Dhanbad v. 1. Bharat Coking Coal Limited, a Government Company under the Companies Act, having its
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 209 of 2019 ------ Dhanbad Colliery Karamchary Sangh, through authorized-cum-In-charge of Urorganised Contract Labour Cell of Dhanbad Karamchari Sangh, namely, Bindesdhwari Thakur, having its office Vishwakarma Bhawan, Post Box ... Appellant No. 68, Police Line, PO & PS: Dhanbad, District: Dhanbad. Versus 1. Bharat Coking Coal Limited, a Government Company under the Companies Act, having its Registered Office at Koyla Bhawan, PO: Koyla Nagar, PS: Saraidhela, District: Dhanbad, General Manager (Legal), Bharat Coking Coal Limited, resident of Kusum Vihar Colony, PO: Koyla Nagar, PS: Sariadhela, District: Dhanbad. 2. Union of India through the Secretary, Ministry of Labour, Shashtri Bhawan, PO: Shashtri Bhawan, PS: Sansad Marg, New Delhi 110 001. 3. Dy. Chief Labour Commissioner (Central) and Authority under Rules 25(2) (v) (a) & (b) of the Contract Labour (Registration & Abolition) Central Rule, 1971, having its Office at Shram Bhawan, New Colony, Jagjivan Nagar, PO: Jagjivan Nagar, PS: Saraidhela, District: Dhanbad 826 001. 4. Vehicle Owners/ Contractor of Bharat Coking Coal Ltd. being represented by Sri Uday Shankar Dubey, son of Late Ram Sagar Dubey, near Kali Mandir, PO: Nawagarh, PS: Barora, District: Dhanbad 826 001. …... Respondents --------- PRESENT HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant For the Resp. BCCL ------- : Mr. Manoj Kumar, Advocate : Mr. Anoop Kumar Mehta, Advocate; Mr. Anvay Mishra, Advocate; Mr. Amit Kumar Sinha, Advocate ------- Oral Order 27th June 2023 Per, Shree Chandrashekhar,J. IA No. 7701 of 2022 This Interlocutory Application has been filed under section 5 of the Limitation Act for condonation of delay of 8 days in filing the present Letters Patent Appeal. 2. Having been satisfied with the grounds taken in this Interlocutory Application, delay of 8 days in filing the present Letters Patent Appeal is condoned. 2 LPA No. 209 of 2019 3. I.A. No. 7701 of 2022 is allowed. LPA No. 209 of 2019 4. The order dated 10th May 2016 passed in Application No.35(1)/2010-A7, to the effect that all the drivers who are working under the Vehicle Owners with whom Bharat Coking Coal Limited (in short, 'BCCL') has entered into contract shall be paid daily wages @ Rs. 540/- per day for 8 hours work in a day; all the drivers who have been working for more than 10 years shall get 10% more wages and; the drivers who have been working for more than 5 years but less than 10 years shall get 5% more wages and several other directions, was put to challenge by the Dhanbad Colliery Karamchari Sangh in WPL No. 5881 of 2016. 5.
Facts
The BCCL in WPL No. 3796 of 2016 has also challenged the aforesaid order passed by the Deputy Chief Labour Commissioner (in short, Authority). 6. Briefly stated, the Dhanbad Colliery Karamchari Sangh filed an application under Rule 25(2)(v)(a) & (b) of the Contract Labour (Regulation & Abolition) Central Rule, 1971 before the Authority on 29th November 2010 making a grievance that the contract drivers are paid less wages in contravention to the provisions under the Minimum Wages Act and were exploited by the management of BCCL. The Karamchari Sangh has sought a direction upon the BCCL to treat the contract drivers at par with their regular drivers. Before the Authority, proceedings were taken on several dates. The parties were afforded opportunity to lead evidence and on behalf of the contract drivers a list of 419 drivers was produced to claim wages at par with the regular drivers employed by the BCCL. The notice dated 8 th May 2014 by which the vehicle owners were invited for registration was also laid in evidence to establish that the contract drivers were engaged on account of the need and requirement by the BCCL management. However, no witness was examined on behalf of the contract drivers and the BCCL raised a defence that the document produced in support of the claim of the drivers for treating them at par with the regular drivers under the BCCL did not satisfy the requirements under sub- section (1) to section 10 of the Contract Labour (Regulation and Abolition) Central Act, 1970 and, that the contract drivers were not working under the management of the BCCL. 7. In the backdrop of the aforesaid facts, the Authority proceeded to 3 LPA No. 209 of 2019 dwell upon the right to livelihood and fundamental right in about 12 pages and has finally held that the management of BCCL has taken advantage of law and it pays a pittance to the contract workers and thereby earns huge profit. 8. The Authority has framed the following issues: “Issue No.I : Whether a sum of Rs. 1500/- to Rs. 7000/- per month is enough for a driver, having a family of 6 persons (self, spouse, 2 children and two old and aged parents) to have a decent living with minimum comfort and human dignity? Issue No. II : Whether BCCL, being a state/other authority under Article 12 of the Constitution of India is not taking advantage of the labour market situation by paying a pittance to the drivers? Issue No.III : Whether the above action of BCCL cannot be treated as worst kind of unfair labour practice and outright negation of the fundamental rights of the drivers? Issue No. IV : Should a State or other authority (here BCCL) adopt such unfair labour practice which amounts to Flagrant violation of fundamental rights of the drivers?” 9. However, without any further discussion the Authority has answered Issues Nos. I and IV in Negative and Issues Nos. II and III in Affirmative. 10. The Authority has referred to the judgment in “State of Haryana v. Charanjit Singh” (2006) 9 SCC 321 and seems to have to come to a conclusion that the contract drivers are not entitled for equal pay compared to regular drivers of the BCCL. We have come to this conclusion on the basis of the following observations made by the Authority in the order dated 10th May 2016: “On 22nd June 2015 when proceedings were taken up this Authority brought the above judgment to the notice of the Union and the Union in all fairness, showing respect to the judgment of the Hon'ble Supreme Court, agreed not to press for same and similar wages but it prayed that proper justice should be done with the Drivers. This Authority requested the representatives of BCCL to come out with certain proposal but till today they did not come with any proposal, rather they tried to dodge the Union as well as this Authority under some pretext or the other. The case has been pending for more than 5 years without any tangible improvement. On the date of final proceedings, this Authority asked all the parties as to what they think should be the wages of the Drivers per month. The Vehicle Owners (Contractors), who participated in the proceedings, submitted that the Drivers should get a decent wages. But looking to the daily rent (for the vehicles) paid by BCCL which is Rs. 799/- no Vehicle Owner is in a position to pay Rs. 12,000/- to Rs. 14,000/- to each Driver. If BCCL agrees to reimburse the wage, they will pay the same to the Drivers. The Union submitted that the Drivers have been working since last 7 to 20 years. For eight hours duty per day a driver should get Rs. 18,000/- to Rs. 20,000/- per month. On this submission of the 4 LPA No. 209 of 2019
Legal Reasoning
“9. Rule 25(2)(v)(a) of the 1975 Rules provides that: “in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly em- ployed 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”. It further provides that in case of any dispute with regard to the type of work, the Labour Commissioner, Uttar Pradesh shall de- cide the same and his decision shall be final. 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 em- ployer. 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 par 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.” 6 LPA No. 209 of 2019 15. The appellant-Karamchary Sangh has pleaded that about 600 contract drivers are employed by the BCCL through vehicle owners in the mining and other operations on monthly wages of Rs. 1500 – Rs. 7000/- since last so many years. The appellant has brought on record the notice dated 08 th May 2014 issued by the BCCL inviting applications for registration of vehicle owners through whom light motor vehicles are hired on scheduled rates fixed by the BCCL. There is a prescribed format in which the vehicle owners are required to submit their willingness for providing light commercial vehicles and, in consideration thereof, the BCCL paid agreed amount for per day of hiring of the vehicle and out of the said amount a certain sum is paid by the vehicle owners to the contract drivers. In the proceeding before the Authority, the BCCL submitted a list of 450 drivers who were working under different vehicle owners and a list of 419 drivers with their details, such as, service period and rate of wages was submitted by the appellant-Karamchari Sangh. As it appears from the order dated 10th May 2016 proceedings in Application No. 35(1)/2010-A7 which was registered on the basis of the application filed by the Karamchary Sangh under Rule 25(2)(v) (a) & (b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 stretched over a period for 4 years but the BCCL did not own its liability to pay wages to the contract drivers equivalent to the wages paid by it to its regular vehicle drivers. It further appears that the vehicle owners did not produce the records which are required to be maintained under the Contract Labour (Regulation and Abolition) Act, 1970. However, the representative of the vehicle owners made a statement in the said proceeding that some of the drivers are also vehicle owners and they are not contractors. 16. Now this is a matter of record that except producing notice dated 08th May 2014 and list of 419 drivers there was no other material before the Authority to exercise the powers under Rule 25(2)(v)(d) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. As we have noticed above, the Authority itself has concluded that the contract drivers are not entitled for equal pay but has proceeded to fix minimum wages for different category of drivers. 17. The writ Court has referred to the judgments in “Air India Statutory Corporation and Ors. v. United Labour Union and Ors.” AIR 1997 SC 645 and “Steel Authority of India Ltd. and Ors. v. National Union Water Front Workers and Ors.” AIR 2001 SC 3527 to come to a conclusion that the 7 LPA No. 209 of 2019 order dated 10th May 2016 passed by the Deputy Chief Labour Commissioner (Central) at Dhanbad cannot be countenanced in law. 18. The writ Court has held thus: “26. The worker if rendering the services through the labour supplier by way of contract then it could be said to be rendering the services to the management and then also the question would be that whether the work is perennial in nature or not or the contract is camouflage requires to be made which admittedly can be done by the industrial adjudicator as per the judgment rendered in the case of Steel Authority of India (supra). But here in the instant case, admittedly the drivers are being engaged by the vehicle owners in terms of tender inviting applications and therefore this has been disputed by BCCL management that they cannot be treated to be the principal employer and therefore they are not liable for any enhancement of the minimum wages as per the notification made under Minimum Wages Act, 1948 rather it is the vehicle owners who are liable to make payment as per the notification of Minimum Wages Act, 1948. 27. Learned counsel for the workman has tried to impress upon the Court that the drivers are directly rendering their services to the BCCL management who happens to be the principal employer and to strengthen his argument he has referred to certain eligibility conditions stipulated in the advertisement as under Annexure-1 by which the applications have been invited from bone fide vehicle owners. 28. This Court after going across the content of the advertisement as under Annexure-1 has found that the applications have been invited from bone fide vehicle owners to supply vehicles. The aforesaid advertisement contains certain eligibility conditions one of which is the appointment of skilled drivers and referring to the said, it has been argued that the drivers will be said to be supplied by the vehicles owners in terms of the said advertisement but this argument is not fit to be accepted for the reason that since the tender is for supply of vehicle from the vehicle owners and as per the eligibility conditions since the skilled drivers is also required, therefore, it is the accountability of the vehicle owners to depute the skilled driver and if that has been done, it cannot be said that the drivers have also been sought to be engaged by virtue of the aforesaid advertisement, therefore this contention is not acceptable to this Court. 29. This Court after going across the factual aspect and basing upon the judgment referred hereinabove and considering the fact that the very basis of nature of appointment of the drivers which has been sought to be treated as contract workers within the meaning of a contractor as per the definition stipulated in the Act, 1970 itself, is in dispute but the same having not been appreciated by the Deputy Chief Labour Commissioner before casting the liability upon the BCCL management. Further no discussion has been made in this regard in the aforesaid order, however, the concession of the representative of the management has been referred but it is settled that in case of wrong concession, if any order is passed without proper adjudication of the issue the same will not have any binding effect, reference in this regard be made to the judgment rendered in the case of Union of India and Ors. Vs. Mohanlal Likumal Punjabi and Ors., reported in(2004) 3 SCC 628 wherein at paragraph 8 & 9 it has been held that concession, if any, is really of no consequence, because the wrong concession made by a 8 LPA No. 209 of 2019 counsel cannot bind the parties when statutory provisions clearly provided otherwise. It was observed by Constitution Bench of the Hon'ble Supreme Court in Sanjeev Coke Manufacturing Company Vs. M/s Bharat Coking Coal Limited and Anr. that Court are not to act on the basis of concession but with reference to the applicable provisions. This view has been reiterated in Uptron India Ltd. Vs. Shammi Bhan, reported in (1998) 6 SCC 538 and Central Council for Research in Ayurveda & Siddha Vs. Dr. K. Santhakumari, reported in (2001) 5 SCC 60. 30. In view thereof, the order passed by the Deputy Chief Labour Commissioner (Central), Dhanbad dated 10.05.2016 does not stand in the eye of law, accordingly, stands quashed.” 19. Having rendered the aforesaid findings, WPL No. 3796 of 2016 was allowed by the writ Court and, consequently, WPL No. 5881 of 2016 has been dismissed. 20. The law is well settled to the effect that findings of the inferior Tribunal cannot be challenged in a proceeding under writ of certiorari on the ground of insufficiency or inadequacy of material evidence but perversity of the order would warrant intervention of the High Court. The inferior Tribunal/Court/Authority no doubt is the final adjudicator of facts but a finding of fact which is perverse, in other words, which is not based on legal evidence can be looked into by the High Court in exercise of the powers under Article 226/227 of the Constitution of India to find whether such questions of fact are based on the materials on record. 21. In “J.D. Jain v. State Bank of India” (1982) 1 SCC 143 the Hon'ble Supreme Court has held as under: “11. In an application for a writ of certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. ….” In view of the foregoing discussions, while we do not find any 22. infirmity in the writ Court's order, LPA No. 209 of 2019 is dismissed. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 27th June, 2023 Sharda/S.B.-A.F.R
Arguments
Union, the Vehicle Owners submitted that they can pay the amount if wage component is separated and reimbursed to them. The Representative of the Principal Employer, Shri S. N. Sinha, General Manager (Administration) stated that the rate of minimum wages, as prescribed by Jharkhand Government for semi skilled category workers, would be appropriate to drivers who are engaged on contract.” 11. Finally the Authority has issued the following directions: “1. All the Drivers, who are working under the Vehicle Owners, 3 with whom BCCL has entered into contract, shall be paid daily wage @ Rs.540/- per day for 8 hours work in a day and this wage shall be reimbursed by the Principal Employer i.e. BCCL to the contractors as BCCL is the end user of the vehicles as well as the services of the Drivers. The payment of this wage shall be credited to the individual bank accounts of the Drivers every month. 2. Those Drivers, who have been working for more than 10 years, will get 10% more wages and those, who have been working for the last 10 years but more than 5 years will get 5% more wages to ensure proper justice to them so that there will not be any heart burn among the Drivers. 3. There shall be 10% (Ten per cent) increase in the daily wage every year. 4. Extra work done, over and above 8 hours by the Drivers, shall be paid overtime @ double the rate of wages per hour as per the provision of Contract labour (R and A) Act, 1970 and Central Rules made thereunder. 5. The Drivers will be eligible to get the benefit of all welfare facilities as provided under the Act. 6. Since the Drivers have been working since last 7 to 80 years at very meagre wages they should be paid lump sum arrears for at least five years (2011 to 2015) @ Rs.30,000/- per year as the contractors did not produce Wage Registers to calculate the arrears. The actual wages of Rs.540/- shall be made payable from January 2016. 7. If the Principal Employer intends to challenge this decision in the Hon'ble High Court, it will have to deposit Rs.6,28,50,000/- (Rupees Six crores twenty-eight lakhs fifty thousand only) with this Authority so that the sufferings of the Drivers can be alleviated during the pendency of the proceedings and this Authority would disburse the arrears to the Drivers. 8. No Contractor (Vehicle Owner) can terminate the services of any Driver who are parties to this decision. If any Vehicle Owner is disengaged, the Principal Employer would get the driver engaged under the next contractor who gets the contract. This is directed with a view to maintain industrial peace and harmony in BCCL which is a public utility service. If any vehicle Owner terminates the service of any driver, the Principal Employer will black list such Vehicle Owner (Contractor). … ...” … 12. The Contract Labour (Regulation and Abolition) Act, 1970 includes the Government Departments, Corporation etc. as the definition of establishment and principal employer would clearly indicate. Rule 25(2)(v) (b) provides that the wages rates, holidays, hours of work and conditions of service 5 LPA No. 209 of 2019 of the workmen of the contractor shall be such as may be specified in this behalf by the Chief Labour Commissioner (Central). Therefore, the question whether the work done by the contract labour is the same or the similar work as performed by the workmen directly employed by the Principal Employer of any establishment is a matter which requires evidence. 13. Rule 25(2) (v) (a) & (b) of the Contract Labour (Regulation & Abolition) Central Rule, 1971 reads as under: “(a) 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. … (b) in other cases the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor shall be such as may be specified in this behalf by the Deputy Chief Labour Commissioner (Central)” … … 14. In “U.P. Rajya Vidyut Utpadan Board v. U.P. Vidyut Mazdoor Sangh” (2009) 17 SCC 318 the Hon'ble Supreme Court has observed as under :