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Kerala Civil Aviation General Workers' Co-op. Society Vs. Union of India (UOi) (28.03.1984 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1984)IILLJ314Ker
AppellantKerala Civil Aviation General Workers' Co-op. Society
RespondentUnion of India (UOi)
Excerpt:
.....act, 1970, (act 37 of 1970) and they are therefore entitled to be absorbed in the service of the civil aviation department or at any rate they are entitled to be engaged in the work of porterage in the civil aerodrome, trivandrum. it is the case of the petitioners in these writ petitions that the members of the union as well as of the society are contract labourers entitled to the privileges of the contract labour (regulation and abolition) act, 1970. as per the said 'act' a workman shall be deemed to be employed as 'contract labour' in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer (vide section 2(2)(b)). the act, as its preamble shows, is to..........trivandrum, and the 4th respondent is the union of india represented by its secretary for civilaviation department, new delhi. it is stated in the original petition that the members of the petitioner union are engaged in connection with porterage work in the trivandrum airport by the contractor viz., the kerala civil aviation general workers' co-operative society ltd., no. t. 707, trivandrum. op no. 1053 of 1984 is by the aforesaid co-operative society (hereinafter referred to as 'the society') for the same reliefs as are prayed for in op no. 1056 of 1984. the members of the union represented by the petitioner in op no. 1056 of 1984 are also members of the co-operative society and it is stated that the society has at present 160 members on its rolls. op no. 1055 of 1984 is also.....
Judgment:

Balakrishna Menon, J.

1. OP No. 1056 of 1984 is by the Kerala Civil Aerodrome Workers' Union (hereinafter referred to as 'the Union') represented by its General Secretary for the following reliefs:

a) A writ of mandamus or other appropriate writ, order or direction restraining respondent 1 to 4 from entrusting the contract of porterage service in the Civil Aerodrome at Trivandrum to the 5th respondent.

b) A writ of mandamus or other appropriate writ, order or direction commanding respondent 1 to 4 to allow the members of the petitioner union to continue as porters of the Civil Aerodrome at Trivandrum.

Respondent 1 to 3 are the Director General of Civil Aviation. The Regional Director and the Aerodrome Officer, Civil Aerodrome, Trivandrum, and the 4th respondent is the Union of India represented by its Secretary for CivilAviation Department, New Delhi. It is stated in the Original Petition that the members of the petitioner Union are engaged in connection with porterage work in the Trivandrum Airport by the contractor viz., the Kerala Civil Aviation General Workers' Co-operative Society Ltd., No. T. 707, Trivandrum. OP No. 1053 of 1984 is by the aforesaid Co-operative Society (hereinafter referred to as 'the Society') for the same reliefs as are prayed for in OP No. 1056 of 1984. The members of the Union represented by the petitioner in OP No. 1056 of 1984 are also members of the Co-operative Society and it is stated that the society has at present 160 members on its rolls. OP No. 1055 of 1984 is also for the same reliefs as are prayed for in OP No. 1056 of 1984 and it is filed by a member of the Union who is also a member of the Society. The Privilege for porterage service for bringing in articles and baggages for delivery at the booking counter and after delivery to the passenger at the delivery counter used to be settled by tender or negotiation by the Director General of Civil Aviation, New Delhi. The licence for such porterage service upto the point of the booking counter and beyond the delivery counter was earlier awarded to M/s. Jet Services, Bombay for a period of two years ending in July 1978. Seventeen among the 98 workers of the Union were employed by M/s. Jet Services at Trivandrum Airport. M/s. Jet Services continued their contract for a further period of six months from July 1978. Thereafter the licence for porterage service at the Civil Aerodrome, Trivandrum was awarded to the Society for a period of two years from 7th December, 1978. The period of contract that the 1st respondent had entered into with the Society had expired on 6th December, 1980. The Society submitted a representation to the 1st respondent that its members are entitled to be absorbed in the permanent service of the Civil Aviation Department. They are entitled to bonus and the privilege of porterage is to be conferred on the Society whose members had been doing the porterage service. The Regional Director of Aerodrome gave a reply a copy of which is produced along with the counter affidavit of the 5th respondent as Ex. R5(a), wherein it is stated that the Civil Aviation Department is conferring the privilege to the highest tenderer and hence the request of the Society to make the porters permanent employees of the Department cannot be accepted. The porters are not employed by the Department. No demand for bonus can be made against the Department and that the request for issue of permanent identity cards to the porters cannot be acceded to. The Society's request for the award of the contract for a further period was also not accepted for the reason that the Department is bound to follow the procedure prescribed by the Government of India for the award of such contracts by calling for tenders and settling the same to the highest tenderer. Ext. R5(b) dated 7th July, 1980 is a letter by the Director General of Civil Aviation declining the Society's request to settle the contract in its favour for a further term. The Civil Aviation Department called for tenders as per Ext. R5(c) and R5(d). As per Ext. R5(c) the Director General clarified that the award of the privilege as per tenders called for will be for a period of three years. The 5th respondent's tender for the Erivilege at the rate of Rs. 41,500/- p.m. was the highest and the same was accepted as per Ext. 30R5(f) telegram of the Director General of Civil Aviation dated 28th May, 1981. Ext. R5(f) dated 1st June, 1981 confirms Ext. R5(g) and states that the period of contract with the 5th respondent is for three years and the 5th respondent may be allowed to commence functioning with effect from 15th June, 1981 after payment of security deposit equivalent to three months' licence fee, payment of one month's licence fee in advance and on execution of an agreement in the appropriate form. The Society on 30th May, 1981 sent a telegram offering licence fee at the rate of Rs. 41,600/- per month i.e. Rs. 100/- more than the licence fee offered by the 5th respondent. But this telegram was after the 5th respondent's tender was accepted by the Director General of Civil Aviation as per his telegram Ext. R5(f) dated 28th May, 1981. Long afterwards a member of the Society as per his letter dated 1st February, 1984 produced as Ext. P3 in his OP No. 1055 of 1984 offered to purchase the privilege at the rate of Rs. 50,000/- for three years from 1983. The Union had been in the meanwhile corresponding with the Civil Aviation Department putting forward the claim of its members that they are workman entitled to the benefits of the Contract Labour (Regulation and Abolition) Act, 1970 and that they are also entitled to be permanently absorbed in the service of the Department. Exts. P3 to P15 are the correspondence among the Union, the Civil Aviation Department and the Assistant Labour Commissioner in regard to the demands of the Union against the Department.

2. Shortly after the 5th respondent's tender was accepted by the Department, the Society is filed OP No. 2770 of 1981 before this Court for the issue of a writ of certiorari to quash the order of the Director General of Civil Aviation awarding the contract to the 5th respondent. this Court by judgment dated 22nd September, 1981 dismissed the writ petition as there was no ground made out for interference by this Court against the order of the Department settling the contract with the 5th respondent. A copy of the judgment is produced along with the counter affidavit of the 5th respondent as Ext. R2(h). The Union also filed a writ petition OP No. 4937 of 1981 for the issue of a writ of mandamus to direct the Civil Aviation Department and its officers to forebear from allowing the 5th respondent to carry on the work of porterage in the Trivandrum Civil Aerodrome in pursuance to the contract given to him without employing the 98 members of the Union who were doing porterage work as contract labourers under the Society. This writ petition was dismissed by a learned Judge of the Court on 3rd January, 1984 on the representation made by the counsel for the petitioner that the O.P. has become infructuous. It is after the dismissal of OP Nos. 2770 and 4937 of 1981 by the Society and the Union respectively that they have filed the present OP Nos. 1053 and 1056 of 1984. The offers to purchase the privilege for higher amounts submitted by the Society and the petitioner in OP No. 1055 of 1984 are subsequent to the acceptance of the 5th respondent's tender. They are not therefore entitled to have the contract awarded to them for the reason of a higher offer subsequent to the acceptance of the 5tn respondent's tender.

3. The only other ground urged on behalf of the petitioners in these original petitions is that the members of the Union as well as of the Society are workmen falling under the definition of 'contract labour' in Section 2(2)(b) of the Contract Labour (Regulation and Abolition) Act, 1970, (Act 37 of 1970) and they are therefore entitled to be absorbed in the service of the Civil Aviation Department or at any rate they are entitled to be engaged in the work of porterage in the Civil Aerodrome, Trivandrum. The contract in the present case is relating to a licence or privilege that the Civil Aviation Department is conferring on the contractor. The work involved is not a work in connection with the establishment and the Civil Aviation Department is not obliged to do the porterage service to the air travel passengers. By the award of the contract the contractor is given the privilege or a licence to enter the premises of the Trivandrum Airport for the purpose of rendering service to the air travel passengers and earn wages for the work of porterage upto the point of delivery of goods and baggages at the booking counter and removal of the same from the delivery point. It cannot therefore be said that by doing such work the members of the Union and the Society had been rendering any service to the Civil Aviation Department. On the other hand they were only employees of the respective contractors who were given the privilege of entering the airport area for the purpose of doing the service at a price settled on acceptance of the highest tender, for such privilege or licence. The Civil Aviation Department is not therefore in any way bound to absorb the members of the Society or the Union into its service. The Civil Aviation Department is not obliged to insist that the successive contractors should employ these workmen. It is the case of the petitioners in these writ petitions that the members of the Union as well as of the Society are contract labourers entitled to the privileges of the Contract Labour (Regulation and Abolition) Act, 1970. As per the said 'Act' a workman shall be deemed to be employed as 'contract labour' in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer (vide Section 2(2)(b)). The Act, as its preamble shows, is to regulate the employment of contract labour in certain establishments and to provide for the abolition of contract labour in certain circumstances. As per Sub-section (4) of Section 1 the Act applies to the establishments mentioned therein as well as to every contractor of the establishment who employs the number of workmen referred to in Clause(b). The expressions 'contract labour', 'contractor', 'establishment' and 'principal employer' are defined in Section 2 of the Act. Section 3 provides for the constitution of the Central Advisory Contract Labour Board by the Central Government and Section 4 deals with the constitution of a similar Advisory Board by the State Government. Chapter III deals with the registration of Establishments employing contract 5 labour. Section 10 empowers the appropriate Government after consultation with the Central Board or the State Board, as the case may be, to prohibit by notification in the official gazette employment of contract labour in any process 10 operation or other work in the establishment. Chapter IV relates to the licensing of contractors and Chapter V provides for the welfare and health of contract labour. Chapter VI relates to penalties and procedure and Chapter VII deals with miscellaneous matters. Section 29 makes it obligatory of a principal employer and contractor to maintain the registers and records as provided for therein. Section 21 makes the contractor responsible for payment of wages to the contract labour. Sub-section (2) of Section 21 makes it obligatory on every principal employer to nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. The sub-section also casts a duty on such representative to certify the amounts paid as wages prescribed by the rules. Sub-section (4) makes the principal employer liable to pay wages in full or the unpaid balance due, as the case may be, in case the contractor fails to make the payments within the period prescribed. It also enables the principal employer to recover from the contractor the amount so paid to the contract labour. The Act does not provide for permanency of employment of contract labour. A succeeding contractor is not obliged to absorb the workers of a previous contractor into his service. The Civil Aviation Department who sells the privilege to do porterage in its premises cannot be considered to be the principal employer within the meaning of the Act, for, the work done by the contract labour is not part of the work of the establishment. The members of the Union were the employees of the Society and the Society was the contractor on whom the licence or the privilege to enter the premises of the airport and do porterage service for the air travel passengers wag, conferred for a period of two years commencing on 6th December, 1980. The rights if any of The contract labour are only against their employer viz., the Society. If on the other hand the Society is to be understood as consisting of its members as contended by the counsel for the petitioner, the members of the Society do not even fall within the definition of 'contract labour'. They were only persons doing service on behalf of the Society of which they are members.

4. For the aforesaid reasons the petitioners are not entitled to any relief in these writ petitions. The Ops are dismissed. There will be no order as to costs.


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