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TMI Blog1987 (3) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... overseer Sri R. B. Singh. The respondents were issued gate passes for that purpose which indicated that they were the workmen of the Indian Airlines. The respondents were paid wages on the basis of vouchers till September 1981. However, thereafter the petitioner changed the mode of payment of wages in order to deprive them equal wages and other benefits provided to other workmen employed by the petitioner. The petitioner, Therefore, selected four persons namely S/Sri Pratap Bailey, Naresh Kumar Saxena, Devinder Singh and Mukesh Chand who were given the total amount of earned wages payable to the respondent workmen including their own wages instead of making payment to the respondent workmen individually and described these four workmen as contractors. The petitioner wrongly terminated the services of the respondents with effect from 13 July, 1982, and refused to pay earned wages to the workmen from 1 June, 1982 to 12 July, 1982 and also refused to pay leave wages similar to the other workmen employed by the petitioner and doing same type of work. A joint application was, Therefore, made under S. 33C(2) of the Act claiming earned wages with effect from 1 June, 1982, to 12 July, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the contractors had the right to the same wages as are paid or payable to the similar category of employees employed by the petitioner on an application under S. 33C(2) of the Act, particularly because the very existence of the right of the respondents to claim the wages had first to be adjudicated and the Labour Court had no jurisdiction to adjudicate upon this right. Secondly, it was contended that assuming the respondents could claim this benefit by way of an application under S. 33C(2) of the Act, and the Labour Court could inquire into the existence of that right, even then the same could be claimed only from the contractors and not from the petitioner because there is no relationship of master and servant between the petitioner and respondents 2 to 20. 6. The scope and jurisdiction of the Labour Court under S. 33C(2) of the Act is well settled. The Labour Court can inquire into the existence of the right of the workman to claim a benefit in terms of money but while conducting this inquiry, which is incidental in nature, the Labour Court cannot arrogate to itself the functions of the Industrial Tribunal and entertain a claim which is based on a right which is the subject-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion on an application under S. 33C(2) of the Act. Learned counsel referred to the judgment of the Supreme Court in B. H. E. L. Workers' Association, Hardwar, and others v. Union of India and others (1985-I-LLJ-428) in support of this contention. 9. I fail to understand how the observations of the Supreme Court in the case of B.H.E.L. Workers' Association and others (supra), support the contention of the petitioner. In fact, it supports the case of respondent workmen. The Supreme Court has observed that the question whether the work done by the contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the Chief Labour Commissioner under the proviso to rule 25(2)(v)(a) of the Rules. In that case, however, the question whether the work done by the workmen employed by the contractor was the same type of work as done by the workmen directly employed by the principal employer in B.H.E.L. Hardwar, had yet to be determined. In the present case, as per the finding recorded by the Labour Court, there is no dispute in this regard. In the present case, it is not disputed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Labour Laws. If there is any dispute with regard to the type of work, the dispute has to be decided by the Chief Labour Commissioner (Central) ... Thus, the workmen employed by the contractor are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate industrial and labour laws. This means that if the workers directly employed by the petitioner can claim the wages due to them by moving an application under S. 33C(2) of the Act, the workers employed by the contractors are also entitled to claim the wages due to them by moving an application under S. 33C(2) of the Act. 11. The next question that has to be considered is whether a claim for equal wages can be made against the principal employer-petitioner or can the claim be made against the contractor alone. In my opinion, this question is no longer rest integra. Even prior to the enactment of Act of 1970, the Supreme Court in Hussainbhai v. Alath Factory Thozhilali Union and others 1978-II-LLJ-397, while dealing with a similar contention observed as follows in Paras 3, 4, 5 and 6 at pages 398 and 399 : 3. Who is an employee in Labour Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the life, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the may of legal appearances. 6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the management cannot snap the real-life bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off. This position has not changed because of the enactment of the Act of 1970. After the Act of 1970 came into force the position is further clarified. Section 21 of the Act of 1970 which deals with payment of wages to the contract labour reads thus : 21 (1) A contractor shall be responsible for payment of wages to each wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he wages the principal employer is responsible to make the payment. 13. In my view, Therefore, the contract labour employed by the contractor can claim wages either from the contractor or from the principal employer and if the claim is made from the principal employer under sub-section (4) of S. 21, the principal employer is bound to pay the wages and thereafter recover it from the contractor as provided in the sub-section. 14. It is not disputed that the petitioner Indian Airlines is the principal employer. Therefore, in my opinion, the petitioner being responsible and liable to pay the wages under the Act of 1970, the claim of wages made by respondents 2 to 20 against the petitioner is maintainable. 15. In my opinion, the order of the Central Government refusing to make a reference in regard to the dispute raised by respondents 2 to 20 regarding their alleged wrongful termination does not change the position in any manner. In any event, learned counsel for respondents 2 to 20 has made statement at the Bar that these respondents have challenged the order of refusal of the Central Government in this Hon'ble Court by way of a separate writ petition under Article 226 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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