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Indian Oil Corporation Ltd. and Anr. Vs. Indian Oil Corporation Maintenance Contractor's Workers' Union and Ors. (19.05.2000 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Appellate Jurisdiction M.A.T. No. 3557 of 1999 M.A.T. No. 4260 of 1999
Judge
Reported in(2000)3CALLT288(HC),[2001(88)FLR850],(2001)ILLJ643Cal
Acts Contract Labour (Regulation and Abolition) Act, 1970 - Sections 10 (1) and (2), 20 and 21;; Constitution of India - Articles 32, 136 and 226;; Industrial Disputes Act, 1947 - Sections 2 and 18
AppellantIndian Oil Corporation Ltd. and Anr.;Union of India
RespondentIndian Oil Corporation Maintenance Contractor's Workers' Union and Ors.;Indian Oil Corporation Mai
Appellant Advocate Dr. Tapas Banerjee, ;Mr. N.K. Meheta and ;Mr. Prabir Kumar Bhowmick, Advs.;Mr. Hirak Mitra, ;Mr. M.M. Das, ;Mr. Arun Kanti Bera and ;Mr. S.S. Akhtar, Advs.
Respondent Advocate Mr. Dinesh Ch. Roy and ;Ms. Anmola Jha, Advs.
Cases Referred & Anr. v. P. Sunil Kumar
Excerpt:
- s.b. sinha, j. 1. the jurisdiction of this court to direct the appropriate government to issue a notification under section 10(1) of the contract labour (regulation and abolition) act, 1970 (hereinafter called and referred for the sake of brevity of this case as 'the said act') and to further direct the appellant herein to absorb the writ petitioner respondents is in question in this appeal.2. the writ petitioners who were 171 in numbers filed an application under article 226 of constitution of india before this court marked as c.o. no. 6268(w) of 1990 praying for the following reliefs :--'(a) a writ in the nature of mandamus commanding the respondents to absorb the petitioners permanently in the regular establishment and to extend all service benefits as enjoyed by similarly.....
Judgment:

S.B. Sinha, J.

1. The jurisdiction of this Court to direct the appropriate Government to issue a notification under section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter called and referred for the sake of brevity of this case as 'the said Act') and to further direct the Appellant herein to absorb the writ petitioner respondents is in question in this appeal.

2. The writ petitioners who were 171 in numbers filed an application under Article 226 of Constitution of India before this Court marked as C.O. No. 6268(W) of 1990 praying for the following reliefs :--

'(a) A writ in the nature of Mandamus commanding the respondents to absorb the petitioners permanently in the regular establishment and to extend all service benefits as enjoyed by similarly circumstanced employees who are under the regular establishment of them;

(b) A writ in the nature of Mandamus commanding the respondents not to appoint any staff like the petitioners directly until and unless the petitioners are totally absorbed in the regular establishment.'

3. The ground upon which such prayer was made was that although they had been working in their respective posts in the maintenance work of the Township of Indian Oil Corporation at Haldia through the contractors, but as the principal employer had pervasive control over the performance of thejob, they are entitled to be absorbed in their services. The fact that the writ petitioners were appointed by various contractors from the years 1972 to 1980 and further the fact that although the contractors had been appointed by one contractor, despite termination of such contract they had been retained in service by the successor contractors is not in dispute.

4. Before the Central Government a demand was raised by the writ petitioners to Issue a notification abolishing employment of contract labour in terms of section 10(1) of the said Act purported to be on the basis of the decision of the Apex Court in Air India Statutory Corporation v. United Labour Unton, reported in : (1997)ILLJ1113SC , but the correctness of the said decision having been questioned, the matter now stand referred to a larger bench by a Division Bench of the Apex Court in Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha & Ors., reported in 1998(78) FLR 389 and F.C.I. Bombay & Ors. v. Transport & Dock Workers Union & Ors., reported in : (1999)IILLJ1389SC , the Union of India has refused to consider their cases till a decision is arrived at by the Supreme Court.

5. The learned trial Judge after hearing the counsel for the parties held :--

'After considering the facts and circumstances of this case as it appears to me that the petitioners are working to maintain the township of the I.O.C. and in fact are working under supervision of the Estate Officer and the performance of such work is only for maintaining the said township. The work allotted to the petitioners is through the Estate Officer of the I.O.C. The performance report is also looked after by the I.O.C. or on its behalf and I do not have any hesitation to hold that the petitioners are directly linked and co-related hour to hour job of the respondent establishment and such job is perennial in nature. It further appears from the facts of this case that although the contractors have been changed from time to time by the I.O.C. but the petitioners were not changed and/or working under the said contractors on the basis of the agreement between the contractors and the I.O.C. and I do not have any hesitation to hold that the works have been allotted to the petitioners only to get monetary benefit by the said Company and as such I do not have any hesitation to hold that the said contractors are merely the agents of the Company and at the instance of the Company Petitioners are working and in fact has spent their lives for so many years which in my opinion attracts the policy which has been laid down by the Hon'ble Supreme Court of India and I direct the Central Government to issue the notice Immediately to the said I.O.C. Limited under section 10(1) of the said Act and further upon receipt of the said notice the respondents shall take necessary steps to absorb the petitioners within a period of 6(six) weeks.'

6. Dr. Tapas Banerjee, the learned counsel appearing on behalf of the Indian Oil Corporation, infer alia, submitted that the learned trial Judge failed to consider the fact that the petitioners are parties to several tripartite settlements arrived at in course of conciliation proceedings which are at pages 86-89 (2-7-84), 90-92(7-9-88), 205-208 (2-7-84). 209-211 (7-9-88) & 212-215(21-3-95) of the Paper Book entered into by and between the contract labourers and contractors and, thus, they cannot now turn roundand contend that they were employees of the Appellant. It is also admitted, contends Dr. Banerjee, that both the contractors as also principal employer held licences under the provisions of the said Act, and, thus, the learned trial Judge erred in law in passing the impugned judgment.

7. Our attention has further been drawn to the fact that by reason of two representations dated 9.7.98 (annexure 'C') and 29.7.98 (annexure 'C'), the writ petitioners themselves prayed for abolition of contract labour on the ground that the Jobs performed by them is of perennial in nature and, thus also they now not be allowed to contend that they had been working directly under the Appellant herein. In any event, the learned counsel contended, that the Court in exercise of its jurisdiction under Article 226 of the Constitution of India could not have direct Issuance of a notification under section 10(1) of the Act which is within the exclusive domain of the appropriate Government. Strong reliance in this connection has been placed on C.M.D.A. v. AJit Kr. Majumdar, reported in 2000(1) CLJ 327. The learned counsel, further, contends that the decision of the apex Court in Secretary, Haryana State Electricity Board v. Suresh & Ore, reported in : (1999)ILLJ1086SC cannot be said to have any application whatsoever in the Instant case and in any event a different note had been struck by the apex Court in Indian Petrochemicals Corporation Ltd. v. Shramik Sena, reported in .

8. Mr. Hirak Mitra, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that the stand taken by the respondent herein to the effect that maintenance of township would not come within the purview of establishment is itself a matter which could have been decided by the High Court only. According to the learned counsel, the agreement entered into by and between the principal employer and the contractor would clearly show that beginning from selection till removal the engineer-in-charge or other authorised representative of the Indian Oil Corporation, including location, scope of work, number of workmen etc., has some say in the matter and, thus, the learned trial Judge has rightly Issued the impugned directions. In this connection, our attention 'has been' drawn to various clauses of the contract, it was submitted that as Central Government has already refused to perform its statutory duties. It will result in futility If the matter is referred to Central Government once-over again.

9. Mr. Mitter would urge that there are several decisions wherein the apex Court has directed abolition of contract labour and, thus, it cannot be said that this Court has no power to issue such direction. Reliance has been placed on Sankar Mukherjee & Ors. v. Union of India & Ors., reported in : (1990)IILLJ443SC and Mohanan K.D. v. Union of India, reported in : (1987)ILLJ345SC . It was further submitted that when a statutory authority has a discretion in the matter, the writ Court can also issue necessary direction when conditions therefore are satisfied, strong reliance in this regard has been placed on Comptroller and Auditor General of India. Gain Prakash, New Delhi v. K. S. Jagannathan, reported in : [1986]2SCR17 , Union of India & Ors. v. Subir Mukherji & Others, reported in : AIR1998SC2247 , Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha, reported in : (1995)IILLJ790SC and Air India Statutory Corporation v. Union Labour Union, reported in : (1997)ILLJ1113SC .

10. Mr. Mitter would contend that in a situation of this nature, the writ petitioners even could not have raised an industrial dispute and the only remedy open to them was to move this Court under Article 226 of the Constitution of India.

11. The said Act deals with both regulation and abolition of contract labour. Both the powers are absolutely separate and distinct. Whether the contract labourers should be treated to be the employees of principal employer fell for determination from the beginning of development of labour jurisprudence before the apex Court of this country. See : Chintamani Rao v. State of M.P. reported in 1958(2) LLJ 252 and Standard Vaccum Refining Company of India Ltd. v. The Workmen, reported in 1960(1) FLR 98(SC).

12. A new dimension as regard absorption of contract labour in the peculiar facts situation of the case also came up for consideration before the Supreme Court of India in Hussainbhai v. The Alath Factory Tezhilali Union & Ors., reported in : (1978)IILLJ397SC , the ratio whereof has been reiterated in Secretary, Haryana State Electricity Board v. Suresh & Ors., reported in : (1999)ILLJ1086SC .

13. It is true that in Sankar Mukherjee & Ors. v. Union of India, reported in : (1990)IILLJ443SC , the apex Court held :--

' It is surprising to note that more than 40 years after the independence the practice of employing labour through contractors by big companies including Public Sector Companies is still being accepted as a normal feature of labour employment. There is no security of service to the workmen and their wages are far below than that of the regular workmen of the Company.'

14. However, the said Act as regard the mode for abolition of contract labour contains several schemes Including the provision for establishment for setting up of Advisory Boards.

15. Section 10 deals with the procedures to be followed and the factors to be considered by the appropriate Government before issuing a notification prohibiting employment of contract labour; such factors having been enumerated in sub-section (2) thereof.

16. The vires of the said Act came up for consideration in Gammon (India; Ltd. v. Union of India, reported in : (1974)ILLJ489SC wherein it was held that High Court can not direct abolition of contract labour as it is the prerogative of appropriate Government under section 10 of the said Act. The Constitution bench a noted the views taken by different High Courts that where contractors are not registered, their workmen would be deemed to be the employees of the principal employer. It merely held that If violations take place, the violators are exposed to the penal action contemplated in the said Act. The said view had been reiterated in Steel Authority of India v. Contract Workers' Union of Steel Authority of India Ltd., reported in 1994(68) FLR 1256. Thereafter a three Judges Division Bench in R.K. Panda v. Steel Authority of India, reported in : [1994]3SCR1034 held that whether the contract labourers have become the employees of principal employer in course of time and whether the engagement and employment of labourers through a contractor is a more camouflage and smoke screen is essentially a question of fact. The position was clarified in Gujarat Electricity BoardThermal Power Station Hind Majdoor Sabha, reported in : (1995)IILLJ790SC wherein again the apex Court discussed the claim of contract labour for regulation of their services. Relying on R.K. Panda in Boud Bosfcar, reported in Judgment Today 1994(4) SC 53 writ application claiming similar relief was dismissed. Various other Benches of the Supreme Court followed Dinanath and Gujarat Electricity Board (supra) Including Benches comprising of 3 Judges, as for example, All India Contract Mazdoor Trade Union v. Delhi Administration & Ors., reported in ,

17. In Indian Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena & Ors.. reported in 1999 Lab 1C 3078, it has been held :--

'At this stage, it is necessary to note another argument of Mr. Andhyarujina that in view of the fact that there is no abolition of contract labour in the canteen of the appellant's establishment, it is open to the management to manage its canteen through a contractor. Hence, he contends that by virtue of the contract entered Into by the management with the contractor, the respondent--workmen cannot be treated as the employees of the management. This argument would have had some substance if in reality the management had engaged a contractor who was wholly Independent of the management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workmen in this case are in fact the workmen of the management. In the background of this finding, the last argument of Mr. Andhyarujina should also fall.'

18. However, the scenario changed with the decision of Air India Statutory Corporation (supra). As noticed hereinbefore, the correctness of the said decision had been questioned and the matter is now pending consideration before a larger bench. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha, reported in : (1998)ILLJ550SC the following two questions have been referred for decision by a larger bench observing :

'We have given our anxious consideration to the rival contentions. It appears to us that the matter is important and also that the observations of the Constitution Bench in Gammon (at p. 669, 671 of SCR) in so far as section 10 was concerned were indeed not strictly necessary because Gammon was not a case dealing with prohibition of contract labour. Whether the restricted scope attributed to section 10 of the Act given in Gammon is correct or not must, in our opinion, be decided Independently. We are, therefore, of the view that this question is to be decided by a Constitution Bench. We, therefore, refer the' following questions to be decided by a Constitution Bench of this Court :--

No. 1- whether the observations of the Constitution Bench in Gammon in so far as section 10 of the Act is concerned are correct and whether the Central Government under sections 10(1) and (2) of the Act can by notification prohibit contract labour doing the work of cleaning, sweeping, etc. at the residential premises of staff of Sports Complex owned by the Bharat Petroleum Corporation or whether the Central Government under section 10 of the Act has no jurisdiction to abolish such contract labour.

No. 2- Whether the Notification dated 9.12.1976 issued by the Government of India under section 10(1) of the Contract Labour (Regulation &Abolition;) Act, 1970 can be construed as validly abolishing contract labour employed by contractor M/s. Kleenwel (India) Ltd. for cleaning, sweeping etc. In the Staff Housing Colony and Sports Complex owned by the appellant-Corporation and situated at Chembur, Bombay'.

19. However, in Secretary, Haryana State Electricity Board v. Suresh & Ors. reported in 1999(3) SCC 610, the apex Court despite holding that the appointment of contract labour was merely facade and smoke screen proceeded to hold that whenever a contract labour worked for 240 days, he may become entitled to regularisation upon abolition of contract labour. Such observations are merely oblters.

20. We may at this Juncture notice that different views have been struck by different High Courts as regard the power of the Court to entertain a writ application and grant relief directly Irrespective of the fact as to whether any notification under section 10(1) of the said Act has been issued or not. Whereas a learned single Judge of Calcutta High Court in Durgapur Steel Plant v. Kisan Jawanjal & Ors. reported in 2000(1) CHN 21 and Patna High Court in Singhbhum Thikedar Mazdoor Sangh v. State of Bihar, reported in 2000(1) PLJR 455 granted such relief, several Division Bench of this Court refused to grant such relief. See : Sri Raj Kumar Sardar v. Union of India & Ors.. reported, in 1999(1) CLJ 125. The Indian Iron & Steel Co. Ltd., v. United Contract Workers' Union (CITU) Burnpur, Burdwan, W.B. & Ors.. reported in 100 CWN 171, Dhananjay Jana & Ors. v. Union of India & Ors.. reported in 1998(3) SLR 472, Kishan Jawanjal & Ors. v. Steel Authority of India Ltd. & Ors., reported in 1999(4) SLR 532 and an un-reported decision in F.M.A. No. 286 of 1993 (Food Corporation of India & Ors. v. Siba Prasad Karmakar & Ors.), disposed of on 7th April, 2000.

21. In Cangadhar Ghosh v. Da mod ar Valley Corporation &Anr.;, reported in 1998(2) CHN 456, it has been held :-

'It is now well settled principles of law that in terms of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, no relationship of employer and employee come Into being. In terms of the provisions of the aforementioned Act, however, the principal employer has certain duties. Such duties are enumerated in section 21 of the said Act. Apart from the duties to be performed by a principal employer in terms of the provisions of the said Act Itself, it has not given any other benefit to an employee. All the claims of an employee of a contractor must be made against the employer by the employee. It is also not a case where the Central Government in exercise of its power under section 10 of the Contract Labour (Regulation and Abolition) Act abolished employment of contract labour in relation to jobs performed by the writ petitioner alongwith others. In absence of such a notification abolishing contract labour, the principal employer is not statutortly obliged to absorb the contractor's labourers. Mr. Majumdar, when questioned very fairly stated that no such notification has been issued by the Central Government. In this view of the matter, only on the basis of the purported deduction of provident fund, the writ petitioner could not have maintained the writ application.'

22. This aspect of the matter has recently fell for consideration before the Delhi High Court in Jospaf Slngh & Ors. v. Commercial Officer/GeneralManager, Airports Authority of India & Ors. reported in 2000 Lab IC 107, wherein also it was held :-

'It would not be necessary to deal with these judgments in detail in view of my aforesaid discussion. Suffice it to say that as per well settled law in all these Judgments, the appropriate remedy for the petitioners is to invoke the machinery under the Industrial Disputes Act.

The position in Law in respect of contract workers under the Contract Labour (Regulation and Abolition) Act can be summarised as under :

1. The Act allows and recognises contract labour and farmers of the Act never puported to abolish it in its entirety.

2. it is for the appropriate Government to decide under section 10 of the Act whether to abolish contract labour in any process, operation or other work in any establishment. For this, procedure is prescribed under section 10(2) of the Act as per which 'appropriate Government' has not only to consult the Board but also take into consideration factors mentioned in section 10(2) which include the consideration as to whether the work being performed by the workers in such establishment is of perennial nature or not. In various judgments Supreme Court has held that this is a function which is to be essentially performed by appropriate Government and not by the High Court under Article 226 of the Constitution of India or Supreme Court under Article 32 of the Constitution of India.

3. If notification under section 10(2) is issued by the appropriate Government then the said establishment in that process, operation or work to which such notification relates, the said establishment can not engage contract labour. Further existing contract labour would become direct employees of the Principal employer-Air India Statutory Corporation case (supra).

4. in the absence of such notification, there is no right which flows from the provisions of the Act for the contract labourers to be absorbed or become the employees of Principal employer and, therefore, such contract labourers cannot approach High Court under Article 226 or Supreme Court under Article 32 or Article 136 of the Constitution of India for claiming regularisation.

5. However, if, in a particular case the contract workers claim that the contract system in the particular process, operation or other work in an establishment is of perennial nature and notwithstanding the fact that Ingredients of section 10(2) of the Contract Labour (Regularisation and Abolition) Act are satisfied the parctice of contract labour is continued, then they can approach the appropriate Government under the Act for issuing necessary notification under section 10(2) of the Contract Labour (Regulation and Abolition) Act.

6. In case the contract workers claim that a particular contract in any process operation or other work in the establishment is sham, and they have become direct employees of the principal employer then the remedy is to raise industrial dispute.'

23. It may be true that in a given case the Court may in exercise of its power of Judicial review, issue direction which the statutory authorities do. But one has to bear in mind that normally writ Court cannot be converted into an Industrial Court. See : Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., reported in : (1964)IILLJ105SC . Gopi Lal Teli v. State of Rajasthan and Ors., reported in 1995 Lab 1C 1105, Tapas Mondal & Ors., v. Eastern Coal Fields Ltd., reported in 1995 Lab IC1433 and Mohini v. G.M. Syndicate Bank, reported in 69 FLR 1061.

24. Similar view has been taken by this Court in Sri Raj Kumar Sardar v. Union of India & Ors., reported in 1999(1) CLJ 125 and recently in an unreported in decision in Indian Oil Corporation Ltd. v. Haldia Refinery Canteen Employees' Union (M.A.T. No. 4310 of 1998) disposed of on 31.3.2000 wherein this Court followed Indian Petro Chemicals Corporation Ltd. (supra).

25. The fact that normally a writ Court will allow the statutory authority to exercise its power is no longer res Judicata. See : State of West Bengal v. Noor Uddin Mallick. The Apex Court observed :--

'It is not in dispute in this case that after the management sent its letter dated 6-8-1992 for the approval of its 31 staff, viz. both teaching and non-teaching stall, both the District Inspector of Schools and the Secretary of the Board sought for certain Information through their letters dated 21-9-1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the Impugned orders. Thus, till this date the appellant-authorities have not yet exercised their discretion. Submission for the respondents was that this Court Itself should examine and decide the question in Issue based on the material on record to set at rest the long-standing Issue. We have no hesitation to decline such a suggestion. The Courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be in appropriate for the Court to substitute Itself for the statutory authorities to decide the matter.

On a perusal of the impugned order, we do not find that any consideration was given in the impugned orders on the Issue in question. This part, the High Court disposed of the main appeal on the date not fixed for the same, white disposing of the application. It seems that in the background of the anxiety of the management, in view of the various proceedings undertaken including contempt proceedings for implementing the learned single Judge's order, the Court. Instead of adverting to the question in Issue, concentrated more to see the said 31 persons be approved within the specified time. As we have held above, without the statutory authority applying its mind for their approval and the impugned order not adjudicating the Issue in question how could the Impugned orders be sustained. The remote suggestion by the learned counsel for the respondents of mala-fide also cannot stand as we do not find, firstly, and such allegation on record nor has any such person by name been impleaded as a party.'

26. It is in the aforementioned context, the submission made by Mr. Hirak Mitter has to be taken into consideration. Once the contract labourershas entered into tripartite settlement in course of conciliation, there cannot be any doubt that the same is binding upon them. Such a settlement coming within the meaning of section 2(p) of the Industrial Disputes Act would have the consequences laid down under section 18 thereof as has been noticed by the apex Court in Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Unlimited, reported in : [1990]3SCR282 wherein it has been held :--

'It may be seen on a plain reading of sub-sections (1) and (3) of section 18 that settlements are divided into two categories, namely, (i) those arrived at outside the conciliation proceedings and (ii) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on others. That is why a settlement arrived at in the course of conciliation proceedings is put on the par with an award made by an adjudicatory authority.'

27. Furthermore, the workmen themselves having entered the aforementioned settlement and further having requested the Central Government to Issue a notification in terms of sub-section (1) of section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 are now estopped and precluded from contending that they are the direct employees of the principal employer.

28. In fact, Mr. Mitter accepted this position of- law.

29. The power of the Central Government to issue a notification under sub-section (1) of section 10 involves human element. While exercising such a jurisdiction, the Central Government is not only to consider the recommendations of the Advisory Committee which function is a statutory one, but also must consider the question as to whether the job is of perennial nature. Even in a case where a decision arrived at that the job of contract labour is of perennial nature, a notification under section 10(1) of the Act would not be issued automatically. The same may only be done upon taking into consideration the factors enumerated in sub-section (2) which would Include the question as regard the number of employees who may be employed on regular basis on abolition of such contract labour.

30. It is, therefore, in our considered view, idle to contend that only because some amount of control is exercised by the principal employer, a relationship of employer and employee would come into being between the principal employer and the contract labourers.

31. It is not a case where the Central Government has refused to exercise its jurisdiction. It has merely postponed consideration of the matters relating to Issuance of notification keeping in view the fact that the question is pending consideration before a larger bench of the Supreme Court. In doing so it may be right or wrong but it cannot be said by any stretch of Imagination that the Central Government has already arrived at a decision which would be an Irretrievable one as was the case in K.I. Shephard & Ors. v. Union of India & Ors., reported in : (1988)ILLJ162SC .

32. In Catering Cleaners of Southern Railway v. Union of India & Anr., reported in : (1987)ILLJ345SC , the apex Court was considering the case of the catering cleaners of Southern Railway through the Contractors wherein it had arrived at a finding of fact that the factors enumerated under subsection (2) of section 10 satisfied. In that situation the Government was directed to take appropriate action and the Southern Railway was restrained from employing contract labour. In that decision the apex Court itself, however, refrained from directing prohibition of contract labour in terms of section 10(1) of the Act but merely in exercise of its jurisdiction under Article 142 of the Constitution of India directed the workmen to continue till the matter is considered by the Central Government

33. In The Comptroller & Auditor General v. K.S. Jagannathan, reported in : [1986]2SCR17 , the apex Court was considering a case where a discretion had been conferred upon the statutory authority. In this case no such discretion can be conferred.

34. Mr. Mitter, may be right in contending that his clients being contract labourers and there being no relationship of employer and employees between the appellant herein and the writ petitioners, no industrial dispute could be raised. It is, however, well settled that in a case of this nature the contract labourers have two options : (1) in a case where a contention is raised that contractors have been appointed by the principal employer merely as facade or by way of smoke screen, an Industrial dispute can be raised as has been done in Hussainbhai (supra) and Haryana State Electricity Board (supra); (2) in a case where the contractor's employees pray for abolition of contract labour, it is only for the appropriate Government to exercise its Jurisdiction in terms of section 10(1) of the said Act

35. The writ petitioners cannot take recourse to both the remedies at the same time for less by filing a writ application in this Court wherein various disputed questions of fact are involved. We may, at the cost of repetition, reiterate that almost in similar situation a Division Bench of this Court in Indian Oil Corporation (supra) has held that there does not exist any relationship of employer and employee between the Indian Oil Corporation and contractor's labours.

36. As a last resort Mr. Mitter submitted that the Court keeping in view the plight of the concerned workmen, should not Interfere with the impugned judgment.

37. It is not in dispute that the writ petitioners are getting the same salary as that of the regular employee keeping in view the fact that both the principal employer and the contractor are registered under the provisions of the said Act and, thus, are bound by the provisions contained in section 21 thereof.

38. It may be that the regular employees are getting certain other benefits and/or facilities but the same by itself is not a factor which would impel this Court to exercise its discretion in favour of all the employees keeping in view the embargo placed on the exercise of jurisdiction of Judicial review of this Court. In any event, in Ashoke Saha v. State of West Bengal & Ors., reported in CAL. L.T. 1999(2) H.C. 1, a Division Bench of this Court observed :--

'In Life insurance Corporation of India v. Mrs. Asha Ramchandra Ambekar & Anr, reported in : (1994)IILLJ173SC , the law has been laid down in the following terms : 'Thus apart from the directions as to appointment on compassionate ground being against statutory provisions, such direction does not take note of this fact, Whatever it may be the Court should not have directed the appointment on compassionate ground. The jurisdiction under mandamus cannot be exercised in that fashion.'

39. In Latham v. Richard Jhonson & Nephew Ltd. reported in 1911-13 AER (Reprint) page 117, Farwell L.J. observed;

'We must be careful not to allow our sympathy with the Infant plaintiff to affect our judgment. Sentiment is a dangerous will O' the Wisp to take as a guide in the search for legal principles.'

40. In the State of Tamil Nadu & Ors. v. St. Joseph Teachers Training College, reported in : [1991]2SCR231 the apex Court observed that Court cannot grant relief on humanitarian ground contrary to law.

41. In Central Board of Secondary Education & Ors. v. Adarsh Kumar Sedhwrayar& Ors., reported in 1998(2) CHN 61, the same principle has been reiterated.

42. In Central Board of Secondary Education v. Nikhil Gulati & Anr., reported in : [1998]1SCR897 , it has been held :--

'Occasional aberrations such as these, whereby ineligible students are permitted, under Court orders, to undertake Board and or University examinations, have caught the attention of this Court many a time. To add to it further, the Courts have almost always observed that the Instance of such aberrations should not be treated as a precedent in furture. Such casual directions by the Court is nothing but an abuse of the process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust that unless the High Court can Justify its decision on principle and precept, it should better desist from passing such orders, for it puts the 'Rule of Law' to a mockery, and promotes rather the 'Rule of Man'.'

43. In CBSE & Anr. v. P. Sunil Kumar & Anr, reported in : [1998]3SCR327 , it has been held :-

'We are conscious of the fact that our order setting aside the Impugned directions of the High Court would cause Injustice to these students. But to permit students of an unaffiliated Institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to Issue certificates in favour of those who have undertaken examination would tantamount to subversl on of law and this Court will not be Justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students.'

44. For the reasons aforementioned we are of the view that the learned trial judge only could Issue 3 direction upon the respondent-Union of India to consider the representation of the writ petitioners and pass an aproprlate order within a time framed. We, therefore, substitute the order passed by the learned trial Judge by directing the Central Government to consider the representations filed by the petitioner on 9-7-98 (annexure-'C') and 29-7-98 (annexure-'D') and pass an appropriate order in accordance with law as expedltlously as possible and preferably within a period of four months from the date of communication of this order irrespective of the fact as to whether the said question is pending before the apex Court Inasmuch as any decision taken by the Central Government shall abide by the decision of the apex Court. Both the appeals are, thus, disposed of. However, in the facts and circumstances of this case there will be no order as to Costs.

M.H.S. Ansari, J.

45. I agree.

Later

Urgent Xerox certified copy of this Judgment may be given on priority basis

46. Appeals disposed of


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