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

  1. 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.
  2. 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
  3. 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,
  7. 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
  8. 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