1.Heard, Shri H.R.Shukla, learned counsel for the petitioner, Shri Mahendra Kumar Mishra, learned counsel for opposite parties no.1 to 4. Learned Standing Counsel is present on behalf of opposite party no.6. Opposite party no.5 is the concerned court.
2.This petition has been filed challenging the judgment and order dated 21.09.2011, passed by the Prescribed Authority i.e. the opposite party no.6 under the payment of Wages Act, 1936 in case No.PWA-4 of 2010, judgment and order dated 13.03.2013 passed in MRA No.37 of 2011 and the judgment and order dated 04.11.2017 passed in Misc. Civil Case No.09 of 2013 by opposite party no.5.
3.Submission of learned counsel for the petitioner is that the vehicle of the petitioner was hired by the respondent no.2 from 01.08.2006 to 31.07.2010 for carrying cash collected at the Railway Station to the State Bank of India. The petitioner was also engaged as driver but he was not paid wages/salary for the post of driver. The petitioner had approached to the Prescribed Authority under the Payment of Wages Act 1936 for payment of his wages/salary for the post of driver w.e.f. 01.08.2006 to 30.04.2010 amounting to Rs.1,75,345.18. The prescribed authority without considering the evidence and material on record and admission of the respondents that the payment for the month of June, 2010 and July, 2010 is due dismissed the application of the petitioner. Therefore the petitioner had filed an appeal before the opposite party no.5 which was also dismissed without considering the grounds. Thereafter the petitioner had filed the Review Application before the opposite party no.5, which has also been dismissed. Therefore the petitioner is constrained to approach this court. He also contended that there is violation of various provisions of the Act and Indian Penal Code.Accordingly he prayed for setting aside the impugned orders and direction for payment of wages/salary for the post of driver.
4.Per contra, learned counsel for the opposite parties no.1 to 4 submitted that the petitioner was never engaged on the post of driver. The vehicle of the petitioner was hired on the basis of quotation submitted by him for carrying the cash collected at the Railway Station to the bank. Initially the petitioner was being paid @ Rs.170/- per day as per the Contract,which was subsequently enhanced to Rs.300/- per day on the request of the petitioner in the year 2009. The petitioner was paid Rs.2,17,460/- w.e.f. 01.08.2006 to 30.04.2010. The petitioner had refused to take the amount for the month of June, 2010 and July 2010 amounting to Rs.14,700/-, which was informed by the Commercial Superintendent, Eastern Railway to the Divisional Railway Manager, Eastern Railway by means of letter dated 05.08.2010. He also submitted that the respondents are ready to pay the aforesaid amount for the month of June and July 2010. He also submitted that the petitioner is not working w.e.f. 01.08.2010. He also submitted that the petitioner had also approached to the Central Administrative Tribunal claiming his regularization and the Central Administrative Tribunal had recorded a categorical finding that the petitioner was not engaged on the post of driver and dismissed the original application. The said order was not challenged by the petitioner. The Prescribed Authority also, considering the pleadings and evidence on record, has rejected the claim of the petitioner as the petitioner could not prove his engagement on the post of driver. Accordingly the appeal and review filed by the petitioner have also been dismissed. There is no illegality or error in the impugned orders. The petition is liable to be dismissed.
5.I have considered the submissions of learned counsel for the parties and perused the record.
6.It appears that quotations were invited for hiring vehicle for carrying the cash collected at the Railway Station to the Bank on daily basis. The petitioner had also submitted his quotation. Considering the same the vehicle of the petitioner was hired w.e.f. 01.08.2006 on the payment of Rs.170/- per day. Subsequently on an application of the petitioner, the same was enhanced to Rs.300/- per day w.e.f. 01.07.2009. Admittedly the petitioner has been paid the higher charges up to 30.04.2010.
7.So far as the claim of the petitioner for engagement on the post of driver is concerned, initially the petitioner had filed the Original Application bearing Original Application No.352 of 2010 before the Central Administrative Tribunal claiming his regularization. The Original Application was dismissed by means of judgment and order dated 2nd of December 2011 as the petitioner could not prove his engagement/appointment on the post of driver. He also could not produce any voucher through which payment of wages as casual labour would have been paid to him for the post of driver. A categorical finding was recorded on the basis of the record and the documents that it is clear that he was only carrying Railway cash on day to day basis for which he was maintaining the records. The said judgment has not been challenged by the petitioner.
8.The petitioner had filed an application under Section 15(2) of the Payment of Wages Act, 1936 before the Prescribed Authority under the Act i.e. opposite party no.6. In the application the petitioner had claimed the salary for the post of driver,admitting that his vehicle was hired for depositing the cash in the bank, which was being collected at Gonda Junction. A plea was also taken that the petitioner was engaged on regular basis on the post of driver, therefore he is entitled for the salary of the post of driver w.e.f. 01.08.2006 to 30.04.2010, which has not been paid to the petitioner. On the basis of pleadings five issues were framed. The issue no.1 is regarding limitation and the issue no.2 as to whether the petitioner was engaged in service of the railway and as to whether there is relation of employer and employee between the parties. The issue no.1 has been decided against the petitioner recording a categorical finding that the aforesaid claim has not been presented within limitation and the payment has been made to the petitioner on the basis of contract @ Rs.170 per day and @ Rs.300/- per day w.e.f. 01.08.2006 to 30.04.2010, out of which Rs.300/- per day have been paid from July, 2009. The issue no.2 has also been decided against the petitioner holding that the petitioner was awarded the contract on the basis of quotation submitted by him and the payment has been made on the basis of contract. The issue no.3 is as to whether the claim of the petitioner comes under the potential wages and as to whether the claim of the petitioner is sustainable on the basis of Notification issued by the State of U.P. under the Payment of Wages Act. The said issue has also been decided against the petitioner holding that the payment has not been made to the petitioner as driver w.e.f. 01.08.2006 to 30.04.2010 and only the charges for the hired vehicle has been paid to the petitioner. The fourth issue is as to whether the petitioner was engaged on the regular post of driver in the Railway Administration. The said issue has also been decided against the petitioner and it has been recorded that the petitioner could not prove his claim.The fifth issue regarding entitlement of relief has been decided against the petitioner. As such,accordingly the application has been decided against the petitioner. This Court does not find any illegality or error in findings recorded by the prescribed authority because the petitioner has failed to prove his engagement or appointment on the post of driver. The vehicle of the petitioner was hired on the basis of his quotation and he has been paid for the service.
10. On query being put, learned counsel for the petitioner failed to show before this court also any engagement or appointment letter on the post of regular driver or his engagement on the post of driver. The appeal filed by the petitioner has also been dismissed considering the grounds raised by the petitioner as the petitioner could not prove his engagement on the post of driver. Therefore he is not entitled for any salary or wages for the said post. The review filed by the petitioner has also been dismissed as there was no error apparent on the face of record in the appellate order.
11. In view of above, this court is of the considered view that there is no illegality or error in the impugned orders as the petitioner could not prove his engagement or appointment on the post of driver. Therefore he is not entitled for any salary or payment of wages for the said post. Accordingly the other submissions regarding violation of the certain provisions of Payment of Wages Act and the provisions of IPC are not attracted in the present case. The petition is misconceived and lacks merit. It is, accordingly, dismissed. No order as to costs.
12. However, it is open for the petitioner to receive the charges for the months of June, 2010 and July, 2010 from the opposite party no.2 in case the same has already not been paid.
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........................................(Rajnish Kumar,J.) Order Date :- 18.8.2021 Banswar