Panki Thermal Station & Anr vs Vidyut Mazdoor Sangthan & Ors

Panki Thermal Station and Anr. .... Appellants

Versus Vidyut Mazdoor Sangthan and Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. This is second journey of the appellants to this Court. A Writ Petition

No.47303 of 1999 was filed by the employers who are the present

appellants questioning correctness of the order dated 6.8.1999 passed by the

Labour Commissioner (in short the `Commissioner') under Rule 25(2)(v)(a)

of the U.P. Contract Labour (Regulation and Abolition) Rules, 1975 (in short the `Rules'). The workmen had challenged the award dated 30.7.1999

and Writ Petition No.47303 of 1999 was disposed of by the High Court by

order dated 11th July, 2003. The present appellants challenged the judgment

of the High Court in Civil Appeal No.1734 of 2004. By judgment dated

15.9.2005, this Court set aside the order holding that the High Court ought

to have taken both the writ petitions together as the issue was the same. The

High Court by the impugned judgment held that the award of the Industrial

Tribunal (3), U.P., Kanpur (in short the `Tribunal') dated 30.7.1999 did not

require any interference and the writ petition filed by the appellants

deserves to be dismissed. The Tribunal had answered the reference in the

following terms:

"On the basis of the pleadings of the parties and evidence on record my conclusion to the reference is that the action of the employer No.1 in not regularizing the services of 118 employees mentioned in the reference is justified and valid and that the workmen concerned are not entitled for any relief."

3. The High Court noted that there were two orders one passed by the

Commissioner dated 6th August, 1999 which was the subject matter of

challenge in writ petition No.47303 of 1999 and the other was passed by the

Tribunal. The Commissioner by order dated 6.8.1999 held that on the basis

of the pleadings and materials on record, it is apparent that the workmen

2 were working in the establishment for several years and refusal to pay

similar pay as being paid to regular employees had no legal justification.

The Commissioner, therefore, directed that the 118 workmen in question

should be paid similar wages as was being paid to unskilled regular

workmen alongwith D.A. and other allowances on the principle of equal pay

for equal work.

4. So far as the award of the Tribunal is concerned, the High Court

noted that in view of the decisions of this Court in Secretery, H.S.E.B. v.

Suresh and Ors. (1999 (3) SCC 601) and BHEL Workers Association,

Hardwar and Ors. v. Union of India and Ors. (1985 FLR (50) 205) though

the workmen had registered under the provisions of U.P. Contract Labour

(Regulation and Abolition) Act, 1970 (in short the `Act') they were

definitely working directly under the employer and that each one of them

has worked for more than 240 days in a previous calendar year and,

therefore, the Commissioner's order does not suffer from any infirmity.

5. According to learned counsel for the appellants Rule 25 (2)(v)(a) of

the Rules require the Commissioner to analyse the pleadings, evidence and

documents placed on record and to arrive at a conclusion as to whether the

workmen are performing the same duties as have been performed by the

3 regular employees. In the order passed by the Commissioner no discussion

about the manner of work performed by the workmen and regular

employees was given. There was also no consideration in respect of

workman Rajesh Kumar Pandey and 12 other workmen who were working

in the Field Hostel No.1. Since the Commissioner had passed an order

without considering the pleadings and documents and wrongly shifted the

burden of proof to the appellants, whereas it has to be proved by the

employees that they were doing the similar work like regular employees, the

order of the Commissioner is unsustainable. Further, the direction to ensure

payment of salary, D.A. etc. ought not to have been given.

6. The Commissioner failed to consider the difference between the

labour contract and the job contract. The labour contract is entered for

supply of labour and the labour so supplied work under the directions of

the employer whereas in the present case the work was given like coal

handling and cleaning to the contractor for a lump sum amount for a certain

period. Neither the number of employees was fixed nor they were under the

control of the appellants. Therefore, Rule 25 has no application.

4

7. The High Court mixed up issues and without considering the order of

the Commissioner on merits dismissed the appeal.

8. In response, learned counsel for the respondents submitted that the

proviso to Rule 25 (2)(v)(a) casts a duty on the Commissioner to examine

the pleadings and documents on record and find a decision regarding the

nature of work. In the present case, the details of work done by two

categories of workers were placed on record, whereas the principal

employer or the contractors did not produce any material at all excepting

mere denial of the similarity of work. It is submitted that under Section 21

(4) of the Act though primary responsibility of the payment of wages is on

the contractor, in case the contractor fails to make payment of wages then

the principal employer shall be liable to make payment of wages in full or of

unpaid balance to the contract labour.

9. The award of the Tribunal denied the relief of regularization

overlooking the fact that there was tripartite agreement.

10. The pivotal provision for resolving the dispute is Rule 25 (2)(v)(a).

The same reads as under:

5

"In cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work.

Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Labour Commissioner, U.P. whose decision shall be final."

11. A bare reading of the provision makes the position clear that in cases

where the workmen employed by the contractor perform the same or similar

kind of work as employed directly by the principal employer of the

establishment the wages rates, holidays, hours of work and other conditions

of service of the workmen of the contractor shall be the same as are

applicable to principal employer. In case of disagreement with regard to the

type of work the same shall be decided by the Commissioner.

12. It is to be noted that there was no prayer made by the claimants for

equal pay. No material was placed regarding actual nature of work. Yet the

Labour Commissioner recorded as follows:

6

"....What is the main difference in the work done by these contract labour and the regular employees has not been clarified. Clearly the work of cleanliness done by the employees is similar and the same position is in respect of unskilled employees and the contract labour.'

13. The High Court's judgment is a bundle of confusions. In the

Commissioner's order there is no discussion as to how the Commissioner

arrived at the conclusion about similarity of work. The Commissioner

ought to have considered on the basis of pleadings and materials placed by

the parties. The Commissioner was required to arrive at a conclusion that

the workmen had been performing the same duties as are being performed

by regular employees. The Commissioner's order does not reflect that these

aspects were considered. As noted above, the conclusions of the High Court

are bundle of confusion. The comparison of the following conclusions

clearly shows as to how the High Court's judgment lacks clarity:

"Nothing has been brought to the notice of this Court on behalf of the petitioner that these findings arrived at by the Tribunal to the effect that concerned workmen were employed through contractors registered under the provisions of 1975 Act referred to above suffers from any error much less an error apparent on the face of record which may warrant interference under Article 226 of the Constitution of India.

xxx xxx xxx

7 ...So far as the claim application is concerned there is categorically recorded finding that the labour employed through contractor are always employed for a fixed period and are continuously working for more than 240 days in the previous calendar year.

In this view of the matter, even though they are registered under the provision of U.P. Contract Labour (Regulation and Abolition) Act, 1970 they are definitely working directly under the employer and it is proved beyond doubt on the evidence on record that everyone of them has worked more than 240 days in previous calendar year.

14. As neither the Labour Court not the High Court addressed to the basic

issues, the impugned judgment of the Labour Court as affirmed by the High

Court cannot be maintained and are set aside. The matter is remitted to the

Commissioner to decide the matter afresh.

15. The appeals are allowed to the aforesaid extent.

......................................................J. (Dr. ARIJIT PASAYAT)

.................................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi

8 February 11, 2009

9