# F.C.I. & Anr v. State Of U.P. & Ors

- **Citation:** (2022) 2 ILRA 834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Writ C No. 23288 of 2021
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/f-c-i-anr-v-state-of-u-p-ors-47555
- **Pages:** 5

## Headnote

Law
-
Contract
Labour
(Regulation and Abolition) Rules, 1971 -
Rule
25(2)(v)(a)&(b)
-
Workmen
employed by the contractor - However,
the order for payment of wages was
passed directly to the Principle employer
- Validity challenged - Contractor was
not made party - Effect - Held, no order
could have been passed directly asking
the principal employer for making the
payment to the workmen who were
employed by the contractor. Since the
contractor himself had not been made a
party in the proceedings before the
Deputy
Chief
Labour
Commissioner
(Central), definitely no direction could
be
issued
to
the
contractor
and,
therefore, the direction which had been
issued to the principal employer could
not have also been issued at all - Held
further, if the contractor despite any
order
being
made
under
Rule
25(2)(v)(a) &(b), did not pay wages,
then the principal employer could be
made liable to pay the wages (Para 15)
B. Constitution of India - Article 226 -
Writ - Maintainability - Contract Labour
(Regulation and Abolition) Rules, 1971 -
Alternative remedy to file appeal u/s 15
of the Act - Impugned order was passed
by the same authority, before whom the
appeal is to be filed - Effect - Held,
since the Appellate Authority was the
Deputy
Chief
Labour
Commissioner
(Central) and the order was also passed
by
the
Deputy
Chief
Labour
Commissioner, no Appeal would lie -
High Court entertained the writ petition.
(Para 17)
Writ petition allowed. (E-1)

## Text

834 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petition itself it is reflected that around
2016 claims of workmen / employees were
received, but on perusal of the books of
accounts
and
record,
the
Liquidator
admitted
claims
of
6337
workmen/
employees. Therefore the details of all the
workmen of the petitioner-Company are
with the Liquidator.

64. The lay-off having been held to be
unjustified and illegal by the Industrial
Tribunal, what follows is that all the
workmen who were not employed after
lifting of the lock-out with effect from
15.04.2007 and were laid off, would be
entitled to full wages, allowances and
consequential benefits as directed by the
Industrial Tribunal. Any amounts received by
them towards lay-off compensation shall be
adjusted. However, as observed above, the
workmen would only be entitled to receive /
recover their dues in accordance with the
provisions of Section 53 of the Code.

65.

Subject
to
the
aforesaid
observations, this writ petition is disposed of.
----------
(2022)02ILR A834
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ C No. 23288 of 2021

F.C.I. & Anr. ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Kumar Dixit, Ashok Mehta (Sr.
Advocate)

Counsel for the Respondents:
A.S.G.I., Sri Gaya Prasad Singh, Sri Shri
Krishna Mishra, Sri Ritesh Kumar

A.
Labour
Law
-
Contract
Labour
(Regulation and Abolition) Rules, 1971 -
Rule
25(2)(v)(a)&(b)
-
Workmen
employed by the contractor - However,
the order for payment of wages was
passed directly to the Principle employer
- Validity challenged - Contractor was
not made party - Effect - Held, no order
could have been passed directly asking
the principal employer for making the
payment to the workmen who were
employed by the contractor. Since the
contractor himself had not been made a
party in the proceedings before the
Deputy
Chief
Labour
Commissioner
(Central), definitely no direction could
be
issued
to
the
contractor
and,
therefore, the direction which had been
issued to the principal employer could
not have also been issued at all - Held
further, if the contractor despite any
order
being
made
under
Rule
25(2)(v)(a) &(b), did not pay wages,
then the principal employer could be
made liable to pay the wages (Para 15)
B. Constitution of India - Article 226 -
Writ - Maintainability - Contract Labour
(Regulation and Abolition) Rules, 1971 -
Alternative remedy to file appeal u/s 15
of the Act - Impugned order was passed
by the same authority, before whom the
appeal is to be filed - Effect - Held,
since the Appellate Authority was the
Deputy
Chief
Labour
Commissioner
(Central) and the order was also passed
by
the
Deputy
Chief
Labour
Commissioner, no Appeal would lie -
High Court entertained the writ petition.
(Para 17)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Siddhartha Varma, J.)

1. This writ petition has been filed for
the quashing of the judgement and order
dated 9.7.2017 passed by the respondent
no. 1.
2 All. F.C.I. & Anr. Vs. State of U.P. & Ors.
835

2. The respondent no. 2 had filed
before the respondent no.1 an application
under Rule 25(2)(v)(a)&(b) of the Contract
Labour (Regulation and Abolition) Rules,
1971, with regard to 40 workers working in
the FSD Basti under the District Area
Manager, Gorakhpur. The request was with
regard to the payment of wages to the 40
workers which according to the respondent
no. 2 ought to have been similar to the
wages which were being paid to workers
who
were
working
for
the
Food
Corporation
of
India,
FSD
Basti
(hereinafter
called
''the
FCI).
The
application which was filed by the
respondent no. 2 on 5.11.2018 was filed
with an allegation that the Union i.e. the
respondent no. 2 was functioning in the
FCI and watching the interest of its workers
working in the FCI employed directly or
through contract labour system. It had been
stated in the application that the union had
espoused the cause of its members who
were working in the depot at Basti for the
last several years and therefore they were
praying for pay parity for the casual
workers with the pay which was being paid
to the workers who were directly employed
under the FCI. In the application, it was
also stated that the Union also expected that
its member would also be regularized.

3.

The
petitioner
filed
its
objections/written
submissions
in
the
month of January 2019 and, in fact, prayed
that since the application of the Union was
filed under the Rule 25(2)(v)(a)&(b) of the
Contract
Labour
(Regulation
and
Abolition) Rules, 1971, it was understood
that the Union was asking for a payment
from the contractor who had engaged the
workers
on
behalf
of
the
principal
employer i.e. the FCI, and, therefore, if any
order had to be passed by the Deputy Chief
Labour Commissioner then it would be
against the contractor who had employed
the members of the Union. It was also
stated in the objection that since the
contractor who was an essential party was
not made a party, the case could not
continue. Still further it was alleged in the
objection/written
submissions
of
the
petitioner that the allegation that 40
contract labourers were working was false.
It was stated that the contractor had licence
only to employ 21 labourers and, therefore,
the allegation itself was misfounded. It was
alleged that by the filing the application,
indirectly, the Union wanted to get around
40 persons regularized.

4. After the objection was filed, an
inspection was also done on 15.3.2021 and
in the inspection which was done in the
presence of the Division Manager, FCI,
Gorakhpur; the Manager (S&C) FCI,
Gorakhpur; the Manager (D) FCI Basti; the
Manager (Contract) FCI R.O. Lucknow and
the representatives of the contractor M/s.
Radhey Shyam Yadav, Sri Rajeev Paswan,
22 persons were found working. The
Division Manager, FCI, Gorakhpur, had
informed the team which had made the
inspection that the workers were casual
employees and that they were being paid
their wages by the contractor as per the
wages fixed by the Government. The team
was also informed that since there were no
permanent workers at the place where the
22 workers were working there was no
question of any parity. However, the
complainant-Union was absent at the time
of inspection.

5. Despite the objection made by the
petitioner,
the
Deputy
Chief
Labour
Commissioner (Central), the respondent no.
1, passed an order on 9.7.2021 directing the
petitioner FCI to identify and ensure the
payment of wages to the contract labourers
836 INDIAN LAW REPORTS ALLAHABAD SERIES
who were employed at the FSD Basti on
the basis of the register of wages. It was
also directed that any difference between
the wages which were being paid and the
wages which ought to have been paid was
to be made good to the workers.

6. The petitioner instead of filing any
Appeal which is provided under Section 15
of the Contract Labour (Regulation and
Abolition) Act, 1970, approached the High
Court directly as the Appellate Forum
which has been provided by the notification
dated
28.12.2016
by
the
Central
Government itself was the Deputy Chief
Labour Commissioner (Central), whose
order has been impugned in this writ
petition. Furthermore, learned counsel for
the petitioner submitted that since the order
impugned was so patently illegal as it was
filed without the impleadment of the
contractor that no useful purpose would
have been served by filing any Appeal.

7. The petitioner while assailing the
order
of
the
Deputy
Chief
Labour
Commissioner dated 9.7.2021 essentially
argued that the application which was filed
under Rule 25(2)(v)(a)&(b) of the Contract
Labour (Regulation and Abolition) Rules,
1971, itself was not maintainable under the
Rule 25(2)(v)(a)&(b) of the Contract
Labour (Regulation and Abolition) Rules,
1971. If the contractor under whom the
workmen were employed was not paying
wages which were similar to the payments
which were being made by the principal
employer then a direction could only be
issued to the contractor directing him to
pay salaries to its labourers which would be
similar to the salaries which were being
given to the workers who were directly
employed by the principal employer i.e. the
FCI.

8. Learned counsel further, therefore,
argued that without the impleadment of the
contractor no order could have been passed
under Rule 25(2)(v)(a)&(b) of the Contract
Labour (Regulation and Abolition) Rules,
1971.

9. Still learned counsel for the
petitioner submitted that in the garb of the
order which had been passed by the Deputy
Chief
Labour
Commissioner,
the
respondent no. 2 virtually was praying for
the regularization of its member. Since the
learned counsel for the petitioner read out
the provisions of Rule 25(2)(v)(a)&(b) of
the Contract Labour (Regulation and
Abolition) Rules, 1971 they are being
reproduced here as under:-

Rule 25(2)(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
same as applicable to the workmen directly
employed by the principal employer of the
established 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
[Deputy
Chief
Labour
Commissioner
(Central)];

Rule 25(2)(v) (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 [Deputy Chief Labour
Commissioner (Central)];
2 All. F.C.I. & Anr. Vs. State of U.P. & Ors.
837

Explanation:-
While
determining the wage rates, holidays, hours
of work and other conditions of service
under (b) above, the Deputy Chief Labour
Commissioner (Central) shall have due
regard to the wage rates, holidays, hours of
work and other conditions of service
obtaining in similar employment;

10.

Learned
counsel
for
the
petitioners further argued that since the
facts stated in the application were
diametrically opposite to the inspection
report, the matter ought to have been
referred to the appropriate Government for
a reference under the Industrial Disputes
Act and, in fact, the matter should not have
been dealt with at all by the Authority
under Rule 25(2)(v)(a)&(b) of the Contract
Labour (Regulation and Abolition) Rules,
1971, i.e. the Deputy Chief Labour
Commissioner (Central).

11. The counsel appearing for the
respondent no. 2, however, submitted that
there were 40 members working under the
contractor and, therefore, a prayer had been
made for the payment to the 40 members.
Still further learned counsel for the
respondent no. 2 submitted that if the order
dated 9.7.2021 was perused then it would
become clear that the petitioner was not
asked to pay to all the 40 workers. In fact,
the petitioner was asked to ensure the
payment of wages on the basis of register
of wages which was maintained by the
contractor. Learned counsel, therefore,
submitted that there was no error if the
contractor was not impleaded as a party
before
the
Deputy
Chief
Labour
Commissioner (Central).

12. Learned counsel further submitted
that since the exercise of finding out as to
who were the actual workmen was left
open to the principal employer there was no
requirement to implead the contractor at all.

13. In the end, learned counsel for the
respondent no. 2 submitted that the
petitioner had an efficacious alternative
remedy of filing an Appeal under Section
15 of the Contract Labour (Regulation and
Abolition) Act, 1970.

14. Having heard Sri Ashok Mehta,
Senior Advocate, assisted by Sri Vijay
Kumar Dixit, learned counsel for the
petitioners, Sri S.K. Mishra learned counsel
for the opposite party no. 2 and Sri Gaya
Prasad Singh learned counsel for the
respondent no. 1 and 3, the Court is of the
view that the order dated 9.7.2021 cannot
be sustained in the eyes of law and,
therefore, deserves to be quashed. A bare
reading of Rule 25(2)(v)(a)&(b) of the
Contract
Labour
(Regulation
and
Abolition) Rules, 1971, definitely makes it
clear that if any demand had to be made
then it had to be made to the effect that the
contractor had to pay the salary to its
workers which ought to have been at par
with the salary of the workers of the
principal employer.

15. The contractor was such a person
whose service was taken by the principal
employer so that the contractor could make
available the labour which was required by
the principal employer. If the contractor
despite any order being made under Rule
25(2)(v)(a)&(b) of the Contract Labour
(Regulation and Abolition) Rules, 1971, did
not pay wages as per the order passed under
Rule 25(2)(v)(a)&(b) of the Contract Labour
(Regulation and Abolition) Rules, 1971, then
the principal employer could be made liable
to pay the wages and the expenses which
would have been incurred by the principal
employer in providing amenities could have
838 INDIAN LAW REPORTS ALLAHABAD SERIES
been taken by the principal employer from
the contractor either by the deduction from
any amount which was payable to the
contractor or the amount paid by the principal
employer would have become a debt payable
by the contractor. Definitely, no order could
have been passed directly asking the principal
employer i.e. the petitioner for making the
payment to the workmen who were
employed by the contractor. Since the
contractor himself had not been made a party
in the proceedings before the Deputy Chief
Labour Commissioner (Central), definitely
no direction could be issued to the contractor
and, therefore, the direction which had been
issued to the principal employer could not
have also been issued at all.

16. Further, the Court finds that there
were various issues which had to be
thrashed out before any order could be
passed and a vague order could not have
been passed directing the petitioner to
ascertain as to who was working and who
was not working.

17. The Court also holds that since the
Appellate Authority was the Deputy Chief
Labour Commissioner (Central) and the
order was also passed by the Deputy Chief
Labour Commissioner, no Appeal would
lie.

18. With these observations, the writ
petition stands allowed. The order dated
9.7.2021 passed by the Deputy Chief
Labour Commissioner (Central) is quashed.
The recovery etc. which might have been
issued in pursuance of the order dated
9.7.2021 also stands quashed.

19. It shall be open for the respondent
no. 2 to claim its dues under appropriate
proceedings provided under the law.
----------
(2022)02ILR A838
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ C No. 1003418 of 1980
and other cases

State Of U.P. & Anr. ...Petitioners
Versus
Sone Lal & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:

A. UP Bhoodan Yagya Act, 1952 - Section
14 - Bhoodan Yagna Committee (BYC) -
Power of BYC to distribute the land to
landless
agricultural
labours
-
Permissibility - Committee formed in
1953 and distribution of land made in
1978, this distribution was made beyond
period of three years - Validity challenged
- Held, the Bhoodan Committee, Kheri did
not have power to distribute the land
amongst the respondents in the 1978 and,
it was the Collector, who could have
distributed the land if there was no
notification issued under Section 4 of the
Act, 1927 to constitute the land as
'reserved forest' - Held further, the
respondents
did
not
become
the
Bhumidhars on the basis of the alleged
patta/lease in their favour. (Para 36 and
37)
Writ petition allowed. (E-1)
List of Cases cited:
1. St. of U.P. Versus Mahant Avaidh Nath; AIR
1977 All 192
2. St. of U.P. Vs Dy. Director of Consolidation &
ors.; (1996) 5 SCC 194