Panki Thermal Station
& ANR. Vs. Vidyut Mazdoor Sangthan & Ors.  INSC 278 (11 February
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
Vidyut Mazdoor Sangthan and Ors. ....Respondents
Dr. ARIJIT PASAYAT,
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
"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."
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 were working in the
establishment for several years and refusal to pay similar pay as being paid to
regular employees had no legal justification.
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.
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
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 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.
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.
High Court mixed up issues and without considering the order of the
Commissioner on merits dismissed the appeal.
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.
award of the Tribunal denied the relief of regularization overlooking the fact
that there was tripartite agreement.
pivotal provision for resolving the dispute is Rule 25 (2)(v)(a).
The same reads as
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."
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.
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.'
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
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
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.
appeals are allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
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