Abhishek Shekhar vs The State Of Jharkhand ...
2023 Latest Caselaw 2459 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Letters Patent Appellate Jurisdiction)
                                LPA No. 668 of 2019

Abhishek Shekhar, aged 51 years S/o Chandrika Singh, resident of - Ghato
12 No. Chowk, P.O- Ghato (West Bokaro), P.S.- Mandu, District- Hazaribag
(now Ramgarh)                                                 ......Appellant
                                Versus
1. The State of Jharkhand represented through Sri Ambika Ojha, Labour
Enforcement Officer, Mandu, P.O & P.S- Mandu, District- Hazaribag
2. Sri K. K Jha, Chief Administration, Tisco West Bokaro, Ghato, P.O- Ghato
(West Bokaro), P.S- Mandu, District- Hazaribag (now Ramgarh)
3. The Union of India represented through the Regional Labour
Commissioner (Central), Ministry of Labour, Government of India, P.O &
P.S & District- Hazaribag                                  ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant : Mr. S. K. Sharma, Advocate : Mr. Awnish Shankar, Advocate For the State : Mr. Gaurav Raj, AC to AAG-II For the Respondent No. 3: Mr. Amitabh Prasad, Advocate

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Order No. 07/ Dated: 28th July 2023

The writ petitioner who suffered an adverse order in Case No. 33 of 2006 is aggrieved of the order dated 31 st July 2019 by which challenge laid by him in W.P.(L) No. 4883 of 2010 to the aforesaid order has failed.

2. The writ Court has referred to the issues framed by the Labour Court under the Minimum Wages Act and accorded its approval to the findings recorded in the order dated 11th August 2010 to the effect that the contractor is liable to pay wages to the labourers @ Rs. 75/- per day.

3. The writ Court has held as under:

"Issue no. 3 regarding the entitlement of labourers, evidence has been considered and finding has been recorded that although in the wage register it has been noted that Rs. 75/- has been paid but in fact only Rs.60/- has been paid to the labourers, while the minimum wages prescribed is Rs. 77.57/- and thus less amount of Rs. 17.5 was paid to each worker. On the strength of above finding, ordered for payment of Rs. 3,00,260.06/-.

Counsel for the petitioner has further argued regarding the penalty imposed upon the petitioner. Argument has been advanced that since it was not deliberate rather as the labourer were being paid Rs. 75/- while the minimum wages prescribed by the Central government is Rs. 72.30/- and as such there was

no deliberate attempt on the part of the petitioner-contractor.

This argument is not tenable. In view of fact that the finding has been recorded that although the signature of the labour has been obtained showing payment of Rs. 75/- but factually only Rs. 60/- has been paid.

Thus, the petitioner-contractor has not only paid less wages but has created false wage register.

In view of above discussion, this Court finds no merit in the present writ petition. Accordingly, the same is, hereby, dismissed."

4. Briefly stated, on a complaint made before the Labour Enforcement Officer by 14 labourers who were working under the contractor claiming compensation to the tune of Rs.3,00,260.07/-, Case No. 33 of 2006 was registered in which the following issues were framed for determination:

"(a) Is this Court has jurisdiction to entertain the application Submitted by L.E.O.?

(b) Whether the alleged place of construction fall within the purview of the definition "Mine"?

(c) Are the labourers entitled for any relief?"

5. Before the Labour Court, the principal employer appeared and filed a separate written statement denying its liability. The Enforcement Officer tendered evidence on the basis of the enquiry conducted by him and, on the other hand, four of the labourers including O.P. W/1 Manga Oraon, O.P W/2 Jyoti Kumari, O.P. W/4 Ajoy Kr. Thakur and O.P. W/5 Madhusudan Das were examined by the contractor to prove the Wagesheet Muster Roll and the amount of wages paid to them @ Rs.75/- per day. As O.P. W/3, the contractor tendered evidence and stated that he was paying wages @ Rs.75/- per day to the labourers.

6. However, the plea raised by the contractor as to jurisdiction of the Enforcement Officer that in case of a quarry the Central Government would have jurisdiction was not found substantiated before the Labour Court. The Labour Court has referred to the definition of "Mine" under the Mines Act, 1952 and the judgments in "Anil Agrawal Vs. Union of India" 1997 (2) PLJR 872, "Regional Labour Commissioner, Bangalore and Others Vs. T.K. Varkey and Co. and Another" 1992 (I) LLJ 547 and "Durga Cement Company Limited Vs. Union of India" 1998 (3) BLJR 2012 to come to a conclusion that the area under the contract would not fall under a mine.

7. In the above context, the Labour Court has also referred to the decision in "A. K. Ghosh Vs. Bharat Coking Coal Limited" (1993) 1 SCC 145 wherein the Hon'ble Supreme Court had held as under:

"7. So far as the case before us is concerned, the property in question is a building used for residential purposes. All the courts have recorded a finding in favour of the plaintiff that he had purchased the plot of land and also constructed the building over it in his individual capacity and not on behalf of New Govindpur Colliery Company Private Limited. On these facts, it cannot be held that the building in question falls within the meaning of 'mine' under Section 3(j) read with clause (vi) of the Act. ......"

8. Now this needs to be indicated that as per section 14 of the Mines and Minerals (Development and Regulation) Act, 1957 the State Government shall have jurisdiction in respect of quarry lease, mining lease or other mineral concession in respect of the minor minerals. However the contractor has failed to produce any evidence so as to establish that the quarry in question pertained to major mineral. Therefore we would affirm the findings recorded by the Labour Court as regards jurisdiction of Labour Enforcement Officer. However, we must indicate that this finding shall remain confined to the subject contract and this order shall not be relied upon in any other proceeding where the nature of quarry is in dispute.

9. The Labour Court held that the contractor is liable to make payment to the labourers as per minimum wages fixed by the State of Jharkhand. However, only on the basis of the statement of the Labour Enforcement Officer the Labour Court has rendered a finding that the labourers are being paid wages @ Rs. 60/- per day. In our opinion, this finding rendered by the Labour Court cannot be countenanced in law. The Enforcement Officer himself has stated before the Labour Court that it was not possible to produce any labourer for evidence and while so ignoring the statutory registers such as Wagesheet Muster Roll laid in evidence vide Ext. B and Ext. B/1 a finding that the contractor was paying wages @ Rs.60/- per day could not have been recorded.

10. The Labour Court has held as under:

"23. In view of the point decided above the case is maintainable. It is not disputed by the opposite party that it has not got constructed/ repaired the road rather it is an admitted fact that the opposite party has repaired the road with the help

of labourers whose names are disclosed in the application filed by the L.E.O. It is pertinent to mention here that the facts alleged by the L.E.O in the application is not denied by the opposite party. It is not denied that the opposite party has paid the applicants labourers @ 75/- rather alleges to have paid the labourers in ext. B & B/1 @ 75/ per day though at the relevant time the minimum wages was Rs.77.57, thus admittedly paid less to the labourers named in exhibit B and B/1. The applicants labourers are paid @ 60/ per day thus an amount of Rs.17.57 was paid less to each worker per day. Considering the factual aspect of the matter that the employer opposite party no. 1 has deliberately paid fewer amounts by wrongly using the Central Govt. notification for his own gain and in the circumstances ten times compensation is awarded to each labourer on the amount as detailed in the application.

24. The opposite party no. 1 is accordingly directed to pay an amount of Rs.27,296.37 to the workers named in application with their which comes to Rs.2,72,963.70, total Rs.3,00,260,07, in accordance with their respective break ups, within a period of one month from the date of order failing which the same can be realised by them in due process of law. The point no. (c) is decided accordingly."

11. This is well settled a law that on mere ipso dixit of the inquiring officer the Courts should not accept the findings wherever no corroborative evidence is produced. May be before the Labour Enforcement Officer the labourers had made a grievance in respect of payment of less wages but without taking evidence of the labourers and ignoring the statutory registers no such finding could have been recorded by the Labour Court. Apparently the Labour Court has committed a serious error in law in accepting the statement of the Labour Enforcement Officer as a gospel truth that the contractor has been paying wages @ Rs.60/- per day to the labourers.

12. Having held so, we find that the writ Court has erroneously affirmed the finding recorded by the Labour Court that the contractor has made payment to the labourers @ Rs.60/- per day and not Rs.75/- as reflected in the statutory registers. We would, therefore, set aside this part of the finding recorded by the Labour Court in its order dated 31st July 2019 and, consequently, the writ petition is allowed to the aforesaid extent.

13. Consequently, the liability of the contractor shall be to the extent of deficit amount of wages paid to the labourers @ Rs.75/- and minimum wages @ Rs.77.57 to be paid to them as per the State Government's Circular.

14. L.P.A. No.668 of 2019 is allowed in the aforesaid terms and to the aforesaid extent.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Saurav/Pankaj-