Indian Kanoon - Search engine for Indian Law

6. Sri. V.S. Naik, learned Counsel appearing for respondents-1 to 121, submitted, that there is no dispute that these respondents are the contract Page 0861 labours, engaged by respondent No. 122. He also submitted that in the event the contractor fails to discharge, his obligation or payment of statutory minimum wages, in terms of the contract, the principal employer is liable to pay said amount and in this regard, he referred to Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'CLRA Act') and pointed out, that under Section 21, primarily the Contractor is responsible for payment of wages to each of the worker employed by him, and the principal employer is required to engage his representative in terms of Section 21 (2) of CLRA Act to be present at the time of disbursement of wages by the Contractor and it is the duty of the representative to certify the amount paid as wages in the manner as prescribed. A duty is also cast on the contractor to ensure the disbursement of wages in the presence of authorised representative of the principal employer. Further, he emphasized on Sub-section (4) to Section 21 of CLRA Act, and submitted, that 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. Relying on the said provision, learned Counsel for respondents-1 to 121 submitted that Section 21 creates a liability on the principal employer to ensure the proper payment of wages to the contract labourer. It also creates liability on the principal employer to make the payment of wages in terms of the contract, in the event if the contractor fails to make payment. Relying on these provisions, learned Counsel for the respondents submitted that the contract labour for the purpose of recovery of the minimum wages in terms of Sub-section (4) of Section 21 of the CLRA Act has to be treated as workmen and in this regard, he relied on a decision of the Apex Court reported in 1985(1) LLJ 428 in the matter of BHEL Workers' Association, Hardwar and Ors. v. Union of India and Ors. He relied on para-6 of the said judgment and submitted, that no distinction can be made against contract labour. Contract labour is entitled to the wages, holidays, hours of work and conditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the said or similar kind of work. They are entitled for recovery of their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate Industrial and Labour Laws. Relying on para-6 of the said judgment, learned Counsel for respondents-workmen submitted that Section 21(4) of CLRA Act statutorily creates liability on the principal employer to ensure the payment of wages to the contract labour and no distinction can be made between the contract labour or the workmen directly employed by the principal employer in the matter of recovery of wages, which is a statutory liability created on the principal employer. In this regard, he further referred to another decision of the Delhi High Court reported in 1987(2) LLJ 512 in the matter of Indian Airlines v. Central Government Labour Court, New Delhi and Ors. and referred Page 0862 to para-2, and submitted that the Delhi High Court following the decision of the BHEL Workers' Association case, has held that the workmen employed by the contractor are entitled to recover their wages and their conditions or service in the same manner as the workers employed by the principal employer under the appropriate Industrial and Labour Laws. He also submitted that if the workers directly employed by the petitioner can claim the wages due to them by moving an application under Section 33-C(2) of the Act, the workers employed by the contractors are also entitled to claim wages due to them by moving an application under said provision.

7. He also relies on a decision reported in 1985 LAB. I.C. 1185 in the matter of Prabhat Enlarging Works, Nagpur v. Prabhakar Antaramji Bagmare and Ors. and submitted, that the difference of minimum wages or the minimum wages can be recovered by invoking the provision under Section 33C(2) of the Act.

8. The learned Senior Counsel Sri. Kasturi in reply, pointed out from the judgment reported in 1996(5) SLR 650 in the matter of Hindustan Steelworks Construction Ltd., v. The Commissioner of Labour and Ors. and submitted, that the principal employer Under Section 21(4) of the CLRA Act is liable only to the agreed wages and not any other wages.

Page 0863

11. The licence granted under the provisions of CLRA Act before the Labour Court is produced as W-3 and Clause 4 of the said license reads as under:

4. The rates of Wages payable to the workmen by the contractor shall not be less than the rates prescribed for the Schedule of employment under the Minimum Wages Act, 1948, where applicable and where the rates have been fixed by agreement, settlement or award, not less than the rates fixed.

12. By reading of this clause and also Clause 4 of the contract, makes it clear, that there is a contract between the petitioner and the respondent No. 122 for payment of minimum wages to the contract labourer. The contractor under Section 21 of the CLRA Act, is required to make the payment of wages to all the contract labourer and such payment has to be ensured by the petitioner - Management by appointing/engaging a nominee or representatives in terms of Section 21(2) of the CLRA Act. The obligation of the contractor is to see, that the wages has agreed are paid to the contract labourer. What is important to note here is, that, if the contractor fails to make such payment within the prescribed time or make short payment, the liability is fixed on the principal employer to make the payment of wages in full or unpaid balance due. By reading of these provisions, makes it clear that there is a dual obligation of the principal employer. One is that, the principal employer to ensure that proper wages are paid to the contract labourer and second in case, if there is a failure to make the payment of the wages in terms of the contract to the contract labourer, the principal employer is liable to make the payment, and recover the same from the contractor.

13. If the principal employer is statutorily liable to make the payment to the contract labourer, then the amounts due to the contract labourer becomes the statutory liability, and it becomes legally recoverable due.

14. If the contract labourer is entitled to recover from the said amount from principal employer in terms of Section 21(4) of the CLRA Act, then the question that arises for consideration, is as to whether the contract labourer can make a claim petition under Section 33-C(2) of the Act. In the light of the decision of the Apex Court in the matter of B.H.E.L., Workers' Association, Hardwar (supra), there is no insidious distinction between the contract labourer and the workmen for the purpose claiming service benefits, which he is entitled, such as wages, holidays, hours of work and conditions of service. If the contract labourer is entitled to the similar terms of the conditions on par with the workmen, then they cannot be denied the benefit to which in law that they are entitle. Payment of wages is statutory liability. The Delhi High Court in a reported decision referred to above in the matter of Indian Airlines (supra) has reiterated the view taken by the Apex Court and has held, that the workmen employed by the contractor are entitled to recover the dues and the conditions of service in the same manner as the workers employed by the principal employer, which means the workers directly employed by the principal employer, who can claim the wages very due under Section 33-C(2) then the workers or the labourers Page 0864 employed by the contract are also entitled to recover the amount under Section 33-C(2) as they are also placed in the same possession as that of the workmen for the purpose of recovery of the wages, which has become statutory due and for which the principal labourer is also statutorily liable. To this extent in my view, the decision of the Delhi High Court relying on the decision of the Apex Court clearly establishes that even the contract labourers, who were in law entitle to recover the amount in due from the principal employer, can maintain the claim petition under Section 33-C(2).