Allahabad High Court
Nagar Palika Parishad Raebareilly Thru ... vs The Prescribed Authority Assistant ... on 30 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:33662 Court No. - 19 Case :- WRIT - C No. - 1004892 of 2012 Petitioner :- Nagar Palika Parishad Raebareilly Thru Executive Officer Andan Respondent :- The Prescribed Authority Assistant Labour Commissioner And Ors Counsel for Petitioner :- Ramesh Chandra Pandey Counsel for Respondent :- C.S.C.,Jagat Narain Dixit Hon'ble Subhash Vidyarthi,J.
1. Heard Shri Ramesh Chandra Pandey, learned counsel for the petitioners and Shri Pratyush Tripathi, learned Additional Chief Standing Counsel appearing for the respondents.
2. This case was filed in the year 2012, it is listed peremptorily and yet the learned counsel for the opposite party No.4-Shri Jagat Narayan Dixit is neither present to assist this Court nor any request for adjournment of the case has been made.
3. Accordingly, the Court proceeds to examine the after hearing submissions of learned counsel for the petitioner and learned Additional chief Standing Counsel and perusing the record.
4. By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has sought quashing of the judgement and order dated 07.10.2011 passed by the Prescribed Authority, Minimum Wages Act 1948 cum Assistant Labour Commissioner, Raebareli, in Case No.MW-30/2006 filed by the opposite party No.4, directing the petitioners to pay difference of wages and damages to the opposite party No.4. The petitioner has also challenged recovery citation dated 19.07.2012 issued in furtherance of the aforesaid order dated 07.10.2011.
5. The aforesaid case was filed by the opposite party No.2, claiming that he had been employed as a Daily Wage Labour with effect from 01.11.2005 and was continuously working since then. He was being paid Rs.940/- per month and he was entitled to be paid minimum wages at the rates as prescribed by the Government. It is recorded in the order dated 07.10.2011 that the opposite party No.2 had stated in his cross-examination that he had filed a writ petition (Writ Petition No.8936 (SS) of 2006) before this Court wherein it was pleaded that he was working as an Apprentice but that pleading was made due to an error of his Counsel. That writ petition was dismissed as not maintainable on 18.10.2006.
6. On behalf of the petitioner, it was stated that as per the records of Nagar Palika Parishad, Raebareli, the opposite party No.4 had been engaged as an Apprentice and was paid stipend only. He worked as an Apprentice for a period from 01.11.2005 to 31.08.2006. The writ petition filed by the opposite party No.4 for completing his Apprenticeship has already been dismissed by means of an order dated 18.10.2006 passed by this Court. The opposite party No.4 has already been made payment of the amount payable to him for the period he had worked as an Apprentice. The opposite party No.4 was not employed by the petitioners.
7. The Prescribed Authority, Minimum Wages found that the petitioners have produced a photocopy of the joining report of the opposite party No.4 wherein it was referred to as an Apprentice and it was signed by the opposite party No.4. However, the Prescribed Authority held that since merely photocopy of the document had been field, it was not admissible. Regarding the pleading made in earlier writ petition filed by the opposite party No.4, the Prescribed Authority found that the pleading was made by the Advocate mistakenly. The Prescribed Authority further found that the petitioners had failed to prove that the opposite party No.4 had worked as an Apprentice and, therefore, the claim of the opposite party No.4 for payment of minimum wages was allowed by means of the impugned order dated 07.10.2011.
8. It has been pleaded in the writ petition filed challenging validity of the order dated 07.10.2011, that the opposite party No.4 had merely been engaged as an Apprentice and he had never been employed by the petitioners. Notice of the writ petition was received by the opposite party No.4 and he had engaged a Counsel namely, Shri Jagat Narayan Dixit to represent him before this Court. However, besides filing a vakalatnama, the opposite party No.4 has not filed any other thing, including a counter affidavit.
9. Therefore, the pleadings made in the writ petition remained un-controverted and shall be deemed to have been admitted by the opposite party No.4 in absence of any denial.
10. A perusal of the impugned order dated 07.10.2011 indicates that the Prescribed Authority has allowed the claim of the opposite party No.4 for payment of minimum wages merely because the petitioners, who were opposite parties before, have failed to prove that the opposite party No.4 had worked as an Apprentice only. The joining report was held to be not admissible as it was a photocopy and the pleadings made by the opposite party No.4 in the writ petition were also not accepted on the pretext that the same had been made by the Advocate erroneously. The Prescribed Authority appears to have passed the impugned order in ignorance of the fundamental principles of law that the burden to prove a point lies on the person who relies on it. When the opposite party No.4 has filed the claim on the ground that he was in employment of the petitioners, the burden to prove that he was actually employed by the petitioners, lied upon the opposite party No.4. The opposite party No.4 did not discharge this burden. It is settled law that a claim cannot be allowed merely because failure of the opposite parties to prove their defense, yet in the present case, the opposite parties had proved their defense by filing a copy of the joining letter wherein the opposite party No.4 had admitted that he had joined as an Apprentice and there is nothing on record to indicate that the genuineness of this documents had been disputed by the opposite party No.4.
11. The contention of the opposite party No.4 that the pleadings in the writ petition No.8936 (SS) of 2006 filed by him before this Court were mistakenly prepared by his Counsel, appears to be an excuse created as an after thought because the pleadings are duly supported by an affidavit and the Oath Commissioner verifying the affidavit certified that the deponent of the affidavit had signed the affidavit after understanding its contents. This endorsement made by the Oath Commissioner has to be presumed to be correct as per the provisions contained under Section 114 of Illustration (e) of the Indian Evidence Act 1872 which provides that the Court may presume that judicial and official acts have been regularly performed. Verifying affidavits is an official act performed by the Oath Commissioner and it shall be presumed that it has been performed in a regular manner.
12. In view of the aforesaid discussion, it is evident that the impugned order dated 07.10.2011 passed by the Prescribed Authority, Minimum Wages is unsustainable in law.
13. Accordingly, the writ petition is allowed and the impugned order dated 07.10.2011 is hereby quashed.
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[Subhash Vidyarthi,J.] Order Date :- 30.4.2024
-Amit K-