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Judgment
M. Venugopal, J.—The Petitioner has preferred the instant writ of Certiorari in calling for the records of the 1st Respondent in Proceedings
No. 20(3)/2002-A2/DY.CLC(C)(SZ) dated 29.09.2004 and to quash the same. The Resume of facts:-
The Petitioner/Airports Authority of India (International Airports Division) is a statutory body under the Airports Authority of India Act, 1994. In
order to carry out its various incidental functions, it engages contract Labourer through various contractors. Two such contractors are in respect of
the 3rd Respondent/M/s. SLK Contract Services, Chennai 78, who supplies workmen for the purpose of loading and unloading of cargo on the
import side of the Cargo Division and in respect of 4th Respondent/M/s. Santham Contractor, Chennai 53 who supplies workmen for the purpose
of bird scaring.
According to the Petitioner, the Second Respondent projected an application under Rule 25(2)(v)(a) and (b) of the Contract Labour
(Regulation and Abolition) Central Rules, 1971, in and by which they made a claim for payment of equal wages has been paid to the lowest
category of the unskilled employees of the Petitioner.
Although a notification was issued u/s 10 of the Contract Labour (Regulation and Abolition) Act, on 16.11.1999 abolishing workmen in certain
areas of work. However, in so far as the Petitioner is concerned, the said notification was quashed by the High Court of Delhi. The judgement of
the High Court of Delhi was upheld by a Division Bench of the same Court and SLP against the same came to be rejected.
The Petitioner/Management filed a detailed counter (in respect of application under Rule 25(2)(v)(a) and (b) of the Contract Labour (Regulation
and Abolition) Central Rules, 1971, filed by the Second Respondent) in and by which, a plea was taken to the effect that the workmen were not
entitled to the claim made in their petition. Further, the case of the Petitioner is that it does not employ any persons directly for the same or similar
kind of work as was being done by the workmen provided by the Respondents 3 and 4 and as such, the first Respondent/Authority came to the
conclusion that Rule 25(2)(v)(a) and (b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, did not apply and proceeded to
consider the matter under Rule 25(2)(v)(b) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. As a matter of fact, while
determining the wages, holidays and hours of work and other conditions of service are required to be taken into account by the First Respondent
prevailing in similar employments.
The First Respondent through an order dated 29.09.2004, inter alia, passed the following order:-
After going through in detail the observation by the Hon''ble Justice of the Apex Court in the Air India Statutory Corporation & Union of India and
others it is unfair on the part of the contractor and the principal employer to pay Rs. 57/- to Cargo loaders and Rs. 65.50 to bird scarers. The
Authority has to decide the wage rates, conditions of services under Rule 25(2)(v)(b) and while determining the above, the Authority shall have
due regard to the wage rate, holidays, hours of work and other conditions of services obtaining in similar employment. The Authority has come to
the conclusion that since in the same vicinity of Chennai Airport, M/s. Blue Dart Aviation Ltd., is paying Rs. 120/- per day to their cargo loaders,
115 cargo loaders of M/s. SLK Contract Services should also be paid Rs. 120/-. The same (Rs. 120/-) is made applicable to the bird scarers
engaged by M/s. Santham Contractor, as both the jobs are unskilled category which becomes effective from 1st October, 2004. The hours of
work are reasonable. As regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be
provided on par with the regular employees employed by the Airport Authority of India, Chennai and also as provided under the Contract Labour
(Regulation & Abolition) Act, 1970 and Rules made thereunder. Necessary clauses may be incorporated in the contract agreement made between
the PE and the contractor.
Further, in the impugned order of the First Respondent dated 29.09.2004, it is inter alia mentioned that '' . . . . . . The present petition before the
Authority is not for absorption but only for wages as per clause 25(2)(v)(a) & (b) or at the same rate being paid to the unskilled workers in the
Civil Maintenance Section at Chennai Airport or at the rate paid to the cargo loaders at Delhi Airport etc. Continuing further, the said order makes
a reference to the following point raised on behalf of the principle employer viz.,
(i). As long as there is no regular employees in the field of loading and unloading of cargo loaders which was admitted by the petitioner during the
proceedings held on 13.11.2003 at Bangalore and the members of the union do not perform the duties as being performed by the regular
employees of the Airport Authority of India.
(ii). The instant petition is ultra vires under Rule 25(2)(v)(a) of CL (R & A) Act. In as much as the Government of India has withdrawn the circular
dated 16.11.1999 vide its order dated 13.12.2002 the relief sought for in the petition is not maintainable and it has to be dismissed in limine.
(iii). For the purpose of the instant application, Airport Authority of India, (IAD) Chennai Airport is a separate entity under the proviso Section 2
of the CL (R & A) Act, 1972.
Moreover, the First Respondent/Deputy Chief Labour Commissioner (Central) (South Zone) in the impugned order dated 29.09.2004 has
among other things observed that ''. . . . if the workers directly employed by the PE can claim the wages due to them by moving an application u/s
33 C2 of the I.D. Act, the workers employed by the contractor are also entitled to claim the wages due to them by moving an application u/s 33
C2 of the I.D. Act.''
In this connection, this Court relevantly points out that in the application dated 02.12.2002 of the Second Respondent, it is stated that the
workers mentioned in Sl. No. 1 to 6 are paid only just Rs. 57/- per day and that they are not given any weekly off or any Dearness Allowance to
off set the increase in cost of living. As a matter of fact, in the application of Second Respondent dated 02.12.2002, the subject portion refers to
''Implementation of the policy of equal wages for equal work''. That apart, an appeal has been made to the First Respondent/Authority to issue
necessary directions to the Writ Petitioner to grant wages to workmen in terms of Rule 25(2)(v)(a) & (b) of CL (R & A) Act.
Besides the above, the First Respondent in the impugned order dated 29.09.2004 has observed that ''The Petitioner union himself has admitted
that the principal employer viz Airport Authority of India, IAD Division, Chennai do not employ cargo loaders and bird scarers at Chennai Airport.
Hence, this Authority cannot decide the case under the said Rule 25(2)(v)(a) of CL (R & A) Central Rules, 1971 as there are no directly
employed cargo loaders workmen of PE doing the same or similar kind of work''.
The Learned Counsel for the Petitioner urges before this Court that the Petitioner is aggrieved in regard to the issuance of direction by the First
Respondent that the Contract worker should be given holidays, leave and other conditions of service on par with the regular employees is an
erroneous one.
In the writ petition a ground is taken on behalf of the Petitioner that the First Respondent has relied upon the wage slip issued by Hitex
Maintenance to S. Sivakumar, a loader for the month of April, 2004 and he was allegedly working in the Indian Airlines of Chennai Airport and
was being paid at Rs. 123/- per day etc.
Another ground taken in the writ petition on behalf of the Petitioner is that the order of the First Respondent making the same pay of loaders
applicable to the birds scarers is totally in violation of the Rule etc.
It is to be pointed out that no industry has right to exist unless it is able to pay its workmen at least a bare minimum wage. If it an employer
cannot maintain his enterprise without cutting down the wages of his employees below even a bare subsistence or minimum wage, in the considered
opinion of this Court. He has no right to conduct his business/enterprise as the case may be. Further, in the decision Cominco Benani Zinc. Ltd., V.
Papachan (1989 LLR page 123 (ker.), it is held that if the contractor fails to pay wages to his employees engage by him the principle employee
will be liable to pay the same.
In fact, CL (R & A) Act, 1970, does not over ride the ingredients of Industrial Disputes Act, 1947, as opined by this Court. At this stage, this
Court aptly points out the decision of the Hon''ble Supreme Court Labourers Working on Salal Hydro Project Vs. State of Jammu and Kashmir
and Others, , it is held that senior officers must ensure the compliance with the provisions of Section 21 of CL (R & A) Act.
Also, in the decision T. Chandra Mohan Nair V. Fertilizers and Chemicals Travancore Ltd., (1994 LLR at page 626 (Ker.), it is held ''that
there is no automatic absorption of labourers in regular employment''.
Moreover, once a contractor''s establishment is covered under the minimum wages Act, the employees engage through contractor shall be
entitled to wages as determined under the Act, in the considered opinion of this Court. Further, there is a marked distinction between a daily wages
and a permanent employee as per decision of Hon''ble Supreme Court Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another,
. In yet another decision of the Hon''ble Supreme Court Surendra Nath Bandey V. U.P. Co-operative Bank Ltd., ( 2010 LLR (SN) at page 893
(SC)), it is held that ''daily wagers cannot claim regular pay scale as a matter of right.''
The aforesaid grounds taken on behalf of the Petitioner relating to a copy of wage slip issued to S. Siva Kumar, loader by Hitex Maintenance
and the other ground making the same pay of loaders applicable to the bird scarers by the First Respondent in the impugned order dated
29.09.2004 are not pressed before this Court because of the fact that difference in wages u/s 33(c)(2) of the I.D. Act, 1942 have been paid to the
workers in question.
It is further submitted on behalf of the Petitioner that although the rule does not cast any obligation in regard to the grant of all other benefits on
par with the regular employees, the only option was that it should be on par with the conditions obtained in similar employment. In effect, the stand
of the petitioner is that there is no finding of fact that the contract labourers working in similar employment are having the holidays, hours of work
and other conditions of service which are the same as the regular employees of the Airports Authority of India. As such, the direction issued by the
First Respondent in this regard in the order dated 29.09.2004 is an illegal one.
In the present Writ Petition, the Petitioner although has taken a ground that the order of the First Respondent dated 29.09.2004 making the
same pay of loaders applicable to the bird scarers is totally in violation of the rule, and that the 1st Respondent yet it is fairly submitted before this
Court on behalf of the Petitioner that ground is not projected before this Court and the same is given up.
The Learned Counsel for the Petitioner submits that in Chennai there are no aerobridge operators. Also that, the Petition in C.P. No. 3 of
2005 on the file of Central Industrial Tribunal paid the difference of wages relating to the payment of minimum wages as ordered by the First
Respondent. Further, the Learned Counsel for the Petitioner brings it to the notice of this Court in W.P.M.P. No. 9035 of 2005 in W.P. No. 8366
of 2005 on 14.03.2005, this Court passed an order of Interim Stay in all respects except with regard to wage rate fixed in the impugned order.
Conversely, it is contention of the Learned Counsel for the 2nd Respondent that the impugned order of the First Respondent dated
29.09.2004 in entirety does not suffer from any serious material irregularity or patent illegality in the eye of law. Since it has taken into account all
the relevant attendant facts and circumstances of the case in an integral fashion and therefore, the same need not be interfered with by this Court at
this distant point of time.
The Learned Counsel for the Second Respondent cites the decision of this Court C. Umapathy Vs. The Manager (Marketing), Tamilnadu
Dairy Development Corporation, Madras and Others, , wherein in paragraph No. 4, it is observed and held as follows;
On going through the order of the 3rd respondent, I find that he has not discussed the salient features of Ex. R. 1 the contract entered into
between the petitioner and the Corporation, to find out as to whether the petitioner can be characterised as ''a person employed'' within the
meaning of the Act, Equally so, the third respondent has not discussed the evidence placed by the parties on this aspect. It is contended on behalf
of the petitioner that the Corporation cannot, in the present writ petition canvass the findings which have gone against it before the third respondent,
and on that ground, sustain the order of the third respondent. I am not able to sustain this approach of the petitioner. The reasons are as follow:-
The ultimate order passed by the third respondent has ensured to the benefit of the Corporation. Hence, there is no scope for the Corporation to
approach this Court independently agitating over this aspect. The Supreme Court in Management of Northern Railway Co-operative Society Ltd.
Vs. Industrial Tribunal, Rajasthan, Jaipur and Another, was prepared to apply the principles of rule 22 of Order XLI of the CPC in the matter of
an appeal before it against the order of an industrial tribunal, even though in the rules of the Supreme Court there was no rule analogous to rule 22
of Order XLI of the CPC and held that the party is entitled to support the decision of the tribunal even on grounds which were not accepted by the
tribunal or on other grounds which may not have been taken notice of by the tribunal while they were patent on the face of the record. Learned
Judges of the Supreme Court referred to two Judgments of the same court, one is Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsinji and
Others, and the other in Powari Tea Estate v. Barkataki [ 1965 II L.L.J. 102]. In my view, the same principles should be invoked in writ
jurisdiction also while canvassing orders passed by authorities similar to the third respondent. There is no scope for the party who has ultimately
succeeded before the statutory tribunal and authority to approach this Court under Article 226 of the Constitution of India for the only purpose of
canvassing a particular finding which has gone against him. There is a possibility that a relevant aspect or material already on record which, if
properly assessed and considered, would have led to a finding being rendered on that aspect in favour of the party concerned. It would be
equitous for this court, in the exercise of its jurisdiction under Art. 226 of the Constitution of India, to permit such a party to canvass those aspects
and support the ultimate order of the tribunal or authority on grounds, which have been negatived by it. In Ramanbhai Ashabhai Patel v. Dabhi
Ajitkumar Fulsinji (supra) the Supreme Court observed as follows:
Apart from that, we think that while dealing with the appeal before it, this court has the power to decide all the points arising from the judgment
appealed against and even in the absence of an express provision like Order XLI Rule 22 of the Code of Civil Procedure, it can devise the
appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions
of a general law like the CPC and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose
favour the judgment appealed from has been given will not be granted special leave to appeal from it. Consideration of justice, therefore, requires
that this court should in appropriate cases, permit a party placed in such a position to support the judgment in his favour even upon grounds which
were negatived in that judgment.
The above observations indicate a salutary principle and on the basis of equity and justice the same could be applied to writ jurisdiction also. Since
I have found that apart from bare reference to Ex. R-1 there has been no discussion of its contents or of the other evidence on record on this
aspect, it is not possible to sustain this finding of the third respondent against the Corporation. Then, the only course open to this court is to remit
the matter back to the third respondent for adjudication on this question afresh.
Also, he relies on the decision of this Court in Airports Authority of India, rep. By its Airport Director, Coimbatore Airport, Coimbatore Vs.
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 and others (2012 (1) LLN 604 (Mad.) at special page 609 to 611,
whereby and whereunder in paragraph 10 to 13, it is observed and held as under;-
In order to appreciate the issue before this Court, it is relevant to extract Rule 25(2)(v)(a) of the Contract Labour (Regulation and Abolition)
Central Rules, 1971. The same is extracted hereunder:
Rule 25(v)(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.
The provision contained under Rule 25(v) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, makes it very clear that in a
case where the Workman concerned is employed by a contractor performs the same or similar kind of work as the workmen directly employed by
the Principal Employer, then the benefits to such a person shall be the same, as applicable to the Workmen directly employed by the Principal
Employer. Therefore, the said Rule mandates that the benefits should be equal both to a Workmen engaged by a Contractor as against the
Workmen engaged by the Principal Employer. Hence, considering the said provision, coupled with the factual finding given by the first respondent,
this Court is of the view that the contention of the learned counsel for the petitioner cannot be accepted. In B.H.E.L. Workers Association,
Hardwar and Others Vs. Union of India and Others, considering the very same Rules, it has been held by the Honourable Apex Court in the
following manner:
....... Section 12 provides for the licensing of contractors. Sections 13, 14 and 15 provide for the grant of licences, revocation, suspension and
amendment of licences and Appeal. Sections 16 to 21 make detailed provision for the welfare and health of contract labour. Section 20 in
particular provides that if any amenity required to be provided for the benefit of the contract labour employed in an establishment is not provided
by the contractor within the prescribed time such amenity shall be provided by the principal employer. Section 21 makes the contractor
responsible for payment of wages to each worker employed by him as contract labour but further prescribes that the principal employer shall
nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. Sections 22 to 27 provide
for penalties and procedure. Section 28, provides for the appointment of inspecting staff. Section 30 makes the provisions of the Act effective
notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract of service or any standing
orders applicable to the establishment. It, however, saves to the contract labour any favorable benefits that the contract labour may be entitled to
under the agreement, contract of service or Standing Orders. Section 35 invests the appropriate Government with power to make rules for
carrying out the purposes of the Act. Rules made by the Central Government are required to be laid before each House of Parliament for a total
period of 30 days. In exercise of the powers conferred by Section 35 of the Contract Labour (Regulation and Abolition) Act, 1970, the Central
Government has made the Contract Labour (Regulation and Abolition) Central Rules, 1971. Chapter II of the Rules relates to matters pertaining to
the Central Advisory Contract Labour Board while Chapter III of the Rules deals with registration of establishments and licensing of contractors.
Rule 25 prescribes the forms, terms and conditions of licence. Rule 25(2)(iv) prescribes that it shall be the condition of every licence that the rates
of wages shall not be less than the rates prescribed under the Minimum Wages Act, 1948 for such employment where applicable, and where the
rates have been fixed by agreement, settlement or award, not less than the rates so fixed. Rule 25(2)(v)(a) prescribes that it shall be the condition
of every licence that,
(v)(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:
Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Chief Labour Commissioner
(Central) whose decision shall be final;
Similarly Rule 25(2)(v)(b) provides that 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 Chief Labour Commissioner (Central). While determining the wage rates,
holidays, hours of work and other conditions of service under Rule 25(2)(v)(b) the Chief Labour Commissioner is required to have regard to the
wage rates, holidays, hours of work and other conditions of service obtaining in similar employments. There is no dispute before us that the
Payment of Wages Act applies as much to contract labour as to labour directly employed by the principal employer of the establishment.
Thus, we see that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of
work and conditions of service as are applicable to Workmen directly employed by the principal employer of the establishment on the same or
similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the
principal employer under the appropriate industrial and labour laws. If there is any dispute with regard to the type of work, the dispute has to be
decided by the Chief Labour Commissioner (Central). It is clear that Parliament has not abolished contract labour as such but has provided for its
abolition by the Central Government in appropriate cases u/s 10 of the Contract Labour (Regulation and Abolition) Act, 1970. It is not for the
Court to enquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any
establishment should be abolished or not. This is a matter for the decision of the Government after considering the matters required to be
considered u/s 10 of the Act. Similarly 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(2)(v)(a). In these circumstances, we have no option but to dismiss both the writ petitions but with a direction to the Central
Government to consider whether the employment of contract labour should not be prohibited u/s 10 of the Act in any process, operation or other
work of the BHEL, Hardwar. There will also be a direction to the Chief Labour Commissioner to enquire into the question whether the work done
by the workmen employed by the contractors is the same type of work as that done by the workmen directly employed by the principal employer
in the BHEL, Hardwar.
The said decision of the Honourable Apex Court has been quoted with approval in a subsequent pronouncement in Panki Thermal Station and
Another Vs. Vidyut Mazdoor Sangthan and Others, wherein, it has been held as follows:
A bare reading of the provision makes the position clear that in cases where 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 wage rates, holidays, hours of work and other
conditions of service of the Workmen of the contractor shall be the same as are applicable to the (sic Workmen of the) principal employer. In case
of disagreement with regard to the type of work the same shall be decided by the Commissioner.
Hence, considering the facts of the case, coupled with the position of law and after considering the object behind the Contract Labour
(Regulation and Abolition) Central Rules, 1971, this Court is of the view that the order impugned is perfectly in order and no interference needs to
be called for. Accordingly, the Writ Petition is dismissed. No costs.
At this stage, this Court pertinently points out that the Second Respondent/Chennai Airport Contract Workers'' Union in Ref. No.
CWU/02/214 dated 02.12.2002 addressed to the First Respondent had mentioned that they stated about the disparity of wages paid to 33
sweepers employed by the Indian Airlines Chennai as Contract Labour. Further, they had stated that there is another organization at Chennai
Airport who are employing a large number of contract workers whose wages are much lesser than what is paid by the Indian Airlines and furnish
the list of such contract workers employed by the International Division of the Airports Authority of India which is also a public Sector undertaking
under the Ministry of Civil Aviation. They are as follows:-
Workers employed for the operation of aerobridged 17 workers.
Workers employed for the operation of Lifts 10 workers.
Workers employed for the retrieval of passengers Trolleys 40 workers.
Workers engaged for the loading and unloading of Cargo 115 workers.
Workers engaged for clearing of shrubs in the operational area 19 nors.
Workers engaged for bird scaring operations 28 workers.
Added further, it is mentioned by the Second Respondent in the letter dated 02.12.2002 that these workmen were paid only just Rs. 57/- per
day and they were not given any weekly off or any Dearness Allowance to off asset the increase in cost of living. They were paid wages for the
whole month only if they work for all the 30 days in a month and requested the First Respondent to interfere in the matter and prayed for issuance
of necessary directive to the management of the International Division of Airports Authority of India to give them wages in terms of Rule 25(2)(v)
(a) & (b) of the Contract Labour (Regulation & Abolition) Act.
That apart, the Second Respondent in their letter dated 02.12.2002 addressed to the First Respondent had stated that the Hon''ble Supreme
Court of India in the order dated 01.09.2000 in Civil Appeal No. 6064-65 of 1998 had specifically expressed their view that the workers directly
recruited by the employer and some other employed through the contractor when performing the same worker, there could not have any scope for
making any difference in wages for equal work. Further more, it is averred on the side of the Petitioner in their letter dated 02.12.2002 that in
respect of the Airports Authority of India, at all the Airports where aerobridges are installed, these are operated by their regular workmen except
at Chennai. Similarly for operation of Lifts at all other Airports these works are carried out by regular workmen except at Chennai. Similarly at
Calcutta Airport, the work of loading and unloading of cargo is being carried out through regular workmen at the same at Chennai contract
workers are deployed with such a low wages of 67/- per day even without giving them weekly rest periods etc.
Finally, the Second Respondent through its letter dated 02.12.2002 had requested the First Respondent to insist upon the employer whenever
a new work order is issued to any new contract, it should be with a condition that the existing workmen should be absorbed by the new contractor
for the same work.
The writ Petitioner filed a reply stated dated 27.01.2004 specifically mentioned that the subject petition is not maintainable either on facts or in
Law for the reason that there are no regular employees in the field of Cargo handling, Aerobridges, Bush cutting and Bird scaring Operations at
Chennai Airport. Also, it is stated that it is an admitted fact by the Petitioner (The second Respondent in Writ Petition) that there are no regular
employees at Chennai in aforesaid categories.
A glance of the contents of reply statement filed by the Writ Petitioner (before the First Respondent/Authority, Bangalore) indicates that the
Management had stated that the subject petition is not maintainable, in view of the fact that Contract Labourers filed various writ Petitions for
absorption and inter alia for payment of equal wages, which are pending for final disposal. As long as the said Writ petitions are pending for the
same relief by the similar set of contract labourers the present application is not maintainable because of the principle of Res sub-judice. As per the
Government of India circular dated 16.11.1999 recommending for equal wages for equal work was withdrawn by CACLB vide its 52md Meeting
held on 12/13/12-2002 at Delhi. Also, it has been stated that recommendation is beyond the purview of CLRA Act.
Further, the plea of the Petitioner is that the Second Respondent''s prayer to insist AAI (IAI) that the new contractor may be directed to
absorb the then contract labourer as and when contract changes is not maintainable because of the decision of the Hon''ble Supreme Court in the
matter of SAIL Vs. United Labour Union and others.
The categorical stand taken on behalf of the Writ Petitioner is that the First Respondent, while passing the impugned order on 29.09.2004, has
not appreciated Rule 25(2)(v)(a) & (b) of the Contract Labour (Regulation & Abolition) Central Rules, 1971 and further, he has not rendered a
finding of fact that the Contract Labourers working in similar employment are having the holidays, hours of work and other conditions of service
which are the same as that of regular employees of the Airports Authority of India.
As far as the Petitioner is concerned, it does not employ any person directly for the same or similar kind of work as was being done by the
workmen provided by the 3rd and 4th Respondents and therefore, the First Respondent/Authority in the impugned order dated 29.09.2004 came
to the conclusion that Rule 25(2)(v)(a) of CL (R & A) did not apply etc.
According to the Learned Counsel for the Second Respondent Rule 25(2)(v)(a) & (b) of the C.L. (R & A) Central Rules, 1971, as stated
supra, are mandatory in character and in fact, the First Respondent has assigned cogent, coherent and convincing reasons for arriving at a right
conclusion in the subject matter in issue.
In this connection, this Court, to prevent an aberration of justice and to promote the substantial cause of justice, extracts the relevant
paragraphs of the impugned order dated 29.09.2004 passed by the First Respondent, which runs as follows;-
The Authority has to decide the wage rates, conditions of services under Rule 25(2)(v)(b) and while determining the above, the Authority shall
have due regard to the wage rate, holidays, hours of work and other conditions of services obtaining in similar employment. The Authority has
come to the conclusion that since in the same vicinity of Chennai Airport, M/s. Blue Dart Aviation Ltd., is paying Rs. 120/- per day to their cargo
loaders, 115 cargo loaders of M/s. SLK contract Services should also be paid Rs. 120/-. The same (Rs. 120/-) is made applicable to the bird
scarers engaged by M/s. Santham Contractor, as both the jobs are unskilled category which becomes effective from 1st October, 2004. The
hours of work are reasonable. As regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service
should be provided on par with the regular employees employed by the Airport Authority of India, Chennai and also as provided under the
Contract Labour (Regulation & Abolition) Act, 1970 and Rules made thereunder. Necessary clauses may be incorporated in the contract
agreement made between the PE and the contractor.
A reading of Rule 25(2)(v)(b) explanation makes it lucidly clear that ''while determining the wage rates, holidays, hours of work and other
conditions of service under (b) above, (the Deputy Chief Labour Commissioner (Central)) shall have due regard to the wage rates, holidays, hours
of work and other conditions of service obtaining in similar employments''.
By placing reliance on Rule 25(2)(v)(b) of the Contract Labour (Regulation & Abolition) Central Rule, 1971, the Learned Counsel for the
Petitioner strenuously contends that the ingredients of the aforesaid Rule were not been adhered to by the First Respondent, while regarding a
finding of fact that the Contract Labourers working in similar employment are having the holidays, hours of work and other conditions of services
which are the same as that of regular employees of the Airports Authority of India.
It is to be pointed out that employer''s capacity to pay has no bearing in fixing the minimum wages of employees. Such a consideration is
antilogous to the principles enshrined within the constitution of India, as per decision U. Unichoyi and Others Vs. The State of Kerala,
At this stage, this Court aptly points out that the minimum wages must be paid by an employer notwithstanding the want of financial capacity as
per decision of Hon''ble Supreme Court in Woolcombers of India Ltd. Vs. Woolcombers Workers Union and Another,
In the decision Bijay Cotton Mills Ltd. Vs. The State of Ajmer, it is held that it is a criminal offence not to pay minimum wages fixed under the
provisions of the Act.
This Court, at this juncture worth recollects the decision B. Ramdas V. The Authority under Minimum Wages Act, Guntur Region, Guntur and
others (1987 LAB. I.C. 1493), wherein, it is observed and held as follows:-
While making the enquiry into the claim petition under S. 20 of the Minimum Wages Act, the Authority acts in quasi-Judicial capacity and it should
ensure that no prejudice is caused to the employer by failure to follow the rules of natural justice. Whatever evidence is in possession of the
authorities must be squarely put to the employer and his explanation should be obtained. It is imperative in each case to put the employers on
notice regarding the nature of enquiries and the result of enquiries made behind their back and to give them every opportunity to lead evidence in
rebuttal. In a case where the workmen themselves made a representation directly alleging short payment of minimum wages or making far more
serious allegations as in the present case that the employer recovered a part of the money after payment, the employer should be put on notice
regarding such representation by workmen and be given an opportunity to show that the representation of the workmen is untrue. If the workmen
making allegations are not willing to come forward, the Authority cannot act upon their representations. The rules of natural justice require that a
person cannot be visited with any consequences unless he has notice of acts of omission and commission alleged against him. It is not possible to
accept the plea that what all is stated by the workmen is sacrosanct and wholly true and whatever is stated by the petitioner who is an employer
must be rejected. There is no presumption that only workmen speak the truth and employers do not. While, broadly speaking, there is a general
tendency on the part of employers, who are mighty and strong, to exploit the workmen, there is also equal possibility of the workmen trying to
harass an employer by making unfounded allegations.
Also, in the decision Gujarat Electricity Board Vs. Hind Mazdoor Sabha, , it is held that the Industrial Tribunal is competent to decide that the
workers engage through the Contract will be entitled to same rights with other employees of principle employer were enjoying.
As far as the present case is concerned, in view of the fact that different in wages have been paid by the writ Petitioner, the Petitioner has no
grievance whatsoever. However, in regard to the plea advanced on behalf of the Petitioner that there is no finding of fact by the First Respondent,
in the impugned order dated 29.09.2004, that the contract labourers working in similar employment are having the holidays, hours of work and
other conditions of service which are the same as the regular employees of the Airports Authority of India.
It is to be pointed out that the First Respondent in the impugned order dated 29.09.2004 has observed to the effect that as regards the
holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular
employees employed by the Airport Authority of India, Chennai and also as provided under the Contract Labour (Regulation & Abolition) Act,
1970 and Rules made thereunder etc. It is latently and patently evident from the perusal of the aforesaid observation in the impugned order dated
29.09.2004 that the said authority has not ascribed necessary reasons as to how he has come to the conclusion that the contract workers should
be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport
Authority of India, Chennai etc., and in this regard, this Court very relevantly points out that there is no outline of process of reasoning mentioned
by the First Respondent as to how he has arrived at such a conclusion.
As a matter of fact, the First Respondent/Quasi Judicial Authority is bound to pass a speaking order in a qualitative and quantitative term when
he issues direction that the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with
the regular employees employed by the Airport Authority of India, Chennai, etc, only then the higher forum will have the benefit of testing the
benefit/efficacy of the order so passed.
In short, it can be safely said that a reasoned order will have an appearance of justice. To put it succinctly, this Court comes to an irresistible
conclusion that the observation of the First Respondent in the impugned order dated 29.9.2004 to the effect that as regards the holidays, the
contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular employees
employed by the Airport Authority of India, Chennai, etc., are bereft of necessary qualitative and quantitative details/reasonings. As such, the said
impugned order dated 29.09.2004 of the First Respondent to that extent is not legally valid in the eye of law, in the considered opinion of this
Court.
Moreover, what kind of relevant factors obtaining in similar employment that have been taken into account by the First Respondent at the time
of passing of the impugned order dated 29.9.2004 relating to the observations, as regards the holidays, the contract workers should be given
holidays, leave etc., and other conditions of service should be provided on par with the regular employees employed by the Airport Authority of
India, Chennai, etc., have not been spelt out explicitly or expressly in the said order as opined by this Court. Therefore, to prevent an aberration of
justice, this Court interferes with the impugned order dated 29.9.2004 passed by the First Respondent relating to the aspect as regards the
holidays, the contract workers should be given holidays, leave etc., and other conditions of service should be provided on par with the regular
employees employed by the Airport Authority of India, Chennai, etc., and sets aside the same. In the result, the writ petition is allowed in part,
leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed. Resultantly, the order passed by the First
Respondent dated 29.09.2004 as regards the holidays, the contract workers should be given holidays, leave etc., and other conditions of service
should be provided on par with the regular employees employed by the Airport Authority of India, Chennai, etc., is set aside by this Court for the
reasons assigned in this writ petition. However, this Court remits back the matter to the First Respondent with a direction that the First Respondent
is directed to pass a Fair, Objective and Dispassionate order on merits afresh, relating to the issue viz., the holidays, the contract workers should
be given holidays, leave etc., of course, after providing necessary opportunities to both parties if necessary to produce oral and documentary
evidence in the manner known to law and in accordance with law, within a period of three months from the date of receipt of copy of this order.
While doing so, the First Respondent shall adhere to the ingredients of Rule 25(2)(v)(b) of the Contract Labour (Regulation and Abolition) Central
Rules, 1971. It is open to the respective parties to raise all factual and legal pleas and also the parties are permitted to lead oral and documentary
evidences if they so desire/advised in the subject matter in issue pertaining to the issue relating to the holidays, and other conditions of service as
regards contract labourers working in similar employment which are purportedly the same as regular employees of Airport Authority of India. The
said exercise shall be done by the First Respondent within four months from the date of receipt of copy of this order.