Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 1140 (MP)

JAGGU v. STEEL AUTHORITY OF INDIA LTD.

2003-09-29

DIPAK MISRA, KUMAR RAJARATNAM

body2003
JUDGMENT : DIPAK MISRA, J. : In these two appeals preferred under Clause 10 of the Letters Patent though the spinal assail is to the order passed on 25-6-2003 by the learned single Judge in two writ petitions wherein the learned single Judge has quashed the order dated 27-2-2003 passed by the competent authority under the Minimum Wages Act, 1948 (in short 'the Act') whereby the said authority had declined to accept the preliminary objection raised by the management, namely, the Steel Authority of India Limited (for brevity 'the SAIL'), yet the centripodal controversy that arose during the course of hearing of the appeals has given rise to the sixty-four million dollar question : whether the employees of the SAIL working as contract labourers at dolomite and limestone mines, Koteshwar after the issue of the notification on 17-3-1993 under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'CLRA') are debarred even to setforth a claim for grant of minimum wages as prayed for by them and further the authority under the Act shall await the verdict of the Central Government Industrial Tribunal, Jabalpur in respect of the reference made by the Government of India in the Ministry of Labour on 27-1-2003 or the litigation being between the two parties, the protagonists before us who are not equipoised and also not fighting the battle royal or engaged in litigation of luxury but carrying on a humane and natural fight for survival, should be entitled to an equitable order, on the base of the notification No. SO 514(F) dated 12-7-1994 as a purely interim measure so that they can survive to fight the litigation against the City Halls and not get a posthumous order which would not be matter of pride for their posterity? 2. In these appeals we are concerned precisely with a basic human problem of existence which cannot be sustained without meeting essential requirements of life. Life, a glorious gift of Almighty, cannot be trampled and marred by the cruel sword of hyper-technical approach and on the foundation of orthodox and unmoving notion that the skeletons can also pave their path of crusade, against the mighty management. They should be allowed to live with some dignity which is the very soul of Article 21 of the Constitution. They should be allowed to live with some dignity which is the very soul of Article 21 of the Constitution. We cannot conceive of liberty and the heaven of freedom if the people belonging to the poorest strata cannot get a morsel of food to sustain the family. Economic justice which has an inseverable and inseparable nexus with freedom is the watchdog of democracy. It is in consonance with the Preamble of our Constitution. In this context we may profitably refer to the observations of an eminent leader, reproduced in the case of P. Nalla Thampi vs. Union of India, AIR 1984 SC 74 . It reads as under : "Our final aim can only be classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural level.... Everything that comes in the way will have to be removed; gently, if possible, forcibly, if necessary." 3. If the poor people remain in a state of continuous peril the stream of time which has shattered the cities and nations, as putforth by Robert Ingersowl, that from the sand enshrouded Egypt, from the marble wilderness of Athens and from every fallen crumbling stone of the once mighty Rome comes a wail - as it were the cry that no nation founded on injustice can permanently stand - would govern the frontiers. 4. Without survival the logical sequitur cannot be allowed to be put on impermissible pedestal of Rule of Law. We may not be understood to have said that Rule of Law should be allowed to be ostracised but when human problem arises in enormous proportions the Courts cannot be silent spectators awaiting for the sequel to decide eventually the lis of dead man. It is not to be forgotten that the society consists of "the forgotten man at the bottom of the economic pyramid" and when he fights for his rights he should be allowed to have an acceptable means to maintain the family, the backbone of the collective. As one appreciates the saying 'Give me liberty or give me death', similarly one has to be alive to the utterance 'Give me the means so that I can fight for my right'. The salience facet in this regard cannot be missed. 5. As one appreciates the saying 'Give me liberty or give me death', similarly one has to be alive to the utterance 'Give me the means so that I can fight for my right'. The salience facet in this regard cannot be missed. 5. We have said so in the beginning because in the case at hand the workmen who are working in the Dolomite Mines, Koteshwar approached this Court under Article 226 of the Constitution of India seeking absorption after the notification was issued on 17-12-1993 which was published in the official gazette of India prohibiting employment of the contract labour in lime stones and dolomite mines in the country. The learned single Judge placing reliance on the decision rendered in the case of Air India Statutory Corporation vs. Labour Union, AIR 1997 SC 655 allowed the writ petition and directed that the workmen whose name was found in the statutory register maintained under the Act are deemed to be in the direct employment of the Principal Employer and they should be given work and paid at par with the regular employees of the SAIL. Some appeals were filed by Management and Majdoor Unions. Some LPAs were transferred to the Apex Court by virtue of the order of their Lordships. Eventually the decision in the case of Steel Authority of India Ltd. and others vs. National Union Waterfront Workers and others, (2001) 7 SCC 1 came into field and the decision rendered in the case of Air India Statutory Corporation (supra) was overruled. The conclusions which are relevant for the present purpose are as under : "(3) Neither section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for appropriate Government under sub-section (1) of section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. (4) We overrule the judgment of this Court in AIR India case prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final. (5) On issuance of prohibition notification under section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or of for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder. (6) If the contract is found to be genuine and prohibition notification under section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualification other than technical qualifications." 6. It is worthnoting here that the LPAs which stood transferred to the Apex Court were sent back to this Court. It is worthnoting here that the LPAs which stood transferred to the Apex Court were sent back to this Court. This court in the bunch of the LPAs referred to paragraph 68 of the decision rendered in the case of SAIL (supra) and ultimately in paragraph 25 held as under : "25. We have quoted the aforesaid paragraph only to indicate that if a worker engaged in an establishment has direct relationship with the principal employer he has the relationship of servant and master. A contract labour would be treated as direct workman if there is no intermediary. In the present case, by legal fiction the contract came to be extinct. The relationship between the contractor and the contract labour ceased. The contract labour, if he is directly engaged in spite the notification by the principal employer, he would definitely have a different status. We have already stated earlier that a writ of mandamus cannot be issued to regularise the members of the petitioner union who are the respondents in the two appeals, as automatic absorption is not permissible. They are to be governed by sub-paras (5) and (6) of the Constitution Bench judgment. It is not disputed at the Bar that a industrial dispute has already been raised before the competent authority. The matter is in the stage of conciliation. As the writ petitioners have already taken recourse to the same and we think rightly so, we only direct that the conciliation officer shall proceed in quite promptitude and the management will cooperate with the proceedings. We may not be understood to have said that we have expressed any opinion in this regard." 7. In paragraph 28 of the said judgment which dealt with LPA No. 418/90 and related to the order passed by he competent authority under the Minimum Wages Act, the Division Bench observed that it would be open to the management to raise all their objections before the competent authority who shall decide the same without being influenced by its earlier order. 8. 8. It is relevant to state here that after the order of the Division Bench a reference has been made by the Central Government vide notification No. L-29011/97/2002 - IR(M) dated 27-1-2003 to the Central Government Industrial Tribunal which reads as under : "Whether the action of the Mines Manager, Koteshwar Lime Stone Mines of Steel Authority of India Ltd. in terminating services of 3404 (3380 + 24 as per list attached) mine workers in March 1996 who ceased to be contract labour after prohibition of employment of contract labour in Lime Stone Mine vide Notification No. S. O. 707 dated 17-3-1993 was legal, fair and justified? If not, what relief the concerned workmen or heirs in case of deceased worker are entitled to? 2. "Whether the action of the Mines Manager, Koteshwar Lime Stone Mines of Steel Authority of India Ltd. in denying terminal benefits of gratuity, retrenchment compensation and exgratia applicable to VRS seeking employees is fair and justified. If not, to what relief these workers/heirs are entitled to? 3. "Whether the action of the management of the Mines Manager, Koteshwar Lime Stone Mines of Steel Authority of India, New Delhi and their Unions including HMS and employing workers through contractors on job of permanent and perennial nature in Mines between 5-20 years even without ensuring statutory wages and service conditions was legal, fair and justified? If not, to what relief concerned workmen/heirs are entitled?" 9. After the reference as per the observation of this Court the SAIL filed an objection before the competent authority under the Minimum Wages Age questioning its jurisdiction but the said authority declined to accept the preliminary objection and rejected the same. The learned single Judge in paragraph 5 of his order has expressed the view that the proceeding before the authority shall remain stayed until the disposal of the Industrial Dispute before the Central Government Industrial Tribunal. It was expressed by him that the Tribunal would decide whether the labourers became direct employees of the petitioner company and it is liable to pay wages to them and thereafter only the question of quantum of wages would fall for determination by the authority under the Act. It was expressed by him that the Tribunal would decide whether the labourers became direct employees of the petitioner company and it is liable to pay wages to them and thereafter only the question of quantum of wages would fall for determination by the authority under the Act. In view of this observation the learned single Judge was of the view that it was appropriate on the part of the authority under the Act to wait for the decision and then decide the quantum of the wages payable to the employees. 10. Mr. P. S. Nair, learned senior counsel has urged that there are material on record to show that the workmen have been suffering since 1993 and there could not have been any intermediary by operation of law. It is his submission when this Court thought it appropriate to permit the management to raise a preliminary objection before the authority and the said authority has held that he has the jurisdiction to determine the matter the management should cooperate and affected parties may eventually challenge the ultimate decision. It is canvassed by him that the workmen have filed an application for grant of benefit by way of an interim measure but the Tribunal is non-functional in praesenti. It is proponed by him that a decade has passed and workmen have been running from pillar to post. It is also putforth by him that the question of absorption and regularisation is in a different realm then the grant of minimum wages after the notification which has come into effect from 12-7-1994. 11. Mr. Ravindra Shrivastava, learned senior counsel appearing for the management has submitted that the workmen have been given the minimum wages for the period they worked and the notification dated 12-7-1994 would not be applicable to them as that has come into existence on the basis of an agreement between the regular employees and the management and when the question of absorption is still pending for adjudication before the Industrial Tribunal any direction given by the authority under the Minimum Wages Act would tantamount to pre-judging the issue and in a way, impermissible. 12. 12. Before we deal with the rival submissions raised at the Bar, it is appropriate to state here that there are more than 2,400 employees who have filed their claims before the competent authority under the Minimum Wages Act but only two orders had been assailed before the learned single Judge. While taking up the appeal we enquired from Mr. Nair whether he has any objection for passing an order in respect of the composite order passed by the authority which in fact would govern all the cases and Mr. Nair has fairly submitted that he has instructions from the assisting counsel that as they are representing the grievance of the employees before the competent authority as well as before the Industrial Tribunal this court may dispose of the appeals which would be binding on all and he would abandon any plea relating to the technicality that against each order an independent writ petition should have been filed. 13. In the beginning we had stated about the nature of this litigation. It is worth while to state here that during pendency of the litigations more than 300 people have passed away. We have been apprised their families have gone to the streets. In any case there is no evidence of their fruitful engagement. An application has been filed before the Industrial Tribunal for grant of interim relief. Mr. Nair has submitted that it is common knowledge that it takes years for adjudication of reference. The reference has been made in January, 2003. It is also putforth by him that by the time the controversy would be put to rest the people who are living today may not be there. Per contra, Mr. Shrivastava has submitted that this argument is in the realm of emotion and law does not countenance any kind of emotional factor. It is also urged by him that there might be overlapping decisions of the authorities and, therefore, this Court should not interfere in the intra-court appeal as the learned single Judge has rightly stayed the proceeding before the competent authority under the Act. 14. We are disposed to state at this juncture, that the present appeals encapsule and engulf the issue of basic of human existence. It relates to the cry of workmen seeking justice. Justice is wedded to mercy. Law can never be divorced from justice. 14. We are disposed to state at this juncture, that the present appeals encapsule and engulf the issue of basic of human existence. It relates to the cry of workmen seeking justice. Justice is wedded to mercy. Law can never be divorced from justice. Long back it has been said that all endeavour should be made to do good to the collective. The good of collective has to prevail and the benefit of the lesser must succumb to the larger interest. While exercising an equitable jurisdiction under Article 226 of the Constitution of India justice has to have paramountcy. The concept of live and let live cannot be allowed to be thrown to Pacific Ocean. While being aware that it is a fight between the lamb and the lion, the Himalayan suffering and the Olympian power, the role of equity has to be allowed to come to the centre stage. Mr. Shrivastava has submitted that the notification dated 12-7-1994 cannot be extended to the workmen in view of the content of paragraph 5. We think it condign to reproduce the said paragraph : "5. Where the existing rates of wages of any employee, based on contract or agreement or otherwise are higher than the rates notified herein, the higher rates shall be protected and treated as the minimum rates of wages applicable for the purpose of this notification to such employees." 15. It is not disputed at the Bar that the Principal employer is bound to pay the wages to the contract labourers if the contractor does not pay. The bone of contention is whether the contract labourers would be protected to get the minimum wages in the absence of an agreement. The apprehension of Mr. Shrivastava is that if a finding is recorded by the competent authority it would cause prejudice to the reference pending before the Central Government Industrial Tribunal and may create a tremendous remora for the management. In this backdrop he has supported the order of the learned single Judge. 16. The apprehension of Mr. Shrivastava is that if a finding is recorded by the competent authority it would cause prejudice to the reference pending before the Central Government Industrial Tribunal and may create a tremendous remora for the management. In this backdrop he has supported the order of the learned single Judge. 16. Having heard the learned counsel for the parties and upon perusal of the paragraph 5 of the notification dated 12-7-1994 and on the scanning of anatomy of section 21 of the Minimum Wages Act, 1948 and taking note of the peculiar facts and circumstances of the case and weighing the balancing factor of submergence of plea of the management and the death-toll of the workmen, we are inclined to dispose of the appeals with the following directions : (a) Without prejudice to the contentions raised before any Tribunal or authority the Management (SAIL) shall deposit Rs. 1 crore and 50 lakhs (rupees one crore and fifty lakhs) before the competent authority under the Minimum Wages Act within a period of six weeks from today. We have felt the aforesaid sum would be appropriate inasmuch as the differential sum as filed by the respondents is Rs. 7.83 crores covering the period from 1-1-1993 to 1-1-1996, if eventually the workmen succeed before the CGIT. (b) The competent authority on proper verification of the identity of the workmen shall distribute the amount in equal moiety. (c) The present order having been passed keeping in view that the workmen are dying due to starvation the grant by us is not to be treated as a direction to be utilized on any score in regard to the merits of the case in any manner before the Central Government Industrial Tribunal where the reference is pending nor it would be utilized before any other forum. (d) The Industrial Tribunal shall adjudicate the matter without being influenced by any observation or direction made in the present order and shall adjudicate the controversy strictly in accordance with law. (e) As agreed to by Mr. Nair being instructed the learned by assisting counsel, he would not raise the technical objection that independent writ petitions or letters patent appeals were not filed by the management. (e) As agreed to by Mr. Nair being instructed the learned by assisting counsel, he would not raise the technical objection that independent writ petitions or letters patent appeals were not filed by the management. (f) The order of stay passed by the learned single Judge would be operative in respect of all the cases pending before the competent authority under the Minimum Wages Act, 1948 and he shall stay his hands. (g) If the amount as directed by us is not deposited within the time stipulated, the authority under the Minimum Wages Act would be at liberty to proceed with the matter and pass appropriate orders in accordance with law and the same shall be subject to further challenge before the appropriate forum. (h) The deposit would emerge for the benefit of the management and when the time a payment of amount, if eventually arises, the factum of imposition of penalty would leniently be considered and equity shall tilt in favour of the management. 17. Before we part with the case, we would like to repeat at the cost of the repetition that it is not in dispute that on 17-3-1993 a notification was issued under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, abolishing the contract labour with respect to the labourers at Dolomite Limestone, Koteshwar. It is also alleged by the workmen that from 17-3-1993 right upto 1996, the workmen, who are before the Minimum Wages Authority, worked either as contract labourers or as employees of the principal employer till 1996. The difference between the wages actually paid and regular wage paid to the employees of SAIL, will come to about eight crores. What this Court is doing only to direct payment of Rs. 1½ crores, which will be nowhere near the living wages that was being paid to the employees of the SAIL. We have also to bear in mind that the employees are not in employment presently after 1996 and are awaiting adjudication before the Tribunal. 18. With the aforesaid directions the order of the learned single Judge is modified. There shall be no order as to costs.