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2017 DIGILAW 1118 (GAU)

Hindustan Paper Corporation v. State of Assam

2017-08-17

NELSON SAILO

body2017
JUDGMENT AND ORDER : 1. Heard Mr. J Roy, the learned counsel for the petitioners and Mr. TC Chutia, the learned Standing Counsel for the Labour Commissioner. Mr. AR Sikdar, the learned counsel appears for the respondent No.4. 2. By this writ petition, the writ petitioners who are the management of Hindustan Paper Mill, Panchgram, Hailakandi District have impugned the enquiry report dated 19.7.2008 (Annexure-K) conducted by the Labour Commissioner, Guwahati, Assam and notification dated 18.9.2008 (Annexure-L) issued by the same authority to comply with the findings of the enquiry officer and to pay the employees/workman working under the Management similar wages and other benefits to the contractual workers with that of the regular workman in terms of Rule 25(v)(a) of the Contract Labour (Regulation and Abolition) Assam, Rules, 1971. 3. Brief facts of the case may be narrated at the outset. The Labour Commissioner on 3.2.1995 (Annexure-F) noticed that the employees of Cachar Paper Mill, Hindustan Paper Corporation was having two sets of workers i.e., regular finishers and contractual finishers with some element of difference between their status. It found that the contractual finishers were entitled to emoluments and wages as per Contract Labour Act whereas in case of regular finishers, the terms and conditions of service, method of recruitment, status etc reflected wide variance from the contractual finishers. Therefore, a prima facie view was taken that equalization of status and facilities was not found to be proper. As such, for the time being and as an interim arrangement, the existing conditions of wages and other facilities should continue till further evaluation was made and final settlement arrived at. 4. Being dissatisfied with such findings, the employees Union approached this Court by filing Civil Rule No.1359 of 1995 claiming for similar benefits and similar salaries with that of the regular employees. The writ petition was subsequently dismissed on 13.2.1996 (Annexure-G) but on appeal by the employees Union vide WA No.195 of 1996, the same was allowed by holding that the contract labourers engaged by the Cachar Paper Mill performing the job as finishers shall be entitled to the benefits provided under the Rules and accordingly the respondent Mill was directed to provide similar salary and benefits to the contractual workers. 5. 5. Thereafter, the Management i.e., the petitioners herein approached the Apex Court vide Civil Appeal No. 8601 of 2001 which was consequently allowed by the Apex Court by setting aside the order of the Division Bench and remanding the case to the Labour Commissioner to decide the issue raised by the Union by way of representation dehors the observation made by the Division Bench. Consequently, an enquiry was conducted by the Labour Commissioner, Assam and enquiry report prepared vide the impugned report dated 19.7.2008 wherein it was held that the nature of work done by the two sets of workers were factually similar in the real sense of the term involving neither specific skill nor expertise. Thereafter, the report was sought to be implemented by the Labour Commissioner through the communication dated 18.9.2008 (Annexure-L) to the petitioners. 6. Appearing for the Management, Mr. J Roy submits that before coming to his findings, the Labour Commissioner (enquiry officer) neither heard the employees concerned nor examined relevant materials. He submits that the enquiry officer’s finding was only based upon the verbal submissions of the Vice-President of the respondent No.4. In fact the enquiry officer never attempted to know about the exact position of the contractual worker who worked during the year 1992 -1993. The trade Union on their part in fact did not produce any register or records. Although the petitioner company submitted documents like the list of regular workers working earlier, representation dated 25.6.2008, appointment letters of regular workers showing that they had to undergo 18 months on the job institutional training etc., the respondent No.2 did not take into consideration the representation by observing that the same was a brief history of the Mill and the finishing house and that it helped to understand the strength of the regular workers and the contract labourers but that too not relating to the period of 1992-1993 nor giving any weightage to the qualified/trained finishers. The findings of the enquiry officer that the contract labourers acquired the art of training while habitually doing the job was only based on conjectures and surmises and not on facts. The respondent No.2 therefore took into consideration irrelevant facts while ignoring relevant facts which by itself has vitiated the enquiry. 7. Mr. The findings of the enquiry officer that the contract labourers acquired the art of training while habitually doing the job was only based on conjectures and surmises and not on facts. The respondent No.2 therefore took into consideration irrelevant facts while ignoring relevant facts which by itself has vitiated the enquiry. 7. Mr. J Roy further submits that the enquiry was conducted on 24.6.2008 for the year 1992-1993 and therefore, it was incumbent on the part of the respondents to rely on specific evidence relating to the year in question. The enquiry not being based upon any statements or documents relating to the exact position of the workers both regular and contractual, working in finishing house in the relevant year, such roving and casual enquiry cannot be acted upon for any purpose. 8. The learned counsel for the petitioner further submits that the respondent No.2 while conducting the enquiry made a visit to the finishing section and met certain contractual labourers to come to a conclusion that the statements of the Union appears to be almost right and correct without summoning any regular employees of the petitioner’s company to ascertain as to whether there was any difference between the job of regular employees and that of a contractual employee. In fact, it was made known to the enquiry officer that regular workers were working in different sections of the same finishing house but the enquiry officer did not bother to summon them. Mr. J Roy submits that the very words of the enquiry officer “a round of walk revealed that the very statement of the Union appeared to be almost right and correct” only speaks for itself. He therefore submits that under such circumstance, the conclusion made by the enquiry officer with regard to the status of workers and the nature of work for the year pertaining to 1992-93 is only based on assumption and presumption and thus, the enquiry report of the respondent No.2 and the communication dated 18.8.2008 to comply the enquiry report cannot be sustained and be set aside. 9. The respondent No.4 i.e. the employees Union have filed their affidavit-in-opposition on 19.9.2014 whereby they have contended that the findings of the Labour Commissioner is based on facts and supported by law well established and as per direction of the Apex Court. 10. Mr. 9. The respondent No.4 i.e. the employees Union have filed their affidavit-in-opposition on 19.9.2014 whereby they have contended that the findings of the Labour Commissioner is based on facts and supported by law well established and as per direction of the Apex Court. 10. Mr. AR Sikdar, the learned counsel for the respondent No.4 submits that the enquiry officer in fact made a field enquiry particularly in the finishing section of the finishing house at Cachar Paper Mill on 24.6.2008 to assess the job and to ascertain the rival contention. During such visit, he found contract labourers present in the finishing section of the finishing house and the enquiry was conducted in the presence of both the parties. He submits that a bare perusal of the findings of the enquiry report reveals that the management was well represented and in fact the sole purpose of such enquiry was only for ascertaining as to whether the contract labourers of the finishing section were doing similar jobs like that of the regular employees. In fact, there are no complaints from any quarter on the work done by the contractual employees and therefore, in absence of any deficiency on the quality of work when compared, the contractual labourers have clearly been denied facilities and wages as enjoyed by the regular workers most arbitrarily. He therefore submits that the contractual labourers are entitled to receive similar benefits as provided under the Rule 25(2)(v)(a) of the Rules of 1971. 11. Mr. TC Chutia appearing for Labour Commissioner likewise submits that the primary object of the enquiry officer was to find out as to whether similar nature of work and duties were performed by contractual labourers and the regular workmen. The enquiry officer upon visiting the site and inspecting the finishing house came to a finding and conclusion that there was no material difference in the nature of work between the two sets of workmen and therefore, the enquiry report was accordingly prepared with a finding that both the sets of workmen perform similar jobs and thus the contractual labourers were entitled to be given similar benefits in terms of Section 25 (2)(v)(a) of the Rules of 1971. He further submits that unlike other proceedings, the enquiry officer is not required to carry out a detailed procedure of making an enquiry as may be required in a civil or criminal proceedings when there are basic materials to indicate that the nature of works performed by two sets of employees are similar in nature. He therefore submits that there is nothing wrong in the enquiry report. 12. Mr. TC Chutia was asked to produce the relevant records of the enquiry proceedings on 2.8.2017 but the learned counsel only produced the departmental file pertaing to court case. The matter was thereafter deferred to 7.8.2017 but however, the same has not been produced. Therefore, all that can be appreciated of the enquiry proceedings is from the writ petition itself where the enquiry report is annexed (Annexure-K). 13. I have heard the learned counsel appearing for the rival parties and I have perused the materials available on records. As was directed by the Apex Court, the Labour Commissioner was required to look into the issue raised by the employees Union by way of their representation and thereafter take a decision in the matter within a time frame. The Labour Commissioner therefore conducted the enquiry on 24.6.2008 and came to its findings vide its enquiry report dated 19.7.2008. Although the spot visit at the factory was made on 24.6.2008 but comparison of the two sets of workmen was related to the year 1992-93. Some of the contractual labourers were present on that day but regular workmen were not available in the finishing section of the finishing house and for which the version of the regular employees could not be appreciated except for the management and officials who were present. The examination of the enquiry officer in order to find as to whether the nature of work and duties of the two sets of workman are similar and thereby requiring the employer to give them benefit at par with the regular employees will have to base upon the evidence and materials placed before the enquiry officer. The Apex Court in the case of Uttar Pradesh Rajya Bidyut Utpadan Board & Anr. Vs. Uttar Pradesh Vidyut Mazdoor Sangh (2009)17 SCC 318 has held as follows: “9. It would be, thus, seen that Rule 25(2)(v)(a) incorporates the principal of `equal pay for equal work'. The Apex Court in the case of Uttar Pradesh Rajya Bidyut Utpadan Board & Anr. Vs. Uttar Pradesh Vidyut Mazdoor Sangh (2009)17 SCC 318 has held as follows: “9. It would be, thus, seen that Rule 25(2)(v)(a) incorporates the principal of `equal pay for equal work'. By statutory provision, it is mandated that the employees engaged by the employer through contractor who perform the same or similar kind of work must be paid the same wages and facilities as being paid to the employees employed directly by the principal employer of the establishment. In case of any controversy as to whether the workmen employed by the contractor perform the same or similar kind of work as employed directly by the principal employer of the establishment, the Labour Commissioner has been empowered to resolve such dispute. 10. Nature of work, duties and responsibilities attached thereto are relevant in comparing and evaluating as to whether the workmen employed through contractor perform the same or similar kind of work as the workmen directly employed by the principal employer. Degree of skill and various dimensions of a given job have to be gone into to reach a conclusion that nature of duties of the staff in two categories are on par or otherwise. Often the difference may be of a degree. It is well settled that nature of work cannot be judged by mere volume of work; there may be qualitative difference as regards reliability and responsibility. 11. In the instant case, except recording that the contract labour engaged through contractors is doing the similar work, the Labour Commissioner in its order has not adverted to the evidence and material placed before it. The only consideration by the Labour Commissioner in its order dated October 24, 1998 is as follows : "I have fully considered all the facts and perused the records and documents produced by the parties. On the basis of the facts submitted, there is no reason before me on the basis of which the contract labour engaged through contractors who is working the similar work, should be given wages at a lesser rate than the permanent employees. Only minimum qualification could be the basis for the worker of both the plants to some extent. On the basis of the facts submitted, there is no reason before me on the basis of which the contract labour engaged through contractors who is working the similar work, should be given wages at a lesser rate than the permanent employees. Only minimum qualification could be the basis for the worker of both the plants to some extent. Therefore, considering all the facts my opinion is that 28 contract labour in temporary plant through contractor M/s. Eastern Engineering Corporation and M/s. Kheroni Constructions Company should be paid the wages at the rate admissible to the workers/labours in permanent plant. This is my decision in respect of application......" 14. The Apex Court as can be seen observed that the nature of works, duties and responsibility attached thereto are relevant in comparing and evaluating the similarity to the kind of work carried out by the workman engaged on contractual basis and those who are engaged on regular basis. The degree of skill and dimension given to the job have to be gone into to reach the conclusion before drawing a similarity or otherwise. The Apex Court having not found such exercise being carried out had interfered with the findings of the Labour Commissioner and directed fresh consideration in accordance with law. 15. The enquiry made by the Labour Commissioner in the instant case as well appears to be casual in nature in as much as the regular employee were not summoned for examination nor was statements taken. It is true that the strict principle for proving facts before a Court of law would not apply for an enquiry of such nature but nevertheless, the enquiry should reveal that relevant materials were considered and examined before conclusion is arrived at. It cannot merely be a conclusion on assumption or presumption. 16. In the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. AIR 2016 SC 5176 the Apex Court has held that there should be no room for doubt when the claim is for parity of pay between two sets of workmen. Therefore, the onus of proof of similarity in duties and responsibilities of the post under consideration for applying the principles of equal pay for equal work would lie in the person who claims it. 17. Therefore, the onus of proof of similarity in duties and responsibilities of the post under consideration for applying the principles of equal pay for equal work would lie in the person who claims it. 17. In the instant case, as may be noticed, the materials considered by the enquiry officer was hardly sufficient for arriving at the conclusion that similar pay should be granted to contractual employees like that of the regular workmen. Therefore the impugned enquiry report with the findings recorded therein in my considered opinion cannot be sustained. In the result, the enquiry report dated 19.07.2008 (Annexure-K) and the communication dated 18.9.2009 (Annexure-L) are set aside. The Labour Commissioner (respondent No.2) shall now consider the entire matter afresh while affording reasonable opportunities to the parties and thereafter, pass necessary orders in accordance with law within a period of 3 (three) months from the date of receipt of a certified copy of this order. 18. With the above observation and direction, the writ petition stands disposed of. No costs.