as such, the Division Bench of the High Court has
rightly observed and held that after this Court’s judgment and
order dated 14.01.2010, the rate of wages payable to the
labourers under the subject contract would be according to the
rate specified in that judgment and not on 471% ASOR basis. We
are in complete agreement with the said finding recorded by the
Division Bench. Therefore, it is observed and held that the
contractor shall not be entitled to the wages to be paid to the
casual labourers on 471% ASOR basis and the wages to be paid
to the labourers would be at the rate specified in the order dated
14.01.2010 in Civil Appeal Nos. 94729473/2003. However, the
Division Bench of the High Court was of the opinion that there is
no clarity how judgment and order dated 14.01.2010 has been
applied by the FCI to calculate the wages of the casual labourers,
therefore, the Division Bench of the High Court has referred the
matter back to the Chairman of the FCI to consider how the
17
differential rate of casual labourers between Rs. 308.85/ per day
and Rs.353.19/ per day between January and March, 2000 and
October to December, 2001 respectively and the differential rate
for the subsequent period up to July, 2004 has been determined
and the Chairman is directed to determine the exact amount of
wages that was payable, applying the judgment and order passed
by this Court dated 14.01.2010 in Civil Appeal Nos. 9472
9473/2003.
6.2 So far as the direction issued by the Division Bench of the
High Court directing the Chairman to determine the profit earned
by the contractor out of his contract is concerned, the same is not
sustainable at all. The Division Bench of the High Court has
observed that the judgment and order of this Court dated
14.01.2010 has left open other issues to be determined. We do
not find anything in the order dated 14.01.2010. On bare reading
of the order dated 14.01.2010 there does not appear to be left
open other issues to be determined, as observed by the High
Court in the impugned judgment and order. Under the
circumstances, that part of the direction issued by the Division
Bench directing the Chairman to determine the profit earned by
the contractor deserves to be quashed and set aside.
18
7. In view of the above and for the reasons stated above, the
appeal filed by the FCI being Civil Appeal arising from SLP (C) No.
21970 of 2019 is hereby partly allowed. It is observed and held
that the casual labourers shall be entitled to the wages according
to the rates specified in the order dated 14.01.2010 passed by
this Court in Civil Appeal Nos. 94729473/2003 and the
contractor shall not be entitled to 471% ASOR basis with respect
to supply of casual labourers as claimed by him. Therefore, it is
specifically observed and held that the FCI shall be liable to pay
the wages payable to the casual labourers under the subject
contract according to the rates specified in the judgment and
order dated 14.01.2010 passed by this Court in Civil Appeal Nos.
94729473/2003 and not on 471% ASOR basis. It goes without
saying that the contractor shall be entitled to reimburse the
wages paid by him, i.e., Rs.106.38 per labourer, if the same is not
reimbursed/paid to the contractor. Therefore, remand to the
Chairman of the FCI shall be restricted to the determination of
the wages as per the judgment and order dated 14.01.20120
passed by this Court in Civil Appeal Nos. 94729473/2003, more
particularly as contained in paragraph a & b of the operative
portion of the impugned order. However, that part of the
19
direction issued by the Division Bench in the operative portion of
the order by which the Chairman is directed to determine the
profit earned by the contractor, the same is hereby quashed and
set aside. The appeal preferred by the FCI is partly allowed in
terms of the above. Consequently, the appeal preferred by the
contractor being Civil Appeal arising out of Diary No. 35242/2019
stands dismissed. There shall be no order as to costs.
…………………………………J.
[ASHOK BHUSHAN]
NEW DELHI; …………………………………J.
NOVEMBER 29, 2019. [M.R. SHAH]
20
