Jharkhand High Court
Dhanbad Colliery Karamchari Sangh vs Union Of India Through Its Secretary on 9 January, 2019
Equivalent citations: AIRONLINE 2019 JHA 899, 2019 (4) AJR 499, (2019) 160 FACLR 885, (2019) 2 JCR 539 (JHA), (2019) 3 LAB LN 186
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.5881 of 2016
Dhanbad Colliery Karamchari Sangh, through In-Charge of Unorganized
Contract Labour Cell of Dhanbad Colliery Karamchari Sangh, namely,
Bindesdhwari Thakur, having its Office Vishwakarma Bhawan, Post Box
No.68, Police Line, P.O and P.S.-Hiranpur, District-Dhanbad.
...... Petitioner
Versus
1. Union of India through its Secretary, Ministry of Labour and
Employment, Government of India, P.O. & P.S.-Parliament Street, New
Delhi.
2. Dy. Chief Labour Commissioner (Central), having its office at Shram
Bhawan, New Colony, Jagjivan Nagar, P.O.-Jagjivan Nagar, P.S.-Saraidhela,
District-Dhanbad.
3. M/s Bharat Coking Coal Limited, having its office at Koyla Bhawan,
P.O.- Koyla Nagar, P.S.- Saraidhela, District - Dhanbad.
4. Vehicle Contractors/Owners of M/S Bharat Cooking Coal Ltd. being
represented by Sri Uday Shankar Dubey, son of Late Ram Sagar Dubey,
Near Kali Mandir, P.O-Nawagarh, P.S.-Barora, District-Dhanbad.
...... Respondents
WITH
W.P.(L) No.3796 of 2016
M/s. Bharat Coking Coal Limited, a Government Company under the
Companies Act having its Registered Office at Koyla Bhawan, P.O.- Koyla
Nagar, P.S.- Saraidhela, District - Dhanbad through Dr. Harendra Kishore,
son of Late Liladhar Sharma, General Manager (Legal), Bharat Coking Coal
Ltd., resident of Kusum Vihar Colony, P.O.-Koyla Nagar, P.S.- Saraidhela,
District-Dhanbad.
...... Petitioner
Versus
1. Union of India through the Secretary, Ministry of Labour, Shashtri
Bhawan, New Delhi.
2. Dy. Chief Labour Commissioner (Central) and Authority under Rules
25(2)(v)(a) & (b) of the Contract Labour (Registration & Abolition) Central
2
Rules, 1971, having its office at Shram Bhawan, New Colony, Jagjivan
Nagar, P.O.-Jagjivan Nagar, P.S.-Saraidhela, District-Dhanbad.
3. Dhanbad Colliery Karmchari Sangh through Shri K.P. Gupta, son of
not known to the petitioner, General Secretary, Vishwakarma Bhawan,
Police Line, Hirapur, Post Box No.68, P.O. & P.S. & District-Dhanbad.
4. Vehicle Owners/Contractors of Bharat Coking Coal Ltd. being
represented by Sri Uday Shankar Dubey, son of Late Ram Sagar Dubey,
Near Kali Mandir, P.O-Nawagarh, P.S.-Barora, District-Dhanbad, PIN-
828306.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioner : Mr. Barun Kr. Sinha, Advocate [W.P.(L) No.5881 of 2016] Mr. Manoj Kumar, Advocate [W.P.(L) No.5881 of 2016] Mr. Nitin Sinha [W.P.(L) No.3796 of 2016] Mr. Madan Prasad [W.P.(L) No.3796 of 2016] For the Respondents : Mr. Nitin Sinha [W.P.(L) No.5881 of 2016] Mr. Madan Prasad[W.P.(L) No.5881 of 2016] Mr. Barun Kr. Sinha, Advocate [W.P.(L) No.3796 of 2016] Mr. Manoj Kumar, Advocate [W.P.(L) No.3796 of 2016] For the BCCL : Mr. Anoop Kr. Mehta, Advocate Mr. Amit Kr. Sinha, Advocate
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06/Dated 09th January, 2019 Both the writ petitions have been listed together for analogous hearing, therefore, the analogous hearing has been done and are being disposed of by this common order.
2. Before going into the factual aspect it needs to refer that W.P.(L) No.3796 of 2016 has been filed by M/s. Bharat Coking Coal Limited while W.P.(L) No.5881 of 2016 has been filed by Dhanbad Colliery Karamchari Sangh.
Both the writ petitions questions the order passed by the Deputy Chief Labour Commissioner (Central), Dhanbad in application No.35(1)/2010-A7 whereby and whereunder the following order has been passed.
"1. All the Drivers, who are working under the Vehicle Owners, 3 with whom BCCL has entered into contract, shall be paid daily wage @ Rs.540/- per day for 8 hours work in a day and this wage shall be reimbursed by the Principal Employer i.e. BCCL to the contractors as BCCL is the end user of the vehicles as well as the services of the Drivers. The payment of this wage shall be credited to the individual bank accounts of the Drivers every month.
2. Those Drivers, who have been working for more than 10 years, will get 10% more wages and those, who have been working for the last 10 years but more than 5 years will get 5% more wages to ensure proper justice to them so that there will not be any heart burn among the Drivers.
3. There shall be 10% (Ten per cent) increase in the daily wage every year.
4. Extra work done, over and above 8 hours by the Drivers, shall be paid overtime @ double the rate of wages per hour as per the provision of Contract labour (R and A) Act, 1970 and Central Rules made thereunder.
5. The Drivers will be eligible to get the benefit of all welfare facilities as provided under the Act.
6. Since the Drivers have been working since last 7 to 80 years at very meagre wages they should be paid lump sum arrears for at least five years (2011 to 2015) @ Rs.30,000/- per year as the contractors did not produce Wage Registers to calculate the arrears. The actual wages of Rs.540/- shall be made payable from January 2016.
7. If the Principal Employer intends to challenge this decision in the Hon'ble High Court, it will have to deposit Rs.6,28,50,000/- (Rupees Six crores twenty-eight lakhs fifty thousand only) with this Authority so that the sufferings of the Drivers can be alleviated during the pendency of the proceedings and this Authority would disburse the arrears to the Drivers.
8. No Contractor (Vehicle Owner) can terminate the services of any Driver who are parties to this decision. If any Vehicle Owner is disengaged, the Principal Employer would get the driver engaged under the next contractor who gets the contract. This is directed with a view to maintain industrial peace and harmony in BCCL which is a public utility service. If any vehicle Owner terminates the service of any driver, the Principal Employer will black list such Vehicle Owner (Contractor)."
3. The factual aspect in brief as per the pleadings made in these writ petitions are that the applicant on behalf of the contract drivers filed an application before the Deputy Chief Labour Commissioner on 29.11.2010 praying therein that the drivers are being paid less wages which is contrary to the provisions of Minimum Wages Act as also prayed therein to treat them at par with the regular drivers working under the Management M/s 4 Bharat Coking Coal Ltd.
4. Deputy Chief Labour Commissioner while considering the prayer for treating the drivers at par with the regular drivers working in the management has negated the same on the ground of having not been appointed in the way as the regular drivers have been appointed and also they have been appointed through the vehicle owners and therefore, they cannot claim parity in the pay scale as that of regular drivers working under the management BCCL.
5. So far as the prayer of the enhanced wages is concerned, the direction has been issued to pay them wages @ Rs.540/- per day for 8 hours work in a day which shall be reimbursed by the Principal Employer i.e. BCCL to the contractors as BCCL is the end user of the vehicles as well as the services of the drivers, apart from the other directions contained therein.
6. The management BCCL has approached to this Court first by filing W.P.(L) No.3796 of 2016 assailing the order dated 10th May, 2016 passed by Deputy Chief Labour Commissioner (Central) on the ground that the same is not proper rather the Deputy Chief Labour Commissioner has passed the aforesaid order treating the drivers engaged by the vehicle owners as the contract workers bringing them under the fold of Rule 25(v)(a) and passed the aforesaid direction which is not legal and proper for the reason that the said provision stipulates that in case where the workman employed by the contractor perform the same or similar kind of work as the workman directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workman of the contractor shall be the same as applicable to the workman directly employed by the principal employer of the establishment on the same or similar kind of work.
It is evident from the aforesaid provision that the wages at par with the regular employee would be given to the workman engaged by the contractor but here the fact is entirely different since by virtue of an advertisement inviting applications vide Annexure-1 dated 08.05.2014, the applications have been invited from bona fide vehicle owners for 5 registration by fulfilling the eligibility criteria mentioned therein, in turn thereof, the vehicle owners have submitted their applications along with the eligibility conditions upon which on scrutiny the vehicle owners who have been found to be successful in the process of bid, have been issued with the work orders.
The vehicle owners in pursuance to the terms of contract are required to supply vehicle along with the drivers and as such the drivers are being engaged by the vehicle owners, hence, they are only liable to make payment of wages and not the BCCL management.
7. It has been contended that if the worker would have been supplied to the management through the contractor then the matter would have been different but here the vehicles have been sought to be utilized by inviting applications through the vehicle owners wherein one of the condition is to provide a skilled driver, in pursuance thereto, the drivers have been provided, therefore, it is the liability of the vehicle owners to make payment of wages and not of the BCCL management but this aspect of the matter has not been discussed by the Deputy Chief Labour Commissioner while dealing with the issue of enhancing the minimum wages.
8. On the other hand, the case of the workmen-the petitioner in W.P.(L) No.5881 of 2016 is that the drivers are being engaged by the vehicle owners that is not in dispute but they are rendering their services to the BCCL management who will be said to be the principal employer and therefore, it is the liability of the principal employer to make minimum wages as per the notified wages in pursuance to the Minimum Wages Act, 1948, but having not done so, the Deputy Chief Labour Commissioner (Central), Dhanbad has passed the order keeping that fact into consideration as such there is no illegality in the same.
9. Learned counsel for the workman has submitted by refuting the contention of the learned counsel for the management that the drivers are not rendering their services for the principal employer, by referring to certain conditions stipulated in the notice inviting applications has submitted that the fact of rendering the services by the drivers of the 6 vehicle has been admitted since the vehicle owners have supplied the skilled drivers along with the vehicle for rendering the services to the BCCL management and in view thereof, the fact regarding rendering of services by the drivers of the vehicle supplied by the vehicle owners is not in dispute, therefore, the status of the management-BCCL of the principal employer cannot be disputed.
10. This Court after appreciating the rival submissions of the learned counsel for the parties and going across the pleadings made in the affidavits thinks it proper to discuss the relevant provisions along with the authoritative pronouncements regarding the issue.
11. The relevant provision for adjudication of the dispute would be The Contract Labour (Regulation and Abolition) Act, 1970 (herein referred to as the Act, 1970) which contains the definition of the contractor under the provision of Section 2(c) which stipulates as follows:
"(c) "contractor", in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor."
It is evident from the definition of contractor which means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour for any work of the establishment and includes a sub-contractor.
12. Under the provision of Section 2(g), the principal employer has been defined which means:
"(g) "principal employer" means -
(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf,
(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named,
(iii) in a mine, the owner or agent of the mine and where a 7 person has been named as the manager of the mine, the person so named,
(iv) in any other establishment, any person responsible for the supervision and control of the establishment."
By bare reading of the definition of the principal employer, it is evident that in relation to any officer or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf, in a factory the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named in any other establishment, any person responsible for the supervision and control of the establishment.
13. Section 2(i) defines the workman which means :
"(i) "workman" means any person employed in or in connection with the work of any establishment to do any skilled, semi-
skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person-
(A) who is employed mainly in a managerial or administrative capacity; or (B) who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature; or (C) who is an out-worker, that is to say, a person to whom any articles or materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker of in some other premises, not being premises under the control and management of the principal employer."
14. Section 12 stipulates the licensing of contractors which speaks as follows:-
"12. Licensing of contractors.--(1) With effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint, no contractor to whom this Act applies, 8 shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
(2) Subject to the provisions of this Act, a licence under sub-
section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed."
It is evident from the provisions of Section 12 that in order to regulate the contract labour, a licence to that effect is to be issued for appointment of contractor to whom the act applies.
15. A rule has also been formulated in exercise of power conferred by Section 35 of The Contract Labour (Regulation and Abolition) Rules, 1971 (herein referred to as the Act, 1971) wherein it has been provided under Rule 25 which pertains to the forms and terms and conditions of licence one of which is mentioned under sub-clause (v)(a) which speaks as follows:
"(v) (a) in a cases where the workman employed by the contractor perform the same or similar kind of work as the workman 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:"
16. The workman has invoked the jurisdiction of the Deputy Chief Labour Commissioner (Central) for compliance of the provision as contained in Rule 25(v)(a) of the Rules, 1971, acting upon the same, the order has been passed.
17. Learned counsel for the workmen, by defending the aforesaid order, has submitted that there is exploitation of the workmen by not making payment of minimum wages and therefore, there is no infirmity in the aforesaid order passed by the said authority while on the other hand, the management BCCL has assailed the aforesaid order on the ground that the 9 drivers who have been engaged by the vehicle owners cannot be said to be workmen rendering the services to the management who happen to be the principal employer rather they are rendering services to the vehicle owners and by way of fulfilling condition, the drivers have been engaged by the vehicle owners, hence it is the liability of the vehicle owners to comply with the minimum wages as provided under the notification issued by the appropriate Government under the provision of Minimum Wages Act.
18. Reference needs to be made to the view of the Hon'ble Supreme Court in the case of Air India Statutory Corporation and Ors. vs. United Labour Union and Ors., reported in AIR 1997 SC 645 wherein it has been provided that the contract worker working in the establishment having its perennial nature is required to be regularized in view of the provision of The Contract Labour (Regulation and Abolition) Act, 1970 to achieve the goal of the provision of the aforesaid act.
But the said view has been reversed by a Constitution Bench judgment rendered in the case of Steel Authority of India Ltd. and Ors. vs. National Union Water Front Workers and Ors., reported in AIR 2001 Supreme Court 3527 wherein the Hon'ble Apex Court by reversing the aforesaid judgment and answered with respect to the issue of automatic absorption of contract labour, working in the establishment of the principal employer as a regular employee, follows on issuance of a valid notification under Section 10(1) of the C.L.R.A. Act prohibiting the employment of the contract labour in the concerned establishment.
The Hon'ble Apex Court while answering the aforesaid question has been pleased to hold by referring to the judgment passed by the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. and Ors. (supra) prospectively and held therein that the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so called contract labour will have to 10 be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for the purposes. At paragraph 123 of the aforesaid judgment it has been laid down that the industrial adjudicator is to determine the questions aforementioned requires inquiry into disputed question of facts which cannot conveniently be made by the High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such a case the appropriate authority to go into those issues will be Industrial Tribunal/Court whose determination will be amenable to judicial review.
19. It is evident from the ratio laid down in the Constitution Bench judgment of the Hon'ble Apex Court in the case of Steel Authority of India (supra) that even if the contractors are working by rendering services to its principal employer which is perennial in nature, a finding is to be given by adjudicating it by the industrial tribunal or court and not by the High Court sitting under Article 226 of the Constitution of India.
20. So far as the applicability of the provision of Rule 25(v)(a) of the Rules, 1971 is concerned there is no dispute that the rules if provides anything without ambiguity, has to be followed but the question here is that if there is no dispute in the factual aspect then certainly, a direction could be passed by the High Court under Article 226 of the Constitution of India but certainly in a case of dispute of factual aspect the High Court cannot issue any direction since the adjudication will only be possible by leading evidence which can only be done by the industrial adjudicator i.e. the Industrial Tribunal by raising dispute under the provision of Industrial Disputes Act, .
21. It is in this background, the factual aspect as also the reasons assigned in the impugned order needs to be appreciated by this Court and has been appreciated.
22. Admittedly the workmen who happens to be the drivers of vehicle owners, are rendering their services in terms of engagement of their vehicle owners by virtue of notice inviting applications for providing vehicles to the management BCCL containing therein certain terms and 11 conditions. One of the conditions is that the vehicle owners will provide skilled drivers.
23. The vehicle owners who have been found successful in the bid in pursuance to the tender (Annexure-1 annexed to the W.P.(L) No.3796 of 2016) have supplied their vehicles along with skilled drivers and the drivers along with the vehicles are plying the same.
24. The Deputy Chief Labour Commissioner in an application filed by the association of the drivers for treating the drivers at par with the regular drivers working under the management and to pay equal pay, although has denied the claim but directed the management to pay them wages.
25. The management is disputing the status of the drivers as workmen rendering their services to the BCCL management. While the association of the drivers are taking the plea that they are drivers plying the vehicle which are being engaged by the management and this is the bone of contention and if the drivers would be said to be rendering their services through a contractor in the nature of labour supplier, will be said to be rendering the work.
26. The worker if rendering the services through the labour supplier by way of contract then it could be said to be rendering the services to the management and then also the question would be that whether the work is perennial in nature or not or the contract is camouflage requires to be made which admittedly can be done by the industrial adjudicator as per the judgment rendered in the case of Steel Authority of India (supra). But here in the instant case, admittedly the drivers are being engaged by the vehicle owners in terms of tender inviting applications and therefore this has been disputed by BCCL management that they cannot be treated to be the principal employer and therefore they are not liable for any enhancement of the minimum wages as per the notification made under Minimum Wages Act, 1948 rather it is the vehicle owners who are liable to make payment as per the notification of Minimum Wages Act, 1948.
27. Learned counsel for the workman has tried to impress upon the Court that the drivers are directly rendering their services to the BCCL 12 management who happens to be the principal employer and to strengthen his argument he has referred to certain eligibility conditions stipulated in the advertisement as under Annexure-1 by which the applications have been invited from bone fide vehicle owners.
28. This Court after going across the content of the advertisement as under Annexure-1 has found that the applications have been invited from bone fide vehicle owners to supply vehicles. The aforesaid advertisement contains certain eligibility conditions one of which is the appointment of skilled drivers and referring to the said, it has been argued that the drivers will be said to be supplied by the vehicles owners in terms of the said advertisement but this argument is not fit to be accepted for the reason that since the tender is for supply of vehicle from the vehicle owners and as per the eligibility conditions since the skilled drivers is also required, therefore, it is the accountability of the vehicle owners to depute the skilled driver and if that has been done, it cannot be said that the drivers have also been sought to be engaged by virtue of the aforesaid advertisement, therefore this contention is not acceptable to this Court.
29. This Court after going across the factual aspect and basing upon the judgment referred hereinabove and considering the fact that the very basis of nature of appointment of the drivers which has been sought to be treated as contract workers within the meaning of a contractor as per the definition stipulated in the Act, 1970 itself, is in dispute but the same having not been appreciated by the Deputy Chief Labour Commissioner before casting the liability upon the BCCL management.
Further no discussion has been made in this regard in the aforesaid order, however, the concession of the representative of the management has been referred but it is settled that in case of wrong concession, if any order is passed without proper adjudication of the issue the same will not have any binding effect, reference in this regard be made to the judgment rendered in the case of Union of India and Ors. Vs. Mohanlal Likumal Punjabi and Ors., reported in(2004) 3 SCC 628 wherein at paragraph 8 & 9 it has been held that concession, if any, is really of no consequence, because the wrong concession made by a counsel cannot bind the parties when 13 statutory provisions clearly provided otherwise. It was observed by Constitution Bench of the Hon'ble Supreme Court in Sanjeev Coke Manufacturing Company Vs. M/s Bharat Coking Coal Limited and Anr. that Court are not to act on the basis of concession but with reference to the applicable provisions. This view has been reiterated in Uptron India Ltd. Vs. Shammi Bhan, reported in (1998) 6 SCC 538 and Central Council for Research in Ayurveda & Siddha Vs. Dr. K. Santhakumari, reported in (2001) 5 SCC 60.
30. In view thereof, the order passed by the Deputy Chief Labour Commissioner (Central), Dhanbad dated 10.05.2016 does not stand in the eye of law, accordingly, stands quashed.
31. In the result, writ petition being W.P.(L) No.3796 of 2016 is allowed and the writ petition being W.P.(L) No.5881 of 2016 is dismissed.
32. The parties are at liberty to raise the dispute, if any, before the competent authority/forum, if they so wishes.
33. Interlocutory application being I.A. No.11418 of 2018 in W.P.(L) No.3796 of 2016 also stands disposed of.
(Sujit Narayan Prasad, J.) Saurabh