HDFC BANK LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) A Private Bank has moved Court by this writ petition. It has challenged initiation of conciliation proceedings by respondent no. 3 to 6 on issue of minimum rates of wages payable by his client wholly without jurisdiction and ab initio void. Mr. Sengupta, learned senior advocate appears on behalf of petitioner-Bank and submits, his client is principal employer. Through contractor workmen are employed to render services required for security in his client's ATM counters and other places. These workmen are not employees of the Bank. They are employees of the contractor. Any issue regarding their terms of employment, as a dispute to be adjudicated, must be between them and their employer. On such dispute resulting in a finding enforceable against their employer, corresponding obligation may arise upon his client as principal employer. He refers to annexure- 'P9' in the writ petition, being letter dated 6th March, 2018 issued by the authority under Government of India, Ministry of Labour & Employment, requiring his client to attend conciliation on dispute raised by West Bengal Thika Mazdoor Sangh & Others Union against purportedly, management of his client. According to him, this cannot be done since an issue arising in relation to Minimum Wages Act, 1948 requiring conciliation must be initiated by appropriate Government as defined in clause (b) of section 2 of said Act. It cannot be disputed that contractor is employer of these workmen. Contractor does not come within sub-clause (i) in clause (b) of section 2 of the said Act. Therefore, 'contractor' is covered by sub-clause (ii) in clause (a) of section 2. As such appropriate Government is State Government which, if feels necessary, might require initiation of conciliation proceedings. Hence, he seeks interference. Mr. Gaurisaria, learned advocate appears on behalf of Union of India and submits, notice dated 25th May, 2017 of 'strike' was issued by Bengal Provincial Banks' Contract Employees' Association with copy marked to an authority of Central Government. This 'strike' was intended against petitioner-Bank in relation to which Central Government is appropriate Government. Hence, Central Government initiated conciliation proceedings in which petitioner-Bank has refused to participate. There should be direction for it to participate in conciliation proceedings, failing which there may be failure report and further action taken in accordance with law.

(2.) Mr. Paul, learned advocate appears on behalf of respondent no. 11 and submits, no notice under section 9A of Industrial Disputes Act, 1947 was given by the Bank, on effecting downward revision in minimum wages paid to workmen through contractor. The Bank was paying minimum wages per Central rate. It then decided and implemented payment of minimum wages at State rate but without statutory notice. Whether or not dispute exist is to be ascertained in conciliation proceedings, which the Bank is not attending and has challenged by way of this writ petition. He submits further, dispute is really by reason of position taken by the Bank. So, therefore, appropriate Government is Central Government in relation to it. Mr. Paul relies on section 21 in Contract Labour (Regulation and Abolition) Act, 1970 to submit, contractor has failed to make payment of wages at Central rate which is why sub-section (4) in section 21 stands attracted and applicable to petitioner-Bank. As such, there should be no interference. Mr. Roy, learned advocate appears on behalf of Kolkata Zilla Security and Allied Services Workmen's Union and submits, though his client is a participant in the conciliation proceedings but petitioner has not implemented it. He submits, conciliation proceedings were initiated in year, 2017. It is only now that the Bank has come up with this challenge. It should be thrown out on ground of delay.

(3.) It will appear from above submissions that there is no dispute raised regarding workmen being employees of contractor. Contractor, it appears, has caused downward revision in pay in line with making applicable minimum wages payable at State rate, being below Central rate. This was effected in tandem, on the Bank having so reduced. However, so far as the dispute is concerned it is between workmen- employees against their employer, contractor. Contractor, it has been successfully demonstrated, comes under sub-clause (ii), clause (b) of section 2 of Minimum Wages Act, 1948. Facts in this case are similar to facts in case decided by order dated 3rd August, 2011 by a learned Single Judge of this Court in WP 4895 (W) of 2011 [Susanta Naskar vs. Union of India], as relied upon by Mr. Sengupta.