S ARUMUGANAINAR Vs. JEENATH ROADWAYS

JUDGEMENT

(1.) THOUGH the matter was listed for considering the question of stay/vacating the stay, since the very same question is involved in deciding the appeal, on consent of the counsels, the entire appeal has been heard on merit and is being disposed of by the present judgment.

(2.) THE facts giving rise to the present appeal are as follows :- THE present appellant awarded contract to the present respondent for a period of two years in respect of three tank lorries with effect from 1. 9. 2000 and for six tank lorries with effect from 1. 11. 2000, which provides extension for another year on the same terms and conditions. Dictating some serious violations in respect of two of the tank lorries, two show cause notices were issued on 31. 5. 2003. Under the show cause notices, it was intimated ". . . We are suspending all your tank lorries which are in contract with BPCL with immediate effect". A reply was furnished by the respondent claiming that malpractice had been committed by the concerned driver without the knowledge and connivance of the respondent. Two writ petitions, namely, w. P. No. 17962 and 17966 of 2003 were filed challenging such order of suspension and interim orders were passed on 30. 6. 2003 staying the operation of such suspension order in respect of seven lorries relating to which no malpractice had been detected. On 20. 6. 2003, an order blacklisting the tank lorries was issued. THE operative portion was to the following effect :- "we are therefore, blacklisting your ten tank lorries, which are in contact with BHARAT PETROLEUM CORPORTION i. e. including the seven tank lorries, which are in contract at Tondiarpet Installation along with the crew with immediate effect including ex-MI loads on industry basis as per industry guidelines on transport discipline July 1998. " A counter affidavit in the two writ petitions was filed on 22. 7. 2003 justifying the order of suspension. In such counter affidavit the subsequent order of blacklisting was also indicated. While the writ petitions were pending, the present respondent filed petition under Section 9 of the Arbitration and Conciliation act, 1996, numbered as O. A. No. 724 of 2003 and an order of stay was passed on 5. 9. 2003 staying the operation of the order dated 20. 6. 2003 except with regard to two tank lorries involved in the malpractice. While considering the miscellaneous petitions, both the writ petitions were taken up for hearing with the consent of the counsels appearing for the parties and by common order dated 16. 9. 2003, both the writ petitions were dismissed. THEreafter, the present respondent filed W. A. Nos. 3797 & 3798 of 2003 on 28. 10. 2003. By the time the writ appeals were taken up, the respondent had also filed O. P. No. 708 of 2003 for appointment of an arbitrator. Noticing all these developments, the Division Bench observed:- "4. In view of the fact that the contract period has itself ended and now, the controversy is limited to action of blacklisting both the parties agree that the matter should now be proceeded with by an arbitral tribunal as per the transport agreement between the parties. Both the parties agree that both the parties should be allowed to raise all such plea as are available to them in law. If the matters are proceeded before the Arbitral tribunal, now both the parties agree that the writ appeals could be disposed of as infructuous. In that view, the writ appeals are declared as infructuous and are disposed of as such. " On 21. 1. 2004, the respondent filed Contempt Petition no. 53 of 2004 alleging violation of the interim order of stay dated 5. 9. 2003 in o. A. No. 724 of 2003. In reply to such contempt petition, the present appellant narrated the developments from stage to stage. In such reply it was also indicated that the Corporation had intimated about the list of tank lorries blacklisted to all other companies as per the existing convention and after receipt of the said notice, such companies were also intimated accordingly. It was also intimated that by the time the order of stay was served, the contract period had come to an end in respect of two tank lorries by 31. 8. 2003 and in respect of other tank lorries by 31. 10. 2003. It was specifically stated that as the order was not communicated prior to 31. 10. 2003, the respondent could not comply with the order, and, therefore, had not violated the order of this court. THE applicant/respondent had filed a rejoinder stating that for a period of five months they were kept out of work and the said act of the respondent was not correct. It was further indicated that in respect of other tanker owners, their contract had been extended on adhoc basis and the petitioner was also entitled to similar facility, but the same had been denied by the Corporation. A further reply affidavit was also filed on behalf of the respondent / appellant. THE contempt petition was taken up for hearing on 20. 6. 2004 and was disposed of on 29. 6. 2004. After noticing the contentions raised by both the parties, the learned single Judge closed the contempt petition with the following observations :- "5. Though this court can punish the respondent, as provided under section 12 of the Contempt of Courts Act for violating the orders, if any, I do not find any wilfulness and deliberate violation of the order of this court. By taking into consideration the submissions made by the respondent in this case, it also appears to be true, I do not propose to give a finding on that aspect. But, however, the respondent is not entitled to cause loss to the petitioner, when its contract period was upto 31-10-2003. 6. THE fact that the respondent has not given the contract to the petitioner from 31-5-2003 to 31-10-2003 for 9 tanker lorries is not in dispute. THE petitioner has further submitted that they have invested huge amount by availing credit facilities from various financial institutions for the purchaser of tanker lorries and entered into contract with the respondent and as the respondent has not given the work, the entire operation has come to a standstill and the petitioner is unable to utilise the vehicles for any other purpose, as they are purchased only for the purpose of transportation of petroleum products for the Corporation. It is also submitted that the said tanker lorries cannot be utilised for any other purpose also, as they were designed only for transportation of petroleum products and thereby they have incurred huge loss. 7. Taking into consideration the inconvenience caused to the petitioner and also the incompatibility expressed by the respondent, instead of punishing the respondent, I feel that the following directions would meet the ends of justice. i) THE respondent is hereby directed to give contract work, i. e. transporting the petroleum products to the petitioner, for 6 tanker lorries only, which they have been giving to the petitioner prior to 31-5-2003, for a period of 5 months, commencing from 15-7-2004. ii) Awarding of contract for further period beyond 5 months, as it is said to have been given to the other tanker lorry owners, may also be considered to the petitioner also. " (Emphasis added)

(3.) CLAUSE 15 of the Letters Patent of the Madras High court is as follows :- "15. Appeal from the Courts or Original Jurisdiction to the High Court in its appellate jurisdiction And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of the superintendence under the provisions of Section 107 of the Government of India act, or in the exercise of criminal jurisdiction) of one Judge of the said High court or one Judge of any Division Court, pursuant to Sec. 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one judge of the said High Court or one Judge of any Division Court, pursuant to Sec. 108 of the government of India Act made (on or after the 1st day of February, 1929), in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us. Our Heirs of Successors in Our or Their Privy Council as hereinafter provided. "