IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 30-08-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.24552 OF 2008 Bharat Sanchar Nigam Limited, rep.by its Chief General Manager, Tamil Nadu Circle, No.80, Anna Salai, Chennai-600 002. ... Petitioner -vs- 1.The Deputy Chief Commissioner of Labour (Central), Shastri Bhavan, V Floor, No.4, Haddows Road, Nungambakkam, Chennai-600 006. 2.The General Secretary, Tamil Nadu Telecom Contract Workers Union, (Telecom Working Telephone Exchange) B.S.N.L., Rajapalayam-626 117. 3.The Circle Secretary, B.S.N.L.Employees Union, Tamil Nadu Circle, No.21, R.K.Srinivasa Flats, Bharathi Nagar I Street, Pazhavanthangal, Chennai-600 114. ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of certiorari or order or direction therein. For petitioner : Mr.M.Govindaraj For respondent 1 : Mr.C.V.Ramachandramurthy For respondents 2 & 3 : Mrs.Anna Mathew, for Mrs.S.Meenakshi. https://hcservices.ecourts.gov.in/hcservices/ O R D E R This Writ Petition has been filed praying for issuance of a writ of certiorari, to call for the records of the first respondent in his proceedings No.M.20/1/2007/P1, dated 28.01.2008, and to quash the same. 2. Facts : 2.1. The petitioner is a company incorporated under the Companies Act with effect from 15.09.2000. It has numerous telephone exchanges, administrative offices and other offices for its smooth functioning throughout the State of Tamil Nadu. It is engaged in Telecommunication Services, inter alia telephone lines, cables, maintenance of telephone services etc. For the perennial nature of the job and smooth functioning of the company, the company, has, in general, recruited its own employees as per the established procedure for its core activities. With a view to execute works of housekeeping, cleaning etc., the petitioner has obtained a Certificate of Registration under Section 7 of the Contract Labour (Regulation and Abolition) Act,1970, in short, "the Act". The District Collectors of the area concerned fixed minimum wages for those engaged in such categories of work from time to time. Taking into consideration the minimum wages fixed by the District Collectors concerned, the petitioner has floated tenders for housekeeping, cleaning and sweeping work for its offices/establishments. The agencies/contractors who were successful in being awarded with such contracts have obtained licence under Section 12 of the Act. The contractors are obliged to pay the minimum wages fixed by the District Collectors from time to time to the contract labour engaged by them, as per the tender floated by the petitioner. 2.2. The work performed by the regular employees appointed as per the established procedure by the petitioner and the contract labour engaged by contractors is entirely different and not comparable. While the work performed by the regular employees is of technical, administrative and of core and perennial nature, the work performed by the contract labour is of unskilled nature and not core activity of perennial nature. The engagement, supervision, control and payment of contract labour are carried out by the contractors. The petitioner does not supervise or control the contract labour. The petitioner ensures that the contract labour are made timely payment subject to the minimum rates of wages fixed by the District Collectors of the area concerned. 2.3. The contractual amount payable to the contractors has been worked out taking into account the prevailing minimum wages fixed by the District Collectors concerned. Any deviation in enhanced rate of payment to the contract labour during the tenure of the subsisting agreement between the petitioner and the contractors https://hcservices.ecourts.gov.in/hcservices/ will have far reaching repercussions and will put the whole contract labour system in jeopardy. 2.4. The Ministry of Labour & Employment, by its Notification, dated 14.09.2006, has notified minimum wages to the categories of employees pertaining to telephones/telegram and other department by its S.O.1521(E) published the revised rates of minimum wages. These revised rates cover the unskilled nature of jobs and categories for different geographical areas under three different categories viz., A,B and C. The minimum wages fixed by the District Collector of respective districts are generally better than the wages fixed by the Ministry of Labour, New Delhi. Therefore, the minimum wages are scrupulously paid without fail by the licensees of the various BSNL Offices. 2.5. The contract for services was through bid. Tender is called for by each and every office and the successful bidder is selected through a selection process. The important condition is that they have to comply with the statutory requirement of minimum wages, provident fund and other laws. The bidders may vary from area to area and year after year according to the rates quoted by them in conformity with the states. Therefore, same set of contract labour are not engaged by the licensees and the contract labour are not within the control of the petitioner. 2.6. The second respondent is not a recognized Union by the petitioner and, therefore, it has no locus standi to initiate any proceedings. The third respondent is a Union, representing regular employees of the petitioner. As such, the second respondent impleading the third respondent in a dispute which is not maintainable is illegal and objected to by the petitioner. 2.7. The proceedings held on 28.08.2007,19.12.2007 and 04.01.2008 in the office of Deputy Chief Labour Commissioner, Chennai, first respondent herein, were duly attended by the petitioner management and Union. During the meeting held on 04.01.2008, the petitioner has stated that as regards uniform wages, the matter was taken with the Chairman and Managing Director (CMD) of the petitioner's organization and pending decision from CMD, the rates fixed by the respective Collectors of the respective districts would be adhered to. The minimum rates of wages fixed by the District Collector concerned as per Rule 25 (2) (iv) of the Tamil Nadu Contract Labour (Regulation and Abolition) Rules,1975, are legally valid and proper. 2.8. That being so, the first respondent has unilaterally fixed Rs.140/- per day for Housekeeping work and Rs.125/- per day for Sweeping/Cleaning work by his order dated 28.01.2008, which is illegal and arbitrary. Hence, this Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ 3. Second respondent has filed a counter affidavit, stating as follows : 3.1. The Union represents more than 5000 workers employed in the petitioner BSNL all over the State of Tamil Nadu. The workers have raised an industrial dispute with regard to the issue in question. The workers inter alia do the jobs of housekeeping, sanitary works and other general services. BSNL enters into a tender agreement between itself and the contractors to do the works of housekeeping and general services. A ban on recruitment of staff in Group C and D categories in Central Government services was introduced more than two decades ago. The erstwhile Telecom Department was affected the most due to the said ban and more than one lakh workmen were employed in BSNL on temporary basis for carrying out these jobs on day-to-day basis. At one point of time after the ban, the establishments of Department of Telecommunications (DOT) used casual labour to perform the duties of Group D workers. Thereafter, the DOT decided to engage labour on contract and after conversion from DOT to BSNL the practice has continued. Though the contractors have changed, same labour are continuing to work for several years now. 3.2. The second respondent Union has been espousing the cause of the said workers in BSNL who have been suffering great economic hardship due to the gross disparity of wages between them and the regular Group D employees. In the said circumstances, the petitioner Union made a representation to the Chief Labour Commissioner (Central) New Delhi on 29.06.2005 seeking fixation of pay based on labour welfare laws for the so called contract labour. Subsequent to the said representation, the Ministry of Labour and Employment, Government of India, issued a notification dated 14.09.2006, revising the minimum wages to be paid to certain departments. The said Notification was issued under Section 3 (1) (a) and (b) read with Sections 4 (1) and 5 (2) of The Minimum Wages Act. Thereafter, a second representation was made on 25.08.2006, reiterating the earlier demand and seeking fixation of wages on par with the regular workmen and requesting the authorities to take up the case under Rule 25 (2) (v) (a) and (b) of The Contract Labour (Regulation and Abolition) Rules,1971, hereinafter referred to as "the Rules". The Chief Labour Commissioner, New Delhi, forwarded the said representation to the Deputy Commissioner of Labour, Chennai, first respondent herein, for adjudicating upon the matter, who, thereafter passed the order impugned, which is perfectly in order. 4. The contentions of the learned counsel for the petitioner are as follows : https://hcservices.ecourts.gov.in/hcservices/ (i) The first respondent has unilaterally fixed the minimum wages especially for contract labour engaged by contractors for execution of contract in the premises of the petitioner without regard to Rule 25 (2) (iv) of the Rules. (ii) The first respondent has not considered the nature of jobs of unskilled workers engaged by others in telephone services and payment made to them as per the minimum wages fixed by District Collectors. (iii) The petitioner has entered into an agreement with the contractors, who have been given licence by the Ministry of Labour and hence, they are necessary parties and any additional liability can be fixed only after hearing the licensees and therefore the impugned order is hit by non-joinder of necessary and proper parties. (iv) Fixing of rates by the first respondent comparing the regular employees amounts to treating unequals as equals, which is violative of Articles 14 and 16 of the Constitution of India. (v) In a contract for service, the petitioner has no control over the contract labour. (vi)The order passed by the first respondent is erroneous, unjust,illegal and without jurisdiction. In support of his contentions, the learned counsel for the petitioner has relied upon a decision of this Court in Allied Industries v. E.S.I.Corporation, reported in 2008 (4) LLN 601, wherein it has been held as follows : "9. Following the said judgments of the Apex Court and applying the principle enunciated therein, this Court comes to the conclusion that the order of the authority has got to be interfered with and set aside and the matter has to be remitted back to the said authority to redetermine the contribution payable by the appellant, if any, and after either impleading the alleged contractors or summoning them and examining them. 10. For all the reasons stated above, this appeal is allowed and the order of the learned First Additional Judge, City Civil Court, Madras, dated 29 August,2000, passed in E.S.I.O.P.No.41 of 1990 is set aside. E.S.I.O.P.No.41 of 1990 shall stand partly allowed setting aside the impugned order of the Assistant Regional Director, Employees State Insurance Corporation, Chennai, dated 23 February 1989. The matter is remitted back to https://hcservices.ecourts.gov.in/hcservices/ the Regional Director, Employees State Insurance Corporation, Chennai, with a direction to conduct a de no enquiry and decide the liability of the appellant to pay contribution after impleading the alleged contractors or summoning and examining them. There shall be no order as to costs." 5. Conversely, learned counsel for respondents 2 and 3 would contend that the first respondent has heard the parties; considered the nature of jobs of the contract labourers of the petitioner; the petitioner, being the principal employer, has every control over the contract labour working under them and, hence, the order passed by the first respondent is just, legal and within jurisdiction. 6. I have heard the learned counsel for the parties and also gone through the records. 7. On examining the contentions of the parties, what comes to be known is that the second respondent Union represents more than 5000 workers employed in the petitioner BSNL all over the State of Tamil Nadu. The workers inter alia do the jobs of housekeeping, sanitary works and other general services. BSNL enters into an agreement between itself and the contractors to do the said works. A ban on recruitment of staff in Group C and D categories in Central Government services was introduced more than two decades ago. The erstwhile Telecom Department was affected the most due to the said ban and more than one lakh workmen were employed in BSNL on temporary basis for carrying out these jobs on day-to-day basis. After the ban, the Department of Telecommunications (DOT) used casual labour to perform the duties of Group D workers. Thereafter, the DOT decided to engage labour on contract and after conversion from DOT to BSNL the practice has continued. Though the contractors have changed, same labourers are continuing to work for several years now. As there was a huge disparity of wages between the said contract labourers and the regular Group D employees, the workers have raised an industrial dispute, by submitting a representation to the Chief Labour Commissioner (Central), New Delhi, on 29.06.2005 seeking revised fixation of pay based on labour welfare laws. Subsequent to the said representation, the Ministry of Labour and Employment, Government of India, issued a notification dated 14.09.2006, revising the minimum wages to be paid to contract labourers working in certain departments. The said Notification was issued under Section 3 (1) (a) and (b) read with Sections 4 (1) and 5 (2) of The Minimum Wages Act. Thereafter, on 25.08.2006, the second respondent Union submitted another representation to the Chief Labour Commissioner, reiterating the earlier demand and seeking fixation of wages on par with the regular workmen and requesting the authorities to take up the case under Rule 25 (2) (v) (a) and (b) of the Rules. Pursuant https://hcservices.ecourts.gov.in/hcservices/ thereto, the Chief Labour Commissioner, New Delhi, forwarded the said representation to the Deputy Chief Commissioner of Labour, Chennai, first respondent herein, for adjudicating upon the matter. On such referral, the first respondent, following Rule 25 (2) (v) (a) and (b) of the Rules, called both the parties for preliminary discussion and heard the matter in the presence of the parties on various dates. 8. Rule 25 (2) (v) (a) and Rule 25 (2) (v) (b) read as under : "(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 the1 Deputy Chief Labour Commissioner (Central) (v) (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 Deputy Chief Labour Commissioner (Central) Explanation.—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" 9. From the above proviso, it is clear that the Deputy Chief Labour Commissioner (Central) is the competent authority to determine the wage rates, holidays, hours of work and other conditions of service of the contract workers. Therefore, the contention of the learned counsel for the petitioner that the order passed by the first respondent is without jurisdiction cannot be sustained. 10. Before the first respondent, the writ petitioner did not dispute or deny the nature of work carried out by the contract workers nor did they deny the fact that the contract workers are performing the jobs that are similar to those performed by the regular employees. In fact, the second respondent Union furnished the details of the nature of work carried out by the contract workers and regular Group D employees. https://hcservices.ecourts.gov.in/hcservices/ 11. The contention raised by the writ petitioner before the second respondent was that the jobs performed by the contract workers are through a tender system; the jobs were purely unskilled and that some of the jobs performed by the contract labourers were discharged in less than eight hours. It was also contended by the petitioner that the minimum rates fixed by the District Collector alone would apply to the contract labour and that the minimum wages notified by the Government of India would not apply. 12. In this context, it is to be mentioned that the minimum wages fixed by the District Collector for the contract labourers under the powers delegated in item No.32 Appendix 5 of Tamil Nadu Financial Code Volume II are not in conformity with Rule 25 (2) (v) (a) and Rule 25 (2) (v) (b) and, hence, the first respondent is not bound to take into consideration any such fixation made by the District Collector. It is noticed that the work performed by the regular employees and the contract workers is not different. This was also not the stand taken by the petitioner before the first respondent. In the impugned order, the first respondent also held that there is no denial by the management that the contract workers are doing works identical to that of the regular employees. Therefore, the petitioner is estopped from making such a contention before this Court, when it was not taken before the first respondent at the first instance. The writ petitioner, as the principal employer, has to make payments as per the minimum wages notified under the Minimum Wages Act. As such, it cannot be said that the writ petitioner has no control over the work of the contract labour so also the payment of wages. 13. As per Section 12 (2) of the Act read with Rule 25 (2) (iv) of the Rules, the wages of contract labour shall not be less than the minimum wages fixed for regular workers. This is regardless of their nature of work. As per the aforesaid provisions, contract workers are entitled to minimum wages irrespective of the contractual agreement between the management and its contractors. 14. The contract labourers, who also form part of the second respondent union, have been suffering with great economic hardship due to gross disparity of wages between them and the regular Group D employees. The second respondent has taken up their cause with an intention to protect their wages as per the labour welfare laws. When that being the claim of the second respondent union and they want to represent the workers who are in the lowest grade of their employment, the Act and the Rules and the governing principles are to be followed in the manner as provided, with an avowed intention to safeguard the interests of the workmen. 15. Labour welfare legislation in India is meant for the protection of poor workmen, who are in need of their livelihood with a dignified life. When that is the claim of the second respondent https://hcservices.ecourts.gov.in/hcservices/ union, the contention of the writ petitioner with regard to the locus standi of the second respondent that the workmen do not form part of the second respondent union cannot be sustained. Moreover, the second respondent is a trade union registered vide Registration No.278/VDR, dated 29.03.2000, and hence entitled to represent its members with regard to their grievances, if any. Therefore, the decision in this regard as rendered by the authority below is in consonance with the object and aim provided under the labour legislations. Hence, it cannot also be said that the second respondent's union has no locus standi to represent the contract workers, especially when the said stand was not taken before the authority. 16. With regard to the contention raised by the learned counsel for the petitioner that the impugned order is bad for non- joinder of necessary parties, it is to be stated that the contractors are the direct employers of the contract labourers and the petitioner is the principal employer and they have a mandatory obligation to extend all the benefits under the Minimum Wages Act, based on registers and records of collection of statistics maintained by the contractors. Under Rule 74, every principal employer shall maintain in respect of each registered establishment a register of contractors in Form XII. The personnel employed have also to be registered under Rule 75. Employment Cards have to be given to them under Rule 76. On termination of employment for any reason whatsoever, the contractor shall issue to the workman, whose services have been terminated a Service Certificate in Form XV under Rule 77. Further, Muster Roll, Wage Registers, Deduction Register and Overtime Register are to be maintained under Rule 78. Therefore, for examination of Muster Roll, Register of Wages, Register of Deductions, Register of Overtime, Register of Fines, Register of Advances and Wage Slip, every contractor shall display an abstract of the Act and Rules in the language spoken by the majority of the workers in such form as may be approved by the Chief Labour Commissioner (Central) and the same have to be examined by the principal employer for necessary claim of the workers. Hence, the contractors should go before the authority and prove as to what are all the claims made by the contract labour and to tell the authority as to what should be the material documents in respect of their claim. When those documents are placed by the writ petitioner, being the principal employer, before the authority, the same have been perused and examined by the authority, including tender schedule, scope of work, Department standard for determining the strength (DGP&T letter No.19-10/73-TE dated 1.2.75, Rates of wages fixed in respect of the sweeper category by the District Collector, Coimbatore, Erode, Tiruchirapalli, Madurai, Dindigul, Tuticorin, Salem and Dharmapuri, and as regards the scope of work furnished by them,viz., removal of waste papers, cleaning of toilets and urinals daily, cleaning of windowpanes, mirrors in toilets etc., cleaning walls, ceiling and cobweb on daily basis, daily water cleaning of floors and mopping and also sweeping of floor, cleaning https://hcservices.ecourts.gov.in/hcservices/ of water coolers, water drums, glasses water jugs and flasks daily etc. Thereafter, the authority has come to the clear opinion that the writ petitioner has neither denied the fact of nature of work carried out by the contract workmen nor made any submission over the duties of regular workmen. The authority, after visiting the various telephone exchanges at Coimbatore and Erode and interrogating around hundred contract workmen as well as some regular employees, has come to a clear conclusion that though it has been admitted that the contract workers are working in the regular nature of jobs, it will be difficult to apply the determination of equal pay for equal work to those employed on contract. The authority cited a ruling of the Supreme Court in State of Haryana v. Jasmer Singh and Others,1996 (11) SCC 77, wherein it has been held that though equal pay for equal work is considered to be a concomitant of Article 14 as much as equal pay for unequal work will also be a negation of the right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference. In the interest of justice and equity, the authority was left with no other alternative than to decide the case of contract labourers engaged under the above rules and, accordingly, the authority decided the wages. Though the principle laid down in the cases referred by the learned counsel for the petitioner is that without impleading the contractors, the case of the second respondent would be fatal and the authority has not taken into account the non-joinder of the parties and decided the matter, it is to be stated that, in the given peculiar facts and circumstances of this case, as the authority took into account the various factors and without any difficulty to determine and decide the case of this type, the Commissioner of Labour has special