REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 885-886 OF 2009 (Arising out of SLP (C) Nos. 15455-15456 of 2007)

Panki Thermal Station and Anr.   .... Appellants

Versus

Vidyut Mazdoor Sangthan and Ors. ....Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. This is second journey of the appellants to this Court. A Writ Petition

No.47303  of  1999  was  filed  by  the  employers  who  are  the  present

appellants questioning correctness of the order dated 6.8.1999 passed by the

Labour Commissioner (in short the ‘Commissioner’) under Rule 25(2)(v)(a)

of  the  U.P.  Contract  Labour  (Regulation  and  Abolition)  Rules,  1975  (in

short the ‘Rules’). The workmen had challenged the award dated 30.7.1999

and Writ Petition No.47303 of 1999 was disposed of by the High Court by

order dated 11th July, 2003. The present appellants challenged the judgment

of the High Court  in Civil  Appeal  No.1734 of 2004. By judgment dated

15.9.2005, this Court set aside the order holding that the High Court ought

to have taken both the writ petitions together as the issue was the same. The

High Court by the impugned judgment held that the award of the Industrial

Tribunal (3), U.P., Kanpur (in short the ‘Tribunal’) dated 30.7.1999 did not

require  any  interference  and  the  writ  petition  filed  by  the  appellants

deserves to be dismissed.  The Tribunal had answered the reference in the

following terms:

“On the basis of the pleadings of the parties and evidence on record my conclusion to the reference is that the action of the employer  No.1  in  not  regularizing  the  services  of  118 employees mentioned in the reference is justified and valid and that the workmen concerned are not entitled for any relief.”    

3. The High Court noted that there were two orders one passed by the

Commissioner  dated  6th August,  1999  which  was  the  subject  matter  of

challenge in writ petition No.47303 of 1999 and the other was passed by the

Tribunal. The Commissioner by order dated 6.8.1999 held that on the basis

of the pleadings and materials on record, it  is apparent that the workmen

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were  working  in  the  establishment  for  several  years  and  refusal  to  pay

similar pay as being paid to regular  employees had no legal justification.

The Commissioner,  therefore,  directed that  the  118 workmen in question

should  be  paid  similar  wages  as  was  being  paid  to  unskilled  regular

workmen alongwith D.A. and other allowances on the principle of equal pay

for equal work.  

4. So  far  as  the  award of  the  Tribunal  is  concerned,  the  High  Court

noted that in view of the decisions of this Court in  Secretery, H.S.E.B. v.

Suresh  and  Ors. (1999  (3)  SCC  601)  and  BHEL  Workers  Association,

Hardwar and Ors. v. Union of India and Ors. (1985 FLR (50) 205) though

the workmen had registered under the provisions of U.P. Contract Labour

(Regulation  and  Abolition)  Act,  1970  (in  short  the  ‘Act’)  they  were

definitely working directly under the employer and that each one of them

has  worked  for  more  than  240  days  in  a  previous  calendar  year  and,

therefore, the Commissioner’s order does not suffer from any infirmity.

5. According to learned counsel for the appellants Rule 25 (2)(v)(a) of

the Rules require the Commissioner to analyse the pleadings, evidence and

documents placed on record and to arrive at a conclusion as to whether the

workmen are performing the same duties  as have been performed by the

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regular employees.  In the order passed by the Commissioner no discussion

about  the  manner  of  work  performed  by  the  workmen  and  regular

employees  was  given.  There  was  also  no  consideration  in  respect  of

workman Rajesh Kumar Pandey and 12 other workmen who were working

in  the  Field  Hostel  No.1.  Since  the  Commissioner  had  passed  an  order

without considering the pleadings and documents and wrongly shifted the

burden  of  proof  to  the  appellants,  whereas  it  has  to  be  proved  by  the

employees that they were doing the similar work like regular employees, the

order of the Commissioner is unsustainable.  Further, the direction to ensure

payment of salary, D.A. etc. ought not to have been given.

6. The  Commissioner  failed  to  consider  the  difference  between  the

labour  contract  and  the  job  contract.  The  labour  contract  is  entered  for

supply of labour and the labour so supplied   work under the directions of

the  employer  whereas  in  the  present  case  the  work  was  given  like  coal

handling and cleaning to the contractor for a lump sum amount for a certain

period. Neither the number of employees was fixed nor they were under the

control of the appellants. Therefore, Rule 25 has no application.  

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7. The High Court mixed up issues and without considering the order of

the Commissioner on merits dismissed the appeal.

8. In response,  learned counsel for the respondents submitted that the

proviso to Rule 25 (2)(v)(a) casts a duty on the Commissioner to examine

the pleadings and documents on record and find a decision regarding the

nature  of  work.  In  the  present  case,   the  details  of  work  done  by  two

categories  of  workers  were  placed  on  record,  whereas  the  principal

employer or the contractors did not produce any material  at  all  excepting

mere denial of the similarity of work.  It is submitted that under Section 21

(4) of the Act though primary responsibility of the payment of wages is on

the contractor, in case the contractor fails to make payment of wages then

the principal employer shall be liable to make payment of wages in full or of

unpaid balance to the contract labour.   

9. The  award  of  the  Tribunal  denied  the  relief  of  regularization

overlooking the fact that there was tripartite agreement.  

10. The pivotal provision for resolving the dispute is Rule 25 (2)(v)(a).

The same reads as under:

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“In cases where the workmen 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 Labour Commissioner, U.P. whose decision shall be final.”

11. A bare reading of the provision makes the position clear that in cases

where the workmen employed by the contractor perform the same or similar

kind  of  work  as  employed  directly  by  the  principal  employer  of  the

establishment the wages rates, holidays, hours of work and other conditions

of  service  of  the  workmen  of  the  contractor  shall  be  the  same  as  are

applicable to principal employer.  In case of disagreement with regard to the

type of work the same shall be decided by the Commissioner.

12. It is to be noted that there was no prayer made by the claimants for

equal pay.  No material was placed regarding actual nature of work. Yet the

Labour Commissioner recorded as follows:

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“….What  is  the  main  difference  in  the  work  done  by these contract labour and the regular employees has not been clarified. Clearly the work of cleanliness done by the  employees  is  similar  and  the  same  position  is  in respect of unskilled employees and the contract labour.’  

13. The  High  Court’s  judgment  is  a  bundle  of  confusions.   In  the

Commissioner’s order there is no discussion as to how the Commissioner

arrived  at  the  conclusion  about  similarity  of  work.   The  Commissioner

ought to have considered on the basis of pleadings and materials placed by

the parties.  The Commissioner was required to arrive at a conclusion that

the workmen had been performing the same duties as are being performed

by regular employees. The Commissioner’s order does not reflect that these

aspects were considered. As noted above, the conclusions of the High Court

are  bundle  of  confusion.  The  comparison  of  the  following  conclusions

clearly shows as to how the High Court’s judgment lacks clarity:  

“Nothing has been brought to the notice of this Court on behalf of the petitioner that these findings arrived at by the Tribunal to the  effect  that  concerned  workmen  were  employed  through contractors registered under the provisions of 1975 Act referred to above suffers from any error much less an error apparent on the face of record which may warrant interference under Article 226 of the Constitution of India.

xxx xxx xxx

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…So far as the claim application is  concerned there is categorically  recorded  finding  that  the  labour  employed through contractor are always employed for a fixed period and are  continuously  working  for  more  than  240  days  in  the previous calendar year.

In  this  view  of  the  matter,  even  though  they  are registered  under  the  provision  of  U.P.  Contract  Labour (Regulation  and  Abolition)  Act,  1970  they  are  definitely working directly under the employer and it is proved beyond doubt  on  the  evidence  on  record  that  everyone  of  them has worked more than 240 days in previous calendar year.      

14. As neither the Labour Court not the High Court addressed to the basic

issues, the impugned judgment of the Labour Court as affirmed by the High

Court cannot be maintained and are set aside. The matter is remitted to the

Commissioner to decide the matter afresh.  

15. The appeals are allowed to the aforesaid extent.  

......................................................J. (Dr. ARIJIT PASAYAT)

……..………….............................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi

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February 11, 2009

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