HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 719 OF 2002 Shree Mata Devi Shrine Board & anr. Petitioners Gandarb Singh and ors Respondent !Mr. D.C.Raina, Sr. Advocate with Mr. Anil Verma, Advocate ^Mr.B.S.Bali, Advocate Mr. Justice J. P. Singh, Judge Date: 25.03.2010 :J U D G M E N T :
Gandarb Singh Katoch-respondent filed a Claim
Petition under Section 15(2) of the Payment of Wages
Act, 1936 with the Authority under the Payment of
Wages Act (Labour Officer), Reasi saying that the
Additional Chief Executive Officer of Shree Mata
Vaishno Devi Shrine Board, Katra had allotted work for
construction of widening of road from Katra to Shree
Mata Vaishno Devi Shrine in the year 1996 in favour of
Kanth Lal-Contractor, who approached him for supply of
labour for execution of the work. He along with 51
others workers, accordingly, worked for the construction
of road from RD-595 to RD-740 from 13.11.1996 to
August, 1997. The labourers were, however, paid only
in part by the contractor.
A claim for Rs.2,46,464/- was thus laid before the
Authority under the Payment of Wages Act by Gandarb
Singh Katoch for and on behalf of the labourers
employed by Kanth Lal-Contractor for execution of the
work of Shree Mata Vaishno Devi Shrine Board.
The Contractor appeared before the Authority in
response to the Notice issued to him in this behalf and
agreed to settle the dispute amicably by making
payment of wages by the next date of hearing fixed for
July 26, 1999. He, however, failed to honour his
commitment opting to remain absent from the
proceedings. The Contractor and the other respondents
including the Board were later set ex-parte when after
appearing before the Authority, they opted not to file any
objection to the Claim Petition and remain absent.
On the basis of the ex-parte evidence produced in
the case, the Authority under the Payment of Wages Act
held the claimant entitled to Rs.1,71,474/- as per the
details appearing in the Muster sheet placed on records
of the Authority.
In terms of the Award of the Authority, all the
respondents i.e. the Contractor, Shree Mata Vaishno
Devi Shrine Board and its functionaries were held liable
to satisfy the Award.
Statutory remedy of Appeal does not appear to
have been resorted to either by the Contractor or by the
petitioners who have filed this Writ Petition seeking
quashing of the Award of the Authority.
Mr. D.C.Raina, learned Senior counsel, appearing
for the Board submitted that the Board had discharged
its contractual obligation by paying the Contractor for
the work he had done for it and in view of the
Contractor’s admission to pay the claimant and his
labourers, the Board was not under any obligation to
satisfy the Award, which the learned counsel says, was
without jurisdiction in so far as it held the Board liable to
satisfy the labourers’ claim.
Per contra Mr. B.S.Bali, referring to the provisions
of the Contract Labour (Regulation and Abolition) Act,
1970 submitted that Board, being the Principal employer
for whom the contractor had engaged the labour, the
Authority had not committed any jurisdictional error in
holding the Board liable to satisfy the labour Claim.
Mr. Bali further submitted that having agreed to
satisfy the Award during the execution proceedings, the
Board was not entitled to invoke the Extra Ordinary Writ
Jurisdiction of the Court, because the Board cannot be
permitted to approbate and reprobate.
Learned counsel referred to interim orders passed
on 28.02.2002, 18.03.2002, 25.04.2002 and 4.06.2002,
copies whereof have been placed on records, to urge
that having all along agreed to satisfy the labour claim,
the petitioners’ approach to this Court was not bonafide.
I have considered the submissions of learned
counsel for the parties and perused the records.
To determine the issue raised by the learned
Senior counsel that the Board was not under any
obligation to satisfy the Award of payment of wages to
the labourers engaged by the Contractor employed by
the Board, regard needs to be had to the provisions of
Section 3 of the Payment of Wages Act 1936, which for
facility of reference is reproduced hereunder:-
“[ RESPONSIBILITY FOR PAYMENT OF WAGES.–(1)
Every employer shall be responsible for the payment of all
wages required to be paid under this Act to persons
employed by him and in case of persons employed
(a) in factories, if a person has been named as the
manager of the factory under clause (f) of sub-section
(1) of section 7 of the Factories Act, 1948 (63 of 1948);
(b) in industrial or other establishments, if there is a
person responsible to the employer for the supervision
and control of the industrial or other establishment;
(c) upon railways (other than in factories), if the employer
is the railway administration and the railway
administration has nominated a person in this behalf
for the local area concerned;
(d) in the case of contractor, a person designated by such
contractor who is directly under his charge; and
(e) in any other case, a person designated by the
employer as a person responsible for complying with
the provisions of the Act;
the person so named, the person responsible to the
employer, the person so nominated or the person so
designated, as the case may be, shall be responsible for
such payment.
(2) Notwithstanding anything contained in subsection
(1), it shall be the responsibility of the
employer to make payment of all wages required to be
made under this Act in case the contractor or the
person designated by the employer fails to make such
payment.]”
Perusal of Section 3(2) quoted above
indicates, unambiguously, the responsibility of the
employer to make payment of all wages required to
be made under the Payment of Wages Act in case
the Contractor or any other person designated by
the employer fails to make the payment of wages to
the employed persons i.e. the labourers.
Learned Senior counsel is thus not right in
saying that the Board was not liable to satisfy the
Award which remained unsatisfied by the
contractor engaged by it.
This apart, the Board cannot even otherwise
deny its liability to satisfy the Award in view of the
express provisions of Section 21(4) of the Contract
Labour (Regulation and Abolition) Act, 1970 which
hold the principal employer, liable to pay the wages
of the labourers, which for facility of reference are
reproduced hereunder:-
“21. RESPONSIBILITY OF PAYMENT OF
WAGES(1) A contractor shall be responsible for
payment of wages to each worker employed by
him as contract labour and such wages shall be
paid before the expiry of such period as may be
prescribed.
(2) Every principal employer shall nominate
a representative duly authorized by him to be
present at the time of disbursement of wages by
the contractor and it shall be the duty of such
representative to certify the amounts paid as
wages in such manner as may be prescribed.
(3) It shall be the duty of the contractor to
ensure the disbursement of wages in the presence
of the authorized representative of the principle
employer.
(4) In case the contractor fails to make
payment of wages within the prescribed period or
makes short payment, then the principal employer
shall be liable to make payment of wages in full or
the unpaid balance due, as the case may be, to
the contract labour employed by the contractor
and recover the amount so paid from the
contractor either by deduction from any amount
payable to the contractor under any contract or as
a debt payable by the contractor.”
In view of the provisions of the Contract
Labour (Regulation and Abolition) Act, 1970
reserving right with the employer, like the Board to
recover the wages payable to the labourers by the
contractor, from the contractor in the event of its
making payment of unpaid wages to the labourers,
the Board’s Writ Petition is clearly misconceived, in
that, in view of the statutory provisions referred to
hereinabove, the Board cannot deny its liability to
satisfy the Award of the Authority.
Mr. Bali’s plea that the approach of the Board
to this Court was not bonafide, appears to be well
merited, in that, having all along agreed in
execution proceedings before the Authority under
the Payment of Wages Act, to pay the wages to the
labourers, the Board’s approach to this Court
denying its liability to make payment of wages to
the labourers, cannot looked from any angle, be
said to be bonafide.
Shree Mata Vaishno Devi Shrine Board’s Writ
Petition is, thus, found to be misconceived and
without merit.
The Writ Petition, therefore, fails and is,
accordingly, dismissed with costs quantified at
Rs.5000.
Registrar Judicial is directed to release the
amount deposited by the Board in this Court in
favour of Gandarb Singh Katoch-respondent no.1,
along with interest accrued thereon.
(J. P. Singh)
Judge
JAMMU:
25.03.2010
Vinod
_______________________________________________________________________________
CMP No.134/2010:-
Petitioners have moved this Motion for amendment
of the Writ Petition seeking substitution of petitioner
No.1 M.K.Dwivedi, the then Additional Chief Executive
Officer, Shree Mata Vaishno Devi Shrine Board, Katra,
by “Shree Mata Vaishno Devi Shrine Board through
Additional Chief Executive Officer, Katra,” on the ground
that M.K.Dwivedi, the then Additional Chief Executive
Officer was inadvertently indicated as petitioner No.1 in
the Writ Petition in place of Shree Mata Vaishno Devi
Shrine Board, Katra, which had infact filed the Writ
Petition to question Award dated 17.02.2001 of the
Authority under Payment of Wages Act(Labour Officer),
Reasi.
2
After having heard learned counsel for the Board
and Mr. Bali for respondent No.1, the claimant, I find
that omission of Shree Mata Vaishno Devi Shrine
Board, Katra as petitioner in the Writ Petition appears to
be inadvertent.
Looking to the long pendency of the Writ Petition in
the Court, it is considered appropriate to determine the
Writ Petition finally, after hearing Shree Mata Vaishno
Devi Shrine Board in the matter which has been
adjudged liable to pay the awarded amount.
Accordingly, finding merit in the Motion, it is
allowed permitting substitution of Shree Mata Vaishno
Devi Shrine Board, Katra as petitioner no.1 in place of
Mr. M.K.Dwivedi, in OWP No.719/2002.
Registry to make necessary corrections.
(J. P. Singh)
Judge
JAMMU:
25.03.2010
Vinod
