1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7262 OF 2008 Nashik Mahanagarpalika Shramik Sangh. ...Petitioner. Vs. Municipal Commissioner, Nashik Municipal Corporation & Anr. ...Respondents. .... Mr. Bhavesh Parmar for the Petitioner. Mr. M.L. Patil for Respondent No.1. ..... CORAM : DR. D.Y.CHANDRACHUD, J. October 24, 2008. P.C. Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the First Respondent waives service. By consent of Counsel and at their request taken up for hearing and final disposal. 2. On 5th July 2004, a Division Bench of this Court issued a direction in a Writ Petition filed by the Nasik Mahanagarpalika Shramik Sangh against the Municipal Corporation (Writ Petition 3993 of 2004), directing the Assistant Commissioner of Labour to investigate into the grievances of the contract workmen listed in 2 Exhibit-A to the petition in regard to the wages payable to such workers under a Minimum Wage Notification dated 15th February 2003. On 21st February 2005, the Assistant Commissioner of Labour, Nasik passed an order, directing the Municipal Corporation to effect a deposit of the differential wages payable to the contract workmen. In two Writ Petitions (Writ Petition 1978 of 2005 and 2678 of 2005) a Learned Single Judge of this Court, by an order dated 5th May 2005, partially modified the determination made by the Assistant Labour Commissioner. The direction contained in the order of the Assistant Labour Commissioner, calculating the difference at Rs. 13.14 lakhs was confirmed. However, that part of the order levying compensation of Rs.92 lakhs was set aside without prejudice to the power of the Appropriate Authority in proceedings, if any, under Section 20 of the Minimum Wages Act, 1948. 3. From the record before the Court, it appears that a reference has been made by the appropriate Government for adjudication of the claim made by the workmen concerned in these proceedings for regularization. The reference is pending. 3 4. A complaint of unfair labour practices was instituted on 28th July 2008 (Complaint (ULP) 96 of 2008) seeking a direction to the Municipal Corporation to implement the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the Rules framed thereunder by the State Government. In the aforesaid complaint, an interim application was moved seeking relief of (i) an injunction against the Municipal Corporation from proceeding with a tender notice dated 12th July 2008 without providing for implementation of the provisions of the Act; and (ii) a direction for the deposit of an amount of Rs. 32.40 crores towards the wages of the workmen. Certain other interim reliefs were prayed which are not the subject matter of the present proceedings. On 25th July 2008, the Industrial Court, by way of an ad-interim order, directed the Municipal Corporation to postpone finalization of the tender till 8th August 2008. By the order that is impugned in these proceedings, the Industrial Court rejected the application for interim reliefs and vacated the ad- interim order. 4 5. The order of the Industrial Court, in so far as it declines to grant a stay on the implementation of the tender notice, cannot be faulted. The Municipal Corporation cannot be restrained from making due and proper arrangement for the collection and disposal of garbage or refuse which is a mandatory obligation of the Corporation. The substantive demands of the workmen are also pending adjudication in the wage reference. In these circumstances, it was also not appropriate that any direction should be issued in a complaint of unfair labour practices for the deposit of wages either as quantified or otherwise. Fairly that aspect of the matter has not been controverted in these proceedings. 6. The submission, however, which has been urged on behalf of the Petitioner is that Rule 25 of the Maharashtra Contract Labour (Regulation and Abolition) Rules, 1971 specifies that every licence granted under the Act shall be subject to certain conditions. Rule 25 (2)(iv)(a) postulates that the rate of wages payable to the workmen by a contractor shall not be less than the minimum rates of wages fixed under the Minimum Wages Act, where the Act applies, while clause 5 (b) stipulates that where, the workmen employed by the Contractor perform the same kind of work as the workmen or a class of workmen directly employed by the principal employer, the rate of wages payable by the Contractor shall be the rates payable to the workmen directly employed by the principal employer doing the same kind of work. 7. The workmen to whom these proceedings relate are popularly known as 'Ghantagadi workmen'. Whether as a matter of fact, the workmen perform the same category of work as those workers who are directly employed by the Municipal Corporation, requires evidence to be adduced and cannot be adjudicated upon at the interlocutory stage, particularly in proceedings under Article 226 of the Constitution of India. The Municipal Corporation has introduced a condition in the tender document to the effect that the Contractor would be liable to pay the minimum wages payable under the Minimum Wages Act, 1948. Undoubtedly, Rule 25 operates as a statutory condition of every licence under the Act and necessarily, therefore, the requirement of Rule 25 must operate in respect of the 6 licence that is granted to the Contractor to whom a contract is awarded by the Municipal Corporation. At the same time, it would not be possible for this Court at the interlocutory stage, to make a determination on whether the workmen to whom the complaint relates should be granted a parity of wages with the permanent workers. This must await adjudication after evidence is adduced at the trial. In the event that the workmen are held to be entitled to relief in the pending reference, they would be entitled to seek consequential relief, before the Industrial Court. The order of the Industrial Court declining to grant interim relief in terms sought cannot, therefore, be interfered with. 8. The Industrial Court while disposing of the application for interim relief, directed in operative clause (3) of the order that the complaint of unfair labour practices should be treated as part of the proceedings in Reference (IT) No. 1 of 2001. Clearly the aforesaid direction that was issued by the Industrial Tribunal is outside its jurisdiction. The power to make a reference under Section 10 of the Industrial Disputes Act, 1947, is one which vests with the appropriate Government. It is not open to the Industrial Court, in a Complaint of 7 unfair labour practices to expand upon or to modify the terms of reference made to adjudication under Section 10 of the Industrial Disputes Act, 1947 by the appropriate Government. In these circumstances, the operative direction (3) contained in the impugned order of the Industrial Court shall stand set aside. 9. The Industrial Court has, in para 21 of its interim order, made certain observations in regard to the conduct of the Assistant Labour Commissioner. The attention of the Court has been drawn to a letter dated 30th September 2008 issued by the Assistant Labour Commissioner to the Commissioner of the Municipal Corporation. Before this Court it is not disputed, as it cannot be, that the Assistant Labour Commissioner had no jurisdiction to issue directions to the Municipal Commissioner in the matter of regularization of the contract workmen. The letter of the Assistant Labour Commissioner dated 30th September 2008 can, in the circumstances, only be regarded as a communication drawing the attention of the Municipal Corporation to its obligation to comply with the requirements of the Contract Labour (Regulation and Abolition) Act, 1970 and the Rules framed 8 thereunder. 10. The question as regards the maintainability of the complaint shall be dealt with and disposed of by the Industrial Court after hearing the parties and nothing contained in the present order shall be construed as the expression of any opinion by the Court on the merits of the rival contentions. 11. The petition shall stand disposed of in the aforesaid terms. No order as to costs. ......