Calcutta High Court (Appellete Side)
Bsnl- Nationalist Thika Workers' ... vs Union Of India & Ors on 25 November, 2019
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
1
S/L 37
25.11.2019
Ct. No. 23
SD
W.P. 20855 (W) of 2019
BSNL- Nationalist Thika Workers' Congress & Ors.
Vs.
Union of India & Ors.
Mr. Arunava Ghosh
Mr. Partha Bhanja Chowdhury
Mr. Dwaipayan Sengupta
Ms. Pranati Das
... for the Petitioners.
Mr. Soumya Majumder
Mr. Victor Chatterjee
... for the Respondent No.2.
Mr. Rajib Mukherjee ... for the Respondent No.5.
Mr. M.S. Yadav ... for the Respondent No.6.
Mr. Biswadeb Ray Chaudhuri ... for the Respondent No.7.
Mr. Dipak Kumar Mookherjee ... for the Respondent No.8.
1. This is an application under Article 226 of the Constitution of India wherein the writ petitioners are the registered union of the contract workers working under Bharat Sanchar Nigam Limited (hereinafter called as 'BSNL') being the respondent no.2 herein.
2. The case of the petitioners is that payments have not been made to the contract workers since December 2018. It is their submission that the contractors who are under contract to the respondent no.2 have failed to make payment to the workers and accordingly, the respondent no.2 being the principal employer should immediately make payments to the contract labourers under Section 21 (4) of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'Act of 1970'). One may refer to the section in greater detail. The same is provided below:-
"21. Responsibility for payment of wages.- (1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.
(2) Every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be 2 the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.
(3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer.
(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."
3. Mr. Arunava Ghosh, counsel appearing on behalf of the petitioners, places reliance on several documents including proceedings before the Conciliation Officer, letters issued by the Chief General Manager of BSNL to indicate that the respondent no.2 is completely aware of all the facts. In fact, from the letters it is evident that the Chief General Manager situated in Calcutta has even written to the Director (Finance), Corporate Offices, BSNL seeking funds for the payment of the workers. This particular factual aspect is undisputed.
4. Mr. Majumder, counsel appearing on behalf of the BSNL, submits that the contract labourers have approached the Labour Commissioner for settlement of their dues and certain orders may have been passed by the Labour Commissioner in excess of his jurisdiction. He further submits that these are arm-twisting tactics by the contractor for settlement of their disputes with the BSNL. Mr. Majumder further submits that if any relief is to be sought, the appropriate authority is the Central Administrative Tribunal (hereinafter referred to as 'CAT'), as BSNL is one of the notified establishments under the Administrative Tribunal Act, 1985.
5. I have heard counsel appearing on behalf of the parties and perused the materials on record.
6. From a bare perusal of the Act of 1970, it is clear that the principal employer is required to nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractors. The primary duty under Section 21(3) of the Act is upon the contractor to make payments to the contract labourers. However, under Section 21(4) it is made clear that if the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable 3 to make payment of wages in full or the unpaid balance. The principal employer can thereafter recover the said amount paid to the contract labourers of the contractor.
7. It is further noted that by an order dated June 14, 2019, a coordinate Bench of this Court had also directed the Chief General Manager, BSNL to clear the due wages to the labourers under Section 21(4) of the Act of 1970. This was in reference to the labourers working in the State of Andaman & Nicober. This order has not been challenged by the BSNL and subsists till date. I am given to understand from the petitioners that this order had been complied with by the BSNL without preferring any appeal against the said order.
8. It may further be noted that the Supreme Court in Hindustan Steel Works Construction Ltd. v. Commissioner of Labour & Ors. reported in (1996) 10 SCC 599 at para 10 has clearly dealt with the issue. The said paragraph is delineated below:-
"10. Therefore, the term 'wages' for the purpose of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970, means contractual wages which are payable under the terms of employment as between the contractor who is the employer and the contract labourers who are his employees. 'Wages' would also include, inter alia, any remuneration which the contractor is required to pay under any award or settlement between the parties or under an order of the court. By reason of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970, the principal employer is required to nominate a representative to be present at the time of disbursement of wages by the contractor to the contract labour employed by him, in order to certify that the contractor has paid these wages. And similarly a duty is cast on the contractor to ensure that the disbursement of wages takes place in the presence of the authorised representative of the principal employer. The purpose of keeping the representative of the principal employer present is obviously to ensure that the contractor makes full payment of wages to each worker employed by the contractor as contract labour. These wages are the wages which the contractor has to pay to his workers in terms of the agreement of employment, or any award, settlement etc. If the contractor does not pay these wages to his workmen engaged by him as contract labourers, then under sub-section (4) of Section 21 the principal employer becomes liable to make good the difference and recover this amount which the principal employer has paid to the workmen of the contractor, from the contractor. (Vide Gujarat Electricity Board v. Hind Mazdoor Sabha [SCC at p. 44] and R.K. Panda v. Steel Authority of India [SCC at p. 308].)"
9. In light of the above, I am of the view that BSNL is liable to make the payments to the contract labourers as the contractors have failed in their duty to make the payment 4 under Section 21(3) of the Act of 1970. BSNL being the principal employer automatically becomes liable to make the payment under Section 21(4) of the Act of 1970.
10. Mr. Majumder's argument with regard to arm twisting tactics by the contractors is of no essence and has to be rejected by me. Upon a bare reading of the provision, it is clearly noted that the legislation is a beneficial legislation to protect the right of the contract labourers and has to be interpreted in the same line. Furthermore, it is clear from the judgment of Hindustan Steel Works Construction Ltd. (supra) that the liability shifts upon the principal employer when the contractors fails to make the payment to the contract labourers.
11. In light of the above, I direct BSNL being the respondent no.2 to make payment of the wages of the contract labourers within a period of five weeks from date. BSNL shall coordinate with the contractors being the respondent nos.6 to 11 and make the payments to the contract labourers either directly or through the contractors, as convenient to BSNL.
12. With these observations, W.P. 20855 (W) of 2019 is disposed of.
13. Since, no affidavit-in-opposition has been called for, the allegations made in the writ petition are deemed to have not been admitted by the respondents.
14. There will be no order as to costs.
15. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Shekhar B. Saraf, J.)