Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1989 OF 2002

U.P. Rajya Vidyut Utpadan Board & Another          …Appellants

Versus

Uttar Pradesh Vidyut Mazdoor Sangh     …Respondent

JUDGEMENT

R.M. Lodha, J.

This appeal by special leave is directed against the  

judgment dated August 3, 1999 passed by the High Court of  

Judicature at  Allahabad whereby special  appeal  preferred by  

the present appellants against the judgment and order dated  

May 14, 1999 passed by the Single Judge has been dismissed.  

The Single Judge dismissed the writ petition preferred by the  

present  appellants  challenging  the  order  dated  October  24,  

1998 passed by the Labour Commissioner, U.P.

2. Uttar  Pradesh  Vidyut  Mazdoor  Sangh  (first  

respondent—hereinafter  referred  to  as  ‘Union’,)  made  an  

application under Rule 25(2)(v)(a) of the Uttar Pradesh Contract

Labour (Regulation and Abolition) Rules, 1975, (‘Rules, 1975’,  

for  short)  before  the  Labour  Commissioner,  Kanpur  praying  

therein that order be passed for payment of the same wages  

and  other  facilities  in  favour  of  contract  labour  working  in  

second filtration plant of Anpara Thermal Power Project as are  

being  paid  by  the  employer  to  its  employees  in  the  main  

filtration plant.  The Union set up the case that there are two  

filtration plants in Anpara Thermal Power Project; out of these  

plants  in  one plant  (for  the sake of  convenience,  hereinafter  

referred to as ‘main plant’)  regular employees are employed by  

the Electricity Board while in the other filtration plant, contract  

labour is being employed through contractors. In both  filtration  

plants, the nature of work done by all these employees is same  

but the workers are paid their wages at different rates. Twenty-

six workers, who have been directly appointed by the Electricity  

Board,  are  being  paid  regular  pay  scale  with  permissible  

allowances etc.  while  twenty-eight  contract  workers  engaged  

through two contractors are paid at the rate of Rs. 61/- per day  

for unskilled work and Rs. 71.50 per day for semi-skilled work.  

The Union asserted that work in both the filtration plants is of  

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the same nature and regular.  

3. The  present  appellants  resisted  the  application  

made by the  Union  on  diverse  grounds.  That  there  are  two  

water  filtration  plants  in  Anpara  Thermal  Power  Project  was  

admitted. However, it was submitted that main  filtration plant is  

permanent having the capacity of treating three million gallons  

water  per day while the second one is temporary having the  

capacity  of  treating  three  lac  gallons  per  day.  It  was further  

submitted that from permanent filtration plant, supply is given to  

the entire  colony and ITI  passed/trained operators  are  being  

appointed by the department to run it; these appointments are  

made by the selection committee through selection procedure  

on the basis of eligibility and advertisement by the Board. The  

permanent plant runs 24 hours; it has six pumps and each has  

the capacity of 170 H.P.  The chemicals are mixed at this plant  

mechanically  and  for  its  operation  eligible  and  responsible  

employees are required. In the other filtration plant which is of  

temporary nature, employees are engaged through contractor  

for its operation. The temporary filtration plant is operated by  

skilled  and  semi-skilled  employees  who  are  engaged  by  

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contractors. These workers are paid wages at the rate declared  

by the labour department. The appellants set up a specific case  

before  the  Labour  Commissioner  that  the  work  of  the  

employees in the two filtration plants cannot be compared and,  

therefore,  the  employees  working  in  the  temporary  filtration  

plant are not entitled to the same wages and facilities as are  

being  paid  to  the  regular  employees  working  in  the  main  

filtration plant.

4. The  Labour  Commissioner,  however,  was  not  

persuaded by the reply submitted by the Electricity Board and  

vide his order dated October 24, 1998 held that the contract  

labour in temporary filtration plant should be paid the wages at  

the rate admissible to the workers in the main plant.

5. The present appellants challenged the order of the  

Labour  Commissioner  by  filing  writ  petition  before  the  High  

Court of Judicature at Allahabad. The Single Judge dismissed  

the  writ  petition  on  May  14,  1999  holding  that  the  findings  

recorded by the Labour Commissioner required no interference.

6. The  special  appeal  preferred  by  the  present  

appellants  before  Division Bench was held  not  maintainable.  

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Even on merits, the Division Bench held that the view of the  

Single Judge did not commend itself for interference in view of  

the order passed by the Labour Commissioner holding that the  

employees employed through the contractor  were performing  

same or similar kind of work as the workmen directly employed  

by the appellants.

7. We  heard  Ms.  Shobha  Dikshit,  learned  Senior  

Counsel for the appellants and Mr. J.C. Batra, learned Senior  

Counsel for the Union.

8. Rule 25(2)(v)(a) of the Rules, 1975 provides that 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 by the contractor shall be the same as  

applicable to the workmen directly  employed by the principal  

employer of the establishment. It further provides that in case of  

any  dispute  with  regard  to  the  type  of  work,  the  Labour  

Commissioner,  Uttar  Pradesh shall  decide the same and his  

decision shall be final.  

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9. It  would  be,  thus,  seen  that  Rule  25(2)(v)(a)  

incorporates  the  principal  of  ‘equal  pay  for  equal  work’.  By  

statutory provision, it is mandated that the employees engaged  

by the employer through contractor who perform the same or  

similar kind of work must be paid the same wages and facilities  

as  being  paid  to  the  employees  employed  directly  by  the  

principal  employer  of  the  establishment.  In  case  of  any  

controversy  as  to  whether  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 Labour Commissioner has been empowered  

to resolve such dispute.

10. Nature of work, duties and responsibilities attached  

thereto are relevant in comparing and evaluating as to whether  

the workmen employed through contractor perform the same or  

similar kind of work as the workmen directly employed by the  

principal employer.  Degree of skill and various dimensions of a  

given job have to be gone into to reach a conclusion that nature  

of duties of the staff in two categories are on par or otherwise.  

Often the difference may be of a degree. It is well settled that  

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nature of work cannot be judged by mere volume of work; there  

may  be  qualitative  difference  as  regards  reliability  and  

responsibility.

11. In  the  instant  case,  except  recording  that  the  

contract  labour  engaged  through  contractors  is  doing   the  

similar  work,  the  Labour  Commissioner  in  its  order  has  not  

adverted to the evidence and material placed before it. The only  

consideration by the Labour Commissioner in its order dated  

October 24, 1998 is as follows :

“I have fully considered all the facts and perused the records  and documents produced by the parties. On the basis of the  facts submitted, there is no reason before me on the basis of  which the contract labour engaged through contractors who  is  working  the  similar  work,  should  be  given  wages  at  a  lesser rate than the permanent employees.  Only minimum  qualification could be the basis for the worker of  both the  plants  to some extent.  Therefore,  considering all  the facts  my  opinion  is  that  28  contract  labour  in  temporary  plant  through  contractor  M/s.  Eastern  Engineering  Corporation  and M/s. Kheroni Constructions Company should be paid the  wages  at  the  rate  admissible  to  the  workers/labours  in  permanent  plant.  This  is  my  decision  in  respect  of  application……”  

12. As  a  matter  of  fact,  the  present  appellants  

specifically  set out  the details  of works in two water filtration  

plants thus :

“There are two water filtration plants in Anpara Project. One  is permanent having the capacity of treating 3 million Gallon  

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water per day (3 M.G.D) or 30 lacs gallon per day and the  second  is  temporary  having  capacity  of  treating  3  Million  Gallons per day i.e. 3 lacs gallons per day. From permanent  treatment  plant,  water  supply  is  given  to  the  entire  permanent  colony.  This  plant  is  very  important  and  permanent.  Therefore,  I.T.I.  passed/trained  operators  are  being  appointed  by  the  department  to  run  it.  The  appointments are being made by the Selection Committee  through selection  procedure  on  the  basis  of  eligibility  and  advertisement  by the Board.  Therefore,  the operators and  employees  appointed  on  this  plant  are  permanent  employees of the department and they are fully responsible  for the work done by them. The equipments installed at this  plant are of permanent nature and it is being run 24 hours  (day and night). There are 6 pumps at this plant and each  has the capacity of 170 H.P. and consumes 9302.40 watts  electricity.  The  chemicals  are  mixed  at  this  plant  mechanically and for  its operation eligible and responsible  employees  are  required.  The  salary  of  these  employees  comes in the payscale of permanent employees who have  been  appointed.  There  are  26  employees  have  been  appointed and working in this plant.

The other filtration plant is of temporary nature and is being  operated till the next phase of the project is completed and  after the completion of next phase it will be closed. From this  plant water is supplied to the temporary colony and project  area.  It  is  being  operated  through  contractor.  The  Department  makes  the  payment  to  the  contractor  on  the  basis of itemwise as per the work executed and not labour  wise.  The  contractor  used  to  make  payment  to  his  employees on the basis of minimum wages declared by the  Government from time to time and not less than that amount.  The contractor get this plant operated by his 3 unskilled and  3 semi-skilled employees.

The basic  pay of  the regularly  operated appointed by the  Board are water filtration plant is as follows : Operators—Basic Pay Rs. 1200 D.A.2572 Local compensatory Allowances 180. Interim Relief 340. Total 4292 per month. Labourers : Basic Pay Rs. 900 D.A. 1931 Local compensatory Allowance Rs. 120 Interim Relief Rs. 300 Total Rs. 3251 per month

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The contractors used to pay to his semi-skilled employees  Rs.  1857.87  per  month  and  to  unskilled  employees  Rs.  1580.23  per  month  which  are  declared  by  Labour  Department to the employees in temporary filtration plant. Its  photocopy is enclosed.

The  above  facts  show  that  it  will  not  be  justiciable  to  compare the work and facilities of the employees working in  permanent  filtration  plant  with  the  employees  working  in  Temporary Filtration Plant.”    

13. Despite such a specific case set up by the present  

appellants before the Labour Commissioner to show that  the  

contract  labour  in  filtration  plant  engaged  through  the  

contractors do not perform the same or similar kind of work as  

is done by the employees employed  directly by the employer in  

main plant,  the Labour Commissioner did not advert to these  

aspects  at  all.   The  Labour  Commissioner  ought  to  have  

adverted  to  the  nature  of  duties  of  the  staff  in  the  two  

categories,  degree  of  skill  and  dimensions  of  the  job  for  

reaching  the  conclusion  that  the  work  done  by  the  contract  

labour in the second filtration plant is same or similar to the kind  

of  work  done  by  the  employees  employed  by  the  principal  

employer directly in the main plant.  There is no discussion at  

all  by the Labour Commissioner as to how he arrived at  the  

conclusion about similarity of work. The evidence let in by the  

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parties and the material placed by them seem to have not at all  

been considered by the Labour Commissioner.  

14. The  order  of  Single  Judge  is  no  better.  He  has  

simply  not considered  any thing. Insofar as Division Bench is  

concerned, although, the judgment runs in nine foolscap typed  

pages but  out of that, eight pages relate to maintainability of  

appeal.  In one paragraph, on merits, the Division Bench said  

thus :

“……..,we are of the considered view that the judgment of  the  learned  Single  Judge  does  not  commend  itself  for  interference  on  merits.  The  learned  Single  Judge  has  committed no illegality in maintaining the order passed by  the  Labour  Commissioner  holding  that  the  workmen  on  whose  behalf  application  under  the  proviso  to  rule  25(2)(v)(a) of the U.P. Rules was filed, though employed by  the Contractor, were performing the same or similar kind of  work as the workmen directly employed by the appellant and  therefore, the wage rates and other conditions of service of  the  workmen  of  the  contractor  shall  be  the  same  as  applicable  to  the  workmen  directly  employed  by  the  appellants on the same or similar kind of works.”    

15. We are afraid, the consideration of the question as  

to  whether  the workmen employed by  the  contractors  in  the  

second filtration plant perform the same or similar kind of work  

as the employees directly employed by the principal employer  

in the main plant by the Labour Commissioner as well as  High  

Court  is highly  unsatisfactory. In a situation such as this, we  

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are constrained to set aside the impugned judgment of the High  

Court  as well as the order dated October 24, 1998 passed by  

the  Labour  Commissioner,  Uttar  Pradesh.   The  application  

made by the Union under Rule 25(2)(v)(a) of the Rules, 1975 is  

restored  to  the  file  of  Labour  Commissioner,  Kanpur,  Uttar  

Pradesh for fresh consideration in accordance with law.

16. Appeal  is  allowed to  the aforesaid  extent  with  no  

order as to costs.  

     ……………… ……J (D.K.  

Jain)

…….…… ………..J

    (R. M. Lodha)

New Delhi November 4, 2009.

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