Karnataka High Court
M/S International Travel Service vs Sri A S Devaraja on 31 August, 2009
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
AND:
kuuun'
IN THE HIGH" COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 318T DAY OF AUGUST 2oo9_,.V'_D
PRESENT
THE HON'BLE MR. JUSTICE V. QQPAI.A--Goi1ijzDA'~::: u
AND
THE HGNBLE Dr. JUSTICE K, B1~:}x;;i'1--r,Avt:x'i':=sg~;Ig2_$; 1.
WRIT APPEAL No.258é'/..é00_9 (LLRES1
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BETWEEN: H
M/slnternational T!"'1'aVS~73tI- Seririce, A V
By its Pr0prietor;Wé:St Ielotei';
Race Course Road» --I ' *
BangaI0re--560..0O1.,p_" "
Rep. by its I'ropI'iet.0r_, _ .
Mr.Chetan D_as;. ' . ' ' ...APPELLAI\}"I'
[By M/s.S.N.MinjthyVAssDttates'i»E.Ae1Vs.)
Sr7i.A.S3'.«De'v"31\f3'a1'.'e'...4 A' ' ~..
S / 0.1-a te' Cphoizariiappgi; 'V
_ 'B'_Biock, --. *
Jayarajaizagar, 'V
~ Ulsflor, V .\
_B2t:1gal(31f_e. ...RESPONDENT
V" '-- (By_ 'S1ftit.'A.J'.Srinivas, Adv.) Vt writ appeal is fiied under Section 4 of the Karnataka ._High Court Act praying to set aside the order passed in the writ petition N0.623-4/2006 dt.23.6.2O09V i\/Iisc.W.8484/2009 is filed u/s.15l of CPC praying to stay the Application No. 12/ 1995 passed by the Labour V--'"C_3ourt. Bangalore at Ann--C in W.P.No.6234/2006.
These cases coming on for preliminary heari1¥g,--..+¢hi-is_ GOPALA GOWDA, J., delivered the following:--
The correctness of the order._:of.ypthe.V"iearnyed: Judge"
dated 23"' June 2009 passed 'Petition*1\1o..E3§34/2006 (L-RES} in affirming the orderlof' in Application No.12/1995 dated .vl4};O2_.2Of:Jt3V'is'::§livai'}.é1i.ge.d "ens appeal by the appeliant urging if' A
2. golflvlitigation between the parties in the initiated by the appellant regarding the cornputation. offfmonetary benefits claimed by the 1-Workman a'u;rf1der-- A. the difference of minimum wages, leave with wages"andthegjbonusyaiong with interest at 6% p.a. The ground of
-- V....'»attac}§ Vhthev.i.rnp__ugned order passed by the Labour Court in this
-..lff3.aippeai is that; the claim made by the workman before the Labour iisfbarred by limitation prescribed under the Minimum . Act and Payment of Wages Act and Payment of Bonus Act of Therefore, an application filed by him under Section 33(c}(2) of the industriai Disputes Act (h r called as «1.D.AQt= in 3 short) is not rnaintainable in law as the dispute between the appellant and the employee was required to be determined in a competent industrial dispute to be referred by the --,__State Government in exercise of its power under Section he I.D.Act on raising the same before the conciliation,'loffifzern"
has not been done by the workman in "lltierefi'orell it ' the learned counsel for the appellant su'omit_As"tVhat*.on alone, the order impugned in the petition andllafiiijrzed by the . C' learned single Judge, which is impi.1§'r:ed'=.i_n thisrwritpppvappeal are liable to be quashed and set aside, this Court.
3. Learned co_un:se.1_ foijthe 'a;.§p.§1iaL:u; submits that the respondentflis -snot Vernitledipllfoihleave with wages as there is no record produced by him.l'i:iefore.»i.the Labour Court to show that he had notjaiiailed th.e.l_pl:same. Therefore. he is entitled for the llriionetarsr benefitsfor the work rendered by the appellant during the Labour Court has not considered the H question"--oi' l:i'rn1tati0n in maintaining the application under Section C' " v33{.c)(§Z], of the :I.D.Act and passed the order, which order is affirmed single Judge by assigning erroneous reasons, which are not C Spurs-tainable in law.
\/ U1 delay of 7 years, reference of dispute to Court/Tribunal cannot be made.
5. The aforesaid contentions are seriously disputiedp ~ learned counsel for the respondent conten.di'ng-- .that the'differ'ence if of minimum wage, leave wage and payinerit "of bonus monetary benefits payable by the tothe same was not paid and therefore, ari"applie.ation "under; Section 33[c](2] was filed by him before' the computation of the same and the Labour Court, vide its the application of the respondentt;"iwh;i'ch the Vsubjeethhrrfatter of the writ petition before this some in i'~I'o.50065/2003. This Court, after hearing privvallflelfgal "e:o'ntentions urged on behalf of the parties, quashed'-.t,he order of the Labour Court vide order dated £».epte*rrlber 2005 and the matter was remitted back to the Labour reconsideration and to dispose of the same liu._g.in'accordanc'e. law and liberty was given to the parties to lead eiiidence and also kept open the contention urged by the appellant' regarding maintainability of the application filed before it ' C the'"Labour Court.
NZ
6. With reference to the above said legal contentions urged on behalf of the parties, we have carefully examined the sameiiyith a View to find out whether any substantial question of lawn"
arise in this appeal for our consideration and therefore; 'theiorders of the Labour Court and the learned siniglelildlludge interference in this appeal.
7. The aforesaid point requirieud..:_to.y_be 'answered in the negative for the following reasoiisf _ It is an undispul;ed fact_:.'that'~l.f'ljfrom? vl0.€)2.1980, the respondent/workman-""»has7»._ an' office boy in the appellants e13tab1iAshmventl€~andihe retired from service in the year 1995. He filed'anapplication"under Section 33[c)(2} of the I.D.Act before the Labour V_Cou'1ft Aimrnediately after his retirement for 'I:1onetary--...b.enefits due to him from his employer. Heb'haslbe.eri._agitating for his rights for the last 14 years to get blunder the payment of Minimum Wages Act, _fi>_i.Lea.ve Wages Act and the Payment of Bonus Act, which .V:Iv)"I".'dx'v'iSlL')'1'1.$ of the Acts are made applicable to the aplpeli-ant'/'employer in Karnataka State with effect from 1976 as ' die"State Legislature had the power to amend the Act to make the provisions of the Payment of Bonus Act applicable to an \\./ establishment where lesser number of workmen than the number of workmen stipulated in the Central Act who are workiI1'gl"in industrial establishments.
The claim of the respondent before tl1e'La.b0ur application was regarding 6 items. Out 'loniy _th.r:eep are accepted by it and directed the led1--fii3'1.Qyerdtc.payp_thed"difference of minimum wages. leave with wages of for the period for which he has claimed --..1p this case, the contention urged by appellant before this Court is séic}(2} of tile I.D.Act is not maintai'nablel.Ain.'law; upon the decision of the Supreme c<lu_;~t' 7 (1) sec 235 (MUNICIPAL CORPORATION RAZAK AND ANOTHER) in support Labour Court has no jurisdiction. it cannot.ladjudicate_th.e dispute of entitlement or basis of claim of 33(c}(2] of the l.D.Act. Reliance placed upon thedéllabdyesaflild decision by the learned counsel Mr.Somahekar =wllislllcyrnispiacedlll for the reason that Section 3-3(c}(2] of he l.D.Act c--or.1templates that the workman can file an application before the ' Jurisldictional Labour Court for computation of the monetary benefits due to him from his employer. The minimum Wages NZ notification issued under the Minimum Wages Act is applicable to the appellant/employer is not in dispute. He is also entitled forthe monetary benefits, leave with wages from the date of claim ., finding of the Labour Court on application of evidence it assigning valid reasons. The same is by learned Judge.
\8. The learned counsel for thell"-appellant Lconteriids that Section 15(7) of the ;_S3hops...A"'~and Commercial Establishments Act, 1953 anvd»V-riiles 'frame'd'vVthe'rV'eunder sate that an employee is entitled forward m'a'xim.1.:1m leave of 30 days to the next year and in'-atximiiinilelacashineinof leave can be only for 30 days and lf:_otl'2_4;O clainied by the workman.
9. opabovelasaid contention of the appellant is wholly for thelllrelason that the employer has produced docurnerits' the}~Labour Court for the period in question and llllllllthere is no en.tryl':inllthe said records to show that the Workman has the .leave for which he is legally entitled to under the Shops and Commercial Establishments Act, 1963 and K Therefore. the workman is entitled to claim the monetary "benefits under the Act for the unavailed leave period. The V contention of the learned counsel for the appellant is not \\»/ applicable and is wholly untenable in law in View of the State amendment to the Act, stating that the Act is applicable vtoljthe Payment of Wages Act is made applicable to "
establishments in Karnataka in which 10 or lparevf employed by the employer. In this case, if-.Nh_() "is before the Labour Court has categorieally admitted f'cros"s« examination that there are 15 the appellant / employer. The reoiuired to be paid under law has not The same has been computed favour of the respondent.
10. ----lirn'itation raised by the learned counsel for the uappellant first time in this appeal, in the eailier petition' "proc_eedings referred to supra filed by the workm.ai1--. as» ,tl1e'lZ._ai3-our Court has rejected his application and he ...__had challengledfthe'[same before this Court. The same is quashed H,._by.this and remitted back the matter to the Labour Court liberty to the parties to adduce evidence on merits. That _orfcler"§attained finality. Therefore, there is a deemed condonation if A A delay in filing application, if any, either under Section 33{c)(2) or \/ 10 under the provisions of Minimum Wages Act and Payment of Bonus Act.
11. Even assuming that the question regardinglllliniitation:0' . raised in this appeal is tenable, in viexy of the' V Limitation Act and in the absence of period of-liuiitaition under Section 33[c]{2] of the I.D.Actj -then i1*.1_wt~. con.sivder<_t_hatT§ the period of limitation as specified in the 'schedule toithe In View of the decision of the Apex 2000 SC 2306 {STATE or BIHAR vp/_s. KAMEsH\fi?_Ai§ SINGH AND ANOTHER], the de1ay4lii?l'any::'--iniiilingj'thexlapplication has to be condoned. mixed question of fact and law, the up this plea before the Labour Court toafpacililtate"line:-~'en1p1oyee to file an application seeking to the "de1_5;t_y,vif any, and adduced evidence in this regard' *view_vofythe"'fa_ct that the applicability of the provisions of Lin1itati;on.VAc't--. are it not expressly under the provisions of the l'31_.D.AVct. 'l*i1«;re§fp1ée"; Section 29(2) relating to applicability of the .1 othere.p"1ovi_sions of Sections 3 to 28 of the Limitation Act are to the provisions before the Labour Court also.
" In this View of the matter. the employee has the right to ufiplle an application seeking for condonation of delay in the \/ mqfi 11 proceedings before the Labour Court. Since the same is not raised before the Labour Court, after lapse of 14 years, we cannotpermit the employer to urge this ground. Even if it is urged, ltiae decision reported in STATE OF BIHAR V/s.
SINGH AND ANOTHER [AIR 2000 sc;'2'30e}.,A1§qhere:ii1'<_the*--Apex Court considered its earlier decision reported'--i_r1 (COLLECTOR, LAND ACQUISITION;--a'NANT§§T:*.G'ads', i\}tsT;'K2\T1J1j"
laid down the law regarding :"the po'.7vers_:'olfll"tl'_1e Cour'ts to condone the delay, the contentions uraedliiilthisfregard» wholly untenable in law. The re1eva.ntl froIn'_--.the "above Judgment is extracted as her€"?ti11"(l*3\r:»~- 'V Q it to condone the delay in applifoachinglytlie been conferred upon the to._e:2ab3lel..'i' them to do substantial justice to "parties by disposing of matters on p ..pThislWWClourt in Collector, Land inTAcquisitliori,~--.Ananthnag v. Mst.Katiji (198?) 2 1987 so 1353) heid that the "'expr.__ess,io'n 'sufficient cause' employed by the legislature in the Limitation Act is adequately it I l'e.iastic to enable the Courts to apply the law in a V llrneaningful manner which subserves the ends of justice that bei 1ife purpose for his 12 existence of the institution of Courts. It was further observed that a liberal approach is. adopted on the principle as it is realized that:
Ordinarily a litigant does not stand to benefit». in lodging an appeal late.
Refusing to condone delay meritorious matter beingthrpwn o'.1_t"at th.e"VeryV_ threshold and cause of justicerbeing defeaitet-1. against this when delay isge.eond_:oned_ the highest that can happen V is lllthat ivcausxavxould be decided on merits aftergheanvngtp Everydaysv delay must be does not mean tha't1a.__pe.da_ntic_approacliyshould be made. i'nOtV.:"levelryj =.houp1"«'.s' del':1y,": every second's dela__y'?._ The"".Boctn'nveg'l'n_1us-t be applied in a rational "com1nonfs--en'se . p1*agmatic manner. When l""substai1tia.l Vjlustice and technical _.cl3_nsiderationa.Varey. pitted against each other, 'A ojfgsubstantial justice deserves to be __.prefe1*1jedl'1b.ru_i;he other side cannot claim to have it A yested in injustice being done because of a rion-'deliblerate delay.
Theie is no presumption that delay is e._po4ccasioned deliberately, or on account of culpable negligence, or on account of mala fides. 13 A litigant does not stand to benefit by resorting H. to delay. In fact he runs a serious risk. l
6. It must be grasped that judiciary is respec.pt.§;'L-4;,'V':-ell.
not on account of its power to legalise injasticellpil' on technical grounds but because it is * removing injustice and is expected to'd_o's_o;:'l" ' "
13. Further applying theFlpr_1'.nciplcs' laid lliliffilli. Supreme' Court in the case of LTD., V/s.GUJARAT STEEL OTHERS) reported in AIR 1980 SC exercise the power of the Labour gdndone if any, to entertain the application I.D.Act by it.
14. Tf1.,3 "held that on the basis of the claim of the respondent the appellant/employer on the grounds.»r§efen:ed to l's"upra___and also alternative plea of the employer tl'1at»the--. Cvl2:11'i'1'1«.Q'f :tl~;.e_ respondent is settled, is rightly not accepted by recording its reasons. The Labour Court has recorded*--VAa finding of fact on the contentions points that arose wiproceedings and partly allowed the claim in respect of It payment of difference of minimum wages, leave with wages and the V l along with interest at e monetary claim of the 14 respondent was sought to be disputed on the various technical plea of limitation disputed for the first time in this appeal;.._'»_l'Tl'he same is rejected by us for the reasons stated.
15. The finding of fact recorded by the Labour the"
question of monetary claim on the aforesziid..:'heads~ the employer is affirmed by the lea1*necl':single Judge and ; declined to exercise his diseretionaryhzidsupervisory jurisdiction and power to interfere order of the Labour Court. Therefore, We do notified appeal. Appeal is devoid of merit,' to be dismissed and accordingly, lit. V
16. the learned counsel for the appellants are contrary-v__ documentary evidence produced before th'e5'«:Labour Couit.....which may warrant to impose exemplary costs'. V' "
have dismissed the appeal, we direct the
-..7fem_pl~oyer to deposit the entire amount awarded by the Labour w1fth"p_'interest within four weeks from today before the Labour . Eto facilitate the res to withdraw the same. 15 Otherwise, it shall carry interest at 12% p.a.. on the amount ordered in favour of the workman.
Since we have dismissed the appeal, stay does not survive for consideration axnti' the s:§1me.ié'dis1i1iSSeda.