Delhi High Court
Director General Of Works Cpwd, ... vs Sh.Daya Shankar Prasad on 14 January, 2009
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) NO.12178/2006
% Date of Decision: 14.01.2009
DIRECTOR GENERAL OF WORKS CPWD, NEW .... Petitioner
DELHI
Through Mr.R.N.Singh, Advocate
Versus
SH.DAYA SHANKAR PRASAD .... Respondent
Through Ms.Renu Verma, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether reporters of Local papers may be
allowed to see the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in
the Digest? NO
V.K.SHALI, J. (Oral)
CM No.418/2009
1. This is an application filed under Section 151 of the CPC seeking
recall/amendment of the order dated 8th February, 2008 passed in CM
No.8991/2007 by virtue of which the application of the
respondent/workman under Section 17-B of the Industrial Disputes
Act, 1947 was allowed the petitioner was directed to pay last drawn
wages or the minimum wages whichever is higher to the
respondent/workman within a period of eight weeks.
2. Briefly stated that facts of the present case are that an award was
passed by the Labour Court in ID No.50/1996 on 23rd February, 2005
directing the reinstatement of the respondent/workman with effect from
27th August, 1994 without back wages though he was granted the
benefit of continuity of service. There is no dispute that the
respondent/workman was working as a driver. The writ petition was
filed by the petitioner against the award on 29th May, 2006 which came
up for listing for the first time on 1st August, 2006. On the said date,
the operation of the impugned ward was stayed subject to the petitioner
depositing a sum of Rs. 5,000/- with the learned Registrar General of
this Court by way of litigation expenses which was to be released to the
respondent/workman.
3. The respondent/workman filed an application on 6th July, 2007
under Section 17-B of Industrial Disputes Act, 1947 claiming that he is
unemployed. No reply to the said application was filed. This Court
vide order dated 8th February, 2008 passed an order directing the
petitioner to pay the last drawn wages or minimum wages, whichever is
higher with effect from 23rd February, 2005 that is the date of award
within eight weeks. The petitioner was further directed to pay the last
drawn wages or minimum wages to the respondent/workman for each
successive calendar month on or before 10th of each succeeding
calendar month. This order was not complied with by the petitioner.
4. On 21st August, 2008, the learned counsel appearing for the
petitioner requested for some time for compliance of the aforesaid order.
The Court granted further time of four weeks for the purpose of
compliance, failing which a peremptory order was passed that in default
of payment the writ petition shall be dismissed for non-prosecution.
5. Now the petitioner on 7th January, 2009, that is almost after the
expiry of 11 months, from the date of passing of the order, has filed an
application seeking recall/amendment of the order passed on 8th
February, 2008. In this application, the petitioner has alleged that the
respondent/workman was gainfully employed after the impugned order
having been passed on 23rd February, 2005 with some of the
contractors whose names are given as M/s Swastik Enterprises, Kalu
Sarai, Hauz Khas, New Delhi and M/s Profile Consultants & Engineers,
A2, New Seelampur Delhi 42 for the various period as Driver and was
getting wages. Along with the application, a letter dated 19th August,
2008 purported to have been issued by the Executive Engineer, ED-IX,
CPWD and photocopies of the log books purporting to in prima facie
proof of the respondent/workman being employed are annexed.
6. I have heard the learned counsel for the parties and perused the
record. I feel that filing of the present application is not only is gross
abuse of the processes of law but it also in effect trying to have a second
round of arguments, so far as the adjudication of the application of the
respondent/workman under Section 17-B of the Industrial Disputes
Act, 1947 is concerned. Even the bonafides of the petitioner in moving
this application is suspect. This is on account of the fact that not only
the order dated 8th February, 2008 was not complied within the period
stipulated originally by the Court, but time was consciously sought on
21.08.2008 for compliance which clearly shows that till that time the
petitioner had all intention of complying with the order. If the petitioner
was sincere and having bonafide intentions of bringing the factum of
the respondent/workman having been employed after the passing of the
award then they ought to have first complied with the order and then
sought modification or amendment. Further, in terms of order dated 8th
February, 2008 by the Court as the respondent/workman was to give
an undertaking for refund, if he failed in the writ. Since this has not
been done, I feel that this is only a ploy to re-agitate the entire matter
with regard to the disposal of the application under Section 17-B in
favour of the respondent/workman.
7. In view of the aforesaid facts, I am of the considered opinion that
there is no ground for recall/amendment of the order dated 8th
February, 2008 passed by this Court granting the minimum wages or
last drawn wages whichever is higher to the petitioner for the period
stated therein and since there is a peremptory order to the effect that in
case this order is not complied, the writ petition shall be treated as
dismissed for non-prosecution, this Court has no opinion but to dismiss
the present writ for non-prosecution in terms of order dated 21st
August, 2008. Ordered accordingly.
File be consigned to the Record Room.
January 14th , 2009 V.K.SHALI, J.
RN/RS
