IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 29542 of 2008(P) ------------------------------------- PETITIONER(S): ----------------------- LT.COL.BABU GEORGE, M/S.NEPTUNE SECURITY ,XL/815, PALION HOUSE, MG.ROAD, KOCHI-35. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: ------------------------ 1. ALL KERALA EX-SERVICEMEN SECURITY STAFF ASSOCIATION OF BSNL, CHATTAYIL, PARAKKULAM, PO.ANAKKARA, PALAKKAD-679551. 2. ASSISTANT LABOUR COMMISSIONER(CENTRAL) KENDRIYA SHRAM SADAN, OLIMUGHAL, KAKKANAD, KOCHI-30. 3. ASSISTANT GENERAL MANAGER, BSNL, OFFICE OF THE PRINCIPAL GENERAL MANAGER BSNL, KOCHI-16. ADV. SRI.C.S.RAMANATHAN, SC, BSNL FOR R3 SRI.FRANCIS JOSEPH KURISINKAL FOR R1 SRI.REJI JOSEPH FOR R1 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29542 of 2008(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF REPRESENTATION DATED 29/3/2008 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P2 - TRUE COPY OF LETTER DATED 18/9/2008 FROM THE 3RD RESPONDENT. EXT.P3 - TRUE COPY OF THE LETTER DATED 19/6/2008 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R1A - TRUE COPY OF THE LICENSE NO. CL/L-32/07/ALC-EKM/B5 DATED 05/03/07 OF 2ND RESPONDENT. ANNEX. R1A - TRUE COPY OF PETITION DATED 22.11.2007 FILED BY THE 2ND RESPONDENT BY THE 1ST RESPONDENT. ANNEX. R1B - TRUE COPY OF THE SUMMARY OF TOTAL AMOUNT OUTSTANDING ON MONTHLY WAGES TO EX-SERVICEMEN GUARDS BY THE PETITIONER. // TRUE COPY // PA TO JUDGE rhs ANTONY DOMINIC, J. ----------------------------- W.P.(C) No. 29542 of 2008 -------------------------------------- Dated this the 23rd day of January, 2009 JUDGMENT This writ petition is filed by M/s. Neptune Security, an agency which provides Ex-servicemen for security work. According to the petitioner, on the basis of the contract they had with the 3rd respondent- BSNL, security personnels were provided. It is stated that pursuant to the complaint made by the first respondent, the second respondent passed Exhibit P3 order, operative portion of which is extracted below for reference; “ In this connection, I am to invite your attention to Section 24(1) of the Contract Labour (Regulation and Abolition) Act which clearly explains the responsibility of the Principal Employer towards the workers deployed by the Contractor in respect of the payment of wages and other benefits in case of any failure on the part of the Contractor in this regard. The factual position of complaint was also explained to your DGM (Admn) in person when I visited his office recently with a view to expedite the redressal of W.P.(C) No. 29542 /2008 2 the said complaint and also to preventing the contractor from escaping from his responsibilities in the issue, the under signed has concluded the dialogue initiated in this regard. You are therefore hereby requested to recover the amount due to these workers from the service charges of the contractor and disburse the same to the workers concerned under intimation to this office at the earliest. Your expeditious response in this regard will be highly appreciated. ” 2. Petitioner submits that enclosing Exhibit P3, the 3rd respondent issued Exhibit P2 to them calling upon them to produce documents evidencing payment of salary to the workmen represented by first respondent Union. According to the petitioner, the second respondent has no jurisdiction to adjudicate the matter as the Appropriate Government is the State Government. It is also contended that while the complaint made was under Industrial Dispute Act and the order passed is under the Contract Labour(Regulation and Abolition) Act, 1970. It is also contended that the 2nd respondent does W.P.(C) No. 29542 /2008 3 not have the authority to issue a direction in the nature of Exhibit P3 and at any rate, even under Section 21, the second respondent could not have directed recovery by the Principal Employer. 3. I heard counsel for the first respondent, who sought to justify Exhibit P3. According to the first respondent, the petitioner has been granted Exhibit R1 licence. It is contended that nonpayment of the wages that are due to the contract labourers engaged by the petitioner, amounts to violation of the licence conditions and that for enforcing the licence conditions, the second respondent is perfectly competent. It is also contended that if at all the petitioner is aggrieved, by Exhibit P3 order, remedy available to the petitioner is to seek the appellate remedy that are provided under the Act itself. He also contended that since their claim is for legitimate wages, Exhibit P3 order under Section 21 of the Act is legal. 4. It is true that the petitioner's establishment is a licenced one. The licence itself shows that it has been granted by the authority under the Central Government. If that be so, in my view, the second respondent is perfectly justified in exercising his power in dealing with W.P.(C) No. 29542 /2008 4 the complaint that he had received. 5. Now what remains to be considered is whether Exhibit P3 order can be justified under Section 21 of the Contract Labour (Regulation and Abolition) Act. It is true under Section 21, the contractor is responsible for payment of wages to the contract labourers employed by him. However, section 21(4) provides that in the event of failure of contractor, the responsibility gets shifted to the Principal Employer. A reading of Section 21 gives the impression, in case the employer/ contractor fails to make payment, the Principal Employer shall become liable. While Section creates that obligation on the Principal Employer, a reading of Exhibit P3 shows that the second respondent, after reminding Principal Employer about his responsibility, has directed them to recover the amount due from the contractor and disburse the same to the workers. That apart Exhibit P3 also shows that there has not been proper consideration of dispute at all. As already noticed, it is the contention of the petitioner that they have already made payment to the contract workers and are not liable for any further payment. Not only that this issue has not been W.P.(C) No. 29542 /2008 5 considered, but also, even if there is any liability on the part of the contractor, such liability should have been quantified and that also has not been done in Exhibit P3 order. 6. For these reasons, I am not in a position to sustain Exhibit P3. Exhibit P3 is therefore quashed. Second respondent is directed to issue notice to the petitioner, first respondent and the 3rd respondent,and decide the claim of the first respondent, in the light of the contentions raised by the parties, after giving them an opportunity to adduce whatever evidence they want to adduce. Thereafter, the second respondent shall pass orders as per provisions contemplated under Section 21 of the Act. Orders shall be passed as expeditiously as possible, at any rate, within eight weeks of production of copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE scm