Madhya Pradesh High Court
Badri Singh Thakur And Ors. vs National Thermal Power Corporation And ... on 5 December, 2003
Equivalent citations: [2004(102)FLR468], (2004)IILLJ1101MP, 2004(3)MPHT96
Bench: Chief Justice, Dipak Misra
JUDGMENT Kumar Rajaratnam, C.J.
1. The factual matrix, the centripodal polemic, the arguments urged, the justification provided, picture frescoed and the lis spiralled being common in all these appeals they were heard analogously and are disposed of by this common order. To appreciate the vital and constitutive issues that arise in these cases it is apt and appropriate to refer to the facts in L.P.A. No. 89/1998 so that the expose of facts would become clear.
2. The appellants (who were the petitioners in the Writ petition No. 3236/1997) (hereinafter referred to as 'the petitioners') invoked the inherent and equitable jurisdiction of this Court under Article 226 of the Constitution of India putting forth a case that they have been employed as electricians since 1987 as workmen under National Thermal Power Corporation (in short 'the Corporation') for maintenance of Korba Super Thermal Power Project colonies. The Corporation and its functionaries have not directly employed the petitioners but they have employed them through the contractor, the respondent No. 4 in the writ petition. Prior to the aforesaid engagement they were employed through other contractors. It was urged in the writ petition that their work was supervised by the competent officers of the Corporation. The material for their job was supplied by the said respondent. They worked for the colonies owned and controlled by the respondent No. 1 Corporation and series of contracts have been entered into by the respondent No. 1 with the contractor. The said documents have been brought on record as Annexures P-12 to P-14. The petitioners have also brought on record the copy of the attendance register and certificate issued by the various contractors regarding their engagement.
3. It is contended that the Corporation (NTPC) wanted to avoid absorption of contract labour despite their perennial nature of work. To avoid the mandate of the Apex Court they engaged them on the job work basis and the whole endeavour, as pleaded, was to defeat the absorption of the contract labours. Certain documents have been brought on record to build an edifice that a maladroit attempt has been made by the Corporation to violate the various judgments of the Supreme Court delivered from time to time. It was claimed before the learned Single Judge that M.P. Industrial Relation Act, 1960 (for brevity 'the 1960 Act') governs the conditions of the employment between the corporation and them. It was further putforth that they are entitled to the same wages as the workmen of the respondent No. 1 and also there can be abolition of the contract labour and absorption of the petitioners as employees under the Corporation on regular basis. It was contended before the learned Single Judge that the respondent No. 1 was the real employer as per the 1960 Act and in the alternative they should be treated as employees of the Corporation as per the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'CLRA Act').
4. Two returns were filed. It is relevant to state here that one return was filed stating the detailed facts and one controverting the facts precisely.The stance in the return that the respondent No. 1 is a registered establishment under Section 7 of the CLRA Act and it is empowered to engage contract labour from the licensed contractors under the provisions of the aforesaid Act. It was also putforth that the respondent No. 4 was awarded the contract after inviting the tenders and employed the petitioners and there is no relationship of master and servant between the petitioners and the respondent No. 1. It was also canvassed that the petitioners had initiated the conciliation proceedings under the 1996 Act and once they have taken recourse to alternative remedy available to them under the Industrial Law, they cannot invoke the extra-ordinary jurisdiction of this Court.
5. A return was filed by the respondent No. 4 supporting the stand of the respondent Nos. 1 to 3. It was putforth in the said return that respondent No. 4 is a partnership firm making job on contract basis in the Thermal Power Corporation and he has full control over the employees as the salaries of the petitioners is being paid by the partnership firm. It was the further stand of the said respondent that it had secured a licence under Section 12 of the 1970 Act and entitled to engage 75 workmen as per the said licence. It was further averred by him that the petitioners are not permanent employees and their services last during the continuance of the contract and it has come to an end after the term of the contract expired.
6. Before the learned Single Judge it was urged by the petitioners that the provisions of the 1960 Act are applicable to the respondent No. 1 inasmuch as in item No. 10 of the Notification dated 31-12-1960 there is mention that the said Act is applicable to electricity generation and distribution in which the Corporation is engaged and covered by all corners of the statute. It was also canvassed before the learned Single Judge that the employees were the employees of the principal employer and not that of contractor; and that there is relationship of employee and employer as established under the 1960 Act.
7. On behalf of the respondents, per contra, it was contended that the 1960 Act would not govern the field inasmuch as the respondent No. 1 is registered under Section 7 of the 1970 Act and respondent No. 4 holds the necessary licence under the said enactment and further the law made by the Parliament overrides the law made by the local authorities as the CLRA Act was made subsequent to the Act of 1960. The respondents placed reliance on the Entry Nos. 22, 23 and 24 of the concurrent list of Schedule VII of the Constitution to buttress their contentions that once legislation is passed by the Parliament in respect of any field covered under the concurrent list the same would have prevalence over the State law. It is relevant to state here that it had also been proponed before the learned Single Judge that the definition of the employee and employer under the 1960 Act can not be applied to the fact of the case at hand inasmuch as by the CLRA Act there was implied repeal of the definition that finds mention in the State law qua contract labour.
8. The learned Single Judge came to the conclusion that there is hardly any doubt that relationship of employee and the employer is established; that if the CLRA Act is applied the petitioners can not rely on the provisions of 1960 Act for enforcing their claim; that they being contract labour are not the employees of the respondent No. 1 within the meaning of Section 2(13)(a) read with sub-clause (e) of Section 2(14) of the Act, 1960 after coming into force of the CLRA Act. It is pertinent to state here that an alternative submission was proponed by the petitioners that command should be issued to the respondents to absorb the petitioners as its workmen as they are contract labours. The learned Single Judge treated the same to be vexed question as there was no Notification issued by the appropriate Government abolishing the contract labour under Section 1 of the CLRA Act and eventually declined to grant the said relief. The learned Judge further held that the law laid down in the case of Air India Statutory Corporation Etc. v. United Labour Union and Ors. etc., AIR 1997 SC 645, did not apply to the case of the petitioners. Ultimately the learned Single Judge accepted the contentions of the employer that the State law would not be applicable and further the petitioners are not entitled to the absorption under CLRA Act and dismissed the writ petition.
9. Mr. S.K. Gangele, learned Counsel appearing for the appellants has raised the following submissions :--
(a) The entire approach of the learned Single Judge in holding that the 1960 Act would not be applicable because of the CLRA Act is sensitively susceptible inasmuch as no Notification has been issued under Section 10 of the aforesaid Act and in the absence of any Notification the conclusion arrived at by the learned Single Judge is bound to founder;
(b) The opinion of the learned Single Judge that the special law overrides the general law and further the later Central law has an overriding effect over the State law as both stem from the same source of power, the concurrent list can not withstand scrutiny as the enactments are not attracted to the factual exposition in the case at hand and for applicability of the Central Act the issue of a Notification by the appropriate Government is the sine qua non;
(c) The learned Single Judge has fallen into error by not extending the benefit of the MPIR Act, 1960 in respect of the wages claimed by the appellants as such a claim is permissible to be adjudicated under the said Act as the petitioners were claiming parity and also putting for the a claim for minimum wages that has been fixed by the Slate Government;
(d) The CLRA Act in the absence of Notification does not override the provision of Industrial Disputes Act, 1947 and once the said Act is made applicable the Industrial Law in the State would get attracted by virtue of special provisions in the 1960 Act which categorically lays down which class of the dispute would be covered under the Industrial Disputes Act and which would be covered under the State law.
10. Mr. N.S. Kale and Mr. R.K. Gupta, learned Senior Counsel, sounding a contra note, contended as follows:--
(i) The order passed by the learned Single Judge is infallible as the learned Single Judge has scanned the anatomy of the provisions of CLRA Act which specially deal with the contract labours and once the provision envisaged therein covers the field no other legislation can entrench therein.
(ii) The petitioners can not claim to be employees of the principal employers and the question of absorption does not arise as the law laid down in the case of Air India Statutory Corporation (supra) has been overruled by the Constitution Bench judgment rendered in the case of Steel Authority of India Ltd. v. National Union Waterfront Workers, (2001) 7 SCC 1.
(iii) The petitioners being labours engaged by the contractor have nothing to do with the respondent Corporation and there tall claim to be regularised or to get the benefit under the State law, i.e., 1960 Act is impermissible. It is further submitted the learned Senior Counsel that the CLRA Act is both regulatory and prohibitory and as far as regulatory part is concerned it is in the realm of adjective law and no substantive right flows in favour of the workmen and in any case if any adjudication has to be done it is to be done within the parameters of the CLRA Act.
11. In essence the contentions canvassed is that the prohibitory provision of the State law are not attracted and in any claim between them is under the said statute deserve to be negatived as the Central Legislation applies in proprio vigore.
12. We may at this juncture unequivocally state that though the learned Counsel for the appellants urged with vehemence that the controversy should be put to rest by this Court but eventually he abandoned the said submission and restricted his arguments to the factum that the finding recorded by the learned Single Judge that 1960 Act would not be applicable is incorrect and this Court in intra-Court appeal should rectify the error and leave appellants to agitate their claims before the industrial forum in accordance with law. It is very fairly submitted by him that under the State law they can be treated to be the employees of the principal employer if the ratio of the decision rendered in the case of Basti Sugar Mills Ltd. v. Ram Uagar and Ors., AIR 1964 SC 355, is applied. It is also relevant to state here that Mr. Gangele has also submitted that the employees do come under the definition of the employee though they need not be directly connected with the main industry. To pyramid the said submission he commended us to the decision rendered in the case of the Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramanand and Ors., AIR 1972 SC 1598. Certain passages have been referred from Eid Parry (I) Ltd. v. Gomkar Murthy and Ors., (2001) 4 SCC 68 and Steel Authority of India Ltd. (supra), were read out to us.
13. Mr. Kale and Mr. Gupta in their turn stood embedded firmly on their stand that 1960 Act is not applicable and, therefore, the dictionary clause therein can not get attracted and in any case the petitioners can not raise the said contention when the Act is not applicable.
14. At this juncture it is obligatory to state that though initially arguments from various spectrums were canvassed before us, eventually the Counsel for the parties fairly conceded before us that there is no Notification under Section 10 of the CLRA Act. The primal issue that arises for consideration is that once there is no Notification what would be the logical consequences. We may hasten to state here that we are really not concerned ultimately what relief can be granted to the petitioners under what Act but we are really concerned with the controversy which statute would govern the case of this nature. We may further clarify that this Court in exercise of power under Article 226 of the Constitution of India or in this appeal can not grant relief. The fulcrum of the submissions of Mr. Gangele is that the petitioners can get wages equivalent to that of the employees of the Corporation. To appreciate the heart of the controversy it is appropriate to refer to the object of the CLRA Act. The said Act was enacted to regulate the employment of the contract labour in certain establishment and to provide for its abolition in certain circumstances and the matters connected therewith. Section 2 defines the appropriate Government, contract labour, contractor, controlled industry, establishment, 'prescribed', principal employer, wages, workman. Wages in the Act has been given the same meaning that has been assigned to it in Clause (vi) of Section 2 of Payment of Wages Act, 1936. Section 10 deals with the prohibition of employment of contract labour. In the present case we are not concerned with the prohibition of the contract labour inasmuch as the said section clearly postulate that there has to be a Notification in the Official Gazette by the appropriate Government. It has been categorically admitted before us that there has been no Notification. Section 21 deals with the responsibility for payment of wages. Sub-section (4) of the said section provides that if the contractor fails to make payment of wages within the preed 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. It is relevant to state here that the anatomy of the provision is scanned in proper perspective it is crystal clear that the contract labour can claim wages from the employer if the contractor fails to pay. In this context we may refer with profit to Section 30 of the Act it reads as under:--
"30. Effect of law and agreements inconsistent with this Act.--
(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract or service, or in any standing orders applicable to the establishment whether made before or after the commencement of this Act:
Provided that where under any such agreement, contract of service or standing orders the contract labour employed in the establishment are entitled to benefits in respect of any matter which are more favourable to them than those to which they would be entitled under this Act the contract labour shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that they receive benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any such contract labour from entering into an agreement with the principal employer or the contractor, as the case may be, for granting them rights or privileges in respect of any matter which are more favourable to them than those to which they would be entitled under this Act."
On a reading of the aforesaid section it is clear as day that though there is a overriding effect yet the beneficial provision of the statute is not extinguished. Quite apart from the above in the aforesaid statute there is no provision for any kind of adjudication in respect of contract labours. We may hasten to add once the Notification is issued under Section 10 of the Act the matter would be different and the decision rendered by the Apex Court in the case of Steel Authority of India Ltd. (supra) would be applicable in full force. In the absence of the Notification we have no hesitation in holding that other general relevant law would be applicable. To elaborate the provisions of the Industrial Disputes Act would be applicable. The CLRA Act does not destroy the jurisdiction "of the Industrial Court. The submission of Mr. Gangele is that under the State law certain types of cases have been taken away from the ambit and sweep of the Industrial Disputes Act and, therefore, the State law would be applicable. The appreciate the aforesaid submission it is seemly to refer to Section 110 of the M.P. Industrial Relation Act. The said provision reads as under :--
"110. Saving of certain provisions of the Industrial Disputes Act.-- Except Chapters V-A, V-B and V-C, and other provisions with respect of lay off, retrenchment compensation Special Provisions relating to lay off, retrenchment and closure in certain establishment and unfair labour practices nothing in the Industrial Disputes Act, 1947 (No. XIV of 1947) shall apply to any industry to which this Act is applied :
Provided that--
(a) any settlement arrived at or award made under the provisions of the Industrial Disputes Act, 1947 (No. XIV of 1947) (hereinafter in this Section referred to as the 'Central Act') in respect of any industry to which before the date of application of this Act, the Central Act was applicable shall be deemed to have arrived at or made under the provisions of this Act, unless and until superseded by any settlement or award arrived at or made under this Act;
(b) any proceedings pending on the date of application of this Act to an industry to which before such date the Central Act was applicable, shall be disposed of in accordance with the provisions of the Central Act."
In view of the aforesaid provision when an employee claims certain reliefs which are not saved they would be covered by the State law. As the Industrial Disputes Act, 1947 has not been overridden by the CLRA Act, by adopting similar logic it can safely be concluded that the provisions of the 1960 Act are not excluded. At this juncture we may refer with profit to Section 2 (35) of the M.P. Industrial Relation Act, 1960 which defines wages. It reads as under:--
"2. (35) "Wages" means remuneration of all kinds capable of being expressed in terms of money and payable to the employee in respect of his employment of work done in such employment and includes:--
(i) any bonus, allowances (including dearness allowance), reward or additional remuneration;
(ii) the value of any house accommodation, light, water, medical attendance or any other amenity or service;
(iii) any wages payable for the period of leave; (iv) any compensation payable for lay-off or retrenchment; (v) any contribution by the employer to any social security scheme, pension or provident fund; (vi) any gratuity payable on discharge; (vii) any travelling allowance or value of any travelling concession;
(viii) any sum paid or payable to or on behalf of an employee to defray special expenses entailed on him by the nature of his employment; and
(ix) any amount payable to an employee under any law for the time being in force for the protection of rights of employees or for regulating their relations with the employers, or under any award, settlement or agreement."
Section 31 of the aforesaid Act which occur in Chapter VI relates to notice of change. Section 51 which occurs in Chapter IX under the heading 'Arbitration' reads as under :--
"51. Reference of disputes to Labour Court, Industrial Court or Board.-- (1) Notwithstanding anything contained in this Act the Government may, if on a report made by the Labour Officer or otherwise it is satisfied that an industrial dispute exists, and--
(a) it is not likely to be settled by other means; or (b) by reason of the continuance of the dispute-- (i) a serious outbreak of disorder or breach of the public peace is likely to occur; or (ii) serious or prolonged hardship to a large section of the community is likely to be caused; or (iii) the industry concerned is likely to be seriously affected or the prospects and scope of employment therein curtailed; or (c) it is necessary in the public interest to do so;
refer the dispute or any matter appearing to be connected with or relevant to the dispute for arbitration to a Labour Court or the Industrial Court or a Board :
Provided that--
(i) no reference under this section shall be made to a Board without referring the matter to the parties and obtaining consent in writing of one of the parties to the dispute; and
(ii) no reference shall be made to a Labour Court under this Section if the matter in dispute is included in Schedule I or if the dispute is between employees and employees.
(2) A copy of the report sent by Conciliator under sub-section (2) of Section 43 and forwarded by the Chief Conciliator to the State Government under sub-section (3) of the said Section shall also be made available to the Labour Court, or the Industrial Court or the Board, as the case may be, before it proceeds to deal with the reference under sub-section (1)."
15. Section 61 deals with the powers of the Labour Court. Section 62 deals with commencement of proceedings. We have referred to the aforesaid provisions only to highlight that Mr. Gangele, learned Counsel appearing for the appellants has contended before us that a claim for wages would be maintainable before the Labour Court under the State law. It is urged by him that the Corporation has entered into certain agreements with the workmen of the company including probationers and the appellants are entitled for the same. It is putforth by him that in any view of the matter the petitioners can not be denied the minimum wages. At this juncture we may refer to two decisions cited before us. In the decision rendered in the case of Sheo Narayan Choudhaty and Anr. v. Shri A. Kanwadikar, Member Judge, Division Bench referred to the concept of change mode of payment and wages and eventually in Paragraphs 7 and 11 came to hold as under:--
"7. The petitioners' contention is that 'wages including the period and mode of payment' is an item specified in Schedule I (item No. 9 of Schedule I); and that, therefore a reduction in the wages of an employee would be an industrial matter falling under Schedule I and as their wages were reduced by the employer without following the procedure laid down in sub-section (1) of Section 31, the reduction in their wages was an illegal change within the meaning of Section 34 for the redress of which they were entitled to approach the Labour Court under Section 61 of the Act. On the other hand, it is contended on behalf of the employer, that is the respondent No. 3, that item No. 9 of the Schedule I relates to wages of employees as a class and does not cover wages of an individual employee; that the question of the reduction in the petitioners wages falls under item No. 6 of Schedule II, namely, 'employment including (i) reinstatement and recruitment; (ii) unemployment of persons previously employed in the industry concerned'; and that, therefore, if the petitioners were in any way aggrieved by the reduction effected in their wages, they should have approached the Labour Court after making an approach as no such approach, the Labour Court had no jurisdiction to entertain their applications.
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11. The matters which are of particular interest to individual employees are enumerated in Schedule II, and if a change in respect of any such matter is desired by an employee, then he can approach the Labour Court for that purpose after complying with the requirements of the proviso to Section 31(3) Item No. 6 of Schedule II refers to 'Employment including-- (i) reinstatement and recruitment; (ii) unemployment of persons previously employed in the industry concerned". The term 'employment' as used in item No. 6 in Schedule II is wide enough to include any matter relating to wages of an individual employee. It is not confined only to matters relating to bare state of employment. Section 31(3) no doubt gives to a representative of employees also the right to move the Labour Court for a change in respect of an industrial matter specified in Schedule II. But there may be cases in which the representative employee, and, therefore, the Legislature has expressly conferred a right upon the employee who has a grievance in regard to matters contained in Schedule II to move the Labour Court for redress. The matter of reduction in the petitioners' wages clearly fee under item No. 6 of Schedule II. That being so, they could move the Labour Court for a change in respect of that matter only after approaching the employer with a request for a change in accordance with the proviso to Section 31(3). In the present case, as admittedly no such approach was made, the Labour Court had no jurisdiction to entertain the petitioners' applications. The proviso to Section 31(3) distinctly says that no such application shall lie unless the employee has in the prescribed manner approached the employer with a request for a change and no agreement has been arrived at in respect of the change within the prescribed period. In our opinion the Industrial Court was right in dismissing the petitioners' applications."
16. Another decision which has been cited before us in the case of Deen Dayal v. The Factory Manager, Gwalior (M.P. No. 148/1981). In the said case the Division Bench was dealing with the claim of 25 employees in the backdrop that they were praying for rise of wages for a class of employees which had been rejected by the Labour Court. It was held by the Labour Court that the case is one of a demand of class falling under item No. 9 of Schedule I of the M.P. Industrial Relations Act, 1960 and hence, item No. 6 of the Schedule II relating to claim for wages by an individual was not attracted. The Labour Court further recorded a finding that the remedy of the applicants is to raise a dispute before the Industrial Court under Sections 51 and 52 and obtain an award. The Division Bench addressed itself to the controversy and in Paragraphs 3 and 4 held as under :--
"3. The argument in support of this petition is that the petitioners are entitled to wages equal to the wages paid to other Mendors working in the establishment and, therefore, it was a case of an illegal change and the matter was within the competence of Labour Court. We are unable to accept this contention. It has been found that the petitioners form a class of workers themselves different from others and the claim relates to fixing of a wages of a class and does not amount to illegal change. This finding, in our opinion, is correct for the reasons recorded by the Labour Court and the Industrial Court and we need not repeat them.
4. The learned Counsel for the petitioners relied upon a decision of this Court in Sheo Narayan v. A.W. Kanwadikar (1966 MPLJ 1105). That case relates to rejection of wages to a particular employee and it was, therefore, held that the case was not governed by item No. 9 of Schedule I and the deduction was, therefore, held to be illegal change. We have shown that the Labour Court and the Industrial Court have reached a conclusion, and in our opinion rightly, that the present dispute was raised by a certain class of employees for fixing the wages of employees belonging to that class. This decision, therefore, is not in point."
17. On a perusal of both the decisions we are of the considered opinion that there is no conflict between the two. In the case of Sheo Narayan (supra) the Division Bench was dealing with the controversy relating to rejection of wages of a particular employee and held that the case was not covered by the item No. 9 of Schedule I. In the case of Deen Dayal (supra), the Division Bench was dealing with the dispute of a class which falls, as is manifest from the said decision, in the item No. 9 of Schedule I. At this juncture, we think it condign to refer to item No. 9 of Schedule I. It deals with the wages including the period and mode of payment. Item No. 6 of Schedule II deals with the employment, reinstatement and recruitment and unemployment of persons previously employed in the industrial concerned.
18. In this regard we may also refer to the item No. 1 of Schedule II which deals with the propriety and legality of an order passed or action taken by an employer acting or purporting to act under the Standing Orders or any rules or regulations governing the conditions of the service of employees. On a reading of the Schedule we find that there is certain distinctions. When a dispute arises relating to class wages, rationalisation of other efficiency of work, charges and such other matters they are to be dealt with as per Schedule I and hence they can raise a dispute before the Industrial Court under Sections 51 and 52 and obtain an award. As far as Schedule II is concerned it deals with the employment of an individual including reinstatement and recruitment and unemployment of persons previously employed in the industry concerned. In the case of Sheo Narayan (supra), the Division Bench understood the term employment used under the Schedule II relating to wages of individual employee. We have already reproduced the definition of wages as defined under Section 2 (35) of the Act. Hence, we are inclined to think that there can be reconciliation in the both the decisions when there is a dispute with regard to the wage structure qua class of employee they have to move Labour Court as per the provisions of Sections 51 and 52 of the Act and if it is individual the individual can move the Labour Court under Schedule II. Needless to emphasise that any action can be taken after complying the provisions of Section 31(3) of the Act. We may also hasten to add that as the petitioners have been prosecuting the remedy in this Court they would be getting the benefit of that period to approach the Labour Court as stated by us earlier on.
19. Before we part with the case we hereby clarify that we have not expressed any opinion with regard to merits of the case. We have said so as Mr. Kale and Mr. Gupta have submitted that the finding recorded by the learned Single Judge would go a long way to frustrate the contentions putforth by the Management. We have decided only with regard to jurisdiction of the forum and as we have not concurred with the finding of the learned Single Judge on this score the judgment passed by him has to be set aside and all other findings recorded by him in favour of the employees have also to succumb as there can not be piece meal lanceting of the order of the learned Single Judge in a case of this nature. All contentions except what we have not decided hereinabove are left open.
20. Consequently the appeals are allowed to the extent indicated above. However, taking note of the peculiar facts and circumstances of the case there shall be no order as to costs.