K S Vijayakumar Vs State of Karnataka

K S VIJAYAKUMAR S/O. K T SATHYANARAYAN, AGED ABOUT 47 YEARS SRINIVASA TRANSPORT, R/AT NO. 466, NEAR POLICE STATION MAIN ROAD, K R PETE, MANDYA DISTRICT - 471 426.

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SRI. K NATARAJ S/O. B KEMPE GOWDA, AGED ABOUT 40 YEARS, DURGA PRASAD TRANSPORT, 566, K R PURAM, HASSAN-573 201, NAGAMANGALA TALUK, MANDYA DISTRICT 471 426.

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Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

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SRI. H M PRAKASH PROPRIETOR, AGED ABOUT 47 YEARS LAKSHMI VENKATESHWARA TRANSPORT, MYSORE ROAD, NEAR SAVITHA SHIVANANGEGOWDA COMMUNITY HALL, CHANNARAYAPATNA TALUK, HASSAN DISTRICT- 573 211.

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…PETITIONERS

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(BY SRI. PRAKASH M H.,ADVOCATE)

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AND:

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STATE OF KARNATAKA

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REP BY ITS SECRETARY, DEPARATMENT OF FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS, VIDHANA SOUDHA, BANGALORE - 560 001.

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THE COMMISSIONER DEPARTMENT OF FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS, NO. 8, CUNNINGHAM ROAD, SAHAKARA BHAVAN, BANGALORE - 560 052.

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THE DEPUTY DIRECTOR FOR FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, MANDYA DISTRICT - 571 404.

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THE DEPUTY COMMISSIONER MANDYA DISTRICT - 571 404.

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KARNATAKA STATE LOADING AND UNLOADING EMPLOYEES UNION BOOK HOUSE, 4^TH CROSS, ASHOK NAGAR, MANDYA - 571 401, REP BY ITS SECRETARY.

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…RESPONDENTS

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(BY SRI. MAHANTESH SHETTER.,ADVOCATE).

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS DATED 21.09.2019 PASSED BY THE R.4 VIDE ANNEXURES.L M AND N RESPECTIVELY AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' BROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners who are the successful bidders of a tender

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which was floated by respondent No.2 in the area of Mandya District for the purpose of transportation of food grains and other materials from the wholesale godown to different fair price shops between the year 2019 to 2021, are before this Court being aggrieved by the orders dated 21.09.2019 passed by respondent No.4 produced at Annexures-L, M and N respectively in terms of which petitioners herein have been called upon to pay EPF/ESI amounts from January, 2019 till the date of the orders within 7 days.

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2. Learned counsel for the petitioners taking this Court through the records, more particularly, the tender document produced at Annexure-A refers to arbitration clause provided thereunder and submits that the impugned order calling upon

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the petitioners to pay the EPF/ESI amount has not been quantified in the contract and that calling upon the petitioners

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to pay the amount as mentioned in the impugned orders is arbitrary. Since the dispute has arisen, instead of having recourse to the arbitration provided for resolution of dispute, the respondent No.4-Commissioner could not have passed the impugned orders. He further submits that as the petitioners have understood and the practice earlier was that hamali charges used to be deducted and nothing was required to be paid by the bidders. However contrary to the said understanding and the practice, the impugned orders have been passed. Hence seeks for allowing of the petition.

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3. Per contra, learned AGA taking this Court through the clause (4) of the tender documents submits, liability of making the payment under the provisions of Indian Factories Act, Employees' Compensation Act, Employees' Provident Fund and Miscellaneous Provisions Act, Industrial Dispute Act, Contract Labour Act, etc., is that of the bidders/petitioners herein. Since the said clause explicitly imposes liability on the petitioners, there is no question of determination of the liability of payment.

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4. He refers to Annexure-VIII to the tender document

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and submits even the hamali charges to be deducted at ₹16 has been fixed as the benchmark, leaving no further scope for any dispute. Thus, he submits that petition is speculative requiring warranting no interference in the hands of this Court.

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5. Heard. Perused the records.

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6. Clause (4) of the tender document reads as under;

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" 4. Liability for Personnel

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a. All persons employed by the Bidder shall be engaged by him as his own employees/workers in all respects and all rights and liabilities under the Indian Factories Act, the Employees Compensation Act, Employees Provident Fund & Miscellaneous Provisions Act (EPF & MP Act), Industrial Disputes Act, Contract Labour (R&A) Act and under all other applicable enactments in respect of all such personnel shall exclusively be that of the Bidder. The Bidder shall be bound to indemnify FCS & CA Dept. against all the claims whatsoever in respect of his personnel under the Employees Compensation Act, 1923 or any statutory modification thereof or otherwise for or in respect of any damage or compensation payable in consequence of any accident or injury sustained by any workmen or other person whether in employment of the Bidder or not.

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The successful bidder while performing the Services/discharging obligation under this agreement, shall engage persons/Labourers as his own servants even if he engages one employee (Hamalis / Coolies) in all respects and employees engaged shall not at any time regarded as the employees of the FCS & CA Dept. For this purpose, the coolies/hamalies engaged in unloading, weighing and stacking works in the process of

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delivery to the FCS & CA Dept, shall be deemed to have been employed by the successful bidder.

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The successful bidder alone shall hold the responsibility under EPF Act & ESI Act, Workmen Compensation Act, Indian Factories Act and other similar enactments in respect of his own employees (Drivers, coolies, etc) and Hamalis / Coolies at godowns & FPD's The successful bidder shall always keep the FCS & CA Dept fully indemnified against all claims and proceeding, if any, in respect of his employee or others against the FCS & CA Dept.

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The successful bidder shall mandatorily obtain license in form No. 4 under 21 (1) from the Labour Commissioner concerned as per the provisions of Contract Labour (Regulation and Abolition) Act, 1970, within 30 days after signing this agreement, if applicable. Successful Bidder shall be paid Transportation Bills from the first month of contract, only on Submission of records for having paid PF/ESI to his Employees & Hamalis/ Coolies at godowns and FPD's.

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The successful bidder shall also maintain such records and remit such returns, fees contribution, etc., as may be prescribed under the said Acts and Rules in force. Any violation in this regard shall be assessed against the successful bidder.

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b. The Bidder shall maintain Inspection Note Book having details of Hamalies, PF paid details etc... engaged in loading, unloading & stacking of food grains. And Food Inspector to record his observations on his visit. The Bidder shall also make available the same when asked for inspection to the Officers of the Regional Provident Fund Commissioner and to the Commissioner, FCS & CA Dept. or Officer authorized by him or acting on his behalf.

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c. If the Bidder fails to submit the prescribed Returns, Records and other documents to the designated authority under the EPF Act and Scheme framed there under and also to Commissioner FCS & CA Dept. or an Officer acting on his behalf, FCS & CA Dept. will be at liberty to withhold the pending

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bills, Security Deposit etc., and or any other payments due to the Bidder".

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7. Perusal of the aforesaid clause indicate that

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petitioners who are bidders are contractually obligated to pay the dues payable under the provisions of law mentioned in the above said clause. As rightly pointed out by learned AGA, this leaves no room for any doubt about liability of making the payment. As regard to the rate of hamali charges, the same are also pre-determined and set as a benchmark as per AnnexureVIII to the tender document. The question as to the calculation arrived at by the respondent No.4-Commissioner of the amount payable towards EPF and ESI amount as mentioned in the impugned orders cannot be gone into by this Court. Necessary however to note that, though the impugned orders have been passed by respondent No.4, it is the respondent No.2 who is competent authority as mentioned in the tender document and the PDS order. Impugned order therefore unenforceable. Therefore, the matter is remitted to respondent No.2 to hear the petitioners afresh and pass appropriate order in this regard. No precipitative action shall be taken against the petitioners

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