All Odisha Contractors Association, 953, College Road, Naharakanta, Bhubaneswar State of Odisha & Others v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 25477 of 2020 All Odisha Contractors Association, 953, College Road, Naharakanta, Bhubaneswar State of Odisha & Others ….. Vs. ….. Petitioner Mr. P.C. Nayak, Adv. Opposite Parties Mr. D. Nayak, A.G.A. CORAM: JUSTICE S.TALAPATRA JUSTICE SAVITRI RATHO ORDER 01.12.2022 Order No. 14. 1. This matter is taken up through hybrid mode. 2.
Legal Reasoning
Heard Mr. P.C. Nayak, learned counsel appearing for the petitioner and also heard Mr. D. Nayak, learned Additional Government Advocate appearing for the State- Opposite Parties. 3. By means of this writ petition, the petitioner, a body of the Contractors, has challenged the decision contained in the letter dated 22.09.2020 issued by the Opposite Party No. 4. 4. According to the petitioner, the decision contained in the said inter-office communication is per se in contract to the provisions of the Minimum Wages Act, 1948. 5. In crux, the prayer of the writ petitioner is that the wages of Page 1 of 9 the labourer should not be directly transferred to their account by the Government [the principal]. That should be transferred to putting the account of the contractor who pays them wages for labour under any project. Thus, the contractors are entitled to reimbursement on account of labour, the labourers cannot get their wages directly. 6. Before we go further into the details, let the entire text of the communication dated 22.09.2020 be extracted: “To All Executive Engineers under Rural Works, Odisha. Sub:- Implementation of web based e-Muster roll application in CDMS and e-MB application in WAMIS. Sir, implemention status of e-Muster With reference to aforementioned subject, it is to intimate that during review by Hon’ble Chief Minister roll regarding application, it has been decided that each Division in R.D. Department will take up five works under e-muster roll and make online payment of labouers by Contractors before 2nd October 2020. The above message has also been shared by Addl. Chief Secretary to Govt. R.D. information of all. Department on 15.09.2020 However, it is observed that Contractors in very few Divisions have made payments to labourers through e- muster roll application and in many Divisions; the implementation process has not yet been started. Since, a target with time line has already been fixed by the Hon’ble Chief Minister, it is requested to all Executive Engineers to personally monitor and ensure that online payment to labourers is made in five projects of each for Page 2 of 9 Division by Contractors before 29th September 2020. Besides, above the R.D. Department has already informed to all Executive Engineers that e-MB module in WAMIS has already been made live and use of e-MB vide letter no. 28571500012018/RD dated 06.07.2020. It has been instructed by the Addl. Chief Secretary to Govt., R.D. Department that e-MB is going to be made mandatory from 2nd October 2020. In view of above, all Executive Engineers are requested to pilot atleast one project in each Division with entry of measurement in e- MB module before 29th September 2020 and report compliance to above instructions. This is for your information and further necessary action. Yours faithfully, Engineer-in-Chief Rural Works Odisha, Bhubaneswar.” 7. It is made clear in the said communication that the Hon’ble Chief Minister of Odisha has taken up the targets of five projects of each Division for piloting “the online payment to the labourers” before 29.09.2020. It is evident that the said communication is concerned with implementation of web based e-Muster roll application in CDMS and e-MB application in WAMIS. 8. Mr. Nayak, learned counsel appearing for the petitioner has submitted that this is the overture of implementing the online payment directly to the labourers. If the said suggestion is Page 3 of 9 introduced, it will create huge problem for the labourers because no labourer will wait for longtime to have their wages through online payment by the Government. If the contractor does not pay the labourers’ wages, it cannot be expected that they will continue to work in the project. In this regard Mr. Nayak, learned counsel has taken us to the provisions of the agreement where it has been provided that only, if it is found that the contractor has not paid the labourers’ wages and the labourer has complained against the contractor, then the in-charge of the project may directly pay the wages. Otherwise, it is the obligation of the contractor to pay the wages to the labourers, the Government cannot put their feet into the shoes of the contractors. In this regard, Mr. Nayak, learned counsel has referred to Section 11 of the Minimum Wages Act, 1948 which provides as follows: “11. Wages in kind. - (1) Minimum wages payable under this Act shall be paid in cash. (2) Where it has been the custom to pay wages wholly or partly in kind, the appropriate Government being of the opinion that it is necessary in the circumstances of the the Official Gazette, case may, by notification authorise the payment of minimum wages either wholly or partly in kind. (3) If the appropriate Government is of the opinion that provision should be made for the supply of essential the appropriate commodities at concession rates, in Page 4 of 9 Government may, by notification in the Official Gazette, authorise the provision of such supplies at concessional rates. (4) The cash value of wages in kind and of concessions in respect of supplies of essential commodities at concession rates authorised under sub-sections (2) and (3) shall be estimated in the prescribed manner.” [Emphasis added] 9. Mr. D. Nayak, learned Additional Government Advocate appearing for the State- Opposite Parties has stated that the entire writ petition is misconceived, as the Government has not made it compulsory to make the payment of wages directly to the labourers. As a welfare measure, it has been directed to pilot the system in five projects of a division for the purpose of assessing the operation the object is to achieve seamless the monetary transactions in the Government Projects. Having stated thus, Mr. Nayak, learned Additional Government Advocate has raised a jurisprudential objection in respect of maintainability of the present writ petition, inasmuch as, according to him, there is no restriction or compulsion in making payment of the labourers’ minimum wages or wages only through the direct payment mode. According to Mr. Nayak, learned Additional Government Advocate, the mode of payment of the wages has been provided in the Payment of Wages Act, 1936 as Page 5 of 9 well. Section 6 of the Payment of Wages Act, 1936 provides that all wages shall be paid in current coin or currency notes or by cheque or by crediting the wages in the bank account of the employee; provided that the appropriate Government may, by notification in the Official Gazette, specify the industrial or other establishments, the employer of which shall pay to every person employed in such industrial or other establishments, the wages only by cheque or by crediting the wages in his bank account. Mr. Nayak, learned Additional Government Advocate has made a categorical statement having regard to the proviso to Section 6 of the Payment of Wages Act, 1936 that no such notification as referred in Section 6 of the Payment of Wages Act, 1936, has been issued by the Government and hence, the apprehension of the petitioner is without any foundation. The writ petition should therefore be shot down at the threshold. He has candidly submitted that the system is being implemented through the pilot to ascertain whether the notification can be issued in all sectors or be issued confining to the sectors to be identified. But the Government has not taken any decision for which no notification has been issued as yet. In the perspective of the above statement made by Mr. Nayak, learned Additional Government Advocate, the only question that Page 6 of 9 falls for consideration in the writ petition is that whether the petitioner who is representing the contractors can have any right to maintain this writ petition demanding any particular mode of payment to the labourers. 10. Having regards the statutory provisions as referred by the learned counsel for the parties as well as the ordinarily form of contract as usually entered between the contractor and the Government, we are of the view that as the Government has not come out with any notification as per the proviso to Section 6 of the Payment of Wages Act, 1936, therefore, there is no compulsion for online payment to the labouers through their accounts. In such circumstances, we would like to observe that as there is no cardinal change as yet, the Government should be guided by the policy or clause embodied in the contract inasmuch as the obligation as created by the contract has not been defused or substituted. It appears that payment through the contractor has been acknowledged and it is in vogue. In the ongoing projects, the government may not pay directly to the labourers unless the contractors agree. It has been brought to our notice that the contractors have voluntarily accepted the online direct payments to the account of the labourers in some projects. In other cases, if there is any allegation of default in Page 7 of 9 payment of minimum wages is registered against the contractor, the officers designated for implementation of the contract works have the right to make direct payment to the labourers by online mode or by cash. Before parting with the records, we must observe that the payment by online mode is a secure payment mode. It keeps the payment above suspicion. Thus, we do not find any clause under Section 6 of the Payment of Wages Act, 1936, as last amended by the Act of 2017 [with effect from 28.10.2016] which defies constitutionalist. 11. By this said amendment, along with current coin or currency notes, the mode of payment by crediting the wages in the bank account of the labouer employees has been adopted. We clarify that the Government of Odisha may issue notification in the official gazette, specifying the industrial establishments or other establishment the employers of which shall pay to every person employed in such industrial or other establishment, the wages only by cheque or by crediting the wages in their bank account. As no notification under Section 6 of the Payment of Wages Act, 1936 has been issued, the apprehension, as expressed by the petitioner, is not tenable. 12. In view of the observation, as made above, this writ petition Page 8 of 9
Decision
stands disposed of. There shall be no order as to costs. 13. Urgent certified copy of this order be granted as per rules. (S.Talapatra) Judge (Savitri Ratho) Judge Sukanta Page 9 of 9