Md. Salauddin @ Siwni vs State of Jharkhand

D.G.R. Patnaik, J.—Petitioner, in this writ application, has prayed for the following reliefs:

(a) For quashing the order dated-14.02.2007 (Annexurc-9), passed in M.W. Appeal No. 1 of 2006-07, by the court of Additional Deputy Commissioner, West Singhbhum, Chaibasa, whereby the prayer of the petitioner filed in the appeal preferred by him u/s 20(6A) of the Minimum Wages Act, for condoning the delay in filing the Appeal has been rejected.

(b) For quashing the Notice dated-14.11.2006 (Annexure-7), issued by the Certificate Officer in Certificate Case No. 01 (M.W./06-07) whereby a direction was issued to the petitioner to pay the certificate amount of Rs. 1,39,041.57/-.

(c) For issuance of a direction to the appellate court to consider the petitioner''s appeal on merits.

(d) For staying the proceedings of the impugned orders, passed in the Ceitificate proceedings.

Counter affidavits have been filed on behalf of the private Respondent No. 3 as also the Respondent-State.

Heard the learned Counsel for the parties.

Mr. Pandey Neeraj Roy, learned Counsel for the petitione , while assailing both the impugned orders, would submit that upon receipt of the notice in the certificate proceedings, the petitioner had filed his objections u/s 9 of the P.D.R. Act. The impugned order, directing the petitioner to deposit the Certificate amount was passed by the Certificate Officer purportedly under the provisions of Section 10 of the Act, by way of an ex parte order with an observation that the petitioner had failed io appear in the proceedings on the date fixed. Learned Counsel contends that even though the Certificate Officer could have passed an ex parte order but considering the fact that the petitioner had appeared in the proceedings and had filed his objections stating specific grounds in support of such objection, the Certificate Officer could not have proceeded to impose the financial liability by making the demand for payment of the certificate amount, without first considering and discussing the objections raised by the petitioner.

As regards the impugned order of the Appellate Authority, learned Counsel explains that being aggrieved by the order passed by the Authority in the proceedings under the Minimum Wages Act, the petitioner had preferred an appeal against the order. There being a delay in filing the appeal, the petitioner had filed a separate application praying for condoning the delay on the ground that the delay was occasioned due to the petitioner''s ill less. A medical Certificate was enclosed alongwith the petition for condonation of delay. The Appellate Authority, according to the learned Counsel, has erroneously refused to condone the delay merely on the ground that the bona fides of the certificate appears to be doubtful in view of the fact that the petitioner being a resident of West Singhbhum, had obtained the Certificate from the Doctor stationed at East Singhbhum.

Learned Counsel argues that the learned Appellate court below had failed to consider the fact that though the Doctor concerned was employed as an Assistant Civil Surgeon in East Singhbhum but is basically a resident of Chaibasa in West Singhbhum and the petitioner being also a resident of the same town did have occasion to undergo treatment under the said Doctor.

Learned Counsel adds further that the petitioner has categorically stated in the grounds of Appeal as also in the objections filed by him in the Certificate proceedings that he cannot under any circumstance be saddled with any liability to pay the wages as demanded by the Respondent No. 3 and if his appeal is not considered on merits, the petitioner would suffer serious prejudice.

Mr. R.C. Khatri, learned Counsel for the Respondent No. 3 would submit arguments in support of both the impugned orders and would want to explain that from the history of litigation between the petitioner and the Respondent No. 3, it would be apparent that this is not the first instance when the petitioner has approached this Court. Learned Counsel explains that on earlier occasion also, the petitioner had challenged the order of the authority under the Minimum Wages Act. Though the impugned order of the authority under the Minimum Wages Act was set aside with a direction to pass a fresh order, the authority under the Minimum Wages Act, in due compliance of this Court''s order, had reconsidered the case and passed a fresh order holding that the petitioner is liable to pay the wages together with arrears thereof to the Respondent No. 3. Upon the petitioner''s failure to comply with the order a certificate proceeding was initiated and the petitioner upon receipt of a notice in the Certificate proceedings, had though appeared and filed his objections but thereafter, had intentionally avoided to appear in the proceedings and to participate in the same and under such circumstances, the Certificate Officer was constrained to proceed and to pass the impugned order u/s 10 of the P.D.R. Act against the petitioner.

In respect of the impugned order of the Appellate Authority, learned Counsel for the Respondent No. 3 would submit that the explanations offered by the petitioner as reasons for condoning the delay, having not been found satisfactory by the Appellate Authority, the delay was not condoned and there being no impropriety or illegality in the order, the same cannot be challenged by the petitioner in this writ application.

Learned Counsel adds further, that by indulging in such dilatory tactics, the petitioner has been denying and depriving the Respondent No. 3 of the fruits of the Award, which was passed by the competent authority under the Minimum Wages Act in his favour.

More or less, similar arguments have been advanced on behalf of the learned Counsel for the Respondent-State by reference to the statements contained in their counter affidavit.

From the rival submissions, the following facts emerge:

The impugned order (Annexure-7), which was passed by the Certificate Officer, is admittedly an ex parte order From perusal of the order, it appears that the Certificate Officer had proceeded to declare that the petitioner is liable to pay the Certificate amount. Such declaration has though been passed ex parte, but without making any discussions whatsoever of the objections raised by the petitioner u/s 9 of the P.D.R. Act.

Section 10 of the P.D.R. Act lays down the procedure to be followed by the Certificate Officer in cases where the objections u/s 9 of the Act is filed by the Certificate debtor and it contemplates hearing and determination of the issues involved in the proceedings. The Certificate Officer, if necessary, may take evidence and determine whether the Certificate-debtor is liable for payment of the whole or any part of the amount for which the Certificate was signed. The provisions also envisage that if tne judgment debtor fails'' on any occasion to discharge his duties as per the orders of the Certificate Officer then the Certificate Officer shall be at liberty to proceed ex parte but only after deciding the matter u/s 9 of the P.D.R. Act as contemplated under the provisions of Sections 10 and 11 of the Ait.

It is apparent from a bare reading of the impugned order (Annexure-7) that no discussion on the grounds of objections raised by the petitioner was made at all by the Certificate Officer before imposing the liability upon the petitioner to pay the Certificate amount. The impugned order therefore, suffers from impropriety and betrays lack of application of mind and also betrays that the order has been passed without adhering to the duty cast on the officer under the provisions of Section 10 of the Act. The impugned order of the Certificate Officer being not sustainable under the law, is hereby quashed.

As regards the impugned order of the Appellate Authority, it appears that prayer for condoning the delay has been rejected only by doubting the genuineness of the medical certificate produced by the petitioner. The circumstances under which the petitioner had undergone medical treatment under the Doctor who had issued the Medical Certificate, do not appear to have been considered by the Appellate Authority, before rejecting the petitioner''s prayer for condoning the delay.

In the light of the explanations offered by me petitioner that the Doctor who had issueu the Certificate is essentially a resident of Chaibasa in the district of West Singhbhum and the petitioner is also a resident of the same town, it would not be a matter of surprise or disbelief that the petitioner had undergone medical treatment under the Doctor and to treat the medical certificate as not genuine. I am satisfied that the impugned order has been passed by the Appellate Authority without proper appreciation of the explanations offered by the petitioner for the delay in filing the Appeal and has been passed on the basis of conjectures and surmises.

For the aforesaid reasons, finding the impugned order of the Appellate Authority to be unjust and suffering from impropriety, the same is also hereby quashed. The Appellate Authority is directed to reconsider the matter and to pass an appropriate order after hearing the appeal on merits and dispose of the same within a reasonable time, preferably within a period of six months from the date of the order. The petitionei in his turn shall also ensure his due participation in expediting the disposal of the appeal within the period stipulated hereinabove.

Considering the fact that the petitioner claims to have raised several grounds in support of his positive stand that he is not liable to pay any amount towards minimum wages to the Respondent No. 3 and also considering the fact that the Appeal filed by him against the order of the authority concerned under the Minimum Wages Act is yet to be considered and decided, the further proc edings in the Certificate case against the petitioner shall remain stayed and no action including any action on the basis of warrants issued, if any, pursuant to the impugned order (Annexure-7), shall be taken against the petitioner till the disposal of the appeal filed by the petitioner.

With these observations, this writ application stands disposed of.

Let a copy of this order be given to the learned Counsel for the Respondent-State.