B.N. Srikrishna, J.
1. Despite the provisions of the Constitution of India in Part IV which must inform the State in its governance, can the Bombay Municipal Corporation which is undisputedly 'State' within the meaning of Article 12 of the Constitution, continue to employ a large number of workmen on contract basis and that too in blatant disregard of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970? This is the question posed for our consideration by this Writ Petition.
2. This Petition is filed by a registered Trade Union which claims to represent about 2000 workmen doing the work of lifting, transporting and dumping of debris, garbage, silt, house gully materials, etc. at the various dumping grounds of the Bombay Municipal Corporation (BMC). The Respondent No. 1 is: a statutory Corporation established under the Bombay Municipal Corporation Act, 1888, hereinafter referred to as the 'BMC Act'. Respondent Nos. 2 to 33 are different Contractors who have been entrusted with the: work of carrying the aforesaid work on contract basis. Respondent No. 34 is the State of Maharashtra. Respondent No. 35 is the Contract Labour Board established under the provisions of the Contract Labour (Regulation and Abolition), Act, 1970 and Respondent No. 36 is the Commissioner of Labour for the State.
Duties of the Municipal Corporation
3. Chapter III of the BMC Act enumerates the obligatory and discretionary duties of the Corporation. Section 61 gives a list of the obligatory duties of the Corporation for which it shall be incumbent on the Corporation to make adequate provision by any means or measures which it is lawfully competent to use or take. The duties enumerated in Section 61 relevant for our purpose are as under:
(a) cleansing of drains and drainage;
(b) scavenging and the removal and disposal of excrementitious and other filthy matters, and of all ashes, refuse and rubbish.
4. Section 63 of the BMC Act enumerates several duties which may be provided for by the Corporation at its discretion and Clause (k) of Section 63 provides, 'any measure not hereinabove specifically named, likely to promote public safety, health, convenience or instruction.' Section 63-A provides that where any duty has been imposed on or any function has been assigned to the Corporation under the Act, or any other law for the time being in force, the Corporation may:
(a) either discharge such duties or perform such functions or implement such claims by itself; and
(b) subject to such directions as may be issued and the terms and conditions as may be determined by the State Government, cause them to be discharged, performed or implemented by any agency: Provided that the Corporation may also specify terms and conditions, not inconsistent with the terms and conditions determined by the State Government, for such agency arrangements.
5. Chapter XV of the BMC Act contains the fascicules of Sections 365 to 441 dealing with the subject 'Sanitary Provisions'. Sections 365 to 373 deal with the subject of 'Scavenging and Cleansing'. Under Section 365, the Commissioner is enjoined to take measures for securing the efficient scavenging and cleansing of all streets and premises including the daily surface cleansing of all streets in Brihan Mumbai and the removal of the sweeping therefrom and the removal of contents of all receptacles and depots and of the accumulations at all places provided or appointed by him under Section 367 or 368 for the temporary deposit of any of the matters specified in the said Sections.
6. Section 367 requires (he Commissioner to provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of (a) dust, ashes, refuse and rubbish; (b) trade refuse; and (c) carcasses of dead animals and excrementitious and polluted matter. Section 368 imposes an obligation on the owners and occupiers of all premises to cause all dust, ashes, refuse, rubbish and trade refuse to be collected from their respective premises and to be deposited at such times as the Commissioner by public notice from time to time prescribe in the public receptacle, depot or place provided or appointed. The said Section also empowers the Commissioner to issue a notice requiring the occupier and/or owner of any premises to cause all dust, ashes, refuse and rubbish, but not trade refuse, to be collected daily or otherwise periodically from the premises and deposit it at designated places.
7. Section 370 makes it incumbent on any occupier of any premises situate in any portion of the city to cause all excrementitious and polluted matter accumulating upon his premises to be collected and to be conveyed to the nearest receptacle or depot provided for this purpose under Section 367(b) at such times, in such vehicle or vessel, by such route and by such precautions, as the Commissioner by public notice from time to time may prescribe. Section 372 prohibits the accumulation of dust, ashes, refuse, rubbish, trade refuse or excrementitious or polluted matters to be accumulated on any premises and obliges the owner/occupier to remove such matter and subject to such precautions as provided therein. Such offending acts on the part of the owner/occupier are also declared to be offences under the BMC Act. Section 375-A provides that if any tiles, rafters, building materials or debris of building materials are stored or collected in or upon any premises without the written permission of the Commissioner in such quantity or bulk or in such way as to constitute a harborage or breeding place for rats or other vermin or otherwise a source of danger or nuisance to the occupiers of the premises or to persons residing in the neighbourhood, the Commissioner may by written notice call upon the owner of such premises to abate such nuisance and dispose of such material in accordance with the direction of the Commissioner.
8. These are some of the relevant provisions of the BMC Act which impose statutory duties on the Corporation to keep the city clean, sanitary and free of garbage, rubbish, refuse - called by any name. We have deliberately outlined the various duties of the Corporation for much turns thereupon.
Contract labour on garbage clearance work
9. Way back, in the judgment in Gujarat Electricity Board v. Hind Mazdoor Sabha and Ors. : (1995)IILLJ790SC , the Supreme Court expressed its anguish at the manner in which Public Sector Corporations and public authorities were exploiting labour by employing them on contract basis, even on jobs perennial in nature which were required to be done by employment of direct labour. The Supreme Court observed:
'75. While parting with these matters, we cannot help expressing our dismay over the fact that even the undertakings in the public sector have been indulging in unfair labour practice by engaging contract labour when workmen can be employed directly even according to the tests laid down by Section 10(2) of the Act. The only ostensible purpose in engaging contract labour instead of the direct employees is the monetary advantage by reducing the expenditure. Apart from the fact that it is an unfair labour practice, it is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. The economic growth is not to be measured only in terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be focal point of development. The attitude adopted by the undertakings is inconsistent with the need to reduce unemployment and the Government policy declared from time to time, to give jobs to the unemployed. This is apart from the mandate of the directive principles contained in Articles 38, 39, 41, 42, 43 and 47 of our Constitution. We, therefore, recommend that:
(a) all undertakings which are employing the contract labour system in any process, operation or work which satisfies the factors mentioned in Clauses (a) to (d) of Section 10(2) of the Act, should on their own, discontinue the contract labour and absorb as many as the labour as is feasible as their direct employees:
(b) both the Central and the State Governments should appoint a Committee to investigate the establishments in which the contract labour is engaged and where on the basis of the criteria laid down in Clauses (a) to (d) of Section 10(2) of the Act, the contract labour system can be abolished and direct employment can be given to the contract labour. The appropriate Government on its own should take initiative to abolish the labour contracts in the establishments concerned by following, the procedure laid down under the Act;
(c) the Central Government should amend the Act by incorporating a suitable provision to refer to the industrial adjudicator the question of the direct employment of the workers of the ex- contractor in the principal, establishment, when the appropriate Government abolishes the contract labour.'
10. That this malaise of employment of contract labour was very much rampant in this State came to the pointed notice of the State Government also. The State Government had issued a Circular dated April 26, 1985 to deal with this vexatious issue. This Circular has been annexed to the Writ Petition at Exhibit 'L'. The Circular points out that several organisations and institutions based in and outside the State had time and again complained about Bhangi Mukti (prevention of scavenging) to the State Government alleging that the Government was indifferent to the grievances of such workers. Says the Circular issued by, the Urban Development Department: 'This Department concerns with Municipal Corporations and Municipalities which are self- governing bodies. The Government had appointed the LAD Committee to suggest various measures to redress the grievances of Bhangi/Safai workers employed in the service of Municipal Corporations and Municipalities. To implement its suggestions, the Department of Industries, Energy and Labour had already issued orders vide Government Resolution No. 1075/1/1792/Labour-5 dated August 12, 1975. The Government orders were sent to all Municipal Corporations and the Municipalities through the Directorate of Municipal Administration. The said Directorate time and again issued clarificatory Circulars to that effect.... The Government desires that if the practice of appointing Bhangi/Safai workers as contract labour is in existence in any of the self-governing bodies, then this shall be discontinued immediately. Similarly, in case where Safai worker has put in more than 240 days and if looking to the work need in the respective local self bodies, it is necessary to create full time post of Safai worker, such post should be created under the provisions of the Act relating to concerned Municipal Corporation and Municipality with prior approval of the Competent Authority...'
11. Undoubtedly, the Circular was a commendable declaration of intention to render social justice to the depressed and exploited class of workers working as contract labourers. Unfortunately, precepts are not always translated into practice. Despite this Circular issued by the State Government, Respondent No. 1 Corporation, continued the system of contract labour on the work of garbage clearance.
12. We are informed by the learned Counsel for the Corporation that contract labour has been engaged for removal of, what he styles only as 'debris', for the last about fifteen years. Prior thereto, the Corporation was getting it done by direct labour engaged Departmentally. Tenders are called for removal of the waste and, after evaluating the comparative merits of the tenders, the best tenderers are awarded contracts for removal of the solid waste for specified periods. This work of awarding contracts is processed by the officers of the Corporation and finally goes for approval of the Standing Committee of the Corporation. Since there is some doubt expressed by the learned counsel for the Corporation about the actual subject matter of the contracts, he insisting that the subject matter of the contracts was only removal of debris and not garbage, excrementitious material, house gully material, etc., we need to refer to a letter written by the then Chairman of the Standing Committee (and now Mayor) of the Bombay Municipal Corporation on November 27, 1996. The Petitioner Union had made a grievance to the said Chairman of the Standing Committee, Shri Hareshwar Patil, that contract labour was being utilised for carrying out work which was essentially the obligation of the Municipal Corporation all round the year and that there was wholesale exploitation of the contract labour. Apparently, having looked into the matter, the said Shri Hareshwar Patil, Chairman of the Standing Committee of the Bombay Municipal Corporation, was convinced that there was a strong case made out by the Petitioner Union which was also threatening a strike by such workmen at the material time. Against the background of these facts, the said Hareshwar Patil states in his letter dated November 27, 1996 addressed to the then Additional Commissioner Smt. Gokhale as under:
'..... I am of the opinion that some of their demands are very genuine and call for a serious and urgent consideration, as you know the BMC has allotted the task of garbage collection to private contractors.....'
Then, the said Shri Patil, went on to indicate the area of exploitation of the contract in the following words:
'(1) The workers receive about Rs. 25 to 33 per trip. The amount paid by the BMC to the Contractor is many times more than that. The workers demand that they be paid 60 per cent more seems to be reasonable, I feel that' the Contractors should be asked to accept it. They can easily afford to do it.
(2) Surprisingly enough, the Contractors, have not issued the identity cards to any workers nor have they maintained any proper muster. These things must be immediately looked into. The workers have got a right to have an identity card. The Sangh has also demanded that there should be an insurance scheme in case of an accident. I strongly feel that this must be made compulsory for the Contractors.
(3) It is really astonishing that the scavengers are not supplied with masks, hand gloves, gumboots, etc. Every worker must be given rain coats, masks, head gear, gumboots. I would like to inform you that all these facilities are not being given by the New Mumbai Municipal Corporation, They have made it compulsory for the Contractors.
(4) These workers are required to work in extremely unhygieneic, dirty conditions. It is absolutely necessary that these workers be given free medical aid.
(5) You would be astonished to learn that these work ..... weeks do not have a single paid leave, not even those of August 15, and January 26.
13. This graphic description given by the person, no less than the Chairman of the Standing Committee which used to award the contracts, should leave us in no doubt that what he talked about was the work of 'garbage collection' which had been allotted by Bombay Municipal Corporation to private Contractors.
14. If there was any lingering doubt on the subject, the Respondent Contractors, who have filed their affidavits, have dispelled the doubt. Jamanlal Jain, Respondent No. 6, in his affidavit dated August 12, 1997 says in paragraph 10, '..... I submit that since the tender submitted by me was the lowest and since I complied with all the terms and conditions of the said tender, the Respondent No. 1 entered into a regular legal contract with me for lifting the garbage and solid waste from the street of Bombay in accordance with the directions and instructions and for dumping the same at the place directed by Respondent No. 1 on the terms and conditions mutually agreed upon.' (Emphasis ours). He further says that he has been a Contractor of the Responded No. 1 since last more than seventeen years and his work had been found satisfactory. Since he was complying with all the terms and conditions of the said contract and hence 'the Respondents have been giving me the contract for lifting the garbage, debris etc. since then,' Further on, he says, 'I submit that under the said contract I am carrying on the work of lifting, transporting and dumping of debris, garbage, silt, house-gully materials, etc., at the various dumping grounds of Respondent No. 1 and as directed by them.' (Emphasis ours). In paragraph 11 of the affidavit, he says that the contract of lifting of garbage and solid waste from the streets of Bombay was awarded to him on the basis of acceptance of his tender which was the lowest and that, in pursuance of the said contract, he had been supplying the labourers and carrying on the said work of lifting the garbage. Finally, he justifies the continuation of the contract system by saying, 'I therefore submit that in view of the aforesaid circumstances, the daily paid workers who are engaged by the Contractors including myself cannot be termed as contract workers and as such their duty cannot be regularised under the Act'.
He also says in paragraph 11:
'..... I submit that / have been assigned the contract by the Respondent No. 1 for lifting the garbage on the terms and conditions of the contract dated May 10, 1995 and the said contract is valid for a period of 3 years commencing from May 12, 1995 to May 11, 1996 (sic) ...../ have been carrying on the said job of lifting the garbage and dumping the same as per the directions of Respondent No. 1..... that the workers working on the Lorries supplied by me through the Respondent No. 1 for lifting the garbage are daily paid labourers and are never fixed ones.... I say and submit that each labourer is paid on the trip-wise and normally per day each labourer is paid about Rs. 120/- for the job done by him or her. In view of the aforesaid facts, it is not possible to maintain and keep a track of the said workers and maintain a record of the same .....'
15. To similar effect is the affidavit of Bahahuddin A. Inamdar, Respondent No. 32, who says in paragraph 4 of his affidavit in reply that the contract was awarded by the Respondent to him after inviting the tenders under the provisions of the Act and came to be awarded as he was the lowest bidder in December 1995 and was made effective from February 1996. 'Since then, with the help of daily paid workers, I am carrying out the work of lifting, transporting and dumping of debris, garbage, silt, house gully material etc. at various dumping grounds of the Respondent No. 1' says the said Inamdar. Further, in paragraph 5, he also maintains that the workers engaged by him for discharging his obligations under the contract are engaged as daily paid workers on the basis of the number of trips attended and that for each trip a worker would get a minimum of Rs. 55/-and thus by completing two trips in a job he would get Rs. 110/- per day. Then he submits that if the contract awarded to him and other Respondents for lifting garbage etc., in the different wards in the Bombay Agglomeration is abolished, it will not only create havoc in the clean and green city of Bombay but will lead to anarchy depriving the daily bread and butter of the workers who are getting daily employment on the basis of which their family members are surviving.
16. In fact, the Respondent No. 1 Corporation itself was aware of the situation and by the Circular issued on August 31, 1996 (Exhibit 'E' to the Petition), instructed that there was always a danger and possibility of contract labour raising an industrial dispute for absorption in regular employment of the establishment and it was necessary to take several precautions. The Circular in terms says that the agreement between the establishment and the Contractor should be a written document on stamp paper; the Contractor should be a well established Contractor having an independent establishment and should obtain a licence under the Contract Labour (Regulation and Abolition) Act, 1970, if engaging 20 or more workmen by way of contract labour; should engage his own supervisory staff to carry out the work. The Circular also gives the detailed instructions as to the various facilities the Contractor should make available for the contract labour and the various records that the Contractor should maintain in order to comply with the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. Finally, the Circular winds up by saying: 'The job work awarded on contract should not be the regular or main work of the establishment.'
17. Upon a conspectus of the legal obligation of the Bombay Municipal Corporation under the provisions of the BMC Act, we are of the view that the duty of removal, of garbage, silt, house gully material and solid waste material of all kinds is squarely upon the Corporation. That the Corporation chooses to employ some other agency to discharge its obligation is a matter of the Corporation's convenience, provided it is consistent with the applicable legal provisions. In our view, at any rate from 1970 onwards, after the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the 'said Act') were brought into force, the Corporation, if it chose to continue the system of employing contract labour for discharging its statutory obligations, had to comply with the stringent provisions of the said Act. Correspondingly, all Contractors employed on such work were also required to comply with the provisions of the said Act. Bombay Municipal Corporation is an establishment within the meaning of Section 2(e) of the said Act and also 'principal employer' within the meaning of Section 2(1)(g) thereof. The Contractors who have undertaken the contract to carry out this work, like the present Respondent Nos. 2 to 33, would be 'Contractors' within the meaning of Section 2(c) of the said Act and the workman engaged by them in such work would be 'contract labour', within the meaning of Section 2(1)(b) of the said Act. Under Section 7, every principal employer of the establishment to which the Act applies, is compulsorily required to register himself with the appropriate registering authority. Correspondingly, every Contractor who intends to carry out such work under a contract, is required to obtain a licence under Section 12 of the said Act. There are detailed Rules prescribed in exercise of the powers under the Act which ensure that where contract labour is permitted, it is not subject to exploitation. We regret to notice that despite the system of employment of contract labour being in vogue in the establishment of the Bombay Municipal Corporation for the last about 15 years, neither had the Bombay Municipal Corporation registered itself as a 'principle employer' under Section 7, nor did any of the Contractor obtain a licence under Section 12 of the Act. Consequently, there were repeated grievances voiced by the Petitioner Union that the contract labour were being subjected to continuous exploitation. The Petitioner Union has, therefore, brought this Petition for obtaining appropriate relief to the contract labour.
18. The Petition narrates in detail the pathetic conditions under which the contract labour is required to work, both in words and visually, by the photographs annexed at Exhibit 'B' to the writ petition. Initially, when this writ petition was filed, no provisions had been made with regard to safety and hygiene of the contract labourers, which is another aspect highlighted in the writ petition. A Notice of Motion No. 67 of 1998, was taken out for interim reliefs. This Notice of Motion was disposed of by an order dated April 20, 1998 made by the Bench of S.N. vARIAVA, J. (as he then was) and A.Y. sAKHARE, J. The learned Judges echoed the dismay of the Supreme Court in paragraph 75 of its judgment in Gujarat Electricity Board, (supra) in view of the conditions of the contract labourers before them as pointed out in the Writ Petition. They also took notice of the apprehension that, because the Petitioner Union had strongly voiced the grievances of the contract labourers, there was imminent likelihood of their discharge from service. The Division Bench being of the view that permitting such discharge would render the Petition infructuous, it directed that pending the hearing and final disposal of the petition, the Respondent should maintain status quo in respect of the employment of the workmen concerned in the Writ Petition. The Division Bench also directed that, looking to the nature of the work, the members of the Petitioners should be provided good quality (1) raincoat with cap, (2) Gumboots and (3) hand gloves as mentioned in the letter dated June 20, 1997. The responsibility was cast, in the first place, on the Contractors and, if the Contractors failed to discharge it, the Bombay Municipal Corporation was directed to provide such facilities to the contract workmen. We are informed that the grievance with regard to the lack of adequate safety equipment and protective wear was resolved for about a year soon after the order of this Court, but thereafter the situation has reverted to status quo ante the order.
19. The thrust of the case put forth in the Writ Petition is that the nature of the work carried out by the contract labourers is perennial, part of the legal obligations of the Bombay Municipal Corporation and, merely because the Corporation has chosen to employ the system of contract labour for discharging its statutory obligations, that too by employing Contractors who do not hold licence under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, the contract labour does not cease to be workmen of the principal employer- Bombay Municipal Corporation. The contention is, if at all contract labour system, is to be permitted, it can only be permitted provided it is carried on in accordance with the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. An employer cannot be allowed to carry on work through contract labour, unless he strictly complies with the provisions of the statute. There is no gainsaying that the Bombay Municipal Corporation was carrying on work through contract labour for almost 15 years without even bothering to register itself as 'principal employer', nor were various Contractors holding any licence under the said Act.
20. The Petitioner Union also kept complaining to the Labour Commissioner about the gross violation of law and the legal rights of the workmen concerned. The Labour Commissioner had the complaints investigated through his officers and addressed a letter dated July 18, 1998 to the Chief Secretary, Government of Maharashtra, in which he proposed abolition of the contract labour system and observed:
'Solid Waste Management Department is one of the sections of Bombay Municipal Corporation. This is in operation for more than 100 years. In this Department, the work of collection, transportation, dumping and disposal of the garbage, solid waste, refuse, debris etc. is performed.
There are about 5800 permanent workers working in this department and the strength of contact workers is 3066. All these contract workers are employed by 72 Contractors. The workers employed by the Contractors are represented by Kachara Vahatuk Shramik Sangh and Shri Milind Ranade is the General Secretary of the Union.'
The Labour Commissioner also pointed out that the Solid Waste Management Department of the Corporation had made an application for registration as principal employer under the Contract Labour (Regulation and Abolition) Act, 1970 only on December 17,. 1996. As by that time this Writ Petition had already been filed, the said application was kept in abeyance. He also pointed out that none of the Contractors had obtained licence under the provisions of the said Act and as the Bombay Municipal Corporation had not taken any action against them, the application for registration made by the Bombay Municipal Corporation was also kept pending. He also points out that by letters dated October 25, 1997 and May 19, 1998 the Petitioner Union had made representations to the Chairman of the State Contract Labour Advisory Board urging him to advise the State Government to abolish the system of employment of contract labour in the Solid Waste Management Department of the Bombay Municipal Corporation. The letter also points out that an examination of the comparative conditions of service indicated that while permanent workmen of the Bombay Municipal Corporation get about Rs. 6040/- as wages per month, the contract workers get about Rs. 90/-per day (Rs. 2700/- per month). Besides, they were not allowed any other statutory benefits, nor were they in receipt of any fringe benefits, like, leave facilities, nor were their working hours subject to regulation. The Labour Commissioner ended up by saying;
'The work performed by the workers employed by the contractors is a work of regular and of permanent character. It is a regular and permanent work of the Corporation. This work is carried out for all the 12 months of the year. The solid waste management has employed 161 (sic), permanent workers for this work. The nature of work of the department requires employment of the other workers as its permanent workers and the same is easily possible.
Considering the salary paid to contract workers, non-extension of any statutory benefits, salaries and wages paid to permanent workers performing same work, other allowances and facilities etc. under the provisions of Section 10(2) of the Act read with provisions of the Sub-sections (a) to (d), this is a fit case for abolition and prohibition of the said contract system and hence the Government should recommend the matter to State Contract Labour Advisory Board. This office therefore recommends accordingly.'
Developments during pendency of Writ Petition
21. Before we take up for consideration the legal contentions urged before us, it is necessary to point out a few developments which took place when this Writ Petition was pending before this Court. Pursuant to the letter of the Commissioner of Labour, which we referred to earlier, the matter was considered at the highest level by the Labour Ministry of the State Government. By his letter Ref. No. Lab/213/1999 dated February 4, 1999 addressed to the Commissioner of Bombay Municipal Corporation, the Labour Minister pointed out, inter alia, 'in BMC there are many workers employed by contractors in cleaning the city (Safai Kamgar) and it has been observed by us that not a single contractor is a registered contractor (licence holder). It is the statutory duty of the BMC, being the principal employer to verify whether minimum wages, working hours, provident fund and other service conditions are not observed in breach. But in fact BMC has totally failed to carry out their statutory duty. Kachara Vahatuk Shramik Sangh has sent their proposal for abolition of the contract system to the Contract Labour Abolition Advisory Board, BMC and other contractors are exploiting the contract workers to such an extent that we are left with no other alternative but to abolish the existing contract system. 'The Labour Minister also points out that this issue had been discussed with the Commissioner of the Municipal Corporation on occasions in the past, but not a single step had been taken by the Corporation to improve the situation. Hence, the Corporation was directed to send a representative for a meeting fixed on February 15, 1999 at 11.00 a.m. at Mantralaya.
22. By another letter of April 15, 1999, the Labour Minister pointed out to the Commissioner of Bombay Municipal Corporation that the issue of contract labour in the Solid Waste Management Department had been discussed in the Contract Labour Abolition Advisory Board meeting held on March 6, 1999 (sic). In the same meeting, Bombay Municipal Corporation had been directed to pay equal wages to the contract workers as given to permanent BMC employees doing the same type of work and also extend identical service conditions to them. For this reason, the Labour Minister points out 'It is learnt that you are in a process of appointing new contractors. It seems you have not directed the new contractors about equal wages and engaging the same labourers who are working there for years together and are protected by High Court's status quo order. Hence, you should give clear directions to the new incoming contractors about equal wages and engaging the same labour force. Otherwise, the contract system in the concerned establishment will have to be abolished forthwith.'
23. Finally, by a letter dated May 10, 1999 addressed to the Commissioner of Bombay Municipal Corporation, the Labour Minister pointed out that despite four decisions taken in earlier meetings held on February 15, 1999 and March 6, 1999, the BMC had failed to implement them. The Minister says:
'Regarding the above mentioned subject, there were two meetings held in my office on February 15, 1999 and March 6, 1999 following decisions were taken in these meetings:
(1) Equal pay for equal work should be given to the contract workers.
(2) May 1, August 15, October 2, and January 26, should be declared as paid National holidays for these contract workers.
(3) These workers should be given an attendance card and also compensation should be given in case of accidents.
(4) The decision of 'Equal pay for equal work' has been already taken. But still it is not yet implemented.
The B.M.C. is not ready to implement any of the above four decisions, besides this nobody from the BMC was present for today's meeting even after receiving the invitation. When we contacted the B.M.C. representative by telephone, we came to know that nobody was aware of today's meeting. It clearly indicates that B.M.C. is giving no importance to the meetings held in our office. Hence there is no other alternative before me but to abolish the existing contract system as B.M.C. is in no way implementing the directives given by the Contract Labour Abolition Advisory Board.
Kindly note that if legal dues and legal procedures are not observed, you are liable to be prosecuted as principal employer. You are given eight days time to implement the same legal procedures as mentioned above. In case otherwise Government is free to take strict action against you.'
24. When the Petition was argued before us, we asked the learned Additional Government Pleader who represented the Government, as to why the State Contract Labour Abolition Advisory Board and the State of Maharashtra should not issue an order prohibiting employment of contract labour in the Solid Waste Management Department in view of the glaring facts and circumstances of the case. We were informed that on account of the Election Code of Conduct, neither the Contract Labour Abolition Advisory Board, nor the Government could take a decision in the matter. In our view, the fate of the workers cannot be left hanging on the sweet mercy of the Bombay Municipal Corporation and/or the State Government. Therefore, it has become our responsibility in the discharge of our constitutional duty to see if they are entitled to any relief in law and grant them such relief here and now.
25. Mr. Mehta, learned Counsel for the Corporation, tried to draw a fine and subtle distinction between 'removal of garbage, sanitary work and house gully material' and 'removal of debris'. Frankly speaking, it appears to us that this distinction is as tenuous as the difference between Tweedledum and Tweedledee. As far as the legal obligations go, which we have extensively quoted, there is no distinction whatsoever in law. May be, originally debris removal occurred when unutilised or demolished house construction material was required to be transported. Apparently, even the Bombay Municipal Corporation does not maintain this distinction presently. If it was really a situation of removal of debris, as popularly understood, perhaps it was possible to say that the work could be occasional and sporadically and might justify employment of contract labour. The material on record, overwhelmingly and unmistakably shows that the Bombay Municipal Corporation, under the garb of removing debris, has been merrily carrying out the work of removal of garbage, house gully material and other solid waste, which is its principal obligation under Section 60(2) of the BMC Act, by entrusting it to Contractor to be done through contract labour. The fine distinction sought to be drawn by the learned Counsel for the Corporation between garbage removal and debris removal is chimerical. The material on record evidences that the work entrusted on contract basis is actually the work of the Corporation which it is obliged to carry out under the statute. In fact, the photographs at pages 29 to 81 of the Writ Petition, provide eloquent visual testimony that the contention urged by the learned Counsel for the Corporation has no basis. We may also recollect here, en passant, that the Chairman of the Standing Committee, who was himself the authority for awarding contracts, has gone on record to say that the work of garbage lifting was being done by contract labour. The Commissioner of Labour's office in terms says this. The affidavits of the Respondent Contractors too confirm this fact. To top it all, the State Minister for Labour, emphatically reiterated this fact. With this abundant material on record, it is not possible to agree with the contention of the learned Counsel for the Respondent Corporation that the work being done through the contract labour was or is not the work which the Bombay Municipal Corporation is required to do under the law. We, therefore, hold that the work entrusted to the Petitioner's member workmen was and continues to be basically the work of the Bombay Municipal Corporation itself which is of perennial nature, to be done all 365 days of the year. That the Corporation has chosen to carry it out under a so-called system of contract labour, without even so much as complying with the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, is utmost regrettable.
26. Mr. Gonsalves, learned Counsel for the Petitioner Union, invited our attention to the expression of dismay by the Supreme Court in paragraph 75 of its judgment in Gujarat Electricity Board's case (supra) which we have already reproduced. We too echo the dismay expressed by the Supreme Court in the said paragraph. We find similar cases coming before us day in and day out in the establishments of several public authorities, all falling within the sweep of the definition of 'State' under Article 12 of the Constitution. We feel, the sooner the malady is ended, voluntarily or by statute or, out of sheer desperation, by the exercise of the constitutional powers of the Court, it is better for achieving the constitutional goals declared in Part IV of the Constitution.
27. Mr. Gonsalves cited in support a recent judgment of the Supreme Court in Secretary, H. S. E. B. v. Suresh and Ors. : (1999)ILLJ1086SC . This was also a case where the Haryana State Electricity Board was engaging contract labour without complying with the provisions of the Contract Labour (Regulation and Abolition) Act. A dispute was raised by Safai Karmacharis for regularisation in service as permanent workmen. The Labour Court considered the facts and evidence on record and made an Award directing reinstatement with continuity of service of the concerned workmen with 100% back wages. The matter was carried to the High Court. The High Court maintained the directions with regard to reinstatement and continuity of service, but directed that it shall be without back wages. The aggrieved Board came upto the Supreme Court under Article 136. The Supreme Court cited with approval the observations in Hussainbhai v. Alath Factory Thozhilali Union, : (1978)IILLJ397SC , in the following words:
'3. Who is employee, in labour law? That is the short, diehard question raised here but covered by this Court's earlier decisions. Like the High Court, we give short shrift to the contention that the Petitioner had entered into agreements with intermediate contractors who had hired the Respondent-Union's intermediate workmen and so no direct employer-employee vinculum juris existed between the Petitioner and the workmen.
4. This argument is impeccable in laissez faire economics 'red in tooth and claw' and under the Contract Act rooted in English Common Law. But the human gap of a century yawns between this strict doctrine and industrial jurisprudence. The source and strength of the industrial branch of Third World Jurisprudence is social justice proclaimed in the Preamble to the Constitution. This Court in Ganesh Beedi case : (1974)ILLJ367SC has relied on British and American rulings to hold that mere contracts are not decisive and the complex of considerations relevant to the relationship is different. Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submissions that the High Court is in error in its holding against the Petitioner.
5. The true -test may, with brevity, be indicated once again. Where a worker or group of workers labour to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. 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 like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A 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 maya of legal appearances.'
28. Then the Court met the argument that the Contractors were independent entities and decided to pierce the veil of incorporation. While noting that the doctrine enunciated in Soloman v. Soloman & Co. Ltd., 1897 AC 22 HL, had been recognised in corporate jurisdiction and its applicability could not be doubted, the Supreme Court pointed out:
'.... since the law Court invariably has to rise up to the occasion to do justice between the parties in a manner as it deems fit. Roscoe Pound stated that the greatest virtue of the law Court is flexibility and as and when the situation so demands, the law Court ought to administer justice in accordance therewith and as per the need of the situation.'
29. Turning then its attention to the provisions of the 1970 Act, the Supreme Court pointed out that the legislation subserved a twin purpose, to wit:
(a) to abolish the contract labour; and
(b) to regulate the working conditions of contract labour wherever such employment is required in the interest of the industry.
Observes the Supreme Court vide paragraph 13:
'13. There is, however, a total unanimity of judicial pronouncements to the effect that in the event the contract labour is employed in an establishment for seasonal workings, question of abolition would not arise but in the event of the same being perennial in nature, that is to say, in the event of the engagement of labour force through an intermediary which is otherwise in the ordinary course of events and involves continuity in the work, the legislature is candid enough to record its abolition since involvement of the contractor may have its social evil of labour exploitation and thus the contractor ought to go out of the scene bringing together the principal employer and the contract labourers rendering the employment as direct, and resultantly, a direct employee. This aspect of the matter has been dealt with great lucidity, by one of us (MAJMUDAR, J.) in Air India Statutory Corporation v. United Labour Union : (1997)ILLJ1113SC .'
30. After noticing the arguments advanced before it, the Supreme Court was pleased to remark:
'18. As noticed above the draconian concept of law is no longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic polity ought to survive with full vigour; socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective the question arises is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution -the answer cannot possibly be in the affirmative-the law Courts exist for the society and in the event law Courts feel the requirement in accordance with principles of justice, equity and good conscience, the law Courts ought rise up to the occasion to meet and redress the expectation of the people. The expression 'regulation' cannot possibly be read as contra public interest but in the interest of the public.'
31. The Supreme Court emphatically rejected the argument based on Dena Nath v. National Fertilisers Ltd, : (1992)ILLJ289SC , to the effect that mere contravention of the provisions of the 1970 Act could not result in the Court's holding that there was no system of contract labour at all. The Supreme Court had the following to say (vide paragraph 20):
'20. It has to be kept in view that this is not a case in which it is found that there was any genuine contract labour system prevailing with the Board. If it was a genuine contract system, then obviously it had to be abolished as per Section 10 of the Contract Labour (Regulation and Abolition) Act after following the procedure laid down therein. However, on the facts of the present case, it was found by the Labour Court and as confirmed by the High Court that the so-called contractor Kashmir Singh was a mere name lender and had procured labour for the Board from the open market. He was almost a broker or an agent of the Board for that purpose. The Labour Court also noted that the management witness Shri A.K. Chaudhary also could not tell whether Shri Kashmir Singh was a licensed contractor or not. That workman had made a statement that Shri Kashmir Singh was not a licenced contractor. Under these circumstances, it has to be held that factually there was no genuine contract system prevailing at the relevant time wherein the Board could have acted as only the principal employer and Kashmir Singh as a licensed contractor employing labour on his own account. It is also pertinent to note that nothing was brought on record to indicate that even the Board at the relevant time was registered as the principal employer under the Contract Labour (Regulation and Abolition) Act. Once the Board was not a licensed contractor under the Act, the inevitable conclusion that had to be reached was to the effect that the so-called contract system was a mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real contractual relationship between the Board, on the one hand, and the employees, on the other, could be clearly visualised.'
32. We shall now adopt and apply these principles to the present case.
33. Mr. Mehta, learned Counsel appearing for the Corporation, however, vehemently urged that the jurisdiction to abolish contract labour was vested under Section 10 of the said Act in the appropriate Government. The appropriate Government had to obtain advice of the Contract Labour Advisory Board which in turn had to keep several factors enumerated in Section 10(2) in Clauses (a) to (d) before advising abolition of the contract system. It was only after this whole gamut of exercise is carried out that the appropriate Government may issue an order under Section 10 of the said Act and direct abolition of contract labour in any process, operation or other work in any establishment. He contends that the High Court cannot usurp the powers of the appropriate Government under Section 10. Undoubtedly, the argument as posed, if uncritically appraised, is attractive. However, in our view, this argument cannot be appraised or tested in vacuum. In the present case, we have pointed out on facts that there was no registration of the principal employer for almost fifteen years. None of the Contractors ever held a licence under the said Act and the work that was being carried out was work that falls very much within the parameters of Clauses (a) to (d) of Sub-section (2) of Section 10 of the said Act. We have also pointed out what the Chairman of the Standing Committee and the Respondent Contractors have to say in the matter. The Commissioner of Labour in charge of monitoring conditions of service of labour in the State was of the clear view that contract labour needed to be abolished, though he felt that the matter had to be referred to the State Advisory, Committee in view of the provisions of Section 10. The Labour Minister, who is the head of the Labour Department of the Government of Maharashtra, also went on record in unhesitating terms that the Government had taken decision to abolish the system of contract labour in the Solid Waste Department of the Bombay Municipal Corporation. We could have thought this would be sufficient material crying out to do justice forthwith by abolishing the evil system of contract labour. We were, however, told that because of the supervening difficulty of Election Code of Conduct, it was not possible for the State to act for some time to come. In other words, the State admits that all the facts requisite for acting under Section 10(2) are there, but because of the supervening difficulty it is unable to act. Fortunately for us, the supervening difficulty of Election Code of Conduct does not hamper or impede from our constitutional duty. We think that if the State machinery has failed to act, we are obliged in exercise of writ jurisdiction to direct the State to do what it had to do on the basis of decision already arrived at. The argument of the Respondent No. 1 leaves us cold.
34. Mr. Mehta then contended that the judgment in Suresh (supra) was distinguishable. He pointed out that in Suresh's case, the competent Court of law, namely, the Labour Court had recorded evidence and, on the basis of the recorded evidence came to the conclusion that the contract system was not genuine. No such thing has happened in the Petitioner's case, says Counsel. Counsel submits that it was open to the Petitioner to raise an industrial dispute and have the Labour Court or the-Industrial Tribunal adjudicate the issue on the basis of evidence. This Court is hardly competent to record evidence or appreciate it in exercise of its powers under Article 226 of the Constitution. This Court as well as the Supreme Court have always taken the view that writ jurisdiction should not be permitted to be invoked if disputed question of facts are involved, is the submissions of the learned counsel. The submissions are wholly unexceptionable. If the facts were not clear, we would have hardly allowed our writ jurisdiction to be invoked. The material which we have referred to at several places hereinbefore, is more than adequate, in our view, to come to the conclusion we have arrived at. In our view, it is not necessary to record any further evidence or drive the workmen through a lengthy process of litigation to achieve what they have been clamouring for the last several years. To do so, would be shirking our constitutional obligations, is our considered view. Hence, we reject this contention also.
35. Mr. Gonsalves placed reliance on the judgment of a Division Bench of this Court in Lal Bavta Hotel & Bakery Mazdoor Union and Anr. v. Bharat Petroleum Corporation Ltd. and Ors. (to which one of us, sriKRISHNA, J., was a party). We have also been advised about the order of the Supreme Court dated April 4, 1995 in Civil Appeal No. 1445 of 1993 wherein the Supreme Court upheld the directions given in Bharat Petroleum's case (supra) with a few added riders. Mr. Gonsalves urged upon us to follow the lead given by the Supreme Court.
36. Our attention was drawn to the decision of the Supreme Court in Air India's case (supra) vide paragraph 57, wherein the Supreme Court referred to its earlier decision in R.K. Panda and Ors. v. Steel Authority of India and Ors. 1997 III LLJ (Supp) 1202 (SC), and pointed out that the judgment is an authority for the proposition that 'the jurisdiction of the Court under Article 32, pan materia with Article 226, which is much wider than Article 32, 'for any other purpose' under which suitable directions are required to be given based on factual background.'
37. Mr. Mehta referred to some of the judgments of the Supreme Court in support of his contention that, in a situation such as confronting us, we should decline to exercise our powers under Article 226 and leave the workmen to the remedy of an industrial dispute or the alternative remedy of moving the State Government for a direction to abolish the contract system under Section 10. He referred to the Supreme Court judgment in Dena Nath and Ors. v. National Fertilizers Ltd. and Ors. (supra) in order to contend that a mere contravention of the provisions of the 1970 Act cannot give rise to legal vinculum juris employer-employee relationship between the principal employer and contract employees. The judgment in Dena Nath (supra) has been specifically considered and dissented from by a larger Bench in Air India's case (supra) as well as Haryana Electricity Board's case (supra). Both these judgments suggest that a contract system can be said to be genuine only if it is carried on in compliance with the provisions of the 1970 Act. Anything contrary thereto, would lead to the presumption that the purported contract labour system was merely a device, and a sham and introduction of a middleman for the purpose of defeating the rights of the workers.
38. Mr. Mehta also referred to the case of B.H.E.L. Workers' Association v. Union of India, : (1985)ILLJ428SC , R.K. Panda and Ors. v. Steel Authority of India and Ors. (supra) and Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha, (supra). He also referred to the decision of the Supreme Court in Air India Statutory Corporation v. United Labour Union and Ors. (supra). In our view, it is not necessary to refer to and reproduce passages from these judgments, for the ratio on these cases have been considered both in Air India's case (supra) and in Suresh's case (supra). After culling out the ratio of these cases, Suresh (supra) proceeds on the footing that failure to comply with the provisions of the 1970 Act would afford good ground for the Court to hold that the so-called contract labour system is sham and 'pierce the veil of incorporation'.
39. Turning to the facts of the present case are a few developments in the case which we must notice. This Court had by an interlocutory order made on November 18, 1998 directed the Commissioner of Labour to verify the authenticity of the list of workmen claiming to be members of the Petitioner Union. A detailed mode of verification was also indicated in the said order. Pursuant to the said order, the Commissioner of Labour carried out investigations and made three reports to this Court on February 9, 1999, April 23, 1999 and June 12, 1999. In his report of February 9, 1999, the Commissioner of Labour pointed out that the work of investigation of the authenticity of the membership of the listed workmen could not be carried out since the Contractors do not maintain any record, nor had the Municipal Corporation taken suitable steps for the purpose. In other words, the Commissioner was making a grievance that in the absence of any authentic record to be produced by the Corporation or the Contractor (which, incidentally, they were obliged to maintain under law), he was handicapped. So the Commissioner of Labour said:
'In these circumstances mentioned above, it has not been possible for the Commissioner of Labour to verity the authenticity of the list of workmen claiming to be members of Kachara Vahatuk Shramik Sangh.
I have, therefore, to suggest that in the absence of any record of contract labourers maintained by the principal employer/ Contractors, the list of the workers as submitted by the Trade Union in the said Petition may be considered as valid list indicating thereby that the workers in the list are engaged for work of regular nature by Mumbai Municipal Corporation through Contractors.'
In this letter, the Commissioner of Labourhad mentioned that about 2000 workmen hadbeen working since last 15 years as contractlabourers doing the work of lifting,transporting and dumping of debris, garbage,sift and other house gully material at variousdumping grounds of the Mumbai MunicipalCorporation. ;
40. In the report of April 23, 1999, after giving details of the work carried out by him, the Commissioner of Labour says that the Government Labour Officer designated by him had interrogated the contract labourers present in the Ward in the morning and filled up 1172 forms after interrogating 1172 workers. It was also noticed that nearly 219 workers' names were in the list and remaining 953 workers, names were not found in the list of mat Ward.
41. By the report of June 12, 1999, the Commissioner of Labour has also indicated that, out of 1540 workmen listed out in the Writ Petition, he had been able to identify 541 workers. Similarly, out of the 607 contract labourers whose names were annexed to the list exhibited to the Chamber Summons No. 31 of 1999 in Writ Petition No. 1027 of 1997, he had been able to identify 138 workers. Thus, he points out that, out of the total 2147 workers whose names were put forward by the Petitioner Union, the Government Labour Officers were able to identify 947 workers while actually working on the dates of the visits of the Government Labour Officers on May 20 & 21, 1999.
42. The Petitioner has filed an affidavit dated June 28, 1999 in which it is pointed out in paragraph 5 that all the workers who had been mentioned in the Writ Petition and the Chamber Summons in Writ Petition No. 1027 of 1997 had been given work, but in different Wards. This had caused difficulties in identifying them at the time of verification by the office of the Commissioner of Labour. The affidavit annexures at Annexure 'A' a list of 57 workers whose names are missing from the list submitted by the Commissioner of Labour to the Court from out of the list of workers mentioned in Writ Petition No. 1027 of 1997 and a list of 49 workers similarly missing from out of the list annexed to Chamber Summons No. 31 of 1999 taken out in Writ Petition No. 1027 of 1997. Thus, according to the Petitioner, the names of 106 workers have not found place in the reports of the Commissioner of Labour, though they were actually working through Contractors and though they were actually physically working and their names were found in different Wards stated in the Writ Petition. Further, it is stated that because after the Writ Petition was taken up for hearing, some of the workmen were not given work on certain days, they were not available or absent on the dates of verification and they have been missed out. Similarly, it is pointed out that the work of verification was done only during day time and, therefore, workmen doing the work during night have been missed out. The facts alleged in this affidavit are uncontroverted. In any event, this is a matter which can again be verified by the Commissioner of Labour, if necessary.
43. There are two more grievances voiced by the learned Counsel for the Petitioner. First, after the order made in Notice of Motion No. 67 of 1998, the Corporation changed the system by hiring different tempos instead of lorries as a result of which, a large number of contract workers already doing the work were eliminated from consideration. Second, that even as of today, there is necessity for a large number of workers which is evidenced by the fact that the Corporation itself had called for tenders from Contractors to any out this work. In fact, it was represented to us that the tenders had been scrutinised and the contract had not been awarded because we had interdicted such action on the part of the Bombay Municipal Corporation. In these circumstances, the Petitioner Union urged that if this Court directs that the system of contract labour in the Solid Waste Management Department of the Bombay Municipal Corporation is to be discontinued, then all workmen who were working through Contractors in the Solid Waste Management Department in whatever capacity (whether on tempo, lorry or otherwise) should be eligible to the benefit of the Court's order.
44. Mr. Mehta, learned Counsel for the Corporation brings to our attention the fact that in Almitra H. Patel v. Union of India and Ors. (Writ Petition No. 888 of 1996), the Supreme Court had been pleased to appoint a High Power Committee to go into the working of Solid Waste Management in Class I cities in India. This High Power Committee made a report sometime in March 1999 and this Committee had suggested in the Preface to the report that the State laws needed several amendments to make Solid Waste Management practices effective and also suggested to the Government of India to keep the Solid Waste Management Services outside the purview of the Contract Labour (Regulation and Abolition) Act, 1970 so as to enable public private partnerships and private sector participation in selected areas of Solid Waste Management for improving the quality of life in urban areas. In paragraph 2.7.3, the said Committee observed:
'2.7.3 Public Private Partnership
Public indifference, increasing establishment costs of service and deteriorating standard of service rendered by the work force for various reasons, has compelled local bodies to think about introducing the element of public-private partnerships or private sector participation in the service.
Presently private sector participation is being attempted in getting vehicles on contract and at some places contracts are being given to do collection and transportation of waste, which is working well. Recently many cities in the country have entered into contracts or memorandums of understanding with private companies for setting up compost plants with or without power generation. More and more cities plan to involve the private sector in various aspects of solid waste management. The provisions of the Contract Labour (Regulation and Abolition) Act, 1970 do not permit contracting out of services which are currently being provided by the urban local bodies departmentally.'
45. Relying on these recommendations of the High Power Committee appointed by the Supreme Court, Mr. Mehta contends that the issue as to whether contract labour should be permitted to be engaged in Solid Waste Management Department was itself under consideration at the highest level before the Supreme Court and that we should not anticipate the issue by making directions with regard to one Municipal Corporation in one Class I city. We regret, we cannot accept this argument. It is true that the said High Power Committee did recommend exclusion of workers in Solid Waste Management Services from -the purview of the Contract Labour (Regulation & Abolition) Act and also suggested drastic amendments to existing legislation. These are matters yet in the womb of the future. We are inclined to direct that the workmen required for work in the Solid Waste Management Department should not fall within the purview of the Contract Labour (Regulation and Abolition) Act, 1970 at all, but that they should be absorbed as direct employees of the Bombay Municipal Corporation.
46. For all these reasons, and particularly taking into consideration the peculiar facts and circumstances of the present case, we allow the Writ Petition and make the following order:
(a) The system of employing contract labour on the work, in Solid Waste Management Department shall be discontinued by the first Respondent Corporation with immediate effect.
(b) 782 contract labourers who have been identified as working through Contractors on the work of Solid Waste Management Department shall be absorbed as permanent employees in the employment of the first Respondent Corporation on the appropriate wage scales and extended all conditions of service as available to other permanent employees doing same or similar work in the employment of the first Respondent Corporation.
(c) A Committee comprising of an officer to be nominated by the Commissioner of. Labour, an officer to be nominated by the Municipal Commissioner and a representative of the Petitioner Union, shall verify the claims of all workmen other than those whose claims have already been verified by the Commissioner of Labour after taking such evidence as the said Committee desires.
(d) The said Committee shall make a report to the Municipal Corporation indicating the persons who were actually working as; contract labourers in the Solid Waste Management Department on the date on which the Writ Petition was filed. Immediately on receipt of such report, the first Respondent Corporation shall absorb such workmen also as permanent workmen in the Solid Waste Management Department and extend to them pay and all conditions of service and benefits as given to other permanent workmen doing same or similar work.
(e) Though, strictly speaking, under the principles laid down in Air India's case (supra), the workmen would have to be absorbed as permanent employees and given all the benefits from the dates of their respective employment, as we have found some difficulty with regard to identification, we direct that the absorption into service as permanent employees and extension of all benefits shall be done as from the date of the Writ Petition i.e. from July 1, 1997.
47. Rule accordingly made absolute. However, considering the facts of the case, we are not inclined to award any costs.
48. Mr. Mehta learned Counsel for the Corporation, prays for stay of our order. Mr. Gonsalves, learned Counsel for the Petitioner, submits that none of the present workmen is being provided the work since the last one month and if any stay is granted all the workmen would be further without wages until the Supreme Court hears the matter. Effectively, it means that, though succeeding in the Writ Petition, the concerned workmen will be worse off than under the interlocutory order which ultimately came to be sustained by the Supreme Court.
49. In our view, there is legitimacy in the grievance of the petitioner. However, we are inclined to give an opportunity to the Respondents to have the decision challenged before the Apex Court. We shall however, grant stay, but subject to some conditions which would protect the interests of the workmen.
50. Hence, the following order:
(a) There shall be stay of our order for a period of six weeks, except the direction pertaining to the appointment of the Committee and the work to be done by it as provided in paragraphs (c) and (d) above.
(b) All 782 workmen who have already been identified by the office of the Commissioner of Labour shall be provided work by the first Respondent Corporation and paid daily wages of Rs. 100/- without prejudice to the rights and contentions of the first Respondent Corporation and also without prejudice to the rights and contentions of the concerned workmen.
(c) The first Respondent Corporation is not obliged to extend any other conditions of service except safety and sanitary equipments to the concerned workmen during the period of six weeks from today.
(d) The concerned workmen shall be provided employment with effect from August 14, 1999.