REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 885-886 OF 2009
(Arising out of SLP (C) Nos. 15455-15456 of 2007)
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
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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
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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.
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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:
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“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:
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“….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
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…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
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February 11, 2009
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