IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 OP.No. 19419 of 2000(J) --------------------------------- PETITIONER(S): --------------------- THE KERALA STATE SECURITY STAFF ASSOCIATION, REG. NO.01-10-97, REPRESENTED BY ITS JOINT SECRETARY SRI.C. SASIDHARAN, VALIYAVEEDU, ATTINKUZHY, KAZHAKKOOTTAM P.O., THIRUVANANTHAPURAM. BY ADV. MR.THOMAS ABRAHAM RESPONDENT(S): ------------------------- 1. MALABAR CEMENTS LTD., WALAYAR P.O., PALAKKAD DISRICT, REPRESENTED BY ITS MANAGING DIRECTOR. 2. MANAGING DIRECTOR, INDUSTRIAL SECURITY FORCE, 92-C, KANIYAMUTHUR, COIMBATORE-8. 3. DY. CHIEF LABOUR COMMISSIONER (CENTRAL), SOUTH ZONE, III MAIN, III CROSS, II PHASE, TUMKUR ROAD, YESWANTHPUR, BANGALORE. 4. REGIONAL LABOUR COMMISSIONER (CENTRAL), KALATHIPPARAMBIL ROAD, KOCHI. R1 BY MR.B.S.KRISHNAN, SENIOR ADVOCATE, ADV. MR.K.ANAND (A.201), SMT.LATHA KRISHNAN R2 TO R4 BY ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/03/2009, ALONG WITH O.P. NO.23019 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 19419/2000-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 16/12/1999 OF THE HONOURABLE SUPREME COURT OF INDIA SLP NO.18194 OF 1999 FILED BY THE PETITIONER. EXT.P1(a): COPY OF THE LIST OF THE 52 WORKMEN REFERRED TO IN EXHIBIT P1 ORDER. EXT.P2: COPY OF THE PTITION DATED 31/07/1999 FILED BEFORE THE CHIEF LABOUR COMMISSIONER (CENTRAL) NEW DELHI. EXT.P3: COPY OF THE LETTER NO.31(1)/99-L.SIII DATD 27/10/1999 OF THE CHIEF LABOUR COMMISSIONER (CENTRAL) TO THE 3RD RESPONDENT. EXT.P4: COPY OF THE PETITION DATED 19/09/1999 SUBMITTD BY THE UNION TO THE 3RD RESPONDENT AUTHORITY. EXT.P4(a): COPY OF THE APPLICATION IN THE PRESCRIBED FORMAT FILED ALONG WITH EXHIBIT P4 PETITION. EXT.P5: COPY OF THE ORDER DATED 30/06/2000 OF THE 3RD RESPONDENT AUTHORITY. EXT.P6: COPY OF THE REPRESENTATION DATED 04/07/2000 BY THE PETITIONER UNION SUBMITTED TO THE 1ST AND 2ND RESPONDENTS. EXT.P7: COPY OF THE ORDER NO.42 (31) 2000/B3 DATED 04/08/2000 OF THE REGIONAL LABOUR COMMISSIONER (CENTRAL) ERNAKULAM. RESPONDENT'S ANNEXURE : ANNEXURE A1: COPY OF THE ORDER OF THIS HONOURABLE COURT IN C.M.P. NO.32413/2000 IN O.P. NO. 19419/2000-J DATED 11/07/2000. //TRUE COPY// P.A. TO JUDGE Rs/ S.SIRI JAGAN, J. ================== O.P.Nos. 19419 & 23019 of 2000 ================== Dated this the 2nd day of March, 2009 J U D G M E N T These two original petitions arise from the same order passed by the Deputy Chief Labour Commissioner (Central) under the Contract Labour (Regulation and Abolition) Act, 1970. O.P.No. 23019/2000 is filed by the principal employer and O.P.No.19419/2000 is filed by the union claiming to represent contract workers employed by the petitioner in O.P.No.23019/2000 through the 2nd respondent contractor. The union filed a petition before the Deputy Chief Labour Commissioner (Central) for fixing wages of contract employees employed by the principal employer through the contractor in exercise of powers under Rule 25(2)(v)(b) of the Act. This Court also directed the Deputy Chief Labour Commissioner (Central) to consider and pass orders on the petition filed by the 1st respondent union in accordance with law. Pursuant thereto, the Deputy Chief Labour Commissioner (Central) passed Ext.P4 order in O.P.No.23019/2000, which is the same as Ext.P5 in O.P.No. 19419/2000. O.P.No. 23019/2000 is filed by the principal employer challenging that order and O.P.No. 19419/2000 is filed by the union seeking a direction to the principal employer to implement that order. 2. The contention of the principal employer is that the Deputy o.p.19419/00 & cc 2 Chief Labour Commissioner (Central) does not have any power to pass Ext.P4 order. According to the counsel for the principal employer. powers under Rule 25(2)(v)(b) can be invoked only at the time of renewal of licence to be issued to the contractor. Here Ext.P5 order [in O.P.No. 19419/2000] was not in relation to renewal of licence issued to the contractor. Therefore, the Deputy Chief Labour Commissioner (Central) does not have jurisdiction to pass orders in question. The second contention raised by the principal employer is that the Deputy Chief Labour Commissioner (Central) could not have fixed wages relying on wages paid to security guards in other establishments which are not establishments under the Government of Kerala. The counsel for principal employer would contend that the principal employer is a Government company owned by the Government of Kerala and therefore, wages comparable to other State Government establishments alone could have been relied on for the purpose of fixing wages of the contract employees. Lastly he would contend that the amounts as directed in the impugned order cannot be paid to either the contractor or the union and it can only be paid to the workers who actually worked in the establishment. According to him, no employees have come forward with any claim and only the union has come. He would also submit that the employees have disowned any connection with the union who have claimed to espouse their o.p.19419/00 & cc 3 cause and since the real employees do not have any grievance, the Deputy Chief Labour Commissioner (Central) ought not to have passed the impugned orders. 3. In answer to the contention, the counsel for the union would submit that under Rule 25(2)(v)(b), power is conferred on the Deputy Chief Labour Commissioner (Central) to fix the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor and whether it is in relation to renewal of licence of a contractor or not, it is the wage rates so fixed by Deputy Chief Labour Commissioner (Central) which shall be payable by the petitioner to contract employees. Further, if the contractor applied for renewal of his licence, renewal of the licence shall be subject to the conditions prescribed in Rule 25, one of which is that the wages as fixed by the Deputy Chief Labour Commissioner (Central) shall be paid to the contract employees, for which purpose the Deputy Chief Labour Commissioner (Central) has to specify the rate of wages. By the order impugned by the principal employer, the Deputy Chief Labour Commissioner has only specified such rates of wages. According to him, that is perfectly with jurisdiction and there is no merit in the contention raised by the principal employer with regard to that. He also relies on the decision of the Supreme Court in M/S.GAMMON INDIA LTD. AND OTHERS v. UNION OF INDIA & o.p.19419/00 & cc 4 OTHERS [(1974) 1 SCC 596] wherein the validity of Rule 25(2)(v) has been upheld by the Supreme Court. 4. Regarding the second contention the counsel for the union points out that in the explanation to Rule 25(2)(v)(b) it has been specifically stipulated that while determining the wage rates the Deputy Chief Labour Commissioner (Central) shall have due regard to the wage rates obtaining in similar establishments, which only has been done in the order in question. The counsel for the union also strongly disputes the contention of the employer that the union does not represent the contract labour of the principal employer. 5. I have considered the rival contentions in detail. 6. Rule 25 of the Contract Labour (Regulation and Abolition) Act, reads thus: “25. Forms and terms and conditions of licence.- (1) Every licence granted under sub section (1) of section 12 shall be in Form VI. (2) Every licence granted under sub-rule (1) or renewed under rule 29 shall be subject to the following conditions, namely:- (i) the licence shall be non-transferable; (ii) the number of workmen employed as contract labour in the establishment shall not, on any day, exceed the maximum number specified in the licence; (iii) save as provided in three rules, the fees paid for the grant, or as the case may be, for renewal of the licence shall be non-refundable; (iv) the rates of wages payable to the workmen by the contractor shall not be less than the rates prescribed under the Minimum Wages Act, 1948 (11 of 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; o.p.19419/00 & cc 5 (v)(a) in cases where the workman 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). (b) 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); Explanation.-While determining the wage rates, holidays, hours of work and other conditions of service under (b) above, the Chief Labour Commissioner shall have due regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employments; (vi)(a) in every establishment where twenty or more women are ordinarily employed as contract labour, there shall be provided two rooms of reasonable dimensions for the use of their children under the age of six years, (b) one of such rooms shall be used as a play room for the children and the other as bed room for the children, (c) the contractor shall supply adequate number of toys and games in the play room and sufficient number of cots and beddings in the sleeping room, (d) the standard of construction and maintenance of the cheches shall be such as may be specified in this behalf by the Chief Labour Commissioner (Central); (vii) the licencee shall notify any change in the number of workmen or the conditions of work to the licensing officer; (viii) the licences [sic] shall, within fifteen days of the commencement and completion of each contract work submit a return to the Inspector, appointed under section 28 of the Act intimating the actual date of the commencement or, as the case may be, completion of such contract work in Form VIA. (ix) a copy of the licence shall be displayed prominently at the o.p.19419/00 & cc 6 premises where the contract work is being carried on; (x) no female contract labour shall be employed by any contractor before 6. 0 a.m. or after 7.00 p.m. Provided that this clause shall not apply to the employment of women in pithead baths, creches and canteens and so to mid wives and nurses in hospitals and dispensaries. After a careful reading of the rule, I am unable to countenance the contention of the principal employer that under Rule 25, the Deputy Chief Labour Commissioner (Central) does not have power to determine wages payable to contract employees. Rule (2) of course says that every licence granted under sub rule (1) or under Rule 29 shall be subject to the conditions enumerated in that sub rule. One of the conditions is Rule (v)(b). If the licence is to be renewed or renewal is to be subject to the conditions mentioned therein, necessarily the Deputy Chief Labour Commissioner has to determine the wage rates payable to the contract workmen. That being so, the Deputy Chief Labour Commissioner (Central) does have jurisdiction to fix wage rates as prescribed under Rule 25(2)(v)(b) which only has been done in the order which is impugned by the principal employer. In fact in GAMMON INDIA LTD.'S case (supra) the Supreme Court has specifically upheld the validity of the said rule in the following words: “30. The provisions contained in Central Rule 25(2)(v)(b) are challenged as unreasonable. Rule 25(2)(v)(a) states that wages, conditions of service of workmen who do same or similar kind of work as the workmen directly employed in the principal employer's establishment shall be the same. In case of disagreement with regard to type of work, it is provided that the same shall be decided by the Chief Labour o.p.19419/00 & cc 7 Commissioner whose decision shall be final. Rule 25(2)(v)(b) states that in other cases, the wage rates, holidays and conditions of service of the workmen of the contractor shall be such as may be specified by the Chief Labour Commissioner. There is an explanation to this clause that while determining wages and conditions of service under Rule 25(2)(v)(b) the Chief Labour Commissioner shall have regard to wages and conditions of service in similar employment. This is reasonable. 31. The complaint against Rule 25(2)(v)(b) is that there is no provision for appeal. It is not difficult to determine and decide cases of this type. The Commissioner of Labour has special knowledge. It will be a question from statute to statute, from fact to fact as to whether absence of a provision for appeal makes the statute bad. The provisions contained in Rule 25(2)(v)(b) refer to wages, hours of work and conditions of service in similar employment. A provision for appeal is not inflexible. The issue is simple here. A long drawn procedure may exceed the duration of employment of the workmen. A proper standard is laid down in the explanation to Rule 25(2)(v)(b). the absence of a provision for appeal is not unreasonable in the context of provisions here. The Commissioner shall have due regard to the wages of workmen in similar employments. The parties are heard and the Commissioner of Labour who is specially acquainted with the conditions applies the proper standards. There is no unreasonableness in the Rules.” The same also indicates that the Deputy Chief Labour Commissioner has powers under Rule 25(2)(v)(b) to fix wage rates. Therefore, I do not find any merit in the challenge against the impugned order by the principal employer on the ground that the Deputy chief Labour Commissioner (Central) does not have jurisdiction under Rule 25(2)(v) (b) to pass the impugned orders. 7. The second contention raised by the principal employer is that the fixation of wage rates in the impugned order is arbitrary and unreasonable. According to him, comparative wage rates as between Tamilnadu establishments and establishments under the Central Government cannot be the yardstick for fixing wages applicable to o.p.19419/00 & cc 8 Kerala Government company. I am unable to agree. As is made clear by the explanation to Rule 25(2)(v)(b), while determining the wage rates the Deputy Labor Commissioner (Central) shall have due regard to the wages of security guards obtaining in similar establishments. From the impugned order I find that the Deputy Chief Labour Commissioner has taken into account the wage rates obtaining in M/s.ACC Cements Ltd., which is situated in the boarder of Kerala and Tamilnadu, M/s.Instrumentation Ltd., Palghat, which is a Central Government company and M/s.HPCL Bottling Plant situated at Kanjikode, in the same vicinity of the principal employer's establishment. I do not find any arbitrariness or unreasonableness in the Deputy Chief Labour Commissioner (Central) taking into account the wage rates payable to the security guards in those establishments for the purpose of fixing the wage rates of security guards of the principal employer's establishment in this case. In fact the amount of Rs.2300/- p.m. to security guards, Rs.2500/- to head guards and Rs. 2700/- to security supervisors fixed in the order is perfectly reasonable. Therefore, I do not find any merit in the second contention. 8. I am not inclined to go into the disputed question as to whether the unions involved in these original petitions are representing contract workers of the principal employer. The Deputy Chief Labour o.p.19419/00 & cc 9 Commissioner (Central) does have power to fix wage rates applicable to contract employees of the principal employer herein, which the Deputy Chief Labour Commissioner (Central) has done. That has to be paid to the contract workers of the principal employer. 9. However, the arrears cannot be paid to either the contractor or the union because there is no guarantee that it would ultimately reach the real workmen who have worked in the establishment of the principal employer. But that does not absolve the principal employer from finding out the workers who were actually employed for the period for which the Deputy Chief Labour Commissioner has fixed wages as per the impugned order and to pay arrears to them. Of course the principal employer cannot now say that they did not have any records relating to the employment of such persons. It is their statutory duty to maintain such records. Therefore, the principal employer shall, within three months from today, ascertain the persons who are eligible for payment of arrears of wages as per the impugned order in question and pay the same to the concerned workmen. For this purpose the principal employer shall issue appropriate public notices calling upon the workers to collect the arrears of wages due to them as per the order of the Deputy Chief Labour Commissioner (Central). If any workman has any claim for amounts which has not been paid, it would be open to him either to file o.p.19419/00 & cc 10 contempt case in these original petitions and also to move application under Section 33C(z) of the Industrial Disputes Act as stipulated in Ext.P5. The original petitions are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. =============== O.P.Nos. 19419 (M) & 23019 of 2000 =============== J U D G M E N T 2nd March, 2009