The High Court
Case Details
Order No. 18. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15593 of 2015 M/s. M.M. Construction …. Petitioner Mr. Sukanta Kumar Dalai, Advocate -versus- State of Odisha and Others …. Opposite Parties
Legal Reasoning
Mr. Ishwar Mohanty, Addl. Standing Counsel CORAM: THE CHIEF JUSTICE JUSTICE M.S. RAMAN
Decision
ORDER 25.01.2023 1. The prayer in the present petition was for quashing a letter/order dated 5th January, 2015 passed by the Executive Engineer, Chikiti Irrigation Division, Berhampur (Ganjam) (EE) stating that a sum of Rs.7,20,359/- has been approved by the Department of Water Resources, Odisha in favour of the Petitioner “for release of labour rate and disbursement to the Agency subject to verification of payment of enhanced rate before release to the Agency”. 2. The case of the Petitioner is that the work entrusted to the Petitioner for renovation of the left main canal of Bahuda Irrigation Project in the year 2006, with the stipulated date of completion as 25th January, 2007, could not be completed due to various reasons. The first application for extension was filed on 5th June, 2006 and the second extension applied for was for the period from 31st March, 2009 to 25th May, 2009. Page 1 of 7 2. The further case of the Petitioner is that while making payment to the Petitioner the Opposite Parties did not provide for increase of minimum wages of labour which had been ordered by Government Notification dated 28th April, 2007. The Petitioner refers to Notification and guidelines issued by the State Government which states that the State shall pay the differential amount of minimum wages at the time of paying the final bill. In the present case, according to the Petitioner, while paying the final bill in December, 2009 the differential cost for increase in minimum wages was not paid by the State Government. Ultimately, by letters dated 21st March, 2011 and 11th April, 2011 the State Government rejected the claim of the Petitioner for the differential amount towards increase in minimum wages. 3. Initially, the Petitioner filed W.P.(C) No.19008 of 2011 in this Court. The said writ petition was disposed of on 16th May, 2012 following an order dated 19th September, 2011 in W.P.(C) No.2114 of 2010. The operative portion of the said order reads as under:- In view of the aforesaid statement of law which has “8. been declared by the Supreme Court and followed by the Division Bench of this court in Suryamani Nayak and another Division Bench in Surendranath Kanungo V. State of Orissa, the claim of the petitioner is covered by the decision of the Division Bench. Therefore, the same shall be applied to the fact situation and relief be granted. In view of the clear pronouncement of the Supreme Court which has been followed by this court in the aforesaid cases, the stand taken in the statement of counter justifying the impugned order cannot be accepted. Accordingly, the impugned orders rejecting the petitioner’s prayer for payment of price escalation/enhancement of rate of wages of labour and materials vide Annexure-4 series are liable to be quashed and are accordingly quashed. The writ Page 2 of 7 petition is accordingly allowed. Direction is given to the Opposite Parties to reimburse the enhanced rate of wages of labour component paid by the petitioner on the items of work under the four agreements in question.” The Special Leave Petition against the said order by the State Government was dismissed by the Supreme Court of India on 18th April, 2013. 4. The Petitioner then again approached the Authorities regarding implementation of the Court’s orders. 5. On 6th August, 2012 the EE wrote to the Chief Engineer with specific reference to the claim of the Petitioner for reimbursement of the enhanced rate of wages. The said letter reads as under:- “Sir, In inviting a kind reference to the above cited letters on the subject, it is to state that as per discussion held with you in your office chamber on dtd.1.8.2012, the Sr. D.A.O. of the office has checked the labour escalation bill of M/S. M.M. Construction and the total amount calculated by him comes to Rs.12,31,432.00 instead as against the claim of the agency for Rs.16,36,285.00. The claim of the agency has been checked in the following light. 1. 2. 3. No labour escalation was allowed for the 1st year upto 25.2.2007. Labour escalation was not allowed for execution of earth work by mechanical means to the extent of Rs.6,35,623.00. During the course of execution labour rate was enhanced to Rs.70.00 per day with effect from Page 3 of 7 1.5.2007 which has been taken into account while calculating the labour escalation claim. 4. The earth work (manually executed) and structural work executed beyond one year of the agreement period is calculated at 210532 and 15998032 respectively.” 6. On the above basis, it is contended by the Petitioner that the Opposite parties had already determined the amount that became payable to the Petitioner. In the orders passed in Contempt petition filed by the present Petitioner, a submission was made on behalf of the State that the admitted dues of the Petitioner to the tune of Rs.12,31,432/- had been recommended by the EE and the matter was with the higher Authorities. On 11th December, 2014 the Division Bench hearing the contempt petition, directed the Opposite parties - State to release the amount involved in favour of the Petitioner and file a compliance report. It is thereafter that the impugned letters were issued recalculating the amount due to the Petitioner as Rs.7,20,359/- and releasing that amount. The Petitioner’s grievance, therefore, is that as against Rs.16,36,285/-, he was paid only Rs.7,20,359/- and this was unilaterally done by the Opposite parties without even so much of a notice to him or giving him a hearing. The Petitioner then made a grievance to the Opposite parties and in dealing with that, by order dated 27th July, 2013 the Addl. Secretary to Government observed that since the Special Leave Petition against the order passed by this Court having been dismissed by the Supreme Court of India, “the orders of the High Court shall be implemented and the bill of the Petitioner towards labour component as per the enhance rate fixed by the Government needs to be reimbursed”. Page 4 of 7 7. While the EE requested the Petitioner to furnish the Muster Roll and other documents in response to the Petitioner’s representation dated 15th October, 2013, the Addl. Secretary opined as follows: “It is a fact that no complain has been received from any labourer at our end against the contractor for non- payment of enhanced minimum wages nor any case was filed by the Labourer in the Labour Court. Therefore it may be considered to implement the order passed by the Hon’ble High Court to reimburse Rs.16,36,285/- towards enhanced Labour Wages to M/s. M.M. Construction without any further delay, the claim of the contractor for payment of interest on the above amount may not be accepted as the order of the Hon’ble High Court only speaks about payment of enhanced minimum wages.” 8. When despite the above letter, no further amount was released beyond Rs.7,20,359/- the Petitioner filed the present writ petition praying for directions to the State to pay the differential amount without delay. 9. Pursuant to the notice issued in the present writ petition on 3rd November, 2015 the State has filed the counter affidavit in which it is sought to be contended that because the Petitioner had not submitted the relevant records / documents in support of payment of enhanced labour rate to the workers, he was not paid the entire sum determined earlier, i.e., Rs.16,36,285/-. It is now stated that the assessment by the EE all the escalation bill being payable to the extent of Rs.12,31,432/- “was not based on the actual item-wise labour component”. Thereafter the EE “again re-assessed the amount basing on the actual item-wise labour component derived in the original estimate taking from the ‘Analysis of rates’ approved and published by the Government of Odisha with that of the Page 5 of 7 quantities executed after enhancement of minimum wages of labour, i.e., from 01.05.2007 to 31.03.2009”. 10. Having heard the learned counsel for the parties, the Court is of the view that the above stand taken in the counter affidavit is unacceptable. The re-calculation of the amount due to the Petitioner led to the sum payable to him getting drastically reduced from Rs.16,36,285/- to Rs.7,20,359/-. Even the counter affidavit does not explain the basis on which there could be sought a huge deduction to the amount payable. It is inconceivable that the earlier determination of the amount payable as Rs.16,36,285/- was done without properly examining all the documents submitted by the Petitioner. 11. Mr. Ishwar Mohanty, learned Addl. Standing counsel for the State suggested that the Petitioner should again be asked to submit all the documents to the State Authorities who would again examine and determine what was payable to the Petitioner. 12. With the contract having been executed way back in 2007 and with the present petition pending for over seven years, it is unfair and unreasonable to expect that the Petitioner would somehow preserve all the relevant documents as of date. Even in terms of Clause-10 of the Agreement extract of which is at Annexure-5 to the Rejoinder filed by the Petitioner, the Petitioner is expected to preserve the documents only for a period of twelve months. It can reasonably be expected that sending the Petitioner back to the Authorities at this stage to produce the documents which he does not have, may not resolve the grievance of the Petitioner. It will Page 6 of 7 only result in the Petitioner coming to the Court again thereby multiplying proceedings. 13. The re-calculation of the amount due to the Petitioner as Rs.7,20,359/- appears to be unilateral. As already mentioned, the actual date of completion of the Project was 31st March, 2009, i.e., nearly fourteen years ago. This is an additional reason why at this stage the entire exercise should not be asked to be redone. Thirdly, the Petitioner cannot at this stage be relegated to the Civil remedy since that would be clearly time barred. 14. Keeping in view the above factors, this Court directs that the State will now pay to the Petitioner the differential sum, i.e., Rs.16,36,285/- as determined payable by it to the Petitioner minus Rs.7,20,359/-, already paid together with 6% simple interest on the differential sum from 5th April, 2015 till the date of payment which shall not be more than twelve weeks from today. If the payment is made is beyond twelve weeks, then the State will be liable to pay further simple interest @ 9% per annum on the aforementioned sum for the period of delay. 15. The writ petition is disposed of in the above terms. Chief Justice (Dr. S. Muralidhar) Judge (M.S.Raman) MRS Page 7 of 7