w w w . L a w y e r S e r v i c e s . i n



Hindustan Aeronautics Ltd Avionics Division Korwa Through v/s Deputy Chief Labour Commissioner (C) & Others


Company & Directors' Information:- HINDUSTAN AERONAUTICS LIMITED [Active] CIN = U35301KA1963GOI001622

Company & Directors' Information:- A O G AERONAUTICS PRIVATE LIMITED [Strike Off] CIN = U35303PB1989PTC009681

Company & Directors' Information:- R D AVIONICS PRIVATE LIMITED [Strike Off] CIN = U74999DL1977PTC008486

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

Company & Directors' Information:- AERONAUTICS INDIA LTD. [Strike Off] CIN = U99999DL2000PTC004006

    Service Single No. 7347 of 2004 & 1213 of 2005

    Decided On, 06 January 2020

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MRS. JUSTICE SANGEETA CHANDRA

    For the Appearing Parties: P.K. Sinha, Dipak Seth, C.S. Pandey, Maneesh Kumar Singh, Navita Sharma, S.P. Tripathi, D.K. Pandey, Advocates.



Judgment Text

Sangeeta Chandra, J.1. Heard the learned counsel for the parties and perused the record.2. This petition has been filed by the petitioner-Hindustan Aeronautics Limited (HAL), a Central Government Company in Cooperative Public Companies Act challenging the order dated 27.07.2004 passed by the Dy. Chief Labour Commissioner (Central), the opposite party no.1 allowing the application moved by the opposite party no.2-Korwa Safai Karamchari Union, HAL, Korwa Mandal, Amethi, Sultanpur.3. The opposite party no.1 has allowed the application moved by the Contract Safai Karamchari of the factory premises and directed them to be given the same wages as were admissible to unskilled regular employees of HAL Unit, Korwa.4. Shri Manish Kumar Singh appears on behalf of the opposite party no.2 i.e. Safai Karamchari Union relating to the factory premises only.5. It has been submitted by the learned counsel for the petitioner that initially the opposite party no.2-Korwa Safai Karamchari Union, of Sanitation Contract Labourers engaged in factory premises of the petitioner at HAL unit, Korwa, had filed a Writ Petition No.5715 (S/S) of 1996 praying for payment of same salary to them as paid to regular workers of the factory at Amethi. This Court by an order dated 02.04.1997 directed the opposite party no.2 to approach the Dy. Chief Labour Commissioner, under Rule 25 of the Rules of 1971, While disposing of the petition. Instead of approaching the Dy. Chief Labour Commissioner (Central) under the Rules of 1971, the opposite party no.2 filed an application before the Labour Commissioner U.P. under the U.P. Rules of 1975. The Labour Commissioner U.P. determined the wages by its order dated 04.041998 placing the reliance upon the earlier adjudication with regard to the Lucknow unit of HAL relating to Contract Sanitation Labourers therein.6. Against the order dated 04.04.1998, the petitioner filed a Writ Petition No.2254 (SS) of 1998, taking several grounds for challenge including a ground that the order passed by the U.P. Labour Commissioner was without jurisdiction. This Court passed a detailed order wherein it upheld the order passed by the U.P. Labour Commissioner under the U.P. Rules of 1975 saying that under the U.P. Contract Labour (Regulation & Abolition) Act, the appropriate Government was the State Government of U.P. as it had issued the license for the Contractor. The petitioner being aggrieved against the order passed by this Court on 18.09.2001 in Writ Petition No.2254 (SS) of 1998, filed a Civil Appeal No.3659 of 2002 which Civil Appeal was allowed by the Supreme Court by its judgment and order dated 18.07.2002, holding that the Central Government is the appropriate Government with respect to the petitioner's Establishment, and left it open for the Contract Labourers to approach the Dy. Chief Labour Commissioner (Central) for determination of their wages and other conditions of service under the Central Rules of 1971.7. The opposite party no.2 thereafter, filed an application under Rule 25 (2) (v) (b) of the Central Rules of 1971, praying that its members be given the same wages and other fringe benefits as were being given to directly recruited workmen of their Company working in the HAL Unit at Korwa. The opposite party no.1 issued notice to the petitioner and on 08.05.2003, the petitioner filed a written statement in the form of a preliminary objection, wherein it took the ground that the opposite party no.1 did not have the power to enter into such inquiry and determination retrospectively, as the Contract Labour Licenses had been issued a long time ago and the agreement with the Contractor was already in operation. A second ground raised with regard to the maintainability of the application was of non-joinder of necessary contractors who had engaged the contract labourers from 1985 till date. It was also specifically mentioned that the parity cannot be given to Korwa Mandal Contract Labourers with Lucknow Unit of HAL as it was situated in the heart of the City of Lucknow whereas the Korwa Mandal HAL Unit was situated in a remote area of District Sultanpur. If at all parity could be given, it could only be by comparing the wages and service conditions of the Industries situated in the Geographical area of Amethi. The petitioner had also filed a chart of wages and service conditions of workers of Bharat Heavy Electricals Limited and Indo Gulf Fertilizers Limited as exemplars. It was moreover, submitted that the petitioner's Establishment at Amethi/Korwa was an exempted Establishment by specific notification issued in respect of workers by the appropriate Government, where the Contractor used to pay closure compensation at end of contract period, and thus they were better placed than the Contract labourers of the petitioner's Establishment in Lucknow.8. The opposite party no.2 submitted a rejoinder reply on 20.12.2003 wherein it reiterated that the Labour Commissioner, U.P. by its order dated 29.04.1989 had already decided the issue as to what wages should be paid to contract labourers engaged in similar sanitation work in HAL Ltd. Lucknow. The order passed by the Labour Commissioner, U.P. on 28.04.1989 with regard to the contract labourers of Lucknow Division had been upheld by the High Court and the Special Leave Petition and Review Petition had been dismissed.9. It has been submitted by the learned counsel for the petitioner that the opposite party no.1, did not appreciate the matter fairly, although the petitioner had relied upon three judgments of the Supreme Court to show that the wages and other conditions of service of the opposite party no.2 shall only be governed by the wages and other conditions of service of the similarly situated workers in Industries located in the same Geographical region. The opposite party no.1 also failed to apply its mind to the objection raised regarding non-joinder of the necessary parties, and that no retrospective determination could be made under Rule 25 (2) (v) (b) of the Rules of 1971 by the opposite party no.1.10. It has been submitted that the opposite party no.1 also failed to appreciate that the petitioner was paying the wages equivalent to the workers of engineering Industry under State Government Notification which was much higher than the wages that were being paid to similarly situated workers of Industries situated in the same Geographical area for example Bharat Heavy Electricals Limited and Indo Gulf Fertilizers Limited.11. It has also been submitted that the opposite party no.1 failed to appreciate the distinction between the Rule 25 (2) (v) (a) and Rule 25 (2) (v) (b) of the Rule of 1971, under Rule 25 (2) (v) (a) Contract labourers who are discharging the same or similar duties as workmen functioning directly under the principal employer were to be given the same wages and conditions of service, as such, directly recruited regular workmen. The opposite party no.2, on the other hand, had filed an application under Rule 25 (2) (v) (b) of the 1971 Rules, thereby admitting that they were not performing the same or similar duties and functions as regularly recruited workmen of HAL unit and Korwa, Amethi. Therefore, a determination had been asked for, from the opposite party no.1 by the opposite party no.2.12. It has also been submitted that when the determination of wages and conditions of service of Lucknow Division was undertaken by the order dated 28.04.1989, it related to Lucknow Division alone and the same could not have been relied upon by the opposite party no.1. A fresh determination was required by the opposite party no.1 necessarily implying independent application of mind to all relevant considerations.13. It has been submitted that in between the wages of Group-A workmen directly recruited in the Establishment of Korwa Unit, Amethi, and the minimum wages notified under the Minimum Wages Act by the State of U.P. one Pay scale was available, that was the scale determined by the Engineering Wage Board and, therefore, the petitioner's Unit at Korwa fairly relied upon such wages as fixed by the Engineer Wage Board, and extended the benefit to the said contract labourers as opposite party no.2.14. Learned counsel for the Korwa Safai Karamchari Union at HAL Factory premises at its Korwa Unit, Amethi, Sultanpur, Shri Manish Kumar Singh, has pointed out that in the same Industry i.e. HAL there were several units functioning at Bangalore, Kanpur, Lucknow and Amethi. With regard to the Unit at Lucknow, sanitation workers performed the same duties as was performed by sanitation workers at the factory premises of HAL unit at Amethi, they belonged to the same Geographical region and the factories were situated at a distance of mere 125 kms. from each other. In identically situated units on same work being performed, similar wages and conditions of service to contract labourers had been given by the opposite party no.1 and the order passed by the opposite party no.1 dated 27.07.2004 needs no interference by this Court.15. It has been pointed out that the Labour Commissioner on 29.04.1989 with regard to contract labourers working at Lucknow unit had passed an order that they be given the same wages and conditions of service as were given to unskilled regular workmen of HAL unit at Lucknow. Against such order the petitioner had filed a Writ Petition No.4353 (SS) of 1989 which was disposed of on 28.01.1994 by this Court holding that the Engineering Wage Board Notification was not applicable to the petitioner's Establishment and upheld determination of wages to be paid to the contract labourers as fixed by the Labour Commissioner on 29.04.1989. Against such order dated 29.04.1989 the petitioner filed a Special Leave Petition before the Supreme Court which was dismissed in liminie. A Review Petition was filed thereafter, by the petitioner which was also dismissed by the Supreme Court on 28.09.1994. The determination made with regard to the Lucknow unit of Sanitation workers was therefore, rightly relied upon by the opposite party no.1 in passing the order impugned.16. With regard to the non-joinder of necessary parties i.e. the Contractors who were engaged from time to time at Amethi Unit by the petitioner since 1985 onwards, till the date of filing of the application and adjudication by the opposite party no.1, the statement recorded of Dy. Manager (Works) on 10.03.2004 filed as Annexure-10 to the writ petition, has been read out by Shri Manish Kumar Singh. He says that from a bare perusal of such statement, it is evident that it was admitted by HAL witnesses themselves that the Contractor used to pay wages and extend other fringe benefits to the Contract labourers only in accordance with the license agreement signed by the HAL where the determination was done by the HAL. The HAL was the principal employer and under Section 21 of the Act of 1971, the principal employer alone is responsible to give fair and just wages to the contract labourers. The Contractor was only executing the service conditions that were fixed by the HAL.17. With regard to the retrospective determination, and the objections raised by the learned counsel for the petitioner, Shri Manish Kumar Singh, has pointed out that from a perusal of the order impugned, it is evident that the opposite party no.1 has extended benefit only with effect from 01.02.2003 i.e. from the month and the year of submission of the application before the Authority concerned under the Rules. There was no necessity for impleading contractors who had been engaged by the HAL through license agreement since 1985.18. Learned counsel for the petitioner in rejoinder has submitted that there can be no retrospective determination i.e. with effect from the date of the application was filed, as such determination as contemplated under Order Rule 25 (2) (v) (b) has to occur before the license agreement is unsigned by HAL.19. This Court cannot appreciate this argument, as a determination made with prospective effect would be meaningless for those contract labourers who had approached the Authority concerned for a just and fair adoption of their assignments and conditions of service. It is a settled law that all adjudication by a quasi-judicial or by Judicial Tribunal is retrospective in nature, and the rights and liabilities of the parties are crystallized at the time of filing of application before the Authority concerned. If prospective application is given to such orders as passed by the Authority concerned, including the courts, it would mean that the benefit of the adjudication would not be available to the parties before the Court, but to all such future contract labourers for which license agreement would be signed in the future by the petitioner's Establishment.20. This Court has carefully perused the order dated 27.07.2004. The opposite party no.1 has carefully noted the arguments raised by the learned counsel for the petitioner-HAL before the Authority concerned in Paragraph-7 onwards and thereafter considered each of the submissions in the light of the submissions made by the opposite party no.2 before it. It has also referred to and considered the judgements cited by the learned counsel for the petitioner herein namely French Motor Car Co. Ltd. V. The Workmen, (1963) AIR SC 1327, and Workmen of Orient Paper Mills Ltd. Vs. Ms. Orient Paper Mills Ltd., (1969) AIR SC 976. The Authority has also considered the difference in language sought to be argued by the counsel for the HAL in Rule 25 (2) (v) (a) and 25 (2) (v) (b) of the Rules of 1971, and has observed that if workmen employed by the contractor performed the same or similar kind of work as workmen directly employed by the Principal employer of the Establishment, they shall be entitled to get the same wages and conditions of service etc. under Rule 25 (2) (v) (a). Determination is required under Sub Clause (b) in cases where Clause (a) does not cover the wage rates and conditions of service of workmen of the contractor. Such determination occurs when the grievance occurs, and for a redressal of grievance a forum is provided under Rule 25 (2) (v) (b) of the Rules. It is only when a dispute arises over the rate of wages and other conditions of service and an application is made under the Rule, the Dy. Chief Labour Commissioner has jurisdiction to conduct an inquiry and determine the wages. They may be the same as that of regular directly recruited workers or may be a different, the right of the labourers to approach the Dy. Chief Labour Commissioner (Central) under Rule 25 (2) (v)(b) cannot be curtailed if a cause of action arose on the issue of wages and the conditions of service such cause of action arises to the Contract labourers when their wages and other fringe benefits are determined and spelled out in the license agreement and not before.21. Each of the arguments raised by the learned counsel for the petitioner HAL has been dealt with in great detail by the Authority concerned including the arguments that no parallel can be drawn with Lucknow unit of HAL and enquiry should be made only on Region-cum-Industry basis. In order to substantiate their arguments, they had cited three judgments of Hon'ble the Supreme Court as quoted in para 7.5 of the said order. The opposite party no.1 has rightly come to the conclusion that there cannot be any other suitable comparison other than with the HAL unit, Lucknow which is a sister concern of HAL situated at Amethi located within the distance of only 125 kms. in the same Geographical region in the same State. There was no justification to compare with industries engaged in completely different areas of work like BHEL and Indo Gulf Fertilizers. It does not stand to reason that when the same category of employees at HAL, Lucknow are being paid wages of regular employees, why the such benefit should not be extended to the employees engaged by the

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contractor at Korwa Unit.22. It was moreover, observed by the opposite party no.1 that when the workmen engaged on sanitation duty in other units of HAL like Kanpur, Koraput, Nasik, Hyderabad and Bangalore are regular workmen, and not engaged through contractors, and getting the wages and all other benefits like any other regular employee.23. A detailed determination of wages to be paid to contract labourers engaged in sanitation work at Korwa Unit has been done at the rate of minimum wages paid to unskilled workers of HAL, Korwa. Since the contract workers were already covered by the beneficial Statutory scheme like Provident Fund, Payment of Bonus Act, etc. such benefit was continued to be given. Moreover, the determination was made with regard to the paid Holidays, Casual Leave, Earned Leave and Uniform etc. also in the order impugned.24. I have carefully perused the order passed by the Dy. Chief Labour Commissioner. The distinction sought to be drawn by the learned counsel for the petitioner with HAL Lucknow unit of the same employer, the petitioner, has not been such as would lead to different wages being given to workers at Korwa Unit. This Court does not find any good ground to show interference in writ jurisdiction.25. This petition is dismissed.26. No order as to costs.Writ Petition No.1213 (SS) of 2005- This petition was filed by the petitioners, the Union of Contract Sanitation workers at Korwa Unit, Amethi, challenging the order dated 27.07.2004 passed by the Deputy Chief Labour Commissioner (Central), praying for enhancement.Learned counsel for the petitioner Sri Manish Kumar Singh, has been instructed by his Client, not to press this petition, in view of the order passed by this counsel in Writ Petition No.7347 (SS) of 2004.
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