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J. JEBASELVI versus THE PRINCIPAL DISTRICT JUDGE

High Court of Madras

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J. Jebaselvi v. The Principal District Judge - Writ Petition (MD) No.332 of 2007 [2007] RD-TN 1312 (5 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:05/04/2007

CORAM:

THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA

and

THE HON'BLE MR.JUSTICE K.VEERARAGHAVAN

Writ Petition (MD) No.332 of 2007

and

M.P.(MD)Nos.2 and 3 of 2007

1. J. Jebaselvi

2. I. Johnson Devaraj ... Petitioners vs.

1.The Principal District Judge,

Thoothukudi District,

Thoothukudi.

2.P. Swamy Ayyah,

Arbitrator in 02/2004,

133F, Palayamkottai Road,

Thoothukudi - 628 003.

3.Arasan Chip Technologies Ltd,

Sinnamani Nagar II,

Bypass Road,

Thoothukudi - 628 008.

4.The Secretary,

Ministry of Labour and Employment,

Government of India,

New Delhi - 1.

5.The Secretary,

Ministry of Information and Technoloty,

Government of India,

New Delhi - 1.

6.The Secretary,

Ministry of Labour,

Government of Tamil Nadu,

Fort St. George, Chennai.

7.The Secretary,

Ministry of Information and Technology,

Government of Tamil Nadu,

Fort. St. George, Chennai.

8.The National Human Right Commission,

Faridkot Home,

Copernicus Marg,

New Delhi-1. ... Respondents Prayer

Writ Petition under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records of the Arbitration Award 02/2004, dated 27.02.2005 passed by the second respondent and to quash the same and direct respondents 4 to 8 to make necessary and suitable rules regarding the working conditions in IT industry in India as contemplated under Article 14,15,16 and 42 of the Indian Constitution and ensure adherence of various employment protection legislations. For Petitioners ... Mr.T.S.R.Venkatramana For Respondent ... Mr.Somajaji, Senior Counsel No.3 for Mr.G.Prabhu Rajadurai For Respondent ... Mr.Pon Muthuramalingam Nos.4 and 5 Asst.Solicitor General For Respondent ... Mr.R.Janakiramulu, Nos.1, 6 & 7 Spl.Govt.Pleader.

:ORDER



(Order of the Court was made by F.M.IBRAHIM KALIFULLA,J) The petitioner seeks for the issuance of a writ of Certiorarified Mandamus to call for the records of the Arbitration Award No. 02/2004 dated 27.02.2005 passed by

the second respondent, quash the same and to direct the respondents 4 to 8 to make necessary and suitable rules regarding the working conditions in IT industries in India, as contemplated under Articles 14, 15, 16 and 42 of the Indian Constitution and ensure adherence of various employment protection of legislature.

2.The brief facts, which are required to be stated, are that the first petitioner is the wife of the second petitioner. The challenge is to the Arbitration Award passed by the second respondent in Award No.02/2004 as between the third respondent and the first petitioner. The first petitioner is an Engineering Graduate in Computer Science. She joined the third respondent company on 29.07.2000. At the time of joining, an agreement came to be signed by the first petitioner and the third respondent called 'intellectual property agreement' dated 29.07.2000. The said agreement was initially for a period of three years, which was extended for one more year. It inter alia provided for the payment of salary to the first petitioner by mutual consent of the parties. For the whole period of four years, the first petitioner was paid a salary of Rs.4,23,382/-.

3. It is common ground that the agreement contains a provision for arbitration in the event of any dispute arising between the parties. It is also an admitted fact that the first petitioner did not report for duty between 06.04.2002 to 30.09.2002 and 09.10.2003 to 27.03.2004. It is relevant to state that the first petitioner did not apply for any maternity leave for the above said periods. It was in the above stated background it is stated that the third respondent wanted the first petitioner to abide by the terms of the agreement and fulfil her obligation by rendering service for the agreed period as per the agreement dated 29.07.2000. When the said demand of the third respondent was not complied with, as per the clause in the agreement, the third respondent preferred a claim before the sole arbitrator viz., the second respondent.

4.After the resignation of services by the first petitioner on 02.08.2004, the third respondent preferred a claim based on clause 14 of the agreement which stipulated that in the event of violation of clause 10(A), the first petitioner is liable to pay penalty of Rs.6,00,000/- together with compound interest at the rate of 18 per annum from the date on which the demand for penalty is claimed. When the issue was before the second respondent arbitrator, both parties filed their respective pleadings. The first petitioner in her pleadings raised as many as six contentions. The second respondent, after considering the respective stand of the parties, passed an award holding that the first petitioner as a party to the agreement and the second petitioner, as a guarantor are jointly and severally liable to pay the third respondent a penalty of Rs.6,41,459/- along with interest at the rate of 18 till the penalty is paid. The award came to be passed on 27.02.2005.

5.The petitioners did not challenge the said award before the appropriate Court as provided under the provisions of the Arbitration and Conciliation Act, 1996. The third respondent preferred an Execution Petition in E.P.No.44 of 2006 on the file of the District Judge, Thoothukkudi. pursuant to which, the petitioners were issued with notice as early as in the Month of September 2006. Thereafter, the petitioners have now come forward with the present writ petition in November 2006.

6.Arguing for the petitioners, Mr.T.S.R.Venkataramana, learned counsel appearing for the petitioners, raised as many as three contentions. In the first place, the learned counsel contended that since there is a Constitutional infirmity in the award, the petitioners were obliged to file this writ petition. Secondly, it was contended that the Constitutional invalidity of the award cannot be a subject matter of challenge before the forum created under the provisions of the Arbitration and Conciliation Act and therefore the rights of the petitioners have to be worked out only in this writ petition. Lastly, it was contended that the second respondent arbitrator failed to advert to any of the grounds raised by the petitioners in the award proceedings and therefore for non-consideration of contentious issues, the award is liable to be set aside.

7.The learned counsel relied upon the following decisions in support of his submissions.

(i)A.I.R. 1981 SC 1829 - Air India vs. Nergesh Meerza and others.

(ii)A.I.R. 2000 SC 1274 - Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and another. (iii)A.I.R. 1978 SC 12 - B.Shah vs. Presiding Officer, Labour Court, Coimbatore and others.

(iv)A.I.R. 1979 SC 1868 - Miss.C.R.Muthamma vs. Union of India and others.

(v)A.I.R. 1992 SC 392 - Mrs.Neera Mathur vs. LIC of India & another.

(vi)A.I.R. 1991 SC 216 - Rajangam vs. State of Tamil Nadu.

(vii)A.I.R.1987 SC 311 - Frank Anthony Public School Employees's Association vs. Union of India.

(viii)2007 (2) CTC 135 - M.S.Munivenkatappa vs. S.B.I. & Others.

(ix)2001 (10) SCC 740 - State of Tripura vs. Manoranjan Chakraborthy & Others.

(x)2000(10)SCC 482 - Union of India & another vs. State of Haryana and another.

(xi)A.I.R. 1987 Madras 60 - A.Swamickan vs. V.Venkatachalam. (xii)1999(3) Law Weekly 23 - K.Venkatachalam vs. A.Swamickan & another.

(xiii)A.I.R.1955 SC 243 - Hari Vishnu Kamath vs. Ahmed Ishaque & Others.

(xiv)2007 (1) CTC 705 - AIADMK vs. The State Election commissioner & Others,

(xv)A.I.R.1987 SC 2186 - Kuntesh Gupta vs. M.K.Mahavidyalaya Sitapuay.

(xvi)A.I.R. 1955 SC 661 - Bengal Immunity Co. vs. State of Bihar.

(xvii)A.I.R. 1964 SC 403 - Jayantilal Amartlal vs. F.N.Rana. (xviii)A.I.R.1983 SC 75 - National Textile Workers Union vs. P.R.Ramakrishnan & Others.

(xix)A.I.R.1980 SC 1898 - Gujarat Steel Tubes Limited vs. Gujarat Steel Tubes Mazdoor Shabha & Others. (xx)A.I.R.1984 SC 326 - State of Tamil Nadu vs. L. Abu Kavur Bai and others.

(xxi)2004(1) SCC 497 - Ramnik Vallabhadas Madhavani & Others vs. Taraben Pravinlal Madhavani.

(xxii)2004(5) SCC 280 - Bajrangthal Shivchandrai Rhia vs. Sashikant N.Rhia & Others.

(xxiii)2004(8) SCC 706 - Balvant N.Viswamitra & Others vs. Yadav Sadashiv Mule (dead) by LR's & Others. (xxiv)2005(7) SCC 653 - Devasahayam vs. P.Savithramma

8.As against the above submissions Mr.A.L.Somayajee, the learned Senior counsel appearing for the third respondent, who is the real contesting respondent, contended in the first place that such a public interest litigation is not maintainable, inasmuch as the issue involved is purely a personal dispute between the first petitioner and the third respondent. The learned senior counsel then contended that as against the award impugned in this writ petition, the petitioners have got two tier remedy under the provisions of the Arbitration and Conciliation Act, 1996. According to the learned senior counsel, the petitioners have got a remedy under Section 34 for setting aside the award and also have an appellate remedy before the concerned Court under Section 37 of the Act. The learned senior counsel also contended that there was no public interest involved in this writ petition and therefore the writ petition is not maintainable. It is the further contention of the learned senior counsel that the first petitioner, after having signed the agreement, was bound to serve in the third respondent for the required period as agreed between the parties as the third respondent has fulfilled the obligations on its part of the contract and that the first petitioner committed a breach by not serving the full period as agreed to by her. It was therefore contended that the first petitioner having failed to even avail the benefits of the provisions of the Maternity Benefit Act, 1961 cannot be permitted to raise any Constitutionality in relation to the issue involved in this writ petition. The learned senior counsel relied upon the decisions reported in A.I.R.2007 SC 758 = 2007(2)SCJ 162 - Neetu vs. State of Punjab; 1980 (4) SCC 556 - Rukmanibai Gupta vs. Collector, Jabalpur & Others; and A.I.R.2003 SC 2629 - Oil and Natural Gas Corporation vs. SAW Pipes Ltd. in support of his submissions.

9.The main thrust of the contentions of the petitioners, as regards the Constitutional violation in relation to the main award, was based on Article 42 of the Constitution, falling under Part-IV of the Constitution. Learned counsel for the petitioners would contend that under Article 42 of the Constitution it has been mandated that the State should make provision for securing just and humane conditions of work and for maternity relief, that the claim of the third respondent before the Arbitrator, which came to be ultimately awarded by the second respondent, had virtually deprived of the first petitioner to avail all the relief granted under the Constitution. The learned counsel, therefore, submitted that though such a Constitutional provision would fall under Part-IV of the Constitution as one of the Directive Principles of State Policy, since the so-called intellectual property agreement did not provide for availing of such a relief which is Constitutionally mandated, the impugned award should be struck down as null and void. It is on the basis of the above said submission, the learned counsel argued that a larger relief was claimed by the petitioners in the public interest and that while couching the relief in the prayer, apart from challenging the impugned award dated 27.02.2005 passed in Arbitral Award No.2/2004, the petitioners also seek for appropriate directions to respondents 4 to 8 to make necessary and suitable Rules regarding the working conditions in I.T.Industry in India, as contemplated under Articles 14, 15, 16 and 42 of the Constitution.

10.When we considered the said contention, at the outset we state that we are not able to see any Constitutional violation involved while analysing the impugned award passed by the second respondent based on the agreement entered into between the petitioners and the third respondent herein. In this context, it will be relevant to refer to the provisions of the Maternity Benefit Act, 1961, the Central Act, which has been enacted to regulate the employment of women in certain establishments for certain period before and after child-birth and to provide for maternity benefit and certain other benefits. As far as the application of the said Act is concerned, under Section 2 (1)(b) of the Act, it is made applicable to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. Again, the term 'establishment' has been defined under Section 3(e), wherein, in sub-clause (iva) it is stated that the term 'establishment' will take within its fold a shop or other establishment.

11.The learned senior counsel for the third respondent fairly conceded that the third respondent would squarely fall within the provisions of the Tamil Nadu Shops and Establishments Act, 1947. In such circumstances, by virtue of the provisions contained in the said Act, namely the Maternity Benefit Act, 1961, such as Sections 4, 5, 6, 9, 10, 11, 14 and 17, sufficient provisions have been made to ensure maternity benefit as well as the required period of absence to a woman employed in an establishment covered by the provisions of the said Act. Therefore, it can be safely held that the requirement of Article 42 of the Constitution has been sufficiently complied with by the State by virtue of the above referred to enactment, specifically providing for the maternity benefits as well as other safeguards that are required to be complied with in respect of women employed in an establishment. It is not the case of the petitioners that the provisions of the Maternity Benefit Act, 1961 are not applicable to the third respondent or that the first petitioner was ineligible to claim the benefits provided under the said Act.

12.Having regard to the said statutory protection that is made available to a woman employee, the contentions raised on behalf of the petitioners based on Article 42 and the other provisions of the Constitution are not available to the petitioners. If once such a claim of the petitioners based on Article 42 of the Constitution is duly covered by a statute, then the remedy of the first petitioner is to work out the same under the provisions of the said Act. It is not the case of the first petitioner that she wanted to avail of the benefits provided under the Maternity Benefit Act, 1961 while she was in the services of the third respondent and that such a benefit was not extended to her. On the other hand, the undisputed position is that the first petitioner had never made any claim under the provisions of the Maternity Benefit Act, 1961, either for availing the leave benefits or other material benefits, which were made available to such a 'woman employee' under the said Act. In any event, even if the said benefit had not been extended to the first petitioner by the third respondent, the remedy of the first petitioner was to work out the same by approaching the concerned authorities constituted under Sections 14, 15 and 17 of the said Act. The first petitioner having failed to avail such a statutory benefit by following the prescribed procedure, the present prayer of the petitioners as though such a protection for a pregnant woman employed is totally deprived is solely with a view to circumvent her lapses in having failed to avail the statutory benefits in the manner in which it is proscribed.

13.It will have to be stated that the petitioners have couched the second part of the prayer in order to give a colour to the writ petition as a public interest litigation, as the petitioners have failed to work out their remedy as against the Arbitral Award of the second respondent under the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter called "the 1996 Act"). We are fortified in our conclusion, since in the case on hand the impugned award of the second respondent was passed as early as on 27.02.2005 in Award No.2 of 2004. Under Section 34 of the 1996 Act, the petitioners should have worked out their rights as against the impugned award by taking recourse to a court of law by filing an application for setting aside the said award in accordance with sub-sections (2) & (3) of the said Section 34. Under sub- section (3), it is specifically stipulated that an application for setting aside an award cannot be made after three months have lapsed from the date of which the party making that application had received the arbitral award. Under the proviso to sub-section (3) of Section 34, it is stated that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it can entertain the application within a further period of 30 days, but not thereafter. In this context, it is also relevant to refer to the recent decision of the Hon'ble Supreme Court reported in 2007 (1) Arbitration L.R. 399 (State of Arunachal Pradesh vs. Damani Construction Company), wherein the Hon'ble Supreme Court has made it clear that once the period prescribed under sub-section (3) of Section 34 had expired, no Court, including the writ court, can extent the said time limit in order to enable the party aggrieved to move an application under Section 34 of the Act. Further, under Section 37 of the 1996 Act, as against any order passed by the court of law in an application filed under Section 34 of the Act, an appeal lies to the appellate forum from the original decrees of the court of law passing orders in such application either for setting aside or refusing to set aside the arbitral award under Section 34. When the case of the petitioners is considered in the light of the above provisions contained in the Maternity Benefit Act, 1961 and the 1996 Act, it will have to be held that the present attempt of the petitioners in contending as though a larger question of public interest is involved is not acceptable.

14.Further, it will have to be held that a private interest litigation as between the petitioners and the third respondent is sought to be portrayed as a public interest litigation in order to cover up their lapses in not having diligently worked out their remedies under the provisions of the above referred to enactments. When once we reach the above said conclusion and state that there is no Constitutional infirmities as attempted to be portrayed by the petitioners nor was any public interest involved in this writ petition, it will have to be held that the petitioners have only attempted to abuse the process of this Court by resorting to filing of this writ petition. When we are on this, it will be appropriate to refer to a recent decision of the Hon'ble Supreme Court reported in 2007(2) SCJ 162 (Neetu vs. State of Punjab and others). In paragraphs 6, 7 and 10 of the said judgment, sufficient guidelines have been indicated by the Hon'ble Supreme Court to weed out such frivolous and private interest litigations in order to ensure that precious time of the Court is not wasted by entertaining such reckless litigations.

15.The relevant part of paragraphs 6, 7 and 10 of the judgment are extracted here under.

"6..... No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. ... Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.

7.....Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, High Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr.Duryodhan Sahu and Others v. Jitendra Kumar Mishra and others (AIR 1999 SC 114), this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. ....

9. ...

10.Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at time from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."

16.Having regard to our above conclusion in holding that there was no Constitutional infirmity as contended by the petitioners in this petition and that there is no element of public interest involved and that the grievance of the petitioners are purely personal, namely it is only as between the petitioners and the third respondent, we are constrained to hold that the present attempt of the petitioners in having preferred this writ petition, without working out their remedy either under the provisions of the Maternity Benefit Act, 1961 or under the 1996 Act, would render this writ petition not maintainable. Inasmuch as the writ petition has been designedly moved by the petitioners as a public interest litigation in order to agitate their private interest litigation as between them and the third respondent and since considerable time of this Court was wasted by resorting to such a frivolous litigation, we feel that the petitioners should be directed to pay exemplary costs. While dismissing this writ petition, it will be relevant to state that both the petitioners are fully qualified engineers. Therefore, it cannot be said that the petitioners were ignorant of law or that they were not in a position to work out their remedies either under the provisions of the Maternity Benefit Act, 1961 or under the 1996 Act. Therefore, we are unable to state that the petitioners had moved this Court unknowing of the concept of PIL in order to simply dismiss the writ petition, while pointing out the remedies available to them under the above referred to statutory enactments.

17.Having regard to our conclusions, we do not find any need or necessity to refer to the various decisions relied upon by the learned counsel for the petitioners which related to the infringement or otherwise of the parties rights, vis-a-vis the relevant service regulations. In the case on hand, the rights of the parties, namely the petitioners, were governed by the provisions of Maternity Benefit Act, 1961 and the 1996 Act. The petitioners knowing full well of the benefits and the remedies available under the above referred to enactments and having failed to work out the same in the manner prescribed thereto they cannot be permitted to seek for the redressal of the very same grievance by merely preferring the litigation in the form of 'public interest litigation'. Therefore, we hold that none of the decisions relied upon by the learned counsel for the petitioners on that score will be of any assistance to the petitioners.

18.The reliance placed upon the decision reported in 2007(2) CTC 135 - Munivenkatappa, M.S. v. State Bank of India to contend that mere availability of an alternative remedy cannot be a ground for rejecting the writ petition, will not also hold good since in the case on hand it cannot be held that the grievances of the petitioners are of such an extraordinary or extreme magnitude so as to hold that such a grievance should be redressed by invoking the extraordinary jurisdiction of this Court available under Article 226 of the Constitution. On the other hand, as has been stated by us in the earlier part of this order, the various provisions contained in the Maternity Benefit Act, 1961 and the 1996 Act provide for a very elaborate safeguards to protect whatever deprivation in the form of benefit that would have been available to the petitioners when the first petitioner was performing her contractual obligations to the third respondent pursuant to the so-called intellectual property agreement. Therefore, when the petitioners have deliberately failed to avail such statutory benefits in the manner prescribed under the relevant enactments, on that score it cannot be held that an extraordinary situation prevail so as to invoke the jurisdiction of this Court under Article 226 of the Constitution. For the very same reasons, we are not in a position to refer to the other decisions relied upon by the learned counsel for the petitioners.

19.Looked at from any angle, we are not convinced of the petitioners' claim that the petitioners are entitled for any relief in this writ petition, dehors the remedies available to the petitioners under the provisions of the Maternity Benefit Act, 1961 and the 1996 Act.

20.Therefore, the writ petition deserves to be dismissed and accordingly dismissed with a costs of Rs.5,000/- (Rupees five thousand only) payable to the Mediation and Conciliation Centre, Madurai Bench of Madras High Court, Madurai within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected M.P.(MD)Nos.2 and 3 are also dismissed. jrl./gb.

To

1. The Principal District Judge,

Thoothukudi District,

Thoothukudi.

2. P. Swamy Ayyah,

Arbitrator in 02/2004,

133F, Palayamkottai Road,

Thoothukudi - 628 003.

3. Arasan Chip Technologies Ltd,

Sinnamani Nagar II,

Bypass Road,

Thoothukudi - 628 008.

4. The Secretary,

Ministry of Labour and Employment,

Government of India,

New Delhi - 1.

5. The Secretary,

Ministry of Information and Technoloty,

Government of India,

New Delhi - 1.

6. The Secretary,

Ministry of Labour,

Government of Tamil Nadu,

Fort St. George, Chennai.

7. The Secretary,

Ministry of Information and Technology,

Government of Tamil Nadu,

Fort. St. George, Chennai.

8. The national Human Right Commission,

Faridkot Home,

Copernicus marg,

New Delhi-1.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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