Decided on December 20,2007



- (1.) THE respondent in this application has claimed that the order directing the Managing Director of the respondent corporation to be present, be recalled and his personal appearance be dispensed with. The application seeking exemption from personal appearance of the Managing Director of the respondent is supported by an affidavit of Shri K. Mukhopadhyaya, chief General Manager, Northern Region. The ground which is taken in the application for exemption is as under: "8. That the Managing Director of the respondent is the executive head of the respondent corporation and normally he is very busy from early morning till late in the evening and he has to meet number of officers from different offices situated all over India besides number of outside visitors. It is stated a number of meetings were already fixed for on december 20, 2007 and he has to attend the same and it would be extremely difficult for the Managing Director to be personally present in the Court on December 20, 2007 and it is therefore respectfully submitted that his personal appearance be very kindly dispensed with.
(2.) THE presence of Managing Director was sought because by letter dated 20th July, 2007 it was intimated to the petitioner that the amount of rs. 30. 60 lakhs will be refunded subject to petitioner submitting Bank guarantee valid for six months for the same amount. This letter was sent almost after six months in reply to the letter dated 8th December, 2006 by which the petitioner had protested against levy of penalty of Rs. 41,78,000/ -. By this letter dated 20th July, 2007 it was also communicated that the records of the petitioner have been rechecked for the period 1. 4. 2005 to 15. 04. 2006 and the respondent has decided to levy another amount of Rs. 11,14,000/- as penalty. It was also intimated to the petitioner that the penalties for the entire period will be rechecked.
(3.) BY letter dated 4th July, 2007 addressed to the Managing Director of the respondent, the petitioner had contended about illegal deductions made from his bills and as his various letters had not been replied by the officials of the respondent, therefore, he has sought for appointment of an arbitrator. The relevant allegations made in the said communication are as under: ". . . . . . . We had been working for you also as Road Transport Operator (RTO) at DCT Okhla since 16. 8. 1999. The contract expired on 15. 08. 2003. The same was extended for next four months upto 15. 12. 2003 as per contract clause No. 4. 2 and again extended for two years upto 15. 12. 2005 as per contract clause No. 4. 1 and after that we were asked to continue till finalization of next contract, in viewing our long time relationship the work was continued till 20. 11. 2006 (Ad-hoc basis ). But we regret to inform you that despite our best of services during the contract period a sum of Rs. 24,68,000/- towards Non deployment, rs. 17,10,000/- towards Non compliance and 4,96,850/- towards both way loading containers i. e total of Rs. 46,74,850/- was deducted from our freight bill during the period of April, 2005 to 15th April, 2006 without any justified reason nor considering the practical aspects in RTO operation at DCT. We request your kind attention to our earlier letters dated 22. 11. 2005; 21. 012006; 31. 01. 2006; 03. 02. 2006 ; 10. 4. 2006; 19. 06. 2006; 23. 08. 2006; 23. 09. 2006; 25. 10. 2006; 27. 11. 2006; 8. 12. 2006, 26. 12. 2006 and 22. 01. 2007. Copy of our letter dated 8. 12. 2006 and 22. 01. 2007 is enclosed. We brought to your kind notice that a sum of Rs. 46,74,850/- (Ruppes forty six lacs Seventy four thousand Eight hundred Fifty only) was deducted from our freight bill in the name of non deployment of vehicles, non compliance of job order and both way loading containers for the period mentioned above. In this regard, we wrote several letters to General Manager and Chief general Manager-NR (details already sent to you) for waiver of the unjustified deductions in the name of non deployment of vehicles, non compliance of job order and both way loading containers. However, we did not receive any response in this matter and your official concerned kept on imposing deductions. The facts and evidence in this connection already submitted to all of you as below :- 1]. There is no provision in the aforesaid contract for wrong deductions in the name of "penalty due to non-deployment of vehicles" 2]. The aforementioned Penalties had no justified basis e. g. the so called penalties were imposed on the day also, while the vehicles remained standing idle in the yard or nearby the yard. 3]. Though there is mentioning of the 10 vehicles having the size of 40' length and 40 vehicles having the size of 20' length to be deployed for the work of CONCOR, For smooth working of the terminal, your concerned officials had been 'directing us regularly not to park empty trailers in the yard (as the same remained deployed for your work as per clause mentioned in the contract failing which we as a RTO might be considered as violator of this clause ). This compelled us to keep the aforesaid empty trailers away from the yard at our cost, risk and expenses. We facilitated you to utilize the vacated space. We must not have been penalized for honoring the directions issued to us from time to time orally as well as written by your various concerned officials e. g refer your letter dated 02. 05. 2005, 03. 06. 2005 and 13. 04. 2005. We completely fulfilled the spirit of terms and conditions of the agreement. 4]. We used to deploy more than 50 trailers for your work in any given day as the trailers go away for delivery/destination having the distance of more than 75 kilometers ( some time more than 300 kilometers) and the same did not use to come on return on the next day. However, we used to execute the job order for the next day also without waiting for the aforementioned trailers yet to be returned on the next day and we had to deploy the additional vehicles without much waiting the aforesaid vehicle yet to be returned on the next day. 5]. After the execution of the aforesaid agreement, certain unforeseen legal implications caused the trailers could enter in Delhi only from badarpur Border, this new legal binding on the trailers caused certain trailers not to reach at your yard on the same day from NCR area. The turnaround time for the vehicle became more time consuming and expensive. 6]. The trailers were unnecessarily delayed by the customers by detaining vehicles at their factory/premises after assurances of unloading on the same day. 7]. No advance letter/notice as per the contract clause was ever served upon us to increase or decrease the number of vehicle to be deployed for yousr work. We suffered very badly and incurred huge losses. Due to increase of the operational cost like - increase in tyre price, toll tax, long distance turn cuts of the road to reach the destination, resulting in more fuel and other expenditures.;

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