Delhi District Court
Sh. Nitin Kumar vs M/S Nath Nissan on 5 November, 2016
IN THE COURT OF MS. ILLA RAWAT: POLCV:
KARKARDOOMA COURT: DELHI.
Old DID No. : 9/2014
New DID No : 686/2016
Unique Case ID No.02402C0021802014
In the matter of:
Sh. Nitin Kumar
S/o Sh. Rakesh Kumar
R/o 393, WZ Block,
Basai Darapur, New Delhi. .........Claimant / Workman
VERSUS
M/s Nath Nissan
Now known as Delight Honda
Through its Prop. / Director
A30, Mohan Corporative Industrial Estate,
Mathura Road, New Delhi. ........Management
Date of Institution : 16.01.2014
Date of reserving award : 05.11.2016
Date of pronouncement : 05.11.2016
AWARD
1 The claimant / workman filed his statement of claim directly in the
court (without reference of Industrial dispute sent by the government) on
16.01.2014stating that he was working under management as "Assistant Service Executive" since October, 2011 and that his last drawn salary was Rs.26,000/ per month. The claimant states that he requested management many times for his appointment letter but the management did not provide him the same and stated that his appointment letter was kept as a record in the file of DID No. 686/2016 Page No.1 of 12 the management.
2 He further stated that during the tenure of his service, he worked sincerely and honestly for the management and did not give any chance of complaint to the management but the management illegally and arbitrarily terminated the service of the claimant on 08.07.2012 without any notice and / or intimation and when the claimant raised an objection about his illegal termination and requested the management to reinstate him in his service, the management had him thrown out of its premises and extended threats to the claimant to implicate him in a false case if he came again to the management demanding for his reinstatement in service and backwages and / or one month salary.
3 The claimant further states that he filed a complaint dated 20.07.2012 before the Conciliation Officer but the management did not appear and thereafter the case has been referred to the Court on 27.05.2013. The claimant states that he is unemployed since the date of his illegal termination and prays that directions be given to the management to reinstate him in his services with continuity of service and full back wages.
4 A notice of the aforesaid claim was sent to the management. The management was served through its Receptionist as per process report dated 26.08.2014 for date of hearing of 11.12.2014 but since none appeared on behalf of management on 11.12.2014 and 02.03.2015 and the management was proceeded against exparte vide order dated 02.03.2015.
5 Thereafter the matter was listed for exparte evidence of the DID No. 686/2016 Page No.2 of 12 applicant / claimant. In order to prove his claim, the applicant examined himself as WW1. He filed his affidavit Ex.WW1/A wherein he relied upon documents Ex.CW1/1 to Ex.CW1/7. Document Ex.CW1/1 is copy of notice dated 14.03.2013 issued by DLC ; document Ex.CW1/2 is photocopy of cheque dated 16.05.2013 ; document Ex.CW1/3 is a complaint dated 20.07.2013 sent to AIG, MTC ; document Ex.CW1/4 is final report dated 27.05.2013 issued by DLC to the claimant ; document Ex.CW1/5 is copy of certificate of participation dated 29.11.2011 ; document Ex.CW1/6 is copy of bank statement dated 15.05.2012 of the claimant and document Ex.CW1/7 is the original postal receipt dated 17.11.2014. Documents Ex.CW1/1, Ex.CW1/2, Ex.CW1/3 and Ex.CW1/5 were deexhibited and marked as Mark "A" to mark "D" since applicant failed to produce original thereof.
6 No other witness was examined on behalf of the applicant / claimant and AR for applicant closed evidence on his behalf on 26.042016.
7 While the matter was at the stage of final arguments clarifications were sought from the applicant / his AR regarding the prayer of reinstatement in service with full backwages and benefits of one month salary incorporated in the prayer clause of the claim statement filed on behalf of the applicant / claimant. On 27.07.2016 the AR for applicant stated that in the statement of claim filed on behalf of the applicant / claimant prayer had been made for reinstatement in service with full backwages and other benefits and one month salary, however, the claim of the applicant / claimant had been registered under the Payment of Wages Act. He prayed that matter be proceeded with under the Industrial Disputes Act, 1947. He clarified that no other case had been filed by the DID No. 686/2016 Page No.3 of 12 applicant / claimant except the present case. He further prayed that evidence led on behalf of the applicant / claimant in the present case on 06.10.2015 be read as evidence led by him in the case under the Industrial Disputes Act.
8 In view of the prayer made by the applicant / claimant in his claim statement as well as after considering the statement made by his counsel on 27.07.2016, directions were given to register the present case as DID under the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act).
9 On the same day AR for applicant / claimant expressed his inability to produce typed copies of Mark "A", "B" and "D" and prayed that they be not considered while disposing of the case of the applicant / claimant on merits. The request made by learned AR for applicant / claimant was considered and it was directed that Mark "A", "B" and "D" would not be considered for final adjudication of the case.
10 Matter was thereafter listed for final arguments, however, the AR for applicant / claimant did not appear to address final arguments despite opportunities granted to him for the same. Hence I have perused the record for purposes of final adjudication in the matter.
11 In the present case, the application filed by the applicant / claimant is now to be treated as a direct claim (without reference of Industrial dispute by the appropriate government) filed before the Court.
12 As per the Industrial Disputes Act, 1947 (hereinafter referred to as ID DID No. 686/2016 Page No.4 of 12 Act, 1947), as it existed prior to 22.09.2003, the workmen were not entitled to institute their claim and to raise an industrial dispute directly before the Labour Court in Delhi and the only mode prescribed for them to approach the Labour Court was through conciliation proceedings and upon making over of a reference to the Court by the appropriate Government for adjudication and disposal of the claim of the workmen. However, later on an amendment was made in the ID Act by Delhi State (hereinafter referred to as the State Amendment) and Section 10 (4A) was incorporated in the Act and the same came into force w.e.f. 22.08.2003. The Section 10(4A) is as under : "10(4A): Notwithstanding anything contained in Section 9C and this section, in the case of a dispute falling within the scope of section 2A, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under sub section (1)."
13 Thus with the additional of Section 10 (4A) in the ID Act, by virtue of State Amendment, the workmen were entitled to file their claim directly in the Court within a period of 12 months from the date of communication of an order of discharge, dismissal, retrenchment or termination to them and the Labour Court was empowered to adjudicate upon the said claim in the same manner as an DID No. 686/2016 Page No.5 of 12 industrial dispute referred to it by the concerned Government.
14 Subsequently the Central Government also amended the ID Act and inserted Section 2A w.e.f. 15.09.2010, which is as under : "Section 2A of the principal Act shall be numbered as subsection (1) thereof and after subsection (1) as so numbered, the following subsections shall be inserted, namely: "(2) Notwithstanding anything contained in section 10, any such workman as is specified in subsection (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of three months from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court of Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it be the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.
(3) The application referred to in subsection (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in subsection (1)."
15 With coming into force of the aforesaid Central Amendment, it has now become mandatory, in the first instance, for a workman to, move an application before the Conciliation Officer of the appropriate Government for DID No. 686/2016 Page No.6 of 12 conducting of conciliation proceedings and only after lapse of 45 days from the date of his aforesaid application, he is entitled to file his claim directly before the Labour Court for adjudication and disposal of his industrial dispute. The words "notwithstanding anything contained in section 10" which form integral part of Section 2A clearly indicate that the said provision is mandatory in nature.
16 Although, learned counsel has contended that the direct claim filed by the workman is maintainable, the submission is apparently incorrect on the face of it. Rather the present case poses a situation of conflict between the two provisions of an Act, one enacted by the State Government and other by the Central Government, and the Court is duty bound to see whether the provisions thereof can be read harmoniously and only in cases where the same is not possible the question of prevalence of one over another would arise. In this context Article 254 of the Constitution is very relevant and it reads as under:
"254. Inconsistency between laws made by Parliament and laws made by the Legislature of States. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent list, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provision of an earlier law made by Parliament or DID No. 686/2016 Page No.7 of 12 an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
17 When repugnancy between two provisions is considered, issue arise is whether the provision of the State enactment though otherwise constitutionally valid, loses its validity because the Parliament has made an amendment with a conflicting provision on allegedly the same matter. In order to decide the question of repugnancy it must be shown that the two provisions are inconsistent and that they cannot stand together or operate in the same field.
18 This issue came up before High Court of Delhi in WP (C ) No. 220/2013 titled as Mohd. Arif Vs. Cardio Products Corporation and another, decided on 20.03.2015. In the said case the High Court of Delhi referred to judgment of the Supreme Court in case of 'Karunanidhi V. Union of India' 1979 AIR 898, wherein it was held that, "24 It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act DID No. 686/2016 Page No.8 of 12 and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied :
1 That there is a clear and direct inconsistency between the Central Act and the State Act. 2 That such an inconsistency is absolutely irreconcilable.
3 That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."
19 It also referred to the observations of Supreme court in case of 'Govt. of A.P. And Another v. J.B. Educational Society and Another', (2005) 3 SCC 212, wherein it was held that, " 10 There is no doubt that both Parliament and the State legislature are supreme in their respective assigned fields. It is the duty of the Court to interpret the legislations made by the Parliament and the State legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the nonobstante clause in Clause (1) of Article 246, the Parliamentary legislation would prevail notwithstanding the exclusive power of the State legislature to make a law with respect to a matter enumerated in the State List.
11 With respect to matters enumerated in the List III (Concurrent List), both the Parliament and the State legislature have equal competence to legislate. Here DID No. 686/2016 Page No.9 of 12 again, the Courts are charged with the duty of interpreting the enactments of Parliament and the State legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.
12 Thus, the question of repugnancy between the Parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, Parliamentary legislation will predominate, in the first, by virtue of the nonobstante clause in Article 246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's ascent prevails in that State; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation."
20 After referring to abovementioned judgments the High Court of Delhi held in case of Mohd. Arif (Supra) that :
"the repugnancy between Section 2A and 10(4A) ID Act satisfies the three conditions laid down in 'Karunanidhi V. Union of India' (Supra) and therefore applying the principles enumerated under Article 254 of the Constitution in the light of 'Govt. of A.P. V. J.B. Educational Society' (Supra), it is beyond any reasonable uncertainty that Section 2A ID Act (introduced by Central Amendment Act 24 of 2010) shall prevail over Section 10(4A) ID Act (introduced by State Amendment Act)."DID No. 686/2016 Page No.10 of 12
21 It further observed that :
"Section 2A ID Act begins as, "(2) Notwithstanding anything contained in Section 10 ........" which implies that this Section has an overriding effect not only over the provisions of Section 10 ID Act but also its State amendments. And held that it is beyond any cavil that the Central Amendment Act inserting Section 2A has an overriding effect over Section 10 (4A) not only because the former is a Central Amendment that has been given effect to from the year 15.09.2010 (i.e. 7 years from the date of Delhi State Amendment of
22.08.2003) but also because of usage of the words 'Notwithstanding anything contained in Section 10."
22 In the instant case the claim of the applicant / claimant, which was original registered under the PWA, was not maintainable as he had stated that he was drawing a salary of Rs.26,000/ per month whereas the maximum limit of salary for preferring a claim under the PW Act is Rs.18,000/ per month as per notification No.SO22CO(E), dated 11.02.2012. Further pursuant to consideration of the claim of the applicant / claimant as a direct claim under the ID Act also, direct claim filed by the workman is clearly not maintainable in view of the amendment to Section 2A of the I. D Act, since certificate from Labour Department u/s. 2A of the ID Act has not been filed by the claimant / workman for preferring a direct claim before the Court. Moreover claimant has mentioned in Para 8 of his claim petition that concerned Conciliation Officer had referred the matter to the Court on 27.05.2013. If at all a reference has already been made with respect to industrial dispute raised by the claimant then in such an eventuality also the direct claim filed by the claimant would not be maintainable. The direct claim filed by him is accordingly dismissed as not being maintainable.
DID No. 686/2016 Page No.11 of 12A copy of this award be sent to the appropriate Government for its publication as per rules.
Announced in the Open Court (ILLA RAWAT)
On 5th November, 2016 POLCV:KKD:DELHI
DID No. 686/2016 Page No.12 of 12