Thakar & Co.And Anr. v. Executive Engineer And Others

1. An amount of Rs. 27,450.39 is sought to be recovered from the petitioner-contractors vide the order impugned in the writ petition as the said amount was paid by the department-principal employer to the labourers employed by the contractors in execution of the awards passed by the Asstt. Labour Commissioner against the petitioners. The main contention of the petitioners is that the respondent No. I was not competent to make the payment of the amount to the labourers under the contract agreement executed or under any provision of law. It is further submitted that the aforesaid amount cannot be recovered as arrears of land revenue.

2. In their counter-affidavit, the respondents have submitted that the writ petition deserves to be dismissed as no fundamental or legal right of the petitioners was involved and the same was based on the terms and conditions of the agreement executed between the parties. The petition is also alleged to be suffering from unexplained delay and laches having been filed after 4 years from the date of the order impugned. It is admitted that petitioner No. 1 was allotted the execution of the contract for which an agree­ment was executed between the parties. After starting the work on 11.11.1974, the petitioners did not take any interest in its execution within the time specified. Cl. (24) and (32) of the agreement executed between the parties authorised the respondents to make the payments of the labourers and recover the same as arrears payable to the department. The 3 labourers preferred the claims which were awarded vide Annexure Rf, RG & GH and were paid on demand to the concerned Court by the department by means of cheques issued as detailed in para 4 of the counter. Under Sec. 21 (4) of the Labour Contract Act, a duty is cast upon the principal-employer to make the payment of such claims and recover the same from the contractor. The writ petition is stated to be misconceived and liable to be dismissed.

3. I have heard learned counsel for the parties and perused the record.

Clause (24) of the agreement executed between the parties provide:

"The contractor should preferably engage permanent resident labour of Jammu & Kashmir on the work. He shall pay the labour at minimum of Rs. 5/- per adult (male) and Rs. 3/- per minor. He shall be responsible to abide by the relevant labour laws and shall not engage children below the minimum pres­cribed age limit. The contractor will be responsible to make timely and reasonable payment to all the labour and in case of his failure to do so, the Executive Engineer shall be free to make payment to such labour after making suitable enquiries, as are considered genuine and justified and make payment to the claimant by debt to the contractor's dues"

4. The contractor is liable to meet any outstanding recoveries due from him and on his failure the same is recoverable from him as arrears of land revenue under Cl. (32) of the said agreement. It is not disputed that the awards were passed by the Labour Court for payment of the wages to the workers which were disbursed by the department. The agreement of the learned counsel for the petitioners that the disbursement of the amount to the laborers was not authorised by law or contract, is without any basis in view of Clause (24) of the agreement (supra). Sub-sec. (4) of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970, provides:

"(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor"

5. The respondent-department was, therefore, justified in making the payment of the amount to the workers as per terms of the agreement and the provisions of law applicable.

It is true that sums paid by the department on account of wages are not specifically mentioned in Section 91 of the Land Revenue Act, but it is equally true that the sums are lawfully recoverable by the government. Sec. 90 of the Land Revenue Act prescribes the procedure for the recovery of the amounts lawfully recoverable as arrears of land revenue gender the provisions of the said Act. Sec. 91 specifies such sums which may be reco­vered as arrears of land revenue in addition to any sum recoverable as arrears of land revenue under the Act or any other enactment for the time being in force. As to whether the amount paid by the department under an agreement is an amount lawfully recoverable under Sec. 90 of the Land Revenue Act, this Court in Ghulam Hassan Kapra v. Conservator of Forests- 1971 JKLR 484, held:

" .. In our opinion, however, the words 'Lawfully recover­ able, merely mean that the amount should be actionable at law; if one of the parties under a valid agreement binds itself down to pay a certain sum or money or stipulates that in the event of failure of payment, the money be realised as arrears of land revenue then the sum becomes at once lawfully recoverable under a valid and a binding agreement. The words 'lawfully recoverable' in S. 90 therefore are not necessarily conditioned by the fact that the amount should be specifi­cally recoverable under a statutory provision and includes within its purview liability under a valid agreement. We are fortified in our view by a Division Bench decision of this Court in Ahmad Rather v. Tehsildar Khas; AIR 1961' J&K 1 to which I was a party. In that case while dealing with the provisions of S. 90 the Court observed as follows:

'The words used in this section are not merely' an arrear of land revenue...- Under these circumstances if a party which is fully conscious of its rights agrees that certain sum of money should be realised through the machinery provided in the Land Revenue Act, and as arrear of land revenue, we do not see how the contract will become void on that account.

It is always open to a party to agree as to how the rights under a contract may be effectually settled. The petitioners having agreed that instead of taking recourse to the ordinary procedure of the Civil Courts, the mode of realization should be one provided under the Land Revenue Act, the revisions of S. 90 at once come into play arid by virtue of such an agreement the sum of money becomes lawfully recoverable as arrears of land revenue.'

This decision is binding on us and is in no way in consisted with the Supreme Court decision (supra). Moreover the term lawful does not mean "enjoined by law" but merely means something which is the opposite of unlawful, that is to say en­ forceable at law and valid in law "

6. In view of the Division Bench Judgment of this Court, the specific provisions of law as contained in Sec. 90 of the Land Revenue Act; Sec. 21 (4) of "the Contract Labour (Regulation & Abolition) Act, and the agreement exe­cuted between the parties, it cannot be said that the amounts sought to be recovered from the petitioners, could not be recovered as arrears of land reve­nue on the basis of the order impugned in this writ petition.

The petition has no merit and is dismissed with costs assessed at Rs. 20. Interim stay granted by this Court on' 30-12-1990 shall stand vacated and C.M.P. No. 1050/80 disposed of.