Mi2C Security & Facilities ... vs Government Of Nct & Ors.
2013 Latest Caselaw 5902 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
     +      REV. PET. 646/2013, C.M. APPL.17145/2013 & 17193/2013
                            IN W.P.(C) 4056/2013

                                                           Dated: 20.12.2013

         MI2C SECURITY & FACILITIES PRIVATE LIMITED
                                                            ..... Petitioner
                       Through : Mr. Rajesh Gogna and
                                 Sh. Anupam Kumar Jha, Advs. for
                                 petitioner in writ petition and
                                 respondent in review.

versus

GOVERNMENT OF NCT & ORS. ..... Respondents Through : Mr. Tarkeshwar Nath with Mr. Saurabh Kumar Tuteja, Advs. for Respondent No.2/Review Petitioner.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

S. RAVINDRA BHAT, J (OPEN COURT)

1. The present review petitioner urges that the judgment and the

order of this Court dated 27th September, 2013 has an error apparent on the

face of it. It is urged, firstly, that the writ petitioner lacks locus standi

before the Court, a fact stated to have been ignored in the decision.

Secondly, it is urged that the finding of the Court that the bids of the review

petitioner were non-responsive, because inter alia it quoted an EPF rate of

13.61%, upto Rs.6500/- per month for the workers, is erroneous. Learned

counsel in this context relies upon paragraph 26 A of the Employees

Provident Fund Scheme as well as a decision of the Division Bench of this

Court in WP(C) No. 2844/2011. It is lastly urged that the result (of the

judgment sought to be reviewed) had been anomalous and iniquitous,

inasmuch as one of the successful tenderers has been permitted to continue

whereas the review petitioner's contract has been terminated.

2. So far as the first question is concerned i.e. the standing of the

writ petitioner, this Court is of the opinion that no infirmity in this regard

can be found in the findings and decision of the Court. The writ petitioner

was one of the bidders whose contention was that, as per the tender

documents, the provident fund had to be paid on the entirety of the

minimum wages and that a statutory provision for weekly statutory holidays

and payment under other heads was required and thus included in the bid

submitted by it. Some of those contentions were accepted by the Court.

Clearly, therefore, the submission that the writ petitioner lacks standing is

not maintainable in law and is accordingly rejected. As tenderers, whose

bids have been rejected possess the standing to question that process on the

touch stone of legality.

3. The second and perhaps more serious objection to the judgment is that

it ignores Paragraph 26 A of the Employees Provident Fund Scheme, 1952

(hereinafter "the Scheme"). Counsel relies upon the previous rulings of this

Court to say that the interpretation placed by this Court in those cases are

contrary to the judgment sought to be reviewed. This Court in the said

judgment noticed that the virtual freeze by the Parliament upon the

calculation for determining employees provident fund under the Employees

Provident Fund Scheme, 1952 has resulted in an anomalous situation

whereby even though employers are compelled to pay minimum wages - an

absolute and non derogable standard - yet so far as the provident fund is

concerned the yardstick for paying contributions of the employer would be

considerably less than the minimum wage itself. The judgment of this Court

in WP(C) No. 2844/2011 has taken note of paragraph 26A of the Scheme.

At the same time, this Court is not inclined to accept the interpretation

placed by the review petitioner in this regard. The reason is that Section 2(f)

of the Act does not provide an exclusion while determining who is an

employee. Undoubtedly, it provisioned for "an exempted employee" and

left it to the Rule making authorities a/nd the executive to frame a scheme

which could exclude certain classes of employees as "an exempted

employee". The employers therefore rely upon paragraph 26 A of the

Scheme to say that those drawing more than Rs.6500/- per month are

entitled to EPF benefits only to the extent of that amount and not beyond.

4. This Court is of the opinion that the mandate of the Parliament

that minimum wages itself would be at a certain figure is absolute and no

amount less than what is fixed in that regard can be paid. If the employers

contentions were to be accepted, inaction of the Parliament in increasing the

figure under paragraph 26A results in an iniquitous situation as has

happened in the present case. The last amendment to the Scheme took place

in the year 2001 - i.e. 12 years ago. The Court notices that the Scheme was

amended repeatedly - apparently to keep pace with the inflationary trend in

the economy. Yet, inexplicably, the EPF quantum in the Scheme has

remained unamended for the past 12 years. In the meanwhile, real wages, in

terms what has been fixed under the Scheme have increased progressively

and dramatically. This has resulted in this anomalous situation

contemplated by the Court. Keeping this in mind the Court took note of the

decision in State of Rajasthan v. Sanjeet Roy, AIR 1983 SC 328, to hold

that once the Parliamentary mandate for employers to pay the wages under

pain of penalty was laid down, the standard to be applied for determining the

other attendant benefits also should be no less than the minimum wages. If

the employer chooses to pay more than the minimum wages it would

perhaps be open to him to contend that his liability vis-a-vis EPF and other

benefits cannot exceed what is determined as minimum wages. The

decision of this Court in WP(C) No. 2844/2011 did not take note of these

pertinent facts as well as the judgment of the Supreme Court nor was it alive

to the almost biannual increase of minimum wages at least in the NCT of

Delhi over the last 3-4 years. For this reason, this Court is of the opinion

that the interpretation made in the judgment sought to be removed does not

call for a review or rectification.

5. As far as the argument with respect to another bidder being

allowed to continue goes, this Court notices that the main judgment had in

fact directed the Government to re-tender after quashing the bids accepted

by it. The outer time-limit granted was 31.12.2013. In these circumstances,

the Court does not discern any prejudice much less an error calling for recall

of its judgment. Moreover, the Court notices that the review petitioner and

the bidder in this case would not be prejudiced in any manner with the

interpretation given, since all of them would be in an equal position to

participate in the fresh tendering process in which they can fairly furnish

their bids in accordance with the judgment and make an offer at the rate of

13.61% towards EPF on the minimum wages prescribed by law.

6. For the above reasons, the Court finds no error on the face of

the record or sufficient cause to review its main judgment. The review

petition is accordingly dismissed. No other grounds are urged.

7. Dasti.

S. RAVINDRA BHAT, J

NAJMI WAZIRI, J DECEMBER 20, 2013 ak