Article (October-2016)

Articles

The genesis of equal pay for equal work for Contract Labour

Deepanjan Dey

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01-Oct-2016

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Rule 25 (2) (V) (a) of the Contract Labour (central) Rules 1971 prescribes equal pay to Contract workman for same or similar kind of workvis-à-vis with the permanent workman of the organization. This rule has been also adopted by the State Government in their respective rules on Contract Labour. Further, under this rule the Labour Commissioner has been vested with the power to decide in case of any disagreement between the parties.The rule is reproduced here under for better appreciation:


"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 same and 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 Deputy Chief Labour Commissioner (Central);"


This rule is one of the fundamental conditionsof the license issued to the Contractor/s for engagement of Contract Labour in any establishment. However, inspite of such equitable rule being one of the condition of license for engaging Contract Labour in any organization its implementation remains a question mark. The apathy of the government agencies and ignoranceof the Union Leaders in taking advantage of this provision of rule can be attributed for poor implementation of this rule. As a consequence this has led to exploitation of the Contract Labours across industries which includes even many big and ethical business houses. For industries India's inflexible labour laws are said to be a big deterrent. To overcome this hindrance companies have found a solution by hiring contract workers in large numbers which account for 46 % of the total workforce (Source:www.livemint.com, Mar 19 2014). Hence it is not surprising that large number of Contract Labours are engaged in similar operations vis-à-vis totheir permanent counterpart acrossmany organization.


It is appalling that inspite of working and doing similar nature of work for a long period of timethe wage disparity  and other consequential benefits between the permanent workmen and Contractor workman are huge leading to unrest and IR flare up in many organizations across the country. As a matter of fact the engagements of Contract Labour have become contentious and have led to violent agitation. However, if the agencies of the appropriate Government would have been proactive in implementing this rule many IR flare ups could have been avertedin many cases and the exploitation of this class of labour would have been curtailed to great extent.

The Legal Perspective:
As discussed above the Labour commissioner has been vested with powers to decide any disagreement as whether the work performed by the Contract Labour are similar to that of the permanent workman. The supreme court in B.H.E.L Workers Association Hardwar and others V. Union of India and others (AIR 1985 SC 409) 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 (2) (V) (a)." The apex Court in the Hindustan Paper corporation ltd. Vs Kakajal Thikadar Sramik Union and Others (2008(1) CLR 310 (SC) = 2008 (1) LLN 463 (SC)) has also opined that the jurisdiction for deciding the disputes under this rule exclusively lies with the Labour commissioner and the same cannot be even usurped by the Court.However, while exercising jurisdiction under this rule the Labour commissioner ought be judicious and give reasoned order while deciding a case.In Panki Thermal Station and another Vs Vidyut Mazdoor Sangathan and others (2009 (1) CLR 686 (SC) = 2009 (2) LLJ 320 (SC)) while setting aside the order of the High Court the apex court observed: "In the commissioner's order there is no discussion as to how the Commissioner arrived at the conclusion about similarity of work. The Commissioner ought to have considered on the basis of pleadings and materials placed by the parties. The commissioner was required to arrive at a conclusion that the workmen had been performing the same duties as are being performed by regular employees. The commissioner's order does not reflect that these aspects were considered………..". The matter was remitted by the apex Court to the Labour Commissioner to decide the matter afresh.


As regard to the performance of the same or similar kind of work by the Contract labour in relation to the workmen directly employed by the Principal Employer of the establishment the apex Court has decided the matter on merits and facts of each case when it was put to judicial scrutiny.  In Food corporation of India Vs. Shyamal K. Chatterjee and Others (AIR 2000 SC 3554= 2000(3) CLR 850) turning down the plea of FCI that there has been no enquiry at all as to the parity between the class IV employees and the casual workers the Supreme Court had observed:  " …..the letter of the Labour Department and the certificate issued by the Assistant Department Manager of the appellant at Bakura are in conformity with the rule of 25 (2) (v) (a) of Central Rules framed under Contract Labour (regulation and Abolition ) Act ,1970. These two materials clearly indicate that the respondents were doing the job, which are at par with the work of the class IV employees. The court further observed that as the High Court has given its finding that since some casual workers appointed directly by the appellant and some employed by the Contractors were working in the same godown and on the same work, there cannot be any scope for making any difference and to deny equal pay for equal work".


However, in the case between U.P Rajya Vidyut Utpadan Board and another And U.P Vidyut Mazdoor Sangh (2010 (124) FLR 80 (SC)= 2010 (1) LLN 124 (SC)) the apex Courthas inter-alia observed:"Nature of work, duties and responsibilities attached thereto are relevant in comparing and evaluating as to whether the workmen employed through contractor perform the same or similar kind of work as the workmen directly employed by the principal employer. Degree of skill and various dimensions of a given job have to be gone into to reach a conclusion that nature of duties of the staff in two categories are on par or otherwise. Often the difference may be of a degree. It is well settled that nature of work cannot be judged by mere volume of work; there may be qualitative difference as regards reliability and responsibility."


On merits the Court inter-alia observed: "Despite such a specific case set up by the present appellants before the Labour Commissioner to show that the contract labour in filtration plant engaged through the contractors do not perform the same or similar kind of work as is done by the employees employed directly by the employer in main plant, the Labour Commissioner did not advert to these aspects at all. The Labour Commissioner ought to have adverted to the nature of duties of the staff in the two categories, degree of skill and dimensions of the job for reaching the conclusion that the work done by the contract labour in the second filtration plant is same or similar to the kind of work done by the employees employed by the principal employer directly in the main plant. There is no discussion at all by the Labour Commissioner as to how he arrived at the conclusion about similarity of work. The evidence let in by the parties and the materials placed by them seem to have not at all been considered by the Labour Commissioner." In its final order the court allowed the appeal and set aside the impugned judgment of the High Court and order of the Labour Commissioner  and directed the Labour commissioner, Kanpur for fresh consideration of the Union application under Rule 25 (2) (V) (a).


Conclusion:
From our above discussion on case laws we can conclude that every case will be dealt according to the facts and merits of each case. However, it is incumbent on all concerned be it the appropriate Government or the stake holders of an industryto ensure equitable justice is done with the Contract Labour and they are paid at least what legally due to them. After all industriesshould come forward on its own to implement this rule, wherever applicable, as it cannotflourish or grow at the expense of Contract Labourfor a long time.