Punjab-Haryana High Court
Bharti Retail Ltd vs State Of Haryana And Others on 27 March, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No. 5917 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 5917 of 2014
Date of decision: 27.03.2014
Bharti Retail Ltd. ...Petitioner(s)
Versus
State of Haryana and others ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr. Vishal Gupta, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
The present writ petition is a classic case where a multi national company seeks to drag a poor workman-respondent no. 4 in all Forums by taking recourse to its sound financial status and to oppose the claim of a paltry principal amount of `24,961/-.
The facts of the case would go on to show the conduct of the petitioner-company which shows how the poor workman can be harassed to no end. The claim of the workman in his application filed was only that he was not being paid at par with the similarly situated co-workers who were employed in the organization of the respondent. He had filed a complaint before the Labour Officer, Panipat and his services were terminated.
Accordingly, he filed the application dated 18.09.2012 (Annexure P-13) claiming the arrears of less payment made to him during his course of employment before the authority notified under The Payment of Wages Act, 1936 (in short 'the Act').
Gupta ShivaniInitially, ex parte proceedings were conducted against the 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 2 petitioner but an application came to be filed for setting aside the said ex parte order before the authority, which was allowed vide order dated 09.10.2012.
Thereafter, the stand taken by the petitioner-company was that the dues had been paid regularly and the applicant had been habitual in leaving duties without information for hours and had absented for hours and not attended duties from April, 2012 and sought an advance of `5,000/-
which was given. He was given a warning to be punctual. It was further averred that he had been paid the total arrears, if any, due details of which are given in the reply filed by the management and nothing remained due.
When the case was fixed for evidence, the petitioner was again proceeded against ex parte and eventually, the application was allowed on 26.02.2013 (Annexure P-5) by holding that the applicant-respondent no. 4 was entitled to sum of `24,941/-, which the petitioner was directed to deposit within 30 days failing which, compensation was to be paid. When recovery proceedings were initiated by the workman, an application was filed on 17.04.2013 for setting aside the order passed by the Authority. The Authority came to the conclusion that the petitioner was behaving mischievously and delaying the proceedings and wasting the time of the Court and dismissed the application with costs of `1,000/-. The relevant portion reads thus:-
"After going through the file, I come to the conclusion that the respondents are mischievously delaying the proceeding of the case by proceeded ex- parte again and they are filling application for setting aside the ex-parte order. That application was filed after the delay and respondent is mischievously delaying Gupta Shivani 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 3 the grant of relief to the claimant and wasting the time of the Court. At this stage the application is not maintainable. The respondent's application is dismissed with costs of Rs. 1000/- and it is ordered that according to the order dated 26.2.2013 the order amount and cost should be paid immediately in the Court. The order was announced in the court.
Thereafter, an appeal was filed before the Appellate Authority against the initial order dated 26.02.2013 which had become barred by that time and an application for condonation of delay was also filed alongwith it taking the plea that another counsel had been engaged for setting aside the ex parte order but he had withdrawn that application and did not inform the company about the fate of the application and they came to know only when they received notice from the Court of CJM, Sonepat on 04.09.2013. The Additional District Judge, Sonepat dismissed the application for condonation of delay vide judgment dated 03.03.2014, which is now the subject matter of challenge apart from the earlier orders dated 26.02.2013 and 17.04.2013 passed by the Authority under the Act. The Additional District Judge noticed the history of the case and came to the conclusion that the appeal was not only barred by limitation but an effort to conceal the true facts had been made on behalf of the petitioner to harass the employee and misuse the process of Court and dismissed the application. The reasoning given by the Appellate Authority reads thus:-
"5. On perusal of application for condonation of delay the name of Manager, who was present on behalf of appellant has not been disclosed nor his affidavit has been attached that he was present on 10.01.2013 and his presence was not marked. No Gupta Shivani 2014.04.12 15:14 material has been placed by appellant to show that I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 4 appellant had protected against non marking of presence of its authorized representative to any authority at any stage. Perusal of order dated 17.04.2013 passed by Authority under payment of Wages Act further goes to show that application moved by Sh. Anil Kumar for setting aside ex-parte order was not withdrawn by Sh. Anil Ranga but was dismissed on merits finding the same to be an efforts to delay the proceedings. The said application for setting aside ex- parte order was dismissed by Authority under Payment of Wages Act with costs of Rs. 1000/-. It is therefore clearly made out that as far as ex-parte order dated 26.02.2013 is concerned same was within knowledge of appellant at least on 17.04.2013 when it had moved application for setting aside ex-parte order dated 26.02.2013. Even from 17.04.2013 filing of present appeal on 12.09.2013 is highly belated. The reasoning given by appellant that Sh. Anil Ranga Adv. had not informed regarding proceeding is totally without any merit, cannot be accepted in absence of any material to accept the same specially when appellant has given the facts wrongly by stating that Anil Kumar has withdrawn the same whereas application of appellant was dismissed with costs on merits. Present petition is not only barred by limitation but an efforts to conceal the true facts. Present appeal seems to be an effort on the part of employer to harass employee while appearing as per its choice and misuse the process of Court by moving repeated application for setting aside ex-parte orders.
Counsel for the petitioner has very vehemently tried to take this Court to the merits of the dispute and placed reliance upon the judgment of the Apex Court in A.V. D'Costa, Divisional Engineer, G.I.P. Railway vs. Gupta Shivani 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 5 B.C. Pagtel and another, AIR 1955 SC 412 and a Division Bench judgment of the Rajasthan High Court in Administrator, Krishi Upaj Mandi Samiti vs. Gauri Shanker, 1996 LIC 2759 to contend that the authority had no jurisdiction to adjudicate on the said issue since it was an issue of potential wages which is beyond the scope of Section 15 of the Act.
After hearing counsel for the petitioner, this Court is of the opinion that there is no merit in the present case. Firstly, a perusal of the written statement would go on to show that there was no such objection raised before the authority regarding the jurisdiction of the Court and, therefore, in writ Court, this plea cannot be accepted for the first time. A base had to be made before the quasi judicial authority on the basis of which, this Court would examine whether the order was justified or not.
That having not been done, it would not lie in the mouth of the petitioner to take this plea. The management rather did not deny the claim on merits and had taken the stance that the amount had already been paid and there was some misconduct on the part of the employee.
The judgment in A.V. D'Costa's case (supra) was where the workman was wanting wages on a scale to which he would have been entitled if he had been placed in a monthly wages scheme apart from the scheme in which he was working. It was in such circumstances the Apex Court held that he cannot claim higher wages and it would not be within the jurisdiction of the authority. Therefore, the said judgment has no applicability to the facts and circumstances of the present case.
The Division Bench also in Administrator, Krishi Upaj Mandi Samiti vs. Gauri Shanker's case (supra) placed reliance upon the judgment in A.V. D'Costa's case (supra) and it was held that the principle of 'equal Gupta Shivani 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 6 pay for equal work' would be attracted only when two sets of employees similarly situated and discharging the similar functions but yet are getting different scales of pay. It was held that daily wagers on temporary basis cannot be equated with permanent employees and, therefore, District Judge had committed illegality and irregularity in exercising the jurisdiction in passing the impugned order to make payment of salary.
As noticed above, in the written statement, no such pleas have been taken whether the workman was working on a different set or was a daily wager and was entitled for the said benefit.
Another factor which weighs with this Court, apart from the conduct of the petitioner-company which has been noticed above, is the wrong affidavit which has been filed before the Appellate Authority for condonation of delay in filing the appeal. The relevant part of the application reads thus:-
"3. That on 5.4.2013 the resonent/appellant engaged another counsel Shri Anil Ranga Adv. who filed application dated 05.4.2013 for setting aside the order ex parte, but the learned counsel withdrew that application and the counsel for the applicant kept the respondent under dark and did not inform him about the fate of application.
4. That the appellant came to know only on 4.9.2013 when he received notice from the court of learned Chief Judl. Magistrate, Sonepat regarding pendency of execution. Hence the appeal is being filed."
Thus, a reading of the above application, it is clear that a wrong plea was taken that the appellant only came to know about the order when it Gupta Shivani received notice from the CJM, Sonepat on 04.09.2013 and that counsel had 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 7 withdrawn the application without consent. The application was decided on merits as noticed above. The petitioner-company has time and again dragged the workman to delay the proceedings. The writ Court is a Court of equitable jurisdiction and a party who has soiled hands cannot come to this Court and claim any equity. The Apex Court in M/s. Prestige Lights Ltd.
vs. State Bank of India, 2007 (8) SCC 449 laid down the principles as to whether this Court should exercise its extra ordinary discretionary writ jurisdiction where the party does not disclose true and complete facts. In the said case, the company had approached the High Court by suppressing the fact of the legal legitimate dues of the bank which the bank was entitled to claim and shifted the machinery and materials without informing the respondent-bank prejudicially affecting the interest of the bank. The High Court had denied to entertain the claim of the petitioner-company, which order was upheld by the Apex Court by holding as under:-
"32. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
33. The object underlying the above principle has Gupta Shivani 2014.04.12 15:14 been succinctly stated by Scrutton, L.J., in R v.I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 8
Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words:
"(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts -
facts, not law. He must not misstate the law if he can help it - the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement".
34. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.
Gupta Shivani 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 935. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent- Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third party's interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent-Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant-Company.
36. For the foregoing reasons, we hold that by dismissing the petition in limine, the High Court has neither committed an error of law nor of jurisdiction. The appellant-Company is not entitled to any relief. Though the respondent-Bank is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has, therefore, no right to claim hearing on merits, we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent-Bank or the Gupta Shivani 2014.04.12 15:14 I attest to the accuracy and integrity of this document Chandigarh CWP No. 5917 of 2014 10 order passed by the High Court.
Accordingly, keeping in view the above principles, this Court is of the opinion that there is no scope for interference in the well reasoned order of the Additional District Judge and the present writ petition is dismissed without imposing costs since the private respondent has not been called upon though it is a case where costs should have been imposed in the opinion of the Court.
27.03.2014 (G.S. SANDHAWALIA)
shivani JUDGE
Gupta Shivani
2014.04.12 15:14
I attest to the accuracy and
integrity of this document
Chandigarh