- (1.) The works contract was floated by tender dated September 20, 1991 by the appellant which was awarded to the respondent. Disputes arose between the parties which were referred to arbitration. The award came in favour of the respondent. The challenge to the award failed. The Union of India is in appeal. The dispute in the present appeal is restricted to claim No.6 under Appendix 'B' of the Contract Agreement which relates to payment of fair wage. Clause 58 of the agreement deals and defines what is 'fair wage; and reads as follows:- "58. Fair Wage- (a) The contractor shall pay not less than the "fair wage" a defined below or the minimum wage fixed under the Minimum Wages Act, whichever is higher to labourers engaged by him on the work. "Fair Wage" means wage whether for time or piece-work notified at the time of inviting tenders for the work and where such wages have not been so notified the wages prescribed by the Chief Engineer for the stations at which the Work is done. (b) The Contractor shall notwithstanding the provision of any Contract to the contrary, cause to be paid a 'fair wage' or minimum wage fixed under the Minimum Wages Act whichever is higher to labourers indirectly engaged on the Work including any labour engaged by his sub-contractors in connection with the said Work, as if the labourers had been directly employed by him. (c) In respect of all labour directly or indirectly employed on the Works for the performance of the Contractor's part of this Agreement, the Contractor shall comply with or cause to be complied with the M.E.S. Contractor's Labours Regulations (appended hereto as Annexure 'A' to these Conditions) in regard to all matters provided therein and with all other Labour Laws as may be applicable. (d) The Garrison Engineer concerned shall have the right to deduct, from the moneys due to the Contractor, any sum required or estimated to be required for making good the loss suffered by a worker or workers by reason of nonfulfilment of the Conditions of the Contract for the benefit of the workers, non-payment of wages or of deductions made from his or their wages, which are not justified by the terms of the Contract or non-observance of the Regulations. (e Vis-a-vis the Government, the Contractor shall be primarily liable for all payments to be made under, and for the observance of the Regulations aforesaid without prejudice to his right to claim indemnity from his subcontractors. (f) The Regulations aforesaid shall be deemed to be a part of this Contract and any breach thereof shall be a breach of this Contract."
(2.) The dispute with respect to the present claim arose from a notification issued by the Government of Haryana under the Minimum Wages Act increasing the minimum wage on August 29, 1991 payable to workers. It happened that the notification was issued prior to the submission of tender where rates of labour were quoted on wages payable prior to notification and in ignorance of it. The contractor claimed the difference of wages in his favour. The Arbitrator in para.113 of the Award reasoned that the benefit of increased minimum wages should go to the contractor and against the Union of India. Para.113 reads as follows:- "113. It is important to note that above Gazette notification of Haryana Govt was signed on 29 Aug 91. Such notifications are thereafter collated and goes for dispatch after serial numbers are put. Copies of such gazette notification are also endorsed to central Govt. organisation like Director, Labour Bureau, Govt. of India, Labour enforcement officer (Central) Rohtak, regional labour Commissioner (Central) Chandigarh, being in mailing list. GE (P) No 1 in his above quoted letter on 11 Jun 92 has only inferred in his letter that since date of gazette notification is earlier to date of receipt of tender therefore higher rate of Rs. 35.75 will be applicable. Against this inference of GE (P) No 1, a confirmation letter from labour enforcement officer of Kanel dated 23.11.92 is considered to be a much more authentic document who certify the labour rate of 33.95 on date of receipt of tender besides being a recipient of aforesaid State Govt Gazette notification through Central Govt Channel. It leaves therefore no doubt that claimant priced his tender based on minimum fare wage (Lo) as Rs.33.95 and he is entitled for additional refund. However, no other excalation other than above becomes due to claimant, as contended in his claim."
(3.) Mr. Bansal argues that the notification must be deemed to have been known to the contractor before he submitted the tender documents and, therefore, would be deemed to have knowledge of the same to contractor's peril with the old rates running in favour of the appellant Union of India.;