Appeal against order relegating contract labourers' equal wage claim to Industrial Disputes Act forum dismissed, as relegation stemmed from principal employer's own objection; liberty to contest jurisdiction before labour court preserved.

JUDGMENT :

Manoj Kumar Gupta, C.J.

1. Heard Ms. Pinky Anand, learned Senior Counsel, assisted by Mr. Lalit Belwal, learned counsel for the appellants and Mr. T.A.Khan, learned Senior Counsel, assisted by Mr. Mohd. Shafy, learned counsel for the respondents.

2. The appeal is beyond time by 380 days. Although the appeal is highly belated as there is no satisfactory explanation for the delay, however, on persuasion of learned Senior Counsel appearing for the appellants, we also examined the order of the learned Single Judge dated 30.08. 2022, which reads as follows:

“Mr. T.A. Khan, Senior Advocate, assisted by Mohd. Shafy, Advocate, holding brief of Mr. Vinay Bhatt, Advocate for the petitioners.

Mr. V.K. Kohli, Senior Advocate, assisted by Mr. Kanti Ram Sharma, Advocate, holding brief of Mr. I.P. Kohli, Advocate for respondents.

Heard learned counsel for the parties.

Petitioners are contract employees engaged to discharge duty as Mali in Ranipur Unit of BHEL, Haridwar. According to them, they are being paid meagre amount as wages, whereas Malis appointed in the permanent establishment of the same unit, are being paid many times more amount as salary.

Petitioners had earlier filed Writ Petition (S/S) No. 1464 of 2018 claiming equal salary in terms of Rule 25 (2) (v) (a) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. A Coordinate Bench of this Court vide order dated 22.02.2019 had referred the matter to Deputy Chief Labour Commissioner, to decide as to whether the nature and type of work performed by petitioners is the same, as that of the workers, who are serving in the permanent establishment of BHEL.

In terms of the order passed by Coordinate Bench of this Court, Deputy Chief Labour Commissioner (Central) has passed an order on 28.10.2020, in which he has concluded that duties performed by petitioners are the same, as that of a Mali appointed in permanent establishment. The order passed by Deputy Chief Labour Commissioner has been affirmed by this Court in Writ Petition (M/S) No. 368 of 2021 & Writ Petition (M/S) No. 369 of 2021.

In this writ petition, petitioners have sought the following relief:-

“I. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the wages to the petitioners on the same rates, which have been prescribed by the respondents to the “Mali” in the establishment of the respondents or which are being paid to the regular Mali in the establishment of the respondents. The respondents may further be directed to provide same facilities of working hours, leave and all other service benefits like gratuity etc which are being provided to the regular Malis, in the establishment of the respondents.”

Mr. V.K. Kohli, learned Senior Counsel appearing for BHEL has raised preliminary objection that the relief claimed by petitioners, cannot be granted in a writ petition. He submits that for enforcement of their right, if any, available under Contract Labour (Regulation and Abolition) Act, 1970 and the Rules framed thereunder, petitioners can approach the forum available under Industrial Disputes Act, 1947.

This Court finds substance in the contention raised by learned Senior Counsel appearing for respondents.

Since petitioners have a statutory remedy under Section 33C of Industrial Disputes Act, 1947, therefore, this Court declines to entertain the writ petition.

Accordingly, writ petition is disposed of with liberty to petitioners to approach the said forum.

3. In the connected Special Appeal No. 358 of 2023, the same appellants have challenged the order dated 16.08.2022 passed by the learned Single Judge in Writ Petition (M/S) No. 368 of 2021 titled as ‘Bharat Heavy Electricals Limited & another vs. Sh. Anil and others