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Judgment
S. Rajeswaran, J.—This Transfer Original Petition has been filed to set aside the award dated 20.6. 2001 passed by the arbitrator and to pass a decree for recovery of Rs. 4,23,174/- made from the bills of the 1st respondent by the petitioner which is sustainable and valid and to adjust a sum of Rs. 65,657/-from the available S.D., and EMD amount of Rs. 80,000/-.
The brief facts are as under:
The petitioner-corporation called for an open tender for the appointment of handling-cum-transport contractor in City Rail Heads Movement for the year 1996-97. The 1st respondent was the successful tenderer and he was appointed as transport contractor by the petitioner''s proceedings dated 12.8.1996 and 21.4.97. 1st respondent undertook to move the goods from 6.8.96 to 6.11.97. During the contract period, wharfage/demurrage charges amounting to a sum of Rs. 5,24,800/- were incurred due to poor supply of lorries for clearance of paddy wagons at City Rail Heads. Therefore after adjusting the amount of refund received from the Railway, a sum of Rs. 4,88,831/- was to be recovered from 1st-respondent. But only a sum of Rs. 4,23,174/- was recovered from 1st respondent''s bills and the balance of Rs. 65,657/-was to be recovered by adjusting the available S.D., and EMD amount.
The 1st respondent objected to this recovery and contended that a total sum of Rs. 5,03,174/- is due and payable to him by the petitioner-corporation. The dispute was referred to arbitration and 2nd respondent arbitrator, by award dated 20.6.2001 held that 1st respondent is entitled to get the refund of Rs. 4,23,174/- being his transport bill amount recovered by the petitioner that 1st respondent is entitled to get refund of his SD and EMD amounting to Rs. 80,000/- and the amount of Rs. 4,23,174/-will carry an interest at 12% p.a.
Aggrieved by the award dated 20.6.2001, the above O.P., has been filed u/s 34 of the Act, 1996.
Heard the learned Counsel for the petitioner and the learned Counsel for 1st respondent. I have also perused the documents filed and the unreported judgment relied on by them in support of their submissions.
The learned Counsel for the petitioner contended that 2nd respondent/arbitrator is wrong in holding that 1st respondent could not move the goods only due to the refusal/strike by labourers of the godown and hence the corporation is responsible for the wharfage and demurrage charges payable to the Railways. Learned Counsel referred to Clause 35 of the agreement and submitted that in view of Clause 35, only the contractor is liable to wharfage, demurrage and any loss/or damage which the corporation may suffer on this account. He relied on an unreported judgment of this Court dated 14.3.2006 made in O.P. No. 700/2000.
I am unable to accept the above submissions of the learned Counsel for the corporation.
It is the case of 1st respondent that on 24.10.1997, in Anna Nagar godown of the petitioner, the labourers of the petitioner refused to clear the goods from the lorries demanding more money per bag against the fixed rate per bag. All the private lorries were not unloaded by the labourers on 24.10.1997 and the lorries were unloaded on 25.10.97 evening and 1st respondent was made to pay increased hire charges to the lorries. 1st respondent informed the officers of the petitioner-corporation explaining the position and requesting them to make alternative arrangements to avoid demurrage and wharfage to the corporation as unloading was completely stopped from 25.10.97.
The above said incident was not denied by the petitioner corporation with acceptable evidence. Their only defence is that as per Clause 35 of the agreement, 1st respondent alone is responsible for the penalty of wharfage and demurrage levied by the Railway.
It is useful to refer to Clause 35 which is extracted below:
35) The contractor shall not be responsible for delay which may arise on account of reasons beyond his control, The Chairman cum Managing Director of the Corporation alone be the final judge to decide whether or not such reasons are beyond the control of the contractor. Events like strike by contractor''s labourers on account of any dispute between the contractor and his labourer as to wages or otherwise shall not be deemed to be a reason beyond the contractor''s control and the contractor shall be responsible for wharfage, demurrage and any loss/or damage which the corporation may suffer on this account.
From the above, it is very clear that events like strike by contractor''s labourers on account of any dispute between the contractor and his labourers as to wages shall not be deemed to be a reason beyond the contractor''s control.
In the case on hand, it is the labourers of the petitioner corporation who refused to unload the goods and not the labourers of the 1st respondent and in such circumstances, the petitioner corporation cannot take shelter under this clause.
In fact this issue was thoroughly discussed by 2nd respondent and a finding was given by him in this regard which is as follows:
The respondent in his counter and written argument in usual manner, has stated that wharfage and demurrage charges were incurred due to poor supply of lorries for clearance at City Rail head by the petitioner. This is not acceptable for the period from 24.10.1997 to 4.11.97 as no unloading was done by the TNCSC labourers during this period as the labourers in all the godown went on strike upto 4.11.97 and lorries could not ply due to heavy rain from 5.11.97 to 7.11.97. No purpose would have been served even if the petitioner had supplied the lorries during this period.
The respondent has not taken any action on the written complaint of the petitioner about the demand of increase rate of Rs. 2/- per bag of paddy against the approved rate of 0.90 np by the loadman in the godowns. Instead of warning their loadman who were working on daily wage coolies against their demand, the respondent has simply stated that the TNCSC had never prescribed any mamool to anyone and the corporation was nothing to do in this regard and it was the look out of the contractor to meet out all the expenses at the approved rate as per the tender condition. It is not known how the respondent corporation expects the contractor to meet out the increased demand of the labourers more than double rate of the approved rate fixed by the corporation.
It is clear from the respondent''s letter dated 15.11.97, that though the labour problem was settled on 4.11.97, heavy down pour on 5.11.97 to 7.11.97 affected normal life in city godowns and all the lorries were standed in the roads due to heavy water logging and the lorries could not make subsequent trips to clear the stock in the wharf and with much difficulty, the entire bags were cleared by 9.11.97. As the delay was not due to the fault of the TNCSC as the season was beyond its control, the respondent had sent waiver proposals to the tune of Rs. 3,11,179.00 which the Railway had collected towards wharfage and demurrage charges, the same logic, is applicable to the petitioner also. As such, the respondent cannot fix responsibility on the petitioner for his failure to deer the stock during the period from 24.10.97 to 6.11.97 as the situation (i.e. Strike and rain) was beyond the petitioner''s control.
This finding is a reasonable one, that too based on the evidence and therefore this Court cannot interfere with the same u/s 34 of the Act, 1996.
In the unreported judgment dated 14.3.2006 in O.P. No. 700/2000, I had an occasion to deal with a similar clause as Clause 35 of the present agreement and held that if there is a strike by the contractor''s labourers on account of any dispute between the contractor and the labourers as to wages, the same should not be deemed to be a reason beyond the contractor''s control and the contractor alone is responsible for any loss suffered. As the strike was due to the workmen of the contractor in O.P. No. 700/2000, I held that for loss and damage suffered because of the strike indulged in by the contractor''s workmen, the contractor alone is responsible to pay the same.
In the case on hand, there is a clear finding by the arbitrator that the labourers are the workmen of the petitioner corporation and in such circumstances, as rightly held by 2nd respondent, the petitioner corporation could not expect the 1st respondent to meet out the increased demand of the labourers of more than double rate of approved rate fixed by the corporation.
In the result, I do not find any grounds set out in Section 34 of the Act, 1996 warranting interference by this Court.
Hence the O.P., is dismissed. No costs.