Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8649 of 2018 Petitioner :- Harishchandra Yadav Respondent :- Pradeep Kumar And 7 Others Counsel for Petitioner :- Deenanath Mishra
Hon'ble Mrs. Sunita Agarwal,J.
Learned counsel for the petitioner prays for and is granted permission to make correction in the prayer clause of the present petition within the course of the day.
The present petition is directed against the order dated 28.9.2018 passed by the Additional District & Sessions Judge, Fast Track Court, Kanpur Nagar whereby the order dated 20.1.2011 passed by the Assistant Labour Commissioner, Kanpur, Region, Kanpur in P.W. Case No.28 of 2009 under the Payment of Wages Act, 1936 (in short 'the Act, 1936') has been set aside.
The claim petition under the Act, 1936 has been filed by the respondent Nos.1 to 11 on 13.2.2009 claiming wages for the construction work having been carried out in the premises owned by the petitioner.
In Paragraph '1' of the claim application, the specific assertion has been made with regard to the rate of wages which was agreed upon between the parties. The period for which the wages were demanded by the claimant has been specified in paragraph '2' thereof. The specific averments in paragraphs '1' and '2' of the claim application have been denied by the petitioner in paragraphs '1' and '2' of the reply as under:-
^^1-fd oknhx.k ds dFku ds izLrj 1 esa mfYyf[kr dFku feF;k] Hkzked] vk/kkjghu gksus ds dkj.k vLohdkj gSA oknhx.k vius dFku dks lizek.k fl) djsaA 2- ;g fd oknhx.k ds dFku ds izLrj 2 esa mfYyf[kr dFku feF;k] Hkzked] vk/kkjghu] eux<+Ur gksus ds dkj.k vLohdkj gSA oknh vius dFku dks lizek.k fl) djasA"
However, the additional statement has been made in the objection filed by the petitioner wherein he has stated that the sum of Rs. 15,000/- was given by the petitioner to Shri Sanjeev Kumar, one of the claimants as advance, pursuant to an agreement for the construction work arrived between the parties. The claimant Shri Sanjeev Kumar had, however, left the construction work in between and hence a notice dated 12.2.2009 was given to him by the petitioner demanding refund of Rs.15,000/-, which was allegedly paid by him towards advance to Shri Sanjeev Kumar, one of the claimants.
Before the Deputy Labour Commissioner, the petitioner took stand that in addition to Rs.15,000/-, paid during the period of construction work, Rs.2000/-, Rs.3000/-, Rs.700/- and Rs.5000/- were also paid to Shri Pradeep and Shri Sanjeev Kumar who had agreed to complete construction work on contract basis. The period of contract was to expire on 22.11.2008 but since the construction was not complete the petitioner interrupted. The claimants then had left the construction work in between and did not return the advance paid to them. However, to prove the assertion with regard to advance payments made by the petitioner to the respondents-claimants, no evidence could be filed.
The petitioner as also Shri Sanjeev Kumar had entered in the witness box to record their statements. In examination-in- chief, Shri Sanjeev Kumar made a categorical statement with regard to the wages agreed between the parties and demanded Rs.4200/- towards the wages due to him. In the cross-examination of the said witness, it appears that a suggestion was made with regard to the advance payment made to him which had categorically been denied. However, no suggestion was made with regard to any contract being given to him for carrying out the construction work.
In the oral statement of the petitioner, though assertion had been made with regard to the payment of Rs.15,000/- as advance and on subsequent demands made to Shri Pradeep and Shri Sanjeev during the course of construction, however, in the cross-
examination, it was admitted that no receipt in writing was got by the petitioner. He admitted that it was an oral arrangement made between the petitioner on the one hand and Shri Pradeep and Shri Sanjeev who were allegedly engaged as contractor, on the other.
In absence of any receipt of payment allegedly made by the petitioner to respondent-claimant, the assertion made in the objection as also the oral statement could not have been accepted by the Deputy Labour Commissioner.
It is noteworthy that there is no dispute with regard to the engagement of the claimants Pradeep Kumar and Sanjeev Kumar by the petitioner for carrying out the construction work, which admittedly could not have been done only by two persons. In absence of any written contract with regard to the construction work being assigned to the claimants Shri Pradeep and Shri Sanjeev Kumar, the denial of wages due to the construction workers on the plea of advance given to them, cannot be accepted.
The factum of notice given by the petitioner on 12.2.2009, demanding refund of Rs.15,000/-, therefore, would be of no consequence.
In view of the above discussion, no infirmity is found in the order impugned passed by the Additional District & Sessions Judge, Fast Track Court, Kanpur Nagar.
The present petition is, thus, found devoid of merits and hence dismissed.
Order Date :- 27.11.2018 Jyotsana