IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.6613 of 2007 P.Alagappan .. Petitioner Vs. 1.M/s.Indian Oil Corporation Ltd., rep by its Managing Director, MPT Premises, Ghouse Mohiden Pettai Road, Royapuram, Chennai-600 013. 2.Alfred Rocha 3.The Presiding Officer, Central Government Industrial Tribunal cum-Labour Court, Chennai-600 006. 4.Government of India, rep by its Secretary, Department of Labour, "Shram Shakthi Bhawan" New Delhi-110 001. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the third respondent in connection with the order passed in C.P.No.15 of 2005 dated 04.04.2006 and quash the same insofar as the order denies relief against the first respondent and to direct in any event the Government of India the fourth respondent to hereby issue certificate for recovery as against both first and second respondents and to direct either the first or second respondents to pay back the arrears of wages and all other benefits to the petitioner herein. For Petitioner : Mr.S.S.Vasudevan For Respondent NO.2 : Mr.K.Pasupathy Respondent 1, 3 & 4 served: No appearance ORDER The petitioner has come forward to file the present writ petition to challenge an order passed by the third respondent Central Government Industrial Tribunal-cum-Labour Court (for short CGIT) made in C.P.No.15 of 2005, dated 4.4.2006 insofar as denied the relief against the first respondent Indian Oil Corporation Limited and seeks to set aside the order insofar as that relief is https://hcservices.ecourts.gov.in/hcservices/ concerned and also for a direction to the Government of India to issue a certificate for recovery against both first and second respondents as well as to direct the first or the second respondents to pay arrears of wages and other benefits. 2.The writ petition was admitted on 26.2.2007. Subsequently, in the petition for fixing an early date, this court by an order dated 12.6.2008 had directed the matter to be listed for final disposal during July, 2008, but for the reasons best known, the matter was not taken up. Despite notice being served, except for the second respondent, none appeared. 3.It is seen from the records that the petitioner had raised an industrial dispute against the first and second respondents relating to his non employment before the Assistant Labour Commissioner (Central), Chennai. Before the said officer, while the second respondent had appeared and filed counter, the first respondent remained absent. Thereafter, a failure report was sent by the Conciliation Officer to the Government of India. The Government of India by its order, dated 16.12.2002 had referred the issue to the tribunal for adjudication whether the termination of the services of the petitioner with effect from 4.3.2001 by the second respondent Contractor was justified and if not to what relief he is entitled to? 4.The said dispute was taken on file as I.D.No.18 of 2003. In that dispute, both the first and second respondents were aligned as respondents. Before the Tribunal, the first respondent had filed a counter statement, dated 22.08.2003 stating that they are only principal employer and the petitioner was engaged by the second respondent. Therefore, they have nothing to do with the claim made by the petitioner. The second respondent had also filed a counter statement dated 28.8.2003 alleging that the petitioner was a casual employee and on 10.3.2001, he did not turn up for work. There was no termination on their part. After trial before the CGIT, the CGIT found that the petitioner was receiving Rs.4000/- per month as salary and that his termination by the second respondent was illegal. Therefore, the petitioner was directed to be reinstated with 50% of backwages with continuity of service and other attendant benefits only by the second respondent. Insofar as the first petitioner was concerned, the CGIT found that there was no claim against the first respondent and if at all the claim can only be survived against the second respondent vide Award dated 20.4.2004. 5.As soon as the Award was passed, the petitioner's counsel wrote a letter dated 14.8.2004 asking the second respondent to comply with the award. But, there was no response. Hence a claim petition was filed under Section 33-C(2) claiming backwages as per the award vide application dated Nil (July, 2005). The said application was taken on file as C.P.No.15 of 2005 and notice was ordered to the first respondent also. The first respondent filed a counter statement, dated 24.8.2005, stating that since there was no relief against the first respondent, the claim petition was not https://hcservices.ecourts.gov.in/hcservices/ maintainable. The CGIT held that the relief is maintainable only against the contractor and not against the principal employer and therefore, no relief can be claimed against the first respondent. By order dated 4.4.2006, in paragraph 10 the CGIT held as follows: "10.The petitioner claimed 50% of back wages from 4.3.2001 to 31.5.2005 and also claiming 8.33% bonus which comes to Rs.1,19,936/- and the petitioner claimed Rs.2000/- as 50% of bak wages. He has not produced any document to show how he has arrived at the figure of Rs,2,000/- per month. Any how, the 2nd respondent remained ex-parte and he has not appeared before this Court to dispute the claim made by the petitioner." 6.After the said order came to be passed, the petitioner moved the Deputy Chief Labour Commissioner (Central), Chennai seeking for a certificate under Section 33-C(1) for collection of the amount of Rs.1,19,936/- as arrears of land revenue from the second respondent. Even after obtained the revenue recovery certificate, since no efforts were taken to recover the amount, the petitioner has come forward to challenge the order passed by the CGIT in which the CGIT had absolved the liability of the principal employer, i.e., the first respondent. 7.The short question that arises for consideration is on account of the liability of the contractor, whether the principal employer can be mulct with such liability?. The labour court did not advert to the said legal issue. Having recorded that the petitioner is an employee of the contractor, who was engaged by the first respondent principal employer, if the contractor did not make any payment towards wages and other benefits, certainly the principal employer can be mulct with the liability in terms of Section 21(4) of the Contract Labour (Regulation and Abolition) Act, 1970. Section 21(4) reads as follows : "“21(4)In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contract under any contract or as a debt payable by the contractor.” 8.In interpreting the provisions of Section 21(4), the Delhi High Court vide its judgment in Indian Airlines Vs. Central Government Labour Court, New Delhi and others reported in 1987 (70) FJR 379 = 1987 (2) LLJ 512 had observed as follows: "The workmen employed by the contractor are entitled to recover their wages and their conditions of service in the same manner as workers employed by the https://hcservices.ecourts.gov.in/hcservices/ principal employer under the appropriate industrial and labour laws. This means that if the workers directly employed by the principal employer can claim the wages due to them by moving an application under Sec.33C(2) of the Act, the workers employed by the contractors are also entitled to claim the wages due to them by moving an application under Sec.33C(2) of the Act." 9.In this case, the fact that the petitioner is the contract labour engaged by the second respondent, who was in turn engaged by the first respondent principal employer was admitted. The amount claimed is representing his wages for his non employment by the second respondent. Since the said amount has not been paid, the principal employer can be mulct with the liability of making such payment. Therefore, the impugned order insofar as absolving the liability of the first respondent is clearly in contravention of Section 21(4) of the Contract Labour (Regulation and Abolition) Act, 1970. 10.In the light of the above, the writ petition will stand allowed. The impugned order insofar as it absolves the liability of the first respondent is set aside. The first respondent is hereby directed to pay a sum of Rs.1,19,936/- covered by the certificate issued under Section 33-C(1) to the petitioner within a period of eight weeks from the date of receipt of copy of this order. However, there will be no order as to costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar vvk To 1.The Managing Director, M/s.Indian Oil Corporation Ltd., MPT Premises, Ghouse Mohiden Pettai Road, Royapuram, Chennai-600 013. 2.The Presiding Officer, Central Government Industrial Tribunal cum-Labour Court, Chennai-600 006. https://hcservices.ecourts.gov.in/hcservices/ 3.The Secretary, Government of India, Department of Labour, "Shram Shakthi Bhawan" New Delhi-110 001. 1 cc to Mr.K.Pasupathy, Advocate, Sr.No.40612 1 cc to Mr.S.S.Vasudevan , Advocate, Sr.No.40130 W.P.NO.6613 of 2007 sp(co) pmk.27.7.2011 https://hcservices.ecourts.gov.in/hcservices/