Madras High Court
The Airport Director vs Deputy Chief Labour Commissioner ... on 6 August, 2013
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.08.2013
CORAM
THE HONOURABLE Mr. JUSTICE M. VENUGOPAL
W.P.No. 8366 of 2005
in
W.P.M.P.No.9035 of 2005
The Airport Director,
Airports Authority of India,
International Airports Division,
Chennai Airport, Chennai 600 027. .. Petitioner
Vs
1. Deputy Chief Labour Commissioner (Central)
(South Zone)
III Main, III Cross, II Phase,
Tumkur Road, Bangalore 560 002.
2. Chennai Airport Contract Workers Union,
Rep. By its Secretary,
No.6, First Street, Balaji Nagar,
Anakaputhur, Chennai 600 070.
3. M/s. SLK Contract Services
12A, Kannigapuram,
K.K.Nagar, Chennai 600 078.
4. M/s.Santham Contractor,
No.1/89, Kamaraj Street,
Meenambakkam,
Chennai 600 053. .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a writ of Certiorari calling for the records of the 1st Respondent in Proceedings No.20(3)/2002-A2/DY.CLC(C)(SZ) dated 29.09.2004, quash the same.
For Petitioner : Mr.R.Rarthiban
For Respondents No.1 : Mrs.V.Bhavani Subbarayan
For Respondents No.2 : Mr. Balan Haridas
For Respondents No.3 : Dismissed vide Court Order dated 24.6.2011
For Respondents No.4 : Served (No appearance)
ORDER
The Petitioner has preferred the instant writ of Certiorari in calling for the records of the 1st Respondent in Proceedings No.20(3)/2002-A2/DY.CLC(C)(SZ) dated 29.09.2004 and to quash the same.
2. The Resume of facts:-
The Petitioner / Airports Authority of India (International Airports Division) is a statutory body under the Airports Authority of India Act, 1994. In order to carry out its various incidental functions, it engages contract Labourer through various contractors. Two such contractors are in respect of the 3rd Respondent/M/s. SLK Contract Services, Chennai 78, who supplies workmen for the purpose of loading and unloading of cargo on the import side of the Cargo Division and in respect of 4th Respondent/M/s. Santham Contractor, Chennai 53 who supplies workmen for the purpose of bird scaring.
3. According to the Petitioner, the Second Respondent projected an application under Rule 25(2)(v)(a) and (b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, in and by which they made a claim for payment of equal wages has been paid to the lowest category of the unskilled employees of the Petitioner.
4. Although a notification was issued under Section 10 of the Contract Labour (Regulation and Abolition) Act, on 16.11.1999 abolishing workmen in certain areas of work. However, in so far as the Petitioner is concerned, the said notification was quashed by the High Court of Delhi. The judgement of the High Court of Delhi was upheld by a Division Bench of the same Court and SLP against the same came to be rejected.
5. The Petitioner/Management filed a detailed counter (in respect of application under Rule 25(2)(v)(a) and (b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, filed by the Second Respondent) in and by which, a plea was taken to the effect that the workmen were not entitled to the claim made in their petition. Further, the case of the Petitioner is that it does not employ any persons directly for the same or similar kind of work as was being done by the workmen provided by the Respondents 3 and 4 and as such, the first Respondent/Authority came to the conclusion that Rule 25(2)(v)(a) and (b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, did not apply and proceeded to consider the matter under Rule 25(2)(v)(b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. As a matter of fact, while determining the wages, holidays and hours of work and other conditions of service are required to be taken into account by the First Respondent prevailing in similar employments.
6. The First Respondent through an order dated 29.09.2004, inter alia, passed the following order:-
After going through in detail the observation by the Hon'ble Justice of the Apex Court in the Air India Statutory Corporation & Union of India and others it is unfair on the part of the contractor and the principal employer to pay Rs.57/- to Cargo loaders and Rs.65.50 to bird scarers. The Authority has to decide the wage rates, conditions of services under Rule 25 (2) (v) (b) and while determining the above, the Authority shall have due regard to the wage rate, holidays, hours of work and other conditions of services obtaining in similar employment. The Authority has come to the conclusion that since in the same vicinity of Chennai Airport, M/s. Blue Dart Aviation Ltd., is paying Rs.120/- per day to their cargo loaders, 115 cargo loaders of M/s. SLK Contract Services should also be paid Rs.120/-. The same (Rs.120/-) is made applicable to the bird scarers engaged by M/s. Santham Contractor, as both the jobs are unskilled category which becomes effective from 1st October, 2004. The hours of work are reasonable. As regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai and also as provided under the Contract Labour (Regulation & Abolition) Act, 1970 and Rules made thereunder. Necessary clauses may be incorporated in the contract agreement made between the PE and the contractor.
7. Further, in the impugned order of the First Respondent dated 29.09.2004, it is inter alia mentioned that '. . . . . . The present petition before the Authority is not for absorption but only for wages as per clause 25(2)(v)(a) & (b) or at the same rate being paid to the unskilled workers in the Civil Maintenance Section at Chennai Airport or at the rate paid to the cargo loaders at Delhi Airport etc. Continuing further, the said order makes a reference to the following point raised on behalf of the principle employer viz.,
(i).As long as there is no regular employees in the field of loading and unloading of cargo loaders which was admitted by the petitioner during the proceedings held on 13.11.2003 at Bangalore and the members of the union do not perform the duties as being performed by the regular employees of the Airport Authority of India.
(ii).The instant petition is ultra vires under Rule 25(2)(v)(a) of CL (R & A) Act. In as much as the Government of India has withdrawn the circular dated 16.11.1999 vide its order dated 13.12.2002 the relief sought for in the petition is not maintainable and it has to be dismissed in limine.
(iii).For the purpose of the instant application, Airport Authority of India, (IAD) Chennai Airport is a separate entity under the proviso Section 2 of the CL (R&A) Act, 1972.
8. Moreover, the First Respondent/Deputy Chief Labour Commissioner (Central ) (South Zone) in the impugned order dated 29.09.2004 has among other things observed that ' . . . . if the workers directly employed by the PE can claim the wages due to them by moving an application under Section 33 C2 of the I.D.Act, the workers employed by the contractor are also entitled to claim the wages due to them by moving an application under Section 33 C 2 of the I.D.Act.'
9. In this connection, this Court relevantly points out that in the application dated 02.12.2002 of the Second Respondent, it is stated that the workers mentioned in Sl.No.1 to 6 are paid only just Rs.57/- per day and that they are not given any weekly off or any Dearness Allowance to off set the increase in cost of living. As a matter of fact, in the application of Second Respondent dated 02.12.2002, the subject portion refers to ' Implementation of the policy of equal wages for equal work'. That apart, an appeal has been made to the First Respondent /Authority to issue necessary directions to the Writ Petitioner to grant wages to workmen in terms of Rule 25(2)(v)(a) & (b) of CL (R & A) Act.
10. Besides the above, the First Respondent in the impugned order dated 29.09.2004 has observed that ' The Petitioner union himself has admitted that the principal employer viz Airport Authority of India, IAD Division, Chennai do not employ cargo loaders and bird scarers at Chennai Airport. Hence, this Authority cannot decide the case under the said Rule 25(2)(v)(a) of CL (R & A) Central Rules, 1971 as there are no directly employed cargo loaders workmen of PE doing the same or similar kind of work'.
11. The Learned Counsel for the Petitioner urges before this Court that the Petitioner is aggrieved in regard to the issuance of direction by the First Respondent that the Contract worker should be given holidays, leave and other conditions of service on par with the regular employees is an erroneous one.
12. In the writ petition a ground is taken on behalf of the Petitioner that the First Respondent has relied upon the wage slip issued by Hitex Maintenance to S.Sivakumar, a loader for the month of April, 2004 and he was allegedly working in the Indian Airlines of Chennai Airport and was being paid at Rs.123/- per day etc.
13. Another ground taken in the writ petition on behalf of the Petitioner is that the order of the First Respondent making the same pay of loaders applicable to the birds scarers is totally in violation of the Rule etc.
14. It is to be pointed out that no industry has right to exist unless it is able to pay its workmen at least a bare minimum wage. If it an employer cannot maintain his enterprise without cutting down the wages of his employees below even a bare subsistence or minimum wage, in the considered opinion of this Court. He has no right to conduct his business/enterprise as the case may be. Further, in the decision Cominco Benani Zinc. Ltd., V. Papachan (1989 LLR page 123 (ker.), it is held that if the contractor fails to pay wages to his employees engage by him the principle employee will be liable to pay the same.
15. In fact, CL (R & A) Act, 1970, does not over ride the ingredients of Industrial Disputes Act, 1947, as opined by this Court. At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court Salal Hydro Electric Project V. State of Jammu & Kashmir (1984 (3) SCC at page 538), it is held that senior officers must ensure the compliance with the provisions of Section 21 of CL (R & A) Act.
16. Also, in the decision T.Chandra Mohan Nair V. Fertilizers and Chemicals Travancore Ltd., (1994 LLR at page 626 (Ker.), it is held that ' there is no automatic absorption of labourers in regular employment'.
17. Moreover, once a contractor's establishment is covered under the minimum wages Act, the employees engage through contractor shall be entitled to wages as determined under the Act, in the considered opinion of this Court. Further, there is a marked distinction between a daily wages and a permanent employee as per decision of Hon'ble Supreme Court Jagbir singh V. Haryana State Agriculture Marketing Board (2009 LLR page 1254 (SC)). In yet another decision of the Hon'ble Supreme Court Surendra Nath Bandey V. U.P. Co-operative Bank Ltd., (2010 LLR (SN) at page 893 (SC)), it is held that ' daily wagers cannot claim regular pay scale as a matter of right.'
18. The aforesaid grounds taken on behalf of the Petitioner relating to a copy of wage slip issued to S.Siva Kumar, loader by Hitex Maintenance and the other ground making the same pay of loaders applicable to the bird scarers by the First Respondent in the impugned order dated 29.09.2004 are not pressed before this Court because of the fact that difference in wages under section 33 (c)(2) of the I.D Act, 1942 have been paid to the workers in question.
19. It is further submitted on behalf of the Petitioner that although the rule does not cast any obligation in regard to the grant of all other benefits on par with the regular employees, the only option was that it should be on par with the conditions obtained in similar employment. In effect, the stand of the petitioner is that there is no finding of fact that the contract labourers working in similar employment are having the holidays, hours of work and other conditions of service which are the same as the regular employees of the Airports Authority of India. As such, the direction issued by the First Respondent in this regard in the order dated 29.09.2004 is an illegal one.
20. In the present Writ Petition, the Petitioner although has taken a ground that the order of the First Respondent dated 29.09.2004 making the same pay of loaders applicable to the bird scarers is totally in violation of the rule, and that the 1st Respondent yet it is fairly submitted before this Court on behalf of the Petitioner that ground is not projected before this Court and the same is given up.
21. The Learned Counsel for the Petitioner submits that in Chennai there are no aerobridge operators. Also that, the Petition in C.P.No.3 of 2005 on the file of Central Industrial Tribunal paid the difference of wages relating to the payment of minimum wages as ordered by the First Respondent. Further, the Learned Counsel for the Petitioner brings it to the notice of this Court in W.P.M.P.No.9035 of 2005 in W.P.No.8366 of 2005 on 14.03.2005, this Court passed an order of Interim Stay in all respects except with regard to wage rate fixed in the impugned order.
22. Conversely, it is contention of the Learned Counsel for the 2nd Respondent that the impugned order of the First Respondent dated 29.09.2004 in entirety does not suffer from any serious material irregularity or patent illegality in the eye of law. Since it has taken into account all the relevant attendant facts and circumstances of the case in an integral fashion and therefore, the same need not be interfered with by this Court at this distant point of time.
23. The Learned Counsel for the Second Respondent cites the decision of this Court C.Umapathy Vs. The Manager (Marketing), Tamilnadu Dairy Development Corporation, Madras, and Two others (1984 (1) LLJ at 248 and special page at 249 and 250, wherein in paragraph No.4, it is observed and held as follows;
4. On going through the order of the 3rd respondent, I find that he has not discussed the salient features of Ex. R. 1 the contract entered into between the petitioner and the Corporation, to find out as to whether the petitioner can be characterised as 'a person employed' within the meaning of the Act, Equally so, the third respondent has not discussed the evidence placed by the parties on this aspect. It is contended on behalf of the petitioner that the Corporation cannot, in the present writ petition canvass the findings which have gone against it before the third respondent, and on that ground, sustain the order of the third respondent. I am not able to sustain this approach of the petitioner. The reasons are as follow:-
The ultimate order passed by the third respondent has ensured to the benefit of the Corporation. Hence, there is no scope for the Corporation to approach this Court independently agitating over this aspect. The Supreme Court in Northern Railway Co-operative Credit Society Ltd. v. Industrial Tribunal Jaipur [1967-II L.L.J. 46] was prepared to apply the principles of rule 22 of Order XLI of the Code of Civil Procedure in the matter of an appeal before it against the order of an industrial tribunal, even though in the rules of the Supreme Court there was no rule an alogous to rule 22 of Order XLI of the Code of Civil Procedure and held that the party is entitled to support the decision of the tribunal even on grounds which were not accepted by the tribunal or on other grounds which may not have been taken notice of by the tribunal while they were patent on the face of the record. Learned Judges of the Supreme Court referred to two Judgments of the same court, one is Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji (AIR 1965 SC 669) and the other in Powari Tea Estate v. Barkataki [1965-II L.L.J. 102]. In my view, the same principles should be invoked in writ jurisdiction also while canvassing orders passed by authorities similar to the third respondent. There is no scope for the party who has ultimately succeeded before the statutory tribunal and authority to approach this Court under Article 226 of the Constitution of India for the only purpose of canvassing a particular finding which has gone against him. There is a possibility that a relevant aspect or material already on record which, if properly assessed and considered, would have led to a finding being rendered on that aspect in favour of the party concerned. It would be equitous for this court, in the exercise of its jurisdiction under Art. 226 of the Constitution of India, to permit such a party to canvass those aspects and support the ultimate order of the tribunal or authority on grounds, which have been negatived by it. In Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji (supra) the Supreme Court observed as follows :
"Apart from that, we think that while dealing with the appeal before it, this court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order XLI Rule 22 of the Code of Civil Procedure, it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Consideration of justice, therefore, requires that this court should in appropriate cases, permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment."
The above observations indicate a salutary principle and on the basis of equity and justice the same could be applied to writ jurisdiction also. Since I have found that apart from bare reference to Ex. R-1 there has been no discussion of its contents or of the other evidence on record on this aspect, it is not possible to sustain this finding of the third respondent against the Corporation. Then, the only course open to this court is to remit the matter back to the third respondent for adjudication on this question afresh.
24. Also, he relies on the decision of this Court in Airports Authority of India, rep. By its Airport Director, Coimbatore Airport, Coimbatore Vs. Authority under Rule 25(2)(v)(a) & (b) of Contract Labour (R & A) Central Rules, 1971 & Deputy Chief Labour Commissioner (Central)(South Zone), Bangalore, III Main, III Cross, II Phase, Tumkur Road, Bangalore 22 and others (2012 (1) LLN 604 (Mad.) at special page 609 to 611, whereby and whereunder in paragraph 10 to 13, it is observed and held as under;-
10.In order to appreciate the issue before this Court, it is relevant to extract Rule 25(2)(v)(a) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. The same is extracted hereunder:
Rule 25(v)(a) 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.
11.The provision contained under Rule 25(v) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, makes it very clear that in a case where the Workman concerned is employed by a contractor performs the same or similar kind of work as the workmen directly employed by the Principal Employer, then the benefits to such a person shall be the same, as applicable to the Workmen directly employed by the Principal Employer. Therefore, the said Rule mandates that the benefits should be equal both to a Workmen engaged by a Contractor as against the Workmen engaged by the Principal Employer. Hence, considering the said provision, coupled with the factual finding given by the first respondent, this Court is of the view that the contention of the learned counsel for the petitioner cannot be accepted. In B.H.E.L. WORKERS' ASSOCIATION, HARDWAR AND OTHERS vs. UNION OF INDIA AND OTHERS [(1985) 1 SCC 630] considering the very same Rules, it has been held by the Honourable Apex Court in the following manner: 5. ....... Section 12 provides for the licensing of contractors. Sections 13, 14 and 15 provide for the grant of licences, revocation, suspension and amendment of licences and Appeal. Sections 16 to 21 make detailed provision for the welfare and health of contract labour. Section 20 in particular provides that if any amenity required to be provided for the benefit of the contract labour employed in an establishment is not provided by the contractor within the prescribed time such amenity shall be provided by the principal employer. Section 21 makes the contractor responsible for payment of wages to each worker employed by him as contract labour but further prescribes that the principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. Sections 22 to 27 provide for penalties and procedure. Section 28, provides for the appointment of inspecting staff. Section 30 makes the provisions of the Act effective notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract of service or any standing orders applicable to the establishment. It, however, saves to the contract labour any favourable benefits that the contract labour may be entitled to under the agreement, contract of service or Standing Orders. Section 35 invests the appropriate Government with power to make rules for carrying out the purposes of the Act. Rules made by the Central Government are required to be laid before each House of Parliament for a total period of 30 days. In exercise of the powers conferred by Section 35 of the Contract Labour (Regulation and Abolition) Act, 1970, the Central Government has made the Contract Labour (Regulation and Abolition) Central Rules, 1971. Chapter II of the Rules relates to matters pertaining to the Central Advisory Contract Labour Board while Chapter III of the Rules deals with registration of establishments and licensing of contractors. Rule 25 prescribes the forms, terms and conditions of licence. Rule 25(2)(iv) prescribes that it shall be the condition of every licence that the rates of wages shall not be less than the rates prescribed under the Minimum Wages Act, 1948 for such employment where applicable, and where the rates have been fixed by agreement, settlement or award, not less than the rates so fixed. Rule 25(2)(v)(a) prescribes that it shall be the condition of every licence that,
(v)(a) 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 Chief Labour Commissioner (Central) whose decision shall be final;
Similarly Rule 25(2)(v)(b) provides that in other cases the wage rates, holidays, hours of work and conditions of service of the Workmen of the contractor shall be such as may be specified in this behalf by the Chief Labour Commissioner (Central). While determining the wage rates, holidays, hours of work and other conditions of service under Rule 25(2)(v)(b) the Chief Labour Commissioner is required to have regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments. There is no dispute before us that the Payment of Wages Act applies as much to contract labour as to labour directly employed by the principal employer of the establishment.
6.Thus, we see that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of work and conditions of service as are applicable to Workmen directly employed by the principal employer of the establishment on the same or similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate industrial and labour laws. If there is any dispute with regard to the type of work, the dispute has to be decided by the Chief Labour Commissioner (Central). It is clear that Parliament has not abolished contract labour as such but has provided for its abolition by the Central Government in appropriate cases under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. It is not for the Court to enquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any establishment should be abolished or not. This is a matter for the decision of the Government after considering the matters required to be considered under Section 10 of the Act. Similarly the question whether the work done by contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the Chief Labour Commissioner under the proviso to Rule 25(2)(v)(a). In these circumstances, we have no option but to dismiss both the writ petitions but with a direction to the Central Government to consider whether the employment of contract labour should not be prohibited under Section 10 of the Act in any process, operation or other work of the BHEL, Hardwar. There will also be a direction to the Chief Labour Commissioner to enquire into the question whether the work done by the workmen employed by the contractors is the same type of work as that done by the workmen directly employed by the principal employer in the BHEL, Hardwar.
12.The said decision of the Honourable Apex Court has been quoted with approval in a subsequent pronouncement in PANKI THERMAL STATION AND ANR. vs. VIDYUT MAZDOOR SANGTHAN AND ORS. [AIR 2009 SC 2373] wherein, it has been held as follows:
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 wage rates, holidays, hours of work and other conditions of service of the Workmen of the contractor shall be the same as are applicable to the (sic Workmen of the) principal employer. In case of disagreement with regard to the type of work the same shall be decided by the Commissioner.
13.Hence, considering the facts of the case, coupled with the position of law and after considering the object behind the Contract Labour (Regulation and Abolition) Central Rules, 1971, this Court is of the view that the order impugned is perfectly in order and no interference needs to be called for. Accordingly, the Writ Petition is dismissed. No costs.
25. At this stage, this Court pertinently points out that the Second Respondent/Chennai Airport Contract Workers' Union in Ref.No.CWU/02/214 dated 02.12.2002 addressed to the First Respondent had mentioned that they stated about the disparity of wages paid to 33 sweepers employed by the Indian Airlines Chennai as Contract Labour. Further, they had stated that there is another organization at Chennai Airport who are employing a large number of contract workers whose wages are much lesser than what is paid by the Indian Airlines and furnish the list of such contract workers employed by the International Division of the Airports Authority of India which is also a public Sector undertaking under the Ministry of Civil Aviation. They are as follows:-
1. Workers employed for the operation of aerobridged 17 workers.
2. Workers employed for the operation of Lifts 10 workers.
3. Workers employed for the retrieval of passengers Trollyes 40 workers.
4. Workers engaged for the loading and unloading of Cargo 115 workers.
5. Workers engaged for clearing of shrubs in the operational area 19 nors.
6. Workers engaged for bird scaring operations 28 workers.
26. Added further, it is mentioned by the Second Respondent in the letter dated 02.12.2002 that these workmen were paid only just Rs.57/- per day and they were not given any weekly off or any Dearness Allowance to off asset the increase in cost of living. They were paid wages for the whole month only if they work for all the 30 days in a month and requested the First Respondent to interfere in the matter and prayed for issuance of necessary directive to the management of the International Division of Airports Authority of India to give them wages in terms of Rule 25(2) (v) (a) & (b) of the Contract Labour (Regulation & Abolition) Act.
27. That apart, the Second Respondent in their letter dated 02.12.2002 addressed to the First Respondent had stated that the Hon'ble Supreme Court of India in the order dated 01.09.2000 in Civil Appeal No.6064 65 of 1998 had specifically expressed their view that the workers directly recruited by the employer and some other employed through the contractor when performing the same worker, there could not have any scope for making any difference in wages for equal work. Further more, it is averred on the side of the Petitioner in their letter dated 02.12.2002 that in respect of the Airports Authority of India, at all the Airports where aerobridges are installed, these are operated by their regular workmen except at Chennai. Similarly for operation of Lifts at all other Airports these works are carried out by regular workmen except at Chennai. Similarly at Calcutta Airport, the work of loading and unloading of cargo is being carried out through regular workmen at the same at Chennai contract workers are deployed with such a low wages of 67/- per day even without giving them weekly rest periods etc,.
28. Finally, the Second Respondent through its letter dated 02.12.2002 had requested the First Respondent to insist upon the employer whenever a new work order is issued to any new contract, it should be with a condition that the existing workmen should be absorbed by the new contractor for the same work.
29. The writ Petitioner filed a reply stated dated 27.01.2004 specifically mentioned that the subject petition is not maintainable either on facts or in Law for the reason that there are no regular employees in the field of Cargo handling, Aerobridges, Bush cutting and Bird scaring Operations at Chennai Airport. Also, it is stated that it is an admitted fact by the Petitioner (The second Respondent in Writ Petition) that there are no regular employees at Chennai in aforesaid categories.
30. A glance of the contents of reply statement filed by the Writ Petitioner (before the First Respondent/Authority, Bangalore) indicates that the Management had stated that the subject petition is not maintainable, in view of the fact that Contract Labourers filed various writ Petitions for absorption and inter alia for payment of equal wages, which are pending for final disposal. As long as the said Writ petitions are pending for the same relief by the similar set of contract labourers the present application is not maintainable because of the principle of Res-subjudice. As per the Government of India circular dated 16.11.1999 recommending for equal wages for equal work was withdrawn by CACLB vide its 52md Meeting held on 12/13/12-2002 at Delhi. Also, it has been stated that recommendation is beyond the purview of CLRA Act.
31. Further, the plea of the Petitioner is that the Second Respondent's prayer to insist AAI (IAI) that the new contractor may be directed to absorb the then contract labourer as and when contract changes is not maintainable because of the decision of the Hon'ble Supreme Court in the matter of SAIL Vs. United Labour Union and others.
32. The categorical stand taken on behalf of the Writ Petitioner is that the First Respondent, while passing the impugned order on 29.09.2004, has not appreciated Rule 25 (2)(v) (a) & (b) of the Contract Labour (Regulation & Abolition) Central Rules,1971 and further, he has not rendered a finding of fact that the Contract Labourers working in similar employment are having the holidays, hours of work and other conditions of service which are the same as that of regular employees of the Airports Authority of India.
33. As far as the Petitioner is concerned, it does not employ any person directly for the same or similar kind of work as was being done by the workmen provided by the 3rd and 4th Respondents and therefore, the First Respondent/Authority in the impugned order dated 29.09.2004 came to the conclusion that Rule 25(2)(v)(a) of CL (R & A) did not apply etc.
34. According to the Learned Counsel for the Second Respondent Rule 25 (2) (v) (a) & (b) of the C.L (R & A) Central Rules, 1971, as stated supra, are mandatory in character and in fact, the First Respondent has assigned cogent, coherent and convincing reasons for arriving at a right conclusion in the subject matter in issue.
35. In this connection, this Court, to prevent an aberration of justice and to promote the substantial cause of justice, extracts the relevant paragraphs of the impugned order dated 29.09.2004 passed by the First Respondent, which runs as follows;-
The Authority has to decide the wage rates, conditions of services under Rule 25(2)(v)(b) and while determining the above, the Authority shall have due regard to the wage rate, holidays, hours of work and other conditions of services obtaining in similar employment. The Authority has come to the conclusion that since in the same vicinity of Chennai Airport, M/s. Blue Dart Aviation Ltd., is paying Rs.120/- per day to their cargo loaders, 115 cargo loaders of M/s. SLK contract Services should also be paid Rs.120/-. The same (Rs.120/-) is made applicable to the bird scarers engaged by M/s. Santham Contractor, as both the jobs are unskilled category which becomes effective from 1st October, 2004. The hours of work are reasonable. As regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai and also as provided under the Contract Labour (Regulation & Abolition ) Act, 1970 and Rules made thereunder. Necessary clauses may be incorporated in the contract agreement made between the PE and the contractor.
36. A reading of Rule 25(2)(v)(b) explanation makes it lucidly clear that 'while determining the wage rates, holidays, hours of work and other conditions of service under (b) above, (the Deputy Chief Labour Commissioner (Central)) shall have due regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments'
37. By placing reliance on Rule 25(2)(v) (b) of the Contract Labour (Regulation & Abolition) Central Rule, 1971, the Learned Counsel for the Petitioner strenuously contends that the ingredients of the aforesaid Rule were not been adhered to by the First Respondent, while regarding a finding of fact that the Contract Labourers working in similar employment are having the holidays, hours of work and other conditions of services which are the same as that of regular employees of the Airports Authority of India.
38. It is to be pointed out that employer's capacity to pay has no bearing in fixing the minimum wages of employees. Such a consideration is antilogous to the principles enshrined within the constitution of India, as per decision U.Unichoyi and others V. State of Kerala (AIR 1962 Supreme Court 12): (1961 I LLJ at page 631).
39. At this stage, this Court aptly points out that the minimum wages must be paid by an employer notwithstanding the want of financial capacity as per decision of Hon'ble Supreme Court in M/s. Woolcombers of India Ltd., V. Wookcombers Workers' Union and another (AIR 1973 Supreme Court 2758).
40. In the decision Bijay Cotton Mills Ltd. And others, V. State of Ajmer (AIR 1955 S.C.33 (Vol.42, C.N.8) : 1955 (1) LLJ at page 129, it is held that it is a criminal offence not to pay minimum wages fixed under the provisions of the Act.
41. This Court, at this juncture worth recollects the decision B.Ramdas V. The Authority under Minimum Wages Act, Guntur Region, Guntur and others (1987 LAB.I.C.1493), wherein, it is observed and held as follows:-
While making the enquiry into the claim petition under S.20 of the Minimum Wages Act, the Authority acts in quasi-Judicial capacity and it should ensure that no prejudice is caused to the employer by failure to follow the rules of natural justice. Whatever evidence is in possession of the authorities must be squarely put to the employer and his explanation should be obtained. It is imperative in each case to put the employers on notice regarding the nature of enquiries and the result of enquiries made behind their back and to give them every opportunity to lead evidence in rebuttal. In a case where the workmen themselves made a representation directly alleging short payment of minimum wages or making far more serious allegations as in the present case that the employer recovered a part of the money after payment, the employer should be put on notice regarding such representation by workmen and be given an opportunity to show that the representation of the workmen is untrue. If the workmen making allegations are not willing to come forward, the Authority cannot act upon their representations. The rules of natural justice require that a person cannot be visited with any consequences unless he has notice of acts of omission and commission alleged against him. It is not possible to accept the plea that what all is stated by the workmen is sacrosanct and wholly true and whatever is stated by the petitioner who is an employer must be rejected. There is no presumption that only workmen speak the truth and employers do not. While, broadly speaking, there is a general tendency on the part of employers, who are mighty and strong, to exploit the workmen, there is also equal possibility of the workmen trying to harass an employer by making unfounded allegations.
42. Also, in the decision Gujarat Electricity Board, Ukai V. Hind Mazdoor Sabha (1995 (vol.3) LLJ at page 218, it is held that the Industrial Tribunal is competent to decide that the workers engage through the Contract will be entitled to same rights with other employees of principle employer were enjoying.
43. As far as the present case is concerned, in view of the fact that different in wages have been paid by the writ Petitioner, the Petitioner has no grievance whatsoever. However, in regard to the plea advanced on behalf of the Petitioner that there is no finding of fact by the First Respondent, in the impugned order dated 29.09.2004, that the contract labourers working in similar employment are having the holidays, hours of work and other conditions of service which are the same as the regular employees of the Airports Authority of India.
44. It is to be pointed out that the First Respondent in the impugned order dated 29.09.2004 has observed to the effect that as regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai and also as provided under the Contract Labour (Regulation & Abolition ) Act, 1970 and Rules made thereunder etc. It is latently and patently evident from the perusal of the aforesaid observation in the impugned order dated 29.09.2004 that the said authority has not ascribed necessary reasons as to how he has come to the conclusion that the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai etc., and in this regard, this Court very relevantly points out that there is no outline of process of reasoning mentioned by the First Respondent as to how he has arrived at such a conclusion.
45. As a matter of fact, the First Respondent/Quasi Judicial Authority is bound to pass a speaking order in a qualitative and quantitative term when he issues direction that the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai, etc,.only then the higher forum will have the benefit of testing the benefit/efficacy of the order so passed.
46. In short, it can be safely said that a reasoned order will have an appearance of justice. To put it succinctly, this Court comes to an irresistible conclusion that the observation of the First Respondent in the impugned order dated 29.9.2004 to the effect that as regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai, etc., are bereft of necessary qualitative and quantitative details/reasonings. As such, the said impugned order dated 29.09.2004 of the First Respondent to that extent is not legally valid in the eye of law, in the considered opinion of this Court.
47. Moreover, what kind of relevant factors obtaining in similar employment that have been taken into account by the First Respondent at the time of passing of the impugned order dated 29.9.2004 relating to the observations, as regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai, etc., have not been spelt out explicitly or expressly in the said order as opined by this Court. Therefore, to prevent an aberration of justice, this Court interferes with the impugned order dated 29.9.2004 passed by the First Respondent relating to the aspect as regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai, etc., and sets aside the same.
48. In the result, the writ petition is allowed in part, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed. Resultantly, the order passed by the First Respondent dated 29.09.2004 as regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of India, Chennai, etc., is set aside by this Court for the reasons assigned in this writ petition. However, this Court remits back the matter to the First Respondent with a direction that the First Respondent is directed to pass a Fair, Objective and Dispassionate order on merits afresh, relating to the issue viz., the holidays, the contract workers should be given holidays, leave etc., of course, after providing necessary opportunities to both parties if necessary to produce oral and documentary evidence in the manner known to law and in accordance with law, within a period of three months from the date of receipt of copy of this order. While doing so, the First Respondent shall adhere to the ingredients of Rule 25 (2)(v) (b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. It is open to the respective parties to raise all factual and legal pleas and also the parties are permitted to lead oral and documentary evidences if they so desire / advised in the subject matter in issue pertaining to the issue relating to the holidays, and other conditions of service as regards contract labourers working in similar employment which are purportedly the same as regular employees of Airport Authority of India. The said exercise shall be done by the First Respondent within four months from the date of receipt of copy of this order.
sms To
1. Deputy Chief Labour Commissioner (Central) (South Zone) III Main, III Cross, II Phase, Tumkur Road, Bangalore 560 002.
2. Chennai Airport Contract Workers Union, Rep. By its Secretary, No.6, First Street, Balaji Nagar, Anakaputhur, Chennai 600 070.
3. M/s. SLK Contract Services 12A, Kannigapuram, K.K.Nagar, Chennai 600 078.
4. M/s.Santham Contractor, No.1/89, Kamaraj Street, Meenambakkam, Chennai 600 053