Allahabad High Court
G.M. Food Corporation Of India And ... vs Union Of India And 4 Others on 14 September, 2017
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 42493 of 2017
Petitioner :- G.M. Food Corporation Of India And 2 Others
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Santosh Kumar Mishra
Counsel for Respondent :- A.S.G.I.,Shri Krishna Mishra
Hon'ble B. Amit Sthalekar,J.
Heard Sri S.K.Mishra, learned counsel for the petitioner, Sri Krishna Mishra, learned counsel for the respondent no.3 and Sri Chandra Prakash Yadav, learned counsel for the respondents no.1 and 2.
The petitioners in the writ petition are seeking quashing of the order dated 7.7.2017 passed by the Deputy Chief Labour Commissioner, Kanpur. This order has been passed on an application under Rule 25 (2) (v) (a) of the Contract Labour (Regulation and Abolition) Rules, 1971 (hereinafter referred to as 'the Rules, 1971').
Preliminary objection has been raised by Sri Krishna Mishra, learned counsel for the respondent no.3 that against the impugned order the petitioners have a remedy by way of appeal under Section 15 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act,1970').
Section 15 of the Act, 1970 read as under:-
"15 Appeal. -(1) Any person aggrieved by an order made under section 7, Section 8, Section 12 or section 14 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to an appellate officer who shall be a person nominated in this behalf by the appropriate Government:
Provided that the appellate officer may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the appellate officer shall, after giving the appellant an opportunity of being heard dispose of the appeal as expeditiously as possible."
He submits that an appeal will lie against every order passed under Section 7, Section 8, Section 12 or Section 14 of the Act, 1970.
He then referred to Section 12 of the Act, 1970 which deals with the licensing of contractors and provides that from the date of appointment by appropriate Government by notification in the Official Gazette, no contractor to whom this Act applies shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
Learned counsel for the respondents has also referred to Rule 25 of the Rules, 1971 which provides the forms, terms and conditions of licence. Sub-section (1) of Rule 25 of the Rules, 1971 provides that every licence granted under sub-section (1) of Section 12 shall be in Form VI. Sub-section 2 of Rule 25 provides that every licence granted under sub-rule (1) or renewed under Rule 29 shall be subject to the following condition, namely clause (v) (a) provides 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 Deputy Chief Labour Commissioner (Central).
Rule 25 (2) (v) (a) of the Rules, 1971 reads as under:-
"(v) (a) 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 Deputy Chief Labour Commissioner (Central)."
Learned counsel for the petitioner in rebuttal submitted that earlier respondent no.3 had filed Writ Petition No.12307 of 2017 which was disposed of by this Court by order dated 24.3.2017 with a direction to the Deputy Chief Labour Commissioner (Central), Kanpur to take a decision on the application of the petitioner therein dated 2.12.2016 filed under Rule 25 (2) (v) of the Rules, 1971 within a period of two months. Sri Prem Shanker Prasad, learned counsel for the respondents had given no objection to the said order.
However, Special Appeal No.239 of 2017 was filed by the Chief Managing Director, Food Corporation of India and another stating therein that their counsel had not given any such consent that the application filed under Rule 25 (2) (v) (a) of the Rules,1971 is to be decided by Deputy Chief Labour Commissioner (Central), Kanpur. He also raised a query that the Deputy Chief Labour Commissioner (Central), Kanpur has no territorial jurisdiction to decide the matter. The Division Bench of this Court disposed of the Special Appeal by its order dated 24.4.2017 observing that the issue of jurisdiction had not been raised before the learned Single Judge but because it was being raised in the Special Appeal it should be brought to the knowledge of the learned Single Judge.
It is submitted by the learned counsel or the petitioners herein that after the order in Special Appeal they moved an application before the Deputy Chief Labour Commissioner (Central), Kanpur on 3.5.2017 stating that the question of jurisdiction of the Deputy Chief Labour Commissioner (Central), Kanpur was under consideration, therefore, the case pending before him may be adjourned.
The submission of the learned counsel is that instead of passing the order on their application the Deputy Chief Labour Commissioner (Central), Kanpur proceeded to decide the application under Rule 25 (2) (v) (a) of the Rules, 1971 and passed the order dated 7.7.2017 which is impugned in the present writ petition.
When asked about the fate of the Writ Petition No.12307 of 2017, learned counsel for the petitioners submitted that they have moved a recall application on 23.5.2017 but the same has not been taken up.
Be that as it may, since the order of the learned Single Judge dated 24.3.2017 subsists even today and has not been set aside by the Division Bench of this Court in the Special Appeal and in pursuance of the direction given therein the Deputy Chief Labour Commissioner (Central), Kanpur has finally decided the application of the respondent no.3 under Rule 25 (2) (v) (a) of the Rules,1971 by the impugned order which is clearly appealable in view of specific provisions of Section 15 of the Act, 1970, this writ petition is not maintainable in the High Court.
The writ petition is accordingly dismissed as not maintainable.
Order Date :- 14.9.2017/Asha
