Mumbai Electric Employees Union v. The Additional Labour Commissioner

(i) Chemical Mazdoor Panchayat Vs. Indian Oil Corporation

(ii) Indian Oil Corporation V. Chief Labour Commissioner,

(iv) R.C.C. (Sales) Private Limited Vs. E.S.I. Corporation & Ors.

15. Petition is opposed by Mr. Talsania, the learned senior advocate appearing for respondents no.2/5. He would submit that Petitioner no.1-union has no locus-standi to file the present petition as it is not the representative-Union. That under the provisions of the BIR Act, 1946, only a representative union can initiate legal proceedings. He would further contend that the representative Union has already executed wage agreement on behalf of the contract workmen with the Contractors Association (respondent no.4), to which respondent no.2/5 are merely confirming parties. Rane 10/32 WP-944-2015

16. Mr. Talsania would further submit that provisions of clauses (a) and (b) of Rule 25(2)(iv) of the Maharashtra Rules 1971 are mutually exclusive. That clause (b) is operative only in absence of agreement. Since agreement with representative union is already registered under the BIR Act 1946, clause (b) would have no operation. He would submit that Petitioners are seeking to re-agitate the issues which were raised by them in Writ Petition (L) NO. 1796/2012. He would take us through the memo of that Petition to demonstrate that the petition was based on provisions of Rule 25(2) (iv)(b) of the Maharashtra Rules, 1971 and assertion about performance of same work by Mazdoor, Junior Mazdoor and contract workmen. He would further submit that the judgment in Contract Lagu Udhog Kamgar Union (supra) was also relied upon during the course of hearing of Writ Petition (Lodg.) No. 1796/2012. In pursuance of the order passed by this Court on 19.07.2012 the provisions of the BIR Act, 1946 on 28.12.2012 and that the Petitioners chose not to challenge the same. That Petitioners cannot now be permitted to re-agitate the issues which were already raised in Writ Petition (L) No. 1796/2012.

17. Mr. Talsania would further submit that for the purpose of provisions of Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971 similarity in nature of duties is required to be established. In support of his contention, he would rely upon the judgment of the Apex Court in the case of Uttar Pradesh Rajya Vidyut Utpadan Board and Anr. V/S. Uttar Pradesh Vidyut Mazdoor Sangh. (2009) 17 SCC Rane 11/32 WP-944-2015

318. He would also rely upon the judgment of the Apex Court in State of Haryana and Anr. V/s. Tilak Raj and Ors. 2003 (98) FLR 599 SCC in support of his contention that the concept of ‘equal pay for equal work’, requires complete and wholesale identity between two groups of employees. He would rely upon the judgment of the Apex Court in Haryana State Coop. Land Development Bank Vs. Neelam (2005) 5 SCC 91 in support of his contention that the procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings and that therefore having acquiesced in the decision of registration of agreement under the BIR Act, 1946, the Petitioner-Union cannot be permitted to turn around and indirectly challenge the agreement by filing the present petition.

18. Mr. Ashok Shetty appears on behalf of respondent no.4 (Reliance Energy Labour Contractors Association) and opposes the petition. He adopts the submissions made by Mr. Talsania. Additionally, he would submit that the scheme of the BIR Act, 1946 is such that only a representative Union is entitled to negotiate wages with the Contractor and principal employer. In support of his contention, he would rely upon the judgment of the Apex Court in Shivanand Gaurishankar Baswanti Vs. Laxmi Vishnu Textile Mills and Ors. (2008) 13 SCC 323.

19. We have also heard Mr. Satelkar, learned AGP who opposes the petition and supports the order passed by the ALC. Rane 12/32 WP-944-2015

20. The short issue that arises for our consideration in the present petition is whether members of Petitioner-union are entitled to payment of wages on par with directly employed workmen under the provisions of Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971. There is no denial to the fact that respondent no.3 (Bombay Electric Workers Union) is the representative Union under the provisions of the BIR Act, 1946 and that Petitioner is not a representative Union. An agreement dated 28.06.2012 has been executed between the representative union, contractors’ association and the principal employer, under which the contractors have agreed to pay various rates of wages to the contract employees. The agreement was submitted for registration under the provisions of the BIR Act, 1946. Petitioner-Union opposed registration of the agreement and filed Writ Petition (L) No. 1796/2012 inter-alia contending that the employees of Petitioner-Union are entitled to parity of wages as provided under Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971. The Writ Petition was disposed of by this Court directing that the and thereafter proceed to take decision in the matter. The operative portion of the order passed by this Court on 19.07.2012 reads thus: “4. We accept the statement of Mr. Saluja and direct that the 44(2) of the BIR Act and take into account such views as may be presented to him. The petitioners would be entitled to submit their views or objections in writing and the Registrar will be entitled in his discretion to call the petitioners or the representative union for a hearing, if so feels, and shall proceed to decide in accordance with law as expeditiously as possible.” Rane 13/32 WP-944-2015

21. In pursuance of the order passed by this Court, the Registrar passed an order on 28.12.2012 registering the agreement dated 28.06.2012 under Section 44(2) of the BIR Act, 1946. Since agreement providing for wages to contract workers came to be registered under the provisions of the BIR Act, 1946, all the contract workers engaged by the contractors of respondents no. 2/5 became entitled to draw wages in accordance with the registered agreement.

22. Though Petitioner-Union was aggrieved by the agreement dated 28.06.2012 and had objected to its registration, it did not initiate any proceedings to challenge the order dated 28.12.2012. Instead, it initiated separate proceedings under the provisions of the Maharashtra Act, 1971 by addressing communication dated 12.07.2012 to the ALC. Ms. Cox has contended that since Petitioners are entitled to the benefit of pay parity under the provisions of Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971, they felt it unnecessary to challenge the registration order dated 28.12.2012. This is how the order of registration dated 28.12.2012 remained unchallenged and has attained finality.

23. In the manner aforesaid, petitioners started pursuing parallel proceedings under Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971 with the ALC. The impugned order dated 15.12.2014 has been passed in these proceedings initiated by petitioner under the provisions of Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971. We have been called upon to decide correctness of the order dated 15.12.2014 in the present petition. Since the ALC has adjudicated Rane 14/32 WP-944-2015 Petitioners’ demand by passing order dated 15.12.2014, the challenge to the earlier communications dated 10.07.2014 and 14.08.2014 expressing unwillingness to adjudicate the demand, has become academic. We accordingly proceed to examine challenge raised by Petitioner to ALC’s order dated 15.12.2014,

24. Rule 25 of the Maharashtra Rules, 1971 provides for terms and conditions on which license for engagement of contract workers can be granted. One of the conditions is about payment of wages. Relevant provisions of the Rule read thus: “25. Form and terms and conditions of license.-(1) Every license granted under Rule 23 or renewed under Rule 29 shall be in Form No.VI. (2) Every such license shall be subject to the following conditions, namely:- (i) ---- (ii)----- (iii) ------ (iv)(a) the rate of wages payable to the workmen by a Contractor shall not be less than the minimum rates of wages fixed under the Minimum Wages Act, where that Act applies, where the rates have been fixed by agreement, settlement or award shall not be less than the rates so fixed, and where rates have been fixed under the Minimum Wages Act and also under any agreement, settlement or award, the rates, shall not be less than the higher of the two rates; (b) where, the workmen employed by the Contractor perform the same kind of work as the workmen or a class of workmen directly employed by the principal employer, the rates of wages payable to the workmen by the Contractor shall be the rates payable to the workmen directly employed by the principal employer doing the same kind of work. (c)in any other case, the rates of wages shall be such as may be specified in this behalf by the Commissioner of Labour;

25. Petitioners have based their claim under clause (b) of Rule 25(2)(iv), whereas the Respondent No. 2/5 contend that since a Rane 15/32 WP-944-2015 registered agreement exists governing payment of wages (providing for higher wages than the ones fixed under the Minimum Wages Act), the wages provided under the agreement alone are payable under clause (a) of Rule 25(2)(iv).

26. The sheet anchor of Petitioners in support of their contentions is the judgment of this Court in Contract Lagu Udhog Kamgar Union (supra). Relying upon that judgment, it is contended by them that it is not necessary to undertake comparison of duties and responsibilities performed by two groups. It is further contended that, so long as it is demonstrated that the nature of work performed by contract employees and regular Mazdoor/Junior Mazdoor is of unskilled nature, pay parity within the meaning of Rule 25(2)(iv)(b) of the Maharashtra Rules, 1971 stands established. In Contract Laghu Udhog Kamgar Union, a complaint was filed by the petitioner-Union before the Labour Court for a declaration that the contract workers are the direct and permanent employees of the principal employer. A prayer was made for payment of same wages on par with the other directly employed workers. During pendency of that complaint, the petitioner-Union made an application to the Labour Commissioner under the provisions of Rule 24(2)(iv)(b) and Rule 25(2)(v)(b) of the Maharashtra Rules, 1971 seeking direction against the principal employer for payment of wages on par with the other directly employed workers. The Labour Commissioner passed an order rejecting the demand holding that the work done by the contract labourers was not the same as done by the regular workers and unconnected with the manufacturing activities. It is in the light Rane 16/32 WP-944-2015 of this factual background, this Court held in para-15 of the judgment as under: “15. Respondent No. 1 has proceeded on the basis of the report of Government Labour Officer which indicates that the work done by the contract labour was not the same as done by the regular workers of respondent No. 2 and unconnected with the manufacturing activities. This approach is wholly inappropriate and would defeat the legislative intent. We are of the opinion that the expression "perform the same kind of work" occurring in Rule 25 will have to be understood in the context of the definition of 'workman' in Section 2(l)(i) of the Act of 1970. It is well settled that a statutory Rule must be interpreted in such a way that it does not whittle down the Act of Parliament in any respect, for the Rule would become ultra vires. The Rules are framed in aid of the Act. Understood thus, the nature of work done by the contract labour will have to be classified as skilled, semi-skilled, or unskilled manual, supervisory, technical or clerical work in the establishment and not by physically comparing with the actual work done by the regular workers of the establishment relating to manufacturing activities alone or otherwise. The definition of "workman", in Clause (i) of Sub-section (1) of Section 2 of the Act, means any person employed in or in connection with the work of any establishment to do any skilled, semi-skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person - (A) who is employed mainly in a managerial or administrative capacity; or (B) who being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested to him. functions mainly of a managerial nature; or (C) who is an out-worker that is to say, a person to whom any articles or materials are given out by on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control and management of the principal employer. Admittedly, the work undertaken by the contract labour employed by respondent No. 2 does not fall in either of the exempted category of this definition but is covered by virtue of persons employed in connection with the work of establishment of respondent No. 2 to do skilled and unskilled manual work for hire or reward. As mentioned hereinabove, respondent No. 1 has relied upon the finding of the Government labour officer that none of the contract labour was connected with the manufacturing activity and was not doing the same kind of work done Rane 17/32 WP-944-2015 by the regular workers. The view taken by the respondent No. 1, clearly misconstrues the expression "perform the same kind of work" occurring in Rule 25(2)(iv)(b) of the Maharashtra Contract Labour (Regulation and Abolition) Rules, 1971. The expression "perform the same kind of work" need not mean that the contract labour should actually do the same work as the workmen directly employed by the establishment. But the work performed by such contract labour will have to be broadly classified on the basis of skilled, semi-skilled, unskilled manual, supervisory, technical or clerical work for hire or reward. In our view, this meaning can be ascribed on the basis of Section 2(l)(i) of the Act of 1970, which defines "workman", read with Rule 25(2)(iv)(b); as well as the notification issued by the Government of Maharashtra under the provisions of Minimum Wages Act, which classifies the workers broadly in 4 categories, skilled, semiskilled, unskilled and clerk. Moreover, Sub-clause (c) of Rule 25(2)(iv) stipulates that the rates of wages shall be such as may be specified by the Commissioner of Labour. In other words, the rates of wages specified under the Minimum Wages Act, are to be kept in mind while considering the claim of the workman under the Act of 1970. A fortiori, the classification of workmen done under the Minimum Wages Act would apply or at any rate the principle underlying such classification would be relevant while examining the purport of "perform the same kind of work" provided for in Rule 25.

27. Thus, Contract Laghu Udhog Kamgar Union did not involve issue of existence of agreement registered under the provisions of the BIR Act, 1946 and its’ effect under the provisions of Rule 25 of the Maharashtra Rules, 1971. The issue of interplay between clauses (a) and (b) of Rule 25 (2) (b) was also not involved, which is the contentious issue in the present case.

28. It is contended on behalf of respondents no.2/5 that once the agreement is executed for fixation of rates of wages of contract workers and if such rates are more than the rates fixed under the Minimum Wages Act, the rates agreed under the agreement, would be enforceable. It is further contended that, Clause (b) of Rule 25(2)

(iv) would apply only in absence of an agreement and that once an

Rane 18/32 WP-944-2015 agreement is executed, the provisions of Clause (b) would become inapplicable. On the contrary, it is contended on behalf of the Petitioner that, provisions of clauses (a) and (b) are not mutually destructive. Reliance is also placed on Section 30 of the Contract Labour Act to submit that the rates of wages payable under the Act and Rules, would prevail over the stipulations in the agreement. Section 30 of the Contract Labour Act provides thus: “Section 30. Effect of laws and agreements inconsistent with this Act. (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract of service, or in any standing orders applicable to the establishment whether made before or after the commencement of the Act: Provided that where under any such agreement, contract of service or standing orders the contract labour employed in the establishment are entitled to benefits in respect of any matter which are more favourable to them than those to which they would be entitled under this Act, the contract labour shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that they receive benefits in respect of other matters under this Act. (2) Nothing contained in this Act shall be construed as precluding any such contract labour from entering into an agreement with the principal employer or the contractor, as the case may be for granting them rights or privileges in respect of any matter which are more favourable to them than those to which they would be entitled under this Act.”

29. It is by relying on provisions of Section 30 of the Contract Labour Act that Petitioners contend that if a higher benefit is due and payable under Rule 24(2)(iv)(b) of the Maharashtra Rules, 1971, existence of agreement under Rule 25(2)(iv)(a) would not come in Petitioners’ way. We are unable to agree with the submissions made by Petitioners that provisions of Section 30 of the Rane 19/32 WP-944-2015 Contract Labour Act would make provisions of Clause (b) of Rule 25(2)(iv) prevail over the provisions of Clause (a). In our view, Clause (b) of Rule 25(2)(iv) would apply only in a situation where there is no agreement for fixation of rates of wages. If Clause (b) of Rule 25(2)(iv) was to apply even in a situation where the agreement exists, the provisions of Clause (a) of Rule 25(2)(iv) would be rendered otiose. In that event, the agreement and its registration under the provisions of the BIR Act, 1946 would be rendered redundant and every contract employee would continue to demand wages on par with directly employed workmen under Clause (b) of rule 25(2)(iv) notwithstanding execution of wage-agreement by their representative union. This does not appear to be the legislative intention. On the contrary, harmonious reading of the provisions of Clause (a) and Clause (b) and Rule 24(2)(iv) would indicate that once an agreement is executed with the representative Union fixing higher rates of wages than the Minimum Wages Act, the wages so fixed under the agreement would become enforceable. Once the agreement is executed and registered, the contract workers cannot be permitted to take a volte face and thereafter contend that they are entitled to even higher rates of wages by comparing themselves with the directly employed workmen. Infact, the very factum of the contract workers agreeing through their representative Union for lower rates of wages than the directly employed workmen would indicate disparity in nature of work between the two categories. Execution of wage-agreement by the representative union agreeing for payment of lesser wages than directly employed workmen would contain an implied admission that the work performed by two Rane 20/32 WP-944-2015 categories of workman is different. We are however not drawing inference of disparity in nature of work only on this factor and this issue is being addressed separately in later part of the judgment. Suffice here to observe that permitting contract workmen, who are not part of representative union, to again rake up the issue of wages would render the provisions of BIR Act 1946 and Rule 25 (2) (iv)(a) nugatory.

30. If the provisions of Clauses (a) and (b) of Rule 25(2)(iv) are read in a manner suggested by petitioners, there would be no finality on the issue of wages to contract workers, as despite agreeing to particular rates of wages in the agreement executed through their representative Union, they would be in a position to turn around and claim different (higher) rates of wages than the ones agreed under the agreement. It would also destroy the scheme for recognition of a representative union under the BIR Act 1946. To illustrate, if the employer has employed 100 workmen, 99 of whom are members of a representative union, one workman would demand higher wages than the one agreed under the registered agreement by relying on provisions of Rule 25(2)(iv)(b), thereby rendering the wage agreement completely redundant. Thus, interplay between clauses (a) and (b) suggested by Petitioner would lead to absurdity and make the entire scheme of recognition granted to representative workman as well as execution and registration of wage agreement under the BIR Act 1946 to be unworkable. Such interpretation therefore will have to be eschewed. Rane 21/32 WP-944-2015

31. Reliance of Petitioners on the provisions of Section 30 of the Contract Labour Act is of no avail. The correct reading of Proviso to Section 30(1) of the Act would mean that in the event of conflict between the wages payable under the Minimum Wages Act and the agreement, wages payable under the Act would prevail over the agreement. The effect of Section 30 of the Contract Labour Act is given in Clause (a) of Rule 25(2)(iv), which provides that if the wages agreed in the agreement are lesser than the wages fixed under the Minimum Wages Act, the wages payable under the Minimum Wages Act are required to be paid. This would be the correct reading of the provisions of Proviso to Section 30 of the Contract Labour Act.

32. Thus, presence of agreement registered under the provisions of the BIR Act, 1946 in the instant case would make the judgment in Contract Laghu Udhog Kamgar Union (supra) entirely inapplicable to the facts of the present case. There was no occasion for this Court to consider the interplay between the provisions of Clauses (a) and (b) of Rule 25(2)(iv) of the Maharashtra Act, 1971. Therefore, in our considered view, the findings recorded by this Court with regard to the nature of duties in Contract Laghu Udhog Kamgar Union (supra), will have no application to the present case.

33. Even if contention of Petitioner that provisions of clause (b) of Rule 25(2)(iv) would prevail over clause (a) is to be accepted, Petitioners have not been successful before the ALC in establishing that the work performed by contract workers is same as that of directly employed workmen. Petitioners claim that since both Rane 22/32 WP-944-2015 perform ‘unskilled’ work, the test as laid down in Contract Laghu Udhog Kamgar Union is satisfied. The argument appears attractive in the first blush. However, there appears to be some degree of dissent over the method of comparing the nature of work in views expressed by Division Bench of this Court in Contract Laghu Udhog Kamgar Union and in the Judgment of the Apex Court in Uttar Pradesh Rajya Vidyut Utpadan Board (supra). The case involved provisions of similar set of Rules viz. Uttar Pradesh Contract Labour (Regulation and Abolition) Rules, 1975. The respondent-Union therein had made an application under Rule 25(2)(v)(a) of the Rules, 1975 for payment of same wages to contract workers as paid to the employees in the main Filtration Plant. The Apex Court, has held as under: “11. 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.” (emphasis supplied)

34. The Apex Court thereafter went through the difference in the nature of duties pointed out by the principal employer and in para-14 of the judgment has held as under: “14. Despite such a specific case set up by the present appellants before the Labour Commissioner to show that the contract labour in filtration plant engaged through the contractors do not perform the same or similar kind of work as is done by the employees employed directly by the employer in main plant, the Labour Commissioner did not advert to these aspects at all. The Labour Commissioner ought to have adverted to Rane 23/32 WP-944-2015 the nature of duties of the staff in the two categories, degree of skill and dimensions of the job for reaching the conclusion that the work done by the contract labour in the second filtration plant is same or similar to the kind of work done by the employees employed by the principal employer directly in the main plant. There is no discussion at all by the Labour Commissioner as to how he arrived at the conclusion about similarity of work. The evidence let in by the parties and the material placed by them seem to have not at all been considered by the Labour Commissioner.”

35. In view of the judgment of the Apex Court in Uttar Pradesh Rajya Vidyut Utpadan Board (supra), comparison of degree of skill and various dimensions of the given job is required to be undertaken for determining parity in the nature of duties of staff in two categories. We therefore are unable to accept the contention raised on behalf of petitioners that, mere performance of ‘unskilled’ job by two categories of workmen, would entitle them to pay parity. The inspection report submitted by the Office of Additional Labour Commissioner is in Marathi. Petitioners have placed on record its English translation, which reads thus: “M/s. Reliance Infrastructure (Energy) Ltd., is functioning from Magathane, Opposite Bus Depot, Western Express Highway, Borivali (E), Mumbai-400 066 since 1974. This establishment is doing the work of electricity distribution and in this establishment a total of 3773 permanent workmen/employees, and 4315 contract workmen (through 115 contractors) are working. This establishment is registered under the Bombay Industrial Relations Act, 1946 and the permanent workmen as well as contract workers employed in this establishment are represented by the Bombay Electric Workers Union, Santacruz. In addition to this, the following 4 workers unions are also functioning.

1. Mumbai Electric Employees Union, Dadar (E). Rane 24/32 WP-944-2015

2. Mumbai Electric Vidyut Kamgar Sena, Santacruz (W).

3. Mumbai Electric Kamgar Sena, Bandra (E).

4. Mumbai Electric Swabhiman Kamgar Sena, Khar (W). The Bombay Electric Workers Union, Santacruz is the recognized Union and the Management has signed an Agreement dated 28th June 2012 with this Union related to the general demands of permanent as well as contract workers. However, it appears that this Agreement is not acceptable to other Unions. When a Regional Labour Officer made an inquiry in relation to the complaint dated 12.07.2012 made by the Mumbai Electric Employees Union it has been noticed that in this establishment the permanent workmen have 22 different categories. According to that, a minimum Rs.24,554/- and a maximum of Rs.54,860/- is paid to them as wages. However, the contract workers are being paid wages as per the Minimum Wages rate. In addition to the wages, House Rent Allowance, Conveyance Allowance and Washing Allowance is being paid. This establishment is doing the work of electricity distribution and in this establishment the workmen coming under the ‘Mazdoor’ category are doing the work of providing the necessary tools and other material to the skilled workmen. The contract workmen are doing the excavation work necessary for the electricity distribution. The permanent workmen covered under the ‘Junior Mazdoor’ category are doing the work of carrying tool bags to the place of the work and cleaning the workplace after the excavation work is completed etc. The contract workmen working in this establishment are being paid minimum wages as applicable to shops and commercial establishments. The Bombay Electric Workers Union, Santacruz has signed an Agreement dated 28th June 2012 relates to the wages and other service conditions of the permanent as well as contract workers. A copy of the said Agreement was submitted on 30.06.2012 for registration to the Registrar. The benefits of the said agreement are made applicable to the permanent as well a contract workmen with effect from 1st June 2010. Related to this matter some Unions had filed Writ Petition No. 1796/2012 in Hon’ble High Court, Mumbai. The Hon’ble High Court has decided Rane 25/32 WP-944-2015 the case and as per the contention of the management it has been directed that the proceedings should be carried out at the level of Rule 12(2) of the Bombay Industrial Relations Act. In relation to this further proceedings are being carried out by the Registrar. The Junior Mazdoor are related to the day to day operations and maintenance work and Junior Helpers are related to the work of the business. For example, Junior Helpers are doing work such as transporting the electric meters to the workplace and faulty meters to the office. Even though at first glance it appears that the work done by the permanent Mazdoor and Junior Mazdoor and the contract workers is different, actually it has been noticed that the work done by all these workers is of unskilled type. Therefore, a proposal for the abolition of the contract labour system in the said establishment is forwarded to the State Advisory Committee and the same is pending.”

36. The office of the Additional Labour Commissioner thus came to the conclusion that the permanent Majdoor performed the job of providing necessary equipment to the skilled workers by carrying the toolbox to the location and undertake cleaning activities after excavation. As against this, the contract workmen were performing the job of actual excavation required for electric supply. The Officer opined that, though the nature of duties performed by directly employed Majdoor and contract workers was different, both set of workmen were performing duties of unskilled nature. In our view, once it is established that the nature of duties performed by two categories of workmen are different, mere similarity in class of work (skilled/unskilled) would not be a determinative factor while deciding pay parity. Several categories of employees in an organization may perform similar class of work, skilled, semi-skilled and unskilled. However, mere performance of Rane 26/32 WP-944-2015 unskilled work by different category of employees would not entitle them to claim the benefit of pay parity. What is required to be established is performance of same kind of work. In the facts of the present case, we are unable to hold that the contract workers perform same kind of work as that of Majdoor/Junior Majdoor directly employed by respondents no.2/5.

37. In this regard, the judgment relied upon by Mr. Talsania, is State of Haryana V/s. Tilak Raj (supra) is apposite, wherein it is held by the Apex Court as under:

38. It is also required to be borne in mind that the attack for seeking non-registration of agreement in Writ Petition (L) NO. 1796/2012 filed by the Petitioner-Union was mounted by relying on provisions of Rule 25(2)((iv)(b) of the Maharashtra Rules, 1971. In that petition, Petitioner-Union also relied upon the judgment of Contract Laghu Udhog Kamgar Union (supra). In this regard, we reproduce the relevant portion of the order dated 19.07.2012 passed by this Court:

39. Thus, Petitioners firmly believed that registration of agreement under the BIR Act 1946 would come in their way of claiming parity of wages under Rule 25(2)(iv)(b) of the Maharashtra Rule 1971. This is the reason why stiff resistance was shown to registration of wage-agreement by Petitioner-union by relying both Rane 28/32 WP-944-2015 on provisions of Rule 25(2)(iv)(b) as well as on judgment in Contract Laghu Udhog Kamgar Union. However, after the agreement was registered vide order dated 28.12.2012, Petitioners acquiesced in such registration by not adopting any proceedings in respect of order dated 28.12.2012 and the order thus attained finality. Having represented before this court in Writ Petition (L) No. 1796/2012 that registration of agreement would come in their way of seeking parity of wages under Rule 25(2)(iv)(b), we are afraid Petitioners cannot now be permitted to take a volte face and contend that registration of agreement would have no impact on their demand for pay parity under Rule 25(2)(iv)(b). In fact plea raised by them before this Court in Writ Petition (L) No. 1796/2012 of destruction of their right to claim pay parity upon registration of agreement was in consonance with harmonious interpretation of clauses (a) and (b) of Rule 25 the Maharashtra Rules 1971 as discussed above. The diametrically opposite plea now sought to be raised leading to absurdity is totally unfounded which cannot be countenanced by this court.

40. Petitioner-union’s locus to file the present petition for claiming pay parity is questioned by Respondents on the ground of Petitioner not being a representative union under the BIR Act 1946. In Shivanand Gaurishankar Baswanti (supra) the Apex Court has held in para-61 as under: “61….. It will be seen that the proviso puts the Representative Union in a special position out of the six classes mentioned as representatives of employees in Section 30. Thus Section 32 makes it clear that where the Representative Union of the six classes in Section 30, appears no one else can appear, Rane 29/32 WP-944-2015 including the persons who might have made an application under Section 42(4). If the other five classes which are mentioned in Section 30 as representatives of employees appear, the authorities have the power to allow the employee or any other person to appear along with them…..” Considering the provisions of the BIR Act, 1946 and the above judgment, Petitioners’ locus to file the present petition becomes questionable. However since we have examined contentions raised by Petitioners on merits, we do not wish to delve further on this issue and leave the issue open to be decided in appropriate case.

41. The comparison sought to be placed by Petitioners between the wages earned by directly employed Mazdoor and contract workmen by production of their pay slips is completely misplaced. It has been established that the work performed by Mazdoor is not the same as the one performed by contract workmen. Furthermore, below Mazdoor, there is a post of Junior Mazdoor. Both in view of existence of registered agreement, as well as failure on the part of Petitioners to prove similarity in duties and responsibilities, comparison in the wages earned by two categories of employees becomes pointless.

42. What remains now is to deal with some more judgments relied upon by Ms. Cox:

(i) Petitioners have relied upon the judgment of Chemical

Mazdoor Panchayat (supra). In that case again, there was absence of any agreement for payment of wages to Rane 30/32 WP-944-2015 contract workers under the provisions of the BIR Act,

1946. Therefore, there was no occasion for the Apex Court to deal with the issue of interplay between the provisions of Rule 25(2)(iv)(a) and (b) of the Maharashtra Rules,

1971. Furthermore, the Apex Court has merely remanded the matter to the High Court to decide the issue of similarity in the nature of work based on material available before it. Therefore, the judgment in Chemcial Mazdoor Panchayat (supra) would not assist the case of Petitioners. Petitioners have also placed reliance on the judgment of the Gujarat High Court in Indian Oil Corporation Ltd. (supra) which was the subject matter of challenge before the Apex Court in Chemical Mazdoor Panchayat to demonstrate that the High Court had relied upon the judgment in Uttar Pradesh Rajya Vidyut Utpadan Board (supra). However, since the judgment of the Apex Court in Chemical Mazdoor Panchayat is inapplicable to the facts of the present case, reliance on the judgment of the High Court by the Petitioner is of little assistance to their case.

(ii) Petitioners have relied upon the judgment of the Apex

Court in Greaves Cotton (supra) in support of their contention that unlike semi-skilled and skilled category of workmen, there cannot be degrees of skill amongst unskilled workmen. Though, there cannot be any dispute about this proposition, we fail to understand as to how reliance upon the judgment in Greaves Cotton, would take Rane 31/32 WP-944-2015 the case of the Petitioners any further. In U.P. Vidyut Majdoor Sangh (supra), the Apex Court has held that, degree of skill and dimensions of the job of staff in two categories is required to be compared. Therefore, reliance on judgment in Greaves Cotton, which does not deal with the issue of payment of wages to contract workers, is totally misplaced.

(iii) Petitioners have relied upon the Full Bench Judgment of

Andhra Pradesh High Court in R.C.C. (Sales) Private Ltd. (supra) in support of their contention that in a beneficial welfare legislation where there is no express prohibition against contracting out, the right in common law to waive a right or advantage cannot be dispensed with, even if it is likely to infringe any public right or public policy. The issue before the Full Bench of the Andhra Pradesh High Court was whether the parties were entitled to contract out of the beneficial provisions of the Employees State Insurance Act, 1948. The question has been answered in the negative holding that statutory obligations/rights under the ESI Act cannot be contracted out by the employer and the employee/union and that such contracts are void and unenforceable. The issue before the Andhra Pradesh High Court was about the validity of a contract between employer and employees (union). Before us, there is no dispute upon validity of an agreement registered under the provisions of the BIR Act, 1946. Rane 32/32 WP-944-2015 Infact, the Petitioners have waived off their right to challenge that agreement by not adopting any proceedings in respect thereof. The contract therefore is valid and binding under the provisions of Rule 25(2)(iv) (a) of the Maharashtra Rules, 1971. The judgment in R.C.C. (Sales) therefore has no application to the present case.

43. Thus, both on counts of existence of a registered agreement with a representative union governing payment of wages to contractual workmen as well as dissimilarity in the nature of work performed by two categories of workmen, no case is made out by Petitioners for interference with the decisions of ALC.

44. Resultantly, we find the impugned orders passed by the ALC to be unexceptionable. The petition filed by petitioners is devoid of merits. It is dismissed without any orders as to costs. Rule is discharged. (SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)