Bijay Kumar Sahoo vs Commissioner-Cum-Secretary To
2023 Latest Caselaw 2470 Ori

        ORISSA HIGH COURT : C U T T A C K
                      W.P.(C) NO.6871 OF 2012
                   An application under Articles 226 & 227 of
                        the Constitution of India.


Bijay Kumar Sahoo                                         : Petitioner

                                -Versus-

Commissioner-cum-Secretary to
Govt. Panchayat Raj Department,
Bhubaneswar & Ors.                                 : Opposite Parties


     For Petitioner                   : Mr.M.K.Mishra, Sr. Adv.
                                        Mr.D.K.Pattnaik,Adv.

     For O.Ps.                        : Mr.S.Ghose, AGA

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO

Date of Hearing & Judgment : 28.03.2023

1. This Writ Petition involves the following prayer:-

<It is, therefore, humbly prayed that this Hon'ble Court may graciously be pleased to issue Rule Nisi calling upon the Opp. Parties to show cause as to why appropriate writ/writs shall not be issued directing the Opp. Parties to pay the arrear revised wages of the Petitioner from the initial date of engagement as per the labour and employment notification under Annexure-5,8,11 Series and subsequent notifications of Labour and Employment Department within a stipulated time and also why direction shall not be issued to the Opp. Parties

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to release shall not be issued to the Opp. Parties to release the current wages regularly as per the said notification and on perusal of causes shown if any or upon insufficient causes shown make the said rule absolute and may pass such other order/orders as deemed just and proper.

And for this act of kindness, the Petitioner shall as in duty bound, ever pray=.

2. With the intention of the State Government to improve the

quality of governance of water supply and sanitization services in

rural areas, Government in Rural Development Department-

Opposite Party No.2 vide Annexure-2 on 27.09.2006 intimated all

the Collectors and Chief Executive Officers, Zilla Parishad the

decision of the Government that the Gram Panchayat will take over

rural drinking water supply assets and manage them taking into

account linkages with environment management and health

outcome, utilizing grants under the 12th Finance Commission Award

for the initial years. It was also mentioned therein that Rural

Development Department and Panchayati Raj Department have

jointly worked out the modalities for carrying out operation and

maintenance functions of rural drinking water supply systems

through the Gram Panchayats.

3. It is for the development through the aforesaid intention of

the State Government, there has been issuing of letter dated

20.10.2006 again to all the Collectors and Chief Executive, Zilla

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Parishad, wherein it is stated that all the Gram Panchayats will take

over all the rural drinking water supply systems and maintain the

same. Paragraph-6 of the said letter clarifies that the Gram

Panchayat will pay the wages of SEM/NMR/HR/DLR. The copy of

letter dated 20.10.2006 appears to be at Annexure-3.

4. It is in the above development there was requirement of

engagement of Pump Operator/ Driver to facilitate the rural piped

water supply scheme since Panchayats have no Pump

Operator/Driver available in control of RWS &S organization so far

the Madhupura Gram Panchayat, it was to recruit Pump

Operator/Driver. Through Annexure-4, it has been brought to the

notice of the Court that in the above recruitment process, Petitioner

herein has been engaged as a Pump Operator under the Direct

Administration Control of the Madhupura Gram Panchayat.

5. On perusal of Annexure-4, this Court finds, this is an

engagement order in favour of the Petitioner being appointed as

Pump Driver of Madhupura Gram Panchayat Pump House managed

by Madhupura Gram Panchayat and the Petitioner was to get

remuneration @ Rs.1000/- (rupees one thousand) per month. This

apart Petitioner was also entitled to get all Government payment

provision and other facilities in future.

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6. It is while the Petitioner continuing as such after coming to

know the notification issued by the Labour & Employment

Department in enhancement of the minimum wages dated

28.04.2007 and further the circular being issued by the Panchayat

Raj Department on 27.01.2007 to all the Collectors and Chief

Executive, Zilla Parishad regarding payment of wages to field

employees working in rural water supply projects vide Annexures-5

& 6, further following another notification indicating the sanction of

funds by the 12th Finance Commission vide the circular dated

07.05.2008 vide Annexure-7 and further department notification

dated 13.07.2009 vide Annexure-8 prescribing the person working

as Pump Operator is entitled to get benefit @ Rs.116/- (rupees one

hundred sixteen) per day, Petitioner went on making approach to the

Competent Authority for being governed by the notification

indicated hereinabove and facilitating the Petitioner in the

entitlement with the minimum wages prescribed therein.

7. It is alleged that the Competent Authority not adhering to the

request of the Petitioner on the premises that the Petitioner is not

discharging same and similar duty like that of all Pump Operator/

Driver shall work for eight hours per day as claimed at paragraph-13

also herein taking support of the letter dated 08.08.2011 vide

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Annexure-9, Petitioner came to this Writ Court with the prayer as

indicated hereinabove.

8. In course of hearing Mr.Mishra, learned Senior Counsel for

the Petitioner in reference to all the documents referred to

hereinabove straightway took this Court to the order in disposed of

similar matters by a Coordinate Bench of this Court and placing the

direction of the Coordinate Bench in disposal of W.P.(C) No.16838

of 2009 claimed similar benefit in terms of the direction therein. In

filing the written note of submission Mr.Mishra, learned Senior

Counsel for the Petitioner also refers to another order of a

Coordinate Bench in disposal of the Writ Petition vide W.P.(C)

No.13944 of 2012 claims vide order dated 06.12.2012 therein, there

is already direction to the Opposite Parties to pay wages to the

Petitioners as per notification dated 13.07.2009 being the cause of

action in the said Writ Petition. Taking this Court to the counter plea

in the Contempt Petition vide CONTC No.1146 of 2013 arising out

of W.P.(C) No.6871 of 2012 and the statement of the deponent in

paragraphs-4, 5 & 6 therein, Mr.Mishra, learned Senior Counsel also

claims that there has been already extension of benefit of the

minimum wages notification in respect of the Petitioner therein. It is

in the above background Mr.Mishra, appearing for the Petitioner

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claims allowing the Writ Petition. Mr.Mishra, learned Senior

Counsel claims allowing the Writ Petition and covering the direction

in all such Writ Petitions also to the case of the Petitioner.

9. Mr.Ghosh, learned Additional Government Advocate in

reference to the counter affidavit and the plea taken therein while

attempting to draw the attention of this Court through the counter

affidavit submitted, for the nature of the appointment involved

herein conditions applied in case of the Petitioner vide Annexure-4,

there is no establishing of the fact that the Petitioner discharges the

same and similar duty. There is however no dispute as to the

disposal directions in the Writ Petitions vide W.P.(C) No.16838 of

2009 & W.P.(C) No.13944 of 2012. Further there is also no dispute

with regard to the compliance direction in terms of disclosure in

Contempt Petition vide CONTC No.1146 of 2013 arising out of

W.P.(C) No.6871 of 2012 clearly disclosing that there has been

compliance through the direction of the Writ Petition applying the

minimum wages notifications to the Pump Operator/Driver in

Madhupura Gram Panchayat itself. Mr.Ghosh, however contends for

the Petitioner herein engaging Gram Panchayat level the direction, if

any, to be given by this Court should be aimed to Opposite Party

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No.6 as ultimately Opposite Party No.6 is the employer of the

Petitioner herein.

10. Considering the rival contentions of the parties this Court

finds, question as to the establishment at the instance of the

Petitioner that he discharges the same and similar duty. For there is

disposal of two Writ Petitions indicated herein above has already

been put to rest. For the opinion of this Court, for there is no

challenge to the direction above two Writ Petitions, there is no

possibility of deviation. At the first instance, this Court finds, in

disposal of the earlier Writ Petition a Coordinate Bench of this Court

in disposal of W.P.(C) No.16838 of 2008 vide order dated

07.03.2013 came to direct as hereunder:-

<Heard.

The Petitioners in this Writ application has made the following prayer:-

<It is, therefore, humbly prayed that this Hon'ble Court may graciously be pleased to issue Rule Nisi calling upon the opposite parties to show cause as to why appropriate writ/writs shall not be issued directing the opposite parties to pay the arrear revised wages of the Petitioners from the initial date of engagement as per the labour and employment notification under Annexure-5 within a stipulated time and also why direction shall not be issued to the opposite parties to release the current wages regularly as per the said notification quash the order of disengagement under Annexure-10 in case of Petitioner no. 5 and not to disengage other Petitioners and regularize the service of the Petitioners in the post of Pump Driver and on perusal of causes show if any or upon insufficient causes shown make the said rule

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absolute and may pass such other order/orders as deemed just and proper.= By interim order dated 5.5.2011, a direction was issued to the Opposite parties to pay wages to the petitioners as per Employment Notification dated 13.07.2009. This Court observed that depending on the category to which the petitioners belong they are entitled to wages as per the said Employement Notification and if they are not being paid the wages as per their category, steps be immediately taken for payment of their wages in terms of the said Notification.

Again in Misc. Case No. 16686 of 2012, the Petitioners alleged that some of the Petitioners have not been paid their salary in terms of the order dated 5.5.2011. This Court, therefore, passed an order directing that the entire wages of the Petitioners 2 and 5 to 8 shall be released by 16 th October, 2012. The same having not been done, a contempt petition has been filed.

Shri Manoj Mishra, learned counsel appearing for the Petitioners submits that pursuant to filing of the contempt petition, payment has been made to some of the Petitioners, but in respect of some of the Petitioners, payment has not been made and as a matter of fact, under Annexure-10, the Sarapanch, Soharia Grama Panchayat has disengaged Petitioner No. 5.

Upon hearing the learned counsel for the parties, we find that payment is to be made to the Petitioners by the respective Grama Panchayat, who have been impleaded as parties. We, therefore, dispose of this writ application directing the respective Grama Panchayats to pay the entire wages including the outstanding wages due to the Petitioners and Sarapanch, Soharia Grama Panchayat, who has issued the letter to Petitioner No.5 during pendency of the contempt petition, is directed to re-engage petitioner no.5 and pay his all arrear wages.

Learned counsel for the State submits that in the counter affidavit, it has been stated that Petitioner no.3 Rabindra Kumar Giri, was disengaged prior to filing of the writ application. With regard to payment of wages both arrear and current in respect of Petitioner No.3, Rabindra Kumar Giri, the concerned Grama Panchayat shall find out, if he is still working, as stated by Shri Mishra, learned Senior Counsel for the petitioners. In the event, it is found that he is

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still working, his wages shall also be paid to him. All such arrears shall be paid by end of April, 2013. This order shall be communicated to the opposite parties at the cost of the petitioners.

Requisites for communication of this order shall be filed by Monday.

Urgent certified copy of the order be granted on proper application.=

11. Similarly looking to the written note of submission and the

order of another Coordinate Bench taken note therein, this Court

finds, in similar situation another Coordinate Bench of this Court in

disposal of W.P.(C) No.13944 of 2012 vide order dated 06.12.2012

came to observe as follows:-

<Heard learned counsel for the Petitioners and learned Addl. Standing Counsel.

2. This Writ Petition has been filed for a direction to the Opposite Parties to pay wages to the Petitioners as per Notification dated 13.07.2009 under Annexure-1 issued by Labour and Employment Department.

3. Depending on the category to which the Petitioners belong, they are entitled to wages as per notification dated 13.07.2009. If the petitioners are not being paid the wages as per their category, steps shall be taken for payment of their wages in terms of the aforesaid notification within a period of four weeks from the date of receipt of this order.

With the above direction this writ petition is disposed of.=

12. Through the document at Annexure-18, this Court finds, this

show cause affidavit has been filed by the Block Development

Officer, Baliapal, being Opposite Party No. 4 herein in Contempt

Petition vide CONTC No.1146 of 2013 arising out of third case

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herein vide W.P.(C) No.6871 of 2012 again similar nature of cases.

Through paragraphs-4, 5 & 6 therein, the deponent i.e. the Opposite

Party No. 4 herein has the following clear statement on oath:-

<4. That it is humbly submitted that in the meantime the Contemnor/Opp. Party No. 4 has already paid the entire arrear amount as well as current remuneration to the Petitioner who is working as Pump Driver/Operator under Madhupura Gram Panchayat from August-2009 to October-2012 @ Rs.116/- per day and from November-2012 to April-2014 @ Rs.190/- per day which is the total amount of Rs.2,41,432/- and the same has been paid to him vide Cheque No. 813561 dated 23.05.2014 considering him as skilled labourer.

Copy of the money receipt is filed herewith as Annexure-A/4.

5. That it is humbly submitted that this Hon'ble Court has directed Opp. Parties to determine the category of the Petitioner. Accordingly clarification was sought for from concerned authority and it is finally determined that the Petitioner is a skilled labour as per Employment Notification dated 13.07.2009. Therefore, after calculating the total arrear amount as well as current remuneration the Petitioner has already been paid Rs.2,41,432/- vide Cheque No. 813561 dated 23.05.2014.=

6. That it is respectfully submitted that the opp. Party No.4 has great respect to the order of this Hon'ble Court and the opp. Party No.4/Contemnor has no deliberate intention to delay in complying the order of this Hon'ble Court rather due to determination of the category of the petitioners some delay has occurred and in the meantime the opp. Party No.4/Contemnor has already complied the order of this Hon'ble Court.=

13. From the response of Opposite Party No.4 taken note

hereinabove, this Court finds the above version of the deponent, the

B.D.O. therein in response to CONTC No.1146 of 2013 arising out

of the present Writ Petition itself. Coming back to scan the

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proceeding record of the case at hand, this Court finds, vide order

No.4 dated 28.01.2013 in the interim application of the Petitioner

vide Misc. Case No.6032 of 2013, the Division Bench of this Court

in the pendency of the Writ Petition came to pass the following:-

<Heard.

This Misc. Case has been filed direction to the opposite parties to pay wages of the petitioners as per Employment Notification dated 13.07.2009. Depending on the category, to which the petitioners belong, they are entitled to wages as per the Employment Notification dated 13.07.2009. If they are not being paid the wages as per their category step be immediately taken for payment of their wages in terms of the said Notification by the appropriate authority, who is to pay such wages.

The Misc. Case is disposed of.

Urgent certified copy of this order be granted.=

14. It be stated here that none of the orders/directions

hereinabove not been challenged rather there is clear statement that

all these orders have been worked out. There is even proof of

payment in this case itself up to April, 2014 following the

command in the minimum wages notifications prevailing at that

point of time.

Considering there is already application of employment

notification dated 13.07.2009 by that time, there was direction by

the Division Bench to make payment to the Petitioner herein in

terms of the employment notification dated 13.07.2009. This Court

observes, there is already part allowing of the Writ Petition so far it

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relates to implementation of employment notification dated

13.07.2009 even during pendency of the Writ Petition. There is

clear statement by the learned State Counsel that there is no

challenge to this order.

Through Paragraph-4, there is also clear mentioning by

Opposite Party No.4 to have paid the Pump Driver under Madhupura

Gram Panchayat involved herein from August 2009 to October 2012

@ Rs.116/-(rupees one hundred sixteen) per day and from

November 2012 to April 2014 @ Rs.190/- per day and in the

process, there has been release of sum of Rs.2,41,432/- (rupees two

lakh forty one thousand four hundred thirty two) paid vide Check

No.813561 dated 23.05.2014.

15. In the above scenario, it is clear that there is already

application of minimum wages as per notification issued from time

to time in case of Pump Operator/Driver even in Panchayat. It is in

the view of the matter, this Court finds, there has been repeated

directions in disposal of at least two Writ Petitions direction therein

for compliance of order in terms of minimum wages notification.

There is also a direction vide order dated 28.1.2013 for

implementation of the notification of minimum wages dated

13.07.2009. To add to this, there has been compliance of minimum

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wages notification in respect of the Petitioner as per the whole

averments of the B.D.O. - Opposite Party No.4 herein at least till

April 2014. This Court therefore finds, there is no room for

declining the benefit claimed by the Petitioner in the application of

the further minimum wages notification in terms of the last Gazetee

Notifications referred therein by the Petitioner vide Annexure-11

series, the notification dated 24.07.2015, 21.10.2020 and further

notification dated 02.11.2021.

16. This Court accordingly allowing the Writ Petition directs

the Opposite Party No.6 in extending the minimum wages benefit

under Notifications since 2015 to 2021, to enter into the calculation

on the payment of arrear wages to the Petitioner in terms of the

Gazetee notification issued by the Labour & E.S.I. Department since

24.07.2015 and in the calculation paid up to the last notification

dated 02.11.2021 and find out the arrear required to be paid to the

Petitioner. The arrear as per the calculation following the direction

of this Court be also released in favour of the Petitioner herein at

least within a period of one month and the payment of arrear be

made to the Petitioner within a further period of fifteen days of the

calculation. Failure of payment as per above time stipulation, the

Petitioner will be entitled to interest @ 6% per annum all through.

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17. The Writ Petition succeeds but in the circumstance there is

not order as to cost.

(Biswanath Rath) Judge

(M.S.Sahoo) Judge

Orissa High Court, Cuttack.

The 28th March, 2023/Swarna, Junior Stenographer.