1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 295/2005. M/s. N.J. Constructions through Partner. -: VERSUS :- Regional Labour Commissioner, Nagppur and another. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 27, 2010. Heard Shri R.N. Sen, learned Counsel for petitioner, Smt. A.A. Joshi, learned Counsel for respondent nos.1 and 3 and learned A.G.P. for respondent no.2. Short contention of Shri Sen, learned Counsel is, contract awarded to petitioner by Ordnance Factory, Ambajhari was not for sweeping and therefore, notification dated 28.01.2002 issued by the Ministry of Labour prescribing minimum rates of wages was not applicable to the employees engaged by the petitioner. He further states that the contract was only for providing sanitation services which included removal of garbage/rubbish from dustbins. His contention is, the 2 employees under him never worked as sweepers. He further points out that to show bonafides, the petitioner has already deposited the amount of difference as per the orders of this Court dated 27.01.2005. He further states that the Proprietor of Petitioner being an illiterate person could not attend the hearing before respondent no.1. Mrs. Joshi, learned Counsel for respondent nos. 1 and 3 disputes this position. She relies upon the reply - affidavit filed by respondent no.3 to urge that the notification is squarely applicable. According to her, opportunity was given to petitioner to appear and contest and after his failure, the impugned order has been passed by respondent no.1 with due application of mind. Learned A.G.P. appearing for respondent no.2 states that respondent no.2 has to act upon the recovery certificate forwarded by respondent no.1. The nature of contract provided to petitioner and scope thereof needs to be looked into to find out whether the government notification dated 28.01.2002 is applicable to his establishment. Respondent no.3 in reply has also pointed out another notification dated 3 05.10.1984 issued by the Government of Maharashtra. In this situation it is apparent that unless and until a finding is recorded on the work actually done by petitioner as contractor with Ordnance Factor, Ambajhari, the notification dated 05.10.1984 or 28.01.2002 could not have been applied to his establishment or work. The petitioner admittedly did not appear before respondent no.1, and respondent no.1 has entertained the grievance in relation to 12 employees after condoning the delay. The respondent no.1 has also imposed penalty at 4 times the amount of difference. The total amount of difference worked out by respondent no.1 is Rs. 1,59,156.40. In this situation, interest of justice can be met with by directing petitioner to appear before respondent no.1 on 11.08.2010 and to abide by his further instructions in the matter. Respondent no.1 shall hear the petitioner, consider his grievance and pass fresh orders in the matter. The impugned order dated 16.04.2004 is quashed and set aside for that purpose. If respondent no.1 finds petitioner liable to pay the amount of difference, liberty to respondent no.1 to move this Court for withdrawal of amount of Rs. 4 1,60,000/- in deposit with the Registry of this Court, as per that adjudication. The respondent no.1 shall decide the controversy as early as possible and in any case by 31.12.2010. Writ Petition is thus partly allowed. Rule is made absolute accordingly. However, in the circumstances of the case, there shall be no order as to costs. JUDGE Rgd.