Orissa High Court
M/S. National Aluminium Company vs Dy. Chief Labour Commissioner on 24 June, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.25482 and 34056 of 2020
In W.P.(C) No.25482 of 2020
M/s. National Aluminium Company
Limited .... Petitioner
Mr. M.K. Mishra, Senior Advocate
-versus-
Dy. Chief Labour Commissioner .... Opposite Parties
(Central) and others
Mr. P.K. Parhi, Assistant Solicitor General
for Opposite Party No.1
Mr. B.S. Tripathy, Advocate
for Opposite Party Nos.2,3,4,6,8 and 9 to 14
AND
In W.P.(C) No.34056 of 2020
M/s. National Aluminium Company
Limited .... Petitioner
Mr. M.K. Mishra, Senior Advocate
-versus-
Dy.Chief Labour Commissioner .... Opposite Parties
(Central) and others
Mr. P.K. Parhi, Assistant Solicitor General
for Opposite Party No.1
Mr. B.S. Tripathy, Advocate
for Opposite Party Nos.2,3,4,6,7,8 and 10 to 16
CORAM:
THE CHIEF JUSTICE
JUSTICE S.K. PANIGRAHI
ORDER
24.06.2021
Order No.
Dr. S. Muralidhar, CJ.
05. 1. These matters are taken up by video conferencing mode.
2. Both these writ petitions by M/s. National Aluminium
Company Limited (NALCO) arise from a common set of facts
involving the same issues, and are accordingly being disposed of
by this common order.
3. W.P.(C) No.25482 of 2020 by NALCO is directed against an
order dated 31st August 2020 (Annexure-6) passed by the Deputy
Chief Labour Commissioner (DCLC) (Central), Bhubaneswar,
who is also the authority in terms of Rule 25(2)(v) (a) and (b) of
the Contract Labour (Regulation & Abolition) Central Rules,
1971 (CLRA Central Rules) disposing of an application filed by
the contract workers (Opposite Party Nos.2 to 14) working in the
Damanjodi Plant of NALCO and directing NALCO to pay them
additional raise in wages, in addition to the minimum wages
notified by the "Appropriate Government" on a sliding scale as
indicated in the operative portion of the order.
4. W.P.(C) No.34056 of 2020 by NALCO is directed against
another near identical order passed by the DCLC (Central),
Bhubaneswar on 30th September 2020 in an application filed by
the contract workers (Opposite Party Nos.2 to 16 in the said writ
petition) directing NALCO to pay an additional raise in wages in
addition to the minimum wages as specified therein.
5. Notice was issued in W.P.(C) No.25482 of 2020 by this Court
on 3rd November 2020, and the impugned order was stayed. A
similar order was passed as regards the companion W.P.(C)
No.34056 of 2020 on 12th January, 2021. In both the writ
petitions, applications have been filed by the contract workers for
vacation of interim stay.
6. This Court has heard the submissions of Mr. M.K. Mishra,
learned Senior Advocate appearing for NALCO; Mr. P.K. Parhi,
learned Assistant Solicitor General for Union of India appearing
for the DCLC (Central), Bhubaneswar and Mr. B.S. Tripathy,
learned counsel appearing for the contract workers in both the
matters.
7. The background facts, which are common in both the writ
petitions, are that the contract workers in the present petitions first
approached this Court by filing W.P.(C) No.16765 of 2007
seeking abolition of the contract labour system in the Sanitation
Department of NALCO in its plant at Damanjodi. The said writ
petition came to be disposed of by this Court with a direction to
the Chairman, Orissa State Contract Labour Advisory Board to
take a decision on the representation of the contract workers, after
giving them an opportunity of being heard.
8. It is stated that after change in the Appropriate Government in
respect of the NALCO, Damanjodi, the contract workers again
filed W.P.(C) No.7294 of 2011 in this Court praying for abolition
of contract labour system and regularization of their services in
the Sanitation Department of NALCO. The second writ petition
was disposed of by this Court with a direction to the Central
Advisory Contract Labour Board (CACLB) to take a decision in
accordance with law. Thereupon, the CACLB constituted a sub-
committee to examine whether the contract labour system should
be prohibited in NALCO. After a detailed study, the CACLB in
its 86th meeting held on 26th -27th August 2015, recommended to
the Central Government not to prohibit employment of contract
labour inter alia in the Sanitation Department of NALCO,
Damanjodi.
9. The above recommendation was accepted by the Ministry of
Labour and Employment, Government of India which issued a
communication dated 16th October 2015 forwarding the CACLB's
recommendations to the DCLC (Central), Bhubaneswar for
appropriate order under Rule 25(2)(v)(b) of the CLRA Central
Rules as well as Management of NALCO.
10. The contract workers filed W.P.(C) No.23279 of 2015 in this
Court challenging the above decision of the Government of India.
By a judgment dated 7th December 2017, a learned Single Judge
dismissed the aforementioned writ petition. Further, the appeal
bearing W.A. No.12 of 2018 filed by the contract workers was
dismissed by the Division Bench by an order dated 16th August,
2018. The question of continuance of the contract workers as such
without being regularized in NALCO, stood concluded as a result
of the above orders.
11. The contract workers thereafter filed W.P.(C) No.21797 of
2018 for a direction to the DCLC(C), Bhubaneswar to take steps
for payment of wages to the contact workers "at par with the
lowest monthly wages paid to a regular unskilled worker" of the
Departments of Horticulture, Civil Maintenance, Material
(Central Store), Sanitation and Mechanical Maintenance in
NALCO, Damanjodi with effect from October, 2015.
12. By a order dated 19th September 2019, a Division Bench of
this Court disposed of the said writ petition directing the
DCLC(C), Bhubaneswar to determine the issue on payment of
wages in accordance with Rule 25(2)(v)(b) of the CLRA Central
Rules within a period of four weeks from 23rd September, 2019.
13. Soon thereafter, similar orders were passed in the writ
petitions of other contract workers which included W.P.(C)
No.18698, 18701 and 19508 of 2019. In the last mentioned writ
petition, I.A. No.16231 of 2019 was filed by NALCO seeking
modification of the order dated 6th November 2019 and by an
order dated 22nd January 2020, NALCO was permitted to file
separate objections as far as Rule 25(2)(v)(a) and 25(2)(v)(b) of
the CLRA Central Rules were concerned within a period of four
weeks from that date and in such event, DCLC (C) was directed to
consider it in accordance with law within a period of four weeks
from the date of filing of the objection.
14. NALCO presented a detailed response before the DCLC(C),
Bhubaneswar on 22nd May 2020 where it replied specifically to
the query regarding "last regular employee", the date of retirement
of such employee, pay slip of such employee and "the minimum
pay for regular employee in the nearby industries." It was
contended that the Appropriate Government in respect of the
Alumina Refinery of NALCO under the Minimum Wages Act,
1948 (MW Act) was the State Government and the minimum
wage rates for the unskilled category of workers in Odisha with
effect from 1st October 2019, was Rs.298/-. It was also pointed out
in the response that apart from receiving minimum wages, the
contract workers were also getting Additional Element of Rs.32/-
per day and the Canteen Subsidy of Rs.12/- per day over and
above "the minimum wages fixed by the Central Government." It
was claimed that NALCO was in fact making payment of wages
at Damanjodi for unskilled workers @ Rs.447/- per day which
was much higher than what was being paid in other
establishments.
15. The impugned order of the DCLC(C), Bhubaneswar disposing
of the claims can be summarized thus:
(i) The contract workers have been working in the establishments
of NALCO under various contractors for nearly three decades.
While a labour contractor may change depending on the tender
value, the contract workers had been working continuously in
NALCO. They were largely from the tribal areas and nearby
villages.
(ii) The DCLC(C), Bhubaneswar set out Rule 25(2)(v)(b) of the
CLRA (Central) Rules and came to the conclusion that the work
discharged by the contract worker "is same and similar to that of
the work carried out by the regular workers of NALCO though as
at present, there is no such workers continuing."
(iii) The DCLC(C), Bhubaneswar came to the conclusion that the
claims of the contract workers would be considered only under
Rule 25(2)(v)(b) and not Rule 25(2)(v)(a). The relevant
observation of the DCLC(C), Bhubaneswar reads as under:
"The workers have raised their claim to pay same
and similar wage of regular workmen to which the
court had not allowed to consider under 25(2)(v)(a)
but to consider it in the light of 25(2)(v)(b)."
(iv) The question posed by the DCLC(C) was whether it was
justified on the part of NALCO to pay only the bare minimum
wages to the contract workers "ignoring their skill,
contribution/expertise and long period of service?". It was further
observed as under:
"To arrive at a decision it is not possible to call all
the contractors as the contracts are over and the
contractors have been continuously changed so the
affidavit given by the contract workers in the court is
taken as an authentic document toward their period
of service. Moreover the management has neither
given any input regarding the credentials of these
workers nor authenticated the document given by
them though admitted that these workers are
working with them."
(v) The operative portion of the impugned order of the DCLC(C),
Bhubaneswar reads thus:
"As the contracts are Job Contract any payment
arising out of this order is to be borne by the
Principal Employer. (i.e.) NALCO. Though effort
has been made to make consent order parties were
advised to discuss and resolve the matter amongst
themselves but the management is not inclined to do
so.
So a fair decision needs to be taken under
25(2)(v)(b) to give justice to such workers which are
as under;-
A. All the contract workers who are parties to the
Application and also whoever may be employed in
future in the above establishment under
Respondennt-1, shall be paid an additional raise in
wages in addition to the minimum wages notified by
the Appropriate Government as under:
i. Service more than 5 years will get 10% rise.
ii. Service more than 10 years will get 15% rise.
iii. Service more than 15 years will get 20% rise.
iv. Service more than 20 years will get 25% rise.
v. Service more than 25 years will get 30% rise.
B. All contract workers have to be paid the bare
minimum wage from the very first day of joining
employment at any time, even as fresher.
C. This rise is payable from the first day he/she
enters 6th year, 11th year, 16th year and so on of
contract employment, under a contractor in the
above works under the Respondent-1.
D. In future The rate of wages in the tender
documents shall be provided accordingly to enable
the contractor concerned to pass such benefit to the
eligible workers smoothly.
E. The additional Rs.44/- being paid to the workers
will be paid in addition to the raise mentioned in
previous para.
F. The calculation should be based on the prevailing
Minimum Wages fixed from time to time. All the
eligible workers will be paid arears within a month
of receipt of this order.
G. The above order shall come into force
immediately but arrears will be paid retrospectively
from 1st October, 2015"
16. A careful perusal of the impugned order of the DCLC(C),
Bhubaneswar reveals that although the DCLC (C), Bhubaneswar
reached the conclusion that the claims of the contract workers are
to be examined only in terms of Rule 25(2)(v)(b) of the CLRA
Central Rules, the fact that the parameters to be considered
thereunder are different from those in Rule 25(2)(v)(a) of the
CLRA (Central) Rules was perhaps lost sight of. For ready
reference, the text of Rule 25 (2) (i) to (v) of the CLRA Central
Rules is reproduced hereunder:
"25. Forms and terms and conditions of licence.--
xxx xxx xxx xxx
(2) Every licence granted under sub-rule (1) or
renewed under rule 29 shall be subject to the
following conditions, namely:--
(i) the licence shall be non-transferable;
(ii) the number of workmen employed as contract
labour in the establishment shall not, on any day,
exceed the maximum number specified in the
licence;
(iii) save as provided in these rules, the fees paid for
the grant, or as the case may be, for renewal of the
licence shall be non-refundable;
(iv) the rates of wages payable to the workmen by
the contractor shall not be less than the rates
prescribed under the Minimum Wages Act, 1948 (11
of 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;
(v) (a) in cases where the workman 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)];
(b) in other cases the wage rates, holidays, hours of
work and conditions of service of the workmen of the
contractor shall be such as may be specified in this
behalf by [the Deputy Chief Labour Commissioner
(Central)];
Explanation.--While determining the wage rates,
holidays, hours of work and other conditions of
services under (b) above, [the Deputy Chief Labour
Commissioner (Central) shall have due regard to the
wage rates, holidays, hours of work and other
conditions of service obtaining in similar
employments;"
17. It will be seen that there are two portions of sub Clause (v)
which is further divided into (a) and (b). In the present case, once
it was clear that Rule 25(2)(v)(a) had no application and that the
claims had to be decided in terms of Rule 25(2)(v)(b), the
DCLC(C), Bhubaneswar could not have resorted to evaluating the
pleas on the parameter of "same or similar kind of work as a
workmen directly employed by the principal employer of the
establishment." That is an expression exclusive to Rule 25 (2) (v)
(a) and not (b). In fact, in the impugned order, the expression
"same and similar kind of work" finds place in more than one
place.
18. For the purposes of Rule 25(2)(v)(b) of the CLRA (Central)
Rules, a question that had to be asked in terms of the Explanation
thereunder was regarding the wage rates "obtaining in similar
employment". The expression, "similar employment" is different
from "same and similar kind work" occurring in Rule 25(2)(v)(a).
While latter could possibly refer to the same or similar work
within NALCO itself, the expression 'similar employment' in
Rule 25(2)(v)(b) cannot be limited to NALCO, but similar
employments in other establishments/PSUs/Companies.
Therefore, there was a wider range to choose from.
19. In the discussion of "same and similar work" in paragraph 34
(e) of the impugned order, the DCLC(C), Bhubaneswar notes that
"the very same works were earlier executed by Respondent No.1
by engaging regular workers". Here again, the DCLC(C),
Bhubaneswar appears to have in mind Rule 25(2)(v)(a) and not
Rule 25(2)(v)(b).
20. At this stage, it must be noted that Mr. M.K. Mishra, learned
Senior Advocate appearing for NALCO sought to contend that
neither Rule 25(2)(v)(a) nor Rule 25(2)(v)(b) of the CLRA
(Central) Rules was applicable to NALCO. However, it is too late
in the day for NALCO to advance this argument. It seems to have
accepted the numerous orders of this Court passed in the second
round of writ petitions by the contract workers while remanding
the matters to the DCLC(C), Bhubaneswar for deciding the said
application. The said contention of NALCO is accordingly
negatived.
21. However, there is merit in the contention of NALCO
regarding the scope of the proceedings before the DCLC (C),
Bhubaneswar which has already been discussed hereinabove. In
particular, Mr. M.K. Mishra, learned Senior Advocate points out
that there were no occasion for the DCLC(C), Bhubaneswar to
raise the minimum wages on a sliding scale by pegging the
percentage of rise in direct proportion to the number of years of
service. According to him, this is beyond the power of DCLC(C),
Bhubaneswar.
22. Mr. B.S. Tripathy, learned counsel for the contract workers,
on the other hand, sought to defend the impugned order by
submitting that the lowest of the minimum wages notified by the
'Appropriate Government', which according to him is the Central
Government, was payable. He referred to the reply submitted by
NALCO on 24th February 2020 to the DCLC (C), Bhubaneswar
which showed that in two other plants of NALCO at Kanhiha and
Sunabeda, the lowest minimum wages payable to unskilled
worker was Rs.403/- and at Damanjodi, it was Rs.447/-. As
something more had to be paid, the DCLC(C), Bhubaneswar was
justified in issuing the above order.
23. On a careful perusal of the impugned order, the Court finds
that although the DCLC(C), Bhubaneswar has set out the text of
Rule 25(2)(v)(b) of the CLRA (Central) Rules, particular attention
has not been bestowed to the specific requirement of that sub-
Rule read with the Explanation. The Explanation clearly states
that that while determining the wage rates, the DCLC(C),
Bhubaneswar "shall have due regard to wage rates"....."obtaining
in similar employments". As pointed out the wages for "similar
employment" need not be restricted to similar work performed by
directly recruited/regular workmen of NALCO. In fact, the
DCLC(C), Bhubaneswar notes in the impugned order itself that
such work was no longer being performed by regular workers in
NALCO.
24. Secondly, the DCLC(C), Bhubaneswar used the expression
"appropriate Government" without specifying whether it was
State or Central Government. The DCLC(C), Bhubaneswar
should have asked for the notification of such Appropriate
Government issued under the MW Act. Here, it may be noted
even according to the NALCO that there was change of the
Appropriate Government sometimes before 2011. If it was the
Central Government then the notification of the Central
Government specifying minimum wages for unskilled workers
should have been called for and examined by the DCLC(C),
Bhubaneswar.
25. Thirdly, the application of the contract workers was only that
they should be paid at par with the lowest minimum wages of
unskilled workers regularly employed. There was no demand for
the periodic increase of such minimum wages on the basis of
number of year of service. While examining the issue, it was not
within the domain of the DCLC(C), Bhubaneswar to decide the
question of upward revision of such wages. That is an issue in the
domain of the executive which periodically notifies the revised
minimum wages. Therefore, the attempt by the DCLC(C),
Bhubaneswar to order a periodic percentage increase in the
minimum wages, directly proportionate to the number of years of
service, was clearly beyond the scope of Rule 25(2)(v)(b) of the
CLRA (Central) Rules.
26. For all of the aforementioned reasons, the Court sets aside the
impugned orders and remands the applications of contract
workers to the DCLC(C), Bhubaneswar for a fresh determination
keeping in view all the factors mentioned hereinabove. The
matters will now be listed before the DCLC(C), Bhubaneswar on
9th August, 2021. All parties should appear before the DCLC(C),
Bhubaneswar and cooperate in ensuring the disposal of the said
applications in accordance with law within a period of three
months thereafter and in any event, not later than 15th November,
2021.
27. It will be open to the DCLC(C), Bhubaneswar to issue notice
to a sampling of labour contractors who have engaged contract
workers for working in the establishment of NALCO and consider
their views as well.
28. With the above directions, the writ petitions are disposed of.
In the circumstances with no order as to costs.
29. As the restrictions due to resurgence of COVID-19 situation
are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at par
with certified copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court's Notice No.4587,
dated 25th March, 2020 as modified by Court's Notice No.4798,
dated 15th April, 2021.
(Dr. S. Muralidhar)
Chief Justice
(S.K. Panigrahi)
Judge
S.K. Guin
