Rakesh Tiwari, J.
1. Heard Ms. Gajala Kadri on behalf of K.P. Agarwal, learned Counsel for the petitioner, learned Standing Counsel for respondent No. 1 and Sri Vinod Swaroop appearing for respondent Nos. 2 and 3.
2. This petition has been filed challenging the validity and correctness of the award dated 16.5.1985 and prayer for quashing of the same. The petitioner has further prayed for a writ in the nature of mandamus commanding the respondent Tribunal for providing the benefit of fixing a pay scale and other facilities such as overtime wages, leave holidays etc. at par under the same category of personnel employed under the corporation.
3. The workers involved in the present writ petition were employed in the canteen at M/s Hindustan Aluminium Corporation Ltd. Renukoot, Mirzapur.
4. The workers claimed the facilities of bonus, wages, and leave holidays and raised an industrial dispute in this regard which was referred by the State Government to Industrial Tribunal (1) U.P., Allahabad wherein following reference was made:
Audyogik Vivad Ka Vivran
Kya Sewayojak No. 2 Ke Madhyam Se Niyojan Karmchariyon Ko Sewayojak No. 1 Ke Pratisthan Ke Anya Karmchariyon Ki Bhanti Saman Vetan Mahgai Bhatta Anya Suwidhaon Di Jani Chahiye? Yadi Han, To Kab Se Tatha Kis Vivran Sahit?
The aforesaid reference was registered by the Tribunal as adjudication case No. 29 of 1983. On receipt of summons, the parties filed their respective written as well as rejoinder statement.
The claim of the workman appears to be that they were doing the same work was being done by the workmen, employed through respondent No. 3 proprietor of the Renukoot Canteen and labour Supplier, Renukoot, Mirzapur that the said work of canteen was essential for the manufacturing process of the respondent corporation and as such the workman employed through the respondent No. 3 who in fact were the employees of respondent No. 2 M/S Hindalco Aluminium Co. Ltd. (hereinafter referred to as the 'company') were entitled to the same pay scale, bonus and other similar benefits at par with the employees of the said company.
The case of respondent No. 2-company was that the work in canteen was done by members of the petitioners sabha employed by the the contractor Rajendra Kumar respondent No. 3, hence they not being a workman of the company were not entitled to benefits of pay scale given by the company to its workman.
5. As regards respondent No. 3 the contractor is concerned, his case was that he was carrying business of canteen on contract that the company was not the employer of the persons employed through him.
6. The Tribunal by its award dated 16.5.1985 impugned in the writ petition came to the conclusion that the workmen were not entitled to claim parity in wages with the employees of the company as regards dearness allowances and other benefits. It also held that as the comparative economic data has not been furnished by the sabha representing the workman, as regards the facilities of bonus, over-time allowances etc. hence the matter regarding the parity of these facilities could not be adjudicated.
7. The Tribunal has further held that as aforesaid benefits such Bonus, Over-time Allowances leave etc. are payable under the Dookan Evam Vanijya Adhinium and Minimum Wages Act etc, hence questions of relationship between the employees do not lie in favour of the workmen and they can be claimed under the relevant Acts.
The Tribunal in paragraph 32 has considered provisions of the contract and case laws, which is as under:
So, under the term of licence the contract labour which is generally unorganised has the basic guarantee and is assured of the payment of at least the minimum rates of wages or the rates of wages fixed by. any agreement, award etc. But Rule 25(2)(iv) I does not necessarily hail the contract labour to minimum rates of I wages or the rates which have been fixed by agreement in the past, because the expression used is 'shall not be less than the rates so fixed.' At the same time no machinery is envisaged to sort out difference about whether the rates of wages paid to contract labour were in accordance with the rates prescribed under the minimum Wages Act, or fixed by agreement or award. That questions of this type can and do in fact arise is illustrated by the dispute in Saraspur Mills Co. Ltd. case v. Raman Lal Chaman Lal which came before the Supreme Court 1973 FLR 26 page 294-299. There could be no question of appropriate Government being barred from making reference to the Industrial Tribunal in such cases too.
The Tribunal considered the claim of the workman in paragraph 34 and has observed as under:
In fact the claim before the Tribunal is for wages to canteen workers being paid at rates similar to those applicable to directly employed workmen of the establishment. Initially, this manner of claim was grounded on the fact that the workmen hired by the contractor performed same or similar kind of work as the directly employed workmen and that the work performed by contract labour was connected directly with the manufacturing process or was incidental thereto.
The tribunal observed that wages for a particular occupation may be more, or less or equal to the rate applicable to another occupation but such a rate is determinable on the strength of the work features of the occupation concerned in the set-up of the industry and that the comparability of wage rates would be a relevant matter to be considered it held that comparability however, essentially has to be between wages in similar occupations and not with wage rates in hetroqenous occupations and industries.
8. After discussing the relevant factor for comparison of rates of wages and their details in different occupation and examining the peculiar facts of claim made by the workman, the Labour Court in paragraph Nos. 36 to 40 held that:
36. So when such a claim for a particular wage rates but unrelated to type of work, comes to be raised before an authority the claim cannot be decided as a simple case of decree merely on the basis that this rate was prevalent in any other occupation even in the same industry, notwithstanding the difference in the types of work. Instead, the whole question would be open for examination. The employers have urged that so far as the contract labour is concerned even in that case Rule 25(2)(v) (b) shall be operative, the determination of wage shall be done by the Labour Commissioner and the reference to the Tribunal would be barred. The workmen countered this by referring to it as subordinate legislation on the authority of the Allahabad High Court in Indian Explosive Ltd. case (supra). However, since the workmen have not raised the wage claim as an independent question of fixation of wage of canteen labour but have demanded similarity of rates with the directly employed workmen with whose work there now is even no claim of similarity, I considered it futile to examine the effect of proviso to Rule 25(2)(v)(a) and Sub-rule v(b).
37. The facilities in respect of which parity with that employed workers has been claimed are over-time wages, bonus and leave. The contractor opposite party No. 2 in his written statement has contended that facilities as per law were being allowed. In his oral testimony before the Tribunal he affirmed that for the last six years bonus at the rate of 20 % had been paid. He was not cross-examined about any facilities regarding over-time, leave etc. The only witness examined by the workmen is an ex-employee. He was dismissed in 1980. The dispute raised by him against his dismissal, has been admitted to have been decided against him. He never worked in the canteen. There is no reason to prefer his testimony to the testimony of the contractor. The contractor's testimony could have been centered by the evidence of a contract labour. But none out of 135 workmen employed by him for work of the canteen could be produced for examination.
38. The provisions of U.P. Dookan Aur Vanijya Adhishashan Adhmium are applicable in the case of canteen of Hindustan Aluminium Corporation. This act makes provision of over-time, rest days, holidays and leaves. Provision regarding over-time is also made in the minimum wages Act. These are matters in regard to which the Contract Labour (Regulation & Abolition) Act makes no provision. The issue of parity with the directly employed workmen of the opposite party No. 1 have been discussed already in connection with the wage question, the same principle applies in regard to the facilities.
39. The Hindustan Aluminium Corporation Ltd. Renukoot, Mirzapur was the employer in respect also of the workmen engaged by the contractor for working in the canteen of the establishment, the Contract Labour (Regulation and Abolition) Act applies in regard to the employment of these workmen. But the provisions of that Act do not bar a reference by the appropriate Government to the Industrial Tribunal in regard to matters connected with the terms of employment or condition of labour, not specifically covered under that Act, and the Industrial Tribunal in not divested of its jurisdiction over such matter under the Indus trial Dispute Act.
40. Rule 25(2)(iv) and (v) of the U.P. Contract Labour (Regulation and Abolition) Rules besides being in the nature of subordinate legislation, do not completely bar reference to the Industrial Tribunal of all aspects of wage matter relating to the contract labour. In the instant case, however there was the starkly bare demand for similarity of wage rate with directly employed workmen with no reference what ever to likeness of work. A demand for similarity of wage rates totally unrelated to work and completely unsupported comparative economic date, cannot be sustained.
9. The Labour Court concluded that the same principle as aforesaid holds good in regard to the facilities (of bonus, over-time wages and leaves) referred to on behalf of the workmen and that apart, these were matters already covered under the provisions of law such as the payment of Bonus Act, Dookan Avam Vanijya Adhisthan Adhimmum and Minimum wages Act.
10. It held that since the workmen had failed to prove the claim before the labour court, there is no illegality or infirmity in the award.
11. The Counsel for the petitioner also could not establish any illegality or infirmity in the reasoning of the Labour Court in the award before this Court also.
11. Sri Vinod Prasad, learned Counsel for the respondents states that. after 199i the workers of the company have themselves started canteen as a cooperative and no contract worker is working in the canteen. For the reason that neither the claim of the workmen employed in the canteen was found sustainable by the labour court as they failed to prove their case before it and no contract worker is working since 1991. No case for interference has been made out by the petitioners in findings of facts recorded by the labour court, the writ is liable to be dismissed.
13. It is accordingly dismissed.
No order as to costs.