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CASE NO.: Appeal (civil)  8601 of 2001

PETITIONER: Hindustan Paper Corporation Ltd.

RESPONDENT: Kagajkal Thikadar Sramik Union & Ors.

DATE OF JUDGMENT: 14/12/2007

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      This appeal is directed against the final judgment and  order dated 01.08.2000 passed by the Division Bench of the  Gauhati High Court in Writ Appeal No. 195 of 1996 whereby  the High Court allowed the writ appeal, inter alia, directing the  appellant to pay equal and similar wages and other benefits to  the contract labourers who work in the finishing job under  Rule 25 (2) (v) of the Contract Labour (Regulation and  Abolition) Assam Rules, 1971 (hereinafter called the \023Rules\024).  

2)      Brief facts in a nut shell are as follows:      The contesting 1st respondent herein is a registered Trade  Union having its registered office at Panchgram District  Hailakandi, Assam on behalf of 34 contract labourers hired by  a contractor for the appellant-Hindustan Paper Corporation  Ltd. (Cachar Paper Mill) (in short the \023Mill\024) filed a  representation before the Labour Officer/Inspector of Assam,  Hailakandi through its president for implementation of Rule  25 (2) (v) (a) of the Rules vide their letter dated 13.01.1992.   The Labour Officer and Inspector on the basis of the said  representation called for an explanation/reply from the said  Mill.  Since there was no response, the Labour Officer sent  another letter dated 17.09.1992 and requested the Mill to  submit its comments on the said representation.  In the  absence of any comments, the Labour Officer proposed to hold  an inquiry on 11.03.1993 and the same was communicated to  the Mill.  Again the date of enquiry was fixed to 29.04.1993.   The Labour Officer conducted the inquiry and forwarded a  letter to the Mill on 04.06.1993.  On receipt of the copy of the  said inquiry report, a reply was sent by the Mill to the Labour  Officer contending that the contract labour and the regular  labour are on two different footings and there is a reasonable  classification between them.  The Labour Officer, in his letter  dated 02.07.1993 forwarded the reply of the Mill to the Trade  Union thereby seeking comments on the said letter.   Thereafter, the Labour Officer, by his letter dated 09.09.1993  forwarded all the materials to the Labour Commissioner,  Assam for final decision.  On receipt of the same, the Labour  Commissioner directed the Assistant Labour Commissioner,  Silchar to determine the nature of work in the finishing house  of the Mill at Panchgram by regular workers and contract  labourers.  Pursuant to the same, the Assistant Labour  Commissioner visited the Mill and after examining the nature  of the job being performed by the contract labourers and  regular employees forwarded his report by letter dated  25.07.1994.  The Labour Commissioner, after examining the

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report submitted by the Assistant Labour Commissioner,  Silchar passed an interim order dated 03.02.1995, thereby  allowing the existing condition of wages and other facilities to  continue till further evaluation and a final settlement is  arrived in regard thereto.  Aggrieved by the said order, the  Trade Union filed Civil Rule No. 1359 of 1995 before the Single  Judge in the Gauhati High Court.  The learned Single Judge,  by his order dated 13.02.1996, dismissed the said writ  petition.  The Trade Union filed a Writ Appeal No. 195 of 1996  before the Division Bench.  By order dated 01.08.2000, while  examining the validity of the interim order passed by the  Labour Commissioner, the Division Bench allowed the  representation of the Trade Union on merits and directed the  appellant-Mill to give equal pay and other benefits to the  contract labourers as that of regular employees.  Questioning  the said order, the Mill has filed the above appeal.  

3)      Heard Ms. Shruti Choudhary, learned counsel appearing  for the appellant-Mill and Mr. D.K. Agarwal, learned senior  counsel appearing for the first respondent-Trade Union.

4)      The only point for consideration in this appeal is whether  the order of the Division Bench is justifiable when the Labour  Commissioner passed an order as an interim arrangement for  continuing the existing conditions of wages and other facilities  till final settlement is arrived at?

5)      It is seen from the materials placed that on the basis of  the representation received from the Union for payment of  equal wages on par with regular employees, the Labour  Commissioner, Gauhati instructed the Assistant Labour  Commissioner to submit a report after personal verification.   Till final decision being taken on the basis of the report and  other materials as an interim arrangement, the Labour  Commissioner directed that the \023existing conditions of wages  and other facilities continue till on circumspection and further  evaluation a final settlement is arrived at in this regard later\024.   The above direction makes it clear that it is only an interim  arrangement till final decision being taken.  When this was  challenged by the Union before the learned Single Judge, the  learned Judge based on earlier decisions of this Court and  finding that the question whether the works done by the  contract labourers is the same or similar as done by the  workmen directly employed is a matter to be decided by the  Labour Commissioner rightly dismissed the writ petition filed  by the Union.  However, the Division Bench after knowing of  the factual position including the fact that Labour  Commissioner has called for a report and the issue is under  consideration, stepped into the shoes of the said authority  (Labour Commissioner) perused the materials from the records  including the report of the Assistant Labour Commissioner,  Silchar and arrived at a final conclusion on merits and  directed the appellant-Mill to provide all the benefits to the  contract labourers on par with regular workers as if it is the  appropriate authority.  It is made clear that we are not under  estimating the claim/entitlement of the contract labourers.   The point is that when the competent authority, i.e., Labour  Commissioner, ceased the matter, instructed his subordinate  to inspect the mill and submit a report with regard to the  actual state of affairs between the contract labourers and the  regular employees of the Mill, we are of the view that the  Division Bench ought not to have ventured roving inquiry and  decide the issue leaving the appropriate authority in a lurch.   The proper course as held by this Court on several occasions  is to direct the authority concerned to decide the issue

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expeditiously after affording opportunity to both parties.   Though, the learned Single Judge has rightly disposed of the  writ petition and in view of the fact that the matter has been  ceased by the Labour Commissioner, the Division Bench  committed an error in deciding the same on merits and  issuing positive direction to the Mill as if it is a proper  authority.  It is settled position that before sorting out the  controversy, the authority is free to take interim arrangement  pending final decision and in such matters it is not desirable  for the courts to interfere and take a decision as if there is no  competent authority for the same.  6)      It is worth while to refer to the decision of this Court in  BHEL Workers Association, Hardwar and Others Vs.  Union of India and Others, (1985) 1 SCC 630 which is  identical to the issue before us.  The following conclusion in  para 6 are relevant: \023\005 \005 \005 If there is any dispute with regard to the type of  work, the dispute has to be decided by the Chief Labour  Commissioner (Central). It is clear that Parliament has  not abolished contract labour as such but has provided  for its abolition by the Central Government in  appropriate cases under Section 10 of the Contract  Labour (Regulation and Abolition) Act, 1970. It is not for  the Court to enquire into the question and to decide  whether the employment of contract labour in any  process, operation or other work in any establishment  should be abolished or not. This is a matter for the  decision of the Government after considering the  matters required to be considered under Section 10 of  the Act. Similarly the question whether the work done  by contract labour is the same or similar work as that  done by the workmen directly employed by the principal  employer of any establishment is a matter to be decided  by the Chief Labour Commissioner under the proviso to  Rule 25( ii )(v)(a). \005 \005 \005\024          We are in respectful agreement with the said decision.

6)      We are satisfied that the Division Bench was not justified  in passing the impugned order and the same deserves to be  set aside, accordingly we do so.  However, we direct the Labour  Commissioner to decide the issue raised by the Union by way  of representation de hors to the observation made by the  Division Bench and pass an order within a period of three  months from the date of receipt of copy of this judgment after  affording opportunity to both parties.  It is made clear that we  have not expressed anything on the merits of the claim of both  the parties.   

7)      In the light of the above discussion, the civil appeal is  allowed.  No costs.