IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 1309 of 2007
...
Md. Salauddin @ Siwni ... ... Petitioner
-V e r s u s-
1. State of Jharkhand through the Labour Enforcement Officer, Chaibasa,
Singhbhum West.
2. Sub-Divisional Officer, Sadar Chaibasa.
3. Md. Kasimuddin
4. Additional Deputy Commissioner, West Singhbhum, Chaibasa
... Respondents.
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - Mr. Pandey Neeraj Roy, Advocate.
For the Respondent-State : - J.C. to G.P. III.
For the Respondent No. 3 : - Mr. R. C. Khatri, Advocate.
...
7/13.10.2009
Petitioner, in this writ application, has prayed for the following reliefs: –
(a) For quashing the order dated-14.02.2007
(Annexure-9), passed in M.W. Appeal No. 1 of
2006-07, by the court of Additional Deputy
Commissioner, West Singhbhum, Chaibasa,
whereby the prayer of the petitioner filed in the
appeal preferred by him under Section 20 (6A) of
the Minimum Wages Act, for condoning the delay
in filing the Appeal, has been rejected.
(b) For quashing the Notice dated-14.11.2006
(Annexure-7), issued by the Certificate Officer in
Certificate Case No. 01 (M.W./06-07) whereby a
direction was issued to the petitioner to pay the
certificate amount of Rs.1,39,041.57/-.
(c) For issuance of a direction to the appellate
court to consider the petitioner’s appeal on merits.
(d) For staying the proceedings of the impugned
orders, passed in the Certificate proceedings.
2. Counter affidavits have been filed on behalf of the private Respondent No. 3 as
also the Respondent-State.
3. Heard the learned counsel for the parties.
4. Mr. Pandey Neeraj Roy, learned counsel for the petitioner, while assailing both
the impugned orders, would submit that upon receipt of the notice in the certificate
proceedings, the petitioner had filed his objections under Section 9 of the P.D.R. Act. The
impugned order, directing the petitioner to deposit the Certificate amount was passed by
the Certificate Officer purportedly under the provisions of Section 10 of the Act, by way
of an ex parte order with an observation that the petitioner had failed to appear in the
proceedings on the date fixed. Learned counsel contends that even though the Certificate
Officer could have passed an ex parte order but considering the fact that the petitioner
had appeared in the proceedings and had filed his objections stating specific grounds in
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support of such objection, the Certificate Officer could not have proceeded to impose the
financial liability by making the demand for payment of the certificate amount, without
first considering and discussing the objections raised by the petitioner.
As regards the impugned order of the Appellate Authority, learned counsel
explains that being aggrieved by the order passed by the Authority in the proceedings
under the Minimum Wages Act, the petitioner had preferred an appeal against the order.
There being a delay in filing the appeal, the petitioner had filed a separate application
praying for condoning the delay on the ground that the delay was occasioned due to the
petitioner’s illness. A medical Certificate was enclosed alongwith the petition for
condonation of delay. The Appellate Authority, according to the learned counsel, has
erroneously refused to condone the delay merely on the ground that the bona fides of the
certificate appears to be doubtful in view of the fact that the petitioner being a resident of
West Singhbhum, had obtained the Certificate from the Doctor stationed at East
Singhbhum.
Learned counsel argues that the learned Appellate court below had failed
to consider the fact that though the Doctor concerned was employed as an Assistant Civil
Surgeon in East Singhbhum but is basically a resident of Chaibasa in West Singhbhum
and the petitioner being also a resident of the same town did have occasion to undergo
treatment under the said Doctor.
Learned counsel adds further that the petitioner has categorically stated in
the grounds of Appeal as also in the objections filed by him in the Certificate proceedings
that he cannot under any circumstance be saddled with any liability to pay the wages as
demanded by the Respondent No. 3 and if his appeal is not considered on merits, the
petitioner would suffer serious prejudice.
5. Mr. R. C. Khatri, learned counsel for the Respondent No. 3 would submit
arguments in support of both the impugned orders and would want to explain that from
the history of litigation between the petitioner and the Respondent No. 3, it would be
apparent that this is not the first instance when the petitioner has approached this Court.
Learned counsel explains that on earlier occasion also, the petitioner had challenged the
order of the authority under the Minimum Wages Act. Though the impugned order of the
authority under the Minimum Wages Act was set aside with a direction to pass a fresh
order, the authority under the Minimum Wages Act, in due compliance of this Court’s
order, had reconsidered the case and passed a fresh order holding that the petitioner is
liable to pay the wages together with arrears thereof to the Respondent No. 3. Upon the
petitioner’s failure to comply with the order a certificate proceeding was initiated and the
petitioner upon receipt of a notice in the Certificate proceedings, had though appeared
and filed his objections but thereafter, had intentionally avoided to appear in the
proceedings and to participate in the same and under such circumstances, the Certificate
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[W.P. (C) No. 1309 of 2007]
Officer was constrained to proceed and to pass the impugned order under Section 10 of
the P.D.R. Act against the petitioner.
In respect of the impugned order of the Appellate Authority, learned
counsel for the Respondent No. 3 would submit that the explanations offered by the
petitioner as reasons for condoning the delay, having not been found satisfactory by the
Appellate Authority, the delay was not condoned and there being no impropriety or
illegality in the order, the same cannot be challenged by the petitioner in this writ
application.
Learned counsel adds further, that by indulging in such dilatory tactics, the
petitioner has been denying and depriving the Respondent No.3 of the fruits of the
Award, which was passed by the competent authority under the Minimum Wages Act in
his favour.
6. More or less, similar arguments have been advanced on behalf of the learned
counsel for the Respondent-State by reference to the statements contained in their counter
affidavit.
7. From the rival submissions, the following facts emerge:-
The impugned order (Annexure-7), which
was passed by the Certificate Officer, is admittedly
an ex parte order. From perusal of the order, it
appears that the Certificate Officer had proceeded to
declare that the petitioner is liable to pay the
Certificate amount. Such declaration has though
been passed ex parte, but without making any
discussions whatsoever on the objections raised by
the petitioner under Section 9 of the P.D.R. Act.
8. Section 10 of the P.D.R. Act lays down the procedure to be followed by the
Certificate Officer in cases where the objections under Section 9 of the Act is filed by
the Certificate debtor and it contemplates hearing and determination of the issues
involved in the proceedings. The Certificate Officer, if necessary, may take evidence and
determine whether the Certificate-debtor is liable for payment of the whole or any part of
the amount for which the Certificate was signed. The provisions also envisage that if the
judgment debtor fails on any occasion to discharge his duties as per the orders of the
Certificate Officer then the Certificate Officer shall be at liberty to proceed ex parte but
only after deciding the matter under Section 9 of the P.D.R. Act as contemplated under
the provisions of Sections 10 and 11 of the Act.
9. It is apparent from a bare reading of the impugned order (Annexure-7) that no
discussion on the grounds of objections raised by the petitioner was made at all by the
Certificate Officer before imposing the liability upon the petitioner to pay the Certificate
amount. The impugned order therefore, suffers from impropriety and betrays lack of
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[W.P. (C) No. 1309 of 2007]
application of mind and also betrays that the order has been passed without adhering to
the duty cast on the officer under the provisions of Section 10 of the Act. The impugned
order of the Certificate Officer being not sustainable under the law, is hereby quashed.
10. As regards the impugned order of the Appellate Authority, it appears that prayer
for condoning the delay has been rejected only by doubting the genuineness of the
medical certificate produced by the petitioner. The circumstances under which the
petitioner had undergone medical treatment under the Doctor who had issued the Medical
Certificate, do not appear to have been considered by the Appellate Authority, before
rejecting the petitioner’s prayer for condoning the delay.
In the light of the explanations offered by the petitioner that the Doctor
who had issued the Certificate is essentially a resident of Chaibasa in the district of West
Singhbhum and the petitioner is also a resident of the same town, it would not be a matter
of surprise or disbelief that the petitioner had undergone medical treatment under the
Doctor and to treat the medical certificate as not genuine. I am satisfied that the
impugned order has been passed by the Appellate Authority without proper appreciation
of the explanations offered by the petitioner for the delay in filing the Appeal and has
been passed on the basis of conjectures and surmises.
11. For the aforesaid reasons, finding the impugned order of the Appellate Authority
to be unjust and suffering from impropriety, the same is also hereby quashed. The
Appellate Authority is directed to reconsider the matter and to pass an appropriate order
after hearing the appeal on merits and dispose of the same within a reasonable time,
preferably within a period of six months from the date of the order. The petitioner in his
turn shall also ensure his due participation in expediting the disposal of the appeal within
the period stipulated hereinabove.
12. Considering the fact that the petitioner claims to have raised several grounds in
support of his positive stand that he is not liable to pay any amount towards minimum
wages to the Respondent No. 3 and also considering the fact that the Appeal filed by him
against the order of the authority concerned under the Minimum Wages Act is yet to be
considered and decided, the further proceedings in the Certificate case against the
petitioner shall remain stayed and no action including any action on the basis of warrants
issued, if any, pursuant to the impugned order (Annexure-7), shall be taken against the
petitioner till the disposal of the appeal filed by the petitioner.
13. With these observations, this writ application stands disposed of.
14. Let a copy of this order be given to the learned counsel for the Respondent-State.
(D.G.R. Patnaik, J.)
APK