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Judgment
Srinivasan, J.—The Petitioner is a Trade Union, which claims to have a substantial following among the workmen employed by the Tamil Nadu Electricity Board, the first Respondent herein, as well as employees engaged by the Special Officer, Ennore Thermal Power Station Industrial Co-operative Service Society and the Special Officer, Tuticorin Thermal Power Station Industrial Co-operative Service Society, who are Respondents 2 and 3 herein. The prayer in the writ petition is for issue of a writ of Mandamus directing the first Respondent to pay wages to the workmen employed by the second and third Respondent Societies at the same rate of wages as paid to Helper category and extend all the service conditions applicable to the workmen employed by the first Respondent.
The case set out in the affidavit filed in support of the writ petition is as follows: The first Respondent created Industrial Co-operative Societies in the Thermal Power Houses situated at Ennore and Tuticorin and the said Societies are now managed by Special Officers. The Board of Management in each Society consists of four nominees of the first Respondent and four members representing the workers besides a full time Secretary. The Secretary will be a nominee of the State Government and the President of the Society will be an officer of the first Respondent/Board, nominated by the Chairman. In view of the fact that the Management Board comprises of five nominees of the first Respondent, no decision can be independently taken by the representatives of the workmen in the Management Board. The Societies get work orders from the first Respondent for executing various works and no contract is executed between the first Respondent on the one hand and Respondents 2 and 3 on the other. The contract works done by the Societies are of permanent and perennial nature. The first Respondent used to sanction funds from time to time for the purpose of running the Societies. Routine works such as cleaning and handling of materials in Thermal Power Stations are usually given to them. When the workmen of the Societies demanded payment of bonus, the first Respondent sanctioned the same for the year 1990. The payment of salaries to the workmen is supervised by the officers of the first Respondent and for all practical purposes, they are the employees of the first Respondent itself. There are about 689 workers in the second Respondent/Society and 504 workers in the third Respondent/Society. They are employed in various processes and departments, directly and principally in connection with the generation of electricity. The workmen have put in more than five years of service. A sub-Committee was constituted by the Advisory Board under the Contract Labour (Regulation and Abolition) Act, 1970, (hereinafter referred to as the Act) for the purpose of considering the abolition of contract labour in the various processes and departments of the first Respondent. Inspite of recommendations made by the Advisory Board on the basis of the report of the sub-Committee, the State Government did not issue any orders for abolition of contract labour in the first Respondent Board. The Petitioner filed W.P. No. 555 of 1990 under Article 32 of the Constitution of India before the Supreme Court. When notice was issued by the Apex court, the Government of Tamil Nadu passed G.O. Ms. No. 950, (Labour and Employment Department) dated 8.8.1990 abolishing the engagement of contract labour for 19 processes. With reference to the remaining categories, the Petitioner sought for further directions in the Supreme Court and the State Government was directed to consider the same. The said writ petition is still pending. The Officials functioning under the Act cancelled the licence given to the second Respondent Society by order dated 30.10.1990. Notwithstanding the same, the first Respondent is extracting work from the workmen engaged by the two societies and is continuing the operations. In respect of workmen who are not engaged by the Societies, the matter was taken to the Supreme Court, which appointed a Commission presided over by Justice V. Khalid, who was requested to give a report on the matter. The Commission gave its report on 11.2.1991 and recommended absorption of contract labour in the post of Helper in view of their long service and experience gained by them. The first Respondent after failing in its challenge against the Report, started absorbing the contract labourers as regular employees and the said process is continuing, though at a snail''s pace. The employees of the second and third Respondent/Societies have better rights than the employees covered by the report of the commission, which necessitated the Petitioner to approach the first Respondent for the absorption of such employees. A meeting was held on 6.1.1992 and it was decided that the question of absorption would be considered after the absorption of the contract labourers covered by the Commission''s report. When the Petitioner represented that the Commission report related only to workers on the Distribution Side and it had nothing to do with the workers in the Thermal Stations, the Chairman of the first Respondent Board said that the matter would be discussed separately with the Member (Generation) in charge of the Thermal Stations and that a decision would be taken before the next meeting. The two Societies floated by the first Respondent are only agents of the first Respondent and they do not have any independent existence and their activities are closely monitored and controlled by the Board. If the corporate veil of the Societies is pierced, the face of the Board will be clearly revealed. As the matter of absorption is pending before the Supreme Court, the Petitioner is not raising the question in this proceeding. However, with reference to the service conditions and wages of the employees, in so far as the employees of the first Respondent are concerned, they are governed by various bi-partite settlements, the latest of which is dated 31.7.1989. The last cadre in the Board''s employees is that of Helpers who are paid Rs. 870/- per mensem by way of salary and the proportionate Dearness Allowance in Rs. 618/- . per mensem. The Helper is also entitled to get house, rent allowance, City Compensatory Allowance, Medical Allowance, Thermal Allowance and Thermal Incentive Bonus etc., Though the employees of the Societies are virtually the employees of the first Respondent Board and they are doing similar work, they are not paid on equal terms as the employees of the Board. As per the provisions of the Act and the Rules framed thereunder, it is the liability of the first Respondent who is the Principal Employer'', to see that the employees of the Contractor get the same wages as that of its own employees doing similar work. The first Respondent by order dated 20.6.1992 fixed the daily rale of wages for workmen engaged by the second Respondent society at Rs. 25/- and by order dated 20.5.1992 fixed the daily wages for the workmen of the third Respondent Society at Rs. 23/- . The said wages are very much below the wages paid to the lowest category of the workers of the first Respondent and hence, the fixation of wages by the first Respondent at Rs. 25/- and Rs. 23/- per day is illegal and unjust. The workers are virtually the employees of the first Respondent Board and they do not have any direct relationship with the Societies.
The claim made in the affidavit as regards the status of the workers on Whose behalf the writ petition has been filed, is not clear and obviously, the Petitioner is in two minds. While on the one hand, the Petitioner asserts that the workmen of the two Societies are really the employees of the first Respondent and they have no relationship directly with the Societies, in the same breath, the Petitioner asserts, on the other hand that the workmen engaged by the two Societies are entitled to the benefits of the Act. It is also stated in the affidavit that the Petitioner is not raising the question of absorption of the said workers in this proceeding as it is a matter pending before the Supreme Court. If the workmen are really the employees of the first Respondent, it is not known how the Petitioner could invoke the provisions of the Act. However, the arguments advanced on behalf of the Petitioner are only on the footing that the employees engaged by the two Societies viz., Respondents 2 and 3, are contract labourers and the Societies are the contractors, whereas the first Respondent is the principal employer. It is also made clear, in the course of arguments that the Petitioner is only seeking a declaration from this Court that the workers in question are entitled to get wages equal to that of the employees of the first Respondent/Board doing similar work and proceedings will be taken by the Petitioner separately before the appropriate forum for the purpose of computation of such wages and recovery of the same.
In the counter affidavit filed by the first Respondent, the following contentions are raised: The first Respondent is engaging a number of contractors for the execution of various works in its projects, which range from highly skilled job of erection of generating machinery and construction of transmission lines and sub-stations to unskilled nature of work like cleaning and handling materials etc., The contractors employed large number of labourers who do jobs like house-keeping, gardening, maintenance, overhauling, transport of materials etc., With a view to avoid exploitation by middlemen and in order to ensure a fair deal to contract labourers, Industrial Cooperative Service Societies were formed for contract labourers in Thermal Stations so as to give them the unskilled works. The first Respondent also participated in the share capital of the Societies and gave interest free loans for working capital. The contracts awarded to these Societies by the first Respondent/Board are only work contracts and not labour contracts. The Board of Directors of the Societies consists of representatives of member workers and officers of the Tamil Nadu Electricity Board. An officer of the Industries Department/Government of Tamil Nadu in the rank of Deputy Director of Industries and Commerce has been drafted by the first Respondent to work as the Secretary/Managing Director of the Societies, on deputation. As at present, the Societies are manned by the Special Officers appointed by the Industries Commissioner and Director of Industries and Commerce with effect from 28.7.1991. The two Societies are governed by the Tamil Nadu Cooperative Societies Act, 1983 and the provisions of the Contract Labour (Regulation and Abolition) Act will not apply. The members of the Societies will not be the employees of the Societies and there is no jural relationship of master and servant between the Society and the members thereof. Respondents 2 and 3 are formed with workers with a strength of 665 members and 450 members respectively. They are getting several benefits as set out in the counter affidavit. On the question of fixing the wages for the members of the Society, it was found that the provisions of the Minimum Wages Act will alone be applicable and the employments listed in the Schedule to the Act does not contain any of the processes of work in the power generation units. Hence, the first Respondent Board was fixing, from time to time, the wages for the members of the Societies on the basis of the recommendations made by the Secretary/Managing Director of the Society. The wages are being increased from time to time and in the last fixation, the increase was by Rs. 5/- per day. Apart from the salary, the members of the Society are also getting corresponding benefits like leave salary, Provident Fund, Gratuity, Bonus, compensation payment etc., The members of the Society are not employees of the first Respondent. The claim of the Petitioner Union that it has a substantial following among the workmen is put to strict proof and the representative character of the Petitioner union to espouse the cause of the members of the Society is questionable. The works entrusted to the Societies by the first Respondent are on the basis of nomination and not by any contract. The works are purely of unskilled nature in connection with house-keeping. It has been the experience of the first Respondent that the daily-rated workmen doing work of unskilled nature after absorption in Board service are reluctant to do the work of such nature and it is apprehended that if the members of the Society are absorbed in the employment of the first Respondent, they will refuse to perform the work of menial nature. The members of the Societies are in fact given more benefits than the other contract workers. Even assuming that the Act would apply to them, the present proceeding is not maintainable. The Petitioner should follow the procedure prescribed in the Rules. The averment that the members of the Society are doing the same work as done by the Helpers or other employees of the first Respondent, is not correct. While the work of the members of the Societies is unskilled in nature, the work of the regular workers of the first Respondent is of semi-skilled or skilled in nature. The members of the Societies cannot be compared with the Helpers who are the employees of the first Respondent and the claim that they should be paid the wages payable to the Helpers is unsustainable. As regards the cancellation of licence issued to the Societies, the matter is still under consideration of the Government and it is not a closed issue. With reference to the One Man Commission appointed by the Supreme Court, lists of workers were furnished by the Unions to the Commission. If the members of the Societies are not covered by the said lists, they are not eligible for regularisation as per the Report of the Commission. Presumably because they are not contract workers, they were not included in the lists given by the Unions before the Commission. The attempts made by the other Unions of the Board to implead them in the deliberations before the Supreme Court and to consider regularisation of contract workers belonging to their Unions failed, as the Supreme Court rejected their case and restricted the applicability of the recommendations of the Commission to 18006 contract workers considered by the Commission. As regards the request made by the Petitioner Union to the Chairman of the first Respondent, the matter is to be discussed at a High Level Meeting and a decision will be taken soon. The members of the Societies are not doing the same or similar work as the employees of the first Respondent and are, therefore, not eligible for equal pay. The writ petition is not maintainable and deserves to be dismissed.
As stated earlier, the Petitioner is not raising the question of absorption of the workers in this petition. Hence, it is not necessary to consider whether the workers are entitled to get absorbed by the first Respondent on the footing that the licence issued to the Societies under the Act has been cancelled and at present, the societies have no licence. The Respondents are questioning the locus standi of the Petitioner to maintain the writ petition on behalf of the members of the Societies. It is not in dispute that the Petitioner is one of the Unions and it took part in the bi-partite settlement dated 31.7.1989 u/s 18(1) of the Industrial Disputes Act between the workmen and the first Respondent. No doubt, the settlement was between the workmen and the first Respondent Board and not the members of the Societies. It is not the case of the Respondents that none of the members of the two societies is a member of the Petitioner/union. Whether the claim of the Petitioner that it has a substantial following among the workers is true or not, the Petitioner can maintain the writ petition for the relief prayed for in the petition.
It is not necessary in this case to decide whether the workers in question are governed only by the provisions of the co-operative Societies Act and that they cannot claim the benefits of the Contract Labour Act as I am taking the view that even if the latter Act applies, the Petitioner will not be entitled to get the relief prayed for in this proceeding. Reliance is placed by the Petitioner on Rule 25 of the Tamil Nadu Contract Labour Rules, 1973. Sub-rule 2(v)(a) of Rule 25 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, all conditions of service including wages and holidays shall be the same as applicable to the direct employees. The second part of the Rule is very important and it reads thus:
In case of any disagreement with regard to the same or similar kind of work, the same shall be decided by the Registering Officer having jurisdiction over the area. Any person aggrieved by the decision of the Registering Officer may prefer an appeal to the Commissioner or Labour within thirty days from the date of receipt of such decision and his decision shall be final.
In view of the said express provision, the remedy of the Petitioner is only to apply to the Registering Officer having jurisdiction over the area, under the Rule. In this case, there is a dispute or disagreement with regard to the claim made by the Petitioner that the members of the two Societies are performing the same or similar kind of work as the workmen directly employed by the first Respondent. There is a categorical denial in the counter affidavit filed by the Respondent that the work is in no way similar. It is also asserted that the members of the Societies are doing only unskilled work. The question of fact whether the work is of similar nature has to be decided only by the authority prescribed by the Rule. The principle of "equal pay for equal work" will apply only if the facts are established. When the basis of claim on facts is disputed, it is not possible for this Court to decide the issue under Article 226 of the Constitution of India, where there is a statutory authority prescribed for that purpose.
In B.H.E.L. Workers Association, Hardwar and Others Vs. Union of India and Others, , it is held that the question whether the work done by contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment, is a matter to be decided by the Chief Labour Commissioner under the Proviso to Rule 25(ii)(v)(a) of the Rules made by the Central Government. The Court observed that it had no option but to dismiss the writ petition with a direction to the Chief Labour Commissioner to enquire into the said question.
In Indian Airlines Vs. Central Government Labour Court, New Delhi and others, the Delhi High Court held that the only remedy of the workmen is to move an application u/s 33(2) of the Industrial Disputes Act, if there is no dispute that the type of work done by the workmen engaged by the contractor is the same as done by the workmen directly employed by the principal employer. The Court distinguished the ruling of the Supreme Court in B.H.E.L. Workers Association, Hardwar and Others Vs. Union of India and Others, .
In The General Secretary, Commercial Employees Association Vs. The Government of Tamil Nadu and others, , K.M. Natarajan, J. held that the dispute with regard to the type of work is to be decided only by the Chief Labour Commissioner and it cannot be decided by the Court. The learned Judge relied upon the observations of the Supreme Court in B.H.E.L. Workers Association, Hardwar and Others Vs. Union of India and Others,
In Shri Rajiv Gandhi''s Ex-Servicemen''s Airlines Transport Services Workers Union v. International Airports Authority of India, Madras Airport and Ors. (W.F. No. 10674 of 1989), Raju, J. by judgment dated 11.3.1992 held that it was not possible to issue a Mandamus directing the absorption of the workmen and treating them on par with the regular employees of the establishment as there was a dispute regarding the employer-employee relationship.
Counsel on both sides referred to the several rulings, both of the the High Courts and of the Supreme Court. I do not think it necessary to refer to them, as there is a dispute in this case relating to the question of fact, which can be decided only by the prescribed authority.
Learned Counsel for the Petitioner referred to the judgment of the Supreme Court in Dhirendra Chamoli and Another Vs. State of U.P., . The Court held in that case that the casual workers employed by Nehru Yuvak Kendra, Dehradun on the understanding that they would not be paid pay and allowances as paid to regular class IV workers, were entitled to equal pay and the Central Government was directed to accord to those casual workers, who were performing the same duties as regular Class IV employees, the same salaries and conditions of service. There was no dispute on the facts that the casual workers were doing the same work as the regular class IV employees. That ruling will have no bearing on the present case.
Learned Counsel for the Petitioner submitted that even as per the Regulations framed by the first Respondent Board, Watchman, Gardener and Sweeper are grouped together under the category of Helper. When the statutory rule has prescribed an authority to decide the issue, it is not possible to go into that question. If the said categories of workmen are grouped with the category of Helpers, and treated equally, it is a matter for the prescribed authority to take into consideration. But, it is stated categorically in the counter affidavit that qualifications required for the post of Helper are entirely different and the qualifications required for the posts in the menial service are much inferior. It is not necessary for me to consider that aspect of the matter.
Learned Counsel for the Respondents has brought to my notice some of the rulings of the Supreme Court relating to the rule "equal pay for equal work", In Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, it is held that equal pay must depend upon the nature of the work done and it cannot be judged by the mere volume of work. It is observed that there may be qualitative difference as regards reliability and responsibility and though the functions may be the same, the responsibilities will make a difference. It is also pointed out in that case that the problem about equal pay cannot always be translated into a mathematical formula and the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less and it may vary from nature and culture of employment.
In AIR 1989 29 (SC) the Court held that if the management, has for good reasons classified the posts into two categories with different scales of pay, the courts must generally accept unless it is demonstrated that such classification is patently erroneous, either in law or on facts and that the nature of work may be the same, but there may be qualitative difference in the performance.
In State of Andhra Pradesh and Others Vs. G. Sreenivasa Rao and Others, the Court held that "equal pay for equal work" does not mean that all the members of a cadre must receive the same pay-packet, irrespective of then-seniority, source of recruitment, educational qualifications and various other incidents of service. It was held that the abstract doctrine of equal pay for equal work" cannot be read in Article 14 and reasonable classification based on intelligible criteria, having nexus to the object sought to be achieved, is permissible.
In State of Rajasthan Vs. Gopi Kishan Sen, the Court negatived the contention that there should be parity in salary for both the trained and untrained teachers, as they are performing identical duties. The Court observed that the efficiency of a person having a higher qualification is likely to be better than a lesser qualified person, provided, of course, the qualification is of a nature likely to enable him to perform his duty better, and for that reason, there cannot be any legitimate objection to the grant of a better scale of pay.
Learned Counsel for the Petitioner places reliance on the judgment of the Supreme Court in The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., . In that case, the court applied the principle of "equal pay for equal work" and gave directions to the Government to pay salary to daily-rated and monthly-rated workmen at the rates equivalent to the minimum pay in the pay scales of regularly employed workmen doing similar work. They also directed the Government to frame a scheme for absorbing as many casual workers and monthly-rated workers as possible in regular cadre. Pursuant thereto, the State Government filed a Draft Scheme. After considering the provisions thereof, the Court gave directions for the purpose of giving a final shape to the scheme. The ruling will not have any bearing on the present case, as the basic question as to whether the work done by the members of the two societies is similar or same as the work done by the employees of the first Respondent.
One of the contentions raised by the Respondent is that the members of the two Societies are not employees of the Societies and they cannot claim to be workmen working under a contractor to attract the provisions of the Contract Labour (Regulation and Abolition) Act. Learned Counsel for the Petitioner relies on the judgment of a Division Bench of this Court in The Workmen of Salem Co-operative Motor Society for Ex-Servicemen Ltd. Vs. The Government of Tamil Nadu and Another, , in which it was held that a member of a Society can as well as its employee, as the society is a body corporate having its own separate personality. The Society in that case was carrying on transport business and some of the members were employed as drivers, conductors, cleaners and other workmen. In the present case, the two societies, who are Respondents 2 and 3, are not carrying on any business as corporate bodies. The Societies are formed by the workers who are the members and the first Respondent entrusts work to the members of the Societies on nomination basis. Whether the principle laid down by the Division Bench in the aforesaid case, would apply to the members of the two societies in this case is a moot question. That again has to be decided only by the appropriate authority. I do not express any opinion on the same.
I make it clear that I have not decided the question whether the members of the Societies, who are Respondents 2 and 3, are doing similar or same work as the employees of the first Respondent. I have not decided whether the members of the Societies are not entitled to the benefits of the Contract Labour (Regulation and Abolition) Act and whether they are governed only by the provisions of the Co-operative Societies Act; nor have, I decided whether the members of the Societies are employees of the said societies. The disputed questions have to be decided only by the appropriate authority. As such, the Petitioner is not entitled to claim the relief prayed for in the writ petition.
Hence, the writ petition is dismissed. There will be no order as to costs.