MI2C Security & Facilities Private Limited v. Government of NCT & Ors.

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 2013:DHC:6604-DB 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