PANKI THERMAL STATION AND ANR.versusVIDYUT MAZDOOR SANGTHAN AND ORS.

                               [2009] 2 S.C.R. 445


                    PANKI THERMAL STATION AND ANR.                        A
                                      V.
                  VIDYUT MAZDOOR SANGTHAN AND ORS.
                      Civil Appeal Nos. 885-886 of 2009
                             FEBRUARY 11, 2009
                                                                          B
               (DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                              SHARMA, JJ.)
-1.

      .\
               l).P Contract Labour (Regulation and Abolition) Rules,
           1975 - Rule 25(2)(V)(a):
                                                                          c
               Regularisation of workmen - Orders of Lab.our
           Commissioner in favour of workmen - Affirmed by High Court
           - On appeal,. Held: Since the impugned order does not
           address the basic issues, matter remitted to Labour
           Commissioner to decide the matter afresh.
                                                                          D.
               Regularisation order by Labour Commissioner and
           upheld by the High Court has been challenged in the
           appeal.
                Partly allowing the appeals and remitting the matters
                                                                          E
           to the Labour Commissioner, the Court
                HELD: 1. A bare reading of the provision viz. Rule
 "         25(2)(v)(a) of the U.P. Contract Labour (Regulation and
  1.
           Abolition) Rules, 1975 makes the position clear that in
           cases where the workmen employed by the contractor F
           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 G
  .-(      disagreement with regard to the type of work the same
           shall be decided by the Commissioner.[Para 11] [450-A, B]
                Secretery, H.S.E.B. v. Suresh and Ors. 1999 (3) SCC 601

                                       445                                H
    446       SUPREME COURT REPORTS                   [2009] 2 S.C.R.


A   and BHEL Workers Association, Hardwar and Ors. v. Union of
    India and Ors. 1985 FLR (50) 205 - referred to.
         2. 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
B   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
C   by regular employees. The Commissioner's order does
    not reflect that these aspects were considered. [Para 13]
    [450-E, F]
         3. As neither the Labour Court nor the High Court
    addressed to the basic issues, the impugned judgment
    of the Labour Court as affirmed by the High Court cannot
D   be maintained and are set aside. The matter is remitted to
    the Commissioner to decide the matter afresh. [Para 14]
    [451-D, E]
                          '
                         Case Law Reference
E         1999 (3) sec so1          referred to         Para 4
          1985 FLR (50) 205         referred to         Para 4
         CIVILAPPELLATEJURISDICTION: CivilAppeal Nos. 885-                 ~
    886 of 2009                                                          ,t ..


F       From the Judgement and Order dated 09.04.2007 of the
    Hon'ble High Court of Judicature at Allahabad in C.M.W.P. No.
    47303 of1999 and C.M.W.P. No. 13679 of 2000.
          R.N. Trivedi, Pradeep Mishra, for the Appellant.
          Bharat Sangal, for the Respondent.
G
          The Judgement of the Court was delivered by
           DR. ARIJIT PASAYAT, J.
          1. Leave granted.
H         2. This is second journey of the appellants to this Court. A
                    PANKI THERMAL STATION AND ANR. V. VIDYUT    447
                 MAZDOOR SANGTHAN AND ORS.[DR. ARIJIT PASAYAT J.]

      -f       Writ Petition No.47303of1999 was filed by the employers who A
               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 B
               30.7.1999 and Writ Petition No.47303 of 1999 was disposed
               of by the Hi~ Court by order dated 11th July, 2003. The present
      f.
               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     c
               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.
                                                                                   D
               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     E
                    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 F
               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 G
.....          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.                                                             H
    448       SUPREME COURT REPORTS                    [2009] 2 S.C.R.


A         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
B   registered under the provisions of U.P. Contract Labour
    (Regulation and Abolition) Act, 1970 (in short the 'AGt') they were
    definitely working directly under the employer and th'at each one
                                                                               ~-
    of them has worked for more than 240 days in a previous
    calendar year and, therefore, the Commissioner's order does           '
c   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, vidence and documents placed on record and to
    arrive at a conclusion as to whether the workmen are performing
D
    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
E
    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
F
    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
G 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
H the number of employees was fixed nor they were under
     PANKI THERMAL STATION AND ANR. V. VIDYUT   449
  MAZDOOR SANGTHAN AND ORS.[DR. ARIJIT PASAYATJ.]

the control of the appellants. Therefore, Rule 25 has no           A
application.
     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 B
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 c
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
                                                                  0
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.                                                    E
     10. The pivotal provision for resolving the dispute is Rule
25 (2)(v)(a). The same reads as under:
     "In cases where the workmen employed by the contractor
     perform the same or similar kind of work as the workmen F
     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 G
     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."
                                                                   H
    450       SUPREME COURT REPORTS                     [2009] 2 S.C.R.


A         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
B   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
C   claimants for equal pay. No material was placed regarding actual
    nature of work. Yet the Labour Commissioner recorded as
    follows:
          ".... Wh'at is the main difference in the work done by these
          contract labour and the regular employees has not been
D
          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.
E 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
F 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
G 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
H         provisions of 1975 Act referred to above suffers from any
         PANKI THERMAL STATION AND ANR. V. VIDYUT   451
      MAZDOOR SANGTHAN AND ORS. [DR. ARIJIT PASAYATJ.]

           error much less an error apparent on the face of record         A
           which may warrant interference under Article 226 of the
           Constitution of India.
               xxx                 xxx                    xxx
           ... So far as the claim application is concerned there is       B
           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     C
           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.                   D
         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.                              E
           15. The appeals are allowed to the aforesaid extent.
>


    G.N.                                       Appeals party allowed.