Gujarat High Court
Pratapji Raghuji Thakor & vs State Of Gujarat & 4 on 15 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14475/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14475 of 2015
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PRATAPJI RAGHUJI THAKOR & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Petitioner(s) No. 1 - 2
MR KM ANTANI, AGP for the Respondent(s) No. 1
MR MEHUL H RATHOD, ADVOCATE for the Respondent(s) No. 4
MR YOGI K GADHIA, ADVOCATE for the Respondent(s) No. 5
RULE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/02/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioners working in the office of the Deputy Mamlatdar, Vadnagar, as Water Bearer-cum-Sweeper and Driver respectively have prayed for the following reliefs :
"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the Government Resolutions dated 10.2.2006 and 25.4.2012 as contrary to the constitutional ethos and thus violative of Articles 14, 16 and 21 of the Constitution and quashing and setting aside the same;
(B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the engagement by the respondent authorities of contract/ outsourcing labour instead of regularizing the services of the petitioners is opposed to the mandate of Page 1 of 16 HC-NIC Page 1 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER the Directive Principles contained in Articles 38, 39, 41, 42, 43 and 47 of the Constitution, as also violative of Articles 14, 16 and 21 of the Constitution and quashing and setting aside the same;
(C) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the failure on the part of the respondent authorities in ensuring that the petitioners are paid the minimum wage prevalent in the State as violative of their fundamental right under Article 23 of the Constitution;
(D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to engage the petitioners as direct employees and regularize their services from the date of engagement of contract labour with all the consequential benefits;
(E) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to pay the petitioners their monthly pay at the minimum rates of wages prevalent in the State;
(F) Pending final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to ensure that the petitioners are paid the minimum wage prevalent in the State with immediate effect;
(G) Pending final hearing of the present petition, Your Lordships may be pleased to restrain the respondent authorities from terminating the services of the petitioners as contract labour and/or from taking any coercive action against them; and (H) Your Lordships may be pleased to pass any other and/or further order, as deemed fit in the interest of justice."Page 2 of 16
HC-NIC Page 2 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER The facts of this case may be summarised as under :
The petitioner no.1 was appointed as Water Bearer-cum- Sweeper on 1st October 1991 in the office of the Deputy Mamlatdar, Vadnagar, whereas the petitioner no.2 was appointed on 1st September 2003 as Driver. The appointment of the petitioner no.1 was sanctioned vide Office Order dated 27th December 1991 issued by the Additional Resident Deputy Collector, Mehsana, whereas the appointment of the petitioner no.2 was sanctioned by the Additional Collector, Mehsana, on 8th September 2003. The number of hours of work of the petitioner no.1 initially fixed was three hours, which has been now increased to six hours a day. The petitioner no.2 was otherwise also appointed to work for six hours a day. The respondent no.1 issued a Government Resolution dated 25th April 2012, by which all the Government offices were directed to terminate the Class-IV Part-time employees by 31st May 2012 and to make arrangements for outsourcing the services for which these part-timers were employed. One of the reasons assigned for adopting the system of outsourcing the serves was to reduce the prospective huge financial burden arising out of absorption and regularization of the part-time employees in the regular establishment.
The petitioners continued to render their services in the office of the respondent no.3. The petitioner no.1 is being paid Rs.3,500=00 approximately per month and the petitioner no.2 is being paid Rs.5,375=00 approximately per month.
Ms.Vidhi Bhatt, the learned counsel appearing for the petitioners, invited my attention to the Notification dated 26th December 2014 (Annexure-P to this petition, page 93) issued Page 3 of 16 HC-NIC Page 3 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER by the Labour and Employment Department of the State of Gujarat, providing for the minimum wage to be paid according to the classes of the employees. The Schedule provided in the said Notification reads as under :
Sr. Classes of Employees Rates Payable per No. day (Rs.) 1 2 3 Zone-I Zone-II I Skilled 293 284 II Semi-skilled 284 276 III Un-skilled 276 268 Note : Please refer Annexure annexed herewith for details of employees belongs to particular class (i.e. Skilled, Semi-skilled and Un-skilled) of particular schedule employment.
Thus, so far as the petitioner no.1 is concerned, he is falling within the category of unskilled class of employees and he is entitled to be paid minimum wages of Rs.276=00 per day towards the minimum wages. On the other hand, the petitioner no.2 falls in the category of a semi-skilled class of employees and he is entitled to be paid minimum wages of Rs.284=00 per day. It is not in dispute that the minimum wages are not being paid to the petitioners. In such circumstances, they are here before this Court. Ms.Vidhi Bhatt has placed reliance on a decision of a Division Bench of this Court in the case of Gujarat Rajya Anshkalin Karmachari Mandal v. State of Gujarat and others, Writ Petition (PIL) No.244 of 2014 decided on 21st August 2014, wherein the Division Bench observed as under : "
1. The Constitution of India was framed soon after the independence of the nation with a solemn resolve to achieve social, political and economic justice for all the citizens of the country. Articles 14 and 16 talk of lofty Page 4 of 16 HC-NIC Page 4 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER ideas of equality. Article 21 guarantees to every person right to life and liberty. More than 65 years later, a small group of Government workers have been deprived of such rights and privileges. Their voice is too feeble. Their future too uncertain for want of any protection of Article 311 of the Constitution. Their number too small. They are almost a forgotten lot. It is at this stage, the Court in the arena of public interest litigation, comes into picture.
2. The State Government for the purpose of carrying out complex functions and duties need to employ a large number of people. Howsoever, one may wish and desire, it is not possible over a period of time to completely regulate such employment in terms of Articles 14 or 16 of the Constitution. By the very nature of things, the Government, its Corporations, its different wings, need the workers in different fields and trades carrying out different duties possessing specified skills and qualifications. A small portion of such workers come in the nature of part time workers. They are engaged in small numbers almost in every office, establishment or unit of the Government. Whether they are called water server, sometimes cleaner, sometimes gardener and other times watchman, their employment is mostly contingency based and work charged with little permanency attached. They are so called part time, because at-least on paper their engagement is for a period ranging from one hour to six hours a day though in some cases, either in broken spells or otherwise, they may be for all practical purposes, available through out the office time and in some cases, such as watchman, even beyond that.
3. For the present case, we are not going into the intricacies of such employment, need of the Government and reality behind actual number of hours per day they may be discharging their duties. For the present we need to tackle a grim situation which has arisen on account of the Government totally forgetting their plight for over 15 years. We are informed by the counsel for the petitioner who represents the association of such workers that currently there are 10,000 to 15,000 such workers employed by the Government across the State. It may be, as pointed out by the learned Advocate General, that many of these workers are protected against their termination by Court orders. However, it is impossible to Page 5 of 16 HC-NIC Page 5 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER believe that all these 10,000 to 15,000 unfortunate workers enjoy the court protection and the Government of its own simply does not employ a single person after 2012 when we are informed according to the circular dated 25.4.2012, the Government decided to discontinue such system. The rate of remuneration these workers received were revised from time to time and last revision was made under a GR dated 23.9.1998. The revised structure as per this circular is as follows :
Hours of work per day Monthly
consolidated
remuneration
Upto 1 Hour Rs.225/-
Upto 2 Hours Rs.450/-
Upto 3 Hours Rs.675/-
Upto 4 Hours Rs.900/-
Upto 5 Hours Rs.1125/-
Upto 6 Hours Rs.1350/-
4. Shocking as it may sound to the reader of this order, since then, there has been no rate revision of the remuneration for such part time employees. In other words since September 1998 till date, for more than 15 long years, such workers have been receiving remuneration month after month, year after year, at a rate which froze in the year 1998. In the meantime, many things happened. The purchasing power of rupee considerably eroded. The Government employees, Central as well as State, were the beneficiaries of one pay revision with effect from 1.1.2006. This would be in addition to periodic DA increases released every six months. One can take judicial notice of the fact that the State as well as the Central Government employees have received consecutive three double digit DA increases in their salaries. In the meantime, the scale of pay of Rs.2250/- which was the minimum prescribed under the Revision of Pay Rules, 1998 implemented with effect from 1.1.1996 was revised to Rs.4440/- under the Revision of Pay Rules , 2009 implemented with effect from 1.1.2006. This basic pay currently carries 100% DA. In fact, the Central Government has also announced the pay panel for making recommendations for the next pay revision.
5. On one hand, thus with high inflation, the cost of living Page 6 of 16 HC-NIC Page 6 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER mounted, on the other hand, a small group of citizens continued to draw remuneration at the same level which they were receiving more than 15 years back. All the economic development and prosperity achieved during this period which the rest of the regular employees of the Government shared simply by-passed such unfortunate class of citizens. Today these workers are receiving remuneration at the rate of approximately Rs. 40/- to Rs.50/- per day as against the minimum wage prescribed by the Government agency itself to be Rs.220/- plus special allowance in the area specified as A category in the State of Gujarat, at Rs.218/- plus special allowance in B category and Rs.216/- plus special allowance in category C. Explanation (2) to the notification dated 5.8.2013 prescribing such rates, reads as under :
"(2) The employees employed on part-time basis shall be paid fifty percent of the minimum rates of wages plus special allowance if he works up to four hours and if he works more than four hours, he shall be paid full minimum rates of wages plus special allowance."
6. The State Government implements the legislative policy of minimum wages to be paid by private employers. The Legislature has fixed such minimum wages to ensure that there is no exploitation of workers. In the country like India, where due to high rate of unemployment, many people may be prepared to work for remuneration which may be extremely low amounting to exploitation. The law however, does not permit such exploitation even at the hands of private employer. Can the State Government which is wedded to Constitutional philosophy of implementing the Directive Principles of the State Policy which under Article 43 provides that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, a living wage and just conditions of working, ignore all such principles when it comes to remunerating its own workers? The answer has to be in the negative. We are conscious that ipso-facto, minimum wage prescribed for the private employers would not govern the Government employees. Nevertheless, for the purpose of immediate relief to such persons and to take a reasonable yardstick for revising their remuneration, pending further directions and consideration by the Government, we are Page 7 of 16 HC-NIC Page 7 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER of the opinion that such rates may be accepted for the purpose of remunerating such workers by way of interim measure, subject to further orders.
7. Reference could be made to the decision of the Supreme Court in the case of Hindustan Lever Limited Vs. B.N. Dongre and others, reported in AIR 1995 SC 817, wherein the Supreme Court explained the importance of the wages in life of the working classes. In the said judgment, the Supreme Court held that wages are among the major factors in the economic and social life of the working classes and the workers and their families depend almost entirely on wages to provide themselves with the three basic requirements of food, clothing and shelter. The other necessities of life like children's education, medical expenses, etc., must also come out of the emoluments earned by the bread-winner. Workers are therefore concerned with the purchasing power of the pay-packet he receives for his toil. If the rise in the pay-packet does not keep place with the rise in prices of essentials the purchasing power of the pay-packet fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the pay-packet remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the cost-of-living sliding scale systems the basic wages are automatically adjusted to price changes shown by the cost-of-living index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leap-frogging must be avoided. If the prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner and it is a common knowledge that this frequently happens during the period of inflation.
8. Under the circumstances, following directions are issued :
1) The State Government shall pay to all its part time workers at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work under the said notification dated 5.8.2013 along with Page 8 of 16 HC-NIC Page 8 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER daily special allowance as payable subject to modification permissible under explanation (2) noted above with effect from 1.8.2014. In other words, for the salaries to be paid to all such workers across the State at the end of month of August 2014, such revised rates will be applied.
2) The Secretary to the Finance Department shall issue necessary circular to all the wings of the Government to implement such directions forthwith.
3) There shall be no change in the duty hours of any of these workers as long as such workers are in Government employment. The State Government shall present affidavit suggesting periodic revisions that may be adopted for remuneration of such persons from time to time after 1998.
S.O. to 4.9.2014."
I am of the view that the appointment of the petitioners by outsourcing i.e. through a contractor to whom the contract is assigned, would hardly make any difference. There is no difficulty so far as the policy decision of the Government is concerned. It is open for the Government to enter into a contract by outsourcing, and that by itself, may not be illegal, but at the same time, it is the duty of the State to ensure that the contractor strictly adheres to the rules and regulations so far as the payment of the minimum wages is concerned.
I take notice of the fact that the judgment I have referred to in the case of Gujarat Rajya Anshkalin Karmachari Mandal (supra) attained finality with the order dated 11th December 2014, wherein the Division Bench observed as under :
"4. It appears that since the directions were not complied with, contempt petition No. 2904 of 2014 was filed. Prior to the contempt petition was filed, the State Government has already issued Circular dated 6.9.2014 extending the Page 9 of 16 HC-NIC Page 9 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER benefits of minimum wages under the Minimum Wages Act to all part-timers i.e. those who are working for less than 4 hours per day, they will be paid Rs. 110/- plus special allowance and those who are working for more than 4 hours but less than 9 hours, they will be paid Rs. 220/- plus special allowance. After contempt petition was filed, another Circular was issued by the State Government on 21.10.2014 which provided that those who are working as part-time employees shall not be entitled for daily special allowance and the rates of minimum wages have been revised with effect from 21.2.2014. The Government has also made it clear that those part-time employees who are working with various Departments of the Government shall be paid in accordance with the Circular dated 6.9.2014 with effect from 1.8.2014. The Government has also extended the benefit of revision of daily wages as per the prevailing rates of the minimum wages provided under the Minimum Wages Act, 1948 to those part-time employees who are working for less than 4 hours per day and those part-time employees who are working for more than 4 hours but less than 9 hours per day in view of the Circular dated 6.9.2014. Therefore, the demand raised by the petitioner has been fulfilled.
5. We have thoughtfully considered the matter in view of the previous interim order passed by this Court and we are of the view that the employees who are working as part-timers since years and they are not getting any other benefits, we put them at par with the workers getting remuneration under the Minimum Wages Act. As and when the revision takes place for the minimum rates under the Minimum Wages Act, the same benefits shall be extended to the part-time employees who are working with various Departments of the Government either for less than 4 hours per day or more than 4 hours but less less than 9 hours per day. This exercise shall be taken by the State Government within a period of 3 (three) months from the date of revision under the Minimum Wages Act.
6. The State Government shall ensure regular monthwise payment to the employees. The prayer made by learned counsel for the petitioner that pay revision may be made with retrospective effect from 1998 is rejected. Learned Additional Advocate General Mr. P.K. Jani states that the Government Resolution dated 23.9.1998 stands revoked Page 10 of 16 HC-NIC Page 10 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER in view of recent Notification and now the wages will be governed by the aforesaid new Notifications dated 21.2.2014 and 6.9.2014."
In the case of People Union for Democratic Rights v. Union of India, AIR 1982 SC 1473, the Supreme Court in para 10 observed thus:
"10...It is the principle of equality embodied in Art. 14 of the Constitution which finds expression in the provisions of the Equal Remuneration Act 1976 and if the Union of India, the Delhi Administration or the Delhi Development Authority at any time finds that the provisions of the Equal Remuneration Act 1976 are not observed and the principles of equality before the law enshrined in Art. 14 is violated by its own contractors, it cannot ignore such violation and sit quiet by adopting a non-interfering attitude and taking shelter under the executive that the violation is being committed by the contractors and not by it. If any particular contractor is committing a breach of the provisions of the Equal Remuneration Act 1976 and thus denying equality before the law to the workmen, the Union of India, the Delhi Administration or the Delhi Development Authority as the case may be, would be under an obligation to ensure that the contractor observes the provisions of the Equal Remuneration Act 1976 and does not breach the equality clause enacted in Art. 14. The Union of India, the Delhi Administration and the Delhi Development Authority must also ensure that the minimum wage is paid to the workmen as provided under the Minimum Wages Act 1948. The contractors are, of course, liable to pay the minimum wage to the workmen employed by them but the Union of India, the Delhi Administration and the Delhi Development Authority who have entrusted the construction work to the contractors would equally be responsible to ensure that the minimum wage is paid to the workmen by their contractors. This obligation which even otherwise rests on the Union of India, the Delhi Administration and the Delhi Development Authority is additionally reinforced by S. 17 of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 in so far as migrant workmen are concerned. It is obvious, therefore, that the Union of Page 11 of 16 HC-NIC Page 11 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER India, the Delhi Administration and the Delhi Development Authority cannot escape their obligation to the workmen to ensure observance of these labour laws by the contractors and if these labour laws are not complied with by the contractors, the workmen would clearly have a cause of action against the Union of India, the Delhi Administration and the Delhi Development Authority.
The Supreme Court in the case of Gujarat Electricity Board, Thermal Power Station, Ukai v. Hind Mazdoor Sabha, AIR 1995 SC 1893, observed in paras 17, 18 and 19 as under:
"17. Under the Act the Government has in exercise of power granted by Section 35 of the Act made Contract Labour (Regulation and Abolition) Rules, 1971 (hereinafter referred to as the 'Rules') which have come into force form 10th February, 1971, Rule 17 (1) prescribers a form, viz., Form I, for application, referred to in Section 7(1), for registration of the establishment, to be made by the principal employer for employing contract labour. The form shows that the employer has to furnish, among other things, information with regard to
(i) nature of work carried on in the establishment, (ii) particulars of contractors and contract labour, viz.,(a) names and addresses of contractors. (b) nature of work in which the contract labour is employed or to be employed, (c) maximum number of contract labour to be employed on any day through each contractor, (d) estimated date of commencement of each contact labour under each contractor and (e) estimated date of termination of employment of contract labour under each contractor. Rule 18(1) provides for Form II of the certificate of registration to be granted under Section 7 (2) of the Act. The certificate of registration has to contain (i) the name and address of the establishment,
(ii) the maximum number of workmen to be employed as contract labour in the establishment, (iii) the type of business, trade, industry, manufacture or occupation which is carried on in the establishment, (iv) the names and addresses of contractors, (v) nature of work in which contract labour is employed or is to be employed and (vi) other particulars relevant to the employment of contract Page 12 of 16 HC-NIC Page 12 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER labour. Rule 18 (3) requires the registering officer to maintain a register in a form showing the particulars of establishment in relation to with certificate of registration has been issued and the register of establishment has, in addition, to show the total number of workmen directly employed by the employer. Rule 18 (4) requires that any change in the particulars specified in the certificate of registration has to be intimated by the employer to the registering officer within 30 days from the date of the change and the particulars of and the reasons for such change. Rule 20 provides for an amendment of the certificate of registration pursuant to the change intimated by the employer under Rule 18 (4) which amendment has to be granted by the registering officer only after satisfying himself that there has occurred a change. Rule 21 provides for an application for a licence to be made by the contractor in Form IV. The form requires information with regard, among other things, to
(i) name and address of the contractor, (ii) particulars of establishment where contract labour is to be employed such as (a) name and address of the establishment, (b) type of business, trade, industry, manufacture or occupation which is carried on in the establishment, (c) number and date of certificate of registration of the establishment under the Act and (d) name and addresses of employer; and (iii) particulars of contract labour such as (a) nature of work in which contract labour is or is to be employed in the establishment, (b) duration of the proposed contract work giving particulars of the proposed date of commencing and ending of the contract work (c) name and address of the agency or manager of contractor at the work site (d) maximum number of contract labour proposed to be employed in the establishment on any date. Rule 21 (1) also requires certificate in Form V by the principal employer that he has engaged the applicant-contractor as a contractor in his establishment and that he undertakes to be bound by all the provisions of the Act and the Rules. Rule 25 prescribes the form and the terms and conditions on which licence is issued to the contractor. The conditions on which the licence is issued include the condition that the licence shall be non-transferable and the number of workmen employed as contract labour in the establishment shall not on any date exceed the maximum number specified in the licence and that the rates of wages payable to the workmen by the contractor Page 13 of 16 HC-NIC Page 13 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER shall not be less than the rates prescribed under the Minimum Wages Act, 1948 for such employment, and where the rates have been fixed by agreement, settlement or award, the same shall not be less than the rates so fixed. In cases where the workmen employed by the contractor perform the same or similar or similar kind of work as the workmen directly employed by the 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 employer. In other cases, the wage rates, holidays, hours of work and condition of service of the contractor's workmen shall be such as may be specified in that behalf by the Chief Labour Commissioner (Central). While specifying the wage rates, holidays etc. the Chief Labour Commissioner has to have regard to the wage rates, holidays etc. obtaining in similar employments. The licensee-contractor has to notify any change in the number of workmen or the conditions of work. Rule 27 states that every licence granted to the contractor shall remain in force for 12 months from the date it is granted or renewed. Rule 29 provides for renewal of licences.
Rule 32 provides for the grant of temporary certificate of registration and licences where the contract labour is not estimated to last for more than 15 days. Rule 75 requires every contractor to maintain in respect of each registered establishment a register in Form XIII. This form mentions details to be given in respect, among others, of the name and address of the principal employer and of the establishment the name and address of the contractor and the nature and location of work, the name and surname of each workman and their permanent home address, the date of commencement of employment, the signature of thumb-impression of workman, the date of termination of employment and reason for termination. Rule 76 requires that every contractor shall issue an employment card in form XIV to each worker within three days of the employment of the worker. Rule 77 requires that every employer shall issue service certificate to each of the workmen.
18. The provisions of the Act and of the Rules show, among other things, that every principal employer engaging a contractor and every contractor engaging the contract labour in the establishment, has to obtain for Page 14 of 16 HC-NIC Page 14 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER the purpose, registration certificate and the licences respectively from the authority under the Act. The nature of work for which the contract labour is engaged, the maximum number of the contract labour proposed to be engaged, the period for which such labour is to be employed, the names and addresses of the workmen so employed have also to be furnished to the authority. The workmen have to be paid minimum wages and where there are agreements, settlements etc. the wages which are agreed to thereunder have to be paid. Further, if the contract labour is employed for doing the same type of work as is done by the direct employees of the principal employer, wages have to be paid and facilities given to the contract labour as are paid or given to the direct employees of the principal employer. Any change in the nature of employment or the number of the workmen to be employed and the period for which they are to be employed etc. has to be intimated to the authority concerned.
19. If any amenity is required by the provisions of the Act to be provided for the benefit of the contract labour, viz., canteens, rest rooms, drinking water, latrine, urinals, washing facilities and first aid facilities, and is not provided by the contractor within time prescribed therefor, it is the principal employer who is required to provide the same within such time as may be prescribed. The principal; employer can, however, recover the expenses of providing such facilities from the contractor's account or as a debt payable by the contractor. Further, the principal employer is required to nominate the representative duly authorised by him to be present at the time of the disbursement of wages by the contractor to the labour, and such representative is required to certify the wages paid to the labour. It is the principal employer who has to ensure the payment of wages of the contract labour and in case the contractor fails to make payment of wages within the prescribed period or makes short payment, it is the principal employer who is made liable to make the payment of wages in full or the unpaid balance due, as the case may be. He can recover the amounts so paid from the contractor's account or as a debt payable by the contractor."
Page 15 of 16HC-NIC Page 15 of 16 Created On Wed Feb 17 02:39:40 IST 2016 C/SCA/14475/2015 ORDER I also take notice of the fact that the challenge in this petition is also to the very policy of the State Government. I am told that identical matters with the very same challenge are coming up for hearing on 26th February 2016. This issue will be decided alongwith those matters. However, by way of interim order, it is directed that the petitioners shall be paid the minimum wages as prescribed in the Notification referred to above from this month onwards.
If the contractor has any issue or problem with the Government, he may resolve the same with the appropriate authority, but that should not deprive the employees in drawing the minimum wages.
Pending the final disposal, there shall be status quo as regards the service condition except with the above modification so far as the minimum wages is concerned.
Let the matter appear on 26th February 2016.
(J.B.PARDIWALA, J.) MOIN Page 16 of 16 HC-NIC Page 16 of 16 Created On Wed Feb 17 02:39:40 IST 2016