Point of law : 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 established on the same or similar kind of work.

JUDGMENT :

1. This writ petition has been filed for the quashing of the judgement and order dated 9.7.2017 passed by the respondent no. 1.

2. The respondent no. 2 had filed before the respondent no.1 an application under Rule 25(2)(v)(a)&(b) of the Contract Labour (Regulation and Abolition) Rules, 1971, with regard to 40 workers working in the FSD Basti under the District Area Manager, Gorakhpur. The request was with regard to the payment of wages to the 40 workers which according to the respondent no. 2 ought to have been similar to the wages which were being paid to workers who were working for the Food Corporation of India, FSD Basti (hereinafter called ‘the FCI). The application which was filed by the respondent no. 2 on 5.11.2018 was filed with an allegation that the Union i.e. the respondent no. 2 was functioning in the FCI and watching the interest of its workers working in the FCI employed directly or through contract labour system. It had been stated in the application that the union had espoused the cause of its members who were working in the depot at Basti for the last several years and therefore they were praying for pay parity for the casual workers with the pay which was being paid to the workers who were directly employed under the FCI. In the application, it was also stated that the Union also expected that its member would also be regularized.

3. The petitioner filed its objections/written submissions in the month of January 2019 and, in fact, prayed that since the application of the Union was filed under the Rule 25(2)(v)(a)&(b) of the Contract Labour (Regulation and Abolition) Rules, 1971, it was understood that the Union was asking for a payment from the contractor who had engaged the workers on behalf of the principal employer i.e. the FCI, and, therefore, if any order had to be passed by the Deputy Chief Labour Commissioner then it would be against the contractor who had employed the members of the Union. It was also stated in the objection that since the contractor who was an essential party was not made a party, the case could not continue. Still further it was alleged in the objection/written submissions of the petitioner that the allegation that 40 contract labourers were working was false. It was stated that the contractor had licence only to employ 21 labourers and, therefore, the allegation itself was misfounded. It was alleged that by the filing the application, indirectly, the Union wanted to get around 40 persons regularized.

4. After the objection was filed, an inspection was also done on 15.3.2021 and in the inspection which was done in the presence of the Division Manager, FCI, Gorakhpur; the Manager (S&C) FCI, Gorakhpur; the Manager (D) FCI Basti; the Manager (Contract) FCI R.O. Lucknow and the representatives of the contractor M/s. Radhey Shyam Yadav, Sri Rajeev Paswan, 22 persons were found working. The Division Manager, FCI, Gorakhpur, had informed the team which had made the inspection that the workers were casual employees and that they were being paid their wages by the contractor as per the wages fixed by the Government. The team was also informed that since there were no permanent workers at the place where the 22 workers were working there was no question of any parity. However, the complainant-Union was absent at the time of inspection.

5. Despite the objection made by the petitioner, the Deputy Chief Labour Commissioner (Central), the respondent no. 1, passed an order on 9.7.2021 directing the petitioner FCI to identify and ensure the payment of wages to the contract labourers who were employed at the FSD Basti on the basis of the register of wages. It was also directed that any difference between the wages which were being paid and the wages which ought to have been paid was to be made good to the workers.

6. The petitioner instead of filing any Appeal which is provided under Section 15 of the Contract Labour (Regulation and Abolition) Act, 1970, approached the High Court directly as