Orissa High Court
Malaya Kumar Mund vs State Of Odisha And Others on 17 April, 2023
A.F.R. ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.7527 OF 2019
An application under Articles 226 & 227 of
the Constitution of India.
Malaya Kumar Mund : Petitioner
-Versus-
State of Odisha and Others :Opposite Parties
For Petitioner : Mr. J.Dash, Adv.
Mr. B.P.Panda, Adv.
For O.Ps. : Mr. S.P.Panda, AGA
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
JUSTICE M.S.SAHOO
Date of Hearing & Judgment : 17.04.2023
1. This Writ Petition involves a challenge to the rejection of the
representation of the Petitioner vide Annexure-3 which was
disposed of with a negative order impugned herein vide
Annexure-5.
2. Factual background involved herein appears to be Petitioner
remaining a contractor entered into an agreement for undertaking
the work involved herein strictly in terms of Annexure-1 involving
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an Agreement No. 2 F2/2007-2008. Undisputedly period of work
undertaken was in between 18.04.2007 to 17.03.2008 for eleven
months but work assigned has been completed after four years.
Further undisputed fact remains to be there has been no material
produced remaining the foundation in the claim of the Petitioner
vide Annexure-3 to at least establish that there was grant of
extension of time for completion of such work and that the
Petitioner was not responsible for such delay. It is on the
representation of the Petitioner not being considered in his earlier
attempt, Petitioner approached this Court in W.P.(C) No. 19258 of
2014, this Writ Petition came to be disposed of on 20.10.2014 with
the following order:-
<Heard learned counsel for the petitioner.
In this writ petition, the petitioner prays for issuing
direction to opposite parties to pay the enhanced rate of wages
of labour component, which the petitioner as contractor, paid in
respect of the work, i.e., <Improvement to Narla Rupra Road
(Narla Rupra Palam Road MDR-116) from 0/0 to 17/0K.M.
under RIDF, in the district of Kalahandi under NABARD
Assistance (RIDF-VII), vide Agreement No.2 F2 of 2007-08=
It is submitted by the learned Counsel for the petitioner
that the claim of the petitioner is covered by the decision of this
Court rendered in W.P.(C) No.29271 of 2011 (Mahesh Prasad
Mishra-vrs-State of Orissa and others) disposed on 17.11.2011,
which has also been upheld by the Hon'ble apex court by way of
dismissal of SLP No.11256 of 2012. It is also submitted by the
learned counsel for the petitioner that in this connection, the
petitioner has made a representation on 04.09.2015 to the
Executive Engineer, Kalahandi (O.P. No.3), vide Annexure-2,
which is still pending without any decision being taken.
Considering the limited grievance of the petitioner, this
writ application is disposed of with a direction to the Executive
Engineer, Kalahandi (R&B) Division, At./P.O.-Bhawanipatna,
Dist-Kalahandi(O.P.3) to consider the representation of the
petitioner in the light of the decision of this Court referred to
above and dispose of the same on merit within a period of two
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months from the date of communication of this order along with
a copy of this writ application containing all the annexures.
Requisites for communication of the order be filed
within a week.
The writ application is accordingly disposed of.
Urgent certified copy of this order be granted as per
rules.=
Sd/- C.R.Dash, J.
3. It is alleged since even after disposal of the Writ Petition
Petitioner could not get any respite, approached this Court in
Contempt No. 1036 of 2015, this Contempt application came to be
disposed of on 13.10.2017 directing as follows:-
<Heard learned counsel for the petitioner.
It is stated that the order dated 20.10.2014 passed by
this Court in W.P.(C) No.19258 of 2014 has not yet been
complied with.
Let the authority comply with the same, if not
complied with in the meantime, within a period of three
months from the date of communication of this order.
Contempt proceeding is disposed of accordingly.
Requisites for communication of the order be filed within a
week.
Urgent certified copy of this order be granted on
proper application.=
Sd/- Dr. B.R.Sarangi, J.
4. It appears after disposal of the Writ Petition and the
Contempt Application, there has been consideration of the
representation of the Petitioner and disposed of the same vide the
impugned order dated 28.12.2018, however negativing claim of the
Petitioner.
5. Learned counsel for the Petitioner taking this Court to the
plea at Annexure-3 attempted to submit that the request vide
Annexure-3 was based on foundation of Labour and Employment
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Department Notification dated 08.01.2007 bearing S.O.R No. 02 of
2007 with further caveat to come into force from 01.05.2007.
Learned counsel for the Petitioner through the above attempted to
establish the revision in labour wages came into force in between
the contract period and thus has a binding value on both the
contractor and the Authority.
6. It is at this stage of the matter, taking this Court to the
conditions in the tender agreement vide clause 31(b), an attempt is
made by the learned counsel for the Petitioner that there has been
clear condition in the grant of minimum wages never prescribed by
the Government and the contractor in terms of the revision in
wages in the meantime and it is thus claimed that the Petitioner was
entitled to reimbursement of additional wages involved and/or
adjust, if any.
7. Taking this Court to the discussions in the impugned order at
Annexure-5, learned counsel for the Petitioner claims that there has
been no proper consideration of the claim of the Petitioner and the
impugned order remaining contrary to the direction provided in the
escalation/revision notification and further remaining contrary to
the conditions in the agreement involved should be interfered with
and set aside.
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8. Mr. Panda, learned Additional Government Advocate in his
opposition again taking this Court to the condition in the agreement
particularly at clause 31(b) submitted that to establish the
entitlement one has to strictly comply with the requirement in
clause 31(b) in as much as the contractor has also to establish that
the escalated price has been paid to the labour engaged on
execution of the work and involving such increased or decreased
wages involved therein he shall be entitled to reimbursement or
liable to refund with further conditions therein.
9. Taking this Court to the reasoning in the rejection of the
claim vide Paragraphs-9 and 10 of the impugned order, Mr. Panda,
learned Additional Government Advocate also attempted to justify
the opposition of the State Authority to the claim of the Petitioner.
10. Considering rival contentions of the Parties, this Court finds,
undisputedly the Parties are abided by Agreement No. 2 F2/2007-
2008. Through Page-18 of the brief clearly disclosed that the
contract awarded in favour of the Petitioner is an item rate tender
and contract for works as per the item of works provided through
the heading memorandum in page-20 continued up to page-23 of
the brief. In the attempt of the Court to find further conditions, if
any, this Court finds surprise here the Petitioner even though files
the agreement between the parties, unfortunately there has been
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non-filing of certain portion of the agreement particularly at page-
7 and 8 of the brief. This Court here finds surprise in the
clandestine attempt of the Petitioner.
11. Be that as it may, this Court keeping in view both parties
relying on condition 31(b) of the agreement vide Annexure-1, takes
into account the provision at Clause 31(b) available at running
page-34 internal page-19 of the agreement which reads as follows:-
<Similarly, if during the progress of works the wages of labour
increase or decreases as a result of increase or decrease in the
Minimum Wages for labour prescribed by the Government and
the contractor there upon necessarily and properly pays in
respect of labour engaged on execution of the work such
increased or decreased wages then he shall be entitled to
reimbursement or liable to refund quarterly as the case may be
such an amount, as shall be equivalent to the plus or minus
difference of 75% in between the minimum wages for which is
operating for the quarter under consideration and that operated
for the quarter in which the tender was opened as per the
formula indicated below:
Formula to calculate the increase or decrease in the cost of
labour:
VI=0.75x PL x R x (1-10
100 I
VI= Increase or decrease in the cost of work during the quarter
under consideration due to change in the rates labour.
R= The value of the work done in rupees during the quarter
under consideration.
i= The Minimum wages for labour as prevailed during the
quarter in which tender was opened.
i= The Minimum wages for labour prevailed during the quarter
under consideration.
PL= Percentage of labour component (as per sub-clause).=
Reading the aforesaid, this Court finds, the agreement
conditions between the parties through above clause makes
abundantly clear that if during the progress of works, the wages of
labour increases or decreases as a result of increase or decrease in
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the minimum wages for labour prescribed by the Government and
the contractor thereupon necessarily and properly pays in respect of
the labour engaged on execution of the work such increased or
decreased wages shall be made to the Petitioner by way of
reimbursement or by way of refund subject to further conditions
therein.
12. Looking to the plea of the contractor taken in Annexure-3
being the foundation in claiming wages escalation claim, this Court
finds, the Petitioner had the following plea:-
<Sir, while submitting the tender I am considered
the minimum wages of labour as was prevailing then under
Minimum Wage Act 1948 (XI of 1948). The prevailing
labour rate was Rs. 55.00 (Rupees Fifty Five) only per day.
But, subsequently the appropriate Govt. (State Govt. of
Odisha) as per provision under Section-5 (Five) of
Minimum Wage Act 1948 (XI of 1948) in the Extra
Ordinary Issue No. 247 of Odisha Gazette dt. 28-04-2007 in
the Labour and Employment Department Notification No.
236 LLI (I) - 11/06/2006, dt. 08/01/2007 bearing S.O.R.
No. 02/2007 under Section- 5 invite objection and
suggestion which shall come into force from dt. 01/05/2007.
So, your good self is to pay the enhance labour rates to
every employee engage in a schedule employment as per
Section - 12 (I) of the Act and I am entitled to get the
differential cost of enhanced labour rate, though my work is
a schedule employment. Due to rise in minimum wage rate
my contract was affected tremendously though I bound to
pay the enhance rate to the labourers engaged in my work,
as per Rule and Condition of Contract.
As per Contract Condition Clause 33 <FAIR
WAGES= 33 A Explanation <Fair wages= means wages
whether for time or price work prescribed by State P.W.D.
provides that where hire rates have been prescribed under
the Minimum Wages Act. 1948 (No. II of 1948) wages at
such higher rates should constitute fair wages. Also as per
33 (e) vis-à-vis the Government of Odisha, the contractor
shall be primarily liable for payments to be made under and
for the observance of the regulations aforesaid without
prejudice to his right to claim indemnity from his sub-
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contractor. Hence as per statutory provision & Law of land I
am entitle to get & your esteem self is liable to pay me.
.40 x Rs. 5,32,22,080.00 x Rs. 70.00 - Rs.55.00 = Rs.58,06,045.00
Rs.55.00
(Rupees Fifty Eight Lakhs Six Thousand Forty Five) Only.
.40 = Labour component involved in Road work.
Rs.5,32,22,080.00 = Cost of work executed
considered.
Rs. 70.00 = Enhanced & Fixed labour rate as per
Notification of Appropriate Government.
Rs.55.00 = Prevailing labour rate at the time of
tender as per detail estimate.
Rs.58,06,045.00 = My dues, differential cost of enhanced
minimum wage rate.=
Reading through the claim of the Petitioner-the contractor,
this Court nowhere finds a single statement at least establishing
that there has been payment in terms of the wages revision
involved herein. For the condition strictly says, it is only after
payment is made which can be taken up consideration for
entitlement purpose, this Court here records the finding of the
Competent Authority in rejecting the claim of the Petitioner vide
Paragraphs-8 and 9 which runs as follows:-
<8. And whereas, he never objected the final settlement of
the works account. His acceptance of final measurement in
full and final settlement of his claim is duty signed by him
and recorded vide MB No.5755 Page-145 on dt.26.09.2011;
9. And whereas, with reference to his application
dt.01.12.2014, this office has asked lastly vide letter
No.8167 dt.18.11.2017 to submit the wages register, but no
information is received till date from him;=
13. This apart, this Court also from the reading of the counter of
Opp. Parties takes a concrete plea that upon submission of the final
bill, the Petitioner also accepted and signed in the final
measurement endorsing it to be in full and final settlement of his
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claim in the measurement Book vide MB No. 5755 on 26.09.2011.
This Court also refers the clear statement of the State Authority
through their counter that even though the Petitioner was asked to
complete the work within eleven months, the work has been
completed after four years but without any fault of the Government
nor there even involved any extension in favour of the Petitioner.
In the circumstance, this Court here finds, the Petitioner has no
sustainable claim.
14. Considering claim of the Petitioner seeking covering of the
case vide Mahesh Prasad Mishra vrs. State of Orissa and others
reported in 2012 (Supp-I) OLR 1035, this Court looking to the
position involving above case finds, there has been rampant misuse
of judgment in Mahesh Prasad (supra) as the judgment therein is a
judgment in personam and not a judgment in rem. There appears,
there is connivance between the contractor and Government
officials to pocket huge benefit wrongly applying such judgment or
some time even asking contractor to get an order on disposal of
pending representation then deciding such benefits in favour of the
contractor on illegal application of such judgment in an attempt to
gain personally and putting the State exchequer to loss. There is
never any benefit to the real beneficiary the labourers utilized for
the purpose. This clandestine action even in this case has been
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established as the contractor herein never produced payment
register at least establishing there is differential payment to
labourers involved.
15. It is in the above background while this Court finding the
Competent Authority justified in rejecting the claim of the
Petitioner vide Annexure-5 and confirming the same, likes to
observe here that from the last so many matters this Court
observes, there is not a single case coming on Board at least
establishing payment as per the escalation rate has been made and
thus there is a sustainable claim for imbursement of such additional
payment. There involves clear abuse of process.
16. For this Court finding the contractor making false claim
without even having foundation in terms of the clause 31(b) of the
agreement condition falsely engaging the Authority in deciding on
such false claim and then also engaging repeatedly this Court at
least in three occasions involving two Writ Petition and one
Contempt Application, it is time, there should be some major
checking flow of such false litigations.
17. In the process, this Court in dismissing the Writ Petition, for
the Petitioner brining false litigations in an attempt to check such
litigation imposes a cost of Rs.10,000/- (Rupees Ten Thousand) on
the Petitioner to be deposited in the District Red Cross Fund,
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Cuttack. Cost if not deposited in the District Red Cross Fund,
Cuttack at least within a period of seven days from the date of
communication of this Judgment, the Collector, Cuttack shall be
entitled to recover the same as public recovery under the provisions
of O.P.D.R. Act.
18. The Writ Petition is dismissed but however with order on
cost.
(M.S.Sahoo) (Biswanath Rath)
Judge Judge
Orissa High Court, Cuttack.
The 17th April, 2023//
Utkalika Nayak, Junior Stenographer
