PRABHA SRIDEVAN, J.
These appeals by the Oil Natural Gas Corporation and by the respective claimants have been filed against the same award. The point in controversy falls within the brief compass and therefore, it is not necessary to deal with the facts in detail.
2. The Oil Natural Gas Corporation will be referred to as appellant and the claimants will be referred to as respondents.
3. The respondents were granted the contract for seismic job services to be performed in survey areas at Krishna-Godavari Basin and Cauvery Basin. The period during which the service had to be rendered was called as field season. The field season was about 210 to 220 days in a year. One of the questions raised by the appellant before the learned Arbitrator was the jurisdiction of the Tribunal and the other ground raised was with regard to the payment for maintenance of cables, geophone strings, etc. The third ground that was raised was with regard to the obligation of the appellant to pay the revised minimum wages. We will deal with the appeals filed by the respondents/claimants later.
4. The learned senior counsel appearing for the appellant submitted that the appointment of the Arbitrator was not in accordance with the terms of the contract and that the perusal of the arbitration clause would show that it is the Director of ONGC who shall appoint the Arbitrator and if it is not possible, the matter shall not be referred for Arbitration at all. This objection was raised even in the counter statement filed before this Court. The learned senior counsel submitted that this objection was erroneously rejected both by the learned Arbitrator and by the learned single Judge.
5. It is seen from the statement of facts that the learned Arbitrator has rightly held that the powers of the Court under Section 11 of the Arbitration and Conciliation Act is not subject or subordinate to the powers contained in the arbitration clause in the agreement between the parties. The learned single Judge rightly rejected the primary objection especially in view of the order passed by this Court under
section 11(6) of the Act, by which the learned Arbitral Tribunal was appointed by this Court by order dated 1.2.2005. Therefore, this objection is rejected.
6.The next question is with regard to the entitlement to additional payment for maintenance of cables, geo-phone strings, etc. The learned senior counsel referred to Annexure A to Ex.C-1, which is the contract between the parties. As per the provision made in Items xx, xxi and xxv, maintenance charges have to be paid for siesmic cables, geophone strings and AC units. The schedule to Annexure A for siesmic cables would show that for maintenance of siesmic cables, the rate is Rs.10/- per cable and for geophone strings, the rate is Rs.15/- per string. The learned senior counsel drew our attention to the rates given under the other heads and it was given as 'per day'. According to him, this would make all the difference. According to the learned senior counsel, the maintenance of cables would mean that only when there was wearing out of the cables, they would have to maintain the cable by laying a fresh one and therefore, the rate per cable or per geophone string applies to both the field seasons for which the contract was entered into and the learned Arbitrator erred in dealing with the rate as the rate payable for one year and allowing the claim for the other year. The learned senior counsel submitted that since the quantification of the amount payable under this head could be made only at the end of the contract, it was paid at the end of the field season. But, that does not mean it pertains to only one year. According to the learned senior counsel, the learned single Judge also erred in accepting the view of the learned Arbitrator.
7. The learned counsel for the respondents submitted that in respect of an award passed, though by another Arbitrator, but in respect of an identical contract, this question had been dealt with by another Division Bench and therfore, it is no longer open to the appellant to raise a contrary stand. This judgment is reported in 2008 (1) CLT 358 (Rao Seismic Service (P) Ltd. v. ONGC Ltd., Chennai). There, the learned Arbitrator found that ".. In the absence of such clarity, it can be taken as the equipment in use is kept under working condition and it cannot be taken as 'equipment repaired'. Further, the contract was drawn for a period of two years (1994-95, 1995-96 field seasons) and it was executed under the same terms and conditions. So, what ever has been admitted for the second year, should be paid for the first year also, as the jobs are same." The Division Bench of this Court accepted this view of the Arbitrator and held that "ONGC having allowed maintenance charges for the second year, ought to have allowed the same for the first year also".
8.The learned Arbitrator in this case, on a consideration of the award and the documents produced held that since the appellant had allowed the full claim made for maintenance for one season, the same amount was payable for the previous season where more maintenance work was involved till the last day and held that since the contract was drawn for a period of two years, whatever had been admitted for the second year should be paid for the first year also, the jobs being identical. The learned single Judge accepted the view of the Arbitrator and also took into account the judgment of the Division Bench on the same point with regard to an identical contract between the appellant and another contractor. We affirm the view of the learned single Judge.
9.As regards the third ground, viz., the question whether the appellant had to pay the revised minimum wage, the Division Bench referred to (1994) 3 SCC 521 (Tarapore & Co. V. State of M.P.) provides the answer. That case related to the construction of Bargi Masonry Dam in the State of Madhya Pradesh and the Supreme Court held that when the appellant was asked to give tender by taking into account the fair wages at the time of inviting tenders, then ".. if rates of fair wages were raised afterwards, the tendered sum cannot be taken to be agreed amount for completing the contract, in the face of the directions of the authorities requiring the appellant to pay wages at rates higher than those prescribed or notified at the time of inviting tenders. On this fact situation, we hold that the State had by necessary implication agreed to reimburse this increased payment." The learned Judge, therefore, referred to the Tarapore case and rightly rejected the objection of the appellant. Therefore, we reject all the three objections taken by the appellant.
10.Next we come to the appeals filed by the respondents/claimants. Their grievance is that their claim of short payment for the work done, though granted by the learned Arbitrator, was set aside by the learned single Judge. The learned counsel submitted that their claim of short payment for the work done was dependant not only on the fact that the same claim was allowed for work done in Krishna-Godavari basin, but also on the basis of other grounds and submitted that the learned single Judge erred in holding that merely because there were merits in the claim made with regard to the work executed in Krishna-Godavari Basin, it cannot be automatically granted for this contract.
11.We find we cannot accept this objection of the respondents since with regard to issue No.3, the learned Arbitrator had observed that "...When represented, the claimant was assured that the loss incurred due to the shortfall of production would be reimbursed after the completion of the season. In the tender, only laying of cables, etc. is mentioned and nothing about the techniques that were to be followed. It is also not stated in the tender that different techniques were to be adopted and followed in Kaveri and KG basins and it has to be presumed that the same techniques were to be followed in both the basins. Though the work involved in both the regions was one and the same, the contractors who carried out the work at KG Basin received more payment for the given number of shots who paid only less wages to the workers while the Kaveri Basin contractors paid more and in turn received less from the respondent." Therefore, the case before the learned Arbitrator was also that the same techniques were adopted for Cauvery Basin and Krishna-Godavari Basin and when the Krishna Godavari Basin contractors received more payment, that should not be denied to the Cauvery Basin contractors. In this regard, the learned single Judge held that the entitlement to the claim should be decided on the terms of the contract and "principles of equity cannot be applied ignoring the terms of the contract". The learned counsel for the respondents had not brought to our notice that the terms of the contract entitled them to get more, but only that there were other facts that justified their claim for short payment. But, we find that even before the learned Arbitrator the main contention was that the technique was the same, the work was identical and therefore, the payment should be on par. But, since the contracts were different, the learned single Judge upheld the objection of the appellant herein with regard to short payment alone. Since no other point except the disparity between Krishna-Godavari Basin contractors and Cauvery Basin contractors was raised even before the learned Arbitrator, we do not think, we can countenance the case of the respondents that they had raised other grounds. Therefore, their objection is also rejected.
12. In the result, all the appeals are dismissed. No costs.
(P.S.D.,J.) (M.S.N.,J.) 08.12.2009 Index : No Internet : Yes sra PRABHA SRIDEVAN, J.
and M.SATHYANARAYANAN, J.
(sra) Pre-Delivery Judgment in O.S.A.Nos.385 to 389 and 422 to 426 of 2008 08.12.2009