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Jharkhand High Court
M/S.Bakhat Ram Mandhyan & Co. vs Union Of India & Ors. on 29 January, 2010
                IN THE HIGH COURT OF JHARKHAND AT RANCHI.
                          W.P. (C) No. 696 of 2004
                                    with
                          W.P. (C) No. 6446 of 2005
                                    with
                          W.P. (C) No. 6467 of 2005
                                       ...
          M/s. Jai Bharat Construction Co.             ...     Petitioner(In 696/2004)
          M/s. Bakhat Ram Mandhyan & Co.               ...     Petitioner(In 6446/2005)
          M/s. Namrata Stone Works                     ...     Petitioner(In 6467/2005)
                                -V e r s u s-
          Union of India & Others                      ...     Respondents (In all cases)
                                        ...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
                                        ...
          For the Petitioners           : - Mr. S.K.Ughal, Advocate
          For the Respondents           : - Mr. Prabhash Kumar, Advocate
                                        ...

7/ 29.01.2010

Heard counsel for the parties and with their consent these applications
are taken up for disposal at the stage of admission.

2. The petitioners in these writ applications have challenged the order
dated 15.12.2003 (Annexure-8) issued under the signature of Respondent No.
4 whereby and whereunder the petitioners have been called upon to make
payment of the difference of wages to the petitioners’ workers on the ground
that the workers have not been paid their minimum wages fixed for the below
ground workers of the colliery. A further prayer has been made for a direction
upon the respondents to dispose of, without further delay, the review
application filed by the petitioners on 17.12.2002 in M.W. Case No. 27/1999
before the concerned authority under the Minimum Wages Act and the
Regional Labour Commissioner (Central), Patna.

3. As it appears from the rival submissions, the petitioners are engaged
in mining operations of stone quarrying and its operation is carried out
through workers engaged in the open cast mines.

The petitioners’ claim is that they have been paying the minimum
wages fixed for the class of workers employed by it in the open cast mines
but by resorting to an unqualified explanation to the meaning of “open cast
mines”, the respondent authorities have sought to saddle an additional
liability upon the petitioners’ establishment to pay a higher amount of wages.

4. Learned counsel for the petitioners explains that the minimum wages
fixed for workers employed in the open cast mines has been laid down in the
Minimum Wages Act and the same is being paid to the workers of the
petitioners’ establishment.

5. Learned counsel adds that as per the clarification obtained by the
Quarry Owners Association from the Director of Mines Safety, it was
informed that as per the Mines Act, “Open Cast Working” means a quarry i.e.
an excavation where any operation for the purpose of searching for or
obtaining materials has been or being carried on, not being a shaft or an
excavation which extends below superjacent ground.

Learned counsel explains further that as per the clarification
obtained, the employees of the petitioners’ establishment are deemed to be
employed in open cast working and they are entitled to their wages only as
fixed for such workers under the Minimum Wages Act. The respondents,
according to the learned counsel, have sought to make a distinction creating a
class within class by fixing another scale of wages for workers working in the
underground mines and those working on the surface.

6. Per contra, stand taken by the respondents is that under the
notification issued by the Government of India, Ministry of Labour in
exercise of its power conferred under Section 3(1)(b) read with Section 4(1)

(iii) and 5(2) of the Minimum Wages Act, an explanation for the purpose of
the notification has been issued in which the categories of workers employed
below ground and above ground have been mentioned and it is only in
accordance with the aforesaid notification that the minimum wages has been
fixed for the workers employed in the quarries including that of the
petitioners’ establishment.

7. Learned counsel for the petitioners submits that this issue, as raised
by the respondents, was earlier decided by the Orissa High Court in the case
of Essel Mining and Industries Ltd. and Another Vs. Union of India and
Others and by the judgement passed by the Division Bench of the Court, the
explanation as contained in Clause(iii) of the notification has been quashed.
However, the judgement of the Division Bench of the Orissa High Court has
been set aside by the Supreme Court by its order dated 9th August, 2005
passed in C.A. No. 5920 of 1999 and the matter has again been remanded
back to the Orissa High Court to re-hear the writ petition and to dispose of
the same by a reasoned order. After the remand, the matter is yet to be
disposed of by the Orissa High Court. The petitioners would therefore prefer
to withdraw this writ application this writ application at this stage with liberty
to file afresh, if need be, after the disposal of the writ application pending
before the Orissa High Court.

8. Considering the above submissions, petitioners are allowed to
withdraw these writ applications with a liberty to file afresh, after disposal of
the writ application pending before the Orissa High Court. These applications
are accordingly disposed of.

(D.G.R. Patnaik, J.)
Birendra/


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