Sri Samarjit Sinha vs Oil And Natural Gas Corporation ...
2021 Latest Caselaw 434 Tri

                    HIGH COURT OF TRIPURA
                           AGARTALA


                         WP(C) 213/2020

1.Sri Samarjit Sinha
S/O Sri Nanda Kumar Sinha, Resident of Village and P.O- Halhali,
PS- Kamalpur, District- Dhalai Tripura.

2.Bisweswar Prasad Dasgupta,
S/o- Lt. Nani Gopal Dasgupta Resident of Chandrapur, TATA
Kalibari, P.O- Reshambagan, P.S- East Agartala District- West
Tripura.


                                                    -----Petitioner(s)


                               Versus


1.Oil and Natural Gas Corporation Ltd.
having its registered office at Jeevan Bharati, Tower No.II, 8th
Floor, 124 Indira Chowk, New Delhi-110001 represented by its
Chairman and Managing Director.

2.The E.D. Asset Manager,
Oil and Natural Gas Corporation Ltd., Tripura Asset, Badharghat,
Agartala, District- West Tripura.


3.The DGM, I/C Logistics,
Oil and Natural Gas Corporation Ltd., Tripura Asset, Badharghat,
Agartala, District- West Tripura.


4.Maruti Suzuki India Limited,
having its registered office at Plot No. 1, Nelson Mandela Road,
Vasant Kunj, New Delhi-110070, represented by its Authorised
Representative.
                                  Page 2 of 10


5.Checkmate Services Pvt. Ltd.,
having its registered office at GF-6 to 9, Amaan Towers, Suvas
Colony, Fatehgunj Main Road, Baroda, Gujarat-390002, represented
by its Authorized representative.


                                                      -----Respondent(s)

For the Petitioner (s)       :       Mr. R. Datta, Adv.
For the Respondent (s)       :       Mr. A. Nandi, Adv.
                                     Mr. A. Bhat, Adv.
                                     Mr. P. Datta, Adv.
Date of hearing & delivery   :       31.03.2021
of Judgment & order
Whether fit for reporting    :       NO

                HON‟BLE MR. JUSTICE S. TALAPATRA
                     JUDGMENT & ORDER [ORAL]

Heard Mr. R. Datta, learned counsel appearing for the

petitioners as well as Mr. A. Nandi, learned counsel appearing for

the respondents No.1, 2 & 3 (Oil & Natural Gas Corporation Limited

and its two Officers) and Mr. A. Bhat & Mr. P. Datta, learned counsel

appearing for the respondent No.4 (Maruti Suzuki India Limited).

But none appears for the respondent No.5, though Mr. H.

Debbarma, learned counsel has entered in the appearance. From

the records, it appears that the respondent No.5 has filed an

exhaustive affidavit through Mr. Debbarma, learned counsel which is

in tune with the reply filed by the respondents No.1-4. The said

reply will be considered for decision.

[2] The petitioners by means of this writ petition urged this

court for issuing a direction on the respondents to release fair wages

amounting to Rs.4,24,364/- with statutory interest for the period

from September, 2016 to September, 2019. Admittedly, the

petitioners were deployed 'as supervisors by the respondent No.5

under the respondent No.1-3 on contractual basis with effect from

17.09.2015'.

[3] The petitioners have themselves asserted that their

duties and responsibilities were to supervise the works and

functioning of the 56 drivers deployed by the respondent No.5 under

the respondents No.1-3. The petitioners were thus engaged to

supervise the works of the drivers who were deployed by the

respondent No.5. That apart, and the petitioners were also

discharging various other works for the respondent No.5 unrelated

to the said contract. In this regard, the respondents No.1, 2, 3 or 4,

even the respondent No.5, does not raised any dispute or objection.

It has not been disputed by the respondents that on 20.08.2015,

one agreement was entered into by the respondents No.1 & 4 and

ALD Automotive Pvt. Ltd. for a period of 48 months. In the said

agreement, the respondent No.4 was the third party and the

respondent No.1 was the first party whereas ALD Automotive Pvt.

Ltd. was made the second party. It was agreed upon that the

respondent No.4 would provide/supply to the respondent No.1 to 3

different types of vehicles as would be classified and required by the

respondent No.1.

[4] There is no dispute in respect of the supply of the

required vehicles, even there is no dispute between the respondent

No.1 and the respondent No.5. The dispute is limited to a very short

extent. In terms of the fair wage policy in the logistic contracts as

implemented by the respondent No.1, the petitioners have claimed

that they are entitled to get the fair wage, in terms thereof. The

only document as placed by the petitioners is a communication

dated 24.11.2015 where the respondent No.1 was asked for

implementation of the fair wage policies in terms of the logistic

contract. The relevant of the said communication [Annexure-7 to

this writ petition] is reproduced below:

"The above referred D.O. letter has been received from ED-Chief ER for implementation of Fair Wage Policy of ONGC in certain type of Logistics contract, as approved in the 474th EC Meeting held on 23.09.2015. The salient features of the policy in respect of benefits & coverage is brought out at flag-A placed opposite in the file.

The contractor‟s workers in the logistics contract shall be eligible for Fair Wages if they are not party to any case pending before any court/tribunal against ONGC regarding their regularisation of services/revision of wage etc. The policy shall be implemented with immediate effect.

The implementation of Fair Wage Policy shall be implemented in future as well as in existing contracts and the modality for implementation has been mentioned in the policy (ref: Annexure-I and Annexure-II respectively). In the existing contracts the implementation of policy shall be dealt as per clause 24.3 of Integrated MM Manual for Post Contract Issues, which is a standard clause in the contracts."

[5] What has been provided in the the said Fair Wage Policy

is detailed in the working paper which has been annexed with the

said communication dated 24.11.2015 detailing the various

components of benefit. In this regard, there is no dispute. But in the

working paper at para-2.3 the following observation which appears

relevant for the purpose has been made:

"In this regard, Committee went through the relevant provisions of Master Lease Agreement of existing N2N contracts & fair wages policy as referred above. The details of wages being paid as on date as per existing N2N contract(s) vis-a-vis payment of wages to be made to Chauffeurs on implementation of Fair wages worked out are as under."

After that, how to work out the fair wages has been

detailed. Considering that, the same is not relevant in the present

controversy, that part has not been referred in detail.

[6] Further, there is a communication from the DGM-In

Charge, Logistics of Oil and Natural Gas Corporation Limited [the

respondent No.1] addressed to the respondent No.4 in respect of

the revision of contract awarded to them. In the said communication

the following aspects have been asserted for purpose of

implementation of the Fair Wages Policies which read as under:

"ONGC management has decided to ensure that contractual workers deployed by you in execution of ONGC operations may be paid „Fair Wage‟ which will be 35% + Rs.50/- higher than minimum wages including DA paid for scheduled employment in „Construction and maintenance of roads & building operations „with all attendant contributions towards social security schemes such as EPF, ESI et. The details of the „Fair Wage‟ and attendant contributions are mentioned in the Annexure to this letter. The „Fair Wage‟ will be implemented with effect from 01.09.2016.

Since the proposed „Fair Wage‟ has not been part of the terms & conditions agreed at the time of awarding the contract, ONGC management will bear the additional cost incurred by you for

implementation of the proposed „Fair Wage‟. Accordingly, if you are paying less than the proposed „Fair Wage‟ to your employees, you are requested to give revised rates for Chauffeurs charges effective from 01.09.2016 due to implementation of Fair wage policy along with detailed calculation and justification.

The revised rates for Chauffeurs charges shall be made in order to absorb the regular increase in Minimum wages and corresponding fair wages up to the end of contract date. The revised rates should not include the exorbitant increase in the minimum wages w.e.f. 19.01.2017. The revised rates for Fixed hire charges should be firm for the remaining period of contract."

[7] From a bare reading of the said communication, it

becomes abundantly clear that so far as the Fair Wage Policy is

concerned, the contract-workers would mean only Chauffeurs

(Drivers). The petitioners however have raised a plea that the

respondent No.1 did never classify them as 'non worker' and hence

they would be entitled to the said benefit. For this purpose, the

reply filed by the respondents No.1 & 2 is very material. The

respondents No.1-3 in para-11 of their reply have categorically

stated that they do not have any role in engagement of any driver

or Supervisor. They are engaged by the respondents No.4 & 5 for

execution of their assigned works. Thus, the claim of the petitioners

against those respondents are not legally tenable. But in para-13 of

the said reply, it has been stated that pertinent it is to mention that

the petitioners never rendered any supervising service to ONGC. It

clearly implies that no service was realized by the respondent No.1

from the petitioners in any form.

[8] Mr. Bhat, learned counsel appearing for the respondent

No.4 has stated that in the matter of engagement of Chauffeurs or

the other employees, the respondent No.4 does not have any role.

Such engagements were/are made by the respondent No.5 to meet

the contractual obligation. Mr. Bhat, learned counsel has made a

reference to the contract itself to show the respective roles to be

played by three parties i.e. the respondents No.1-3, the first party,

the respondent No.4, the third party and the respondent No.5, the

second party. From the memorandum of agreement dated

20.08.2015 [Annexure-5 to the writ petition]. The relevant parts of

such agreement may be referred to. Clause-4A records the

obligation of the company to the lessor. Clause Q is relevant for our

purpose which provides that without affecting the Company's

obligation to pay forthwith the Lease Rentals and the FM Charges.

In the event, there emerges arrears of such Lease Rentals or any

other amount payable by the Company to the Lessor, such arrears

or amounts shall carry a Delay Compensation Charge at the rate of

15% per annum from the respective due dates till the date of actual

payment, and shall be paid by the Company on demand by the

Lessor. Delay Compensation Charges would also be payable by the

Company on the FM charges or any other amount

reimbursable/payable to MSIL. Clause-4, on the Chauffeurs service,

provides how the Chauffeurs be made available for driving the

multiple vehicles as would be provided by the respondent No.4 in

terms of Clause Q. The Chauffeurs will be provided, in terms of the

agreement, by the respondent No.5.

[9] The respondent No.5 by filing a separate reply has clearly

denied the statement of the petitioners that the petitioners were

deployed as Supervisors by the respondent No.5 under the

respondents No.1-3 on the basis of the said contract with effect

from 17.09.2015. It has been clearly stated that the petitioners

were the employees of the respondent No.5 and the petitioners

were being paid for their services by the respondent No.5. The

petitioners were never appointed under the respondents No.1-3.

Therefore, it is clear that the petitioners were never supervisor of

the workers (Chauffeurs) under the tripartite agreement. The

petitioners however have filed a rejoinder to the said reply field by

the respondent No.5 on 15.02.2021, but have not traversed the said

statement of the respondent No.5. The petitioners have simply

reiterated that they are entitled to get the fair wages under the Fair

Wages Policy of the respondent No.1. According to the petitioners

they fall under the said logistic contracts and as such they are

entitled to get the fair wages.

[10] In the reply filed by the respondent No.4 it has been

asserted that the petitioners were never engaged by them. They do

not have any relation with the petitioner. Therefore, they cannot be

burdened with any obligation towards the petitioners.

[11] Mr. R. Datta, learned counsel appearing for the

petitioners has submitted that the petitioners even though were

engaged as Supervisors by the respondent No.5, but they were only

working for smooth functioning of the said logistic contract.

But Mr. A. Nandi, learned counsel appearing for the

respondents No.1-3 has squarely denied the proposition as

advanced by the petitioners and contended that the petitioners

never worked under the respondent No.1, 2 & 3 under the logistic

contract and their service were never availed by the respondent

No.1.

[12] Both Mr. Bhat and Mr. Datta, learned counsel appearing

for the respondent No.4 have reiterated that they do not have any

relation with the petitioners and they do not know whether the

petitioners were employed under the logistic contract or not.

[13] Having situated thus and on careful reading of the Fair

Wages Policy as adopted by the respondent No.1, this court is of the

considered view that the petitioners do not come under the said

logistic contract for the reasons that they were never appointed for

any work under the logistic contract and secondly, they were not

the contract workers, as the Chauffeurs are, to be covered by the

said policy.

[14] Having situated thus, this court is of the view that the

writ petition cannot survive the scrutiny. Accordingly, the same

stands dismissed.

There shall be no order as to costs.

JUDGE

Moumita