Gujarat High Court
Makavana Kankuben Mangabhai & 32 vs State Of Gujarat & 5 on 5 November, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1595/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1595 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1596 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 1598 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1782 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== MAKAVANA KANKUBEN MANGABHAI & 32....Petitioner(s) Versus STATE OF GUJARAT & 5....Respondent(s) ========================================================== Appearance:
MS ASHLESHA M PATEL, ADVOCATE for the Petitioner(s) No. 1 - 33 MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 - 4 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2 , 5 - 6 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 05/11/2015 Page 1 of 15 HC-NIC Page 1 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT CAV COMMON JUDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Civil Application No.1595 of 2015 is treated as the lead matter. By this writ application, the applicants, serving as the parttime employees with the Banaskantha District Panchayat, Palanpur, have prayed for the following reliefs:
"8 (A) Be pleased to admit and allow this petition.
(B) Be pleased to issue a writ of mandamus or any other appropriate writ by directing or commanding the respondents to pay the wages to the present petitioners in accordance with the Minimum Wages Act and as per Government Notification dated 21.02.2014 which is annexed as "AnnexureB".
(C) Be pleased to declare the action on part of respondent no.5 and 6 in not complying with the Minimum Wages Act and Government Notification dated 21.02.2014 is illegal and arbitrary and against the constitutional mandate.
(D) Be pleased to declare the inaction on the part of the Government authorities in not ensuring that the minimum wages are paid to the present petitioner by respondent no.5 and 6 as illegal, discriminatory, arbitrary, and is thus, violation of their fundamental rights guaranteed under Article 14, 16, 21 and 23 of Constitution of India.
(E) Be pleased to issue a writ of certiorari to quash and set aside the practice of respondent no.1 and 2 of outsourcing the petitioner's work to respondent no.5 and 6 and wiping out the past service of the petitioners.
(F) Be pleased to direct the respondent no.1 and 2 to take back the petitioners on the establishment of the State as the present petitioners were working with the State Government since 1977 to 2004 onwards. ' (G) Pending admission, hearing and final disposal of this petition, be pleased to restrain the respondents from terminating the service of present petitioners and from changing service conditions of the present petitioners.
(H) Pending admission, hearing and final disposal of this petition, be pleased Page 2 of 15 HC-NIC Page 2 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT to direct the concerned respondent to ensure that the minimum wages to be paid to the present petitioners.
(I) Be please to directed respondents for not changing the working hours as on date they are working more than 6 hours a day.
(J) Be please to award the cost of this petition.
(K) Be pleased to pass any other further order as may be deem fit, just and proper facts and circumstances of the case and in the interest of justice."
3 The District Panchayat decided that the services be procured through the outsourcing agency on contractual basis. In such circumstances, the applicants herein, although render their services to the Panchayat, yet are under the direct supervision and control of the contractor. The contractor exploits the employees so far as their wages is concerned. It is the case of the applicants that the stance of the Panchayat that there is no employee / employer relationship between the applicants and the Panchayat is unreasonable, and thereby, the Panchayat is indirectly permitting the contractor to exploit the situation and pay the wages less than the minimum prescribed under the law.
4 Mr. Munshaw, the learned advocate appearing for the Panchayat, has placed reliance on the following averments made in the affidavitin reply filed on behalf of the respondent No.3.
"3. The respndt. no.3 submits that the petitioners were provided work purely on temporary, adhoc and part time basis for the miscellaneous work in Primary Health Centre or in the offices under Banaskantha District Panchayat. It is submitted that none of the petitioners was appointed on any permanent and sanctioned post after following due procedure of recruitment in accordance with the rules and regulations for the posts like Peon or Sweeper etc. The respnt. no.3 submits that the Page 3 of 15 HC-NIC Page 3 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT petitioners who are appointed on part time basis are permitted to carry out on any other economic activity and there is no restriction. The respnt. no.3 submits that the petitioners are paid their wages as per the time to time policies of the Govt. of Gujarat on the issue of payment of wages to the part timers.
4. The respnt. no.3 submits that the Govt. of Gujarat resolved on 30.11.06 through its General Administration Dept. that the services be obtained from outsourcing agency on contractual basis for the vacant posts of Class IV cadre and the District Collector shall determine the centralized agency and a coy of said resolution is annexed as Annexure A.
5. The repnt. no.3 submits that the District Collector through order dated 2.7.12 selected and appointed Devidas vividh Vikaslakshi Trust, Madana (Gadh), Taluka Palanpur as outsourcing agency with effect from 1.8.12 to 31.7.13 and a coy of order dated 26/712 passed by the District Collector, Banaskantha is annexed as AnnexureB. It is submitted that accordingly the District Development Officer, Banaskantha District Panchayat passed an order on 30.7.12 instructing all the subordinate authorities to act accordingly and a copy thereof is annexed as Annexure C. The respnt. no.3 submits that the District Collector, Banaskantha extended their contractual period for one more month through order dtd. 31.7.13.
6. The respnt. no.3 submits that the Commissioner of Health, Medical Services and Medical Education (Health), Govt. of Gujarat, Gandhinagar passed an order dated 21.10.13 instructing that as no new agency was selected and appointed by District Collector, Banaskantha after 31.8.13 it is directed that to meet with essential medical services the Health Branch of Banaskantha District may take services of D.B. Enterprise, Mehsana and a copy of the said letter is annexed as AnnexureD. Accordingly the District Development Officer, Banaskantha District Panchayat issued orders on 30.10.13 to avail the services of M/s. D.B. Enterprise, Mehsana for a period commencing from 1.11.13 to 31.7.14 and a copy thereof is annexed as AnnexureE.
7. The respnt. no.3 submits that so far as the services of part timers are concerned the District Collector, Banaskantha had passed an order on 29.6.13 appointing Shri Devidas Vividhlakshi Trust, Madana (Gadh) as an outsourcing agency and a copy of order is annexed as AnnexureF. It is submitted that through order dtd. 9.6.14 the said agency is appointedfor one more year with effect from 1.7.14 to 30.6.15 and the hourly rate fixed for a part timer is Rs.13.90 paise and a copy of the order is annexed as AnnexureG. The repnt. no.3 submits that thereafter District Development Officer, Banaskantha has passed an order on 4.7.14 instructing all the Page 4 of 15 HC-NIC Page 4 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT subordinating authorities to avail the services of Shri Devidas Vividhlakshi Trust, Madana (Gadh) for a period up to 30.6.15 and a copy of the order is annexed as AnnexureH.
8. In view of the above mentioned facts it is clear that part timers are not to be employed by the respondent authority as ordered by the Govt. of Gujarat. The respnt. no.3 further states that accordingly the services of the petitioners were not availed by the respnt. no.3 on implementation of the policy of appointing and availing the services of outsourcing agency. It is stated that accordingly the outsourcing agency duly selected and appointed by the District Collector, Banaskantha pursuant to the policy of the Govt. of Gujarat, is providing the services of petitioners and such other part timers at the rates fixed by the District Collector, Banaskantha after following due procedure of selection of such agency. The respndt. no.3 submits that the petitioners are serving as part timers for 2 to 6 hours per day depending upon availing of work and requirement of such services. The respnt. no.3 craves leave to state that they are paid wages at the rates determined by the District Collector, Banaskantha while selecting such agency. It is most respectfully stated that there is no restriction on petitioners with regard to any other employment or economic activity. The respnt no.3 submits that the petitioners who are part timers cannot claim wages provided under the provisions of the Payment of Minimum Wages Act by the competent authority. It is stated that being part timers their rates of wages are determined by the District Collector, Banaskantha as per G.R. dated 30.11.06 issued by the Govt. of Gujarat. Sit is submitted that even prior thereto the Govt of Gujarat through its Finance Dept has issued a resolution dated 10.2.06 withdrawing the powers and authority of appointing part timers and a copy of the resolution is annexed as AnnexureI.
9. In view of the above mentioned facts and circumstances it is crystal clear that the services of the petitioners herein are provided by the outsourcing agency as its employees and the wages are paid at the rates determined by the District Collector, Banaskantha. It is pertinent to note that the District Panchayat has to make the payment to the outsourcing agency and the payment of wages thereafter made by the concerned outsourcing agency as an employer of the petitioners. The respnt. no.3 submits that there is no employeremployee relationship between petitioners and Banaskantha District Panchayat/respnt. no.3.
10. The respnt. no.3 craves leave to annex herewith a Statement providing details about working hours of the petitioners and the places of posting AnnexureJ. The respnt. no.3 submits that the Govt of Gujarat has issued a resolution dated 6.9.14 revising the rates for part timers and a copy of the said resolution is annexed as AnnexureK. It is pertinent to note that the said rates are revised after selection and appointment of respnt. no.6 as an outsourcing agency by the District Collector, Page 5 of 15 HC-NIC Page 5 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT Banaskantha and, therefore, the petitioners are entitled to the same after the contractual period is over with respnt. no.6. In other words the petitioners who are serving as part timers are not entitled to the wages as per the rates determined under the provisions of the Payment of Minimum Wages Act as they are part timers. It is further stated that the Govt. of Gujarat has issued another circular dated 21.10.14 subsequent to order dated 6.9.14 making certain amendments and a copy thereof is annexed as AnnexureL."
5 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the applicants are entitled to the relief prayed for in these writ applications.
6 If it is the policy of the State Government or rather the Panchayat to undertake the work through the outsourcing agency, then 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 all the rules and regulations so far as the payment of the minimum wages is concerned.
When the Panchayat entered into a contract in writing, it was the duty of the Panchayat to ensure that there is no exploitation at the hands of the contractor. It is also the duty of the Panchayat to ensure that the minimum wages, in accordance with law, is paid to the employees.
7 It is very depressing to notice the stance of the Panchayat. The Panchayat has thrown the entire blame on the shoulders of the contractor.
8 Over a period of time, many orders have been passed by this Court Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT in these type of matters. A Division Bench of this Court (to which I was a party) in the case of Gujarat Rajya Anshkalin Karmachari Mandal vs. State of Gujarat and others [writ petition (PIL) No.244 of 2014 dated 21.08.2014) held 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 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 atleast 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 Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT against their termination by Court orders. However, it is impossible to 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 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 Page 8 of 15 HC-NIC Page 8 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT 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 parttime 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 ipsofacto, 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 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 breadwinner. Workers are therefore concerned with the purchasing power of the paypacket he receives for his toil. If the rise in the paypacket does not keep place with the rise in prices of essentials the purchasing power of the paypacket fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the paypacket 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 Page 9 of 15 HC-NIC Page 9 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT provide for the rise in prices. In the costofliving sliding scale systems the basic wages are automatically adjusted to price changes shown by the cost ofliving index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leapfrogging 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 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."
9 The above referred writ petition, later on, was finally disposed of by a Division Bench of this Court vide order dated 11.12.2014 observing 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 benefits of minimum wages under the Minimum Wages Act to all parttimers 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 parttime employees shall not be entitled for daily special allowance and the rates of minimum wages have Page 10 of 15 HC-NIC Page 10 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT been revised with effect from 21.2.2014. The Government has also made it clear that those parttime 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 parttime employees who are working for less than 4 hours per day and those parttime 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 parttimers 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 parttime 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 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."
10 In the case of People Union for Democratic Rights vs. 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 noninterfering Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT 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 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."
11 The Supreme Court in the case of Gujarat Electricity Board, Thermal Power Station, Ukai vs. 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 Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT 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 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 applicantcontractor 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 nontransferable 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 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 Page 13 of 15 HC-NIC Page 13 of 15 Created On Fri Nov 06 03:00:25 IST 2015 C/SCA/1595/2015 CAV JUDGMENT 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 licenseecontractor 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 thumbimpression 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 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.
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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."
12 Thus, in view of the above discussion, all the writ applications are allowed. The respondents are directed to see that the minimum wages, according to the Government Notification dated 21.02.2014, is paid to the writ applicants of all the writ applications. If there is any revision, time to time, then the authorities concerned shall ensure that the benefit of the revision in the minimum wages is extended to the employees.
13 Any laxity or dereliction of duty, in this regard, shall be viewed very strictly and the erring officials would be dealt with in accordance with law for contempt.
14 With the above, all these writ applications are disposed of.
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