For the Respondent No.2 : Mr. Sarajit Sen, Adv.
Mr. Mrinal Kanti Sardar, Adv.
Mr. Tapas Singha Roy, Adv.
1. The writ petition has been preferred praying for direction upon the
respondents from giving effect to the award dated 20th August, 2024 passed
2. The petitioner/company's case is that vide order No.L-12011/37/2015 -
IR(B-I), New Delhi dated 3rd July, 2015, the Ministry of Labour made the
"No.L-12011/37/2015 - IR(B-I) : WHEREAS the
Central Government is of the opinion that an industrial dispute
exists between the employers in relation to the management of
M/s. S & IB Services Pvt. Ltd., and their workmen in respect of
the mattes specified in the Schedule hereto annexed:
"Whether the action of M/s. S & IB Services Pvt. Ltd., M/s. DCM
Vigilance & Maintenance Services Pvt. Ltd., M/s. IB Security &
Maintenance Services, M/s. JRM Management & Consultancy
Services, M/s. PVS Pvt. Ltd. and M/s. Pathak Enterprise,
contractor of HDFC Bank Ltd. is justified in denying the (i) Gun
Allowance, (ii) Special Allowance & (iii) Conveyance Allowance
to the contractual workmen is legal and/or justified ? If not, what
relief the workmen are entitled to ?"
3. The Central Government Industrial Tribunal at Kolkata registered the
4. The Tribunal vide its award dated 20th August, 2024 decided the reference
"Therefore, the contractor employers are bound to pay
conveyance allowance, gun allowance and special allowance,
though which do not form part of wages but were earlier paid to
those security personnel and other employees deployed by them
in the establishment of principal employer HDFC Bank Ltd.
from the date they have stopped payment unilaterally or at the
direction of the principal employer till those security personnel
or other employees worked for them in the establishment of the
Principal Employer and can claim reimbursement of the same
from the Principal employer.
In case those contractors fail to pay such due to those
security guards and other employees deployed by them in the
establishment of HDFC Bank Ltd., then in view of provisions of
section 21 (4) of Contract Labour (Regulation & Abolition) Act,
1970 the principal employer who is the ultimate user of the
service of those security guards are bound to pay the arrears due
to those security guards employed by it through different
contractors after verification of their service in its establishment
and also after verifying their age slips of September, 2011
onwards till it took their services and recover the same from its
contractors from the pending bills, if any, provided it had already
paid those allowances to the contractors. In case if it had not
paid toward such allowances to its contractors then it is bound to
make payment of arrear of conveyance allowance, gun allowance
and special allowance to all the security personnel and other
contractor employees engaged by it through the above mentioned
contractors for the period of contract it had with them or till the
period those security personnel and other contactor employees
rendered their services to its establishment.
Accordingly, Reference no.41 of 2015 is allowed with the
finding that unilateral decision of the contractor employers as
well as principal employer HDFC Bank without complying with
the mandatory provisions of section 9-A of I.D. Act, in effecting
changes in the service conditions of contractor employees by
stopping payment of conveyance allowance, gun allowance and
special allowance is held to be illegal and they are bound to pay
the dues of those workmen from the date, the payment was
stopped till their service in the establishment of the HDFC
Bank.
Both the principal employer and contractor employers are
directed to make payment of the above due within three months
from the date of the award, failing which the union or concerned
workman shall be at liberty to recover the same according to
law."
5. The petitioner/company's contention against the said award is as follows:-
i) The concept of "industrial dispute" does not recognize a dispute
between a principal employer and a contractor's employee, and in
the instant proceeding, it is the admitted case of all the parties that
the concerned workmen are contract labours.
ii) Restructurisation of wages in an employer -employee contract
cannot attract an industrial dispute between a principal employer
and the contract labours, if at all.
iii) That decision of the service providers to stop Special Allowance and
Gun Allowance and restructurised payment by making additional
release of salary through revision cannot be the subject matter of
an industrial dispute between the bank and the trade union
representing the contractors' employees.
iv) There can be no scope of violation of Section 9A of the Industrial
Disputes Act, 1947 at the behest of the petitioner bank against the
employees of the service providers since admittedly there has been
no establishment of employer employee relationship between the
bank and the employees of the contractors.
v) The learned Tribunal failed to appreciate that principal employer
cannot give notice under Section 9A of the Industrial Disputes Act,
1947, and hence the very foundation of passing the award and
granting relief was erroneous and perverse.
vi) The learned Tribunal also failed to appreciate that the provisions of
Section 21(4) of the Contract Labour (Regulation & Abolition) Act,
1970 has no manner of application in the facts and circumstances
of the case.
6. Admittedly, the petitioner Bank herein is the principal employer.
7. The referee order dated 3rd July, 2025 states the opinion "that an
industrial dispute exists between the employers in relation to the
management of M/s. S & IB Services Pvt. Ltd., and their workmen. ..."
8. The "employers" in relation to the management of M/s. S & IB Services
Pvt. Ltd. includes the principal employer being the petitioner/Bank
herein, which has admittedly employed the said contractors.
9. The management of M/s. S & IB Services Pvt. Ltd. is the contractor,
whereas the petitioner/Bank herein is the principal employer and the
learned Tribunal rightly held that the workers through their contractor
were in the service of the petitioner/Bank carrying out all duties related to
the smooth functioning of the Bank.
10. The service conditions of the workers were also as per the requirement of
the petitioner/bank and not the contractor through whom the workers were
employed and as such any change in service condition is the change in
requirement of the petitioner/Bank, which directly effects the workers, who
carried out and/or put in such service.
11. The denial of (i) Gun Allowance, (ii) Special Allowance and (iii) Conveyance
Allowance to the said contractual workers is directly related to the services
which are being specifically provided by the workers only to the petitioner
Bank and none else.
12. About the application of Section 9A of the Act. Section 9A of the I.D. Act
provides as follows:-
"9A. Notice of change.
- No employer, who proposes to effect any change in the conditions of
service applicable to any workman in respect of any matter specified
in the Fourth Schedule, shall effect such change,
-(a) without giving to the workmen likely to be affected by such
change a notice in the prescribed manner of the nature of the
change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change-
(a) where the change is effected in pursuance of any [settlement or
award] [ Substituted by Act 46 of 1982, Section 6, for certain
words (w.e.f. 21.8.1984).]; or
(b) where the workmen likely to be affected by the change are
persons to whom the Fundamental and Supplementary Rules,
Civil Services (Classification, Control and Appeal) Rules, Civil
Services (Temporary Service) Rules, Revised Leave Rules, Civil
Service Regulations, Civilians in Defence Services
(Classification, Control and Appeal) Rules or the Indian Railway
Establishment Code or any other rules or regulations that may
be notified in this behalf by the appropriate Government in the
Official Gazette, apply."
13. The copies of "Service Agreement" between the Bank (principal employer)
and the contractors clearly show that the agreements relate to the services
to be provided to the petitioner/Bank, the principal employer herein and as
such any change in service conditions done in this case is also as per
requirement of the petitioner/Bank, the principal employer, who as per
agreement has changed the service conditions of the workers herein and is
thus responsible, as rightly held by the Tribunal.
14. In the present case the "employer" herein is the "principal employer" as the
change in the condition of service herein is directly related to the "principal
employer" who exclusively availed of such service. The contractor herein is
only the provider and is bound by the terms and conditions imposed by the
"principal employer", i.e., petitioner/Bank herein and the petitioner is thus
liable under Section 9A of the Act, which was rightly held by the Tribunal.
15. Regarding the contention that the relief granted is beyond the reference, as
it does not include the petitioner/Bank, it is observed that "Employer of the
Management of ..." includes the petitioner/Bank who has employed the
workers through the contractors for solely doing the duties of Bank.
16. Regarding the part of the referee "if not, what relief the workmen are
entitled to", the Tribunal rightly applied Section 21(4) of the contract to
provide relief prayed/entitled for/to and found fit to give to the workers and
there is thus no irregularity in the said order.
17. The reference relates to the year 2015. Award was passed in 2024. 10
(ten) long years have passed, and the workers are still fighting for their
lawful dues under a beneficial legislation. End of justice requires
immediate implementation of the award dated 20th August, 2024.
18. The writ petition (WPO/387/2025) is thus dismissed. The award of the
Tribunal under challenge be implemented within six weeks from the date
of this order. All dues be paid with interest @ 10% per annum till date of
payment as directed.
19. In case this order is not complied with, as directed, the dues will have to be
paid with enhanced interest @18% per annum till payment.
20. Urgent Photostat certified copy of this Judgment, if applied for, be given to
the parties upon usual undertakings.
(SHAMPA DUTT (PAUL), J.)
