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THE CONTRACT LABOUR (REGULATION & ABOLITION) ACT, 1970

 

1.    In addition to regular employees, the organization is engaging a contractor who is employing more than 20 workers. However, it has not issued Form V for taking licence and, as such his workers, who have completed 240 days, are asking for regularisation absorption. What will be the consequences when there is no licence?

 

Solution:

 

The above technical lapse amounts to violation of provisions of the Contract Labour (Regulation & Abolition) Act for which the appropriate action can be taken but it does not mean that the workers of the contractor" be absorbed. As early as in 1991, the Supreme Court has held that in the absence of licence by the contractor, it would not justify its workers' absorption in service. Reference is also made to another case where it has been held that merely because the contractor, employing 20 or more than 20 workers was not having licence under the Contract Labour (Regulation & Abolition) Act, the Industrial Court cannot force direct absorption of such contract workers as per settled law by the Supreme Court.

 

1)    Dina Nath & Ors. vs. National Fertilisers Ltd. & Ors, 1991 (64) FLR 39 : 1992 LLR 46(SC)

2)    V.I.P. Industries Ltd. vs. Athar Jameel & Ors., 2010 LLR 9 (Born. HC)

 

 

2.    An employee has tendered his resignation voluntarily which has been duly accepted but now he has raised an industrial dispute alleging that the resignation was obtained forcibly and it was not voluntary. The matter lies before the Labour Court for adjudication. On whom does the burden of proof lies to establish as to whether the resignation is voluntary or not?

 

Solution:

 

It is settled law that the burden of proof alleging that the resignation was not voluntary will be upon the employee and not upon the employer. The Madhya Pradesh High Court has also clarified this aspect. In another case, the Allahabad High Court has also held that burden of proof will lie upon the employees alleging that their thumb impression / Signatures on blank papers were used as their resignations. Burden of proof will lies upon workman when he alleges that his resignation was obtained under duress.

 

             i.        Hira Mills, Ujjain vs. Babu and Two Others, 1998 LLR 524 (MP HC)

            ii.        Delta Engineering Co. (P) Ltd., Meerut vs. Industrial Tribunal-V, Meerut & Ors. 1998 LLR 622 (All. HC)

           iii.        Manager, M/s. Selection Synthetics Ltd. vs. Labour Court, Bhilwara, 2008 LLR 56 (Raj. HC)

 

3.    An establishment is covered by the Contract Labour (Regulation & Abolition) Act and the workers, as engaged through the contractor, are being paid wages which are not less than the minimum rates of wages. The Union, as representing such contractor's workers, has demanded that the wages to such workers should be at par with those as for their counterparts. What are the legal implications?

 

Solution:

 

Whether the respondents have a right to claim the same wages as their counterparts doing the same type of work but employed directly by the petitioner Indian Airlines. Section 35 of the Contract Labour (Regulation and Abolition) Act, 1970 invests the appropriate Government a power to make rules for carrying out the purposes of the Act subject to the condition of previous publication. Accordingly, the Central Government framed and published the Contract Labour (Regulation and Abolition) Central Rules, 1971, which are applicable in the present case. In a case where the type of work done by the workmen engaged by the contractor is the same as done by the workmen directly employed by the principal employer, the workmen employed by the contractor would be entitled to the same wages. Whether the respondents have a right to claim the same wages as their counterparts doing the same type of work but employed directly by the petitioner Indian Airlines. Section 35 of the Contract Labour (Regulation and Abolition) Act, 1970 invests the appropriate Government a power to make rules for carrying out the purposes of the Act subject to the condition of previous publication. Accordingly, the Central Government framed and published the Contract Labour (Regulation and Abolition) Central Rules, 1971, which are applicable in the present case. In a case where the type of work done by the workmen engaged by the contractor is the same as done by the workmen directly employed by the principal employer, the workmen employed by the contractor would be entitled to the same wages.

 

The proviso to sub-rule (v)(a) of rule 25(2) of the Contract Labour (Regulation and Abolition) Rules would come into operation only if there is a disagreement with regard to the type of work. When there is no such disagreement, sub-rule (v)(a) of rules 25(2) would be applicable. Under rule 25(2)(v)(b) of the Rules again if the work is not similar, the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor has again to be specified by the Chief Labour Commissioner (Central). In one case, the Allahabad High Court has held that a principal employer under the Contract Labour (R&A) has to ensure that contractor's workers are paid minimum wages. The proviso to sub-rule (v)(a) of rule 25(2) of the Contract Labour (Regulation and Abolition) Rules would come into operation only if there is a disagreement with regard to the type of work. When there is no such disagreement sub-rule (v)(a) of rules 25(2) would be applicable.

 

Under rule 25(2)(v)(b) of the Rules again if the work is not similar, the wage rates, holidays, hours of work and conditions of service of the workmen of the contractor has again to be specified by the Chief Labour Commissioner (Central). In one case the Allahabad High Court has held that a principal employer under the Contract Labour (R&A) has to ensure that contractor's workers are paid minimum wages.

 

General Manager, Aligarh Dugdh Utpadak Sahakari Sangh Ltd. (Parag Dairy) Sasni Hathras vs. Prescribed Authority, Minimum Wages and Dy. Labour Commissioner, Aligarh and Ors., 2009 LLR 316 (All. NC).