Kerala High Court
Malabar Cements Ltd vs Kerala State Security Staff Assn on 2 March, 2009
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 17365 of 2000(P)
1. MALABAR CEMENTS LTD
... Petitioner
Vs
1. KERALA STATE SECURITY STAFF ASSN.
... Respondent
For Petitioner :SRI.B.S.KRISHNAN (SR.)
For Respondent :SRI.R.K.VENU NAYAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/03/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.Nos.17365 & 28298 of 2000
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Dated this the 2nd day of March, 2009
J U D G M E N T
In these two original petitions, the petitioner is the Malabar Cements Ltd., a principal employer, as defined under the Contract Labour (Regulation and Abolition) Act, who employs contract labour in their establishment. In respect of payment of wages to security employees supplied by the 2nd respondent-contractor, there were some disputes, in respect of which, both the contractor and the union of workmen submitted representations before the Regional Labour Commissioner (Central), (RLC) Cochin. This Court by judgment in O.P.Nos.3881/2000 and 16868/2000 directed the Regional Labour Commissioner (Central), Cochin, to consider and pass orders on those petitions in accordance with law. Pursuant to the same, Ext.P7 orders (in both original petitions) have been passed by the RLC. In O.P.No. 17365/2000 the directions in Ext.P7 order are as follows:
"On the basis of the above observations, I hereby direct the respondent No.1 and 2 and other contractors engaging security personnel for respondent No.1 to implement the following directions w.e.f 1st November, 1999.
1. There is no minimum rate of wages fixed for security guards under contract system in the Cement Industry either by State Government or Central Government and also, there is no Government notification declaring the employment of Security Guards in Cement industry as a Scheduled Employment. To meet the ends of justice, the respondent No.1 is hereby directed to ensure that the minimum rate of wages prescribed under the Government notification S.R.O. No.644/97 dated 14.8.1997 for o.p.17365/00 & cc 2 security guards in shops and commercial establishments, is paid by the contractors to the security guards employed for the respondent No.1 in their establishments.
2. The respondent No.1 and 2 are also directed to pay proportionate higher rate of wages to the Head Guards, Security Inspectors, Assistant Security Officers and Security Officers respectively.
3. The respondent No.1 should ensure that the minimum rate of wages paid to the security guards and other categories of security personnel should not be inclusive of the service charges and other incidental expenses of the contractor or the principal employer as the case may be. Necessary clauses may be incorporated in the contract agreement made between the respondent No.1 and their contractors.
4. No unauthorised deductions shall be made from the wages of the security workmen of the contractors of respondent No.1 and the deduction shall be made by the parties concerned only as per the provisions of the relevant statutes.
5. The respondent No.1 and their contractors should ensure that wages to the workmen are paid within the statutory time limit.
6. The respondent No.1 and the contractors of the respondent No.1 should ensure that adequate welfare facilities are provided to the security workmen engaged by contractors as provided under Contract Labour [Regulation and Abolition] Act, 1970 and the Contract Labour [Regulation and Abolition] Central Rules, 1971."
In O.P.No. 28298/2000 the directions were as follows:
"After hearing all the parties concerned the Authority makes the following findings:
1. There is no dispute about the employment/engagement of contract security workmen who are the petitioner's in Ext.P9 during the period from 1st March 2000 till the date of hearing.
2. With regard to non-payment of wages to the contract workers/petitioner mentioned in Ext.P9 though a direct question was put to the Authorised Representative of the Principal Employer during the hearing, no direct reply was given by the Authorised Representative of the Principal Employer. The submission made by him that since various O.Ps are pending in Hon'ble High Court of Kerala on the same subject/issue it is not possible to make any comment found to be evasive and unconvincing. In fact, the Authority has fixed this hearing as per the directions of Hon'ble High Court of Kerala to enquire into the issue of nonpayment of wages to the petitioners in Ext.P9 in detail and as such the o.p.17365/00 & cc 3 Principal employer is not prevented from disclosing the actual position/facts to the Authority in the hearing fixed for the above purpose. Further, the statement made by the petitioners/ contract security Guards in Ext.P9 and the contractor that the petitioner in Ext.P9 have not been paid wages since March 2000 as the Principal employer has failed to release the amount as per the terms of the Contract to the contractor has neither disputed nor produced any documents in support of the payment made to the contractor, if it is already paid by the Principal employer. In view of the reasons enunciated above, I do not have any hesitation in drawing the inference that Principal employer has not paid/ensured the entitled wages to the security Guards on contract by Principal employer working at mines and townships of Malabar Cements Ltd. Walayar.
3. The statement made by the petitioner in the O.P. who is Contractor that he has not received any amount from the Principal employer to enable him to make payment of wages to the workmen has not been disputed by the Principal Employer.
4. The explanation given by the Principal employer (Malabar Cements Ltd.) for not paying the amount due to the contractor or not ensuring the payment of wages to the contract security workmen were unsatisfactory, unjustifiable and also unconvincing since no Authority/ court passed any order prohibiting the Management from paying wages ie. existing /entitled wages as per terms and conditions of the contract thereon to the concerned workmen.
5. Moreover, the action/ omission on the part of the Principal employer is unjust and inhuman since the security workmen who are supposed to be extremely vigilant and agile in their duties actually working under agony and starvation.
6. The responsibility of the contractor for making the payment of wages regularly and promptly is also reiterated. He is also required to co-operate with the management in fulfilling the deployment particulars of these security guards engaged on contract basis at Mines area or township area of Malabar Cements Limited to the Principal Employer on daily basis which enables the Principal Employer to compute and release entitled payment to the contractor and in turn to the contract labourers in time. But non submission or deployment chart is not a justifiable reason for depriving of the wages of the poor workmen.
In view of the above findings, respondents Nos.1 & 2 in O.P.No. 16868 of 2000 filed before Hon'ble High Court of Kerala are directed to release the entitled amount to the petitioner in the above said O.P. so as to enable the contractor to make the payment of unpaid wages i.e. from March, 2000 onwards as mentioned in Ext.P9. It is further directed that the above payment of wage arrears to be paid/ ensured to the petitioners in Ext.P9 latest by 14 August 2000 by the Principal Employer by duly o.p.17365/00 & cc 4 deputing their authorised representative while making the payment to witness the same. It is also directed that the contractor and the Management of Malabar Cements Ltd to make/ ensure the payment of wages to the contract workers latest by 7th of every month as per the statute in future without fail."
The above directions are under challenge in these original petitions.
2. The contention of the petitioner-principal employer is that the RLC has no jurisdiction either under the Contract Labour (Regulation and Abolition) Act, 1970 or under the Industrial Disputes Act, to pass such orders directing the petitioner, the principal employer, to pay amounts to contract employees as directed in those orders. Another contention is that in view of Ext.P9 letter (in O.P.No.17365/2000) given by the contract employees employed by the petitioner disclaiming any connection with the 1st respondent union, the 1st respondent union cannot represent the contract employees employed by the petitioner. The petitioner, therefore, seeks the following reliefs:
O.P.No. 17365/2000:
"a) to issue a writ in the nature of certiorari or other direction or other appropriate writ order or direction calling for the records leading to Ext.P7 order dt.26.5.2000 and quash the same.
b) to declare that Ext.P7 order is not supported by evidence and has no legal foundation and the same is based on surmises and factors not brought on record.
c) stay the operation of Ext.P7 order [sic] 26.5.2000 till the disposal of the above original petition.
d) Alternatively to remand the matter to 3rd respondent for fresh consideration in accordance with law and evidence on record and dispose of the same after affording an opportunity to all o.p.17365/00 & cc 5 concerned."
O.P.No. 28298/2000:
"a) call for the records leading to Ext.P7 and to quash the same by issuing a writ of certiorari or any other appropriate writ order or direction.
b) to stay the operation of Ext.P7 pending disposal of the Original Petition."
Although notices have been served on the 1st respondent in these two original petitions, they have not cared to appear and contest the matter.
3. I have heard the learned counsel for the petitioner.
4. As is clear from the directions quoted above in the impugned orders, the RLC (Central) has directed the petitioner to pay to the contract employees minimum wages as applicable to Shops and Commercial Establishments, to the security guards employed by them as contract employees and also directed the petitioner to pay other amounts as stated therein. The question involved is as to whether the RLC has jurisdiction to pass such orders.
5. It is settled law that such powers have to be conferred by law. Adjudicatory powers under the Contract Labour (Regulation and Abolition) Act on any officer as defined under the Act are available only under Section 15 of the Act and Rule 25(5) of the Contract Labour (Regulation and Abolition) Central Rules. Section 15 reads thus:
"15. Appeal.- (1) Any person aggrieved by an order made under section 7, section 8, section 12 or section 14 may, within thirty days from o.p.17365/00 & cc 6 the date on which the order is communicated to him, prefer an appeal to an appellate officer who shall be a person nominated in this behalf by the appropriate Government:
Provided that the appellate officer may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the appellate officer shall, after giving the appellant an opportunity of being heard dispose of the appeal as expeditiously as possible."
Rules 25(2)(v) (a) and (b) reads thus:
"25. Forms and terms and conditions of licence.- (1) Every licence granted under sub section (1) of section 12 shall be in Form VI.
(2) Every licence granted under sub-rule (1) or renewed under rule 29 shall be subject to the following conditions, namely:-
xxx xxx xxx xxx xxx
(v)(a) in cases where the workman 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).
(b) 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);
Explanation.-While determining the wage rates, holidays, hours of work and other conditions of service under (b) above, the Chief Labour Commissioner shall have due regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments;"
Under Section 15, appeal would lie only against orders passed under Sections 7, 8, 12 or 14. Sections 7 and 8 relate to registration of o.p.17365/00 & cc 7 establishments and contractors under the Act. Section 12 relates to licensing of contractors and Section 14 relates to revocation, suspension and amendment of licenses. Therefore, the impugned orders in these original petitions cannot be orders passed in exercise of powers under Section 15.
6. Rule 25(2)(v) relates to cases where the principal employer of an establishment does not pay wages to contract employees at the same rate as applicable to the workmen who performed the same or similar kind of work as the workmen directly employed by the principal employer of the establishment. Here there is no allegation that the contract workers are not being paid the same wages as being paid to directly employed workmen of the principal employer employed in similar kind of work. Clause (b) confers the power on the Deputy Chief Labour Commissioner (Central) to specify wage rates and other conditions of service of workers. Either way the Regional Labour Commissioner does not have powers to issue the impugned orders under any provisions of the Contract Labour (Regulation and Abolition) Act or Rules. Even otherwise the RLC (Central) cannot, under law, direct any principal employer to pay minimum wages other than what is notified under the Minimum Wages Act. Here, admittedly the petitioner's establishment is a factory as defined under the Factories Act. Admittedly, for cement industry no o.p.17365/00 & cc 8 minimum wages have been prescribed by the Government, much less, minimum wages for security guards. The RLC has no power whatsoever to direct that the security guards employed as contract labours by the petitioner company shall be paid minimum wages as prescribed under the Minimum Wage notification in respect of shops and commercial establishments. For that reason, the impugned orders are without jurisdiction.
7. Further in Ext.P9 in O.P.No. 17365/2000 the contract workmen in question have stated that the 1st respondent does not have any power to represent them in so far as they are not members of the 1st respondent union. This is not controverted by anybody before me. For that reason also, on a petition filed by the 1st respondent who is not representing the contract workers of the petitioner, no orders can be passed against the petitioner company. For all these reasons, the impugned orders in these two original petitions are quashed. However, I make it clear that this will not affect any payment already made, if any, by the petitioner to the contract employees based on the impugned orders which shall not be recovered.
The original petitions are disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
S.SIRI JAGAN, J.
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O.P.Nos.17365(P) &
28298(R) of 2000
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J U D G M E N T
2nd March, 2009