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Mehrotra Enterprises Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1978)IILLJ65All
AppellantMehrotra Enterprises
RespondentState of U.P. and ors.
Excerpt:
- - as well as messrs. 2 1227 wherein it has been observed as fellows :it is well-settled that in construing the provision of a welfare legislation, courts should adopt, what is described is a beneficent rule of construction. the above meanings clearly bring out the distinction between the two expressions 'same' and 'similar'.an object or an operation can be said to be the same as another, if it is absolutely identical to it, or resembles it in every way. in webster's dictionary 'skill' has been defined as the ability to use one's knowledge effectively and readily in execution or performance of the work with the dexterity, and also coordination in the execution of physical and mental task, in the standard dictionary 'skill' has been defined as technical ability in execution or.....p.n. bakshi, j.1. messrs. indian explosives ltd., fertilizer division deals in the manufacture and sale of the chemical fertilizer popularly known as urea. its factory is situate at panki, about 13 kms. from kanpur. urea is manufactured in the factory and is packed in polythenelined gunny bags in the factory premises by mechanised operations. thereafter these bags of urea, each weighing 50kgs. are diverted by mechanised conveyor belts to the railway siding. the company aforesaid engages a permanent labour force for loading these packed urea bags from conveyor belt to the railway wagons. according to the case of the company, this permanent labour force known as 'loaders' are engaged in specialised operation of unloading these urea bags from the conveyor belts to the wagons. each loader.....
Judgment:

P.N. Bakshi, J.

1. Messrs. Indian Explosives Ltd., Fertilizer Division deals in the manufacture and sale of the Chemical Fertilizer popularly known as urea. Its factory is situate at Panki, about 13 Kms. from Kanpur. Urea is manufactured in the factory and is packed in polythenelined gunny bags in the factory premises by mechanised operations. Thereafter these bags of urea, each weighing 50kgs. are diverted by mechanised conveyor belts to the railway siding. The company aforesaid engages a permanent labour force for loading these packed urea bags from conveyor belt to the railway wagons. According to the case of the company, this permanent labour force known as 'loaders' are engaged in specialised operation of unloading these urea bags from the conveyor belts to the wagons. Each loader handles one bag at a time. The conveyor belt being at a height of 5'. the bag is taken on the shoulder by the loader and it is stock piled in the wagon. A group of four loaders work continuously at a time on one conveyor belt. The time interval between the coming of successive bag is 3 seconds. Thus 20 bags are loaded In a minute by the group of four of the company's loaders. Since the capacity of the railway wagon is normaly 24 Tons, it takes about 24 minutes to complete the loading of one wagon with urea bags of 50kg. weight each. After completing the loading of one wagon, the four loaders take rest and are replaced by another batch of four loaders. In case wagons are not available the company's loaders load these bags in trucks. The loaded truck is then sent either directly to the destination outside the factory from the packing plant or in the alternative to the Non Duty Paid Shed (N.D.P.S.) where these bags are again unloaded by the labour employed by the contractor Messrs. Mehrotra Enterprises. One truck is unloaded by a group of 16 labourers. The bags are unloaded by the contractor's labour either on their back or on their head to be stock piled in the godown. There. after on the availability of wagons or trucks, the contractor's labour again load them therein for onward destination.

2. The Contract Labour (Regulation and Abolition Act, 1970 (Act No. 37 of 1970) was passed by Parliament and received the assent of the President on 5th September, 1970. Under Section 35 of the said Act the State of Uttar Pradesh hag framed 'The Uttar Pradesh Contract Labour Regulation and Abolition) Rules, 1975' On 10th March, 197? the Fertilizer Workers' Union filed an application before the Labour Commissioner, U.P. alleging that the workeas employed by the contractor Messrs. Mehrotra Enterprises should be paid the same wages as are paid to the workmen of the Indian Explosives Ltd. under the provisions of Rule 25(2)(v) of the aforesaid Rules. Notice was issued on this application on 24th March, 1977. The Fertilizer Workers' Union filed their written statement on 4th April, 1977. Thereafter the Indian Explosives Ltd. as well as Messrs. Mehrotra Enterprises filed their written statement on 12th April, 1977. It appeals that as per directions of the Labour Commissioner Sri P.S. Misra, Conciliation Officer, Kanpur Region, Kanpur made a spot inspection and submitted his report to the Labour Commissioner. The record of the case was summoned by us and we have perused this report Thereafter on 28th April, 1977 the Labour Commissioner, U.P. gave an award by which he held that the labour employed by the company and that employed by the con-tractor ware engaged in similar kind of work and as such they were entitled to the benefit of Rule 25(2)(v) of the U.P. Contract Labour (Regulation and Abolition Rules, 1975. Aggrieved there by Writ Petition No. 1606 of 1977 has been filed by Mehrotra Enterprises (hereinafter called the contractor) and Writ Petition No. 1607 of 1977 has been filed by the Indian Explosives Ltd, (hereinafter called the company). Both these writ petitions are being disposed of together by this common judgment.

3. We have heard learned Counsel for the parties at considerable length and have also carefully considered the documents on the record. The petitioner's counsel has very strenuously argued that the finding of the Labour Commissioner to the effect that the company's loaders and the contractor's labour were doing the same and similar kind of work, is legally erroneous on the face of the record. He has urged that the labour employed by the company is skilled labour while that employed by the con. tractor is unskilled labour. He has made several references to the Encyclopaedia Britannica is support of the proposition that the loaders of the company being skilled labour were entitled to higher wages than the unskilled labour employed by the contractor to which reference shall be made hereinafter. He has attempted to define the concept of the word ''skill' with reference to various dictionaries dealing with the subject. He has urged that the company's labour in handling the urea bags on his shoulder from the conveyer belt displays a greater degree of promptness, attention and timely movements which almost matches human performance with the speed of a machine. This synchronization, he submits, is the result, of great skill on the part of the company's leaders which distinguishes them from the loaders of the contractor. On the other hand, the respondents counsel and the counsel for the State have urged that the Labour Commissioner was fully justified in extending the benefit of Rule 25.21(v) to the labour of the company in(sic) as the loaders of the contractor performed a similar kind of work as the loaders employed by the company. Reliance for this purpose was placed to a great extent upon the report of spot inspection made by the Conciliation Officer. Respondents counsel have also urged that this Court will not interfere in the exercise of writ jurisdiction with the findings arrived at by the Labour Court unless it is of the opinion that the said Court has acted in excess of its jurisdiction or without jurisdiction or there is a legal error apparent on the face of the record. They have also strenuously argued that in construing welfare legislation the Court should abopt she beneficial rule of construction for farthering the policy and object of the act in favour of the employees.

4. Before dealing with the submissions made by the parties it is necessary to mention that the Correct act Labour (Regulation and Abolition) Act, 1970 was passed to regulate the employment of contract labour in certain establishments with the avowed object of improving their conditions. It applied generally to every 'establishment' and to every 'contractor' where twenty or more than twenty workmen are employed or were employed on any one day of the preceding twelve months. The Act, however, did not apply to establishments where work of intermittent casual nature were performed. But if in an establishment work was performed for more than 120 days in the preceding twelve months, or if in an establishment of a seasonal character such a work was performed for more than 60 days, then the Act was applied to such situations. It is thus obvious that this welfare legislation was intended to cover an extremely wide field of employment of labour in industrial operations. A number of provisions have been introduced in this Act for improving the condition of labour. In construing the provisions of the Act and the rules made thereunder. We have to bear in mind the following observations of their Lordships, of the Supreme Court in The Warkmen of M/s Firestone Tyre & Rubber Co. of India v. Ltd. v. The Management and Anr. 1(sic) 73-I L.L.J. 278; A.I.R. 1973 S.C. 2 1227 wherein it has been observed as fellows :

It is well-settled that in construing the provision of a welfare legislation, Courts should adopt, what is described is a beneficent rule of construction. If the constructions are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees, has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the service condition of an employee, demands an interpretation liberal enough to achieve the legislative purpose....

5 Rule 25(2)(v) framed by the State of Uttar Pradesh under Section 35 of the Act runs thus :

25(1) Every licence granted under Sub-section 2(1) of Section 12 shall be in Form VI.

(2) Every licence granted under Sub-rule (1) or renewed under Rule 29 shall be subject to the following conditions, namely.-

(i)...

(ii) ...

(iii) ...

(iv) ...

(v) (a) in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the game as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work.

Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the labour Commissioner, U. P., whose decision shall be final ;

(b) in other cases the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor shall be such as may be specified in this behalf by the Labour Commissioner, Uttar Pradesh.

Explanation,-'While determining the wage rates, holidays, hours of work and other conditions of service under Clause (b) above, the Labour Commissioner, U. P., shall have due regard to the wage rates, holidays, hours of work and other conditions of service obtaining in similar employment ;..

From a perusal of the aforesaid rules it appears that two types of labour disputes are contemplated therein. Rule (v) (a) relates to a situation wherein in the same establishment the company's labour and the contractor's labour, even though they may be performing the same or similar kind of work, are guided by different conditions of service. In such a case the disagreement has to be resolved by the labour Commissioner. Rule (v)(b) on the other hand, relates to a situation where a dispute arises with regard to the conditions of service of a contractor's labour. Here also the Labour Commissioner has been authorised to settle such a dispute on the basis of service conditions obtaining in similar employments as laid down in the subsequent rules.

6. We are here concerned with the question whether the work performed by the company's loaders at the conveyor belt is the same or similar kind of work as performed by the labour of the contractors at the godown (NDPS). In Websters Dictionary (1961 Edition) page 2007 the word 'same' means :

(1) resembling in every way,

(2) not different in relevant essentials at one time,

(3) conforming in every respect,

(4) having one nature or individuality, In the same dictionary at page 2120 we have the moaning of the word 'similar' as :

(1) having characteristics in common.

(2) very much alike in substance or structure.

The above meanings clearly bring out the distinction between the two expressions 'same' and 'similar'. An object or an operation can be said to be the same as another, if it is absolutely identical to it, or resembles it in every way. But if there are a few points of dissimilarity existing between the two, yet on the whole the majority of symptoms or characteristics are alike or common, then they would be called similar. As a matter of fact, the work similar connotes the existence of two objects with some dissimilarities if there were no dissimilarities it would be the same kind of object. But the preponderance of similarities as compared with the microscopic or insignificant dissimilarities entitle that object to be called of a similar kind. We are supported in our view by a decision of the Punjab High Court reported in Devo Sharma v. Laxmi Narain . On a difference of opinion between Khosal and Kapur, JJ. it was held by Justice Falshaw that :

Although the word 'same' is frequently loosely used in the sense of 'similar', the word 'similar' never means 'same' in its strict sense, and in fact it cannot, since similarity implies the existence of two or more objects for comparison.

7. We are thus clear in our minds that there is a vast distinction between the expressions 'same and similar'. It is to be noticed that both these words have been used in Rule 25(2)(v)(a) The Legislature must be imputed with the intelligence of using both these expressions with a purpose. If it was intended that absolutely identical kind of work employed by the company and by the contractor should be dealt with at par then the expression similarity of work would not have been used. The Legislature had in its mind a situation that the work may not be exactly the same, but may be very much alike or akin and in those circumstances it found no justification for differentiating in the service conditions of the labour employed by company and by the contractor. We have, therefore, to see in the instant case whether the work performed by the company loader at the conveyor belt in loading 50 kg bags of urea in the railway wagoa or the truck differs materially from the work performed by the contractor's labour in unloading the same of urea from the truck to the godown and loading them again in the truck or the railway wagon, as the case may be,

8. It is nobody's case that the company's loaders have any hand in the operation of the conveyor belt which brings the bags of urea from the packing plant to the loading point at the railway siding.

9. The conveyor belt is operated upon, in all probability, by different sets of technical workmen. There is nothing on the record to indicate that the company's loaders play any part also in stopping the functioning of the conveyor belt, in case it is too fast or the bags have accidently been missed by them, leading to difficulties in loading the railway wagon. At a time on one conveyor bolt four company's workmen are at work. Each bag reaches there after three seconds. Conveyor belt is 5' high. Company's loader takes the bag on his shoulder and immediately proceeds 3 to 4 yards to stock pile the bag in the wagon. In the meantime the second bag arrives and the second loader reports the same process. In this way, each workman, out of the four stationed together to work at the conveyor belt, gets 12 seconds to stock pile the bag and to come back again to the conveyor belt to lift the next bag. Twelve bags are piled one on the top of the other in ascending scale. In case where company's loaders have to load a truck only two loaders of the company are required to catch the bag and to drag it in order to drop it on the floor without any support of the head, back or the shoulder. It is thus clear that manual effort is put in by the company's loaders, either to take the bag on his shoulder from the conveyor belt, which in our opinion, would be this process of unloading, and to load the same in the railway wagon, or in the alternative to drag the bag with their hands and to drop it in the truck No mechanised process is involved in this operation.

10. As compared with this the contractor's loaders are also engaged in batches of 16 in unloading the truck, by carrying these bags from the truck to the godown, either on their head or on their backs. The distance they have to cover in the godown is upto 10 yards. They stock pile 14 bags one on top of the other. In the process of lifting the bag they have to bend cows and they traverse a larger distance before unloading them. The company loaders have also to load these bags therein, either in the wagon or in the truck, as may be required, at a subsequent stage. Thus the manual effort put in by the company's labour is more strenuous, though the work is similar in nature. We are unable to find any material distinction in the different types of manual labour which is employed by the company and the contractor.

11. It is true that the work of the company's labour is permanent, while the contractor's labour is used intermittently, as and when the occasion arises But the kind of work is similar. We have considered the output charts which have been filed in those petitions. In our opinion, it is cot possible to mathematically calculate with exactitude the comparative output of the company's labour and the contractor's labour, having regard to the circumstances prevailing in the instant case. The contractor's labour have to cover double the distance in the godown and have to put in much more effort in loading and unloading the bags. In any case, even if it is assumed for a moment that the output of the company's labour is somewhat more than the contractor's labour, that would not affect the question of similarity in the nature of work, particularly when the greater output, if any, on the part of the company's labour is attributable to a large extent to the contribution of the conveyor belt. The claim of the contractor's loaders, therefore, cannot be thrown out on this ground.

12. Great stress had been laid by the petitioners' counsel on the alleged 'skill' which is said to be employed by the company's labour. It is urged that the company's labour has to synchronize his body movements with the conveyor belt. He has to time the bags on his shoulder with speed and dexterity and has to place the same En the wagon within a stipulated period of time and to return back to the conveyor belt for handling the next consignment. This pro-cuss it is urged, is a specialised process involving great skill on the part of the company's workmen.

13. Reference has been made to the meaning of the word ''skill' in various dictionaries. In Webster's Dictionary 'skill' has been defined as the ability to use one's knowledge effectively and readily in execution or performance of the work with the dexterity, and also coordination in the execution of physical and mental task, In the Standard dictionary 'skill' has been defined as technical ability in execution or performance of a task, and derterity in execution thereof. In Corpus Juris Seoundum, volume 80, at page 1314 'skill' has been described as special or peculiar knowledge derived from experience, and it is not necessarily limited only to mechanical or professional knowledge. On the basis of the aforesaid meanings it is urged that the company's labour has acquired a specialised experience of taking the bag on his shoulder from the conveyor, belt and stock piling it in the wagon. In this connection a reference to the report submitted by the Conciliation Officer, Kanpur Region, referred to above, would be relevant. I quote acre with the relevant portions of the report :

On being asked the employer's representative informed that there is no scheme, much less approved, for the training of the company loaders, at the time of recruitment, these loaders were just like ordinary palledars with no back log of skill for mechanised hadling(sic) of bags. No theoretical training was imported to them at any stage of their employment. The only training consisted in directing them to do the mechnised loading in a particular way. Because of routine job practice they can now do mechanised handling smoothly and efficiently.... But such a synchronization does not require undue haste on the part of any loader.... Kinetic handling undoubtedly demands of a loader to be sufficiently attentive and agile in supporting the bag lest it falls on the ground unattended. But the fall of the bag on the ground simply because no loader was present at the opportune moment to handle it, is not likely to paralyse the entire operations of the packing plant or cause heavy production loss as contended by the contractor in para (d) of his written statement.... The Mechanised handling certainly requires promptness, attention agility and timely movements, particularly because there is no option to match the human performance with the speed of the machine. Beyond that, however, no extraordinary skill or dexterity is required. Barring a little bit of routine skill, the entire operation is predominently manual like the one carried out by the labour employed by the contractor. The handling of bags on the conveyor belt no doubt requires comparatively higher degree of dexterity and skill, but it also mitigates the rough edges of inconveniences and strains As the bags are to be supported by the company loader in a standing and erect position and not to be lifted in a bent position from the ground. The company loader gets the bag just near the edge of the wagon and has to throw it at short distance of 3 to 5 yards, while the contractor's labour has to lift the bag on the head or back and cover a distance upto 10 yards as contended by the Union Secretary in para 6 of the written statement.

The company loaders stock pile 12 bags and upon another in an ascending scale, while the contractor labour keep 14 bags in the above order and has thus to lift the bag with the help of his hands to comparatively greater height.

In the case of truck loading by the company loaders the conveyor belt can be mechanically propelled by a push button to any depth in the body of the truck. In truck loading by the company loaders two carriers of the bags are just to be caught and dragged onward to be dropped OB the floor without any support of head, back or shoulder.

On enquiry it was found that I.E.L. loaders carry the bag on one shoulder from the terminal point of the conveyor belt to the wagon, but while loading the truck in the event of non-availability of wagon, they neither handle the bag on the back nor on the shoulder, but only pall the bag and drop it on the appointed place. The pulling of bag is done by two loaders jointly. Contractor Labour does the unloading of the bag mainly on the head....

As regards loading by shoulders, it may be mentioned that no other alternative is available to I.E.L. loader as he has to take the bag from the conveyor belt. The con. tractor labour has to take on his head the bag from the truck while unloading it, and on his back from the ground while loading the same. He has no mechanical compulsion of handling the bag in any particular way but has choice of either handling it on the header back. The I.E.L. loader no doubt handles the unbalanced load on one shoulder, but it is not any type of precarious balance necessitating the application of remarkable skill or physical discipline....

14. The facts on spat enquiry on this score are as below :

1. Bath I.E.L. loaders and contractor labour handle urea bags of 50kg at a time.

2. While mainly I.E.L. loaders do loading of wagons they also do truck loading, when wagons are not availably Four separate conveyors are utilised for supplying the bags to I.E.L. loaders for loading bags in the trucks.

3. Both type of workers, i.e. , company loaders and contractor labour do wagon loading and truck loading although wagons are mainly loaded by I.E.L. loaders while it is a subsidiary work of the contractor labour.

4. Both types of workers handle one bag at a time.

5. Both type of workers enjoy facilities under Employees' State Insurance and Employees' Provident Fund Scheme.

The above report indicates that neither any specialised education or training is given to the company loaders, nor is any specialised education or training is given to the company loaders, nor is any specialised skill involved on their part in loading the bags in wagon. The contractor's labour can in course of time perform the same act of loading with an equal amount of dexterity and synchronization. We are, therefore, of the opinion that no particular specialised skill is involved in this operation of unloading from the conveyor belt on the part of the company's loaders.

15. As mentioned already certain portions of Encyclopaedia Britannica were cited before us. At one place in Vol. 23 (1965 Edition) at page 271 is has been observed:

Wages in a modern industrial economy differ from person to person and from one locality and region to another, both within the same occupational level and among occupations. Wage differentials, that its, differences in remuneration received by the various wage earners, are of many kinds and stem from a number of causes.... Some involve dirt, noise, high temperature, monotony hard physical labour, irregular employment, low social prestige or other undesirable features. For such work, a higher wage rate may be necessary to attract labour from more desirable jobs requiring similar skills.

16. Such is not the situation in the instant case. The circumstances and the conditions under which the company labour and the contractor labour are working are identical. In our view, therefore, much assistance cannot be drawn from these observations. It is true that modern methods of production involve increased mechanisation and automation. Devices to move materials from one work station to the next Include conveyor-belt systems, monorail trolleys, and various pulley arrangements. The conveyor belt system is being utilised by the company. But at a certain stage, in the circumstances prevailing in the instant case, manual labour has to be resorted for the purpose of handling the finished goods for transport to their destination.

17. Reference has also been made to the Encyclopaedia Britannica, Vol. 10, 1977 Edition, wherein it has been observed :

Regional differencee also exist because work of the same kind frequently commands different rates of pay in different regions.

These considerations do not arise in the present case.

18. We have also been referred to a report of the Central wage Board for Engineering Industries, Bombay December, 1968, issued by the Government of India, Ministry of Labour, Employment and rehabilitation, Department of Labour and Employment. Emphasis has been laid on qualifications which are relevant for job evaluation. It has been mentioned therein that ;

In applying point system following attributes should be taken into account :

(i) Education.

(ii) Experience involved.

(iii) The degree of skill.

(iv) Strain of work.

(v) The responsibility undertaken.

(vi) The physical and mental requirements.

(vii) The disagreeableness of the task.

(viii) The training required.

(iv) The hazard attendant on the work.

(x) The fatigue involved.

19 We have no doubt that these considerations, which have been laid down for the assessment of fair wages for labour are worthy of notice. They may be relevant for the Labour Commissioner in deciding a dispute with regard to the service conditions of workmen of the contractor under Rule 25(2)(v)(b) of the Rules. But in the facts and circumstances of these wit petitions, we are concerned with a different question.

20. On a consideration of the submissions of the learned Counsel and the documents on the record, we are of the opinion, that the contractor's labour are involved in a similar kind of work to that of the company labour and as such Rule 25(2)(v)(a) is fully applicable to the facts of the present case, as has been held in the award of the Labour Commissioner dated 28th April, 1977.

21. Before, however, parting with the case, we would also like to observe that one of the arguments of the respondents' counsel was that this Court will not issue a writ of certiorari on the ground that the findings arrived at by the Labour Commissioner are not acceptable to it. It is urged that the Labour Commissioner has held that the work of the contractor's labour is of a similar kind to the work of the company's labour. This is a question of fact and however erroneous it may be, no interference is called for. Since we are in agreement with the finding recorded by the Labour Commissioner on merits of the controversy, we do not consider it necessary to deal with this submission.

22. For the reasons given above, we are of the opinion that there is no merit in both these writ petitions which are accordingly dismissed with costs.


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