Dismissed

State of Jharkhand through the Range Forest Officer v. Deputy Labour Commissioner-Cum Appellate Authority

Jharkhand HC9 Sept 2021WPC/1827/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by the State of Jharkhand challenging a minimum wages award. The court noted the petitioner's ten-year delay in removing defects and producing records, rejecting arguments based on lack of evidence due to the Apex Court's guidelines on writ jurisdiction while directing interest recovery from negligent officers.

What did the court decide?

The writ petition was dismissed. The State was directed to pay the awarded amount with 7.5% interest, which shall be recovered from erring officers.

State of Jharkhand through the Range… — Pension and Retirement Benefits | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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[Civil Writ Jurisdiction] W.P. (L) No. 1827 of 2011

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The State of Jharkhand through Ajay Kumar, S/o Sri Sheonandan Prasad, R/o Deoghar, Forest Colony P.O., P.S. and District-Deoghar ...Petitioner

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Versus

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The Deputy Labour commissioner-cum-Appellate Authority, Santhal Paragana Division, Dumka and Others ...Respondents

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...Respondents

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CORAM : HON’BLE MR. JUSTICE KAILASH PRASAD DEO (Through: -Video Conferencing)

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......... For the Petitioner/State : Mr. Kaushik Sarkhel, G.A.-V Ms. Bandana Sinha (A.C to G.A.-V) For the Respondents :

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06/09.09.2021

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Heard, learned counsel for the petitioner, Mr. Kaushik Sarkhel, G.A.-V assisted by learned counsel Ms. Bandana Sinha (A.C to G.A.-V).

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The writ petition has been filed by the State through Ajay Kumar, S/o Sri Sheonandan Prasad, R/o Deoghar, Forest Colony, P.O., P.S. and District-Deoghar, being the Range Officer Soil Conservation Range Deoghar for quashing the order dated 08.07.2008, passed in Minimum Wages (M.W.) Case No.06/2006 and 07/2006 whereby the Assistant Labour Commissioner cum Authority under the Minimum Wages Act, 1948 allowed the petition filed under Section 20(2) of the Minimum Wages Act, 1948. Against the aforesaid order an appeal has been preferred before the Appellate Authority vide Appeal No. M.W.-3/2009(Appeal), which has also been dismissed vide order dated 22.12.2009.

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The instant writ petition has been filed on 07.04.2011 and the Stamp Reporter has pointed out defect on 07.04.2011with regard to defect no.3 i.e. original copy of Annexure 3 and 4 may be given with Rs 10/- as authentication fee. but the defect has not been removed. Thereafter, the matter was listed before Lawazima of learned Registrar (Establishment) on 20.05.2011, but nobody appeared on behalf of the petitioner/State, the defects remained as it is. The matter was again listed before Lawazima of learned Registrar General on 27.01.2021, but nobody appeared again on behalf of the petitioner-State, though two weeks’ time was granted to remove the defect, the same has not been removed. Thereafter, the matter was listed before the Co-ordinate Bench on 10.03.2021 under heading for order with defect and on prayer of the learned counsel for the petitioner/state Mr. Kaushik Sarkhel, G.A.-V, four weeks’ time

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was given to remove the defect, even then the defect(s) have not been removed.

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Thereafter, the matter was listed before this Court on 02.09.2021 wherein this Court has asked the learned counsel for the State to explain that in case the writ petition is dismissed, who will pay the interest on compensation awarded by the learned Tribunal for this intermediary period of 10 years i.e., from period of filing of instant writ petition i.e. 7.04.2011 till the date of removal of defects.

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On the lackadaisical approach of the petitioner/State, the learned counsel has submitted that he was empanelled as a State counsel in the Month of June 2020.

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Learned counsel for the petitioner/State has further submitted that when the matter was listed before the Co-ordinate Bench on 10.03.2021 and four weeks’ time was granted for removal of the defect, but because of the Covid-19 pandemic the order could not be complied, as such, there was no negligence on part of the counsel in not filing the document which was issued on 10.05.2011 by the authorities.

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Learned counsel for the petitioner/State has further submitted that in pursuant to the order dated 02.09.2021, he has filed the documents on record on the very next day i.e. on 03.09.2021 and as such under the aforesaid circumstances, this Court may consider the same and pass appropriate order.

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Learned counsel for the petitioner/State has submitted that though the petitioner (Range Forest Officer) and Divisional Forest Officer have appeared before the Assistant Commissioner authorized under the minimum wages Act, but they could not file any written statement and the court below without affording further opportunity, allowed the claim in the favour of plaintiff/respondent. The appellate court has also not considered that the proceeding before the court below was ex-parte proceeding, as such, proper opportunity has not been given to the petitioner/state in the original court as well as before the appellate court to plead his case, therefore, impugned orders may be set aside.

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Learned counsel for the petitioner/State in support of his submission has placed reliance upon the judgment passed by the Apex Court in the case of Malluru Mallappa vs. Kuruvathappa & Ors. reported in 2020 (4) SCC 313 wherein the Apex court has held that the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person, as such, considering the same the impugned order may be set aside.

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Learned counsel for the petitioner/State has further submitted that Annexure-5 of the writ petition is the photocopy of the attested copy of the

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relevant portion of Range Cashbook by which petitioner/State wants to show that the labourers have only worked from 30.10.2002 to 15.03.2004. From Annexure5 it will be apparent that Uma Charan Rai has only worked for period of 01.01.2004 to 15.03.2004, Upendra Rawani has worked from 16.10.2003 to 03.11.2003, Mahesh Rawani has worked from 01.01.2004 to 15.03.2004, Jagdeo Yadav has worked from 26.01.2004 to 15.03.2004, Mr. Ajit Choudhary has worked from 04.11.2003 to 14.01.2004, Umesh Choudhary has worked from 01.01.2004 to 15.03.2004 and the plaintiff/respondent failed to produce any document before the courts below to substantiate their pleading that he has worked for the period 2004 to 2005, as such, the impugned order passed by both the courts below are bad in law and facts.

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After hearing, learned counsel for the petitioner/State, it appears that this case has very checkered history. From perusal of Annexure-3 i.e., order dated 08.07.2008, passed in Minimum Wages (M.W.) Case No.06/2006 and 07/2006 by the Assistant Labour Commissioner-cum-Authority under Minimum Wages Act, 1948, at internal page no.3 that defendant Forest Divisional Officer and Forest Range Officer have admitted that labourer, Uma Charan Rai, S/o Foudi Rai, R/o Village- Bandy, P.S.- Jasidih, District- Deoghar has worked in the organization in the year, 2002-03. Since the claim was with respect to period from March, 2004 to October, 2004 @ Rs.1679.86/- per month and November, 2004 to February, 2005 @ Rs.1760.72/- per month, the defendant (petitioner/state herein) was granted time by the learned Assistant Labour-cum-Authority under Minimum Wages Act 1948, to produce the Hazri and payment register in the court in order to verify the same.

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It further appears from the perusal of the order dated 08.07.2008 that the Divisional Forest Officer as well as Forest Range Officer failed to produce the relevant documents and even after adjournment and after sending intimation under registered cover, they chose neither to appear nor contest the case and thus, the court decided the matter on the basis of the pleadings of the parties.

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From perusal of the appellate court order, it also appears that Divisional Forest Officer as well as Forest Range Officer were equally not diligent in pursuing their matter. The documents which have not been annexed with the Writ Petition, so as to examine the grounds taken by the petitioner-State before the learned appellate court as an appellant. This Court has directed the learned counsel for the petitioner/State to produce the photocopy of the memo of appeal preferred before the appellate authority in Appeal No.M.W.-03/2009 (Appeal),

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upon which learned counsel for the petitioner/State, Mr. Kaushik Sarkhel has submitted that the same is not available with the State counsel.

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It appears from the perusal of the order dated 08.07.2008 passed by the learned Assistant Labour Commissioner-cum-Authority under the Minimum Wages Act, 1948 as well as the entire records of the case, it is apparent from internal page no.3 of the impugned award, which is running page 33 of the writ petition that even after giving proper time to the Divisional Forest Officer and Forest Range Officer as well as informing them through registered notice, the hazri register and salary register have not been produced to verify the minimum wages paid from March, 2004 to 2005 rather the Annexure-5, which has been brought on record before this Court for the first time, is up to 15^th March 2004, meaning thereby, that still the officers have not placed the entire financial record of the year, 2004-2005 i.e. from 01.04.2004 to 31.03.2005.

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Thus, the Assistant Labour Commissioner was compelled to pass an order as the Divisional Forest Officer, Deoghar and Forest Range Officer, Deoghar have not produced the hazri register and salary register for the financial year 2004-2005 to verify the claim with respect to March, 2004 @ Rs.1679.86/- per month to Feb.,2005 @ Rs.1760.72/- per month. For these periods, the Divisional Forest Officer and Forest Range Officer have not produced the record in accordance with order passed by the Assistant Labour Commissioner cum Authority as well as the Appellate authority as per claim case.

¶31

The Hon’ble Apex court in the case of Bharat Singh v. State of Haryana reported in (1988) 4 SCC 534 has held that in absence of annexure in support of the facts pleaded cannot be entertained by the court under writ jurisdiction. Para - 13 of the aforesaid judgement is profitably quoted hereunder

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“13 . As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counteraffidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and

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a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.”

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Under the aforesaid circumstances, they are unable to submit before this Court regarding the grounds taken by the petitioner-State before the learned appellate court to assail the original order passed before the learned Assistant Labour Commissioner, rather the counsel for the petitioner/State is harping upon the judgment passed by the Apex Court in the case Malluru Mallappa (Supra) whereby the duty has been cast upon the learned appellate court to decide the matter in all the issues agitated before the appellate court.

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This Court has examined the judgment relied upon by the counsel for the petitioner-State for which is related with the Code of Civil Procedure under Order XLI Rule 3 as there is difference in appeal under Section 96 and 100 of the CPC, as such, aforesaid judgment has nothing to do with the present Writ Petition preferred under the Minimum Wages Act or its appeal already preferred before the Appellate Authority.

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Considering all the aspects of the matter, it appears that under the Minimum Wages Act, 1948, which was enacted on 15.03.1948 to provide or fix the minimum rate of wage in employment. It is apparent that the petitioner/State has not produced the entire records with respect to the dates for which the worker has claimed the compensation i.e. period from March, 2004 to October, 2004 and November, 2004 to February, 2005 by bringing on record or any document in compliance of the order of the Assistant Labour Commissioner, the original court or by Deputy Commissioner-cum-Appellate authority in the appellate jurisdiction rather the Annexure-5 to the writ petition itself shows that it has been brought on record with regard to the period from 01.01.2004 to 15.03.2004 and thereafter they have not brought any record before this Court with regard to period i.e. 16.04.2004 to October 2004 and Nov.2004 to Feb.2005.

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Even then petitioner/State has not filed the documents to meet the finding recorded by the learned Assistant Labour Commissioner before the appellate authority and the appeal was filed in a perfunctory manner without agitating any issue and the copy of the same has also not been annexed with the Writ Petition nor the same is available with the State counsel, who is arguing on behalf of the

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State before this Court.

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The Hon’ble Apex court in the case of International Airport Authority of India v. International Air Cargo Workers' Union reported in (2009) 13 SCC 374 has held that the High Court under writ jurisdiction cannot disturb and interfere with the findings recorded by the Tribunal unless the findings were based on no evidence. The paras 47 and 48 of the judgement is profitably quoted hereunder-

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“47. It is true that in exercising the writ jurisdiction, the High Court cannot sit in appeal over the findings and award of the Industrial Tribunal and therefore, cannot reappreciate evidence. The findings of fact recorded by a fact-finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered with in writ jurisdiction merely on the ground that the material on which the Tribunal had acted was insufficient or not credible.

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48. It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be interfered with merely because another view is also possible. But where the Tribunal records findings on no evidence or irrelevant evidence, it is certainly open to the High Court to interfere with the award of the Industrial Tribunal.\”

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Under the aforesaid circumstances and in view of the finding of the facts recorded by two courts below and after giving ample opportunity to the petitioner, Divisional Forest Officer and Forest Range Officer to produce the record, as the courts below have passed an order directing the appellant to pay a sum of Rs.26,273.80/- as per Form 7 appended with the Writ petition, this Court is not inclined to interfere with the same.

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From perusal of the impugned award passed by the learned appellate court, it appears from page 35 of the instant writ petition that impugned award has been passed on 22.12.2009 in Appeal No.M.W.-03/2009 (Appeal), the application for obtaining the certified copy of the order was filed on 29.04.2011, the notification was issued on 29.04.2011, the requisite fee was deposited on 29.04.2011, the copy was to be prepared on 29.04.2011 and thereafter it was handed-over to the authorized person on 10.05.2011, but prior to that they have preferred this writ petition on 07.04.2011 but the defects have not been removed till 02.09.2021 and the defect has only been removed on 04.09.2021 after the order of this Court dated 02.09.2021.

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The aforesaid instance clearly indicates the lackadaisical approach of the petitioner/State in pursuing the case. It is worth mentioning here that when a party is not interested in pursuing the litigation in accordance with law and in compliance of the order passed by this Court, such mischief is committed by the litigants in delaying the disposal of the claim application. In the aforesaid circumstances this Court has taken a serious view regarding payment of interest on the compensation amount awarded by the learned Tribunal for this

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intermediary period of 10 years to the workers under Minimum Wages Act.

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Section 2 of the Interest Act, 1978 profitably be quoted hereunder:-

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“2.Definitions – In this Act, unless the context otherwise requires,-

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(a) “Court” includes a tribunal and an arbitrator;

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(b) “current rate of interest” means the highest of the maximum rates at which interest may be paid on different classes of deposits (other than those maintained in savings account or those maintained by charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949 (10 of 1949).

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(c) “debt” means any liability for an ascertained sum of money and includes a debt payable in kind, but does not include a judgment debt; (d)”personal injures” includes any disease and any impairment of a person's physical or mental condition;

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(e) all other words and expressions used herein but not defined and defined in the Reserve Bank of India Act, 1934 (2 of 1934), shall have the meanings respectively assigned to them in that Act.”

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The interest as simple interest @ 7.5% per annum. shall be paid in accordance with the judgment passed by the Apex Court in the case of Thazhathe Purayil Sarabi and others vs. Union of Indian and another, reported in 2009(7) SCC 372 at para 38. Para 38 profitably be quoted hereunder; -

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“38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims.”

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However, this Court directs the Chief Secretary of the State of Jharkhand that the Award amount shall be paid along with interest @ 7.5% per annum from the date of due wages of the workmen in view of Section 2 of the Interest Act, 1978, which shall be paid by the State of Jharkhand within a reasonable time as the issue is with regard to Financial Year, 2004-05.

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However, this amount shall be paid by the State of Jharkhand, but the interest part shall be recovered from the erring officer(s) after holding an inquiry by the Chief Secretary, Government of Jharkhand, as such issues are rampant in the State of Jharkhand, where the Writ petitions or appeals are being preferred, without removing the defects, the appeals/writ petitions remain pending for years together and at the end of the litigation the interest is to be paid by the State of Jharkhand, which is paid from public money because of the default committed by an erring officer(s).

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Under the aforesaid circumstances, this Court directs the Chief Secretary, Government of Jharkhand to ascertain responsibility of the erring Officer(s) for such delay in disposal of the appeals/writ petitions and the interest accrued shall be recovered from said officer(s).

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Accordingly, the writ petition is hereby dismissed with aforesaid direction.

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(Kailash Prasad Deo, J.)

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Tarun/R.S.

State of Jharkhand through the Range Forest Officer v. Deputy Labour Commissioner-Cum Appellate Authority

Case brief

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State of Jharkhand through the Range Forest Officer v. Deputy Labour Commissioner-Cum Appellate Authority

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