Gujarat High Court
Station Director vs General Secretary on 18 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7340/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7340 of 2016
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STATION DIRECTOR
Versus
GENERAL SECRETARY
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Appearance:
MR YOGI K GADHIA(5913) for the PETITIONER(s) No. 1
DELETED(20) for the RESPONDENT(s) No. 2,3,4,6,7,8
MR TR MISHRA(483) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 10,5,9
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 18/04/2018
ORAL ORDER
1. Heard Mr.Y.K. Gadhia, learned advocate for the petitioner and Mr.T.R. Mishra, learned advocate for respondent No.1 union. None for respondent Nos.9 and 10. Respondent Nos.2 to 4 and 6 to 8 are deleted.
2. In present petition, the petitioner has prayed, inter alia, that:
"12(A) Your Lordship may be pleased to issue a Writ of Certiorari and/or a Mandamus and/or any other order quashing and setting aside the Order dated 18.03.2016 (Anne.A) passed by the Dy. Chief Labour Commissioner (C), Ahmedabad in Application No.AH/DYCLC/34(2)/2014."1 C/SCA/7340/2016 ORDER
3. The petitioner is aggrieved by order dated 18.3.2016 passed by respondent No.9. By the said order dated 18.3.2016, respondent No.9 observed and directed that:
"Therefore, the directives of the Government have to be complied with in toto and also in true letter and spirit without any deviation whatsoever with the simple reason that M/s. NPCIL has already accepted these directives and implemented also. There is no other possible interpretation of these directives, therefore, these directives are bound to be complied with on the face of it, without tempering with the essence and purpose of the said Government directives dated 16.12.1998. In my considered views, no directives / rules / law should be interpreted in such a way as to infract the objectives of the said directives / Rules / law. In the present matter, the Government was candidly clear that the contract labours are to be paid the emoluments not less than that paid to lowest paid departmental employees. It is an admitted position of fact that M/s. NPCIL is paying the lowest pay scale of Rs.520022200 with Grade Pay of Rs.1800/ to its departmental employees, therefore, it is ordered that these contract workers be paid the lowest pay scale of Rs.520022200 with Grade Pay of Rs.1800/ p.m., which is in consonance and conformity with the directives dated 16.12.1998 issued by the Ministry of Labour & Employment, Government of India, New Delhi.
It is also found that the applicant Union raised this issue first time before the ALC (C), Baroda in the year 2010. It is also a fact that the Central Government has merged the lowest Pay Bank in Pay BankI with Grade Pay Rs.1800/ w.e.f. 29.08.2008, therefore, this order will be effective from 29.08.2008 by taking into consideration the date of filing of this application as well as Judicial law decided by the Hon'ble Apex Court in the case of "Union of India Vs Tarsem Singh" [2008 (2) SCC (L&S) 765]. The arrears shall be paid within 30 days from the date of receipt of this order."
4. So as to support the challenge against the order dated 18.3.2016, the petitioner has averred and stated that:
"2. The petitioner submits that the respondent No.1 2 C/SCA/7340/2016 ORDER Union had filed an application d 13.11.2013 under Rule 2502)(v)(a) and (b) of the Rules before the Ministry of Labour and Employment, Government of India, New Delhi which was forwarded to the RLC(Ajmer). The Competent Authority had taken up this matter but then the same was forwarded to Dy. CLC, Ahmedabad on 27.03.2014. Earlier the hearing notices were issued in the matter and the proceedings were held on 10.12.2014. Considering various submission and facts of the case viz. pendency of dispute of the very same 81 workers before the CGIT, Ahmedabad etc. It was decided that the matter in question be kept pending in abeyance till finalization of the case by CGIT, Ahmedabad. The copy of the said minutes order is annexed hereto and marked as AnnexureB.
3. The petitioner humbly submits that earlier the union had raised the similar dispute before the Machinery under the Contract Labour (R&A) Act. The Ministry had then appointed an expert Committee which after scrutinizing all the minute details, physical inspection took a decision on 23.03.1998. The Copy of the report recommendation dtd. 23.03.1998 is annexed to this petition and marked as AnnexureC.
4. The petitioner at this juncture humbly submits that the same set of 81 workers through the very same union i.e. rapar Power Station Labour Union is contesting the Ref (CGITA) No.117/2005 wherein also the said workers have over and above regularization, sought for regular salaries etc. It may also be noted here that the union had also approached the Hon'ble High Court seeking early hearing of the said Reference by way of SCA No. 10614/2015. The same came to be disposed off by the Hon'ble High Court vide its judgment dtd. 30.09.2015 whereby the Hon'ble Court has directed that the matter be finally disposed off within a period of six months. The copy of the statement of claims produced by the Union and the order passed by the Hon'ble High Court are annexed hereto and marked as AnnexureD and AnnexureE respectively. In the said reference case all the papers related to the report of the committee etc. are produced and the said matter is at the stage of final arguments and is scheduled to come on 27.06.2016 for the same.
5. The petitioner submits that the sixth pay commission was introduced in the year 2008 and the same was as a matter of policy adopted by the present petitioner. Now as per the 6th CPC, the group D posts have been abolished on the basis of various considerations which are mentioned in the report. The relevant extract of the said report is annexed hereto and marked as AnnexureF.
6. The petitioner submits that the report of the Committee was based on the helpers etc. who were working with the petitioner directly and on that basis the committee had recommended that the concerned persons employed inside plant area for activities such as house keeping and material handling should be paid Basic Pay + DA equal to lowest paid departmental employee. However, 3 C/SCA/7340/2016 ORDER due to abolition of group D posts there are no departmental helpers anymore. The Petitioner therefore in these peculiar circumstances has written various letters to the Ministry of Labour seeking clarification on what should be paid to these contractual workers who have been continued due to the pendency of the Reference. Copy of said correspondence is annexed hereto and marked as AnnexureG. The petitioner had also apprised the Ld. Authority below regarding the same. Subsequently, on 11.01.2016, the petitioner received a letter from the Office of the Chief Labour Commissioner (C), Ministry of Labour and Employment, New Delhi interalia stating that the office of the DGLW is requested to take suitable guidance from the CACLB on the issue of payment of wages to Contract Labour keeping in view the fact that Group D post has been abolished in the establishment by the 6th ay Commission. Immediately, the petitioner has sent the copy of that letter to the Ld. Authority on 12.01.2016 and requested the Hon'ble Authority to reserve the decision till the guidance from the CACLB is received.
The copy of the said letters dtd. 11.01.2016 and 12.01.2016 are annexed hereto and marked as AnnexureH (Colly)."
5. Mr.Gadhia, learned advocate for the petitioner, initially, reiterated the contentions in paragraph Nos.8(a) to 8(i) and opposed the order.
5.1 However, Mr.Mishra, learned advocate for the respondent union emphasised the details mentioned in the reply affidavit, more particularly the facts and details mentioned in paragraph Nos.3 to 6, which read thus:
"2. I say that the notice of this Hon'ble court has been received on 1762016, 18th and 19 th June, 2016 were Saturday and Sunday, I therefore, could not contact my advocate and I am filing the present affidavitin reply for limited purpose to oppose the admission of the petition and confirmation of interim relief I reserve my right to file further detailed affidavit if necessary.4 C/SCA/7340/2016 ORDER
3. I say that the facts has not been brought to the notice of this Hon'ble court, the workers involved in the present petition are working since 1991 There were/are two types of labourers namely: Departmental Labour and Contract Labour. The contract labour used to be paid less amount of wages and therefore, in the year 2003, an issue was raised before the Ministry of Labour, Government of India that the different rates of wages are being paid though decision has already been taken that there shall not be any difference in wages between departmental labour and contract labour and therefore, in the year 2003, the wages of both the catagories of labourers were brought at par and the labourers involved in the present petiiton have been paid difference of wages from 1998 onwards I am annexing a copy of the letter No. KAPS/SMU/78600/S/2003 dated 18 112003 issued by Nuclear Power Corporation of India Ltd. Kakrapar Atomic Power Station by Shri D.N. Chauhan Engineer. So.E (SMU), a copy of the same is annexed marked Annexure 'R. 1 to this affidavit. The letter indicates that the Government of India, Regional Labour Commissioner (Central) has issued direction to pay the salary equivalent to minimum salary of departmental Helper to the workers engaged in Material contract Handling Housekeeping Jobs w.e.f. 135 1998 As per the aforesaid letter the difference of wages was calculated which is a part of the letter dated 1811 2003. As on 16121998, the Director, Government of India, Ministry of Labour has informed to the Kalkrapar Tribal Workers' Association, that a S the per recommendation of the Board and the Central Government it is decided to allow continuation of contract labour in Plant Area of Kakrapar Atomic Power Station with payment of wages equivalent to Basic Dearness Allowance A copy of the said letter is annexed marked. Annexure 'R. 2 to this affidavit I am also annexing a copy of the letter No.AH/95 (2) /98PA dated 23 31998 from the Regional Labour Commissioner (CEN), Ahmedabad. addressed to the Secretary, Central Advisory Committee, Contract Labour Board, New Delhi, forwarding there with recommendation of the sub Committee coinstituted by Central Advisory Contract Labour Board, wherein decision has been taken as back as on 23 31998 that the labourers working in House keeping/Helpers in Plant Area should be adviced to pay to the contract labour employed inside their plant for activities such as Housekeeping, Material Handling (Basic+DA) equal amount to the lowest paid departmental employee with guaranteed number of working days. A copy of the said letter is also annexed marked Annexure R. 3' to this affidavit I am also annexing details of the 81 workmen who are involved in the present petition showing No.of years they are working and department in which they are working. A copy of the same is annexed marked Annexure 'R A' to this affidavit. The Service Maintenance Union consists of providing different types of services to the various maintenance sections, few of them is mentioned hereunder;
(a) Housekeeping & Decontamination;
(b) Management of protective clothing and protecting 5 C/SCA/7340/2016 ORDER equipment
(c) Maintenance of rubber station;
(d) Maintenance of Fire barriers;
(e) Maintenance of Thermal insulations;
(f) Scaffolaings
(g) Domestic water supply system for plant building;
(h) Nonactive garbage incinerations;
(i) Maintenance of water raw intake;
(j) Laundry Operations;
(k) Auxuliary Miscellaneous Works like cinch anchoring plumbing minor massionary works, radiation shielding'
4. In active area of the plant the Service Maintenance Section, Mechanical Maintenance Section, Electrical Section, Fuel Handling Section D2 o Heavy Water Section, Operation Section HPUHELTA, Basic Section Active Workshop are the subdepartments of maintenance These persons are working since 1991 In the year 2012 decision has been taken and Model Conditions of Contract was prepared in which the department has taken decision minimum timescale of pay as per to pay Sixth Pay Commission Recommendation The penultimate para of the said letter is reproduced hereunder "In view of the above, it may please be confirmed whether, the contract labour engaged inside operating Island for housekeeping and material handling works has to be paid as per lowest payscale of Rs. 520020200 with Grade Pay of Rs. 1900/. The department itself has taken decision and abolished lowest pay of GroupD staff Rs.
4440/7400 and revised upto Rs. 5200/20200." Model Conditions of contract as prepared by the petitioner itself is annexed marked Annexure 'R. 5 to this affidavit.
5. A contention is taken in the petition that the matter is already pending before the central Government Industrial Tribunal and therefore, the Authority under Rule 25 (2) (v) (b) has no authority to proceed with the matter. In this connection, it is respectfully submitted that so far the reference pending before Industrial Tribunal is concerned, it is with regard to regularization of the employees as the employees of Kakra par Atomic Power station, on the ground that the contract is bogus and sham and sofar the matter before Deputy Chief Labour Commissioner (CEN) is concerned, it is with regard to payment of equal pay for equal work Therefore, both the authorities are the different and the issue pending before the Tribunal is also different than the issue decided by the Deputy Chief Labour Commissioner (CEN I am also annexing a copy of the letter written by me to the Deputy Chief Labour Commissioner (CEN) as back as on 3102015 marked Annexure R. 6' to this affidavit.
6. It is respectfully submitted that these persons have been working since 1991 and artificial intermittent breaks are given prior to 2003. 26 days working were given but after the complaint was made by the union to the Ministry of Labour and the revised, the management of 6 C/SCA/7340/2016 ORDER wages were Kakrapar Atomic Energy starged giving artificial intermittent break which infringes the workers fundamental right (Right to Life) The Hon' ble Supreme Court of India in Consumer Education and Research Centre and ors. vs. Union of India and others, reported in 1995 (3) scc 42, in para .22 &22 held as under "The jurusprudence of personhood or philosophy of the right to life envisaged under Article 21, in which it is swip to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood to sustain the dignity of person and to live a life with dignity and equality. The expression 'Life in assured Article 21 does not connote mere informal existance or continuity drudgery through life. It has a much wider meaning which includes right to livelihood better standard of living hygenic condition in the workplace and leizure Maintaining two standards of wages; one Departmental Labour and other Labour deployed through dubious method infringes fundamental right of the workers enshrined under Article 14 of the Constitution of India which is not expected from an Organization of the Government of India. The petition therefore, deserves to be dismissed and the Hon'ble court be kind enough to dismiss the same with exemplary costs." 5.2 Mr.Mishra, learned advocate for the respondent union also emphasised the contents of the communication dated 3.11.2012 (pages 94 and
95) as well as the report submitted by the committee which was constituted to study position and factsituation with reference to contract labour in the establishment (i.e. Kakrapar Power Station Labour Union.
5.3 From the said report, Mr.Mishra, learned advocate for the respondent union emphasised below quoted observations:
7 C/SCA/7340/2016 ORDER
"The works/jobs of housekeeping/helpers in the plant premises in avaialble but the same is fluctuating in nature depending upon the exigencies of the work. At present on the number of days contract labour employed approximately comes on an average for 15 days in a month to each contract labour. However, the contract labourers employed inside the plant for housekeeping and material handling do carry out the jobs more or less similar to the jobs carried out by the Departmental persons. Shri Shankar Das, Member apprehended that if the Board decides to abolish the present contract system, half of the workers will lose the job because at present all workers are not being utilised every day and they are only getting 10 to 15 days attendance in a month. The Committee Members are of the view that contract labourers employed inside the plant for housekeeping and material handling should be paid wages equal to that earned by departmental helpers in conformity with the Principles for Equal Pay for Equal work i.e. atleast minimum of the time scale (Basic pay + D.A.) paid to lowest earning departmental employee."
6. In light of said report, it becomes clear that -
(i) the order passed by the Commissioner is based on communication dated 3.11.2012 and the report of the Committee; and that
(ii) in light of said communication and Committee's report (a) there was no ground for Commissioner to reject the demand; (b) the Commissioner has merely passed direction to give effect to Government of India's instruction - direction and the Committee's report - recommendation;
8 C/SCA/7340/2016 ORDER
(iii) in this background, there is no merits in the petitioner's objection against the order and there is no material and no ground to quash Commissioner's report.
7. After having initially reiterated the contentions raised by the petitioner, Mr.Godhia, learned advocate, having regard to the contents of the document at page 94 and the committee's report dated 23.3.1998 (AnnexureC, page 22), submitted, on instructions from the competent authority, that pursuant to the order dated 23.3.1998, the petitioner has already deposited Rs.54,85,908/, i.e. 50% of the amount which would be payable by the petitioner for compliance of the order dated 18.3.2016 passed by respondent No.9.
7.1 He further submitted that the said amount is calculated by the petitioner by taking into average working days of each contract labourer (i.e. 12 average days for each workman). 9 C/SCA/7340/2016 ORDER 7.2 Mr.Gadhia, learned advocate for the petitioner further submitted that the petitioner will deposit balance 50% of the amount which would be payable (by following same formula) by the petitioner for compliance of the order dated 18.3.2016 by 31.5.2018 and thereby the petitioner will comply the award.
7.3 He also submitted that the payment required to be made - as per the order - for the period from January 2018 will also be complied.
8. At this stage, it is relevant to take into account below mentioned instructions / directives issued by the Ministry of Labour, Government of India (which emerges from the document dated 3.11.2012, AnnexureR5, page 94):
"Further, it is to inform that as per the directives of Ministry of Labour, Government of India, wages are paid to the contract labourers engaged for housekeeping and material handling works in Operating Island area at par with the wages of the lowest paid employees of Kakrapar Site. As per the Sixth CPC revised pay scales, the lowest pay scale was Rs.44407440 with the Grade Pay of Rs.1300/. The Group D post has now been abolished, therefore, the lowest pay scale of pay now available at Kakrapar Site is Rs.520022200 with the Grade Pay of Rs.1900/. The difference in wages of the above two pay scale is worked out and enclosed as AnnexureA."10 C/SCA/7340/2016 ORDER
9. In this context, it is also relevant to recall and take into account below quoted observations in the committee's report dated 23.3.1998:
"The Committee Members are of the view that contract labourers employed inside the plant for housekeeping and material handling should be paid wages equal to that earned by departmental helpers in conformity with the Principles for Equal Pay for Equal work i.e. atleast minimum of the time scale (Basic pay + D.A.) paid to lowest earning departmental employee."
10. When above quoted instructions / directives from the Ministry of Labour, Government of India and the observations by the committee in its report dated 23.3.1998 are taken into account, then it becomes clear that respondent No.9 has passed the order by taking into account the very same observations, i.e. instructions / directives by the Ministry of Labour, Government of India in document at AnnexureR5, page 94 and the observations of the committee's report dated 23.3.1998. This is evident from below quoted observations in the impugned order dated 18.3.2016:
"Therefore, the directives of the Government have to be complied with in toto and also in true letter and spirit without any deviation whatsoever with the simple reason 11 C/SCA/7340/2016 ORDER that M/s. NPCIL has already accepted these directives and implemented also. There is no other possible interpretation of these directives, therefore, these directives are bound to be complied with on the face of it, without tempering with the essence and purpose of the said Government directives dated 16.12.1998."
11. From above quoted observations, it becomes clear that there is no merit in the objection and contention raised by present petitioner, by means of present petition, against the said order dated 18.3.2016 and the said order does not warrant any interference.
12. In this context, it is also relevant to take into account the order / direction dated 16.12.1998 issued by the Government of India. The said communication is addressed wherein, the Director has issued instructions / directives to the effect that:
"Sir, I am directed to refer to this Ministry's Resolution of even number dated 8.1.1998 on the above cited subject and to say that the report of the Committee constituted to study contract labour system in the establishment of Kakrapar Atomic Power Station, Distt. Surat, Gujarat was discussed in the 37th Meeting of the Central Advisory Contract Labour Board held on 2425th August, 1998 under the Chairmanship of Shri T.B. Sankaran. The Central Advisory Contract Labour Board decided to recommend to the Government the continuance of contract labour subject to the condition that such contract workers should be paid an emolument at the rate of basic pay and D.A. paid to the lowest paid departmental employees.12 C/SCA/7340/2016 ORDER
2. In pursuance of the recommendations of the Board, the matter has been considered in detail by the Central Government and it has been decided to allow continuance of contract labour in works / jobs of housekeeping / helpers in the plant area of of Kakrapar Atomic Power Station, Surat, Gujarat for activities such as house keeping and material handling that such contract workers are paid an emolument (Basic Pay plus D.A.) not less than that paid to the lowest paid departmental employees."
13. The said instruction which is issued pursuant to the committee's report dated 23.3.1998, does not leave any room for doubt that the petitioner herein is obliged to pay minimum pay scale to the concerned contract labourers.
14. Having regard to above mentioned aspects, learned advocate for the petitioner, on instructions from the competent authority, also clarified and submitted that the petitioner shall take necessary steps for implementation and compliance of the order dated 18.3.2016.
15. He also submitted that so far as the payment of salary in accordance with the said order dated 18.3.2016 for the period from January 2018 to March 2018 is concerned, that will be paid within four weeks and the salary, in accordance with the order dated 18.3.2016, for the month from April 13 C/SCA/7340/2016 ORDER 2018 onwards shall be paid regularly.
16. In view of the said statement and submission by learned advocate for the petitioner, any other order with regard to the challenge against the impugned order dated 18.3.2016 is not required to be passed. More particularly because the petitioner has decided to act in accordance with and to comply the said order. Therefore, cause to prosecute the petition on merits and/or to examine the challenge against the order does not survive.
17. However, in view of the submission and request by learned advocate for the petitioner, time to deposit balance 50% of the amount which would be payable according to the order dated 18.3.2016 for the period upto December 2017 is granted and it is clarified that the petitioner may deposit such amount on or before 31.5.2018.
18. It is clarified that on an application by the petitioner, the Registry will make arrangement to 14 C/SCA/7340/2016 ORDER disburse the amount deposited by the petitioner.
19. After the petitioner deposits the said amount, the Registry will transfer the amount tot he account of the Deputy Chief Labour Commissioner (Central) (i.e. respondent No.9). The said respondent No.9 shall provide the bank account number and name of the bank where the amount should be transferred.
20. After the amount is transferred, respondent No.9 shall constitute a committee comprising himself, i.e. Deputy Chief Labour Commissioner (Central), representative of the petitioner company and the representative of the respondent union.
21. The said committee will determine the amount to be paid to each workman and accordingly, the amount shall be disbursed / paid to concerned contract labourers, by account payee cheque after verifying proof of identity which will be countersigned by the union's representative and 15 C/SCA/7340/2016 ORDER the company's representative.
22. The said process of disbursement to the concerned contract labourer shall be complete within 15 days after the amount is deposited.
23. It is noticed from the reply and further affidavit filed by the respondent union that the respondent union has made an attempt to claim benefit even beyond the order passed by respondent No.9 inasmuch as the petitioner union has tried to claim the benefit from 2006.
24. From the order passed by respondent No.9, it is clear that the benefit is granted with effect from 29.8.2008.
25. Therefore, there is no scope or justification in the said attempt of the petitioner union to demand the benefit with effect from 2006.
26. Even otherwise, such demand in the petition filed by the company cannot be entertained. 16 C/SCA/7340/2016 ORDER
27. Besides this, even otherwise, after taking into account the facts and circumstances of the case, this Court does not find any merit in the said claim, i.e. claim for benefit from 2006.
28. It is clarified that the concerned workman (contract labourer) will be entitled for the said benefit only in accordance with the order dated 18.3.2016 passed by respondent No.9 and with effect from the date determined by the said authority.
With the aforesaid clarifications and observations, the petition is disposed of. Notice is discharged.
(K.M.THAKER, J) BHARAT 17