BALA DEVI & ORS vs HUKUM CHAND
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 14th March, 2024
+ W.P.(C) 7431/2016
BALA DEVI & ORS ….. Petitioners
Through: Mr.K.K. Malviya and Ms.Aroosa Nawaz, Advocates for P-2
versus
HUKUM CHAND ….. Respondent
Through: Ms.Divya, Advocate
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of petitioners seeking the following reliefs:-
a) set-aside the judgment & order dated 25.02.2016 passed by the Ld.Court of Sh.K.R.Verma-Authority;
b) call for the record pertain to the case;
c) pass such other and further order/ orders as this Hon’ble Court may dim fit and proper in the interest of justice.
2. Learned counsel appearing on behalf of the petitioners submitted that the respondent, i.e., the applicant before the Court of Sh. K.R. Verma Authority (Under Shops & Establishment Act, 1954) (North-West District), Labour Welfare Centre, Nimri Colony, Ashok Vihar, Phase-IV, Delhi-110052 (hereinafter learned Authority/Court below) had filed a claim under the Delhi Shops & Establishment Act, 1954 (hereinafter the Act) regarding non-payment of earned due wages by the petitioners herein.
3. It is submitted that in the above said claim, the learned Authority passed the impugned order dated 25th February, 2016, in favour of the respondent herein, whereby, the petitioners were directed to pay Rs.68,000/- as due earned wages and Rs.2,000/- as penalty/compensation to the respondent for not making payment of dues and withholding it illegally.
4. It is submitted that the impugned order is bad in law since the same has been passed without taking into consideration the entire facts and circumstances of the case.
5. It is submitted that the learned Authority failed to appreciate that the claim petition filed by the respondent under the Act is not maintainable and liable to be rejected on the count that the respondent failed to establish that the petitioners are management.
6. It is submitted that the learned Authority erred in observing that the petitioners owned a shop and that the respondent is a workman working since the last 10 years as the same has not been substantiated by any documentary proof.
7. It is submitted that the learned Court below failed to appreciate that the respondent is an educated person claiming to be a retired police officer having its own residential accommodation whereas the petitioners are daily wage labourers staying in a rented accommodation having only one room.
8. It is submitted that learned Court below failed to consider the oral submission made by the petitioners in respect of their status as labourers and that the claim of the respondent is frivolous and misconceived since the petitioners never owned a shop.
9. It is submitted that the learned Authority erred in observing the claim of the respondent of Rs.10,000/- as his last drawn salary without examining the fact that there is no management namely M/s Flowers & Flowrs Garland Decoration Works & Services and M/s Raju & Sons allegedly owned by the petitioners.
10. It is submitted that the impugned order passed by the learned Court below is based on conjectures and surmises, and there is no documentary evidence showing that the petitioners as management and respondent working as a clerk/field worker.
11. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the reliefs be granted as prayed.
12. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being devoid of any merit.
13. It is submitted that the impugned order has been passed after taking into consideration the entire facts and circumstances available on the record and there is no illegality or patent irregularity thereto.
14. It is submitted that the respondent was under the employment of the petitioners as a clerk cum field worker since the year 2000 and had filed his claim for the payment of his earned wages for the period of 1st July, 2013 to 24th January, 2014 along with over time and leave encashment after his illegal termination by the petitioners on 24th January, 2014.
15. It is submitted that the respondent was employed under the petitioners and even though he demanded the appointment letter numerous times but the petitioners never provided him with it and denied him other legal facilities, and due to the same, the respondent filed an industrial dispute claim vide case bearing ID No. 77/2012, which is pending for adjudication.
16. It is submitted that the present petition is a misuse of law since sufficient opportunities were provided to the petitioners to defend their case despite which the petitioners failed to raise any objection or adduce their evidence in time.
17. Therefore, in view of the foregoing submissions, it is submitted that the instant petition is liable to be dismissed.
18. Heard learned counsel for the parties and perused the record.
19. The case of the petitioners is that the learned Authority has erred in passing the impugned order since it failed to appreciate that the respondent was not under the petitioners employment and in this regard the respondent failed to produce any documentary evidence. Furthermore, the petitioners have contended that they had made oral submission before the learned Court below to the effect that the claim of the respondent is frivolous and misconceived as the petitioners never owned a shop but the same has not been considered by the learned Court whilst passing the impugned order. It has been also contended that there is no management namely M/s Flowers & Flowrs Garland Decoration Works & Services and M/s Raju & Sons as has been alleged by the respondent.
20. In rival contentions, the respondent has denied the arguments advanced by the petitioners and has submitted that there is no irregularity in the impugned order and the respondent had sufficient opportunities to address his objections, however, it failed to do so. Therefore, the respondent prays that the present petition be dismissed.
21. In view of the above submissions, the issue before this Court is to decide as to whether the learned Authority rightly adjudicated the issue in favor of the respondent and therefore awarded due earned wages to the respondent.
22. The relevant extracts of the impugned order are as under:
….2. That the copy of the claim petition was sent to the respondent/ management alongwith summon with the direction to appear and file the written reply. The respondent no.2 appeared on 30.05.2014 and sought time for filling reply which was allowed and the matter was fixed for 25.07.2014 but thereafter, any of the managements neither appeared nor filed any reply inspite of affording sufficient opportunities by fixing various dates for hearing in this matter. Therefore, in view of above circumstances and regular absence of respondents, having no alternative on 22.09.2014, the matter was proceeded ex-parte against the respondent by the then Authority and the matter was fixed for claimant evidence.
4. That the claimant filed his evidence by way of an affidavit dated 04.02.2015 exhibited as WW-1/A which he tendered on 04.02.2015.That claimant also produced /filed the document in support of his claim / statement i.e. copy of demand notice , copy of special power of attorney , copy of temporary admit card issued by Honble High Court of Rajasthan, copy of bus & rail ticket copy of prepaid taxi challan, copy of entry pass, copy of letter dated 01.12.2014 etc. which are exhibited as Ex WW-1/1 to WW 1/17. Further, in his affidavit, the claimant has mainly reiterated the facts of his claim application and has alleged that the management intentionally did not pay his due earned wages. The claimant side, orally argued the case and also filed written arguments which are taken on record .
5. That after examining the pleading documents and hearing of arguments in this case, it has been established that the claimant was in the employment of respondent management. In view of the foregoing discussions facts circumstances and documents filed by the applicant, there nothing on record to disbelieve his unchallenged and unrebutted statement/ evidence of claimant and therefore proved that he was in the employment of respondent management. Further since the respondent management opted not to defend itself. This authority have on alternative but to believed the facts of the claim petition of the claimant and presume that he is not paid the wages for the period from 01.07.2013 to 24.01 2014 by the respondent management. There, the applicant/claimant is entitled to receive the amount of 68,000 @ 10.000 per month from the respondent management no 1 and 2 jointly or severally as earned wages for the period under claim.
6. That however, the claimant could not establish file any documents as far as his claim for overtime and leave encashment is concerned, the claimant failed to file any documentary proof to prove the same and or otherwise also the provisions of the delhi shop & Establishments Act, 1954 empowers this Authority only to deal decide the matters of earned wages as such, the demand claim for overtime and leave encashment is rejected / disallowed.
7. That as discussed above it is held that applicant is entitled to receive the above payment of due earned waged under the shops & Establishments Act 1954 Therefore in exercise of power conferred upon this authority by Sub section 3 of section 21 of the Act, Respondent Sh./Smt. Bal Devi, Bhagwan Das, Raju Devender, Puran Singh, Proprietor/Partners, M/s. Flowers & Flowers Garland Decoration Works & Services and M/s.Raju & Sons, 530, Prahaladpur Road, Khera Khurd Village, Delhi-110082 are hereby directed to pay the applicant jointly or severally his due earned wages decided above i.e. Rs.68,000/- alongwith penalty/ compensation of Rs.2,000/- for not making the payment of due earned wages and withholding the same illegally. The respondent shall make the payment of earned wages alongwith compensation totalling Rs.70,000/- within 30 days from the date of this order, under intimation to this Authority failing which proceedings to recover the same shall be initiated as per the provisions of Section 21 of the Shops & Establishment Act
23. Upon perusal of the extracts of the impugned order, it is made out that a copy of the claim petition of the respondent along with the summons dated 12th August, 2014, was sent to the present petitioners and they were directed to appear and file their reply. Thereafter, the respondent no. 2, i.e., the petitioner no. 1 herein, appeared on 30th May 2014 and sought time for filing reply which was allowed and the matter was fixed for 25th July, 2014, however, the petitioners herein, i.e., the management did not appear in the subsequent hearings.
24. In view of the non-appearance of the petitioners before the learned Authority, the matter was proceeded ex-parte on 22nd September, 2014. Thereafter, the learned Court recorded the evidence, wherein, the respondent filed his evidence by way of an affidavit dated 4th February, 2015 exhibited as WW-1/A and produced a copy of the demand notice served upon the petitioners, copy of a letter dated 1st December, 2014 etc. (Ex WW-1/1 to WW 1/17.
25. After the examination of the pleadings and evidence, it was held that the respondent was in employment of the petitioners management and since the same was neither rebutted nor challenged by the petitioners, therefore, it was taken as a proven fact considering the no-objection on behalf of the petitioners management.
26. Accordingly, it was held that the respondent/claimant was entitled to the earned wages for the period from 1st July, 2013 to 24th January, 2014 and therefore, was awarded the amount of Rs. 68,000/- as due earned wages and Rs. 2,000/- as penalty/compensation for not making payment of dues and for withholding the same illegally.
27. Upon perusal of the records, this Court is of the view that after the passing of the impugned award, the respondent/claimant, had initiated the proceedings for execution of the impugned award where warrant of attachment dated 25th May 2015, under Section 21 of the Act, was issued by the Chief Metropolitan Magistrate, North District, Rohini Courts, Delhi, against the present petitioners. It is only after the issuance of above said warrant, the petitioners filed the application for setting aside/modification of the impugned ex-parte order on 12th July, 2016 which the learned Court dismissed stating that it did not have the power to review its own order.
28. At this stage, this Court deems it appropriate to reiterate the extent of powers of this Court under Article 226 of the Constitution of India. Under the said provision, the writ Courts have to be hyper vigilant while exercising its writ jurisdiction since the same is to be invoked only upon special occasions and in exceptional circumstances. The said extraordinary remedy is invoke to supplement the deficiency in law, if any, and cannot be invoked as an appellate mechanism against the decision of any Court, Tribunal, or Authority which is exercising a statutory power. The writ power is an invincible weapon in cases, where there is a failure of justice or exercise of power in an illegal way or arbitrary manner.
29. A writ is issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals and such errors mean where orders passed by the Courts below or Tribunals are without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction.
30. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is against the principles of natural justice. In any case, it has been held time and again in a catena of judgments by the Honble Supreme Court as well as this Court that a writ Court cannot re-appreciate the evidence of proceedings of a lower Court.
31. Now adverting to the facts of the instant matter, the petitioners have argued that they did not own any shop and that the respondent was not an employee. In light of the observations made herein above, this Court does not find any merit in the said contention as the same seems to be merely an afterthought to avoid their liability of paying the dues of earned wages to the respondent. Also, the petitioners have not produced any evidence to substantiate their argument.
32. Moreover, the petitioners have not denied the fact that they were given sufficient opportunity to present their defense, therefore, no illegality of any kind is apparent thereto. In light of the same, the petitioners, at this stage, cannot seek interference of this Court when they themselves did not remain vigilant towards the legal proceedings initiated against them despite the fact that they were very well aware of the said proceedings.
33. Considering the above, this Court is of the view that the learned Court below took into account the entire facts and circumstances available on its record and passed the impugned order. This Court is also of the view that the present case is merely a misuse of process of law and an attempt on behalf of the petitioners to evade their liability against the respondent by illegally withholding his dues.
34. Therefore, it is held that there is no merit in the contentions advanced by the petitioners and the same are rejected. Since, the petitioners have been unable to make out a case to invite the interference of this Court under Article 226 of the Constitution of India, the instant petition is liable to be dismissed.
35. In view of the foregoing discussions of facts and law, the impugned order dated 25th February, 2016, having reference bearing no. S&E/46/NW/2014/525-26, passed by the Court of Sh. K.R. Verma Authority (Under Shops & Establishment Act, 1954) (North-West District), Labour Welfare Centre, Nimri Colony, Ashok Vihar, Phase-IV, Delhi-110052, is, hereby, upheld.
36. Accordingly, the instant petition stands dismissed. Pending applications, if any, also stand dismissed.
37. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
MARCH 14, 2024
dy/ryp/av
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W.P.(C) 7431/2016 Page 1 of 11