@JUDGMENTTAG-ORDER
K.M. Natarajan, J.@mdashThese petitions coming on for hearing on Wednesday the 10th day of January, 1990 and upon perusing the petitions and the affidavit filed in support of W.P. No. 1672/89 on the file of the High Court and the order of this court dated 13th February, 1989, and made in W.M.P. No. 2563/89 upon hearing the arguments of Mr. N. T. Vanamamalai for Mr. K. K. Parthasarathy, Advocate for the petitioner in both the petitions and of Mr. N. Bhaskaran, Government Advocate, on behalf of the respondent 1 to 3 in both the petitions and of Mr. Sanjay Mohan, Advocate for the 4th respondent and having stood over for consideration till this day, the court made the following order.
2. W.M.P. No. 2563 of 1989 is filed by the writ petitioner for grant of ad interim injunction restraining the fourth respondent-Management from in any way displacing or terminating the services of 14 workmen presently employed in the process of sweeping and scavenging in the fourth respondent establishment pending disposal of the writ petition.
W.M.P. No. 2564 of 1989 is filed by the writ petitioner for issuance of a direction to the fourth respondent-Management for payment of interim relief to bridge the gap between the amounts being paid to the petitioner workmen concerned in the range of Rs. 300/- to Rs. 450/- per month and the applicable scale of pay to the same category of workmen in the fourth respondent-establishment in the range of Rs. 1,500/- per month or any amount as per the direction of the court pending disposal of the writ petition.
3. The facts which are necessary for the disposal of these petitions as disclosed from the affidavit filed in support of the petitions are briefly as follows :-
14 sweeping and scavenging workmen, who are members of the petitioner-Union, are employed by the fourth respondent through a contractor, most of whom have put in 16 years of service. The Government of Tamil Nadu, namely, the first respondent herein, have issued a Notification G.O.Ms. No. 2082 dated 19th September, 1988, which came into force on 1st October, 1988, prohibiting the employment of contract labour in the process of sweeping and scavenging in the establishments which are employing 50 or more workmen. It is submitted that consequent on the coming into force of the said Notification, all the 14 workmen already working as sweepers and scavengers for several years in the establishment on the fourth respondent became and deemed to be workmen directly employed under the fourth respondent-management. Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 empowers the Government of Tamil Nadu to prohibit by Notification contract labour in any process, operation or other work in any establishment. It is stated that the above Notification issued by the Government is applicable to the establishment of the fourth respondent in as much as there are more than 150 employees engaged in the said establishment. To a notice issued by the petitioner-Union on 2nd November, 1988 to the fourth respondent inviting its attention to the said notification and requesting its confirmation for absorbing these workmen as direct employees and paying them salaries as per fourth respondent-Management''s applicable scale of pay, the fourth respondent-Management in reply contended that the said Act did not apply to it. According to the petitioner, the reasons given therein are not tenable. It is stated that the work of sanitation is a perennial one in the establishment of the fourth respondent and it is bound to provide sanitation facilities to all the employees employed therein and hence there is a necessity to engage the sweeping and scavenging workmen which is perennial in nature. The fourth respondent-Management filed W.P. No. 15066 of 1988 Shaw Wallace Company Ltd. rep. by its Personnel Manager v. Govt. of Tamil Nadu rep. by the Commissioner and Secretary to Govt. Labour and Employment Dept., Fort St. George, Madras - 9 on 30th November, 1988 against the Notification issued under the Act and got stay on 8th December, 1988 in W.M.P. No. 22554 of 1988. Aggrieved by the above order, the petitioner-Union filed W.M.P. No. 23799 of 1988 and 23800 of 1988 on 16th December, 1988 to implead the petitioner and to vacate the stay order. The fourth respondent-Management withdrew the said stay order. Hence there is no stay of the operation of the Notification in the fourth respondent-Management in view of the voluntary withdrawal. All efforts of the petitioner-Union requesting respondents 1 and 2 to take necessary action for the implementation of the Notification in the fourth respondent''s Establishment proved of no avail. It is further submitted that the workmen once engaged in the sweeping and scavenging work under the contractor all along, had been working under the fourth respondent under its supervision and control directly because the contractor has no role to play in the actual performance of the duties. The fourth respondent-Management maintains the regular attendance register to enforce the attendance of the workmen engaged to do the scavenging and sweeping work. They are all governed by the E.S.I., leave and other regulations and discharge duties for more number of hours than other in the fourth respondent''s concern. The work involved is not mechanical but has to be done by the workmen through human agency with a certain amount of skill and diligence to cater to the needs of sophisticated establishment and it officers and staff. It is further stated that these workmen are covered by the provisions of the Industrial Disputes Act and they have fulfilled the requirements of uninterrupted service conditions laid down under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 and they are deemed to be permanent workmen under the fourth respondent-Management when the notification came into operation on 1st October, 1988. The workmen are paid a consolidated salary in the rate of Rs. 300/- to Rs. 450/- per month although they have put in very long service under the fourth respondent-Management. The initial starting salary of the sub-staff in the category of sweeping and scavenging in the fourth respondent-Establishment is more than Rs. 1,500/- per month. Hence, it is prayed for the issuance of direction to the fourth respondent for payment of interim relief to bridge the gap between the amount being paid to the petitioner-workmen concerned in the range of Rs. 300/- to Rs. 450/- per month and the applicable scale of pay to the same category of workmen in the fourth respondent-Establishment in the range of Rs. 1,500/- per month or any other amount as per the direction of the Court. Further, consequent upon the abolition of the contract labour through the abovesaid Notification by the Government of Tamil Nadu, the petitioner - employees became the direct workers under the fourth respondent. Hence they filed the writ petition for issuance of a writ of mandamus directing the Assistant Commissioner of Labour (C) Madras - 6, the authority constituted under the Contract Labour (Regulation and Abolition) Act, 1970, the third respondent herein, to implement the Notification by regularising all the existing 14 workmen permanently employed in the fourth respondent establishment in sweeping and scavenging as direct workmen and fixing them in the regular scales of pay applicable as per their service with effect from 1st October, 1988 and pending disposal of the said writ petition, they filed these two miscellaneous petitions.
4. The said applications were resisted and in a common counter-affidavit filed by the fourth respondent, it is stated that W.P. No. 15066 of 1988 was filed by way of abundant caution although the contract in question was not governed by the Contact Labour Act. When the stay petition came up for hearing, the same was withdrawn with liberty to renew the stay application after notice to the union concerned. It is further submitted that the Notification in issue issued by the Tamil Nadu Government has no application to the fourth respondent and hence the question of implementing the same does not arise. It is further stated that the contract itself was required on account of the very nature of work involved as it would not be practical to have regular employees carrying out these activities. While the work may be perennial in nature, in the sense that it has to be done ever day, It is not done throughout the day as can be imagined from the very nature of the work itself. Lastly it was submitted that even assuming that the notification is applicable to the fourth respondent, there is no corresponding obligation in law that the management covered by the notification should straightaway regularise all existing contract labour as their direct employees. Further, there is no category of workmen employed by the fourth respondent involved with sweeping and scavenging work and therefore the question of paying the contractor''s employees the amount claimed in W.M.P. 2364 of 1989 does not arise and that since the persons concerned are not employees of the fourth respondent, W.M.P. No. 2563 of 1989 itself is misconceived and hence they prayed for dismissal of the petitions.
5. In the additional counter-affidavit, the fourth respondent submitted that Messrs. Kalyani Enterprises, East Thambaram are the new contractors to whom the job has been entrusted and they are carrying on their work from 1st June, 1989. The employees of the contractors are already carrying out the work and as such the petitions have become infructuous. It is also submitted that the contractor by whom the members of the petitioner-Union were engaged is no more a contractor.
6. In the reply affidavit filed on behalf of the writ petitioner, it is submitted that the earlier writ petition filed by the fourth respondent in W.P. No. 15066 of 1988 for quashing the Notification in G.O. No. 2082 dated 19.9.1988 and the petition W.M.P. No. 22554 of 1988 to obtain interim stay of applicability of enforcing the said Government Order to the fourth r espondent-Establishment were not filed by way of abundant caution as contended by the fourth respondent. But, since it was challenged by the writ petitioner by means of a petition to implead them as party and to vacate stay, the fourth respondent withdrew the stay application of its own as admitted in the counter-affidavit. It is further stated that a perusal of the work of the list of duties enclosed as Exhibit No. 1 along with the reply-affidavit, to be performed each day by the employees, would indicate that the work has to be done not only throughout the day, but also these employees have to come earlier to the establishment in the mornings and leave the establishment in the evenings late, than the direct employees of the fourth respondent. They are working six days in a week, while it is a five-day working for direct employees. It is further stated that one Masthan is one of the three persons who has been appointed in the category of sweeper and he is still continuing as a sweeper in the category of subordinate staff. The deponent of the reply-affidavit and other workers also perform the same duties like Masthan. The printed memorandum of settlement filed along with the reply-affidavit, which is marked as Exhibit No. 2 would clearly show that sweeper, bearers and waterman are classified in the category of subordinate staff. It is further stated that the impugned G.O. was issued only for the benefit of the contract labour engaged in the process of sweeping and scavenging, which is a progressive legislation and not for displacing or dispensing with the concerned workers, under the plea of change of contractor etc.
7. As regards the first contention of the learned counsel for the fourth respondent that the very Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, hereinafter referred to as the Act, does not apply to the fourth-respondent-establishment in view of Section 1(4) making it applicable to establishment where there are more than 20 labourers as contract labourers, it is seen from the affidavit filed by the fourth respondent in W.M.P. No. 15066 of 1988, which is referred to in the counter-affidavit of the fourth respondent, that the fourth respondent company in its office premises at Madras employs about 152 persons and since and contractor employs less than 20 workmen, he is not required to take out a licence in terms of the Act. The learned counsel also submitted that even according to the petitioner, only 14 persons are employed for sweeping and scavenging and even in the communication dated 2nd November, 1988, addressed by the petitioner-Union to the fourth respondent-Management, it has been stated that the fourth respondent has been employing 10 or more contract labour in the office premises in the process of sweeping and scavenging through successive contractors for the past several years. It must be noted that even in that letter it is clearly stated in para 2 that the above G.O. will squarely apply to the fourth respondent-Establishment, as it was employing 50 or more workmen in the office of Thambu Chetty Street, Madras. In this connection, the learned counsel appearing for the petitioner drew the attention of the court to the decision reported in S. B. Deshmukh v. State 1986-II-LLJ-382 wherein it was held :
"The applicability of S. 10(1) which gives authority to the appropriate Government to "prohibit employment of contract labour in any process, operation or other work in any establishment, is not, in view of S. 1(4), restricted only to an establishment where 20 or more workmen are employed as contract labour. The prohibition under S-10 is not qua the establishment, but it is qua a particular activity of contract labour. Once the object of S 10(1) is realised, then it becomes obvious that the same is applicable to all establishments irrespective of the number of workmen employed in any particular activity of contact labour which is prohibited under Sec. 10(1).
The restriction on the applicability of S. 10(1) cannot be countenanced in view of the object of the Act viz., to abolish contract labour wherever possible or practicable and further in view of the fact that S. 10(1) opens with a non-obstante clause, S. 10(1) in view of the non-obstante clause, operates in its own field notwithstanding other provisions of the Act".
The learned counsel for the petitioners submits that the fourth respondent itself filed W.P. No. 15066 of 1988 contending that the said G.O. is not applicable to the fourth respondent-Institution and obtained stay. As against the same, the petitioner herein filed two petitions W.M.P. Nos. 23799 of 1988 and 23800 of 1988 to implead the petitioner-Union and to vacate the stay, on the ground that the said G.O. would squarely apply to the fourth respondent. When the matter was taken up for hearing, the fourth respondent withdrew the petition for stay. In view of the order passed in the said application, the notification will operate so far as the fourth respondent-Management is concerned, and it is not open to them to contend that it is not applicable. It is also brought to the notice of this court by the learned counsel for the petitioner that the very Government order was passed by the Government on the advice of the State Advisory Board on contract labour constituted u/s 4 of the Act to abolish contract labour system in the process of sweeping and scavenging in establishments/factories. Further, as per the said G.O. the Government directed that the contract labour system in the process of sweeping and scavenging in establishments/factories which are employing 50 or more workmen be abolished. That the work of sweeping and scavenging is of a perennial nature and so the requirement of Section 10(2)(b) is satisfied, is clear from the decision of the Supreme Court reported in Catering Cleaners of S. Rly. v. Union of India 1987-I-LLJ-345 wherein it was held that it is clear that the work of cleaning catering establishments and pantry cars is necessary and incidental to the industry or business of the Southern Railway and so requirement (a) of Sec. 10(2) is satisfied and that it is of a perennial nature and so requirement (b) is satisfied. It is seen from the reply affidavit filed along with two documents that the employees of the petitioner-Union will have to work not only throughout the day but also they have to come earlier in the mornings and leave the establishment in the evenings late. It is also stated that they have to work one day more in a week, than the direct employees. As such, the nature of work would attract Section 10 as the activities are of perennial nature and it is of sufficient duration which could ordinarily be done through regular workmen in that establishment. Thus, there is no difficulty in holding that the notification u/s 10 of the Act in respect of these 14 persons of the petitioner-Union who are doing scavenging and sweeping work in the fourth respondent-Establishment would squarely apply and the contention of the fourth respondent that the Act does not apply to their establishment cannot be sustained.
8. As far as W.M.P. No. 2563 of 1989 is concerned, it is submitted by the learned counsel for the fourth respondent, though the prayer in the main writ petition is to implement the Notification by regularising all the 14 workmen permanently employed in the process of sweeping and scavenging, as direct workmen, the petitioners themselves admitted that they are employed under a contractor. Further, even at the time when the W.M.P. came up for orders, this court passed an order on 13th February, 1989 to the effect that the contract work will be continued for two weeks till the counter is filed. Subsequently, as stated in the additional counter-affidavit of the fourth respondent, now the fourth-respondent entrusted the said work to Messrs., Kalyani Enterprises who are the new contractors. Even today, the petitioners are employed under the new contractors, though they were employed at the time of the petition under Messrs. Industrial House Keeping Services. It was submitted that since there was no danger of being thrown out of employment, the petitioners are not entitled to the relief. It is further stated that there is no provision in the Act that after abolishing the contract system, the petitioners should be absorbed as direct employees of the principal employer and as such, the petition is to be dismissed. As far as W.M. P. No. 2564 of 1989 is concerned, it is submitted the since the petitioners are not employees of the fourth respondent, the question of paying at a particular pro-rata does not arise. If they want higher salary, they must ask their employer, viz., the contractors, and not these respondents. It is further stated that there is no category of workmen employed by the fourth respondent involved on the sweeping or scavenging work and as such the said petition is to be dismissed and the remedy of the petitioners is to approach the concerned authorities under the provisions of the Act. The learned counsel for the petitioners opposed the same and submitted that when once the Notification u/s 10 is held to be applicable to the fourth respondent institution, the service of the petitioners have to be protected and they should be paid similar wages which is being paid for the same category of work of direct employees of the fourth respondent. In Sankar Mukherjee & Ors. v. Union of India & Ors. 1990-II-LLJ-443 where the Notification issued by the Government of West Bengal, u/s 10 of the Act, in respect of employment of contract labour in cleaning and stacking and other allied jobs except loading and unloading of bricks from wagons and trucks, was challenged, it was held, in para 6 : (P-445)
"It is surprising that more than forty years after the independence the practice of employing labour through contractors by big companies including public sector companies is still being accepted as a normal feature of labour employment. There is no security of service to the workmen and their wages are far below than that of the regular workmen of the company. This court in Standard Vacuum Refining Co. of India Ltd. v. Its workmen 1960-II-LLJ-238 and Catering Cleaners of Southern Railway1987-I-LLJ-345 has disapproved the system of contract labour holding it to be ''archaic'', ''primitive'' and of ''baneful nature''. The system, which is nothing but an improved version of bonded-labour, is sought to be abolished by the Act. The Act is an important piece of social legislation for the welfare of labourers and has to be liberally construed".
In para 7 it is observed :
"It is not denied that the bricks handled by the Brick Department are used in furnaces of the company as a refractory. Therefore the work done by the Brick Department including loading and unloading of bricks is incidental to the industry carried on by the company. It is also not denied that the petitioners are employed as contract labour by the company for the last 15/20 years. Then where is the justification to treat the petitioners differently and deny them the right of regular appointment ?"
Ultimately the writ petition was allowed and Their Lordships struck down the words "except loading and unloading of bricks from wagons and trucks" in paragraph 9 of the said notification issued by the Government of West Bengal being discriminatory and as such violative of Article 14 of the Constitution of India. Their Lordships further directed that the petitioners and other workers doing the job of loading and unloading or bricks from wagons and trucks in the Brick Department be treated at par, with effect from the date of notification, with those who are doing the job of cleaning and stacking in the said Department. It was further directed that the workmen doing the job of loading and unloading who have been retrenched during the pendency of the writ petition be put back into service with all back wages and consequential benefits. In Catering Cleaners of S. Rly. v. Union of India (supra) the writ petition was filed by catering cleaners working on contract system in the catering establishments in various railway junctions of the Southern Railway and in the pantry cars of long distance trains running under the control of the Southern Railway seeking abolition of the contract system under which they are employed to do cleaning work in the catering establishment and the pantry cars and for their absorption as regular employees of the principal employer, namely, the Southern Railway. On the facts of the said case, it was held (pp. 353-354) :
"Thus, all the relevant factors mentioned in S. 10(2) appear to be satisfactory accounted for. In addition, we have the factor of profitability of the catering establishments. On these facts the petitioners straightway invite us to issue a mandamus directing the Central Government to abolish the contract labour system under which cleaners in catering establishments and pantry cars are at present employed in the Southern Railway. But, we refrain from doing so because under S-10, Parliament has vested in the appropriate Government the power to prohibit the employment of contract labour in any process, operation or other work in any establishment. The appropriate Government is required to consult the Central Board or the State Board, as the case may be, before arriving at the decision. The decision, of course, will be subject to judicial review. But we do not think that we will be justified in issuing the mandamus prayed for unless and until the Government fails or refuses to exercise the power vested in it under S-10. In the circumstances, the appropriate order to make in the present case is to direct the Central Government to take appropriate action under S-10 of the Contract Labour (Abolition and Regulation) Act in the matter of prohibiting the employment of contract labour in the work of cleaning, catering establishments and pantry cars in the Southern Railway. This must be done within six months from today. Without waiting for the decision of the Central Government the Administration of the Southern Railway will be free, of its own motion, to abolish the contract labour system and to regularise the service of those employed in the work of cleaning catering establishments and pantry cars in the Southern Railway. In any case, the administration of the Southern Railway will refrain until the decision of the Government under S. 10, from employing contract labour. The work of cleaning catering establishments and pantry cars will be done departmentally by employing those workmen who were previously employed by the contractor on the same wages and conditions of work as are applicable to those engaged in similar work by the Western Railways".
Finally it was observed, "If the Central Government does not finally decide the question within six months from today, the Southern Railway Administration will within three months thereafter absorb the workmen into their service and regularise their services". In the above decision, Rule 25 (ii) (v) (a) was also referred to and it was observed that the said rule prescribes a condition of every licence, namely.
"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 in the same or similar kind of work".
The learned counsel also pointed out another decision of the Supreme Court in W.P. No.838 of 1988 (Coal Labourers Union v. The General Manager and another) where the members of the petitioner-Union are working as casual labourers under a contractor and their services are utilised by the Southern Railway for purposes of loading and unloading work. They prayed for the issue of a direction to the appropriate Government, namely, Central Government, to consider whether the system of contract labour prevailing in the Southern Railway so far as the work of loading and unloading is concerned should be abolished or not u/s 10 of the Act. Their Lordships considered the decision in Catering Cleaners of Southern Railway v. Union of India (supra) and reiterated the view expressed in that case and issued the same direction to the Central Government to take appropriate action u/s 10 of the Act.
It was also observed, "Until the Central Government decides the question, the services of the workmen who are involved in this case shall not be terminated." It was also observed that it is open to the Railway Administration to take a decision to abolish contract labour on its own without waiting for the decision of the Central Government. The learned counsel for the petitioner quoted another decision. In Workmen v. Best & Crompton Engg., Ltd.1985-I-LLJ-492 a Bench of this Court held : that the workmen engaged through contractor "not holding a valid licence under the Act would be workmen employed by management itself." It was also held in that decision that "the combined effect of these two provisions; namely Sections 7 and 12 of the Act, makes it clear that for a valid employment every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the official gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment : contract labour, two conditions should be satisfied, viz., not only the principal employer but also the contractor should possess the requisite licence. In other words, the holding of licence by one alone will not enable the management to treat the workmen as contract labour." In BHEL Workers Assn. Hardwar & Ors. v. Union of India & Ors.1985-I-LLJ-428 Their Lordships after referring various provisions of the Act have observed in para 6 as follows (pp. 432-433) :
"Thus we see that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of work and conditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate Industrial and Labour Laws."
In Dly. R. C. L. E. Under P&T Dept., B. D. T. M. Manch v. Union of India & Ors. 1988-I-LLJ-370 Their Lordships of the Supreme Court relying on the earlier decision in Dhirendra Chamoli v. State of U.P. 1986-I-LLJ-134 held (pp 374-375) :
"Though the persons were not regularly recruited they had been working as casual labourers nearly for 10 years and doing the same type of work as regular employees. Art. 38(2) of the Constitution of India can be relied upon to show that the casual labourers are subjected to hostile discrimination. Denial of minimum pay in the pay scales applicable to regularly employed workmen amounts to exploitation of labour and the Government cannot take advantage of its dominant position and compel any worker to work even as a casual labourer on starving wages. The fact that the casual labourer has agreed to work on such low wages is because he has no other choice and on account of poverty. The Government should be a model employer. Classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to the employees in the corresponding regular cadres, particularly in the lowest rungs of the department where the pay scales are the lowest, is not tenable. Classification of employees depending upon the number of days of service for the purpose of payment of different rates of wages is unjustifiable and untenable besides being violative of Arts. 14 and 16 of the Constitution. It is also opposed to the spirit of Art. 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which exhorts all States/parties to ensure fair wages and equal wages for equal work".
The said decision was relied on for the purpose of showing that even in the case of casual employees, they are entitled to the minimum payable to the employees in the corresponding regular cadres. The same view was reiterated in Surinder Singh & Anr. v. Engineer-in-Chief CPWD & Ors 1986-I-LLJ-403. In Indian Airlines v. Central Government Labour Court 1987-II-L.L.N. 111 it was held that "the workers employed by the contractor are also entitled to claim the wages due to them by moving an application u/s 33C(2) of the Industrial Disputes Act 1947. While considering the question whether a claim for equal wages can be made against the principal employer-petitioner or can the claim be made against the contractor alone, it was held as follows :-
"Thus, though under sub-sec. (1) of S. 21, a contractor is responsible for payment of wages to each worker employed by him as contact labour and such wages have to be paid before the expiry of such period as may be prescribed, in order to ensure that payment of wages to each worker employed by the contractor is made during the prescribed period under sub-sec. (2) of S. 21 it is the duty of every principal employer to nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. A duty is also cast upon such a representative to certify the amounts paid as wages in the prescribed manner. Under sub-sec. (3) of S. 21, a duty is cast upon the contractor to ensure that the disbursement of wages is done in the presence of the authorised representative or the principal employer. More important is that under sub-sec. (4) of S. 21 in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer is liable to make payment of wages in full or make up the unpaid balance due to the contract labour employed by the contractor and thereafter recover the amount from the contractor either by deduction from the amount payable to the contractor under any contract or as a debt payable by the contractor. Thus, even if the contractor fails to pay the wages the principal employer is responsible to make the payment."
It was further observed :
"In my view, therefore, the contract labour employed by the contractor can claim wages either from the contractor or from the principal employer and if the claim is made from the principal employer under sub-sec. (4) of S. 21, the principal employer is bound to pay the wages and thereafter recover it from the contractor as provided in the sub-section."
In the above quoted case, it was held :
"Therefore, in my opinion, the petitioner being responsible and liable to pay the wages under the Act of 1970, the claim of wages made by respondents 2 to 20 against the petitioner is maintainable."
In Food Corpn. of India v. Central Govt., I.T. 1987 (2) SLR 478 a Division Bench of the Punjab and Haryana High Court held that "any worker who works for a principal employer to whom provisions of Contract Labour Act are attracted is to be treated as worker of principal employer unless it is satisfied that the establishment has secured a certificate of registration for the relevant period under S. 7 and it had employed contract labour through a licensed contractor under S. 12. If either of the conditions is missing labour employed through contractor shall be treated to be workmen of employer. Employer in this case has failed to establish the two conditions. Hence employees alleged to be employed through contractors are employees of the petitioner-corporation. Termination of service of such workers in violation of S. 25F is illegal. The workers were directed to be reinstated in that case.
9. On the other hand, the learned counsel for the fourth respondent relied on a decision rendered by the Andhra Pradesh High Court, reported in A. P. D. D. C. Federation, Hyderabad v. K. Ramulu & Ors. 1989-II-L.L.J. - 312 and submitted that in view of the ratio laid down in the said decision, no relief can be granted. After going through the relevant decisions referred to above, in view of the ratio laid down in Catering Cleaners of Southern Railway v. Union of India (supra), when once Section 10(2) of the Act is satisfied, it is for the concerned Government to take appropriate action u/s 10 of the Act in the matter of prohibiting the employment of contract labour in sweeping and scavenging. In the instant case, the State Government has issued the notification in G.O.Ms. No. 2082, Labour and Employment Department, dated : 19th September, 1988, by which, in exercise of the powers conferred by sub-section (1) of Section 10 of the Act, after having regard to the conditions of work and benefits provided for the contract labour and other relevant factors in establishment/factories referred to in clauses (a) to (d) of sub-section (2) and after consultation with the State Advisory Board on Contract Labour, prohibited the employment of contract labour in the processes of sweeping and scavenging in the establishments/factories which are employing 50 or more workmen. The present writ petition is filed for issuance of writ of mandamus directing the Assistant Commissioner of Labour to implement the said notification in the fourth respondent-establishment in respect of the existing 14 workmen permanently employed in the process of sweeping and scavenging as direct workmen and fixing them in the regular scales of pay applicable as per their service, with effect from 1st October, 1988. Applying the ratio laid down in Sankar Mukherjee & Ors. v. Union of India & Ors. (supra) and also the ratio in the other decisions already referred to, the fourth respondent can be restrained by an order of injunction from in any way displacing or terminating the services of 14 workmen presently employed in the process of sweeping and scavenging in the fourth respondent-establishment pending disposal of the writ petition. It is also not in dispute that 10 out of the 14 employees were employed as contract labour for more than a decade and four of them were employed for two years and the same employees may continue even though there was change of contractor. The learned counsel for the fourth respondent submitted that there is no danger of their services being terminated as they alone were employed under the succeeding contractor. In the circumstances, the grant of injunction against the fourth respondent would not in any way be prejudicial. On the other hand, if the services of these employees, who are employed in the processes of sweeping and scavenging in the fourth respondent establishment pending disposal of the writ petition are terminated, they would be put to very great hardship. Though the question of absorbing them into the service of the fourth respondent and regularising their services is a matter ultimately to be decided in the main writ petition, yet, their continuous services should be safeguarded. Only in that view, the necessity of granting injunction arises. In the face of the decisions of the Supreme Court quoted above, no reliance can be placed on the decision of the Andhra Pradesh High Court reported in A. P. D. D. C. Federation, Hyderabad v. K. Ramulu & Ors., (supra) cited by the learned counsel for the fourth respondent. Accordingly, W.M.P. No. 2563 of 1989 is allowed.
10. As regards W.M.P. No. 2564 of 1989 with regard to issue of direction to the fourth respondent for payment of interim relief to bridge the gap between the amounts being paid to the petitioner-workmen concerned and the applicable scale of pay to the same category of workmen in the fourth respondent-establishment till the disposal of the writ petition, it is seen that it is the contention of the fourth respondent that there is no such similar category in the employment of the fourth respondent and as such, the question of paying them at the same scale does not arise. Further, the petitioner has to ask for the wages only from the contractor and not from the principal employer, namely, fourth respondent. Under Sections 7 and 12 of the Act, the contractor as well as the principal employer have to obtain necessary licence. Chapter II of the Rules relates to matters pertaining to the Central Advisory Contract Labour Board while Chapter II of the Rules deals with registration of establishments and licensing of contractors. Rule 25 prescribes the forms, terms and conditions of licence. In particular, Rule 25 (ii) (iv) prescribes that it shall be the condition of every licence that the rates of wages shall not be less than the rates prescribed under the Minimum Wages Act, 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. Rule 25 (ii) (v) (a) prescribes that it shall be the condition of every licence that 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 the Chief Labour Commissioner (Central) whose decision shall be final. Section 21 makes the contractor responsible for payment of wages to each worker employed by him as contract labour but further prescribes that the principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. In the instant case, there is dispute with regard to the type of the work in the establishment of the fourth respondent similar to the one of sweeping and scavenging and it is a matter to be decided only by the Chief Labour Commissioner whose decision shall be final. The petitioner has to approach the concerned official for getting a decision on this matter and also the scale of of pay in the establishment of the fourth respondent and only thereafter apply for payment. Without getting necessary decision, it is not possible to grant the relief as prayed for in this petition. In this connection it is worthwhile to quote the decision of the Supreme Court in BHEL worker''s Assn. Hardwar & Ors., v. Union of India & Ors. (supra) wherein it was held that the question whether the work done by contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the Chief Labour Commissioner under the proviso to Rule 25 (ii) (v) (a). It was further held that it is for the appropriate Government to take the question of abolition of contract labour and that it is not a matter for the court to consider whether the employment of contract labour is to be abolished. Further, the question whether one of the employees, Masthan, is doing sweeping work or scavenging work is to be decided only by the concerned authority under the act as it is disputed by the fourth respondent that he is only a peon and that he is not doing the same work. The remedy of the petitioner is only to approach the machinery which is provided under the Act itself in this regard and without doing so, it is not possible for this court to decide the matter in this miscellaneous petition. It is open to the petitioner to move this court after obtaining necessary decision from the concerned authority with regard to the payment of salary on the scale paid by the fourth respondent to the similar category in the establishment. Only thereafter a decision can be rendered in the light of Rule 25 as well as Section 21 of the Act. The question of equal pay for equal work and that no discrimination can be made between a regular employee and a contract labour is not in dispute. The question is whether there was such a type of work or category of service in the establishment of the fourth respondent. The writ petitioner relied on certain memorandum of settlement between the management and the petitioner. All those things can only be agitated before the concerned authority and prima facie., it is not for this court to go into the question and direct the fourth respondent to pay the difference between the pay paid by the contractor and the alleged salary paid by the fourth respondent to its subordinate staff. For all these reasons, I am of the view that this relief prayed for in this petition cannot be granted at this stage.
11. In the result, W.M.P. 2563 of 1989 is allowed while W.M.P. No. 2564 of 1989 is dismissed. However, there will be no order as to costs.
