Delhi District Court
Vikram Chaudhary S/O. Sh. Fathe Singh vs M/S. Orix Auto Infrastructure Services ... on 25 October, 2016
Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) No. 3567/16
UNIQUE CASE IDENTIFICATION No. 02402C0353552012
In the matter of:
Vikram Chaudhary S/o. Sh. Fathe Singh,
R/o. 3, Devela (sic Devli) Goan, New Delhi.
C/o. Industrial Workers Union (Regd.)
F328, Gali No.22, Sath NagarII, Palam Colony,
New Delhi110045. ...Workman / Claimant
Vs.
M/s. Orix Auto Infrastructure Services Ltd.,
11A, Shivaji Marg, Moti Nagar,
New Delhi110015. ... Management / Opposite Party
Date of institution : 24.11.2012
Date of reserving for award : 15.09.2016
Date of award : 25.10.2016
AWARD
1.TERMS OF REFERENCE Vide Order No. F3(356)12/Ref./WD/LAB/1576 dated 07.11.2012 Deputy Labour Commissioner (West District), Labour Department, Govt. of N.C.T. of Delhi, Delhi made the following reference under sections 10(1)(c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of N. C. T. of Delhi, Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated 3rd March, 2009 for adjudication by this Court: Page 1 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 "Whether the employer - employee relationship ever existed between Sh. Vikram Chaudhary S/o Sh. Fathe Singh and the management and if so whether his services have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?''
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF CLAIM.
"शशममन जश, उपररक वववमद मम कमर चमरश कम ववनम कथन इस पकमर हह :-
1. उपररक सससथमन मम कमर चमरश शश ववकम चचधरश ससपसत शश फततह सससह वदनमसक 10-04-2007 सत डड मईवर कत पद पर आपकक गमडश नमबर डश. एल. 1 आर. एकस. 8010 चलम कर असवतम वततन 7500/- रपयत ममहवमर पर लगमतमर बडशड मतहनत व ईममनदमरश कत समथ कमम करतम चलम अम रहम थम। कमयर कत दचरमन वकसश पकमर कक करई वशकमयत कम मचकम पबसधकक कर नहह वदयम थम कमर चमरश कम कमयर पपरश तरह ससतरषजनक थम ।
2. कमयर पर रखतत समय पबसधकक नत कमर चमरश सत 50 -50 रपयत वमलत दर सटमसप पतपरक पर तथम 20 खमलश कमगजक पर हसतमकर करवमयत थत जर वक कमर चमरश नत नचकरश कक वववशतम कत कमरण कर वदयत थत । चपसवक कमर चमरश उस समय बतररजगमर थम और उसत नचकरश कक सखत जररत थश । कमर चमरश कर शक हह वक पबसधक उन कमगजक कम दर स पयरग कर सकतत हह ।
3. पबसधक कमर चमरश कर शम कमनपन कत तहत वमलनत सभश कमनपनश ससववधमयम जहसत वनयसवक पत, वततन ससलप सलमनम एस व कहजसवल अवकमश हमसजरश कमडर , ई. एस. आई. पर 0 फणड, बरनस, आवद कक नहह दत रहत थत सजनकक कमर चमरश मचसखक रप सत ममसग करतम चलम अम रहम थम। सजस कमरण पबसधक कमर चमरश सत हमतशम नमरमज रहतत थत और उसश नमरमजगश कक भमवनम सत पतररत हरकर पबसधकक नत कमर चमरश कम ममह कम कममयम वततन ररक कर वबनम वकसश पपवर सपचनम एस व भसगतमन कत वदनमसक 18-06-2010 कर कमम सत हश वनकमल वदयम।
4. पबसधकक दमरम इस पकमर कक कक गयश कमयर वमहश औधरवगक वववमद असधवनयम 1947 कक धमरम 2 ओ 0 ओ 0 कत असतगर त छटनश कक पररभमषम मम आतम हह और पबसधकक नत औ 0 वववमद असधवनयम 1947 कक धमरम 25 एफ कम भश पमलन नहह वकयम हह ।
5. कमर चमरश नत एक रसज 0 ए 0 डश 0 ममसग पत वदनमसक कर भतज कर वपछलम कममयम वततन Page 2 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 भसगतमन करकत, बतकमरश कत वदनमसक कत पपरत वततन कत समथ, सभश कमनपनश ससववधमयम लमगप करकत, कमम पर वमवपस लतनत कक ममसग कक, सजसकम भश पबसधकक नत आज तक न तर करई उतर हश वदयम औ न हश कमर चमरश कर कमम पर वमवपस हश सलयम। पबसधकक दमरम इस पकमर कक , कक गयश कमयर वमहश गहर कमनपनश तथम मजदरप ववररधश कमयर वमहश हह ।
6. कमर चमरश कमयर सत वनकमलत जमनत कत वदन सत आज तक पपणरतमत बतररजगमर हह और पररवमर मम कममई कम करई अनय समधन न हरनत कत कमरण कमर चमरश एस व उनकत पररवमर भसखमरश कत कगमर पर हह। तथम अपनश नचकरश पर जमनम चमहतम हह।
7. कमर चमरश कम अनय वकसश यपवनयन कत ममधयम सत उक पबसधकक कत ववरद अनय वकसश शम कमयमरलय / नयमयमलय मम करई अनय वववमद ववचमरमधशन नहह हह।
8. एत सश ससथवत मम कमर चमरश सभश कमनपनश ससववधमयम पमप करतत हह ए पसरमनश सतवम मम सथमवपत हरनत कम असधकमरश हह ?
9. कमर चमरश अपनत उक दमवम वववरण मम आवशयकतमनससमर उवचत ससशरधन करनत कम अपनम असधकमर ससरवकत रखतत हह।
पमथर न म अतत ममननशय शम नयमयमलय सत पमथर नम हह वक कमर चमरश कर मई व जपन 2010 कम कममयम वततन भसगतमन करवम कर, बतकमरश कत वदनक कत पपरत वततन कत समथ, सभश कमनपनश ससववधमयम लमगप करवम कर कमम पर वमवपस रखवमयत जमनत ससबसधश पसचमट पमस करनत कम कष करम। "
3. STAND TAKEN BY MANAGEMENT IN THE WRITTEN STATEMENT OF DEFENCE.
Management in the written statement of defence denied the case as pleaded by workman in the statement of claim in toto and pleaded that claimant at no point of time was employed with the management on 10.04.2007 or any other date. The claimant became a Business Associate with the management pursuant to signing of Business Associate Agreement dated 02.05.2007 by both the parties. The status of Business Associate is that of a Partner in business who is entitled to share in the Page 3 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 profits and losses of the venture and the arrangement is purely on a principal to principal basis and the Business Associate by no stretch of imagination can be termed to be employee of the management. Further management has taken the stand that a sum of Rs.7500/ claimed to have been paid to the claimant by the management is not any salary or wages but was the service charge credited to his account at the beginning of the month to meet the expenses for plying the Radio Taxi and at the end of the month the claimant was required to render the account of advances received by him, the earnings made through billing the customers (where the vehicle was not engaged full time for a dedicated customer), running expenses including fuel etc. and the profit made was divided between management and claimant in the ratio of 60 : 40. Management also mentioned that unlike the case of an employee where the employer does not enquire after giving remuneration to the employee, in the present case and in terms of Business Associate Agreement, the Business Associate has to render the accounts of the service charge credited to his account. As alleged, claimant being a Business Associate was discharging his work independently without any supervision or control of the management.
Management further elaborated that the management in collaboration with the State Government in various states including Delhi collaborated the Radio Taxi Service to provide world class taxi service for Intra - City movement with more of safety, security, comfort, flexibility, transparency and reliability and primarily with an objective to boost tourism and to cater to the increasing needs of the residents of Delhi, who wanted a reliable and affordable taxi service. This was also keeping the commonwealth games in mind, when influx of large number of visitors and guests was expected. Accordingly, with the blessings of the Delhi Government, the Chauffer Entrepreneur Programme was launched and the management also became a Partner in the said venture for which the management acquired about 500 cars for plying under the scheme / programme. For plying these cars, the management invited chauffeurs / drivers with a valid commercial license and persons who are Page 4 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 residents of Delhi carrying a valid ID / proof. The interested persons including the Claimant herein were explained in very clear terms the nature and operation of the scheme and the ameliorative purpose for which it was launched. The Claimant was also explained that the relationship between the management and the claimant was that of principal to principal and, accordingly, a Business Associate Agreement dated 02.05.2008 alongwith addendum to the said agreement dated 11.02.2010 came to be signed between the parties and the Claimant became a Business Associate with the management. In terms of the said agreement the obligation of the management was to provide a brand new car to be used as Radio Taxi with standard accessories to the Business Associate and the said Business Associate was obliged to run it as a taxi. It was the responsibility of the Business Associate to pick up walk in passenger on road and the management may provide business to Business Associate though not obliged to do so under the agreement. The Business Associate at the inception itself was, in terms of the agreement, to make an independent investigation of the Business, make an assessment of the business risks involved and that its success will be largely dependent upon the ability of the Business Associate to garner business. All the revenue earned from the running of the Radio Taxi will go to the management and the management shall create a deposit account for the Business Associate with ICICI Bank at the cost of Business Associate, who shall have a debit card. The Business Associate shall deposit Rs.30,000/ (minimum deposit) in the said account and shall maintain the said minimum deposit all the time during the said agreement.
For any cash / revenue received by the Business Associate from walk in passenger or any other passenger for day fare, night fare, baggage charges, idle charges and other charges he shall swipe his debit card to transfer the equivalent of money received to the management immediately. As per the agreement all the receipt / collections by the Business Associate had to be credited against the radio taxi account identified by taxi registration number. For the efficient and smooth Page 5 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 operation of the scheme, the management was to provide an amount of Rs.5000/ Rs.7500/, as the case may be, towards service charges at the beginning of the month towards satisfactory performance of the Business Associate, expenses towards fuel costs @ Rs.1.50 per km per kg of CNG which was subject to review in case of variance of price of CNG, maintenance cost @ Rs. 2500 upto 2000 kms and Rs.1.30 per km above 2000 kms, capital cost @ Rs.15,000/ per radio taxi per month for 36 months, operating and overhead expenses @ Rs.7000/ per radio taxi per month during the term of the agreement or any extension thereafter. For every calendar month after deducting expenses as mentioned above and as set out in the Schedule to the agreement as above, the surplus shall be calculated and will be shared by the management and the Business Associate in the ratio of 60% to 40% and in case of shortfall the same would be debited to the Business Associate Account. The Business Associate would be entitled to withdraw his share from the surplus only after recouping the shortfall of the previous months, if any, and such withdrawal shall be limited to the extent of 50% of his share of surplus. The balance 50% of the surplus shall be utilized to create security corpus of Rs.30,000/ which shall be treated as interest free security deposit. After the creation of security corpus from out of the Business Associate's share, he shall be entitled to withdraw his full share of surplus.
In case there is no shortfall at the end of 36 months and after meeting all the obligations in the Business Associates Account, the management shall refund the security corpus and shall also transfer the Radio Taxi to the Business Associate at the cost of the Business Associate after removing all the CNG Fittings. It was clearly understood by the Business Associate that any damage to the vehicle on account of accident etc. shall be absorbed by the management for the first three insurance disallowances per year and any disallowance thereafter or any insurance disallowance on account of theft of Radio Taxi or any equipment fitted to the taxi shall be to the account of the Business Associate. As per the agreement, interalia, Page 6 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 the Business Associate had to strictly adhere to the guidelines mentioned in the agreement including maintaining proper decorum. The Business Associate is / was not authorised to engage any other chauffeur during his absence to drive the Radio Taxi and authorised the management to carry out inspection of his Radio Taxi at any point of time. Further if the running of the Radio Taxi without any passenger or empty exceeds 25% of the total kms run, then Orix shall not pay the CNG cost for non - revenue kms. The Business Associate was responsible to comply with all statutory laws including labour laws.
The Radio Taxi is fitted with DDS, which is a GPRS system. The Radio Taxi remains in possession of the Business Associate at all the times. The Radio Taxi Service gets activated only when Business Associate switches on the DDS system, when only the management can have any access to the Business Associate and the management has no control or supervision over the Business Associate. Based on the calls received by a Call Center created by the management, the calls are routed through the DDS system to the Business Associate, who then reaches the targeted customers. Besides some of the Business Associates were also plying their Radio Taxi for some of the establishments who had negotiated with the management for a recurring business. The Business Associate was obliged to ply the Radio Taxi for at least 26 days in a month.
The management had no supervision or control over the activities of the Business Associate save to the extent for the smooth plying of the Taxis. There was no fixed remuneration which was payable to the Business Associate who was purely operating for commercial considerations and for sharing the profits and losses of the Business Venture. The Business Associate had no fixed timings of work and is free to solicit business or service customers of his choice.
As per management, claimant is not a 'workman' within the meaning of section 2 (s) of the Industrial Disputes Act, 1947 and consequently the purported dispute raised by the claimant is not an 'industrial dispute' within the meaning of Page 7 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Section 2 (k) of the Industrial Disputes Act, 1947 and, further, this court does not have any jurisdiction to try the claim of the claimant. Also, as per management, the Business Associate Agreement clearly provides the arbitration for resolution of disputes arising out of the said agreement under the provisions of the Arbitration and Conciliation Act, 1996 and the claim filed by the claimant is not maintainable and this court should refer the parties to arbitration in terms of Section 8 of the Arbitration and Conciliation Act, 1996 for which a separate application is being filed. Also, management has taken the stand that Delhi Industrial Workers Union, which is espousing the purported cause of claimant is neither recognized by the management nor registered with it and to the best knowledge of the management, none of the employees of the management are members of the said union. Thus, the said union has no locus standi to espouse the cause of the claimant. As per management claimant had stopped performing his obligations in terms of Business Associate Agreement to which opposite party was constrained to terminate the agreement. In this regard management referred Clause 3. (q) of Business Associate Agreement. As per management, neither Section 2 (oo) nor Section 25F of the Industrial Disputes Act, 1947 is applicable in the present case. Also, as per management, claimant is making averments regarding his signatures having been taken on stamp papers, blank papers and English written papers only with a view to wriggle out of the agreement which he had made with the management. Also, as alleged, claimant had chosen not to raise any grievances on earlier occasions which itself demonstrates the conduct of the claimant. Management received a notice but did not file any reply with a view to avoid joining any issues with the claimant. As alleged, as per knowledge of the management, claimant is gainfully engaged with other Radio Taxi Services providers in similar business.
At last management prayed that the claim of the claimant, being not maintainable, be dismissed with heavy costs.
Page 8 of 55 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
4. REJOINDER Despite opportunity given workman did not file any rejoinder to the WS of management.
5. ISSUES Vide order dated 31.05.2013, following issues were framed:
i) Whether there was no relationship between the parties of an employer and an employee in view of the Business Associate Agreement as pleaded by the Management? OPW
ii) As per terms of reference.
iii) Relief, if any. 6. EVIDENCE
Workman appeared in witness box as WW1 Vikram Chaudhary who tendered his examinationinchief vide evidence affidavit Ex. WW1/A and produced / proved documents namely Ex.WW1/1 Identity Card of claimant; Ex.WW1/2 Demand Notice and Ex.WW1/3 Postal receipt. Documents Ex.WW 1/1 and Ex.WW1/3 were objected to by ld. Counsel for management being photocopies. In the course of his crossexamination workman was confronted with documents Ex.WW1/M1x (also Ex.MW1/2) - The Business Agreement dated 02.05.2007; Ex. WW1/M2x (also Ex.MW1/3 and Ex.MW2/3) - Pay Outs. On 12.11.2013 ld. ARW closed WE.
Management examined MW1 Randheer Kumar Sinha, Legal Officer and tendered his examinationinchief vide affidavit Ex.MW1/A and relied upon documents namely Ex. MW1/1 Power of Attorney dated 28.06.2013; Ex. MW1/2 (also Ex.WW1/M1x) The Business Agreement dated 02.05.2007; Ex.MW1/3 (also Ex.MW2/3 and Ex.WW1/M2x) - Pay Outs.
On 16.02.2015 Court passed the following order: "16.02.2015 Present: Workman with Sh. L.K.Pandey ARW.
Page 9 of 55 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Mr. Anurag Chaudhary Adv. for the management with Mr. Randheer Kumar Sinha, Legal Officer.
Ld. counsel for the management submitted that Mr. Jay Gandhi is also to be examined in M.E. Further ld. counsel for the management submitted that Mr. Jay Gandhi has already been examined in other matters involving the same management and same legal/factual issues. Ld. counsel for the management submitted that he has already filed affidavit of Mr. Jay Gandhi. Today he is filing certified copy of entire evidence of Mr. Jay Gandhi in ID No. 336/12 alongwith certified copy of GPA and same may kindly be read as M.E in this case also. Ld. ARW has no objection to the submissions made by ld. counsel for the management.
In my considered opinion in the facts and circumstances of this case, particularly in view of the fact that present matter and ID No. 336/12 involve same legal/factual issues evidence of Mr. Jay Gandhi recorded in ID No. 336/12 may also be read in this case. More so when both the ld. ARW and counsel for management are consenting to the same. M.E closed by ld. counsel for the management. Put up on 23.03.2015 for final arguments."
Thus, management is also relying upon evidence of MW2 Mr. Jay Gandhi who file his evidence affidavit Ex. MW2/A and produced / proved documents namely Ex. MW2/1 - Power of Attorney and Ex.MW2/2 - Business Associate Agreement dated 02.05.2007 and Ex. MW2/3 - Pay Outs.
7. ARGUMENTS I have heard Sh. L.K. Pandey AR for the claimant and Sh. Anurag Chaudhary, Advocate for the management. Written submissions have been filed by ld. Counsel for management. Ld. counsel for the management relied upon case laws reported as (i) Ghatge and Patil Concerns' Employees' Union Vs. Ghatge and Patil (Transports) Private Limited and another AIR 1968 Supreme Court 503; (ii) Sandvik Asia Pvt. Ltd. Vs. Vardhman Promoters Pvt. Ltd. MANU / DE / 9261 / 2006; (iii) Modi & Co. Vs. Union of India MANU / SC / 0051 /1967; (iv) Delta International Ltd. Vs. Shyam Sundar Ganeriwalla & Anr. MANU / SC / 0258 / 1999; (v) Oil & Natural Gas Corporation Ltd. Vs. SAW Pipes Ltd. MANU / SC / Page 10 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 0314 / 2003; (vi) Lakshmamma and Ors. Vs. M. Jayaram AIR 1952 Kant 114; (vii) Smt. Gangabai Vs. Smt. Chhabubai AIR 1982 SC 20; (viii) Electronics Corporation of India Ltd. Vs. Electronics Corporation of India Ltd Services Engineers Union 2006 (111) FLR 1 (SC); (ix) Mukund Staff & Officers' Association Vs. Mukund Limited 2007 (115) FLR 553; (x) G. M. Tanda Thermal Power Project Vs. Jai Prakash Srivastava and another 2008 (116) FLR 979; (xi) Babloo Singh Vs. M/s. Anil Hosiery ID No. 149/10 decided by Sh. Bhupesh Kumar ld. POLCXVI (Labour Court); (xii) Krishna Autar Gupta Vs. Punjab National Bank, Branch Chandausi, Moradabad & Another 1998 (79) FLR 522; (xiii) U. P. State Sugar Corporation Unit Munderwa Vs. Ram Nain Singh and others 1998 (80) FLR 757; (xiv) Raymond Woollen Mills Ltd. Vs. Coal India Ltd. and another 1998 (79) FLR 581; (xv) ABAD Dairy Dudh Vitran Kendra Sanchalak Mandal vs. ABAD Dairy and others C.A. Nos. 3609 10 of 1989 decided on 08.08.1999 decided by Hon'ble Mr. Justice S. Ranganathan, N.D. Ojha and J.S. Verma J.J.; (xvi) R. N. Gosain v. Yashpal Dhir AIR 1993 SC 352; (xvii) Zonal Chief Engineer, U.P. Jal Nigam, Gorakhpur and others Vs. Presiding Officer, Labour Court, Gorakhpur and Another; AIR 2001 (3) A.W.C. 2197; (xviii) Vijay Kumar / Raj Kumar Vs. Matra Ancilleries Pvt. Ltd. MANU / DE / 9672 / 2006; (xix) Sural Mal Vs. The State (Delhi Administration) AIR 1979 SC 1408; (xx) Akil @ Javed Vs. State of NCT of Delhi JT 2012 (12) SC 200; (xxi) Interlude Technologies Through It's Prop. Vs. Popular Entertainment Network Ltd. and Ors. MANU / DE / 4829 / 2009; (xxii) Workmen of Nilgiri Co.Op. Mkt. Society Ltd. Vs. State of Tamil Nadu & Ors. AIR 2004 SC 1639.
8. MY ISSUEWISE FINDINGS ARE AS UNDER: ISSUE NO. 1 Whether there was no relationship between the parties of an employer and an employee in view of the Business Associate Agreement as pleaded by the Management? OPM Page 11 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 ISSUE NO. 2: As per terms of reference.
("Whether the employer - employee relationship ever existed between Sh. Vikram Chaudhary S/o Sh. Fathe Singh and the management and if so whether his services have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?'') Both the issues, being interconnected, are being taken up under a common discussion.
Here, as per claimant, he was working with the management as Driver since 10.04.2007 on a monthly salary of Rs.7500/ per month and management illegally terminated his services on 18.06.2010 in violation of provisions of section 25 F of the Industrial Disputes Act, 1947. Workman is relying upon documents namely Ex.WW1/1 to Ex.WW1/3.
On the other hand, as per management, there did not exist relationship of employer - employee between the management and the workman, and workman was a Business Associate with the management in terms of Business Associate Agreement [Ex. MW1/2 (also Ex.WW1/M1x)] dated 02.05.2007. As per management, claimant was engaged on profit sharing basis and his status was that of a Partner and the arrangement was purely on principal to principal basis. Further, management pleaded that claimant being a Business Associate was discharging his work independently without any supervision and control of the management. Also, as per management, claimant had stopped performing his obligations in terms of Business Associate Agreement to which opposite party was constrained to terminate the agreement. In this regard management referred Clause
3. (q) of Business Associate Agreement.
Claimant has not filed on record any appointment letter issued by the management appointing the claimant as an employee of the management. Claimant has also not filed any proof to show that management ever paid him salary as an employee of management. In fact claimant is relying upon documents Ex.WW1/1 Page 12 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 to Ex.WW1/3, detailed hereinabove. None of these documents by itself establish the stand of claimant that there existed a relationship of employer and employee between the management & claimant.
On the other hand, management is relying upon various documents including Business Agreement. As regards Business Agreement following depositions of WW1 Manoj Kumar made by in his crossexamination are relevant :
"..........At this stage the witness is shown a document Ex.WW1/M1x running into 21 pages. The witness admits his signatures on the document Ex. WW1/M1x on each and every page. I am not aware whether the document Ex.WW1/M1x is a business agreement or not. At the time of my signing the document EX.WW1/M1x the contents of the same were written in English language. I am fully aware about the Hindi language......"
It is a settled proposition of law initial onus is on the claimant to prove his case on judicial file. Also it is a settled proposition of law that in order to succeed in the case claimant is supposed to stand on his own legs and weakness, if any, in the defence of the management does not benefit the claimant. However, in my considered opinion, nothing prevents the Labour Court to adjudicate the matter on the basis of stand / admissions made by the management. Here it is alright that claimant has not been able to substantiate the case as pleaded / deposed by claimant in the statement of claim / evidence affidavit, but that does not mean that case of claimant is bound to fail inasmuch as Labour Court can always decide the case on the basis of pleadings / evidence led by management because when the Labour Court so decides the case, it cannot be said that any prejudice has been caused to the management as Labour Court is deciding the matter as per the stand (or admitted case) of the management itself. Such an approach is needed to be made particularly keeping in view the objective sought to be achieved by social welfare legislations like the Industrial Disputes Act, 1947. Strict technicalities of law regarding pleadings etc. must not be allowed to come in the way of rendering Page 13 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 substantial justice to persons covered under the provisions of the Industrial Disputes Act, 1947, more so when Court is deciding the case on the basis of stand / (admitted case, of the management). When Labour Court is deciding the matter on the basis of stand / admissions made by the management in WS / evidence the inconsistencies, if any, in the pleadings / evidence of claimant are to totally insignificant. Under any circumstances management cannot disown the consequences of its own stand (admitted case.) Here in view of above referred depositions made by claimant / WW1 Vikram Chaudhary admittedly Business Agreement Ex.MW1/2 (also exhibited as Ex.WW1/M1x) bears the signatures of the claimant. In the totality of facts and circumstances of this case, this court can proceed with the assumption that Business Agreement Ex. MW1/2 (also exhibited as Ex.WW1/M1x) was executed between the parties.
NOW this Court shall make an attempt to know the nature of relationship between the management and the claimant in terms of business agreement Ex. MW1/2 (also exhibited as Ex. WW1/M1x). In particular the Court will try to know whether relationship of employer and employee can be said to have existed between the management and the claimant on the basis of the business agreement Ex. MW1/2 (also exhibited as Ex. WW1/M1x) or that claimant' worked as a business associate and not as an employee with the management.
Unless and until there existed relationship of employer and employee between the management and claimant, claimant cannot fall within the definition of section 2(s) of the Industrial Disputes Act, 1947. Also, if in the totality of facts and circumstances of this case, claimant is held to be an employee of management and, thus, a workman of the management, the fact that claimant has been mentioned as a Business Associate in the Business Agreement would not affect the status of the claimant as of an employee of the management. Mere designation/description given to claimant in the Business Agreement is of no importance and the nature of Page 14 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 real relationship existing between the claimant & management is to be determined keeping in view totality of all the relevant facts and circumstances of this case.
Determination of the vexed questions as to whether a contract is a contract of service or contract for service has never been an easy task. There is no hard and fast rule. The question in each case has to be answered having regard to the facts involved therein. No single test be it control test, be it organisation or any other test has been held to be the determinative factor for determining the jural relationship of employer and employee.
In Shivanandan Sharma Vs. Punjab National Bank Ltd. MANU/SC/0054/1955 the Hon'ble Supreme Court has observed that supervision and control test is the prima facie test for determining the relationship of employment. The nature and extent of control required to establish such relationship would vary from business to business and, thus, cannot be given a precise definition. The nature of business for the said purpose is also a relevant factor.
A contract of service is one in which a person undertakes to serve another and to obey his reasonable orders within the scope of the duty undertaken. It is the element of control of the work that distinguishes the relationship of master and servant from the independent contract relationship. The most important test in determining whether one employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved to the employer. In other words, the identifying mark of the servant is that he should be under the control or supervision of the employer in respect of the details of the work. In law, time honoured expression 'master and servant' indicates the relationship which when one person who employs another to do certain work exercises the right of control over the performance of the work to the extent of prescribing the manner in which it is to be executed. The employer is the master and the person who is employed is the servant. The words 'employer and employee' are the outgrowth of Page 15 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 the old term 'master and servant'; they have been adopted by the reason of the shift of the relation in general from a personal to an impersonal one and are the terms now commonly used to describe the relationship. It would seem that the terms 'employer and employee' make a better designation of the relation in this industrial age.
It is now clear that it is impossible to define a contract of service in the sense of stating a number of conditions which are both necessary to, and sufficient for, the existence of such a contract.
In Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union and Anr. MANU/SC/0272/2000 the Hon'ble Supreme Court has observed that "The standards and nature of tests to be applied for finding out the existence of master and servant relationship cannot be confined to or concertized into fixed formula(e) for universal application, invariably in all class or category of cases. Though some common standards can be devised, the mere availability of any one or more or their absence in a given case cannot by itself be held to be decisive of the whole issue, since it may depend upon each case to case and the peculiar device adopted by the employer to get his need fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workman, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoned (sic) for all situations and thereby attempt to compartmentalize and peg them into any pigeonhole formulae, to be insisted upon as proof of such relationship. This would only help to perpetuate practicing unfair labour practices than rendering substantial justice to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service. Neither all the tests nor guidelines indicated as having been followed in the decisions noticed above should be invariably insisted upon in every case, nor the mere absence of any one of such criteria could be held to be decisive of Page 16 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 the matter. A cumulative consideration of a few or more of them, by themselves or in combination with any other relevant aspects, may also serve to be a safe and effective method to ultimately decide this often agitated question. Expecting similarity or identity of facts in all such variety or class of cases involving different type of establishments and in dealing with the different employers would mean seeking for things, which are only impossible to find.".
In Sh.Chintaman Rao and Anr. Vs. The State of Madhya Pradesh 1958 SCR 1340 the Hon'ble Supreme Court has observed that ".......The concept of employment involves three ingredients (1) employer, (2) employee and (3) the contract of employment. The employer is one who employs, i.e. one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision....".
The prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work. Whether in a given case there existed relationship of employer and employee, is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them, the stronger the ground for holding it to be a contract of service, and similarly the greater the degree of independence of such control, the greater the probability that the services rendered are of the nature of professional services and that the contract is not of service. To determine whether there existed relationship of employer and employee in a given case regard has to be had to the real relation between the parties as shown by all relevant facts taken together. Use of specific words, by itself, in the agreement cannot be conclusively determinative Page 17 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 of existence of real relationship between the parties. Merely because business agreement Ex. MW1/2 mentions the claimant as "BUSINESS ASSOCIATES", it cannot be said that claimant was as a matter of fact in reality was a "BUSINESS ASSOCIATES" of the management.
BUSINESS AGREEMENT EX.MW1/2 (ALSO EX.WW1/M1X) ALONGWITH ADDENDUM AGREEMENT DATED 11.02.2010 IS BEING ANNEXED HEREWITH AS ANNEXURE - A AS PART AND PARCEL OF THIS AWARD.
By virtue of Clause (9): Relationship of the Parties in the Annexure - A management want to show/prove that claimant was an independent Business Associate or, if one may say so, contractor rather than an employee / agent / joint venture / partner of the management. It is pertinent to note that above clause is contrary to stand of the management as pleaded in the WS to the effect that status of Business Associate/Claimant was that of a partner in the business.
As per WHEREAS Clause in Annexure - A management is engaged in, amongst others, owning and managing the business of Radio Taxi. Thus, business of Radio Taxi is a regular business of management. As per this clause services of claimant have been offered and agreed to be availed "on an exclusive basis". This aspect of providing of his exclusive services by claimant to management to some extent, if not exhaustively/wholly, negates the possibility of claimant being a business associate and support the belief that claimant entered into contract of service with management. Clause (3): OBLIGATIONS OF BUSINESS ASSOCIATE - Sub Clause (m) specifically provides that, "..... This agreement is for provision of services...." i.e. contract of service and not contract for service.
In the words of Lord Denning, '...... under a contract of service, a man is employed as a part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not intergated into it but is only assessory to it.' (Stevenion, Jordan & Harrison Ltd. Vs. MacDonald & Evans [1952]1 TLR 101, 111 (CA), per Lord Page 18 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Denning LJ. Here claimant has been employed as driver to run/drive the radio taxi owned by management. Thus, claimant can be said to have been employed as a part of business of management and claimant is doing work as an integral part of the business of the management. Thus, by applying the organizational principle as well, claimant can be said to be working under a contract of service with the management. Work of claimant cannot be said to be only accessory to the main business of the management.
As per CLAUSES (1) & (2) of the Business Agreement (Annexure - A) entire initial capital and another expenses on the radio taxi to be driven by claimant have borne by management. Even the expenses of mediclaim insurance of claimant/his spouse have been agreed to be borne by management. Notably claimant, as per Clause (e), is not having even free access in the premises of the management.
As per CLAUSE (3) : OBLIGATIONS OF BUSINESS ASSOCIATE, of the Business Agreement (Annexure - A) entire revenue earned by claimant is to be deposited by him with the management on daily basis immediately on completion of duty. There is an agreement as regards the way claimant has to behave during performance of his services under the business agreement. The clauses (3)(f), (g),
(i) & (j) are indicative of existence of contract of service between claimant & management rather than contract for service. Claimant is bound to run taxi for minimum of 12 hours a day & 26 days a month. This shows control of management over working hours per day & no. of days in a month of the claimant and management can have such a control when there exist contract of service between the two & not when there exist contract for service. As per clause 3 (s) claimant is not authorized to get the taxi repaired through any person except ORIX or authorized Service Centre of ORIX. No discretion has been left with claimant in this regard. As per clause (3) (v) claimant even cannot fit any accessories, fittings, stickers etc. without prior written permission of ORIX. This all shows the extent Page 19 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 of control of the management qua the claimant with regard to taxi run by claimant.
As per Clause (7) : TERM AND TERMINATION of Annexure - A claimant was supposed to work upto the satisfaction of management and management had the right to terminate the Agreement services of claimant unilaterally.
Here claimant used to be made to work through DDS System. As pleaded by management in the WS, based on the calls received by a Call Center created by the management, the calls are routed through the DDS System to the Business Associate who then reaches the targeted customer. Further, as admitted by management in the WS, the some of the Business Associates were plying the Radio Taxi for some of the establishment who had negotiated with the management for recurring business. Also, as per Clause (2): OBLIGATIONS OF ORIX - Sub - Clause (l), "....ORIX shall provide marketing assistance to Business Associate to generate Business." There is nothing to suggest that claimant had any option to decline the work / business offered by the management. This all shows that claimant worked under the control and supervision of management.
The extent of control over the claimant/business associate in terms of above guidelines is indicative of existence of employer employee relationship between the management and claimant.
Merely because claimant was allowed to pick up walk in passengers on road does not bring about a change in the relationship existing between claimant and management in as much as entire revenue collected by the claimant in day was to be deposited by claimant with the management. Also merely because claimant was engaged by management on profit sharing formula basis does not necessarily mean that there did not exist relationship of employer and employee between the management & claimant. Mode/criteria of payment is not the determinative factor to decide whether there existed relationship of employer and employee or not. The fact that as per Payout claimant received variant amounts is not a factor affecting the decision of the Court on the question whether there existed relationship of Page 20 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 employer and employee between the management and the claimant. What matters is the extent of control and supervision exercised by the management on the work and conduct of the claim, and not the criteria on the basis of which remuneration is paid to the claimant for the work done by him under the control and supervision of the management. In case law reported as Shining Tailors Vs. Industrial Tribunal II, U.P., Lucknow & Ors. AIR 1984 SC 23 relationship of employer and employee was held to be existing between the employer and piece rated workers. In this case claimant was to be paid on the basis of revenue earning total km run of the taxi in a month. Management is in the business of plying Radio Taxi commercially as its, inter alia, main business object. Thus, unless it agreed to pay the driver on the basis of revenue earning total km run of the taxi driven by claimant in a month, possibly it cannot effectively, efficiently or smoothly run its business. Merely because management had allowed the claimant to keep the vehicle in his possession all the time does not bring about a change in the relationship found to be existence in the facts and circumstances of this case.
It is not case of management that claimant had any right to participate in meetings of the management company. As per Business Agreement what was agreed was that claimant had to provide his services as a Driver of the radio taxi owned by the management and nothing more. This all suggest that business agreement was not on principal to principal basis but it was on the basis of employer & employee.
Failure on the part of claimant to support his case through documentary proof, the fact that claimant did not disclose about Business Agreement Ex. MW1/2 (also exhibited as Ex. WW1/M1x) in the statement of claim and failure on the part of claimant to file his bank statement is / are to no effective consequences in as much as case/issues involved herein can be decided/adjudicated upon by the court on the basis of material which has been brought on record by the parties.
In my considered opinion, while determining nature of real relationship Page 21 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 existing between the parties by virtue of Business Agreement Ex. MW1/2 (also exhibited as WW1/M1x) the objective (whether it has been drafted with a view to defeat the benefits available to the claimant under the labour laws) need not been examined / gone into by the court and what is to be seen by the court is the exact nature of relationship arising as a matter of fact between the parties by virtue of provisions of such Business Agreement. It is equally immaterial that terms of Business Agreement are so as to comply, if really so, with the provisions of Motor Vehicles Act, 1988, Delhi Motor Vehicle Rules, Central Motor Vehicle Rules or Radio Taxi Scheme 2006. What is material is the nature of resultant relationship between the parties. None of the case laws relied upon by the management is of no help to the management in the facts and circumstances of this case inasmuch as it is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts of the case involved in it. The ratio of any decision has to be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has to be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without regard to the factual situation and circumstances of the two cases.
In view of above detailed discussion it can be safely concluded that as per business agreement Ex. MW1/2 (also exhibited as WW1/M1x), which is an admitted document of management as being relied upon by management, it cannot be said that claimant was a partner with the management even for the purposes of running the radio taxi and, in fact, there existed relationship of employer & employee between the management & claimant keeping in view the extent of control and supervision of the management over the workman and also by applying Page 22 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 organizational principle.
In view of above detailed discussion issue no.1 is decided in favour of claimant. Also it is observed that despite the fact that claimant and management were bound by Business Agreement Ex. MW1/2 (also exhibited as WW1/M1x) wherein claimant was referred as Business Associate, as a matter of fact in view of said Business Agreement Ex. MW1/2 (also exhibited as WW1/M1x), there in fact existed relationship of employer and employee between the management and claimant, and claimant cannot be said to be an independent Business Associate as such of the management.
As per claimant he worked with the management for about three years. It is not the case of management even that claimant did not complete at least one year of continuous service with the management. As per management Business Associate Agreement was executed on 02.05.2007, followed by Addendum dated 11.02.2010, and management was constrained to terminate the said agreement. Thus, undisputedly claimant worked with management for not less than one year of continuous service.
It is not the case of management that claimant's services as its employee have been terminated as a punishment inflicted by way of disciplinary action taken in due compliance with the principles of natural justice. There is no evidence of compliance with the provisions of section 25F of the Industrial Disputes Act, 1947 by the management at the time of termination of services of claimant. In fact management contested the case taking the stand that claimant was not an employee as such of the management &, thus, claimant was not a workman. As per management agreement between the management & claimant was on the principal to principal basis. Thus, in view of this stand of management, question of management complying with the provisions of Industrial Disputes Act, 1947 did not at all arose as per the case of management. Accordingly it is held that management terminated the services of claimant illegally /unjustifiably.
Page 23 of 55 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 In the totality of facts and circumstances of this case particularly the short length of service tenure of workman and nature of issues raised herein during the trial, it is not deemed appropriate to order for reinstatement of the claimant with the management. Such an order would not be in the interest of cordial industrial relations between the management & claimant in the facts & circumstances of this case. FURTHER, keeping in view the peculiar facts and circumstances of this case no specific amount can be determined as monthly back wages of workman inasmuch as claimant was entitled to variant amounts of money each month as per Business Agreement. In my considered opinion, in the totality of facts and circumstances of this case ends of justice would be met if lumpsum compensation to the tune of Rs.1,50,000/ (Rupees One Lakh and Fifty Thousand only) is awarded to claimant for illegal termination of his services by the management. If this sum is not paid within one month of publication of this award, management shall be liable to pay interest @ 9% p.a. on this amount from the date of award till its payment to the claimant. Issue No.2 is decided accordingly.
ISSUE NO.3: Relief, if any Claimant is held to be entitled to lumpsum compensation to the tune of Rs.1,50,000/ (Rupees One Lakh and Fifty Thousand only) for illegal termination of his services by the management. If this sum is not paid within one month of publication of this award, management shall be liable to pay interest @ 9% p.a. on this amount from the date of award till its payment to the claimant. Also a sum of Rs.20,000/ is allowed towards litigation expenses to the claimant payable by management.
8. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 25.10.2016.
(ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 24 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 ANNEXURE A "THIS BUSINESS AGREEMENT made at 02nd on this MAY day of _________ 2007 Between M/s ORIX Auto Infrastructure Services Limited, a company incorporated under the provisions of the Companies Act 1956 having its registered office at 94, Marol Coop Industrial Estate, AndheriKurla Road, Andheri (E), Mumbai 400059 and one of the Branch Office at C/o Satbir Filling Station, NH8, Rangapuri, New Delhi - 110 026, (hereinafter referred to as "ORIX" which expression shall mean and include its successors, nominees, assigns and subsidiary / associate companies wherever the context so permits), through its designated representative of the One Part And Mr. Vikram Singh son of Mr.Fathe Singh an Indian Inhabitant aged 32 having his permanent residential address at H.NO.3 Devli Village, New Delhi110062 and presently residing at H.NO.3 Devli Village, New Delhi110062 , hereinafter referred to as the "Business Associate" (which expression shall unless it be repugnant to the context or meaning thereof mean and include his heirs, executors, administrators and permitted assigns) of the Other Part (ORIX and Business Associate shall be individually referred to as "party" and collectively referred to as "the parties") WHEREAS:
(1) ORIX is engaged in, amongst others, owning and managing the business of Radio Taxi.
(2) ORIX has formulated various schemes to run the Radio Taxi Page 25 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Business.
(3) One of the schemes formulated and promoted by ORIX namely Chauffer Entrepreneur Programme, is to engage a Business Associate to run the Radio Taxi owned by ORIX on profit sharing basis.
(4) Business Associate has represented to ORIX that he has requisite experience and skills as well as valid public service badge and holding appropriate valid driving License for a period of 5 years issued by Regional Transport Authority of Delhi or NCR, as the case may be, to run the Radio Taxi and opted to be a Business Associate of ORIX (5) Business Associate has offered to provide independent services to ORIX on an exclusive basis on profit sharing formula defined hereunder.
(6) ORIX, relying on the above representation, has agreed to avail the services of Business Associate upon the terms and conditions contained hereinafter on an exclusive basis.
NOW THIS AGREEMENT WITNESSETH AS UNDER:
(1) PROVISION OF SERVICES:
Business Associate agrees to provider services and ORIX agrees to avail the services from Business Associate on the terms and conditions setout herein.
(2) OBLIGATIONS OF ORIX:
(a) ORIX shall provide a brand new car to be used as Radio Taxi, with standard accessories as given below :
(i) Rubber floor mats.
(ii) Music System with good antenna and speakers.
(iii) First Aid Kit.
(iv) Seat belts front and back.
(v) Spare tyre, spanner and jack with rod.
(vi) Chauffeur Identity Card.
(vii) Branded umbrella during monsoon season.
(viii) Branded tissue box.Page 26 of 55 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
(ix) Paging Board.
(x) City Guide.
(xi) Branding sticker (As decided by ORIX)
(xii) Fire Extinguisher Kit dully filled with validity update.
(xiii) Relevant Radio Taxi documents and insurance.
However in case of misuse, the Business Associate shall be liable to bear replenishment cost.
(b) ORIX shall comprehensively insure the Radio Taxi and
commercially register the same.
(c) ORIX shall fix the CNG and technology equipment in
the Radio Taxi.
(d) ORIX shall provide total maintenance support to the
Radio Taxi.
(e) ORIX shall provide reasonable access to the Business
Associate in the premises of ORIX for interaction with
ORIX or its representative only on need basis.
(f) ORIX shall apply for and obtain the relevant Radio Taxi
Permits, Insurance of the Radio Taxi which is
linked to the Permit, Pollution certification, Radio Taxi
fitness certificate that may be required under any law,
rules and regulations in force and applicable from time to time Business Associate for carrying out its obligations under this agreement.
(g) ORIX has an offer from the manufacturer of taxi towards a confirm Residual Value as per the terms and conditions detailed in Schedule 6
(h) If ORIX finds the conduct of the BUSINESS ASSOCIATE satisfactory then it may give a new Radio Taxi to the BUSINESS ASSOCIATE under a similar arrangement after completion of terms of this Agreement
(i) ORIX shall provide specific uniform to the Business Associate which Business Associate has to wear while Page 27 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 plying Radio Taxi.
(j) ORIX shall provide requisite training and driving tips so as to enable the Business Associate to improve his behaviour, attitude towards passengers and drive Radio Taxi such that no. of accidents could be reduced
(k) ORIX shall provide Mediclaim insurance for himself and his spouse for an amount upto Rs.100000 and Personal Accident Insurance for permanent disability or death upto Rs.100000
(l) ORIX shall provide marketing assistance to Business Associate to generate Business (3) OBLIGATIONS OF BUSINESS ASSOCIATE:
(a) Business Associate shall strictly adhere to the guidelines mentioned in Schedule1 annexed hereto, in the performance of his services and obligations under this Agreement and shall not act in nonconformity therewith.
(b) Business Associate, during the term of this Agreement,
shall deposit the entire revenue earned by him, from Radio
Taxi to ORIX on a daily basis by way of card swipe
(Debit / Credit Card) immediately on completion of duty.
(c) Business Associate shall, if and when asked by ORIX, produce Police Verifications verifying his identity and background. Business Associate shall also require providing ORIX certified copy of document evidencing his residing at the residential address mentioned herein above.
(d) During the performance of services pursuant to this Agreement, Business Associate shall ensure that he maintains proper decorum and conducts his business and activities in such a manner that the reputation, standing and goodwill of ORIX is in no way adversely affected or compromised. The Business Associate understand well Page 28 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 that Radio Taxi is a prestigious business of ORIX, and as such he agrees and undertakes to adhere to the highest standards of ethics, integrity and lawful conduct in relation to performance of its obligations under this Agreement and shall not, in particular, attempt to bribe, illegally gratify or influence any person in relation thereto, failing which ORIX reserves the right to terminate this agreement forthwith. ORIX decision shall be final in this regard.
(e) This agreement is a principal to principal arrangement and does not create now or in the future any relation of employer - employee between ORIX and the Business Associate. In the event Business Associate or any other person(s) on its behalf or any Government, statutory or any other agency raises any demands or claim or brings any action against ORIX on the ground that the Business Associate is working for or at the premises of ORIX then and in that event Business Associate shall settle the matter immediately and to the complete satisfaction of ORIX.
Business Associate hereby agrees that any expenses, legal or otherwise, if any, shall be the liability of Business Associate. Business Associate further agrees to indemnify and keep ORIX indemnified against all such expenses, losses, damages or action that may be suffered or brought against ORIX in respect of the Business Associate providing service under this Agreement.
(f) The Business Associate is not authorized to hire any person on behalf of ORIX and that the personnel if designated by the Business Associate to carry out its obligations under this Agreement shall at all times be the employee(s) of the Business Associate
(g) The Business Associate can appoint, any other chauffeur only in case of unforeseen circumstances beyond the control of Business Associate, during his absence to drive the Radio Taxi but the same would require a prior approval from ORIX on case to case basis. This would at no point of time mean that the Business Associate can appoint any other person to drive the Radio Taxi for long Page 29 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 periods or for the entire term of contract until specifically approved by ORIX in writing. However in such circumstances the replacement of chauffeur will be at the sole risk and cost of Business Associate and ORIX will not be responsible for any compliances of statute on behalf of such replacement, including applicable Labour Laws.
(h) Business Associate will not represent ORIX in any Court, Tribunal or Commission of Inquiry to forum whatsoever without the prior written permission of ORIX
(i) Business Associate will not assign, transfer, charge or, in any manner make over this Agreement or any rights hereunder without obtaining the previous consent in writing of ORIX. During the term of this agreement, The BUSINESS ASSOCIATE will not associate himself with any other services provider including but not limited to Competitor(s) of ORIX providing any similar services as being provided by ORIX and that he shall solely and exclusively be associated with ORIX
(j) Business Associate can not deploy/use the Radio Taxi on any other duty other then the purpose mentioned in this agreement without prior written consent of ORIX.
(k) Business Associate undertakes that he shall not, during
the period of this Agreement or at any time thereafter, use
or disclose to anyone the contents of this
agreement and any confidential information relating to the business or affairs of ORIX and/or its affiliates which Business Associate may be exposed to or may receive during the course of or pursuant to any activities conducted for ORIX and Business Associate shall indemnify and keep indemnified ORIX from any loss or damage arising from any breach of this undertaking. For the purposes of this clause, 'Confidential Information' shall mean and include all documents, papers, database, correspondence and any other information relating ORIX, its business, operation, clientele, etc. which may be Page 30 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 disclosed or which the Business Associate shall become privy to get to know under this Agreement.
(l) Business Associate hereby authorises ORIX to carry out inspection of his Radio Taxi at any point of time.
(m) Business Associate hereby confirms that satisfactory performance and maintenance of services is the essence of this Agreement. This Agreement is for provision of services.
(n) Radio Taxi used by Business Associate for providing services to ORIX shall carry the logo as prescribed by ORIX from time to time
(o) If running of Radio Taxi without any passenger or empty exceeds 25% of the total kms run in the month (non revenue kms) then ORIX shall not pay the CNG cost for none revenue kms to Business Associate. Business Associate shall ensure that such non revenue kms should not exceed the limits specified above
(p) Business Associate shall not temper with the all the technology equipment provided by ORIX in the Radio Taxi. In case of any malfunction of technology equipment Business Associate shall immediately notify to ORIX
(q) Business Associate shall be responsible to comply with all statutory laws including labour laws, if any, applicable to him and shall keep ORIX indemnify from any claims, loss, damages that may be caused due to failure of Business Associate to observe this condition
(r) Business Associate shall ensure that the Radio Taxi is operational for minimum of 12 hours a day and 26 days a month
(s) Business Associate shall bring the Radio Taxi to ORIX or any other Authorised Service Centre designated by ORIX and he shall not cause any repairs through any Page 31 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 other person including road side garages. Failure to observe this condition would result in Business Associate loosing Residual Value guarantee / protection
(t) Business Associate shall fill requisite fuel in Radio Taxi before commencing the duty (u) Business Associate will maintain Radio Taxi in running and working condition at all time such that it confirms to the maintenance schedule and conditions laid down for Residual Value protection as more particularly described in Schedule 5 and 6, respectively
(v) Business Associate shall not fit any accessories, fittings, stickers, fixtures or any God idols. Rosemary or any fancy items in Radio Taxi without prior written permission or ORIX (w) Business Associate shall during the term of this Agreement neither use his own logo or brand nor shall use ORIX phone no or association for any purpose other then the purpose mentioned in this Agreement.
Business Associate shall all time use ORIX logo and brand name and ORIX phone no only for performance of his obligation under this agreement (4) OPERATION OF SECHEME AND CONSIDERATION :
The scheme and responsibility matrix is more particularly setout in Schedule 2 hereunder written.
(a) In terms of scheme, ORIX will provide a Radio Taxi to the Business Associate as more particularly described in Schedule 4 written hereunder, who shall run it as taxi as per the terms of this Agreement.
(b) Business Associate shall pick up the walk in passenger on road or ORIX may provide the business to Business Associate. Provided it is clarified that ORIX does not give any guarantee of giving any business to neither Business Associate nor Business Associate shall have any claim against ORIX, if ORIX give any business to any other Business Associate(s). Business Associate acknowledges that he has Page 32 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 conducted an independent investigation of the Business, recognize that the business venture contemplated by this Agreement involves business risks, and that its success will be largely dependent upon the ability of the Business Associate to garner business. ORIX expressly disclaims the making of, and Business Associate acknowledges that it has not received, any warranty or guarantee, express or implied.
(c) All the revenue earned from running of Radio Taxi will go to ORIX.
(d) ORIX shall create a deposit account for Business Associate with ICICI Bank limited at the cost of Business Associate, which shall have the debit card. The Business Associate shall deposit of Rs.3000/ (Minimum Deposit) in this Account and shall maintain the said Minimum Deposit all the time during the term of this Agreement.
(e) For any cash/revenue received by Business Associate from walk in passenger or any other passenger from day fare, night fare, baggage charges, idle charges and other charges, he shall swipe his debit card to transfer the equivalent of money received to ORIX immediately and at the end of day or as may be convenient to him he shall replenish the amount in deposit account as mentioned above. In case BUSINESS ASSOCIATE fails to comply with the provision of this clause then ORIX shall have right to immobilize the Radio Taxi provided under this agreement
(f) All the receipts / collections by the Business Associate as mentioned above and all the direct receipts by ORIX from the business conducted by the Business Associate shall be credited against the Radio Taxi account identified by taxi registration number.
(g) It is hereby clarified that any revenue generated by ORIX from and out of advertising or any other means other then specified in this Agreement shall not be considered as part of revenue and calculating the surplus to be shared between ORIX and Business Associate
(h) For efficient and smooth operation / management of the Scheme, ORIX shall pay an amount of Rs. 5,000 (at the beginning of every month) as an advance to the Business Associate towards service charges which shall be reconciled at the end of every month
(i) In order to calculate the surplus to be shared between ORIX and Business Associate, all revenue received / to be received shall first be Page 33 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 appropriated towards the expenses in the order of preference as mentioned below, commencing from month following in which Radio taxi was delivered to the Business Associate:
(i) Service charges of Rs 5,000/ per month payable to the Business Associate towards satisfactory performance of his obligations under this agreement;
(ii) Expenses towards CNG cost @ Rs 1.60 per km (cost of fuel being Rs.19.20 per kg / average of 12 kms per kg = Rs 1.60 per kg). The CNG cost shall be reviewed in case there is variation in price by 10% on mutual consent;
(iii) Maintenance cost @ Rs 2500 upto 2000 kms and Rs 1.30 per
km above 2000 kms
(iv) Capital cost @ Rs 15,000/ per Radio Taxi per month for 36
months
(v) Operating and Overhead expenses @ Rs 7,000/ per Radio Taxi per month during the term of this agreement or any extension thereafter
(j) For every calendar month, after deducting expenses as mentioned in clause 3(i) above and more particularly set out in Schedule 3 written hereunder the surplus shall be calculated. The said surplus will be shared by ORIX and Business Associate in ratio 60%:40% (60% being ORIX share). In case of any shortfall, the same would be debited to Business Associate Account.
(k) Business Associate shall be entitled to withdraw his share from the surplus only after recouping the shortfall of the previous month(s), if any. Such withdrawal shall be limited to the extent of 50% of his share of the surplus. The balance 50% of the surplus share of Business Associate shall be utilised to create security corpus of Rs.30,000/ (Rupees thirty thousand only) which shall be treated as interest free security deposit. After creation of security corpus from out of the Business Associate's share, he shall be entitled to withdraw his full share of surplus.
(l) In case there is no shortfall at the end of 36 months and after Page 34 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 meeting all the obligations in Business Associate's Account, ORIX shall refund the security corpus and shall also transfer the Radio Taxi to the Business Associate at the cost of Business Associate. At the time of transfer ORIX shall remove all the CNG fittings, accessories and technology equipment from Radio Taxi.
(m) In case there is a shortfall in Business Associate's account at the end of 36 months, ORIX may either extend the term of this agreement for upto another 12 months, so that Business Associate can clear the shortfall or ORIX shall its discretion adjust from security corpus or sell the Radio Taxi. It is further clarified that extension may come to an end when ORIX is able to recover short fall in Business Associate's Account.
It is hereby further agreed between the parties that upon transfer of Radio Taxi(s) in favour of BUSINESS ASSOCIATE, ORIX shall be entitled to recover, on prorata basis, all the prepaid expenses such as Insurance, permit, Road Tax etc. (5) LIABILITY OF BUSINESS ASSOCIATE :
In case of any damage to the Radio Taxi during the term of this Agreement either due to accident or otherwise, ORIX shall absorb the first 3 insurance disallowances per year. Any disallowance thereafter shall be to the account of Business Associate. All insurance disallowance on account of theft of Radio Taxi or any equipment fitted the Radio taxi shall be to the account of Business Associate In case due to accident the Radio Taxi is rendered to total loss then the Business Associate shall be liable to bear the differential amount between the Book value of the Radio Taxi as on date of the occurrence of event and insurance amount that would be received from Insurance Company Business Associate confirmed that he has been shown the relevant portion of License granted to them by authority and same has been explained to him and understood by him. Business Associate agrees to abide by the same and shall indemnify and keep ORIX indemnified from any loss. Cost, expenses occasioned to ORIX on account of any breaches on this covenant.
(6) FORCE MAJEURE :
Neither party shall be liable for any breach of this Agreement caused by force Majeur events such as Act of God, fire, lightning, explosion, flood, inclement weather conditions or any cause beyond the control of either parties. Where force Majeur results in failure by the Business Associate in Page 35 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 performance of the services for more than 5 days, ORIX may terminate this Agreement. In the event ORIX is affected by force Majeure, ORIX shall have the option to terminate this Agreement if the force Majeure continues beyond 5 days.
(7) TERM AND TERMINATION :
(a) This agreement shall commence from day when ORIX
have delivered the Radio Taxi to Business Associate.
(b) This Agreement shall be for period of three years with
an option to renew / extend the term by one year on
such terms and condition as mutually agreed upon by
the parties.
(c) The Agreement shall forthwith be terminated in case of
occurrence of the following events :
(i) Any party hereto refers an order to be made or
passes a resolution to wind up for any reason
whatsoever or,
(ii) Have a receiver appointed for the whole or
substantial part of its undertaking or,
(iii) A party has made an application for declaration
as insolvent.
(iv) If the License granted to ORIX to operate Radio
Taxi has expired/terminated/cancelled for
any reasons.
(d) Notwithstanding anything contained herein above,
ORIX may terminate his Agreement
forthwith and without notice, if in its opinion
Business Associate has failed to discharge any of its obligations, covenant, conditions, responsibilities stipulated herein or fails to perform the services as required/directed by ORIX or the Service performed by the Business Associate are not satisfactory or Page 36 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 the representation made by the Business Associate found to be false or Business Associate by his any act or omission gives to ORIX reasonable grounds to consider that its rights may be prejudiced or be in jeopardy or Business Associate tempers with any of the technology equipments fitted in the Radio Taxi. In such an event, payment shall be made for services rendered till the date of termination, subject to deductions, if any.
(e) Either party shall have right to terminate this
agreement by giving written notice of 30 days to
other party by specifying the reason of such
termination.
(f) Upon termination of this Agreement, for any
reasons whatsoever Business Associate
shall immediately remove himself from ORIX'
premises and he shall discharge himself from his obligations under this Agreement, failing which ORIX may at its option evict him
(g) Upon termination of this agreement for the reasons specified in sub clauses (c), (d), and (e) above, the BUSINESS ASSOCIATE shall be liable surrender the taxi(s) to ORIX without delay and demure failing which ORIX shall have right to repossess the taxi(s) and claim the damage / loss from BUSINESS ASSOCIATE. In such cases ORIX shall not have liability whatsoever towards BUSINESS ASSOCIATE (8) PAYMENTS :
All payments to be made by ORIX to BUSINESS ASSOCIATE shall be by Cross Cheques / Demand Drafts/ or by RTGC or Electronic Fund Transfer after due deductions No cash shall be paid by ORIX to BUSINESS ASSOCIATE (9) RELATIONSHIP OF THE PARTIES :
The performance of obligations by the Business Associate on principal to principal basis under this agreement shall be of Independent Business Page 37 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Associate and nothing contained in this Agreement will create or imply an employment or an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
(10) INDEMNIFICATION :
(a) The Business Associate hereby agrees to indemnify and hold ORIX
harmless at all times from any loss, claim, prejudice, damage, costs,
taxes, duties, penalties, interest thereon or expenses of any kind,
including reasonable attorney's fees and legal costs to which ORIX may be
subjected :
(i) by virtue of a breach of the representations and warranties
made by the Business Associate,
(ii) by virtue of any finding related to the terms of this Agreement and/or to the Services required to be provided under the terms of this Agreement,
(iii) by virtue of any contravention and/or noncompliance on the part of the Business Associate with any laws, ordinance, regulations and codes as may be applicable from time to time,
(iv) on account of any act, commission or omission attributable to the improper handling of ORIX's property or to the negligence of the Business Associate, which has resulted on account of breach of any of the conditions of this Agreement by the Business Associate or otherwise.
(v) on account of any improper disclosure of Confidential Information.
(vi) on account of any act of negligence, misfeasance or fraud.
and undertakes to fully compensate ORIX. The provisions of this Section shall be without prejudice to any other rights available to ORIX. In this regard, ORIX's estimation of claim or loss caused would be final and binding on the Business Associate.
(11) NOTICES :
All notices, demands or other communications required to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post or facsimile transmission addressed to the intended recipient Page 38 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 thereof at its address or facsimile number given below or to such address or facsimile number as any party may from time to time notify to the other parties:
To:
Attn : Mr. P N Subramanian ORIX Auto Infrastructure Services Limited C/o Satbir Filling Station, NH8, Rangapuri, New Delhi 110026 Fax: 01125060005 To Business Associate :
Address : _______________ Any such notice, demand or communication shall be deemed to have been duly served if given or made by facsimile transmission, immediately on receipt of the transmission report by the sender, or if given personally, on delivery thereof to the address of the recipient, or if given by registered post, five days after posting the same by registered post.
(12) WAIVER :
Neither party's failure to exercise any of its rights under this Agreement shall constitute or be deemed to constitute a waiver or forfeiture of such rights. Waiver of a breach of this Agreement will not be deemed a waiver of any future breach. Any waiver must be in writing and signed by each party's representative.
(13) SEVERABILITY :
If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected.
(14) ENTIRE AGREEMENT :
This Agreement and its Schedules constitute the entire agreement parties and supersede all prior or contemporaneous communications, representations, and agreements, whether oral or written, regarding the subject matter of this Agreement. No modifications of, or amendments to, the terms of this Agreement will be valid unless in writing and signed by an authorized by each party.
(15) CONSTRUCTION :
The headings of sections of this Agreement and the attached Schedules are Page 39 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 for convenience and are not to be used in interpreting this Agreement.
(16) APPLICABLE LAW :
This Agreement is made under and shall be construed in accordance with the laws of India.
(17) ARBITRATION :
Any dispute arising out of this Agreement shall be settled among the parties failing which such dispute shall be referred to Arbitration of a sole Arbitrator to be appointed by ORIX. The venue of the Arbitration shall be in New Delhi and the arbitration proceedings shall be in accordance with the Arbitration and Conciliation Act, 1996 and Rules made thereunder, as may be in force from time to time. The decision of the Arbitrator on the dispute shall be final and binding on the parties.
(18) JURISDICTION :
All disputes arising out of this Agreement are subject to the jurisdiction of Courts at New Delhi only.
(19) COUNTER PARTS :
This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument (20) EXPLANATIONS :
The Advocate for the Business Associate, Mr. ____________ has explained the entire scheme and the provisions of this agreements and its legal effect to Business Associate in Hindi/Marathi and the same has been understood by him. The certificate of Advocate to the foregoing effect is annexed herewith as Annexure "A".
IN WITNESS WHEREOF the Parties hereto have set their hands to these presents on the day, month and year aforesaid.
For ORIX Auto Infrastructure Services Limited Business
Associate
Sd/
Authorized Signatory Authorized
Page 40 of 55 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/25.10.2016
Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
Signatory
Witnesses :
Witnesses :
Page 41 of 55 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/25.10.2016
Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
The First Schedule hereinabove referred to
OPERATING GUIDELINES FOR Business Associate
BUSINESS ASSOCIATE:
(1) Business Associate while driving, need to carry:
Driving License (Original) and Public Service badge
Registration Certificate of Radio Taxi (Original)
Insurance Certificate of Radio Taxi (Original)
Pollution Under Control Certificate (Original)
Permit and Radio Taxi Fitness Certificate (Original)
Taxi Permit/Road Tax
Authorisation for ALL India permit.
(2) Business Associate should be alert and have good physical/mental state
of mind before attempting to drive. He shall not be under alcoholic
influence.
(3) Business Associated should be medically fit for driving :
6/6 vision without colour blindness
Should not have any permanent disability, which can affect driving.
(4) Business Associate while driving should not:
Smoke, Eat or Drink
Distracting conversation or loud music
Use Cellular phone (if making or receiving call is necessary, park your
Radio Taxi and talk)
(5) Business Associate to be well attired (as will be specified) whenever
on assignment.
(6) The total number of passengers in the Radio Taxi not exceeded 4
passengers + 1 Driver (Business Associate)
(7) Business Associate should not stop Radio Taxi before the destination
for any reason (specially during night hours)
Page 42 of 55 (ANAND SWAROOP AGGARWAL)
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Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
(8) ORIX reserves the right to check Business Associated for Alcohol test
by a breath analyzer or any other means.
(9) Business Associate driving the Radio Taxi should be courteous and
follow all requisite guidelines as mentioned under this agreement and communicated from time to time. The female customer must be dealt with utmost respect and dignity (10) Business Associate will be monitored for productivity on the points as appended below.
(a) Bills are submitted on time along with requisite document & supporting.
(b) Operations Efficiency is achieved and maintained keeping the following parameters in mind.
In case of any delay, client not showing up, or address not found due to any reasons, the same is communicated to ORIX's Supervisor well in time so that further action may be taken.
For any assignment to take the shortest possible route as to optimize efficiency.
Submit client Feedback collected by Business Associate on Daily basis.
(11) The Business Associate shall ensure that The Radio Taxi should have maintenance record book recordings with all unplanned & planned maintenance being carried out as per the manufacturer specification.
(12) Two windshield wipers in good working condition shall be present in the Radio Taxi.
(13) The Radio Taxi's head and taillights should be clear, clean and in working condition at all time.
(14) The Radio Taxi should be free of all dents and scratches.
(15) Business Associate should check the Radio Taxi for brakes, lights and wipers etc. and should ensure that they are functional and effective.
Page 43 of 55 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 (16) ORIX reserves the right to inspect Radio Taxi and if it is found that the Business Associate has been violating any applicable rules/laws and/or any conditions of the agreement ORIX reserves its right to make appropriate deduction from any amount payable to the Business Associate, as its sole discretion.
(17) Business Associate would not be authorized to provide the Radio Taxi to any other car rental company, at any time if the breach of this agreement is detected, ORIX would have the right to terminate the contract and forfeit the security deposit without prejudice to its right to take appropriate action in the court of law.
(18) The Radio Taxi would be maintained as per the standards prescribed from time to time by ORIX which as of today are as per Schedule 6 attached.
(19) The Business Associate would adhere to the quality standards prescribed by ORIX from time to time on grooming, uniform, etiquettes and manner, guest handling and would attend periodic training conducted by ORIX.
(20) ORIX may at any time carry out reference check of the Business Associate. In such an event the Business Associate shall submit/forward all the relevant details/documents for carrying out the reference check without fail.
(21) Business Associated shall adhere to all operational instructions issued by ORIX.
(22) Business Associated shall be responsible and liable for any costs and/or expenses arising out of but not limited to law suits, complaints, compensation, awards, fines, Challans and the like arising out of any breach of law or regulations prescribed by the relevant govt. Authority.
(23) Business Associated shall keep the Radio Taxi in roadworthiness condition.
(24) Business Associate shall be property dressed in uniforms bearing identity cards and possessing the valid driving licenses. They should be of good medical health (medical certificate to be submitted every quarter to EHS team at ORIX), good character and antecedents.
Page 44 of 55 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 (25) Business Associate shall ensure that Radio Taxi operating for ORIX shall bear all necessary documentation (Radio Taxi) to operated as Taxi. Business Associate hereby confirms that he has valid driving license to provide the Service under this agreement.
(26) The Business Associated at all times should maintain confidentiality about all matters, documents, books, and information relating to the company's operations and this requirement for confidentiality would continue in perpetuity.
(27) It would be the responsibility of Business Associate that in case of accidents/breakdown/regular repairs the Radio Taxi is brought to ORIX authorised service station in the shortest possible time.
(28) It would be responsibility of the Business Associate to ensure that out of total monthly running of Radio Taxi at least 75% should be revenue running.
(29) Tampering with any of the equipment provided along with the Radio Taxi and disconnection from the Call center/main office at any point of time shall be considered as offense and a fine of Rs.1000/ per day will be charged from the driver. Apart from this it shall be treated breach of agreement and maintenance responsibility.
(30) Business Associated shall inform ORIX immediately finding of any Article/goods left by the passenger in the Radio Taxi and shall submit the same to the office of ORIX on the same day at any time Page 45 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 The Second Schedule hereinabove referred to CHAUFFEUR ENTREPRENEUR PROGRAMME (Business Associate) RESPONSIBILITY ORIX Business Sno. Activity Associate A RADIO TAXI 1 Radio Taxi Acquisition YES 2 Insurance renewals YES 3 Registration, fitness and permit YES 4 Upkeep of Radio Taxi YES 5 Cassettes & CD in Radio Taxi YES 6 Magazines and Newspapers in Radio Taxi s YES 7 Safety and Security of Radio Taxi YES 8 Change of Radio Taxi ownership (in associates name) at YES the end of tenure* 9 Cost of ownership conversion to be borne by YES 10 Facility of providing residual value (RV) protection at the YES end of the tenure* B TECHNOLOGY 1 Technology for tracking and movement YES 2 Billing and payment collection technology YES 3 Radio communication YES 4 Maintenance of technology and attached devices YES 5 Mobile communication YES 6 Printer roll in vehcile YES C REPAIR / MAINTENANCE / CONSUMABLES 1 Total Maintenance YES First 3 Insurance disallowance per annum YES Page 46 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Above 3 insurance disallowance per annum YES 2 Fuelling (CNG) YES 3 Break down services YES D BUSINESS 1 Reservations and bookings YES 2 Sales and Promotion YES 3 Walk in client YES E Business Associate 1 Valid Driving License Public Service Badge / Police YES Verification 2 Training and uniform YES 3 Service charges per month (Rs 5000) to be paid by YES 4 Replacement driver to be provided by YES 5 Penalties for non compliance to be borne by YES 6 Challans for traffic rules disobedience YES F REVENUE / COST / DEPOSITS 1 Deposit account for CEP associate will be created. YES Once Deposit is created, ORIX will retain only fixed amount for the fixed km cap and profit sharing as per (F 3) and rest will be passed on to Business Associate associates 2 account (Monthly) after reconciliation 30000 3 Sharing of surplus % 60% 40% G GENERAL / MISCELLANEOUS 1 Local taxes and parking YES 2 Allowed Km cap for fixed rental for maintenance 2000 3 Court cases hearing on accidents (In case Radio Taxi is YES YES impounded / completely damaged) 4 15 days notice prior to going on leave YES 5 One month prior notice for termination of contract YES YES 6 Operational days per month / minimum hours per day 26 / 12 7 Contract / agreement YES Page 47 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 8 In case Radio Taxi is in good / road worthy condition (after the tenure is over) and there is no short fall in Business Associate's account, he can continue running Radio Taxi under this scheme without any capital cost recovery Mutually agreed 9 After the tenure is over, Business associate has to handover / deposit all the equipments like digital odometer, printer, swipe card machine, GPS, radio set if he does not want to continue with us or would like to avail benefit of RV by selling Radio Taxi. YES 10 Anything stolen / damaged from the Radio Taxi will be Business Associates responsibility. Primarily ORIX will try to recover money from insurance company but what ever is the balance amount for filling the gap has to be borne by Business Associate YES The Third Schedule hereinabove referred to Scheme of cost recovery and sharing of surplus per Radio Taxi :
Sr. No. Amount
Description
(1) Allowance to BUSINESS ASSOCIATE Rs.5,000/ P.M.
Management Fees to the BUSINESS ASSOCIATE for operating the per car Radio Taxi for 26 days working in a month. If the Radio Taxi is operated for period less then 26 days then Business Associate shall be paid on a prorata basis for no. of days for which Radio Taxi is operated. (2) Recovery of running cost
(a) BUSINESS ASSOCIATE to be reimbursed at a fixed rate for the Rs.1.60 Per K. running of the Radio Taxi towards fuel cost. M. of Radio Taxi run per car
(b) ORIX to recover additional maintenance charges for Radio Taxi Rs.1.30 Per K. run over 2000 KM per month M. over 2000 K.M. of Radio Taxi run p.m per car (3) Recovery by ORIX Page 48 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
(a) Recovery towards capital cost, registration, taxes, insurance, Rs.24,500/ uniform, training overheads etc. and Preventive maintenance for p.m. per car cars running upto 2000 k.m month (4) Calculation of operating surplus:
Total revenue earned from the day fare, night fare, baggage charges, idle charges and other charges recovered from the passenger, less the recoveries mentioned in Sr. 1, 2 and 3 above.
(5) Sharing of the operating surplus The operating surplus calculated as per the Sr. No.4 above would be shared in the following manner:
(a) BUSINESS ASSOCIATE 40%
(b) ORIX 60%
Scheme of cost recovery and sharing of surplus per Radio Taxi Sr. No. Description Amount (6) Withdrawal from the operating surplus:
Ability of the BUSINESS ASSOCIATE to withdraw from his share of the operating surplus till ORIX has built the security corpus of Rs.30,000/ from the 50% (half of his share of BUSINESS ASSOCIATE operating surplus operating surplus) (7) Carry forward of operating deficit: From Business Associate In case of any shortfall in the operating surplus as calculated above per the Sr. No.4, the shortfall would be carried forward and adjusted against the operating surplus of subsequent months.
(8) Transfer of Radio Taxi at the end of 36 months:
ORIX would adjust any outstanding dues that it needs to recover from the BUSINESS ASSOCIATE from the Security Deposit at the end of 36 months and release the balance money to the BUSINESS ASSOCIATE alongwith the transfer of cars under his fleet (9) Recovery of shortfall:
In the event that ORIX is not able to recover all its shortfall in 36 months then ORIX would have the Page 49 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 option of giving additional grace period upto 12 months to the Business Associate to clear all the short fall or appropriate the security corpus or sell the Radio Taxi and recover its shortfall. The balance amount would be given to the BUSINESS ASSOCIATE after recovery of prepaid expenses.
(10) Operation upto 48 months:
After 36 months or once ORIX has recovered all its overdue, "depending on the quality of the Radio Taxi" OAIS may permit the BUSINESS ASSOCIATE to run the Radio Taxi upto a total period of 48 months from the start of the operations. During this period ORIX recovery on account of capital cost would be nil.
(11) Renewal of the Programme:
If ORIX finds the conduct of the BUSINESS ASSOCIATE satisfactory then it may give a new Radio Taxi to the BUSINESS ASSOCIATE under a similar arrangement after completion of terms of this Agreement Page 50 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 Schedule 4 Details of Radio Taxi provided to Business Associate
1) Vehicle Description Indigo Marina Make: GVS Model 2007
2) Name of Manufacturer TATA
3) Registration No. DL 1 RX 8010
4) Engine No. 475SI51BSZP34661
5) Chassis No. 603321BSZP35920
6) Name of the Insurer ICICI Lombard
7) Insurance Policy Details Date of Issue : 30/03/2007 Date of Expiry : 29/03/2008 Chauffeur Name : VIKRAM CHOUDHARY (Issuing Authority) S/o : SH. FATHE SINGH.
Date: 15/04/08 Signature: Sd/ Page 51 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 THIS ADDENDUM made at 11th on this February day of 2010 Between M/s ORIX Auto Infrastructure Services Limited, a company incorporated under the provisions of the Companies Act 1956 having its registered office at 94, Marol Coop Industrial Estate, AndheriKurla Road, Andheri (E), Mumbai 400059 and one of its Branch Offices at, A11, Shivaji Marg, Moti Nagar New Delhi - 110015 (hereinafter referred to as "ORIX" which expression shall mean and include its successors, nominees, assigns and subsidiary / associate companies wherever the context so permits), through its designated representative of the One Part And Mr. Vikran Singh S/o Fathe Singh an Indian Inhabitant aged 34 having his permanent residential address at, H No.3 Devli Village, New Delhi110062 and presently residing at H No.3 Devli Village, New Delhi110062 hereinafter referred to as the "Business Associate" (which expression shall unless it be repugnant to the context or meaning thereof mean and include his heirs, executors, administrators and permitted assigns) of the Other Part (ORIX and Business Associate shall be individually referred to as "party" and collectively referred to as "the parties") WHEREAS:
1. ORIX and Business Associate have entered into a Business Agreement dated 15th April 2008 under which Business Associate has agreed to run the Radio Taxi having registration number DL1RX - 8010 owned by OAIS on Page 52 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 profit sharing basis.
2. Under the provisions of the above Agreement, for efficient and smooth operation and management, it was agreed that OAIS shall pay to Business Associate, at the beginning of every month an amount of Rs.5,000 as an Advance towards service charges which shall be recovered at the end of every month.
3. Business Associate has now requested OAIS to increase the Advance Service charged and agreed to provide full cooperation for increasing the revenue under the above Agreement.
4. In view of the above commitment, OAIS has agreed to increase the Advance Service charges as mentioned below.
NOW THIS AGREEMENT WITNESSETH AS UNDER: (1) Business Associate agrees to provide full cooperation for increasing the revenue under the above Agreement and would diligently perform any services as required / directed by the Company.
(2) Business Associate further agrees and confirms that he shall not disrupt the services or connive in any unlawful activities which would diminish the goodwill of OAIS.
(3) OAIS has agreed to increase the Advance Service charges as per the table
given below w.e.f. January 1 2010
st
Sr No Duration of Association Advance Service Charges
1 0 - 12 months Rs.5000/
2 13 - 24 months Rs.6500/
3 25 - 30 months Rs.7000/
4 Above 31 months Rs.7500/
(4) Business Associate further agrees and confirms that the above Radio Taxi
may be transferred in his favour by mutual Agreement only upon recovery
of all expenses incurred by OAIS in the business which would include cost of
acquisition, cost of operations, accumulated losses and other incidental
expenses incurred with regard to this business only.
Page 53 of 55 (ANAND SWAROOP AGGARWAL)POLC- XI/KKD/DELHI/25.10.2016 Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16 (5) The Parties hereto agree and confirm that all other covenants contained in the said Agreement, shall remain valid, effective and binding and shall be applicable mutatis mutandis (6) This Addendum Agreement shall form part and parcel of the said Business Agreement and shall be read in conjunction with the said Business agreement IN WITNESS WHEREOF the Parties hereto have set their hands to these presents on the day, month and year aforresaid.
For ORIX Auto Infrastructure Services Limited Business Associate
Sd/ Sd/
Authorized Signatory Authorized Signatory
Page 54 of 55 (ANAND SWAROOP AGGARWAL)
POLC- XI/KKD/DELHI/25.10.2016
Vikram Chaudhary Vs. M/s. Orix Auto Infrastructure Services Ltd. ID No. 3567/16
Schedule 4
Details of Radio Taxi provided to Business Associate
1) Vehicle Description Indigo Marina Make: GVS Model 2007
2) Name of Manufacturer TATA
3) Registration No. DL 1 RX 8010
4) Engine No. 475SI51BSZP34661
5) Chassis No. 603321BSZP35920
6) Name of the Insurer ICICI Lombard
7) Insurance Policy Details Date of Issue : 30/03/2007 Date of Expiry : 29/03/2008 Chauffeur Name : Sd/ (Issuing Authority) S/o :
VIKRAM Date: 02/05/08 Signature: Sd/"
(ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016* Page 55 of 55 (ANAND SWAROOP AGGARWAL) POLC- XI/KKD/DELHI/25.10.2016