M.M.Kumar, J. - (1.) This is defendant's petition preferred under Seetion 115 of the Code of Civil Procedure, 1908, (for brevity the Code) challenging the view taken by the lower Appellate Court for granting interim order of stay on an application filed by the plaintiff-respondent under order 39 Rules 1 and 2 of the Code. Accordingly the defendant- petitioners have been restrained from deducting 20% of the amount on account of Employees Provident Fund Scheme in respect of the labour employed by the plaintiff- respondent from the bills submitted by him.
(2.) Brief facts of the case necessary for disposal of the instant petition are that the plaintiff-respondent filed a civil suit for permanent injunction asserting that he was appointed as a contractor by the defendant-petitioners for handling and transportation of foodgrains at food storage depot Bhucho Mandi on 13/1/1990. He commenced the business on 19/1/1990. According to the terms of the contract the plaintiff-respondent was to supply labour to the defendant-respondent at a short notice for loading and unloading besides labour for transportation of foodgrains and its allied material in and around their godowns. It was asserted that by the very nature of business the plaintiff-respondent had not employed any permanent labour which was to be supplied to the defendant-petitioners at a short notice. The job undertaken by the plaintiff-respondent is asserted to be seasonal one and the labour so engaged did not ever work for more than 120 days in a year. On the basis of aforesaid assertions plaintiff-respondent has claimed that no deduction to the tune of 20% of the amount from the bill submitted by him after execution of the contract in respect of Employees State Provident Fund Scheme was legally permissible without his consent. It was also pleaded that there is no agreement between the parties for the deduction of 20% of the bill amount against the said scheme. Alongwith the suit an application for grant of ad interim injunction during the pendency of the suit was filed.
(3.) The defendant-petitioners contested the suit and the application. It was asserted that the plaintiff-respondent himself undertook in tender form to get the bills deducted to the extent of 20% towards Employees State Provident Fund Scheme for the benefit of the employees, therefore, he could not wriggle out of its promise and the Civil Court has no jurisdiction to issue any injunction against the statutory provisions. The learned Trial Court declined the injunction by placing reliance on Clause VII(f) of the tender which is duly signed by the plaintiff-respondent. The typed Clause VIII(f) of the tender specifically provided for 20% deduction on account of Employees State Provident Fund Scheme. The view of the learned Trial Court is discernible from Para 6 of the order and the same reads as under: "6. While the applicant felt content by producing copy of telegram dated 13.1.1990 and letter dated 19/1/1990 vide which he was appointed as contractor and he took the assignment, the respondent have produced copy of tender himself submitted by the applicant. The learned Counsel, for the respondents rightly submitted that according to terms of this contract, every tenderer whose tender was accepted by the Corporation was required immediately to obtain a licence from the prescribed Licensing Authority in terms of Contract Labour (R & A) Rules, 1971 before entering upon any work under the contract. My attention has been invited to Clause VII(f) of the copy of tender each page whereof is signed by the applicant. At page 8 of the tender, the following term has been prominently typed under the signatures of the applicant "SRM reserves the right to withhold 20% of the amount from the bills of the HTC for any financial liabilities under the contract. The amount so deducted will only be refunded/adjusted when HTC produces proof for fulfilling contractual obligations as stipulated in different labour Acts." This terms has of course been added in typewriting whereas the rest of the tender form is printed but it bears the signatures of the applicant and this clause clearly shows that the applicant agreed to withholding of 20% amount of the bill by the Corporation towards financial liabilities under the Labour Laws and if the Contractor satisfied the Corporation regarding the fulfillment of the contractual obligations under Labour Laws, the said amount be refunded to him.";