New Delhi, Jun 14 (ILNS) The Calcutta High Court has imposed a cost of Rs 51,000 on Bharat Sanchar Nigam Limited (BSNL) for suppression of the facts. The cost is at the rate of Rs 1000 per worker and has to be paid by cheque within 30 days. These petitioners are members of a union called BSNL Nationalist Thika Workers’ Congress.
Over and above the cost, Justice Abhijit Gangopadhyay on Friday also directed that the principal employer being BSNL, the Chief General Manager of BSNL, Calcutta Telephones has to clear the entire dues from April 2019 till date in respect of salaries/wages of the petitioners within a period of 60 days from the date of pronouncement of this judgment
The Court observed: “The prescribed period in section 21(4) of the Contract Labour (Regulation and Abolition) Act, 1970 is not more than a month. According to section 3 (35) of the General Clauses Act ‘month’ means a month reckoned according to British Calendar. Therefore, according to this calendar the salary was required to be paid to the labourers who worked under the principal employer as contractors’ employees. Therefore, petitioners who were working under the contractors are required to be paid as per the 1970 Act by the principal employer from April 2019.”
The case of the petitioners is that the corporate office of BSNL did not release any fund to the local office and as such no fund could be transferred to the contractors and their wages were not disbursed. Therefore, they have prayed that in terms of section 21(4) of the Act, 1970, the principal employer being the BSNL, it should pay the salary/wage of the contract labours as BSNL is the principal employer.
The petitioners’ further case was that they do not come under the purview of the Industrial Disputes Act, 1947 and therefore for enforcing their right under the 1970 Act as contract labours the petition is maintainable.
The petitioners also stated that for making payment to them the Regional Labour Commissioner also issued letters to BSNL requesting payment to the contract labours in June, 2019 and July, 2019 and despite that, no payment to them has been made by BSNL.
Justice Gangopadhyay had earlier directed the CGM, BSNL, Calcutta Telephones to file a report in the form of an affidavit disclosing the reasons for such non payment. Pursuant to the direction of the court such a report was filed in the form of an affidavit which was affirmed on December 23, 2020.
Regarding maintainability of the writ application, no objection has been raised by BSNL. The court found that it has not been denied by BSNL that BSNL is the principal employer. It has also not been denied by BSNL that the salary/ wages of the petitioners were not paid from April, 2019.
It has been disclosed in the said report that the contractors under whom the petitioners work had not submitted invoice/bill for August 2019 onwards and the invoice for June 2019 onwards respectively.
Thus, there is no denial of the fact as appears from the said report that salaries/wages of the petitioners are due from April 2019 and that BSNL is the principal employer within the meaning of the section 21(4) of the 1970 Act.
Section 21(4) of the 1970 Act is as follows: “In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.”
Rule 64 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 prescribes that no wage period shall exceed one month.
Anil Kumar Gupta, Advocate for the BSNL, relied upon one judgement reported in (1989) 2 SCC 116 (Bareilly Development Authority versus Ajai Pal Singh & Ors). He submitted that his client – the authority, has entered into ordinary contract with private persons and the parties should be governed by the contract and aggrieved party cannot seek reliefs under Article 226 for the breach of contract.
The court clarified that here in this case, it is not the contractor (with whom the authority being BSNL entered into a contract) who has come to Court claiming the contractual amount. Here the petitioners are the contract labourers, who are covered by Section 21(4) of the 1970 Act.
The 1970 Act was enacted with an object inter alia, for regulating the service conditions of contract labour where abolition is not possible. Payment of wages is essentially a matter comes within the meaning of service conditions.
The object and reason of the said 1970 Act has also taken care of the defaults in the matter of wage payment and that is why a separate chapter being chapter VI entitled wages has been framed by the Central Rules of 1971 under the 1970 Act.
Further, the BSNL relied upon another unreported Judgement dated December 24, 2019 passed in FMA 1 of 2020, and emphasised that the claim of the writ Petitioners in the connected writ application is required to be proved.
(i) upon cogent evidence and
(ii) if demonstrated that BSNL was not entitled to withhold any payment on account of the bills raised by the writ Petitioners.
“I hold this as an unusual unfair practice on the part of the respondent BSNL and those two judgments have no value and applicability in the present controversy,” the Court said. ILNS\SS\SS\SJ\RJ