INDIAN OIL CORPORATION....Appellant(s)V/SCHIEF LABOUR COMMISSIONER (CENTRAL) C/LPA/65/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 65 of 2013 In SPECIAL CIVIL APPLICATION NO. 9036 of 1998 With CIVIL APPLICATION NO. 913 of 2013 In LETTERS PATENT APPEAL NO. 65 of 2013 ============================================================== INDIAN OIL CORPORATION....Appellant(s) Versus CHIEF LABOUR COMMISSIONER (CENTRAL) & 2....Respondent(s) ============================================================== Appearance: MRS MAUNA M BHATT, ADVOCATE for the Appellant(s) No. 1 MRS SANGEETA N PAHWA, ADVOCATE for the Respondent(s) No. 2 MS VIDHI J BHATT, ADVOCATE for the Respondent(s) No. 3 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 03/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) We have heard Mr. Manish Bhatt with Ms. Mauna Bhatt for the appellant, Mr. Shalin Mehta with Ms. Vidhi Bhatt as well as Ms.Sangeeta Pahwa for the respondents appearing by caveat.
It prima facie appears that in spite of the earlier direction given by this Court in its judgment dated 03.03.1997 in SCA No.5063/96, that while interpreting the provisions of Rule 25(2)(v)(a), the mandate of the provisions of Article 14, 15, 16, 21, 38, 39 and also 46 are to be considered, the officer, respondent no.1 herein, has observed that he is not required to consider the decision of the Hon ble Supreme Court and the High Court under constitutional provision.
The aforesaid aspect is more clarified in the decision of the Apex Court in the case of Uttar Pradesh Rajya Vidhyut Utpadan Board vs. Uttar Pradesh Vidhyut Mazdoor Sangh reported at (2009) 17 SCC 318 wherein the Apex Court inter alia has observed at paras 10 and 11 as under:
10. It would be, thus seen that Rule 25(2)(v)(a) incorporates the principle 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.
11. 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 the nature of duties of the staff in two categories are on a part or otherwise. Often the difference may be of a degree. It is well settled that nature of work cannot be judged by mere volume of work; there may be qualitative difference as regards reliability and responsibility.
If the impugned order of the respondent no.1 is considered in light of the above referred decision of the Apex Court, it appears that there is no inquiry whatsoever made on the aspect of quality of the work based on the experience and qualification of the person concerned of principal employer with the workmen of the contract labourer.
It has been submitted on behalf of the appellant that all such details were given, but they are not considered.
In our prima facie view, it was required for the respondent no.1 while undertaking the inquiry to examine as to whether the qualification at the entry point of service for the respective post is the same of the workmen of the contract labourer or at par with employee of the principal employer or not. Such would also require the consideration of the requisite experience for entry in service and the nature of work to be discharged, responsibility, accountability, etc. Merely because one is cooking food though holding no qualification, his work cannot be said as the same or similar to cooking work undertaken by a qualified person with expertise in the field. It is hardly required to be stated that if one has to invoke the principles of equal pay for equal work, the parity in all respect and more particularly for the quality of the work and the efficiency, responsibility, the nature of the work, etc., are to be examined and the benefit of such principle of equal pay for equal work would be available only if all criteria are satisfied.
The learned counsel appearing for respondents no.2 and 3 attempted to contend that once Rule provides for only word same or similar , the other principles as laid down by the High Court or the Apex Court for invoking of the principles of equal pay for equal work will have no applicability and therefore, the respondent no.1 has rightly undertaken the exercise limited to that.
We prima facie find that such contention cannot be countenanced because if only apparent work is to be seen without ignoring the quality and capability of the person concerned, based on his qualification, experience, etc., such would frustrate the basic requirement. The essential purpose of Rule 25 is to ensure that there is no exploitation by the principal employer by engaging person through contract labourer, but that does not mean that the other requirements of qualification, experience, quality of work, nature of the work, responsibility and the accountability for the work are to be done away. Since the respondent no.1 has not examined the said aspect at the first instance and so is not considered in the petition before the learned Single Judge, the matter deserves consideration.
Ms.Pahwa, learned counsel appearing for one of the Union submitted that for Sweepers, such parity is not required to be considered and therefore, this Court may separately consider the case of Sweepers.
In our view, even for the post of Sweeper, the requisite qualification and/or experience at the entry point of service is to be considered and there is no inquiry undertaken for such purpose. The principles of examination of the quality of work, nature of work, accountability, efficiency and responsibility, would be the same for the said post too. Hence, we do not find it proper to consider the case separately, as sought to be canvassed.
Hence, Admit. Ms.Pahwa waives for respondent no.2, Ms.Vidhi Bhatt waives for respondent no.3. D.S. for respondent No.1.
So far as the interim order is concerned, the order of respondent no.1 has been passed as back as on 29.05.1998. The petition being SCA No.9036/98 was preferred before the learned Single Judge immediately. It is true that no specific stay was granted but vide order dated 02.12.1998 passed by the learned Single Judge of this Court in SCA No.9038/98, it was ordered thus:
Issue NOTICE as to why this Special Civil Application be not admitted and allowed, returnable on 19.1.1999. Mr N R Sahani, learned Advocate waives service of Notice for respondent No.2. The wages paid and accepted, shall be without prejudice to the rights and contentions of the parties in this petition.
Meaning thereby, the Court had observed for acceptance of wages for the workmen concerned without prejudice to the rights and contentions in the petition. The said petition is thereafter admitted.
Further, after about six years, the respondent Union preferred SCA No.5007/04 for implementation of the order passed by the respondent no.1 herein which was under challenge in SCA No.9036/98. The learned Single Judge in the said petition, did not grant any interim relief or no interim orders were passed for making payment as per the order of respondent no.1. May be because of the fact that the order was under challenge in SCA No.9036/98. Subsequently, both the matters are decided by the learned Single Judge and the order of the learned Single Judge is impugned in the present appeal.
The another relevant aspect is that the contractor who is also made liable to pay the amount has not come in appeal, but it is the contention of the learned counsel for the appellant that the said contractor s term is over and whenever new contract is to be given, respondent no.1 insists for compliance to the order dated 29.05.1998 and therefore, it was prayed that the order passed by the respondent no.1 be stayed. It also appears that the learned Single Judge after dismissal of the SCA No.9036/98 and other matters, which were preferred by the appellant, has allowed SCA No.5007/04 by directing the appellant to pay the wages to the employees of the contractor, if contractor makes default in payment of the amount to the workmen concerned.
Considering the complexity of the issues involved and more particularly the aspect that no inquiry is undertaken by respondent no.1 by examining the aspect of quality of work, efficiency, nature of duty and accountability, etc., and consequently the finding for parity in all respect is not available, the payment as per the wages prescribed for the employees of the contract labourer may continue without prejudice to the rights and contentions of the parties as the status was so prevailing before the learned Single Judge. At the same time, the respondent no.1 should not insist for implementation of the order in the event, the contract is to be given by the appellant to any new contractor.
Hence, the following order -
In Civil Application, Rule returnable on 29.04.2013. Ms.Pahwa waives for opponent no.2, Ms.Vidhi Bhatt waives for opponent no.3. D.S. for opponent No.1.
By interim order, the operation and implementation of the order passed by the learned Single Judge shall remain stayed and suspended.
The wages as being paid to the employee of the contract labourer, if the same contractor exists, shall be continued to be paid but the receipt of the payment by the workman concerned shall be without prejudice to the rights and contentions in the present appeal.
The respondent no.1 shall not insist for implementation of the order dated 29.05.1998 (Annexure-A) of the main Special Civil Application in the event the contract with the same contractor of whom the workmen were/are employees is to be continued or a new contract to a new contractor is to be given by the appellant. It is clarified that if the contract labourer of whom the workmen concerned were/are employees, is desirous to make payment at par, such payment may be made in accordance with law.
It is also clarified that since the contractor has not preferred any appeal, qua the liability pertaining to the contract prevailing then of the contractor is not stayed, so far as the past dues are concerned and therefore, the present order shall not operate as a bar to the respondent workmen in getting wages if otherwise recoverable from the contractor.
The aforesaid interim order shall remain until further orders but the respondent no.1 may show cause as to why the aforesaid interim order should not be continued till final disposal of the appeal.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) bjoy Page 9 of 9