Delhi High Court
A B Grain Spirits Pvt. Ltd. & Anr. vs Government Of Nct Of Delhi on 6 December, 2017
$~16 to 19
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 6th December, 2017
+ W.P.(C) 4104/2017 and CM No.18000/2017
A B GRAIN SPIRITS PVT. LTD. & ANR. ..... Petitioners
Through : Ms. Tanmaya Mehta, Adv.
versus
GOVERNMENT OF NCT OF DELHI ..... Respondent
Through : Mr. Sanjoy Ghose, ASC for
GNCTD with Mr. Rishabh
Jetley and Ms. Urvi Mohan,
Advs.
CM No.30128/2017 in
+ W.P.(C) 4263/2017
M/S METRO TRANSIT PVT. LTD. ..... Petitioner
Through : Mr. Sushil Dutt Salwan,
Mr. Aditya Garg, Ms. Sunanda
and Mr. Arjun, Advs.
versus
GOVT. OF NCT OF DELHI & ORS ... Respondents
Through : Mr. Sanjoy Ghose, ASC for
GNCTD with Mr. Rishabh
Jetley and Ms. Urvi Mohan,
Advs.
CM Nos.18748/2017 & 29892/2017 in
+ W.P.(C) 4297/2017
M/S ANTONY ROAD TRANSPORT
SOLUTIONS PVT. LTD. ..... Petitioner
Through : Mr. Sushil Dutt Salwan,
Mr. Aditya Garg, Ms. Sunanda
and Mr. Arjun, Advs.
Page 1 of 7
versus
GOVT. OF NCT OF DELHI & ORS ... Respondents
Through : Mr. Sanjoy Ghose, ASC for
GNCTD with Mr. Rishabh
Jetley and Ms. Urvi Mohan,
Advs.
+ W.P.(C) 5484/2017 and CM No.23038/2017
GOVERDHAN TRASNPORT CO PVT LTD ..... Petitioner
Through : Mr. Sushil Dutt Salwan,
Mr. Aditya Garg, Ms. Sunanda
and Mr. Arjun, Advs.
versus
GOVT OF NCT OF DELHI AND ORS ... Respondents
Through : Mr. Devesh Singh, ASC(Civil)
for GNCTD with Ms. Neelam
Kholiya, Adv.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. These writ petitions have been filed by five companies who
were successful bidders under the cluster scheme of the government
on terms which were almost identical under Concessionaire
Agreements, though entered on different dates and for different
clusters.
2. The petitioners have filed the writ petitions complaining that by
virtue of the notifications dated 15th September, 2016 and 3rd March,
2017, the minimum wages payable to the workers have been steeply
enhanced. So far as the services of the other staff on the stage
carriages are concerned, it is pointed out that the respondents are
making good the wage differential on account of the enhancement by
compensating the agencies who have provided the services of such
staff on the same vehicles. This position is not disputed. Therefore,
the petitioners submit that the respondents are additionally liable to
compensate the petitioners towards the increase in wages on account
of the enhancement.
3. It is an admitted position that for the purpose of providing the
services, the petitioners were providing stage carriages. The parties
are also not in dispute that petitioners had to provide the services of
drivers and other staff in relation to operation and maintenance of
buses while the conductors, manning the buses were provided by the
respondents through its agency. So far as the consideration under the
Concession Agreement is concerned, the same envisaged particular
wages payable to the staff of the petitioners whose services were being
utilized for these vehicles.
4. These writ petitions are concerned with the liability of the
respondents to compensate the petitioners/concessionaires towards
wages which are payable to the staff engaged for operation of the
stage carriage service being provided by the petitioners in terms of the
Concessionaire Agreements consequent upon the enhancement of
minimum wages pursuant to notifications dated 15 th September, 2016
and 3rd November, 2017.
5. The parties are agreed that the expression "Change in Law" has
been mentioned in Clause 4.8 of the Schedule (1) of the Concession
Agreement. There is substance in the petitioner's contention that there
has been change in the law which has led to a differential treatment to
the concessionaire.
6. It is submitted by the petitioners before us that the
quantification of the amount on which the petitioners had submitted
their tenders was premised on a particular minimum wage payable by
them to the employees, who were to serve for the operation of stage
carriage service. By the notifications dated 15th September, 2016 and
3rd March, 2017, issued by the Government of NCT of Delhi in
exercise of powers under Section 5 of the Minimum Wages Act, the
respondents have substantially enhanced the minimum wages.
7. Certainly, it cannot be held that the petitioners could have
foreseen this change or enhancement in the minimum wages at the
time when the agreement was negotiated especially given the fact that
minimum wages had not been changed since the year 1994 despite the
statutory amendment. In any case, the Concessionaires could not have
foreseen the extent by which the minimum wages would have been
revised. The petitioners could not have foreseen or avoided the
consequences of the enhancement of the minimum wages.
8. It is noteworthy that the petitioners have raised a challenge to
the constitutional validity of these notifications. However, given the
view that this court is taking on the liability of the respondents in
respect of the payment of the enhanced minimum wages, it is not
necessary for this court to examine the challenge to the enhancement
of the minimum wages laid in these petitions. We therefore, desist
from examining this challenge.
9. The petitioners have also complained that after upward revision
in the minimum wages by way of impugned notifications, the
respondents have effectuated such increase and are making payment in
terms of these notifications to the staff deployed by them on the stage
carriages but are denying the compensation for the increase in respect
of the staff of the petitioners, who are also serving under the said
Concessionaire Agreement and in relation to the operations
thereunder. The petitioners have prayed for directions to the
respondents to make additional payment to them to the extent of the
increase in the minimum wages. It is urged that these minimum
wages have been enhanced by the respondents pursuant to exercise of
statutory powers under the Minimum Wages Act. As such the
increase is on account of variation or change in the law.
10. In support of the contention of the petitioners that the
respondents are liable to make good the increase in the cost of the
concessionaire on account of enhancement of the minimum wage,
reliance is placed on the following clause besides others contained in
the Concessionaire Agreement :
"4.8. CYF Variation for Change in Law
(a) Where, a Change in Law condition leads to proven
increase in cost to the Concessionaire that :
(i) could not have been foreseen at the time when
this Agreement was being negotiated;
(ii) could not reasonably have been avoided by
good management practice; and
(iii) is not expressly or by implication
accommodated by the way in which the CYF is
constructed,
the Concessionaire is entitled to have the CYF
amended to recoup its reasonable compliance
costs. The adjustment in CYF shall not exceed
the increase in cost that was proved by the
Concessionaire to the satisfaction of DoT.
(b) Where, a Change in Law condition leading to proven
decrease in cost to the Concessionaire that ;
(i) could not have been foreseen at the time when
this Agreement was being negotiated; and
(ii) is not expressly or by implication
accommodated by the way in which the YF is
constructed,
DoT is entitled to have the CYF amended so as to
reduce it by an amount by which the
Concessionaire's costs of providing the
services ought reasonably to be reduced.
(c) CYF variation due to Change in Law set out in 4.8(a)
and 4.8 (b) shall be considered only where the impact is at
least 2% of the CYF."
(Emphasis by us)
11. The respondents cannot treat the agencies, who provide the
services of the conductors, differentially from the treatment which is
being given to the petitioners, who are providing the services of staff
drivers and other ancillary staff.
12. The petitioners complain that minimum wages had remained
static since the year 1994 and have been suddenly enhanced by the
respondents using a different formula. The submission is that this is a
change in law which has resulted in a substantial and unforeseeable
increase in costs to the concessionaire. It is further complained by the
petitioner that consequent to the enhancement, the formula for
calculation of consolidated yearly fare has not been changed by the
respondents.
13. We may note that efforts to resolve the matter with the Chief
Secretary of the GNCTD by the petitioners were unsuccessful.
14. In view of the above, without prejudice to the rights and
contentions of the parties in any pending litigation, the respondents
shall effectuate necessary amendments in the formula envisaged in the
Concessionaire Agreement regarding the amount payable taking
adjustments and enhanced minimum wage, in terms of the
notifications dated 15th September, 2016 and 3rd March, 2017 into
consideration and consequently increase the wages with effect from
the date when the said notifications took effect, for giving due benefit
to the petitioners in their monthly billing.
15. The petitioners shall calculate the amount payable in terms of
the above directions. The copy of the calculation sheet be served upon
the respondents within two weeks from today. The respondents shall
effect payment of the amount in terms thereof within a period of four
weeks thereafter.
16. The petitioners shall place proof of the payment to their
employees, of the increased amount, with the respondents.
17. These writ petitions are allowed in the above terms.
Dasti.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
DECEMBER 06, 2017
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