IMPORTANT POINT
Courts should consider all basic point while arriving at a conclusion and there should be clarity in the judgment.

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. This is second journey of the appellants to this Court. A Writ Petition No.47303 of 1999 was filed by the employers who are the present appellants questioning correctness of the order dated 6.8.1999 passed by the Labour Commissioner (in short the `Commissioner') under Rule 25(2)(v)(a) of the U.P. Contract Labour (Regulation and Abolition) Rules, 1975 (in short the `Rules'). The workmen had challenged the award dated 30.7.1999 and Writ Petition No.47303 of 1999 was disposed of by the High Court by order dated 11th July, 2003. The present appellants challenged the judgment of the High Court in Civil Appeal No.1734 of 2004. By judgment dated 15.9.2005, this Court set aside the order holding that the High Court ought to have taken both the writ petitions together as the issue was the same. The High Court by the impugned judgment held that the award of the Industrial Tribunal (3), U.P., Kanpur (in short the `Tribunal') dated 30.7.1999 did not require any interference and the writ petition filed by the appellants deserves to be dismissed. The Tribunal had answered the reference in the following terms:

"On the basis of the pleadings of the parties and evidence on record my conclusion to the reference is that the action of the employer No.1 in not regularizing the services of 118 employees mentioned in the reference is justified and valid and that the workmen concerned are not entitled for any relief."

3. The High Court noted that there were two orders one passed by the Commissioner dated 6th August, 1999 which was the subject matter of challenge in writ petition No.47303 of 1999 and the other was passed by the Tribunal. The Commissioner by order dated 6.8.1999 held that on the basis of the pleadings and materials on record, it is apparent that the workmen were working in the establishment for several years and refusal to pay similar pay as being paid to regular employees had no legal justification. The Commissioner, therefore, directed that the 118 workmen in question should be paid similar wages as was being paid to unskilled regular workmen alongwith D.A. and other allowances on the principle of equal pay for equal work.

4. So far as the award of the Tribunal is concerned, the High Court noted that in view of the decisions of this Court in Secretery, H.S.E.B. v. Suresh and Ors. (1999 (3) SCC 601) and BHEL Workers Association, Hardwar and Ors. v. Union of India and Ors. (1985 FLR (50) 205) though the workmen had registered under the provisions of U.P. Contract Labour (Regulation and Abolition) Act, 1970 (in short the `Act') they were definitely working directly under the employer and that each one of them has worked for more than 240 days in a previous calendar year and, therefore, the Commissioner's order does not suffer from any infirmity.

5. According to learned counsel for the appellants Rule 25 (2)(v)(a) of the Rules require the Commissioner to analyse the pleadings, evidence and documents placed on record and to arrive at a conclusion as to whether the workmen are performing the same duties as have been performed by the regular employees. In the order passed by the Commissioner no discussion about the manner of work performed by the workmen and regular employees was given. There was also no consideration in respect of workman Rajesh Kumar Pandey and 12 other workmen who were working in the Field Hostel No.1. Since the Commissioner had passed an order without considering the pleadings and documents and wrongly shifted the burden of proof to the appellants, whereas it has to be proved by the employees that they were doing the similar work like regular employees, the order of the Commissioner is unsustainable. Further, the direction to ensure payment of salary, D.A. etc. ought not to have been given.

6. The Commissioner failed to consider the difference between the labour contract and the job contract. The labour contract is entered for supply of labour and the labour so supplied work