Airports Authority of IndiaRep.by its Airport DirectorCoimbatore Airport, Coimbatore v. Authority under Rule 25(2) (V) (a) & (b) of Contract Labour (R&A)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 14.06.2011CORAMTHE HONOURABLE MR. JUSTICE M.M.SUNDRESHW.P. NO.8591 OF 2002Airports Authority of IndiaRep.by its Airport DirectorCoimbatore Airport, Coimbatore. .. PetitionerVersus1.Authority under Rule 25(2) (V) (a) & (b) of Contract Labour (R&A) Central Rules, 1971 & Deputy Chief Labour Commissioner (Central) (South Zone) Bangalore. III Main, III Cross, II Phase Tumkur Road, Bangalore – 22.2.Airport Employees Federation of India Rep.by its General Secretary 'Sanila', Ponath Road Kaloor, Cochin – 17.3.N.Shri Ram ..RespondentsPRAYER : Petitions filed Under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorari, calling for the recordsrelating to the proceedings of the first respondent vide No.20(15)/99-A2/Dy.CLC dated 27.04.2001 and quash the same.For Petitioner: Mr.C.GodwinFor Respondent-2: Mr.K.M.RameshFor Respondent-3: No AppearanceO R D E RThis Writ Petition has been filed by the Airport Authorityof India, challenging the impugned order passed by the Authorityunder Rule 25(2)(v)(a)&(b) of Contract Labour (Regulation andAbolition) Central Rules, 1971, dated 27.04.2001, whereby it hasbeen held that the Members of the second respondent in the category https://hcservices.ecourts.gov.in/hcservices/ of safaiwala / cleaner / sweeper under the Contractor engaged by thepetitioner are performing not the same, but similar work asperformed by the corresponding category of directly employed workersof the petitioner.2.The Members of the second respondent Federation, are theemployees of the third respondent who was a contractor with thepetitioner. A claim has been made by the second respondent on behalfof his Members before the first respondent, who is the Authorityconstituted under the Contract Labour (Regulation and Abolition)Central Rules, 1971, claiming the same payment for the similar workdone by the employees of the petitioner. After considering theentire materials placed before it, the first respondent came to theconclusion that the materials would indicate that the nature of workdone by the Members of the second respondent Federation is a similarwork, as performed by workers directly employed by the petitioner.Being aggrieved by the said order passed by the first respondent,the petitioner has come forward to file the present Writ Petition.3.The learned counsel for the petitioner submitted thatthe finding of the first respondent itself is to the effect that thenature of work is not the same but similar. The learned counselfurther submitted that considering the fact that the Members of thesecond respondent are distinct and different from the permanentemployees of the petitioner, the same salary payable to suchpermanent employees of the petitioner cannot be extended to others.In other words, the learned counsel contended that theclassification being different, they cannot be treated alike andtherefore, in law they are not entitled to be treated alike whilemaking the payment. In support of the said contention, the learnedcounsel has made reliance upon the following judgments:"STATE OF PUNJAB vs. SURINDER SINGH [(2007) 13 SCC 231]OFFICIAL LIQUIDATOR vs. DAYANAND [2009-III-LLJ-305]UNION TERRITORY ADMINISTRATION, CHANDIGARH AND OTHERS vs. MANJUMATHUR AND OTHERS [(2011) 2 SCC 452]"4.Per contra, Mr.K.M.Ramesh, learned counsel appearing forthe second respondent submitted that in the present case on hand,the second respondent has approached the first respondent, who isthe competent authority to decide the same. The learned counsel hasmade reliance upon Rule 25 of the Contract Labour (Regulation andAbolition) Central Rules, 1971 and submitted that in view of thespecific clause provided under Rule 25(2)(v)(a) of the ContractLabour (Regulation and Abolition) Central Rules, 1971, there cannotbe any discrimination between the workmen employed by the contractorperforming the same or similar kind of work as to that of workmendirectly employed by the principal employer. The learned counselsubmitted that when an Authority constituted under the Rules basedupon the materials placed before it comes to the conclusion that as https://hcservices.ecourts.gov.in/hcservices/ per Rule 25(2)(v)(a) of the Contract Labour (Regulation andAbolition) Central Rules, 1971 the Members of the second respondentare entitled to have the same payment, the said decision does notwarrant any interference at the hands of this Court in exercise ofits power under Article 226 of the Constitution of India. Thelearned counsel seeks to make a distinction by submitting that whilethe power of this Court under Article 226 of the Constitution ofIndia in granting the relief by holding that two groups of employeesare similar and same in nature is very much limited, when theAuthority constituted under the relevant rules came to theconclusion based upon materials placed before it, the same cannot beinterfered with. The learned counsel submitted that the judgmentrelied upon by the petitioner do not apply to the facts of the caseas in those cases the issue was as to whether a temporary and casualemployee is entitled to the same benefits as to that of thepermanent employee, even though doing the same or similar work. Insupport of the said contentions, the learned counsel has madereliance upon the following judgments:"PANKI THERMAL STATION AND ANR. vs. VIDYUT MAZDOOR SANGTHAN ANDORS. [AIR 2009 SC 2373]B.H.E.L. WORKERS ASSOCIATION, HARDWAR AND OTHERS vs. UNION OFINDIA AND OTHERS [(1985) 1 SCC 630]"5.Admittedly it is the specific case of the secondrespondent that twenty of its members have been engaged by the thirdrespondent being their contractor. A factual finding has been givenby the first respondent to the effect that the work undertaken bythe Members of the second respondent are similar in nature to thatof the permanent employees of the petitioner. In fact, the firstrespondent has also made strong remarks and observations about theconduct of the petitioner in refusing to give the particulars soughtfor. Therefore considering the materials relevant for the purpose ofdeciding the issue, a factual finding has been given by the firstrespondent by going into the issue in detail. Hence, as submitted bythe learned counsel for the second respondent, Mr.K.M.Ramesh, thisCourt cannot review the said finding, as there is nothing toindicate any perversity warranting interference.6.The judgments relied upon by the learned counsel for thepetitioner do not have any relevancy to the case on hand. In STATEOF PUNJAB vs. SURINDER SINGH [(2007) 13 SCC 231], the HonourableApex Court, while considering the question of equal pay for equalwork has held as follows:"6.The principle of equal pay for equalwork has undergone a sea change. Earlier theview of this Court was that if two persons aredischarging the same functions, they will beentitled to same wages. Subsequently this viewhas been changed and now the view of this Courtis that there should be complete and total https://hcservices.ecourts.gov.in/hcservices/ identity between the two persons similarlysituated so as to grant equal pay for equalwork. Recently this Court has held that identitybetween two persons has to be complete andtotal. In case of a regular appointee, he hasundergone a selection process and his servicesare regular. Even if a daily wage employee isdischarging the same functions as a regularemployee the authorities are not bound to grantequal pay to such a person who is appointed ondaily-wage basis i.e. is appointed for a shortterm and has not faced the selection process.Thus, the principle of equal pay for equal workhas to be granted only if there is a total andcomplete identity between the two persons. Inthis view, we are supported by a decision ofthis Court in S.C. Chandra v. State of Jharkhand[(2007) 8 SCC 279] which has referred to earlierdecisions of this Court.7.In the aforesaid decision one of us(Markandey Katju, J.) in his concurring judgmenthas held that granting pay scale is an executiveor legislative function, and not a judicialfunction. There is separation of powers underthe Constitution between the three organs of theState, and the judiciary should not encroachinto the domain of the other organs.Montesquieu’s theory of separation of powersbroadly applies in India too."7.Similarly, in a recent pronouncement in UNION TERRITORYADMINISTRATION, CHANDIGARH AND OTHERS vs. MANJU MATHUR AND OTHERS[(2011) 2 SCC 452], the Honourable Apex Court has held as follows:"12.This Court has held in a recent caseState of M.P. v. Ramesh Chandra Bajpai (2009) 13SCC 635 that the doctrine of equal pay for equalwork can be invoked only when the employees aresimilarly situated and that similarity of thedesignation or nature or quantum of work is notdeterminative of equality in the matter of payscales and that the Court has to considerseveral factors and only if there was wholesaleidentity between the holders of the two posts,equality clause can be invoked, not otherwise.13.This Court has also held in State ofHaryana v. Charanjit Singh [(2006) 9 SCC 321]that normally the applicability of principle ofequal pay for equal work must be left to be https://hcservices.ecourts.gov.in/hcservices/ evaluated and determined by an expert body andthese are not matters where a writ court canlightly interfere. This Court has further heldin this decision that it is only when the HighCourt is convinced on the basis of materialplaced before it that there was equal work andof equal quality and that all other relevantfactors were fulfilled, it may direct payment ofequal pay from the date of filing of therespective writ petition." 8.In the pronouncement made in the OFFICIAL LIQUIDATOR vs.DAYANAND [2009-III-LLJ-305] in paragraph 95 it has been observed bythe Honourable Apex Court has held as follows:"95.The ratio of Randhir Singh v. Union ofIndia (supra) was reiterated and applied inseveral cases – Dhirendra Chamoli v. State ofU.P. (supra), Surinder Singh and Another v.Engineer-in-Chief, CPWD and Others (supra),Daily Rated Casual Labour v. Union of India(supra), Dharwad District P.W.D. Literate DailyWage Employees' Association v. State ofKarnataka (supra) and Jaipal v. State of HaryanaAIR 1988 SC 1504 : (1988) 3 SCC 354 : 1994-III-LLJ (Suppl)-972 and it was held that even adaily wage employee who is performing dutiessimilar to regular employees is entitled to thesame pay. However, in Federation of All IndiaCustoms and Central Excise Stenographers(Recognized) Union v. Union of India AIR 1988 SC1291 : (1988) 3 SCC 91 : 1994-III-LLJ (Suppl)-979, Mewa Ram Kanojia v. A.I.I.M.S. AIR 1989 SC1256 : (1989) 2 SCC 235 : 1989-II-LLJ-578, v.Markandeya v. State of A.P. AIR 1989 SC 1308 :(1989) 3 SCC 191 : 1989-II-LLJ-169, Harbans Laland Others v. State of Himachal Pradesh andOthers (1989) 4 SCC 459 : 1989-II-LLJ-466, Stateof U.P. and Others v. J.P.Chaurasia and OthersAIR 1989 SC 19 : (1989) 1 SCC 121 : 1989-I-LLJ-309, Grih Kalyan Workers' Union v. Union ofIndia AIR 1991 SC 1173 : (1991) 1 SCC 619 :1991-I-LLJ-349, Ghaziabad Development Authorityv. Vikram Chaudhary AIR 1995 SC 2325 : (1995) 5SCC 210 : 1995-II-LLJ-703, State of Haryana andOthers v. Jasmer Singh and Others AIR 1997 SC1788 : (1996) 1 SCC 77 : 1997-II-LLJ-667, Stateof Haryana v. Surinder Kumar AIR 1997 SC 2129 :(1997) 3 SCC 633 : 1998-II-LLJ-516, Union ofIndia v. K.V.Baby (1998) 9 SCC 252 : 1999-I-LLJ-1290, State of Orissa v. Balram Sahu AIR 2003 SC https://hcservices.ecourts.gov.in/hcservices/ 33 : (2003) 1 SCC 250 : 2002-III-LLJ-1115, UtkalUniversity v. Jyotirmayee Nayak (2003) 4 SCC760, State of Haryana and Another v. Tilak Rajand Others AIR 2003 SC 2658 : (2003) 6 SCC 123 :2003-III-LLJ-487, Union of India v. Tarit RanjanDas AIR 2004 SC 852 : (2003) 11 SCC 658,Apangshu Mohan Lodh v. State of Tripura AIR 2004SC 267 : (2004) 1 SCC 119, State of Haryana v.Charanjit Singh AIR 2006 SC 161 : (2006) 9 SCC321 : 2006-I-LLJ-431, Hindustan Aeronautics Ltd.v. Dan Bahadur Singh (supra), Kendriya VidyalayaSangathan v. L.V.Subramanyeswara (supra) andCanteen Mazdoor Sabha v. Metallurgical &Engineering Consultants (India) Ltd. (2007) 7SCC 710 : 2007-III-LLJ-771, the Courtconsciously and repeatedly deviated from theruling of Randhir Singh v. Union of India(supra) and held that similarity in thedesignation or quantum of work are notdeterminative of equality in the matter of payscales and that before entertaining andaccepting the claim based on the principle ofequal pay for equal work, the Court mustconsider the factors like the source and mode ofrecruitment/appointment, the qualifications, thenature of work, the value judgment,responsibilities, reliability, experience,confidentiality, functional need etc."9.The said judgments of the Honourable Apex Court do notdeal with the similar situation on hand, in which the employeesconcerned have approached the authorities under the Contract Labour(Regulation and Abolition) Central Rules, 1971. The issue in thosecases was fixation of pay between casual and a permanent employee.The issue has been raised directly either before the CentralAdministrative Tribunal or before the High Court, which ultimatelyended before the Honourable Supreme Court. Therefore, this Court isof the view that the said judgment relied upon by the learnedcounsel for the petitioner, do not have any application to the caseon hand.10.In order to appreciate the issue before this Court, itis relevant to extract Rule 25(v)(a) of the Contract Labour(Regulation and Abolition) Central Rules, 1971. The same isextracted hereunder:"25(v)(a) in cases where the workmenemployed by the contractor perform the same orsimilar kind of work as the workmen directlyemployed by the principal employer of theestablishment, the wage rates, holidays, hours https://hcservices.ecourts.gov.in/hcservices/ of work and other conditions of service of theworkmen of the contractor shall be the same asapplicable to the workmen directly employed bythe principal employer of the establishment onthe same or similar kind of work."11.The provision contained under Rule 25(v) of theContract Labour (Regulation and Abolition) Central Rules, 1971,makes it very clear that in a case where the workman concerned isemployed by a contractor performs the same or similar kind of workas the workmen directly employed by the principal employer, then thebenefits to such a person shall be the same, as applicable to theworkmen directly employed by the principal employer. Therefore, thesaid rule mandates that the benefits should be equal both to aworkmen engaged by a contractor as against the workmen engaged bythe principal employer. Hence, considering the said provision,coupled with the factual finding given by the first respondent, thisCourt is of the view that the contention of the learned counsel forthe petitioner cannot be accepted. In B.H.E.L. WORKERS ASSOCIATION,HARDWAR AND OTHERS vs. UNION OF INDIA AND OTHERS [(1985) 1 SCC 630]considering the very same rules, it has been held by the HonourableApex Court in the following manner:"5. ....... Section 12 provides for thelicensing of contractors. Sections 13, 14 and 15provide for the grant of licences, revocation,suspension and amendment of licences and appeal.Sections 16 to 21 make detailed provision forthe welfare and health of contract labour.Section 20 in particular provides that if anyamenity required to be provided for the benefitof the contract labour employed in anestablishment is not provided by the contractorwithin the prescribed time such amenity shall beprovided by the principal employer. Section 21makes the contractor responsible for payment ofwages to each worker employed by him as contractlabour but further prescribes that the principalemployer shall nominate a representative dulyauthorised by him to be present at the time ofdisbursement of wages by the contractor.Sections 22 to 27 provide for penalties andprocedure. Section 28 provides for theappointment of inspecting staff. Section 30makes the provisions of the Act effectivenotwithstanding anything inconsistent therewithcontained in any other law or in the terms ofany agreement or contract of service or anystanding orders applicable to the establishment.It, however, saves to the contract labour any https://hcservices.ecourts.gov.in/hcservices/ favourable benefits that the contract labour maybe entitled to under the agreement, contract ofservice or standing orders. Section 35 investsthe appropriate Government with power to makerules for carrying out the purposes of the Act.Rules made by the Central Government arerequired to be laid before each House ofParliament for a total period of 30 days. Inexercise of the powers conferred by Section 35of the Contract Labour (Regulation andAbolition) Act, 1970, the Central Government hasmade the Contract Labour (Regulation andAbolition) Central Rules, 1971. Chapter II ofthe rules relates to matters pertaining to theCentral Advisory Contract Labour Board whileChapter III of the Rules deals with registrationof establishments and licensing of contractors.Rule 25 prescribes the forms, terms andconditions of licence. Rule 25(ii)(iv)prescribes that it shall be the condition ofevery licence that the rates of wages shall notbe less than the rates prescribed under theMinimum Wages Act, 1948 for such employmentwhere applicable, and where the rates have beenfixed by agreement, settlement or award, notless than the rates so fixed. Rule 25(ii)(v)(a)prescribes that it shall be the condition ofevery licence that,“(v)(a) in cases where the workmen employedby the contractor perform the same or similarkind of work as the workmen directly employed bythe principal employer of the establishment, thewage rates, holidays, hours of work and otherconditions of service of the workmen of thecontractor shall be the same as applicable tothe workmen directly employed by the principalemployer of the establishment on the same orsimilar kind of work:Provided that in the case of anydisagreement with regard to the type of work thesame shall be decided by the Chief LabourCommissioner (Central) whose decision shall befinal;”Similarly Rule 25(ii)(v)(b) provides thatin other cases the wage rates, holidays, hoursof work and conditions of service of the workmenof the contractor shall be such as may bespecified in this behalf by the Chief LabourCommissioner (Central). While determining the https://hcservices.ecourts.gov.in/hcservices/ wage rates, holidays, hours of work and otherconditions of service under Rule 25(ii)(v)(b)the Chief Labour Commissioner is required tohave regard to the wage rates, holidays, hoursof work and other conditions of serviceobtaining in similar employments. There is nodispute before us that the Payment of Wages Actapplies as much to contract labour as to labourdirectly employed by the principal employer ofthe establishment.6.Thus we see that no invidious distinctioncan be made against contract labour. Contractlabour is entitled to the same wages, holidays,hours of work and conditions of service as areapplicable to workmen directly employed by theprincipal employer of the establishment on thesame or similar kind of work. They are entitledto recover their wages and their conditions ofservice in the same manner as workers employedby the principal employer under the appropriateindustrial and labour laws. If there is anydispute with regard to the type of work, thedispute has to be decided by the Chief LabourCommissioner (Central). It is clear thatParliament has not abolished contract labour assuch but has provided for its abolition by theCentral Government in appropriate cases underSection 10 of the Contract Labour (Regulationand Abolition) Act, 1970. It is not for theCourt to enquire into the question and to decidewhether the employment of contract labour in anyprocess, operation or other work in anyestablishment should be abolished or not. Thisis a matter for the decision of the Governmentafter considering the matters required to beconsidered under Section 10 of the Act.Similarly the question whether the work done bycontract labour is the same or similar work asthat done by the workmen directly employed bythe principal employer of any establishment is amatter to be decided by the Chief LabourCommissioner under the proviso to Rule 25(ii)(v)(a). In these circumstances, we have no optionbut to dismiss both the writ petitions but witha direction to the Central Government toconsider whether the employment of contractlabour should not be prohibited under Section 10of the Act in any process, operation or otherwork of the BHEL, Hardwar. There will also be a https://hcservices.ecourts.gov.in/hcservices/ direction to the Chief Labour Commissioner toenquire into the question whether the work doneby the workmen employed by the contractors isthe same type of work as that done by theworkmen directly employed by the principalemployer in the BHEL, Hardwar."12.The said decision of the Honourable Apex Court has beenquoted with approval in a subsequent pronouncement in PANKI THERMALSTATION AND ANR. vs. VIDYUT MAZDOOR SANGTHAN AND ORS. [AIR 2009 SC2373] wherein, it has been held as follows:"11.A bare reading of the provision makesthe position clear that in cases where theworkmen employed by the contractor perform thesame or similar kind of work as employeddirectly by the principal employer of theestablishment the wage rates, holidays, hours ofwork and other conditions of service of theworkmen of the contractor shall be the same asare applicable to the (sic workmen of the)principal employer. In case of disagreement withregard to the type of work the same shall bedecided by the Commissioner."13.Hence considering the facts of the case, coupled withthe position of law and after considering the object behind theContract Labour (Regulation and Abolition) Central Rules, 1971, thisCourt is of the view that the order impugned is perfectly in orderand no interference needs to be called for. Accordingly, the WritPetition is dismissed. No costs.sriSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Deputy Chief Labour Commissioner (Central) (South Zone) Bangalore, III Main, III Cross, II Phase Tumkur Road, Bangalore – 22.2.The General Secretary Airport Employees Federation of India 'Sanila', Ponath Road Kaloor, Cochin – 17. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. K. M. Ramesh, Advocate SR No.34254+ 1 cc to Mr. C. Godwin, Advocate SR No.34185RSY(CO)SR/29.6.2011W.P.NO.8591 OF 2002