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M/S CHAND CHHAP FERTILIZER AND ANR. versus LABOUR COMMISSIONER KANPUR AND ANR.

High Court of Judicature at Allahabad

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M/S Chand Chhap Fertilizer And Anr. v. Labour Commissioner Kanpur And Anr. - WRIT - C No. 29381 of 1994 [2006] RD-AH 1243 (18 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court no. 31

Civil Misc. Writ Petition no. 29381 of 1994

M/s. Chand Chhap Fertilizer and Chemicals Ltd.,

Versus

Labour Commissioner (U.P), Kanpur and another

..

Hon'ble Bharati Sapru, J.

The present petition arises out of proceedings under Rule 25 (2) (v) (a) of the U.P. Contract Labour (Regulation and Abolition) Rules, 1975 (hereinafter referred to as the Rules, 1975).

By the impugned order dated 7.1.1994 passed in case no. 32 of 1990 (Annexure 8 to the writ petition), the authority has given to the two respondent workmen who were contractor's workmen, wages which were to be given to the casual employees of the principal employer the petitioner.

The facts of the case are that the petitioner M/s. Chand Chhap Fertilizer and Chemicals Limited, later known as ICI Limited and now known as Duncans Industries Ltd., was the principal employer. In order to undertake certain jobs in the industry, the principal employer had engaged one contractor by the name of M/s. Saran Engineering Works, who was a duly licensed contractor under the provisions of section 7 of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter referred to as the Act, 1970).

The respondent no. 3 and 4 moved an application under Rule 25 (2)(v)(a) of the Rules, 1975 to the authority claiming that they were not being given wages as that of the other workmen employed by the principal employer and the wages should be paid to them same and similar to the other workmen of the principal employer.

I have heard learned counsel for the parties. In order to appreciate the facts of the case, it is necessary to quote Rule 25 (2)(v)(a) of the Rules, 1975 as hereunder:

"(v)(a) in cases where the workmen employed by the contractor perform the same and similar kind of work as the workmen directly employed by the principal employer of the establishment, the wages 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;

Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Labour Commissioner, U.P., whose decision shall be final."

The aforesaid rule has been made in respect of conditions of licence, which is granted to a contractor. The violation of above rules can only result in the suspension or cancellation of the licence so granted to a contractor but does not impose any burden or obligation on the principal employer. The scope of the Rule does not extend to impose burden on the principal employer and casts no obligation on the principal employer. The obligation cast upon the principal employer is under the provisions of section 21 of the Act, 1970, which is limited to the wages as agreed between the contractor and the workmen. Section 21 of the Act, 1970 is quoted hereunder:

"21. Responsibility for payment of wages.-

(1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.

(2) Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.

(3)   It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorized representative of the principal employer.

(4)   In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."

The question as to whether the work that was being performed by the contractor's workmen are the same and similar to that of regular workmen of the principal employer are not to be answered in proceedings under Rule 25 (2)(v)(a) of Rules, 1975.

Learned counsel for the petitioner has argued that from a plain reading of the order itself, it is abundantly clear and admitted to other side that the workmen were the contractor's workmen. The said position is also admitted to the respondent workmen that the petitioner was, in fact, the principal employer and therefore it could not have been said to have violated Rule 25 (2)(v) (a) of the Rules, 1975.

Learned counsel for the petitioner has argued that there is no finding in the said order that the respondent workmen were performing same and similar work to that of the regular workmen but the authority below has wrongly relied and applied the judgment in the case of another principal employer, even though the facts are not either the same or similar in the present writ petition.

Learned counsel for the petitioner has also argued that the provisions of Rule 25 (2)(v)(a) of the Rules, 1975 do not impose any liability or obligations on the principal employer but it simply is a term of licence and it is the licence holder that is the contractor who is put to terms in the said rules.  If there is any violation of the said Rules, no liability of the same can be fixed on the principal employer.

Learned counsel for the petitioner has also argued that the burden of proof, that the workmen were doing similar or same kind of works as that of the regular workmen employed by the principal employer, has been wrongly placed on the principal employer i.e. the petitioner and the court below has come to a finding on the basis of an adverse presumption. He has argued that this could not have been done because it is a settled principle of law, that the person who sets up a claim, must establish it. The burden of proof lies on him to establish it and cannot be shifted on the principal employer as has been done in the present case.

Indeed this argument of the learned counsel for the petitioner has force in it because the burden of proof could not have been shifted on the principal employer that the workmen were being discharging the same and similar kind of work as that of the regular workmen employed by the principal employer itself. Even otherwise, it was not within the scope of Rule 25 (2)(v)(a) of Rules, 1975 to examine this question.

Learned counsel for the petitioner has also argued that the obligation which is cast on the principal employer is contained in section 21 of the Contract Labour (Regulation & Abolition) Act, 1970 and is confined to wages which are contracted. It does not extend to entertain disputed claims between the contractor and its workmen.

In support of all his arguments, learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme court rendered in the case of Hindustan Steel Works Construction Ltd., vs. The Commissioner of Labour and ors, reported in 1996(74) FLR 2151 wherein the Hon'ble Supreme Court while interpreting the Rule 25 (v)(a) of the Andhra Pradesh Contract Labour (Regulation and Abolition) Rules, 1971, which are similar to the Rules, 1971, has laid down that the said Rules are conditions of licence and there is no provision by which the principal employer is made liable for payment in the event of non-payment by the contractor. It has further been held that the liability of the principal employer is confined to wages under section 21 of the Act, 1970. If the contractor commits a breach of the conditions of licence granted to him, he alone would take the consequences. The right of workers to recover any additional wages which may be so determined would be against the contractor and would not fix or impose any liability on the principal employer.

Learned counsel for the respondent has not denied the assertions made by the learned counsel for the petitioner that the respondent workmen were the contractor's workmen. This position is admitted to him and not denied.

In view of this admission by the learned counsel for the respondent and in view of the submission made by the learned counsel for the petitioner which have force, I am fully convinced that the impugned order dated 7.1.1994 passed in case no. 32 of 1990 by the respondent no. 1 suffers from manifest error of law and is liable to be quashed.

In the result, the writ petition is allowed. The impugned order dated 7.1.1994 passed in case no. 32 of 1990 by the respondent no. 1 is quashed. There will be no order as to costs.

Dated 18.1.2006

Rk.29381.94afr


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