Rasmi Ranjan Mohapatra vs
2023 Latest Caselaw 5586 Ori

                     ORISSA HIGH COURT : C U T T A C K
                                   W.P.(C) NO.13359 OF 2023
                      An Application under Articles 226 & 227 of the Constitution of India.


            Rasmi Ranjan Mohapatra                                   : Petitioner

                                               -Versus-

            State of Odisha & ors.                                   : O.Ps.



                  For Petitioner                      : Mr.J.K.Mohapatra, Adv.

                  For O.Ps.                           : U.K.Sahoo, ASC

                                               JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO

Date of Hearing & Date of Judgment : 10.05.2023

Per Biswanath Rath, J. The Writ Petition involves the following prayer:-

<In the aforesaid circumstances, it is humbly prayed that this Hon9ble Court be pleased to admit the writ petition, issue notice to the Opposite Parties calling for show cause as to why this writ application shall not be allowed and if the Opposite Parties fail to file any show cause or file insufficient cause the writ petition be allowed, the order dt.26.08.2022 passed by the Principal Secretary to Govt. Department of Works under Annexure-4 be quashed and necessary direction be passed to release the differential amount payable to the petitioner due to

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enhancement of minimum wages of labour during execution of work within a stipulated period.=

2. Background involving the case appears to be in the attempt to

challenge the order passed by the Principal Secretary to Government,

Works Department, O.P.1, on 26.8.2022, the Petitioner-Contractor

claims, pursuant to the tender for the work <Site Development for

Construction of proposed Kendriya Vidyalaya No.6 at Pokhariput,

Bhubaneswar=, the Application submitted by the Petitioner was accepted

being the lowest tenderer for the contract value of Rs.1,04,22,714/-. In

the process, the Petitioner was communicated with the acceptance of

tender by the Superintending Engineer, Bhubaneswar (R & B) Division-

III, O.P.4, vide letter dated 27.3.2012. As a development, an agreement

was executed between the Petitioner and the Executive Engineer, vide

assigning agreement no.-2 P1/2012-13. The Petitioner has averment

through Paragraph-3 of the Writ Petition that the work under contract

was to be commenced from 10.4.2012 and to be completed by 9.8.2012.

However, the work was actually completed on 2.8.2014. The Petitioner

also claims, the delay in finishing the work occurred for some reason at

the instance of the Department. There is however pleading that there has

been extension of contract till 2.8.2014. It is in the premises that in

execution of the work, there has been enhancement in the minimum

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wages by way of revised minimum wages Notification by the Competent

Authority, taking que from the decision in Mahesh Prasad Mishra vrs.

State of Odisha & ors. Reported in 2012(Supp.-I) OLR 1035, the

Petitioner submitted representation approaching the Competent

Authority for release of additional labour wages. For no attending to the

request of the Petitioner, it appears, the Petitioner filed a Writ Petition

bearing W.P.(C) No.7926/2021, which Writ Petition came to be disposed

of by a Division Bench of this court on 7.2.2022 directing the

Engineering-cum-Secretary to Government, Works Department to take a

decision on the representation of the Petitioner within a period of two

months from the date of receipt of copy of the order, vide Annexure-2. It

is claimed, upon receipt of the order of this Court, a Technical

Committee was constituted on 21.4.2022 taking five numbers of

Technical Experts. It is claimed, the Technical Committee prepared a

report on 13.6.2022 observing the Petitioner to be entitled to get the

differential amount arising out of enhancement of minimum wages as

appearing at Annexure-3. It is taking some observations of the

Committee, the Petitioner claims, there has been illegal rejection of the

claim of the Petitioner on his entitlement of enhanced minimum wages

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by the Principal Secretary to Government by its order dated 26.8.2022

resulting filing of the Writ Petition.

3. Mr.J.K.Mohapatra, learned counsel for the Petitioner in the

above factual background claims, there has been clear observation in the

Committee report entitling the Petitioner to differential minimum wages

and there has been mechanical consideration of such observation by the

Principal Secretary to Government. Mr. Mohapatra, learned counsel for

the Petitioner thus prays this Court for interfering with the impugned

order, vide Annexure-4 thereby setting aside the same and granting

appropriate relief in terms of the Committee observation.

4. Mr.U.K.Sahoo, learned Additional Standing Counsel

appearing for the O.Ps., however, taking this Court to the plea of the

Petitioner at Paragraph-3 of the Writ Petition contended, the period of

work in the contract remaining from 10.4.2012 to 9.8.2012 and the

revision Notification applying with effect from 6.10.2012 with stipulated

date of completion stated to be 9.8.2012, the notification pressed herein

has no application to the case at hands. Mr. Sahoo, learned Additional

Standing Counsel also contends, for undisputedly, the actual date of

completion on 2.8.2014, there is no application of this revised minimum

wages Notification to the case of the Petitioner. Further also taking this

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Court to the final observation of the Committee, vide Annexure-3, Mr

Sahoo attempted to take support of the said observation and objected the

entitlement of the Petitioner thereby submitting that there has been right

consideration by the Competent Authority in the rejection of the claim of

the Petitioner as appearing at Annexure-4 requiring no interference in the

impugned order.

5. Considering the rival contentions of the Parties, this Court

finds, undisputedly, the work period remains to be within 10.4.2012 till

9.8.2012. However, there has been extension taking the actual date of

completion of the work to be 2.8.2014. For P-1 agreement filed by the

Petitioner appearing at Page-10 of the Brief, Clause-33(a) of the

agreement reads as follows :-

<Clause-33(a)- The contractor shall not employ for the purpose of this contract any person who is below the age of twelve (12) years and shall pay to each labourer for work done by such labourers fair wages. PWD No.-22059 Dtd.-16.08.77.=

In Clause-33(a), fair wage means, wages, whether for time or piece work

prescribed by the State Public Works provided that where higher rate has

been prescribed under the Minimum Wages Act, 1948. Wages at such

higher rate should be considered. This Court here taking into

consideration the introduction of revised minimum wages circular even

taking into account the actual date of completion of work to be 2.8.2014,

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from the pleadings herein, nowhere finds, there has been actual payment

of higher wages dependent on the introduction of minimum wages

circular. To add to this, this Court finds, the Writ Petition is in a second

round litigation. In the first round of litigation, the Petitioner moved this

Court in W.P.(C) No.7926/2021 on the selfsame issue, but in the said

writ petition even there was no pleading on payment of higher wages, if

any. This Writ Petition appears to have been disposed of by this Court

with the direction as follows :-

4. Considering such submissions, this Court without expressing any opinion on the merits of the case, directs Opposite Party No.1-Engineer-in-Chief-cum-Secretary, Works Department, Government of Odisha to take a decision on the above noted representation of the Petitioner in accordance with law within a period of two months from the date of receipt of a copy of this order and communicate result of such exercise to the Petitioner.=

6. It appears, pursuant to such direction, Government thought it

appropriate to form a Technical Committee to look into the claim of the

Petitioner. The Committee in its proceeding on the claim of the

Contractor observed as follows :-

<II. Details of Claims of the Contractor :- The Contractor in his letter dated 16.10.2020 in the address of E.I.C.-cum-Secretary to Govt., Works Department with copy to Chief Engineer, Buildings, Odisha had claimed for differential cost of enhanced Minimum Wages enhanced from Rs.90/- to Rs.150/- with effect from 09.10.2012 vide Notification No.-1942

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dated 09.10.2012 in the line of the Order of Hon9ble High Court in W.P.(C) No.11158 of 1996 between Sri Suryamani Nayak vrs. Odisha State Housing Board and Others.=

7. On the disclosures in the representation through Paragraph-D

at Page-21 of the Brief, the Committee observed as follows :-

<D. Details of Compliance on the Representation :-

The S.E. Bhubaneswar (R & B) Division-III, Bhubaneswar has submitted a information sheet to Works Deptt. Vide Lt. no.1561 Dt.11.03.2022. In replythe S.E. has mentioned that Sri Rashmi Ranjan Mohapatra <A= Class contractor was given an affidavit for not claiming any escalation and compensation during the extended period.=

Through Paragraph-D, it becomes clear that the Contractor had given an

undertaking by way of affidavit for not claiming any escalation and

compensation during the extended period.

8. This apart, on examination of the case of the Petitioner

dependent on the observation and direction of this Court in Paragraph-F,

it is observed as follows:-

<F.Examination of Order of Hon9ble High Court By the Technical Committee:

The Technical Committee examined the Order of Hon9ble High Court in their Order No-2 dated 07.02.2022 with reference to the judgments given by the Hon9ble Court on similar case like order dated 17.11.2011 In the Writ Petition bearing W.P.(C) No.- 29271 of 2011 between Sri Mahesh Prasad Mishra Vrs.

State of Odisha and order dated 25.03.2019 of Hon9ble High Court, Odisha in W.P.(C) No-20724 of 2018

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between M/S Bhagabati Build & Construction Pvt. Ltd. vrs. State of Odisha as well as the views of Learned Advocate General, Odisha in his letter No-27646 dated 09.12.2020 on order dated 25.03.2019. In the Writ Petition bearing W.P.(C) No-29271 of 2011 between Sri Mahesh Prasad Mishra Vrs. State of Odisha and other the Hon9ble High Court, Odisha in their order dated 17.11.2011 opined that <the expression 8Escalation9 used in the agreement ordinarily means, an agreement allowing for adjustment up and down according to change in circumstances as in cost of material in a Works Contract or in cost of living in a wage agreement. The expression 8escalation9 would not bring within its sweep higher rate of wages which a contractor is otherwise liable to pay in view of the notification issued by the State Government under the provision of Minimum Wage Act, 1948, failing which he may have to face criminal prosecution. No equitable reason is also there to give extended meaning to the expression and bring such enhanced rate of wages within the area of compensation since payment itself made to the workers at higher rate is pursuance to a statutory notification issued under the provision of the Minimum Wages Act, 1948 and the claim of the contractor on that score is not for his own enrichment.= Hon9ble High Court, Odisha had also referred to the decision of Hon9ble Supreme Court, India in Tarapore and Co Vrs. State of Madhya Pradesh wherein the Apex Court had clearly held that the payment of wages as per the rate fixed under Minimum Wage Act is a statutory obligation and although the term of the contract is silent about payment of minimum wages, the contractor is statutorily bound to pay the minimum wages to the workers. The Hon9ble Court had also referred the judgment passed by the Division Benches of High Court, Odisha in similar cases between Suryamani Nayak Vrs. State of Odisha, Surendranath Kanungo Vrs. State of Odisha and M/S Nilagiri Corporation Society Vrs. State of Odisha. In view of aforesaid statement of Law which has been declared by the Hon9ble Supreme Court followed by the

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Division Benches of High Court Odisha, the Hon9ble High Court Odisha directed the Govt. Of Odisha to reimburse the enhance minimum wages to the petitioner Mahesh Prasad Mishra which has been implemented.=

Coming to the finding of the Committee at Paragraph-G

claims to be observed as follows:-

<G. Finding of the Technical Committee:-

The Technical Committee after due deliberation of the various judgments on similar cases as referred by Hon9ble High Court, Orissa, views of Learned Advocate General of Odisha in similar case and the representation of the Petitioner Contractor in his letter dated 16.10.2020 is of the opinion that present case i.e. W.P.(C) No-7926 of 2021 between Sri Rasmi Ranjan Mohapatra vrs. State of Odisha is covered within the per view of the order passed by Hon9ble High Court, Odisha in W.P.(C) No-29271 of 2011 between Mahesh Prasad Mishra Vrs. State of Odisha. The Committee unanimously recommends that as per the above mentioned order of Hon9ble High Court, Odisha dated 07.02.2022 in W.P.(C) No-7926 of 2021, Sri Rasmi Ranjan Mohapatra is eligible to get the differential amount arises out of enhancement of minimum wages as notified by the Govt. of Odisha in Labour & ESI Department in their Notification No-8536 dated 06.10.2012 on the value of work scheduled to be executed after date of enhancement of minimum wages as per the approved work programme or as per actual execution whichever is less and as per actual involvement of labour component for such works as per analysis.=

For the findings of the Committee, the Committee unanimously

recommended that the Petitioner would be eligible to get the differential

amount arises out of enhancement of minimum wages as notified by the

Government of Odisha in Labour & ESI Department in their Notification

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No.8536 dated 6.10.2012 on the value of work scheduled to be executed

after the date of enhancement of minimum wages as per the approved

programme or as per the actual execution whichever is less and as per

actual involvement of labour component for such works as per analysis.

9. Keeping in view the report of the Committee, the Principal

Secretary to Government following the direction of this Court required

to take decision, vide Annexure-4 came to observe as follows :-

<AND WHEREAS, the claim of labour escalation of the petitioner contractor in the instant case is for the period from 09.10.2012 (date of Notification in Gazette) to 02.08.2014 (date of actual completion of the work). At the same time, it is observed that the said period from 09.10.2012 to 02.08.2014 is covered under extended time period beyond the original intended completion period and during the said extended period, the delay being attributable to the contractor, penalty has been imposed for delayed completion of work in the Office of the Superintending Engineer, Bhubaneswar (R&B) Division No.III. It is also observed that Clause 31(b) of the contract agreement clearly postulates that for reimbursement of increased wage rate, one of the pre- condition is that work has to be carried out within stipulated time or extension thereof is not attributable to the contractor. In the instant case, the delay in completion of the work is clearly attributable to the contractor and for which penalty has been imposed.=

10. Reading through the above, this Court finds, there has been

taking into account the provision contained in Clause-33(b) of the

contract agreement and thereby there is denial of the claim of the

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Petitioner. This Court finds, there is no infirmity in such bill of the

Competent Authority.

11. To add to the above, reading the Gazette Notification

involved herein on the enhancement of minimum labour wages, this

Court finds, the revised minimum wages have no automatic application

to all cases. In bringing in such claim a contractor has to first satisfy that

there is such provision in the agreement and secondly there must be

proof in release of enhanced wage. This contingency must prevail to

avoid unjust enrichment to the contractors as benefit in fact does not go

to the real beneficiaries.

12. It is on the restriction through Clause-31(b) of the contract

agreement and no establishing of payment of escalated wages to the

labourers, this Court finds, Contractors are busy in taking advantage of

the decision in Mahesh Prasad Mishra (supra) and attempting to earn this

amount for themselves, which is not permissible in the eye of law.

13. It is at this stage, Mr. Mohapatra, learned counsel for the

Petitioner seeks leave of this Court to rebuild the contractor9s case to fit

into revised minimum wage circular.

This Court first of all finds, there is no foundation to such

claim, secondly lot of exercises have been done at different ends by

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different competent authorities and thirdly the issue raised here is almost

ten years back leaving no scope to entertain such request in 2023. In the

ultimate outcome, this Court finds, there is no defect in the impugned

order requiring to interfere in the same. The Writ Petition thus stands

dismissed and in the circumstance, there is no order as to cost.

                          (M.S.Sahoo)                                           (Biswanath Rath)
                            Judge                                                    Judge




                          Orissa High Court, Cuttack.

The 10th May, 2023/M.K.Rout, A.R.-cum-Sr.Secy.

Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Designation: Astt.Registrar-cum-Sr.Secretary Reason: Authentication Location: High Court of Orissa Date: 15-May-2023 18:06:41