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Judgment
M.M. Sundresh, J.—This Writ Petition has been filed by the Airport Authority of India, challenging the impugned order passed by the
Authority under Rule 25(2)(v)(a)&(b) of Contract Labour (Regulation and Abolition) Central Rules, 1971, dated 27.04.2001, whereby it has
been held that the Members of the second Respondent in the category of safaiwala / cleaner / sweeper under the Contractor engaged by the
Petitioner are performing not the same, but similar work as performed by the corresponding category of directly employed workers of the
Petitioner.
The Members of the second Respondent Federation, are the employees of the third Respondent who was a contractor with the Petitioner. A
claim has been made by the second Respondent on behalf of his Members before the first Respondent, who is the Authority constituted under the
Contract Labour (Regulation and Abolition) Central Rules, 1971, claiming the same payment for the similar work done by the employees of the
Petitioner. After considering the entire materials placed before it, the first Respondent came to the conclusion that the materials would indicate that
the nature of work done by the Members of the second Respondent Federation is a similar work, as performed by workers directly employed by
the Petitioner. Being aggrieved by the said order passed by the first Respondent, the Petitioner has come forward to file the present Writ Petition.
The learned Counsel for the Petitioner submitted that the finding of the first Respondent itself is to the effect that the nature of work is not the
same but similar. The learned Counsel further submitted that considering the fact that the Members of the second Respondent are distinct and
different from the permanent employees of the Petitioner, the same salary payable to such permanent employees of the Petitioner cannot be
extended to others. In other words, the learned Counsel contended that the classification being different, they cannot be treated alike and
therefore, in law they are not entitled to be treated alike while making the payment. In support of the said contention, the learned Counsel has
made reliance upon the following judgments:
State of Punjab v. Surinder Singh (2007) 13 SCC 231
Official Liquidator Vs. Dayanand and Others,
Union Territory Administration, Chandigarh And Ors. v. Manju Mathur and Ors. (2011) 2 SCC 452
Per contra, Mr. K.M. Ramesh, learned Counsel appearing for the second Respondent submitted that in the present case on hand, the second
Respondent has approached the first Respondent, who is the competent authority to decide the same. The learned Counsel has made reliance
upon Rule 25 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 and submitted that in view of the specific clause provided
under Rule 25(2)(v)(a) of the Contract Labour (Regulation and Abolition) Central Rules, 1971, there cannot be any discrimination between the
workmen employed by the contractor performing the same or similar kind of work as to that of workmen directly employed by the principal
employer. The learned Counsel submitted that when an Authority constituted under the Rules based upon the materials placed before it comes to
the conclusion that as per Rule 25(2)(v)(a) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 the Members of the second
Respondent are entitled to have the same payment, the said decision does not warrant any interference at the hands of this Court in exercise of its
power under Article 226 of the Constitution of India. The learned Counsel seeks to make a distinction by submitting that while the power of this
Court under Article 226 of the Constitution of India in granting the relief by holding that two groups of employees are similar and same in nature is
very much limited, when the Authority constituted under the relevant rules came to the conclusion based upon materials placed before it, the same
cannot be interfered with. The learned Counsel submitted that the judgment relied upon by the Petitioner do not apply to the facts of the case as in
those cases the issue was as to whether a temporary and casual employee is entitled to the same benefits as to that of the permanent employee,
even though doing the same or similar work. In support of the said contentions, the learned Counsel has made reliance upon the following
judgments:
Panki Thermal Station and Another Vs. Vidyut Mazdoor Sangthan and Others,
B.H.E.L. Workers Association, Hardwar and Others Vs. Union of India and Others,
Admittedly it is the specific case of the second Respondent that twenty of its members have been engaged by the third Respondent being their
contractor. A factual finding has been given by the first Respondent to the effect that the work undertaken by the Members of the second
Respondent are similar in nature to that of the permanent employees of the Petitioner. In fact, the first Respondent has also made strong remarks
and observations about the conduct of the Petitioner in refusing to give the particulars sought for. Therefore considering the materials relevant for
the purpose of deciding the issue, a factual finding has been given by the first Respondent by going into the issue in detail. Hence, as submitted by
the learned Counsel for the second Respondent, Mr. K.M. Ramesh, this Court cannot review the said finding, as there is nothing to indicate any
perversity warranting interference.
The judgments relied upon by the learned Counsel for the Petitioner do not have any relevancy to the case on hand. In State of Punjab v.
Surinder Singh (2007) 13 SCC 231, the Honourable Apex Court, while considering the question of equal pay for equal work has held as follows:
The principle of equal pay for equal work has undergone a sea change. Earlier the view of this Court was that if two persons are discharging the
same functions, they will be entitled to same wages. Subsequently this view has been changed and now the view of this Court is that there should
be complete and total identity between the two persons similarly situated so as to grant equal pay for equal work. Recently this Court has held that
identity between two persons has to be complete and total. In case of a regular appointee, he has undergone a selection process and his services
are regular. Even if a daily wage employee is discharging the same functions as a regular employee the authorities are not bound to grant equal pay
to such a person who is appointed on daily-wage basis i.e. is appointed for a short term and has not faced the selection process. Thus, the
principle of equal pay for equal work has to be granted only if there is a total and complete identity between the two persons. In this view, we are
supported by a decision of this Court in S.C. Chandra and Others Vs. State of Jharkhand and Others, which has referred to earlier decisions of
this Court.
In the aforesaid decision one of us (Markandey Katju, J.) in his concurring judgment has held that granting pay scale is an executive or legislative
function, and not a judicial function. There is separation of powers under the Constitution between the three organs of the State, and the judiciary
should not encroach into the domain of the other organs. Montesquieu''s theory of separation of powers broadly applies in India too.
Similarly, in a recent pronouncement in Union Territory Administration, Chandigarh and Ors. v. Manju Mathur and Ors. (2011) 2 SCC 452 the
Honourable Apex Court has held as follows:
This Court has held in a recent case State of Madhya Pradesh and Others Vs. Ramesh Chandra Bajpai, that the doctrine of equal pay for
equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not
determinative of equality in the matter of pay scales and that the Court has to consider several factors and only if there was wholesale identity
between the holders of the two posts, equality clause can be invoked, not otherwise.
This Court has also held in State of Haryana and Others Vs. Charanjit Singh and Others, etc. etc., that normally the applicability of principle of
equal pay for equal work must be left to be evaluated and determined by an expert body and these are not matters where a writ court can lightly
interfere. This Court has further held in this decision that it is only when the High Court is convinced on the basis of material placed before it that
there was equal work and of equal quality and that all other relevant factors were fulfilled, it may direct payment of equal pay from the date of filing
of the respective writ petition.
In the pronouncement made in Official Liquidator Vs. Dayanand and Others, in paragraph 95 it has been observed by the Honourable Apex
Court has held as follows:
The ratio of Randhir Singh v. Union of India (supra) was reiterated and applied in several cases - Dhirendra Chamoli v. State of U.P. (supra),
Surinder Singh and Anr. v. Engineer-in-Chief, CPWD and Ors. (supra), Daily Rated Casual Labour v. Union of India (supra), Dharwad District
P.W.D. Literate Daily Wage Employees'' Association v. State of Karnataka (supra) and Jaipal and Others Vs. State of Haryana and Others, and
it was held that even a daily wage employee who is performing duties similar to regular employees is entitled to the same pay. However, in
Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, ; Mew Ram Kanojia
Vs. All India Institute of Medical Sciences and Others, ; V. Markendeya and Others Vs. State of Andhra Pradesh and Others, ; Harbans Lal and
Others Vs. State of Himachal Pradesh and Others, ; State of U.P. and Others Vs. J.P. Chaurasia and Others, ; Grih Kalyan Kendra Workers''
Union Vs. Union of India and others, ; Ghaziabad Development Authority and others Vs. Sri Vikram Chaudhary and others, ; State of Haryana
Vs. Jasmer Singh and others, ; State of Haryana Vs. Surinder Kumar and others, ; Union of India (UOI) and Others Vs. K.V. Baby and Another,
; State of Orissa and Others Vs. Balaram Sahu and Others, etc. etc., ; Utkal University and Another Vs. Jyotirmayee Nayak and Others, ; State
of Haryana and Another Vs. Tilak Raj and Others, ; Union of India (UOI) Vs. Tarit Ranjan Das, ; Apangshu Mohan Lodh and Others Vs. State
of Tripura and Others, ; State of Haryana and Others Vs. Charanjit Singh and Others, etc. etc., ; Hindustan Aeronautics Ltd. v. Dan Bahadur
Singh (supra); Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara (supra) and Canteen Mazdoor Sabha Vs. Metallurgical Engg.
Consultants (I) Ltd. and Others, the Court consciously and repeatedly deviated from the ruling of Randhir Singh v. Union of India (supra) and held
that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and
accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of
recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience, confidentiality, functional
need etc.
The said judgments of the Honourable Apex Court do not deal with the similar situation on hand, in which the employees concerned have
approached the authorities under the Contract Labour (Regulation and Abolition) Central Rules, 1971. The issue in those cases was fixation of pay
between casual and a permanent employee. The issue has been raised directly either before the Central Administrative Tribunal or before the High
Court, which ultimately ended before the Honourable Supreme Court. Therefore, this Court is of the view that the said judgment relied upon by the
learned Counsel for the Petitioner, do not have any application to the case on hand.
In order to appreciate the issue before this Court, it is relevant to extract Rule 25(v)(a) of the Contract Labour (Regulation and Abolition)
Central Rules, 1971. The same is extracted hereunder:
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 favourable 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(ii)(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(ii)(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(ii)(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(ii)(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(ii)(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.