Full Judgment
29. 01.2013 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.770 and 19159 of 2011 and M.P.Nos.1 to 3 of 2011 and Contempt Petition No.772 of 2012 Peer Moideen Partner M/s.S.P.Transport .. Petitioner in W.P.770/2011 and Cont.Petition.No.772/2012 M/s.S.P.Transport Rep. By Partner, Peer Moideen .. Petitioner in W.P.19159/2011 -vs- 1.The General Manager (TNR) RO-Chennai,Food Corporation of India No.5/54, Greams Road Chennai-60”
2. Area Manager Food Corporation of India District Office, No.1, Bharathi Road Cuddalore-1 .. Respondents in both the Writ Petitions 3.Thulasi Das The General Manager (TNR) RO-Chennai,Food Corporation of Chennai 5/54, Greams Road, Chennai-6 4.Kannan The Area Manager, Food Corporation of India District Office, 1, Bharathi Road, Cuddalore .. Respondents 1 & 2 in Cont.P.No.772/2012 Prayer in W.P.770/2011 :-Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus calling the records of the 2nd respondent dated 16.11.2010 in reference Lr.not S&C/13/1/1/2010/H&T C Bills/TVK and the consequential Telegram order of the 2nd respondent dated 07.01.2011 in Ref.not S&S/13/1/1/H&TC/TV Koil/2010 and quash the same and direct the respondents 1 and 2 to issue the work slips to the petitioner for the H & T operations carried out by the petitioner as per the terms of the contract till termination of the contract period. Prayer in W.P.19159/2011 :-Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Mandamus directing the respondents to release the withheld payments to the petitioner as per law and eligibility as per the terms of the Contract, dated 07.09.2010, in Ref.not S&C13/2/3/2010/Cont., and pass such orders. Prayer in Cont.P.No.772/2012:- Petition filed to punish the respondents for the wilful and deliberate disobedience of the interim order granted in MP.No.2 of 2011 dated 12.01.2011 made in W.P.No.770/2011 on the file of this Court. For petitioner : Mr.B.Divakaran For respondents : Mr.S.Vijayakumar C O M M O N O R D E R The petitioner is a Transport Contractor with the respondent-Food Corporation of India (FCI). By the Contract Award dated 07.09.2010, the petitioner was given a contract of loading / unloading / handling and transportation of food grains at FSD T.V.Koil as well as Railhead at Chinnababusamudram in the Union Territory of Pondicherry. The contract was for a period of two yers from 09.09.2010 to 08.09.2012.
2. Subsequent to the contract, the petitioner was given an order dated 08.09.2010, appointing them as Transport Contractor and the amount of security deposit to be paid was also specified in the said order. The petitioner was directed to get licence for the contract labour to be engaged by them and also to pay other social welfare benefits in respect of the workmen engaged by them.
3. In the mean while, it transpires that the Central Government, by the exercise of power under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970) issued S.O.947 (E), dated 23.04.2010 prohibiting the employment of the contract labour in the works of loading, unloading, stacking, destacking, restacking, standardization, weighment, sweeping and cleaning in the godowns and depots of the Food Corporation of India as specified in the Schedule. In the godown and depots list, Sl.Nos.22 and 23 referred to Food Storage Depot, T.V.Koil, Tamil Nadu and Food Storage Depot, Puducherry.
4. In the matter of loading, unloading, stacking, destacking, restacking, standardization, weighment, sweeping and leaning, the respondent-Food Corporation of India informed the petitioner by a Telegram dated 16.11.2010 that consequent on introduction of No Work No Pay system and Piece rate system for Depot Handling Labourers in the notified depots of FSD, now the Depot Labourers will carryout the work as per the MOU dated 12.11.2010 with the FCI Management and the Top Leader of Workers Union, INTUC. Thereafter, corespondences were exchanged between the contractor/petitioner and the Food Corporation of India/respondent and finally after exchange of legal notice, the petitioner came forward to stay the telegram and to quash the same and for a direction to the respondents to issue the work slips to the petitioner for the H & T operations carried out by the petitioner as per the terms of the contract till termination of the contract in W.P.No.770 of 2011.
5. When the matter came up on 12.01.2011, this Court admitted the writ petition and granted interim stay for eight weeks. Subsequently, the petitioner filed application for extension of the interim order of stay by filing M.P.No.3 of 2011. This Court merely ordered notice to the Standing Counsel for Food Corporation of India and no extension order was granted. Further contending that the order passed in M.P.No.2 of 2011 was disobeyed, the petitioner preferred Contempt Petition No.772 of 2012. In that Contempt Petition, the petitioner was directed to serve notice on the Standing Counsel for Food Corporation of India.
6. Curiously, the petitioner filed another Writ Petition being W.P.No.19159 of 2011 seeking for release of withheld payments to them as per law and eligibility in terms of the Contract dated 07.09.2010. That writ petition was admitted on 18.08.2011.
7. In view of the inter-connectivity between the two writ petitions viz., W.P.19159/2011 and 770/2011 and Contempt Petition No.772/2012, they are grouped together and common order is passed.
8. In W.P.No.770 of 2011, the General Manager, Food Corporation of India, filed counter affidavit dated 30.06.2011. In the counter affidavit, it is stated that by Gazette Notification, the Government of India on 23.04.2010, abolished the engagement of contract labour and thereafter, the Food Corporation of India entered into Memorandum of Understanding (MOU) with the Trade Union on 12.11.2010 and executed a settlement under Section 12(3) of the Industrial Disputes Act. By the agreement, the Food Corporation of India agreed for implementation of direct payment system as well as No work No pay system in all the notified depots and godowns. Notwithstanding the abolition of the system of contract labourers, the Food Corporation of India cancelled the contract labour. Subsequenty, the petitioner approached the FCI to interfere in the matter and permit them to carry out the operation by engaging the contract labourer and also sought for release of payment. The FCI refused to consider the same on account of the notification issued by the Government of India. It was stated that the petitioner was entitled for payment of the work carried out restricting to two points only, as per the memorandum of understanding entered into with the workmen with effect from 06.01.2011. After the introduction of the Direct Payment System, there is no necessity to make any payment through the petitioner and they cannot claim payment for the entire operation as the handling works of loading and unloading from the trucks at FSD, T.V.Koil, is done only by the workers. Since, the Contract awarded to the petitioner was only for a period of two years with effect from 09.09.2010, there is no need to issue any order of termination and the petitioner was not prevented from work as per the HTC terms and is required to carry out the work of two point operations only.
9. In the counter affidavit filed in W.P.No.19159 of 2011, the Deputy General Manager, Tamil Nadu Region of the Food Corporation of India averred that the petitioner has adopted indigenous methods in not complying with the statutory duties such as payment of wages to the wrokers, payment of Provident Fund contribution and also E.S.I.dues. After making demand of the amounts due from the petitioner, as they did not comply with the same, the Corporation deducted the amount payable to the contractor. In respect of the same, in paragraph No.8 and 9, it was averred as follows:- "8. It would not be out of place to mention at this stage that consequent upon the stay granted by this Hon'ble High Court for eight weeks, payments made to the petitioner towards handling including godown and transport charges from 12.01.2011 to 09.03.2011 are as follows. ============================================================================================== Sl.No. Bill No. & dated Duration of Bill claimed Amount Paid (Rs) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Handling Transportation =============================================================================================”
09. 2011 dated 31.01.2011 & 09 A/2011 dated 31.01.2011 12.01.2011 to 08.03.2011 13,61,656.00 5,76,909.00 =============================================================================================”
10. 2011 dated 06.02.2011 & 10A/2011 dated 06.02.2011 23.01.2011 to 31.01.2011 12,68,600.00 6,51,280.00 =============================================================================================”
11. 2011 dt.03.03.2011 & 11A/2011 dated 03.03.2011 Feb.2011 16,34,515.00 5,07,073.00 =============================================================================================”
12. 2011 dt.14.03.2011 & 12A/2011 dated 14.03.2011 01.03.2011 to 10.03.2011 6,19,507.00 2,10,066.00 ============================================================================================== Total 48,84,278.00 19,45,328.00 ============================================================================================== 9. I submit that the writ petition itself is a clear abuse of process of law and the period of contract has already come to an end on 08.09.2012. While so, the petitioner herein has filed this present writ petition circumventing the law in his favour to harass the respondents herein, otherwise the writ petition has become infructuous." 10. In the light of the stand taken by the respondent-Food Corporation of India, both the writ petitions are not maintainable as the issue arise out of commercial contract entered between the petitioner and the respondent. If the petitioner has any grievance raising out of the said contract, in the absence of arbitration clause, the appropriate relief for the petitioner is to apporach the Civil Court.
11. In the present case, the attempt by the petitioner to seek for continuation of the contract cannot be countenanced by this Court. In any event, the contract came to an end with effect from 08.09.2012. Hence, the relief sought for by the petitioner cannot be granted in the Writ Petition filed under Article 226 of the Constitution of India. Accordingly, W.P.Nos.770 and 19159 of 2011 are dismissed. No costs. Consequently, connected miscellaneous petitions are also closed.
12. As far as Contempt Petition No.772 of 2012 is concerned, this Court granted interim order of stay for a period of eight weeks in M.P.No.2 of 2011 in W.P.No.770 of 2011 and the petitioner's attempt for extension of interim order has failed. Further, the respondent-FCI had permitted the petitioner to work for two years period from 09.09.2010 to 08.09.2012 as far as the other points of contract and cancelled the contract in respect of points, covered by Notification issued by the Government of India. Therefore, it cannot be said that Food Corporation of India disobeyed the order of this Court. Hence, this Court do not find that any contempt made out in this case. Accordingly, the Contempt Petition No.772 of 2012 is closed.
13. The observation made in the above Writ Petitions and the Contempt Petition will not dis-entitle the petitioner to move the appropriate forum, if he has got any remedy open to him in accordance with law. nvsri To 1.The General Manager (TNR) RO-Chennai,Food Corporation of India No.5/54, Greams Road Chennai-60”
2. Area Manager Food Corporation of India District Office, No.1, Bharathi Road Cuddalore 1