IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7533 of 2009 ====================================================== Amar Singh, son of Jagarnath Singh, resident of village Mahua, P.O. Tribhawani, Police Station Semara, District West Champaran, at present, resident of village and post office Naraipur, Police Station Bagaha, District West Champaran .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Labour Commissioner –cum- Appellant Authority, Bihar, New Secretariat, Patna 3. The Assistant Labour Commissioner –cum- Authority, Bettiah, District West Champaran 4. Gaya Devi, wife of Jhapas Ram, resident of village Mahua, P.O. Tribhawani, Police Station Semara, District West Champaran through the General Secretary, Zila Khotihari Gramin Mazdoor Sangh, Bettiah, New Colony, Dak Bunglow Road, Bettiah, District West Champaran .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kumar Shashank Shekhar Mr. Sachida Nand Rai For the Respondent/s : Mr. (Sc16) ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) 4 17-10-2011 Heard Counsel for the petitioner and the State. Nobody appears on behalf of respondent no. 4 despite valid service of notice on her. The respondent no. 4-Gaya Devi filed an application for payment of minimum wages vide Annexure-2. Apparently, notices were issued to the petitioner who did not appear in the matter to contest the claim of respondent no. 4. The reason for not appearing is that there was no proper service of notice on the petitioner. In any event, by Annexure-2, the Assistant Labour Commissioner, Bettiah, West Champaran allowed the claim of respondent no. 4 and Patna High Court CWJC No.7533 of 2009 (4) dt.17-10-2011 2 / 3 2 directed that the petitioner should pay a sum of Rs. 61,152/- to respondent no. 4-Gaya Devi. The petitioner on knowing about the said order as contained in Annexure-2, filed an application to recall of the order under rule 29 (4) of the Bihar Minimum Wages (Central) Rules, 1950. The aforesaid rule provides that the application for recall should be filed within a period of 30 days. In any event, notices were sent to respondent no. 4 who appeared and filed her objections on merits as well as on the point that the order passed under sub-rule (2) of Section 20 of the Minimum Wages Act, 1948 cannot be recalled as the application was filed beyond the statutory period fixed by the rules. On merit, the Court came to the conclusion that since there was a land dispute between the parties, the question of there being any relationship of employer and employee seems to be unreasonable stand taken by respondent no. 4. Being aggrieved by the order of respondent no. 3-the Assistant Labour Commissioner, respondent no. 4 filed an appeal which was disposed of by Annexure-1. The appeal was filed by respondent no. 4 after 12 days of the prescribed period before the Labour Commissioner –cum- Appellant Authority/respondent no. 2 which was condoned by the respondent no. 2. The Labour Commissioner –cum- Appellate Authority further concluded that since the Assistant Labour Commissioner had no power to condone the delay under rule 29 (4), the order as contained in Annexure-4 was not Patna High Court CWJC No.7533 of 2009 (4) dt.17-10-2011 3 / 3 3 maintainable. The Court did not consider the respective merits or claims of the petitioner and the respondent no. 4. Both the parties at one stage or the other, have filed application after the expiry of the statutory period. Although, it may be true that there is no power of the Assistant Labour Commissioner to condone the delay even if he thinks it fit in the interest of justice, it does not stop this Court from observing that the delay should be condoned and the case of the parties should be considered on its own merits. I thus quash Annexure-1 and remand the matter back to the respondent no. 2 to hear both parties on merits. Since, respondent no. 4, Gaya Devi has not appeared before this Court, it would be essential to issue notice to her to appear in the matter and satisfy the respondent no. 2 regarding the merits of the claim put forward by her. This writ application is thus disposed of with the aforesaid observations and directions. The petitioner is directed to produce a copy of this order before the respondent no. 2 within a period of two months from today. Prabhakar Anand/- (Sheema Ali Khan, J)