Punjab-Haryana High Court
Pooja Construction Company, ... vs Union Of India (Uoi) And Ors. on 18 November, 2002
Equivalent citations: (2003)133PLR513
JUDGMENT M.M. Kumar, J.
1. The only question raised in the present petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') is whether the defendant-respondents could effect recovery from the plaintiff-petitioner for a sum of Rs. 11,39,360/- on the allegation that defendant respondents have made excess payment to the plaintiff-petitioner.
2. The facts which are necessary may first be noticed. Defendant-respondents called upon the plaintiff-petitioner to deposit an amount of Rs. 11,29,360/- the difference between the wages paid for the labour employed in stone crushing at higher rates then the minimum wages fixed for them. The basis of recovery is that the minimum wages for unskilled labour employed with construction work was lower and for skilled worker employed in stone crushing and stone breaking was higher at the time when the tender of the plaintiff-petitioner was accepted. The Government of India vide notification dated 29.11.1978 had clubbed the labour connected with the construction and maintenance of roads, building operations, stone breaking and stone crushing into one category for the purpose of paying them minimum wages. There was no disparity in the wages of the said category as fixed by the Punjab Government. The difference between the minimum wages in respect of said categories remained in operation only for a period from 1.4.1985 to 31.10.1990. This Court in Civil Writ Petition No. 7157 of 1994 Tejinder Singh v. Union of India, decided on 31.8.1995 removed this disparity. Therefore, defendant-respondents claimed that the amount paid at the higher rates to the contractor was required to be recovered or in the alternative they are competent to withhold the payment to the extent of already over paid amount.
3. The afore mentioned action of the defendant-respondents has been challenged by the plaintiff-petitioner by filing Civil Suit No. 130 dated 7.9.1999 against the defendant-respondents for a declaration and permanent injunction restraining the defendant-respondents from deducting or recovering a sum of Rs. 11,39,360/- from the amounts due to the plaintiff-petitioner on account of execution of various works with the M.E.S. Bhatinda or at any other station. The plaintiff-petitioner was successful tenderer for construction of married accommodation for JCOs/ORS for certain units at Abohar and agreement No. CE/BTZ-09/1989-90 was executed between the parties. The work was completed in all respects. In the agreement there was a clause regarding minimum wages under which the defendant-respondents were liable to pay the plaintiff-petitioner at rate of minimum wages as prescribed and notified by the State Government from time to time. There were Clauses 6 and 15 concerning escalation of the minimum wages to be paid to the skilled and unskilled workers. The State Government fixed minimum wages of unskilled worker @ Rs. 22.40P. per day which were subsequently revised to Rs. 33.90P. per day and then to Rs. 35.77P. per day w.e.f. 1.5.1991 and still further to Rs. 36.83P. per day w.e.f. 1.11.1991. The defendant-respondents had been paying the price variation to the plaintiff-petitioner in all the running bills prepared and submitted in accordance with the terms of Clause 15 of the contract agreement. The plaintiff-petitioner alleged that C.D.A. Western Command, Chandigarh has illegally issued instructions directing that wages of categories of workers engaged in stone crushing be considered as minimum wages of unskilled worker and the wages of the labourers to the contractor is to be paid in accordance with the minimum wages of unskilled labour in respect of the workers engaged in stone crushing. Therefore, wages were to be calculated in terms of Clause 15 of the contract agreement and the recoveries were to be effected accordingly. Accordingly an amount of Rs. 11,39,360/- which was over paid to the plaintiff petitioner was sought to be recovered by the defendant-respondents. Alongwith the suit an application under Order 39 Rules 1 and 2 of the Code was filed. The Civil Judge (Senior Division), Bhatinda after detailed discussion reached the conclusion that there was no prima facie case in favour of the plaintiff-petitioner and dismissed the application. The finding recorded by the Civil Judge is that prior to 1987 the stone crushing/stone breaking labour was also paid at the rate of minimum wages which were applicable to the unskilled worker. After the year 1990 all the categories have again been equated but different rates remained in vogue for the period w.e.f. 1.4.1987 to 30.10.1990. The disparity created between the stone crushing and stone breaking labour and others was removed by a Division Bench of this Court in Tejinder Singh's case (supra). Therefore, the Civil Judge found that there was no prima facie case in favour of the plaintiff-petitioner. The balance of convenience was also held not to be in favour of the plaintiff-petitioner. Even otherwise it was found that defendant-respondents were entitled to make recovery under Clause 67 G of the general conditions of the contract. On appeal, the District Judge agreed with the findings of the Civil Judge.
4. I have heard Shri H.R. Nohria, learned counsel for the plaintiff-petitioner, who has argued that once payment has been made after 31.10.1990 the same should not be permitted to be recovered merely because a writ petition No. 7175 of 1994 filed by the worker has been allowed. He has further argued that plaintiff-petitioner was not even a party to the afore mentioned litigation. Another submission made by the learned counsel is that the plaintiff-petitioner did not commit any fraud or made any mis-representation. The amount has been paid by the defendant-respondents on their own.
5. After hearing the learned counsel, I am of the view that this revision petition merits acceptance because the plaintiff-petitioner was paid dues on the basis that stone crushing/stone breaking labour was to be paid at higher rates and accordingly he must have adjusted his finances in hiring the labour. The amount in that respect was paid long back. The plaintiff-petitioner did not mis-represented or concealed any thing from the defendant-respondents.
6. The judgment in the case of Tejinder Singh (supra) passed by this Court would not constitute a basis for the defendant-respondents to say that they are entitled to lower the wages of the stone crushing/stone breaking labour merely because this Court has taken the view that the labour involved in stone crushing/ stone breaking performs the same duties as are performed by the labour involved in the construction, maintenance of roads and building operations etc. On the principle of equal pay for equal work the writ petition filed by the workers employed for construction, maintenance of roads and building operations was allowed and it was held that they were entitled to be paid the higher rates of wages equivalent to the one paid to the labour employed in stone crushing/ stone breaking. The observations of the Division Bench in this regard read as under :
"For these reasons, the present petition is allowed. The clarification dated 30.11.1992 (Annexure P. 10), is held to be discriminatory and violative of Articles 14 and 16 of the Constitution. It is directed that wages shall be paid on principle of equal pay for equal work to the labour working in the State of Punjab in the employment of construction, maintenance of roads, building operations and in the employment of stone breaking and stone crushing covered by notification dated 29.10.1986.
However, at this stage a note of caution requires to be added. During the intervening period namely 1.4.1987 to 31.10.1990 for which the labour has to be paid, it should be ensured that the benefit goes to the actual workers. Parties are left to bear their own costs."
5. This Court no where directed that the stone crushing/ stone breaking labour should be paid the lower wages. The interpretation adopted by both the Courts below regarding the Division Bench judgment of this Court is absolutely erroneous because instead of paying the rates higher to the workers involved in building, construction, and road construction on the basis that workers involved in stone crushing/stone breaking are paid at that rate they have reduced the wages of the stone crushing/stone breaking labour.. Such a interpretation is hardly acceptable. Moreover, the judgment in Tejinder Singh's case (supra) and the subsequent instructions dated 24.2.1990 issued by the CDA Western Command, Chandigarh may not necessarily apply retrospectively" so as to result into recovery of the payments already made.
6. For the reasons recorded above, this petition succeeds and the same is allowed.
The order dated 17.9.1990 passed by the Civil Judge and the order dated 14.8.2000 passed by the Addl. District Judge, Bhatinda are set aside. It is, however, made clear that there are prima facie expressions at first blush and would not have any bearing on the merits of the controversy involved in the suit. Therefore, no recovery is liable to be effected from the plaintiff-petitioner. However, the plaintiff-petitioner shall furnish adequate security to the satisfaction of the Civil Judge, Bhatinda that in case its suit is dismissed then it would pay back the recoverable amount with interest to be determined by the Civil Judge at the time of final decision of the suit.