M/S Singh Transporters v. Union Of India

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (L) No. 220 of 2016 M/s Singh Transporters, a partnership concern duly registered under the provisions of the Partnership Act, having its registered office at B- 78, Shanti Nagar, Ameri Road, Bilaspur (Chhattisgarh) through its partner, Shri Devender Singh Kalra, S/o Late Shri Kartar Singh Kalra, aged about 43 years, R/o B- 78, Shanti Nagar, Ameri Road, Bilaspur (Chhattisgarh) ---- Petitioner

Versus

1. Union of India through the Secretary, Ministry of Labour and Employment, Secretariat, 1 Parliament Street, New Delhi

2. Steel Authority of India, through the Chairman, Ispat Bhawan, Lodhi Road, New Delhi

3. Bhilai Steel Plant, through the Chief Executive Officer, Bhilai, District Durg (Chhattisgarh)

4. D G M (E P & C C), Bhilai Steel Plant, Bhilai, District Durg (Chhattisgarh)

5. D G M ( R M M), Bhilai Steel Plant, Dalli Rajhara, District Balod (Chhattisgarh)

6. A G M- Cum- Mines Manager, Rajhara Mechanized Mines, Bhilai Steel Plant, Dalli Rajhara, Post Office Dalli Rajhara, District Balod (Chhattisgarh)

7. Assistant Labour Commissioner (Central), D- 6, Adarsh Society, Sector I, Avanti Vihar, Raipur (Chhattisgarh)

8. Deputy Chief Labour Commissioner (Central), D- 6, Adarsh Society, Sector I, Avanti Vihar, Raipur (Chhattisgarh)

9. Hindustan Steel Employment Union ( C I T U), Through Its Secretary, Bhilai, District Durg (Chhattisgarh) ---- Respondents For Petitioner :

Shri Amrito Das, Advocate For Respondents 1, 7 & 8:

Shri N. K. Vyas, Advocate For Respondents 2 to 6 :

Shri Kashif Shakeel, Advocate For Respondent no.9 :

Shri Satish Gupta under instruction of Shri R. S. Baghel, Advocate

Hon'ble Shri Justice P. Sam Koshy Order On Board 07.02.2017 The present writ petition has been filed under Article 226 of the Constitution of India assailing the order dated 11.09.2014 (Annexure P-3) as also the subsequent orders passed on 10/15.06.2015 (Annexure P-2) and 28/29.07.2016 (Annexure P-1).

2.

A plain reading of the three impugned orders clearly reflect that the same are in the nature of an advisory note to the petitioner as well as to the respondents 3 to 6 for payment of wages to the employees under respondent no.9/Union for the period from 01.05.2014 to 08.07.2014 during which the petitioner establishment had stopped work at the mines belonging to respondents 3 to 6.

3.

Counsel for the petitioner submits that it is a case where the said three orders have been passed directing for payment of salary without adjudication upon the issue as to whether the alleged lay off by the petitioner for the period 01.05.2014 to 08.07.2014 was legal, proper or justified. He submits that the Authorities have also not adjudicated upon the claim raised by respondent No.9/Union. Contention of the counsel for the petitioner is that in the absence of any adjudication from any of the forums prescribed under the Industrial Disputes Act as also the Contract Labour (Regulation and Abolition) Act, no order for payment of wages/salary could have been passed. He submits that the Authority concerned at best should have made a reference to the Labour Court and got the matter adjudicated in this regard. According to the counsel for the petitioner, there was also no proceeding drawn under Section 33C of the Industrial Disputes Act for deciding the claim of respondent no.9 on the basis of which the Assistant Labour Commissioner (Central) (hereinafter referred as 'the ALC') could

have issued an order for payment of wages. Thus, counsel for the petitioner prays for setting aside of the three impugned orders as the same are bad in law.

4.

Shri N. K. Vyas, counsel appearing for respondents 1, 7 & 8 submits that it is a case where there is a clear violation of the provisions of the Industrial Disputes Act so also the Contract Labour (Regulation and Abolition) Act in as much as it is a case of illegal lay off by the petitioner for the period from 28.04.2014 to 08.07.2014 for which the petitioner would be liable to make salary for the said period to the workers it had engaged at the mines of respondents 2 to 6. It is contended that the provisions of Section 21 of the Contract Labour (Regulation and Abolition) Act also casts the responsibility upon the Contractor or for that matter the principal employer for payment of wages to the workers employed by it. Thus, when there was a clear and admitted fact of the workers of respondent no.

9 not being engaged for employment during the period from 01.05.2014 to 08.07.2014, the same would be deemed to be an illegal lay off which would entitle the workers for salary for the said period. Thus, prayed for rejection of the present petition holding the three impugned orders to be proper, legal and justified.

5.

Shri Satish Gupta under instruction of Shri R. S. Baghel, counsel appearing for respondent no.9 submits that the three impugned orders do not warrant any interference for the reason that the same have been passed purely invoking the powers conferred under Section 27 of the Contract Labour (Regulation and Abolition) Act. He further submits that Section 25M of the Industrial Disputes Act clearly stipulates that if the proper sanction/permission has not been taken from the competent Authority for lay off, the same would be deemed to be illegal lay off and which would entitle the workers for the salary for the said period.

6.

Shri Kashif Shakeel, counsel appearing for respondents 2 to 6 submits that it is a case where the petition at this juncture is too premature as the three impugned orders are advisory in nature which should be enforced upon and as such, the petition is not maintainable at this juncture. 7.

Having considered the contentions put forth by the counsel appearing for the parties and on perusal of the records what is undisputed fact from the submissions made by the counsel appearing for all the parties is that the petitioner establishment had a contract with respondents 2 to 5 at Dalli Rajhara for the work of excavation and transportation of minerals from the mines of R-2 to 6. It is not in dispute that respondent no.9 is a Union working for the welfare of the workers at the mines belonging to respondents 2 to 6. The petitioner Contractor had laid off the workers from 01.05.2014 to 08.07.2014 is also not in dispute. It is also not in dispute that the petitioner establishment had not taken any permission/sanction from the Competent Authority under the law for the lay off during the said period.

Another admitted fact which is reflected from the record is that the Respondent no.9 had moved a representation before the Assistant Labour Commissioner (Central), Raipur for drawing appropriate proceedings invoking the provisions of Industrial Disputes Act. It is this application made by respondent No.9 that the proceedings have been drawn by the Assistant Labour Commissioner (C), Raipur.

8.

On the basis of the aforesaid admitted facts what culls out is that though there is an admission on the part of the petitioner of not taking prior permission or sanction for lay off during 01.05.2014 to 08.07.2014, this by itself would not empower the ALC to issue an order for payment of wages to the workers under the respondent No.9. The first fact which has to be adjudicated upon by the Competent Authority is whether the alleged lay off by the petitioner from 28.04.2014 to 08.07.2014 is legal, proper and justified

or not. In case, it is legal, only then the Authority can pass a consequential order. In the present case, there is no adjudication whatsoever in this regard. The ALC has also not held a conciliation proceeding as is required under Section 10 of the Industrial Disputes Act between the parties by which in case the matter had not reconciled, a failure report could have been referred to the Ministry on the basis of which a reference would have been made to the concerned Labour Court to decide whether the lay off is legal, proper and justified or nor and then on that basis the consequential order could have been passed by the concerned Court.

It is also a case where the ALC could have initiated criminal prosecution against the petitioner in case if he found that there was violation under the Contract Labour (Regulation and Abolition) Act in any manner but straightaway directing for payment of wages to the workers for the period during which there was an admitted lay off (illegal admitted lay off) appears to be beyond the powers which are conferred upon the Assistant Labour Commissioner (C) either under the Contract Labour (Regulation and Abolition) Act or under the provisions of the Industrial Disputes Act. The remedy available to the ALC was to initiate proper conciliation proceedings and thereafter send a report to the Ministry and also initiate proper prosecution case against the petitioner for violation of the provisions of law in this regard.

9.

For the aforesaid reasons, the orders dated 11.09.2014 (Annexure P-3) as also the subsequent orders passed on 15.06.2015 (Annexure P-2) and 28.07.2016 (Annexure P-1) are not sustainable and the same are accordingly set aside/quashed. The matter is remitted back to the Assistant Labour Commissioner (C), Raipur for initiating proper proceeding in the light of the representation made by the respondent No.9 and to proceed further in accordance with law.

10.

Though the representation made by respondent No.9 reflects that the

lay off was from 01.05.2014 to 08.07.2014 whereas in the order of the ALC it reflects from 28.04.2014 to 08.07.2014. This fact now after the matter is remitted back to the ALC would be upon the respondent no.9 as well as the petitioner to clarify by leading proper evidence. 11.

With the aforesaid observations the present petition deserves to be and is accordingly allowed and disposed off.

Sd/- P. Sam Koshy Judge Bhola