No Acts & Articles mentioned in this case
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CASE NO.:
Appeal (civil) 6009-6010 of 2001
PETITIONER:
STEEL AUTHORITY OF INDIA LTD. & ORS. ETC.ETC.
RESPONDENT:
NATIONAL UNION WATER FRONT WORKERS & ORS.
DATE OF JUDGMENT: 30/08/2001
BENCH:
B.N.KIRPAL & S.S.M.QUADRI & M.B.SHAH & RUMA PAL & K.G.BALAKRISHNAN
JUDGMENT:
JUDGMENT
[Arising out of S.L.P. (C) NOS.12657-58/98]
With
(C.A.No.6011/2001@S.L.P.(C) No.20926/1998, C.A. No.6012/2001
@ S.L.P.(C) No.9568/2000, T.C. No.1/2000, T.C. Nos.5 to 7/2000,
T.C.(C)No.14/2000, T.C.Nos.17&18/2000, C.A.Nos.719-
720/2001,C.A.Nos.5798-99/98, C.A.Nos.6013-22/2001 @ SLP(C)
Nos.16122- 31/98, C.A. No.6023/2001 @ SLP(C) No.19391/99,
C.A.Nos.4188-94/98, C.A.No.4195/98, C.A. Nos.6024-25/2001
@SLP (C) Nos.8282-83/2000, TP(C) No.169/2000, TP(C) Nos.284-
302/2000, C.A.No.6029/2001@ SLP (C) No.16346/2000,
C.A.Nos.6030-34/2001@SLP(C)Nos.13146-150/2000,T.P.(C) No.308
-337/2000, C.A.No.141/2001)
DELIVERED BY:
S.S.M.QUADRI, J.
SYED SHAH MOHAMMED QUADRI, J.
Leave is granted in the Special Leave petitions.
In Food Corporation of India, Bombay & Ors. vs. Transport
& Dock Workers Union & Ors. , a two-Judge Bench of this
Court, having noticed the conflict of opinion between different
Benches including two three-Judge Benches of this Court on the
interpretation of the expression appropriate Government in
Section 2(1)(a) of the Contract Labour (Regulation and Abolition)
Act, 1970 (for short, the CLRA Act) and in Section 2(a) of the
Industrial Disputes Act, 1947 (for short, the I.D.Act) and having
regard to the importance of the question of automatic absorption
of the contract labour in the establishment of the principal
employer as a consequence of an abolition notification issued
under Section 10(1) of the CLRA Act, referred these cases to a
larger Bench. The other cases were tagged with the said case as
the same questions arise in them also. That is how these cases
have come up before us.
To comprehend the controversy in these cases, it will
suffice to refer to the facts in Civil Appeal Nos.6009-10 of 2001@
S.L.P.Nos.12657-12658 of 1998 which are preferred from the
judgment and order of the Calcutta High Court in W.P.No.1773 of
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1994 and FMAT No.1460 of 1994 dated July 3, 1998. The
appellants, a Central Government Company and its branch
manager, are engaged in the manufacture and sale of various types
of iron and steel materials in its plants located in various States of
India. The business of the appellants includes import and export
of several products and bye-products through Central Marketing
Organisation, a marketing unit of the appellant, having network of
branches in different parts of India. The work of handling the
goods in the stockyards of the appellants, was being entrusted to
contractors after calling for tenders in that behalf. The
Government of West Bengal issued notification dated July 15,
1989 under Section 10(1) of the CLRA Act (referred to in this
judgment as the prohibition notification) prohibiting the
employment of contract labour in four specified stockyards of the
appellants at Calcutta. On the representation of the appellants, the
Government of West Bengal kept in abeyance the said
notification initially for a period of six months by notification
dated August 28, 1989 and thereafter extended that period from
time to time. It appears that the State Government did not,
however, extend the period beyond August 31, 1994.
The first respondent-Union representing the cause of 353
contract labourers filed Writ Petition No.10108/89 in the Calcutta
High Court seeking a direction to the appellants to absorb the
contract labour in their regular establishment in view of the
prohibition notification of the State Government dated July 15,
1989 and further praying that the notification dated August 28,
1989, keeping the prohibition notification in abeyance, be quashed.
A learned Single Judge of the High Court allowed the writ petition,
set aside the notification dated August 28, 1989 and all subsequent
notifications extending the period and directed that the contract
labour be absorbed and regularised from the date of prohibition
notification - July 15, 1989 - within six months from the date of the
judgment i.e., April 25, 1994.
The appellants adopted a two-pronged attack strategy.
Assailing the said judgment of the learned Single Judge, they
filed writ appeal (FMAT No.1460 of 1994) and challenging the
prohibition notification of July 15, 1989 they filed Writ Petition
No.1733 of 1994 in the Calcutta High Court. While these cases
were pending before the High Court, this Court delivered
judgment in Air India Statutory Corporation & Ors. vs. United
Labour Union & Ors. holding, inter alia, that in case of Central
Government Companies the appropriate Government is the
Central Government and thus upheld the validity of the
notification dated December 9, 1976 issued by the Central
Government under Section 10(1) of the CLRA Act prohibiting
employment of contract labour in all establishments of the Central
Government Companies. On July 3, 1998, a Division Bench of
the High Court nonetheless dismissed the writ appeal as well as
the writ petition filed by the appellants taking the view that on the
relevant date the appropriate Government was the State
Government. The legality of that judgment and order is under
challenge in these appeals.
Three points arise for determination in these appeals :
(i) what is the true and correct import of the expression
appropriate government as defined in clause (a) of sub-section
(1) of Section 2 of the CLRA Act;
(ii) whether the notification dated December 9, 1976 issued by
the Central Government under Section 10(1) of the CLRA Act is
valid and applies to all Central Government companies; and
(iii) whether automatic absorption of contract labour, working
in the establishment of the principal employer as regular
employees, follows on issuance of a valid notification under
Section 10(1) of the CLRA Act, prohibiting the contract labour in
the concerned establishment.
Inasmuch as in some appeals the principal employers are the
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appellants and in some others the contract labour or the union of
employees is in appeal, we shall refer to the parties in this
judgment as the principal employer and the contract labour.
Before taking up these points, it needs to be noticed that
the history of exploitation of labour is as old as the history of
civilisation itself. There has been an ongoing struggle by
labourers and their organisations against such exploitation but it
continues in one form or the other. The Industrial Disputes Act,
1947 is an important legislation in the direction of attaining fair
treatment to labour and industrial peace which are sine qua non
for sustained economic growth of any country. The best
description of that Act is given by Krishna Iyer, J, speaking for a
three-Judge Bench of this Court in Life Insurance Corporation of
India Vs. D.J. Bahadur and Ors. , thus :
The Industrial Disputes Act is a benign
measure which seeks to pre-empt industrial
tensions, provide the mechanics of dispute-
resolutions and set up the necessary
infrastructure so that the energies of partners
in production may not be dissipated in
counter-productive battles and assurance of
industrial justice may create a climate of
goodwill.
After the advent of the Constitution of India, the State is
under an obligation to improve the lot of the work force. Article
23 prohibits, inter alia, begar and other similar forms of forced
labour. The Directive Principle of State Policy incorporated in
Article 38 mandates the State to secure a social order for
promotion of welfare of the people and to establish an egalitarian
society. Article 39 enumerates the principles of policy of the State
which include welfare measures for the workers. The State
policy embodied in Article 43 mandates the State to endeavour to
secure, by a suitable legislation or economic organisation or in
any other way for all workers, agricultural, industrial or otherwise,
work, a living wage, conditions of work ensuring a decent
standard of life and full enjoyment of leisure and social and
cultural opportunities. Article 43A enjoins on the State to take
steps by suitable legislation or in any other way to secure the
participation of workers in the management of undertakings,
establishment, or other organisations engaged in any industry.
The fundamental rights enshrined in Articles 14 and 16 guarantee
equality before law and equality of opportunity in public
employment. Of course, the preamble to the Constitution is the
lodestar and guides those who find themselves in a grey area
while dealing with its provisions. It is now well settled that in
interpreting a beneficial legislation enacted to give effect to
directive principles of the state policy which is otherwise
constitutionally valid, the consideration of the Court cannot be
divorced from those objectives. In a case of ambiguity in the
language of a beneficial labour legislation, the Courts have to
resolve the quandary in favour of conferment of, rather than
denial of, a benefit on the labour by the legislature but without
rewriting and/or doing violence to the provisions of the
enactment.
The CLRA Act was enacted by the Parliament to deal with
the abuses of contract labour system.` It appears that the
Parliament adopted twin measures to curb the abuses of
employment of contract labour -- the first is to regulate
employment of contract labour suitably and the second is to
abolish it in certain circumstances. This approach is clearly
discernible from the provisions of the CLRA Act which came into
force on February 10, 1971. A perusal of the Statement of
Objects and Reasons shows that in respect of such categories as
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may be notified by the appropriate Government, in the light of the
prescribed criteria, the contract labour will be abolished and in
respect of the other categories the service conditions of the
contract labour will be regulated. Before concentrating on the
relevant provisions of the CLRA Act, it may be useful to have a
birds eye view of that Act. It contains seven chapters. Chapter I
has two sections; the first relates to the commencement and
application of the Act and the second defines the terms used
therein. Chapter II which has three sections provides for the
constitution of a Central Advisory Board by the Central
Government and a State Advisory Board by the State Government
and empowers the Boards to constitute various committees.
Chapter III contains regulatory provisions for registration of
establishments which employ contract labour. Section 10 which
prohibits the employment of contract labour falls in this chapter;
we shall revert to it presently. Chapter IV contains provisions for
purposes of licensing of Contractors to make sure that those who
undertake or execute any work through contract labour, adhere to
the terms and conditions of licences issued in that behalf. Power
is reserved for revocation, suspension and amendment of licenses
by the Licensing Officer and a provision is also made for appeal
against the order of the Licensing Officer. Chapter V takes care
of the welfare and health of contract labour obliging the
appropriate Government to make rules to ensure that the
requirements of canteen, rest-rooms and other facilities like
sufficient supply of wholesome drinking water at convenient
places, sufficient number of latrines and urinals accessible to the
contract labour in the establishment, washing facilities and the
first aid facilities, are complied with by the contractor. Where the
contractor fails to provide these facilities the principal employer is
enjoined to provide canteen, rest-rooms etc., mentioned above,
for the benefit of the contract labour. Though the contractor is
made responsible for payment of wages to each worker employed
by him as contract labour before the prescribed period yet for
effective implementation of this requirement, care is taken to
ensure presence of a nominee of the principal employer at the
time of the disbursement of wages. Here again, it is prescribed
that if the contractor fails to pay the wages to the contract labour,
the principal employer shall pay the full wages or unpaid wages,
as the case may be, to the contract labour and a right is conferred
on him to recover the same from the amount payable to the
contractor; if however, no amount is payable to him then such
amount is treated as a debt due by the contractor to the principal
employer. Chapter VI deals with the contravention of the
provisions of the Act, prescribes offences and lays down the
procedure for prosecution of the offenders. Chapter VII is titled
miscellaneous and it contains eight sections which need not be
elaborated here.
Now we shall advert to point No.1.
The learned Solicitor General for the appellant - principal
employer - has conceded that the State Government is the
appropriate Government in respect of the establishments of the
Central Government companies in question. Mr. Shanti Bhushan,
the learned senior counsel appearing for the respondents - contract
labour in these appeals, submitted that in view of the concession
made by the learned Solicitor General, he would not address the
Court on that aspect and prayed that the judgment and order of the
High Court, under appeal, be confirmed.
Mr. G.L. Sanghi, the learned senior counsel appearing for
the appellants in the appeals filed by the Food Corporation of
India (FCI)- principal employer-and Mr. K.K. Venugopal, the
learned senior counsel for the appellant - the principal employer -
in the appeals filed by the Oil and Natural Gas Commission
(ONGC) among others sail with the learned Solicitor General,
submitted that the appropriate Government on the relevant date
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was the State Government and for that reason the notification
issued by the Central Government on December 9, 1976 was
never sought to be applied to the establishments of FCI and
ONGC but in view of the amendment of the definition of the
expression, appropriate Government with effect from January
28, 1986, the Central Government would thereafter be the
appropriate Government. The learned Additional Solicitor
General who appeared for Indian Farmers and Fertiliser Co-
operative Ltd. ( IFFCO) and Mr. B. Sen, the learned senior
counsel appearing for the appellant, adopted the arguments of the
learned Solicitor General on this point.
Ms. Indira Jaisingh, the learned senior counsel appearing
for the contract labour (respondents in the appeals filed by FCI),
argued that in the case of FCI the appropriate Government before
and after the notification issued by the Central Government on
January 28, 1986, was the Central Government.
Mr. K.K. Singhvi, the learned senior counsel for the
contract labour (respondents in the appeal of ONGC), has argued
that all Central Government Undertakings which fall within the
meaning of other authorities in Article 12 are agents or
instrumentalities of the State functioning under the authority of
the Central Government, as such the Central Government will be
the appropriate Government; the Heavy Engineerings case was
wrongly decided by the two Judge Bench of this Court which was
followed by a three-Judge Bench in the cases of Hindustan
Aeronautics Ltd. and Rashtriya Mill Mazdoor Sangh; in those
cases the judgments of this Court in Sukhdev Singhs case, Ajay
Hasias case, Central Inland Water Transport Corporations case,
C. V. Ramans case and R.D. Shetty International Airports case
were not considered; the approach of the Court in the Heavy
Engineerings case was based on private law interpretation and
that the approach of the Court ought to be based on public law
interpretation. It is submitted that in a catena of decisions of this
Court, it has been held that where there is deep and pervasive
control, a company registered under the Companies Act or a
society registered under the Societies Act would be State and,
therefore, it would satisfy the requirement of the definition of
appropriate Government. He contended that in Air Indias case
(supra) a three-Judge Bench of this Court had correctly decided
that for all the establishments of the Air India the Central
Government was the appropriate Government, which deserved to
be confirmed by us.
Notwithstanding the concession made by the learned
Solicitor General which has the support of Mr. Shanti Bhushan,
we cannot give a quietus to this issue as the other learned counsel
strenuously canvassed to the contra. We, therefore, propose to
decide this point in the light of the contentions put forth by the
other learned counsel.
To begin with the relevant provisions of Section 1 of the
CLRA Act which deals, inter alia, with its extent and
application, may be noticed here:
Section 1 -
(1) to (3) *** *** ***
(4) - It applies --
(a) to every establishment in which twenty or
more workmen are employed or were
employed on any day of the preceding
twelve months as contract labour;
(b) to every contractor who employs or who
employed on any day of the preceding twelve
months twenty or more workmen :
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Provided that the appropriate Government may,
after giving not less than two months notice of its
intention so to do, by notification in the Official
Gazette, apply the provisions of this Act to any
establishment or contractor employing such
number of workmen less than twenty as may be
specified in the notification.
(5)(a) It shall not apply to establishments in which
work only of an intermittent or casual
nature is performed.
(b) If a question arises whether work performed in
an establishment is of an intermittent or casual
nature, the appropriate Government shall decide
the question after consultation with the Central
Board or, as the case may be, a State Board, and
its decision shall be final.
Explanation : For the purpose of this sub-section,
work performed in an establishment shall not be
deemed to be of an intermittent nature --
(i) if it was performed for more than one
hundred and twenty days in the preceding
twelve months, or
(ii) if it is of a seasonal character and is
performed for more than sixty days in a
year.
A perusal of this section brings out that CLRA Act applies
to every establishment and every contractor of the specified
description. However, the establishments in which work only of
an intermittent or casual nature is performed are excluded from
the purview of the Act.
We shall also refer to definitions of relevant terms in sub-
section (1) of Section 2 which contains interpretation clauses.
Clause (a) defines the expression appropriate Government thus :
2(1) In this Act, unless the context otherwise
requires --
(a) appropriate Government means --
(i) in relation to an establishment in
respect of which the appropriate
Government under the Industrial
Disputes Act, 1947 (14 of 1947)
is the Central Government, the
Central Government;
(ii) in relation to any other
establishment, the Government
of the State in which that other
establishment is situated.
Addressing to the definition of appropriate Government,
it may be pointed out that clause (a) of Section 2(1) was
substituted by the Contract Labour (Regulation and Abolition)
Amendment Act, 1986 with effect from January 28, 1986. Before
the said amendment, the definition read as under :
2(1). (a) appropriate Government means --
(i) in relation to any establishment
pertaining to any industry carried
on by or under the authority of
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the Central Government, or
pertaining to any such controlled
industry as may be specified in
this behalf by the Central
Government; or
(ii) any establishment of any
railway, Cantonment Board,
major port, mine or oil-field, or
(iii) any establishment of a banking
or insurance company,
the Central Government,
(2) in relation to any other establishment the
Government of the State in which that other
establishment is situated.
A plain reading of the unamended definition shows that the
Central Government will be the appropriate Government if the
establishment in question answers the description given in sub-
clauses (i) to (iii). And in relation to any other establishment, the
Government of the State, in which the establishment in question
is situated, will be the appropriate Government. So far as sub-
clauses (ii) and (iii) are concerned, they present no difficulty.
The discussion has centred round sub-clause (i). It may be seen
that sub-clause (i) has two limbs. The first limb takes in an
establishment pertaining to any industry carried on by or under the
authority of the Central Government and the second limb
embraces such controlled industries as may be specified in that
behalf by the Central Government.
Before embarking upon the discussion on the first limb, it
will be apt to advert to the amended definition of appropriate
Government which bears the same meaning as given in clause
(a) of Section 2 of the Industrial Disputes Act, quoted hereunder:
2. (a) appropriate Government means --
(i) in relation to any industrial disputes
concerning any industry carried on by or under
the authority of the Central Government or by a
railway company [or concerning any such
controlled industry as may be specified in this
behalf by the Central Government] or in relation
to an industrial dispute concerning [a Dock
Labour Board established under section 5-A of
the Dock Workers (Regulation of Employment)
Act, 1948 (9 of 1948), or [the Industrial Finance
Corporation of India Limited formed and
registered under the Companies Act, 1956 (1 of
1956)], or the Employees State Insurance
Corporation established under section 3 of the
Employees State Insurance Act, 1948 (34 of
1948), or the Board of trustees constituted under
section 3-A of the Coal Mines Provident Fund
and Miscellaneous Provisions Act, 1948 (46 of
1948), or the Central Board of Trustees and the
State Boards of Trustees constituted under
section 5-A and section 5-B, respectively, of the
Employees Provident Fund and Miscellaneous
Provisions Act, 1952 (19 of 1952), or the Life
Insurance Corporation Act, 1956 (31 of 1956),
or [the Oil and Natural Gas Corporation Limited
registered under the Companies Act, 1956 (1 of
1956)], or the Deposit Insurance and Credit
Insurance and Credit Guarantee Corporation
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established under section 3 of the Deposit
Insurance and Credit Guarantee Corporation
Act, 1961 (47 of 1961), or the Central
Warehousing Corporation established under
section 3 of the Warehousing Corporations Act,
1962 (58 of 1962), or the Unit Trust of India
established under section 3 of the Unit Trust of
India Act, 1963 (52 of 1963), or the Food
Corporation of India established under section 3,
or a Board of Management established for two
or more contiguous States under section 16 of
the Food Corporations Act, 1964 (37 of 1964),
or [the Airports Authority of India constituted
under section 3 of the Airports Authority of
India Act, 1994 (55 of 1994)], or a Regional
Rural Bank established under section 3 of the
Regional Rural Banks Act, 1976 (21 of 1976), or
the Export Credit and Guarantee Corporation
Limited or the Industrial Reconstruction
Corporation of India Limited], or [the National
Housing Bank established under section 3 of the
National Housing Bank Act, 1987 (53 of 1987)
or [the Banking Service Commission established
under section 3 of the Banking Service
Commission Act, 1975,] or [an air transport
service, or a banking or an insurance company],
a mine, an oil field], (a Cantonment Board] or a
major port, the Central Government; and
(ii) in relation to any other industrial dispute,
the State Government;
An analysis of this provision shows that the Central
Government will be the appropriate Government in relation to an
industrial dispute concerning :
(1) any industry carried on by or under the authority of
the Central Government, or by a railway company;
or
(2) any such controlled industry as may be specified in
this behalf by the Central Government; or
(3) the enumerated industries (which form part of the
definition quoted above and need not be reproduced
here).
What is evident is that the phrase any industry carried on
by or under the authority of the Central Government is a
common factor in both the unamended as well as the amended
definition.
It is a well-settled proposition of law that the function of
the Court is to interpret the Statute to ascertain the intent of the
legislature-Parliament. Where the language of the Statute is clear
and explicit the Court must give effect to it because in that case
words of the Statute unequivocally speak the intention of the
legislature. This rule of literal interpretation has to be adhered to
and a provision in the Statute has to be understood in its
ordinary natural sense unless the Court finds that the provision
sought to be interpreted is vague or obscurely worded in which
event the other principles of interpretation may be called in aid. A
plain reading of the said phrase, under interpretation, shows that it
is lucid and clear. There is no obscurity, no ambiguity and no
abstruseness. Therefore the words used therein must be
construed in their natural ordinary meaning as commonly
understood.
We are afraid we cannot accept the contention that in
construing that expression or for that matter any of the provisions
of the CLRA Act, the principle of literal interpretation has to be
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discarded as it represents common law approach applicable only
to private law field and has no relevance when tested on the anvil
of Article 14, and instead the principle of public law interpretation
should be adopted. To accept that contention, in our view, would
amount to abandoning a straight route and oft treaded road in an
attempt to create a pathway in a wilderness which can only lead
astray. We have not come across any principles of public law
interpretation as opposed to private law interpretation for
interpreting a statute either in any authoritative treatise on
interpretation of statutes or in pronouncement of any Court nor is
any authority of this Court or any other Court brought to our
notice. We may, however, mention that there does exist a
distinction between public law and private law. This has been
succinctly brought out by the Rt. Hon. Sir Harry Woolf (as he
then was, now Lord Woolf) in The Second Harry Street Lecture
delivered in the University of Manchester on February 19, 1986.
The learned Law Lord stated :
I regard public law as being the system which
enforces the proper performance by public
bodies of the duties which they owe to the
public. I regard private law as being the system
which protects the private rights of private
individuals or the private rights of public
bodies. The critical distinction arises out of the
fact that it is the public as a whole, or in the
case of local government the public in the
locality, who are the beneficiaries of what is
protected by public law and it is the individuals
or bodies entitled to the rights who are the
beneficiaries of the protection provided by
private law.
The divide between the public law and the private law is
material in regard to the remedies which could be availed when
enforcing the rights, public or private, but not in regard to
interpretation of the Statutes. We are not beset with the
procedural mandate as in the R.S.C. Order 53 of 1977 of England
which was the subject matter of consideration by the House of
Lords in OReilly Vs. Mackman . In that case the appellant
sought declaration by ordinary action that the order passed by the
Prisons Board of visitors awarding penalty against him was void
and of no effect. The House of Lords, dismissing the appeal filed
against the judgment of the Court of Appeal, held that where a
public law issue arises, the proceedings should be brought by
judicial review under R.S.C. Order 53 and not by private law
action which would be abuse of the process of court.
Now, going back to the definition of the said expression, it
combines three alternatives, viz., (a) any industry carried on by
the Central Government; (b) any industry carried on under the
authority of the Central Government; and (c) any industry
carried on by a railway company. Alternatives (a) and (c)
indicate cases of any industry carried on directly by the Central
Government or a railway company. They are too clear to admit of
any polemic. In regard to alternative (b), surely, an industry
being carried on under the authority of the Central Government
cannot be equated with any industry carried on by the Central
Government itself. This leaves us to construe the words under
the authority of the Central Government. The key word in them
is authority.
The relevant meaning of the word authority in the
Concise Oxford Dictionary is delegated power. In Blacks Law
Dictionary the meanings of the word authority are: permission;
right to exercise powers -- often synonymous with power. The
power delegated by a principal to his agent. The lawful
delegation of power by one person to another. Power of agent to
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affect legal relations of principal by acts done in accordance with
principals manifestations of consent to agent. In Corpus Juris
Secundum (at p.1290) the following are the meanings of the term
authority: in its broad general sense, the word has been defined
as meaning control over; power; jurisdiction; power to act,
whether original or delegated. The word is frequently used to
express derivative power; and in this sense, the word may be used
as meaning instructions, permission, power delegated by one
person to another, the result of the manifestations by the former to
the latter of the formers consent that the latter shall act for him,
authority in this sense --- in the laws of at least one state, it has
been similarly used as designating or meaning an agency for the
purpose of carrying out a state duty or function; some one to
whom by law a power has been given. In Words and Phrases we
find various shades of meaning of the word authority at pp.603,
606, 612 and 613: Authority, as the word is used throughout the
Restatement, is the power of one person to affect the legal
relations of another by acts done in accordance with the others
manifestations of consent to him; an agency of one or more
participating governmental units created by statute for specific
purpose of having delegated to it certain functions governmental
in character; the lawful delegation of power by one person to
another; power of agent to affect legal relations of principal by
acts done in accordance with principals manifestations of consent
to him.
From the above discussion, it follows that the phrase any
industry carried on under the authority of the Central
Government implies an industry which is carried on by virtue of,
pursuant to, conferment of, grant of, or delegation of power or
permission by the Central Government to a Central Government
Company or other Govt. company/undertaking. To put it
differently, if there is lack of conferment of power or permission
by the Central Government to a government company or
undertaking, it would disable such a company/undertaking to
carry on the industry in question.
In interpreting the said phrase, support is sought to be
drawn by the learned counsel for the contract labour from the
cases laying down the principles as to under what circumstances a
Government company or undertaking will fall within the meaning
of State or other authorities in Article 12 of the Constitution.
We shall preface our discussion of those cases by indicating that
for purposes of enforcement of fundamental rights guaranteed in
Part III of the Constitution the question whether a Government
Company or undertaking is State within the meaning of Article
12 is germane. It is important to notice that in these cases the
pertinent question is appropriateness of the Government - which is
the appropriate Government within the meaning of CLRA Act;
whether, the Central or the State Government, is the appropriate
Government in regard to the industry carried on by the
Central/State Government Company or any undertaking and not
whether such Central/State Government company or undertaking
come within the meaning of Article 12. The word State is
defined in Article 12 which is quoted in the footnote.
In Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh
Raghuvanshi & Anr. , this Court, in the context whether service
Regulations framed by statutory corporations have the force of
law, by majority, held that the statutory corporations, like ONGC,
IFFCO, LIC established under different statutes fell under other
authorities and were, therefore, State within the meaning of
that term in Article 12 of the Constitution. The Court took into
consideration the following factors, (a) they were owned,
managed and could also be dissolved by the Central Government;
(b) they were completely under the control of the Central
Government and (c) they were performing public or statutory
duties for the benefit of the public and not for private profit; and
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concluded that they were in effect acting as the agencies of the
Central Government and the service Regulations made by them
had the force of law, which would be enforced by the Court by
declaring that the dismissal of an employee of the corporation in
violation of the Regulations, was void.
In Ramanna Dayaram Shetty vs. The International Airport
of India & Ors. , a three-Judge Bench of this Court laid down that
Corporations created by the Government for setting up and
management of public enterprises and carrying out public
functions, act as instrumentalities of the Government; they would
be subject to the same limitations in the field of constitutional and
administrative laws as Government itself, though in the eye of
law they would be distinct and independent legal entities. There,
this Court was enforcing the mandate of Article 14 of the
Constitution against the respondent - a Central Govt. Corporation.
Managing Director, U.P.Warehousing Corporation & Anr.
Vs. Vinay Narayan Vajpayee dealt with a case of dismissal of the
respondent-employee of the appellant-Corporation in violation
of the principles of natural justice. There also the Court held the
Corporation to be an instrumentality of the State and extended
protection of Articles 14 and 16 of the Constitution to the
employee taking the view that when the Government is bound to
observe the equality clause in the matter of employment the
corporations set up and owned by the Government are equally
bound by the same discipline.
In Ajay Hasia etc. Vs. Khalid Mujib Sehravardi & Ors.
etc. , the question decided by a Constitution Bench of this
Court was: whether Jammu & Kashmir Regional Engineering
College, Srinagar, registered as a society under the Jammu &
Kashmir Registration of Societies Act, 1898, was State within
the meaning of Article 12 of the Constitution so as to be
amenable to writ jurisdiction of the High Court. Having
examined the Memorandum of Association and the Rules of the
Society, the Court decided that the control of the State and the
Central Government was deep and pervasive and the society was a
mere projection of the State and the Central Government and it
was, therefore, an instrumentality or agency of the State and
Central Government and as such an authority-state within the
meaning of Article 12.
The principle laid down in the aforementioned cases that if
the government acting through its officers was subject to certain
constitutional limitations, a fortiorari the government acting
through the instrumentality or agency of a corporation should
equally be subject to the same limitations, was approved by the
Constitution Bench and it was pointed out that otherwise it would
lead to considerable erosion of the efficiency of the Fundamental
Rights, for in that event the government would be enabled to
override the Fundamental Rights by adopting the stratagem of
carrying out its function through the instrumentality or agency of
a corporation while retaining control over it. That principle has
been consistently followed and reiterated in all subsequent cases -
- See Delhi Transport Corpn. Vs. D.T.C. Mazdoor Congress &
Ors. , Som Prakash Rekhi Vs. Union of India & Anr. ,
Manmohan Singh Jaitla etc. Vs. Commr., Union Territory of
Chandigarh & Ors. etc. , P.K. Ramachandra Iyer & Ors. etc. Vs.
Union of India & Ors. etc. , A.L. Kalra Vs. Project and
Equipment Corpn. Of India Ltd. , Central Inland Water Transport
Corpn. Ltd. & Anr. etc. Vs. Brojo Nath Ganguly & Anr. etc. ,
C.V. Raman Vs. Management of Bank of India & Anr. etc. ,
Lucknow Development Authority Vs. M.K. Gupta , M/s Star
Enterprises and Ors. Vs. City and Industrial Development Corpn.
of Maharashtra Ltd. & Ors. , LIC of India & Anr. Vs. Consumer
Education & Research Centre & Ors. and G.B. Mahajan & Ors.
Vs. Jalgaon Municipal Council & Ors. . We do not propose to
burden this judgment by adding to the list and referring to each
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case separately.
We wish to clear the air that the principle, while
discharging public functions and duties the Govt.
Companies/Corporations/Societies which are instrumentalities or
agencies of the Government must be subjected to the same
limitations in the field of public law -- constitutional or
administrative law -- as the Government itself, does not lead to
the inference that they become agents of the Centre/State
Government for all purposes so as to bind such Government for
all their acts, liabilities and obligations under various Central
and/or State Acts or under private law.
From the above discussion, it follows that the fact of being
instrumentality of a Central/State Govt. or being State within
the meaning of Article 12 of the Constitution cannot be
determinative of the question as to whether an industry carried on
by a Company/Corporation or an instrumentality of the Govt. is
by or under the authority of the Central Government for the
purpose of or within the meaning of the definition of appropriate
Government in the CLRA Act. Take the case of a State
Government corporation/company/undertaking set up and owned
by the State Government which is an instrumentality or agency of
the State Government and is engaged in carrying on an industry,
can it be assumed that the industry is carried on under the
authority of the Central Government, and in relation to any
industrial dispute concerning the industry can it be said that the
appropriate Government is the Central Government? We think
the answer must be in the negative. In the above example if, as a
fact, any industry is carried on by the State Government
undertaking under the authority of the Central Government, then
in relation to any industrial dispute concerning that industry, the
appropriate Government will be the Central Government. This is
so not because it is agency or instrumentality of the Central
Government but because the industry is carried on by the State
Govt. Company/Corporation/Undertaking under the authority of
the Central Government. In our view, the same reasoning applies
to a Central Government undertaking as well. Further, the
definition of establishment in CLRA Act takes in its fold purely
private undertakings which cannot be brought within the meaning
of Article 12 of the Constitution. In such a case how is
appropriate Government determined for the purposes of CLRA
Act or Industrial Disputes Act? In our view, the test which is
determinative is: whether the industry carried on by the
establishment in question is under the authority of the Central
Govt? Obviously, there cannot be one test for one part of
definition of establishment and another test for another part.
Thus, it is clear that the criterion is whether an
undertaking/instrumentality of Government is carrying on an
industry under the authority of the Central Government and not
whether the undertaking is instrumentality or agency of the
Government for purposes of Article 12 of the Constitution, be it of
Central Government or State Government.
There cannot be any dispute that all the Central
Government companies with which we are dealing here are not
and cannot be equated to Central Government though they may be
State within the meaning of Article 12 of the Constitution. We
have held above that being the instrumentality or agency of the
Central Government would not by itself amount to having the
authority of the Central Government to carry on that particular
industry. Therefore, it will be incorrect to say that in relation to
any establishment of a Central Government
Company/undertaking, the appropriate Government will be the
Central Government. To hold that the Central Government is the
appropriate Government in relation to an establishment, the court
must be satisfied that the particular industry in question is carried
on by or under the authority of the Central Government. If this
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aspect is kept in mind it would be clear that the Central
Government will be the appropriate Government under the
CLRA Act and the I.D.Act provided the industry in question is
carried on by a Central Government company/an undertaking
under the authority of the Central Government. Such an authority
may be conferred, either by a Statute or by virtue of relationship
of principal and agent or delegation of power. Where the
authority, to carry on any industry for or on behalf of the Central
Government, is conferred on the Government company/any
undertaking by the Statute under which it is created, no further
question arises. But, if it is not so, the question that arises is
whether there is any conferment of authority on the Government
company/ any undertaking by the Central Government to carry on
the industry in question. This is a question of fact and has to be
ascertained on the facts and in the circumstances of each case.
We shall refer to the cases of this Court on this point.
In Heavy Engineering Mazdoor Union vs. State of Bihar &
Ors. the said expression (appropriate Government) came up for
consideration. The Heavy Engineering Corporation is a Central
Government company. The President of India appoints Directors
of the company and the Central Government gives directions as
regards the functioning of the company. When disputes arose
between the workmen and the management of the company, the
Government of Bihar referred the disputes to the Industrial
Tribunal for adjudication. The union of the workmen raised an
objection that the appropriate Government in that case was the
Central Government, therefore, reference of the disputes to the
Industrial Tribunal for adjudication by the State Government was
incompetent. A two-Judge Bench of this Court elaborately dealt
with the question of appropriate Government and concluded that
the mere fact that the entire share capital was contributed by the
Central Government and the fact that all its shares were held by
the President of India and certain officers of the Central
Government, would not make any difference. It was held that in
the absence of a statutory provision, a commercial corporation
acting on its own behalf even though it was controlled, wholly or
partially, by a Government Department would be ordinarily
presumed not to be a servant or agent of the State. It was,
however, clarified that an inference that the corporation was the
agent of the Government might be drawn where it was performing
in substance Governmental and not commercial functions. It must
be mentioned here that in the light of the judgments of this Court,
referred to above, it is difficult to agree with the distinction
between a governmental activity and commercial function of
government companies set up and owned by government, insofar
as their function in the realm of public law are concerned.
However, the contention that the decision in that case is based
on concession of the counsel for the appellant is misconceived.
This Court summed up the submission in para 4 thus :
The undertaking, therefore, is not one
carried on directly by the Central
Government or by any one of its departments
as in the case of posts and telegraphs or the
railways. It was, therefore, rightly conceded
both in the High Court as also before us that
it is not an industry carried on by the Central
Government. That being the position, the
question then is, is the undertaking carried
on under the authority of the Central
Government?
It is evident that the concession was with regard to the fact that it
was not an industry carried on by the Central Government and not
in regard to was the undertaking carried on under the authority of
the Central Government? Indeed that was the question decided
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by the Court on contest and it was held that the undertaking was
not carried on by the Central Government company under the
authority of the Central Government and that the appropriate
Government in that case was the State Government and not the
Central Government. From the above discussion, it is evident that
the Court correctly posed the question- whether the State Govt. or
the Central Govt. was the appropriate Government and rightly
answered it.
In M/s. Hindustan Aeronautics Ltd. Vs. The Workmen &
Ors. , this Court was called upon to decide the question as to
whether the expression appropriate Government, as defined in
Section 2(a)(i) of the Industrial Disputes Act, was the State
Government or the Central Government. In that case dispute arose
between the management of the Barrackpore branch (West
Bengal) of the appellant and its employees. The Governor of
West Bengal referred the dispute to Industrial Tribunal under
Section 10 of the I.D. Act. The competence of the State
Government to make the reference was called in question. A
three-Judge Bench of this Court, relying on the decision in Heavy
Engineerings case (supra), held that the reference was valid. The
Court took note of the factors, viz; if there is any disturbance of
industrial peace at Barrackpore where a considerable number of
workmen were working, the appropriate Government concerned
in the maintenance of the industrial peace was the West Bengal
Government; that Barrackpore industry was a separate unit; the
cause of action in relation to the industrial dispute arose at
Barrackpore. Having regard to the definitions of the terms
appropriate Government and establishment, in Section 2 of
CLRA Act, it cannot be said that the factors which weighed with
the Court were irrelevant. It was also pointed out therein that
from time to time certain statutory corporations were included in
the definition but no public company of which the shares were
exclusively owned by the Government, was roped in the
definition. What we have expressed above about Heavy
Engineerings case (supra) will, equally apply here.
The aforementioned phrase an industry carried on by or
under the authority of the Central Government again fell for
consideration of a three-Judge Bench of this Court in Rashtriya
Mill Mazdoor Sangh, Nagpur vs. Model Mills, Nagpur & Anr. .
The case arose in the context of Section 32(iv) of the Payment of
Bonus Act, 1965, which provides that nothing in that Act shall
apply to employees employed by an establishment engaged in any
industry carried on by or under the authority of any department of
the Central Government or a State Government or a local
authority. Under Section 18-A of the Industries (Development
and Regulation) Act, 1951, the Central Government appointed an
authorised Controller to replace the management of the
respondent - Model Mills. That was done to give effect to the
directives issued by the Central Government under Section 16 of
the said Act. On behalf of the respondent it was contended that
substitution of the management by the Controller appointed under
Section 18-A of the Industries (Development & Regulation) Act
would tantamount to the industry being run under the authority of
the department of the Central Government. Negativing the
contention it was held :
While exercising power of giving directions
under Section 16 the existing management is
subjected to regulatory control, failing which
the management has to be replaced to carry
out the directions. In either case the industrial
undertaking retains its identity, personality
and status unchanged. On a pure grammatical
construction of sub-section (4) of Section 32,
it cannot be said that on the appointment of
an authorised controller the industrial
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undertaking acquires the status of being
engaged in any industry carried on under the
authority of the department of the Central
Government.
Food Corporation of India, Bombays case (supra) is the
only case which arose directly under the CLRA Act. The Food
Corporation of India (FCI) engaged, inter alia, the contract labour
for handling of foodgrains. Complaining that their case for
departmentalisation was not being considered either by the
Central Government or by the State Government, nor were they
extended the benefits conferred by the CLRA Act, a
representative action was initiated in this Court by filing a writ
petition under Article 32 of the Constitution seeking a writ of
mandamus against the Central/State Government to abolish
contract labour and to extend them the benefits under that Act.
The FCI resisted the claim for abolition of contract labour on the
ground that the operations of loading/unloading foodgrains were
seasonal, sporadic and varied from region to region. However, it
pleaded that the State Government and not the Central
Government was the appropriate Government under the CLRA
Act. In view of the unamended definition of the expression
appropriate Government under CLRA Act, which was in force
on the relevant date, it was pointed out that the FCI was not
included in the definition by name as it was done under the
Industrial Disputes Act. Following the judgment of this Court in
Heavy Engineerings case (supra) and referring to the decision of
this Court in Rashtriya Mill Mazdoor Sanghs case (supra), the
Court took the view that the same principle would govern the
interpretation of the expression appropriate Government in the
CLRA Act and held that the State Government was the
appropriate Government pertaining to the regional offices and
warehouses which were situate in various States. We find no
illegality either in the approach or in the conclusion arrived at by
the Court in these cases.
It was in that background of the case law that the Air
Indias case (supra) came to be decided by a three-Judge Bench of
this Court. The Air India Corporation engaged contract labour
for sweeping, cleaning, dusting and watching of the buildings
owned and occupied by it. The Central Government having
consulted the Central Advisory Board constituted under Section
3(1) of the CLRA Act issued notification under Section 10(1) of
the Act prohibiting employment of contract labour on and from
9.12.1976 for sweeping, cleaning, dusting and watching of the
buildings owned or occupied by the establishment in respect of
which the appropriate Government under the said Act is the
Central Government. However, the Regional Labour
Commissioner, Bombay opined that the State Government was
the appropriate Government under the CLRA Act. The
respondent-Union filed writ petition in the High Court at Bombay
seeking a writ of mandamus to the appellant to enforce the said
notification prohibiting employment of contract labour and for a
direction to absorb all the contract labour doing sweeping,
cleaning, dusting and watching of the buildings owned or
occupied by the Air India with effect from the respective dates of
their joining as contract labour with all consequential
rights/benefits. A learned Single Judge of the High Court allowed
the writ petition on November 16, 1989 and directed that all the
contract labour should be regularised as employees of the
appellant from the date of filing of the writ petition. On appeal,
the Division Bench, by order dated April 3, 1992, confirmed the
judgment of the learned Single Judge and dismissed the appeal.
On further appeal to this Court, it was held that the word control
was required to be interpreted in the changing commercial
scenario broadly in keeping with the constitutional goals and
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perspectives; the interpretation must be based on some rational
and relevant principles and that the public law interpretation is the
basic tool of interpretation in that behalf relegating common law
principles to purely private law field. In that view of the matter, it
concluded that the two-Judge Bench decision in Heavy
Engineerings case narrowly interpreted the expression
appropriate Government on the common law principles which
would no longer bear any relevance when it was tested on the
anvil of Article 14. It noted that in Hindustan Aeronautics Ltd.,
Rashtriya Mill Mazdoor Sangh and Food Corporation of India, the
ratio of Heavy Engineering formed the foundation but in
Hindustan Aeronautics Ltd. there was no independent
consideration except repetition and approval of the ratio of Heavy
Engineering case which was based on concession; in Food
Corporation of India, the Court proceeded on the premise that
warehouses of the corporation were situate within the jurisdiction
of the different State Governments and that led to conclude that
the appropriate Government would be the State Government.
Thus, distinguishing the aforementioned decisions, it was held
therein (Air Indias case) that from the inception of the CLRA Act
the appropriate Government was the Central Government.
We have held above that in the case of a Central
Government company/undertaking, an instrumentality of the
Government, carrying on an industry, the criteria to determine
whether the Central Government is the appropriate Government
within the meaning of the CLRA Act, is that the industry must be
carried on by or under the authority of the Central Government
and not that the company/undertaking is an instrumentality or an
agency of the Central Government for purposes of Article 12 of
the Constitution; such an authority may be conferred either by a
statute or by virtue of relationship of principal and agent or
delegation of power and this fact has to be ascertained on the facts
and in the circumstances of each case. In view of this conclusion,
with due respect, we are unable to agree with the view expressed
by the learned Judges on interpretation of the expression
appropriate Government in Air Indias case (supra). Point No.1
is answered accordingly.
Point No.2 relates to the validity of the notification issued
by the Central Government under Section 10(1) of the Contract
Labour (Regulation & Abolition) Act, 1970, dated December 9,
1976. The main contention against the validity of the notification
is that an omnibus notification like the impugned notification
would be contrary to the requirements of Section 10 of the CLRA
Act and is illustrative of non-application of mind.
It would be profitable to refer to Section 10 of the Act :
10. Prohibition of employment of contract
labour -
(1) Notwithstanding anything contained in this Act,
the appropriate Government may, after
consultation with the Central Board or, as the case
may be, a State Board, prohibit, by notification in
the Official Gazette, employment of contract
labour in any process, operation or other work in
any establishment.
(2) Before issuing any notification under sub-section
(1) in relation to an establishment, the appropriate
Government shall have regard to the conditions of
work and benefits provided for the contract labour
in that establishment and other relevant factors,
such as --
(a) whether the process, operation or other work
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is incidental to, or necessary for the industry,
trade, business, manufacture or occupation
that is carried on in the establishment;
(b) whether it is of perennial nature, that is to
say, it is of sufficient duration having regard
to the nature of industry, trade, business,
manufacture or occupation carried on in that
establishment;
(c) whether it is done ordinarily through regular
workmen in that establishment or an
establishment similar thereto;
(d) whether it is sufficient to employ
considerable number of whole-time
workmen.
Explanation : If a question arises whether any process
or operation or other work is of perennial nature, the
decision of the appropriate Government thereon shall
be final.
A careful reading of Section 10 makes it evident that sub-
section (1) commences with a non obstante clause and overrides
the other provisions of the CLRA Act in empowering the
appropriate Government to prohibit by notification in the Official
Gazette, after consultation with Central Advisory Board/State
Advisory Board, as the case may be, employment of contract
labour in any process, operation or other work in any
establishment. Before issuing notification under sub-section (1)
in respect of an establishment the appropriate Government is
enjoined to have regard to: (i) the conditions of work; (ii) the
benefits provided for the contract labour; and (iii) other relevant
factors like those specified in clauses (a) to (d) of sub-section (2).
Under clause (a) the appropriate Government has to ascertain
whether the process, operation or other work proposed to be
prohibited is incidental to, or necessary for the industry, trade,
business, manufacture or occupation that is carried on in the
establishment; clause (b) requires the appropriate Government to
determine whether it is of perennial nature, that is to say, it is of
sufficient duration having regard to the nature of industry, trade,
business, manufacture or occupation carried on in that
establishment; clause (c) contemplates a verification by the
appropriate Government as to whether that type of work is done
ordinarily through regular workmen in that establishment or an
establishment similar thereto; and clause (d) requires verification
as to whether the work in that establishment is sufficient to
employ considerable number of whole-time workmen. The list is
not exhaustive. The appropriate Government may also take into
consideration other relevant factors of the nature enumerated in
sub-section (2) of Section 10 before issuing notification under
Section 10(1) of the CLRA Act.
The definition of establishment given in Section 2(e) of
the CLRA Act is as follows:
In clause (e) - establishment is defined to
mean -
(i) any office or department of the
Government or a local authority, or
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(ii) any place where any industry, trade,
business, manufacture or occupation is
carried on.
The definition is in two parts : the first part takes in its
fold any office or department of the Government or local authority
- the Government establishment; and the second part
encompasses any place where any industry, trade, business,
manufacture or occupation is carried on - the non-Govt.
establishment. It is thus evident that there can be plurality of
establishments in regard to the Government or local authority and
also in regard to any place where any industry, trade, business,
manufacture or occupation is carried on.
Now, reading the definition of establishment in Section
10, the position that emerges is that before issuing notification
under sub-section (1) an appropriate Government is required to:
(i) consult the Central Board/State Board; (ii) consider the
conditions of work and benefits provided for the contract labour
and (iii) take note of the factors such as mentioned in clauses (a)
to (d) of sub-section (2) of Section 10, referred to above, with
reference to any office or department of the Government or local
authority or any place where any industry, trade, business,
manufacture or occupation is carried on. These being the
requirement of Section 10 of the Act, we shall examine whether
the impugned notification fulfils these essentials.
The impugned notification issued by the Central
Government on December 9, 1976, reads as under :
S.O.No.779(E) 8/9.12.76 in exercise of the
power conferred by Sub-section (1) of Section
10 of the Contract Labour (Regulation and
Abolition) Act, 1970 (37 of 1970) the Central
Government after consultation with the Central
Advisory Contract Labour Board hereby
prohibits employment of contract labour on an
from the 1st March, 1977, for sweeping,
cleaning, dusting and watching of buildings
owned or occupied by the establishments in
respect of which the appropriate Government
under the said Act is the Central Government.
Provided that this notification shall not only
apply to the outside cleaning and other
maintenance operations of multi-storeyed
buildings where such cleaning or maintenance
operations cannot be carried out except with
specialised experience.
A glance through the said notification, makes it manifest that
with effect from March 1, 1977, it prohibits employment of
contract labour for sweeping, cleaning, dusting and watching of
buildings owned or occupied by establishment in respect of which
the appropriate Government under the said Act is the Central
Government. This clearly indicates that the Central Government
had not adverted to any of the essentials, referred to above, except
the requirement of consultation with the Central Advisory Board.
Consideration of the factors mentioned above has to be in respect
of each establishment, whether individually or collectively, in
respect of which notification under sub-section 1 of Section 10 is
proposed to be issued. The impugned notification apart from
being an omnibus notification does not reveal compliance of sub-
section (2) of Section 10. This is ex facie contrary to the
postulates of Section 10 of the Act. Besides it also exhibits non-
application of mind by the Central Government. We are,
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therefore, unable to sustain the said impugned notification dated
December 9, 1976 issued by the Central Government.
Point No.3 remains to be considered. This is the moot
point which generated marathon debate and is indeed an important
one.
The learned Solicitor General contended that contract
labour had been in vogue for quite some time past; having regard
to the abuses of the contract labour system, the CLRA Act was
enacted by the Parliament to regulate the employment of contract
labour and to cause its abolition in an establishment when the
given circumstances exist; prior to the Act no mandamus could
have been issued by courts creating relationship of employer and
the employee between the principal employer and the contract
labour and the Act did not alter that position. When the principal
employer entrusts the work to a contractor there will be principal
to principal relationship between them as such the work force of
the contractor cannot be said to be the employees of the
establishment. It was argued that under the Specific Relief Act a
contract of employment could not be enforced specifically much
less can a new contract of employment between the principal
employer and the contract labour be created by the court. He has
also pointed out that in every government company/establishment
which is an instrumentality of the State there are service rules
governing the appointment of staff providing among other things
for equality of opportunity to all aspirants for posts in such
establishments, calling for candidates from the employment
exchange and the reservation in favour of Scheduled
Castes/Scheduled Tribes/other Backward Classes, so a direction
by the court to absorb the contract labour en bloc could be
complied with only in breach of the statutory service rules. He
has further contended that conceding that the CLRA Act is a
beneficial legislation, the benefits which the Parliament thought it
fit to confer on the contract labour are specified in the Act and the
court by way of interpretation cannot add to those benefits.
The contentions of Mr. G.L. Sanghi for the principal
employer are : that there was never the relationship of master and
servant between the F.C.I. and the contract labour; the various
provisions of the Act which require the contractor to maintain
canteen, rest-rooms and other facilities like a sufficient supply of
wholesome drinking water at convenient places, sufficient number
of latrines and urinals accessible to the contract labour in the
establishment, washing facilities and the first aid facilities
negative the existence of any direct relationship as sought to be
made out. The responsibilities of the principal employer under
the CLRA Act arise only in the event of failure of the contractor
to fulfil his statutory obligations and in such an event he is bound
to reimburse the principal employer. Whenever a contractor
undertakes to produce a given result or to provide services to an
establishment/undertaking by engaging contract labour, the
relationship of the master and servant exists between the
contractor and the contract labour and not between the principal
employer and the contract labour. When the Central
Government/State Government/local authority entrusts any work
to a contractor who recruits contract labour, in connection with
that work, obviously the recruitment will not be in conformity
with the statutory service rules and the same position would
obtain with regard to non-governmental organisations, factories,
mines etc. Further, having regard to the distinction between the
principal employer and the establishment, in the absence of
conferment of any authority on the manager by his principal
employer to enter into a contract of employment on his behalf, the
manager by entrusting work to a contractor cannot make a
contract of service between the principal employer and the
contract labour; if this analogy is applied to the case of the Central
Government/the State Government/local authority, the contractor
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who undertakes to produce a given result would be creating a
status of government servant by selecting and appointing persons
for a particular establishment/undertaking. Such a consequence
will obliterate the constitutional scheme in relation to government
employment resulting in uncontemplated and unimaginative
liabilities in financial terms. He pointed out that under the Mines
Act the manager has no authority to employ persons so as to
create master and servant relationship; the same position will
equally apply in the case of occupier of a factory under the
Factories Act. The provisions of the CLRA Act do not make the
contractor an agent for creating relationship of master and servant
between the principal employer and the contract labour in the
situations pointed out above. In all such cases absorbing the
contract labour would amount to opening a new channel of
recruitment and it could not have been the intention of the
Parliament in enacting CLRA Act to provide for appointment to
the posts in various government/non-government establishments
by circumventing the service rules. He canvassed that no
direction could be issued to the principal employer by the Court
to absorb the contract labour in the establishment.
Mr. T.R. Andhyarujina, the learned senior counsel
appearing for the principal employer (respondents in Transfer
Case No.7 of 2000 (Delhi Multi Storey Bldg. Emp. Union Vs.
Union of India & Anr.), urged that prior to coming into force of
the CLRA Act, the Industrial Courts were ordering abolition of
contract labour system and giving appropriate directions to the
employer to employ contract labour on such terms and conditions
as the employer might deem fit but no direction was given to
make automatic absorption on abolition of contract labour. In
1946 in the Rege Committee Report or in 1969 in the Report of
Mr. Justice P.B. Gajendragadkar who was himself a party to the
judgment in The Standard-Vacuum Refining Co. of India Ltd.
Vs. ITS Workmen and Ors. , no recommendation was made for
automatic absorption of the contract labour by the principal
employer; the Statement of Objects and Reasons of the CLRA
Act also does not speak of automatic absorption of contract labour
which would show that the Parliament deliberately did not make
any provision for automatic absorption; when the contract is
terminated either by the principal employer or by the contractor or
when the contractor himself terminates services of his workers or
when he abandons the contract, the workmen go along with the
contractor or may have a cause against the contractor but they can
have no claim against the principal employer as such on
prohibition of employment of contract labour also the same
consequence should follow; by prohibiting the contract labour the
Parliament intended that labour in general should be benefitted by
making it impossible for the principal employer to engage
contract labour through a contractor and the benefit of automatic
absorption is not conferred by the CLRA Act on the contract
labour working in an establishment at the time of issuing the
notification prohibiting engagement of contract labour.
Mr. K.K. Venugopal, the learned senior counsel appearing
for the principal employer (appellant in O.N.G.C.) contended that
Section 10 of the CLRA Act did not speak of automatic
absorption so giving a direction to make absorption of the contract
labour as a consequence of issuance of notification thereunder,
prohibiting the engagement of contract labour in various
processes, would be contrary to the Act. Had it been the intention
of the Parliament to establish relationship of master and servant
between the principal employer and the contract labour, submitted
the learned counsel, Section 10 of the CLRA Act would have been
differently worded and new sub section to that effect would have
been enacted. If the court were to accept the contention of the
contract labour that automatic absorption should follow a
notification prohibiting employment of contract labour, the court
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would be adding a sub-section to Section 10 prescribing for
automatic absorption on issuance of notification under sub-section
(1) of Section 10 which would be impermissible.
Mr. Shanti Bhushan argued that a contractor employing
contract labour for any work of an establishment would, in law,
create relationship of master and servant between the
establishment and the labour; he sought to derive support from
judgments of this court in the following cases: The Maharashtra
Sugar Mills Ltd. Vs. The State of Bombay & Ors. ,
Shivnandan Sharma Vs. The Punjab National Bank Ltd. , Basti
Sugar Mills Ltd. Vs. Ram Ujagar & Ors. , The Saraspur Mills
Co. Ltd. Vs. Ramanlal Chimanlal & Ors. and Hussainbhai,
Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and
Ors. . His further contention is that a joint reading of definitions
of contract labour in clause (b) and of establishment in
clause (e) of Section 2 of the CLRA Act would show that a legal
relationship between a person employed to work in an industry
and the owner of the industry comes into existence and it would
not make any difference whether that relationship was brought
about by the act of the principal/master or by the act of his
authorised agent; the very fact of being employed in connection
with an industry, creates rights in favour of the person employed
and against the owner of the industry by bringing into existence,
in law, a relationship of employer and the employee (master and
servant) between them. He pointed out that the definition of the
expression workman in clause (i) excludes an out-worker, a
person to whom any articles and materials are given out by or on
behalf of the principal employer to be made up, cleaned, washed,
altered, ornamented, finished, repaired, adapted or otherwise
processed for sale for the purposes of the trade or business of the
principal employer when the process is to be carried out either in
the home of the out-worker or in some other premises not being
premises under the control and management of the principal
employer and argued that it would show that those who work at
the place either of or under the Control and management of the
principal employer, must be treated as the workmen of the
principal employer. It is further argued that where the work is of
a perennial nature, sub-section (2) of Section 10 of the CLRA
Act requires that the contract labour should be abolished so it
would be an abuse on the part of the employer to resort to
employing contract labour in such a case. Reliance is also placed
on Rules 21(2), 25(2)(V)(a), 72, 73, 74-Form XII, Rules 75, 76,
77, 81(3), 82(2) and Forms I, II, III and IV relating to certificate
of registration, Form VI relating to licence, Form XIV relating to
issue of employment card and Form XXV relating to annual
returns of the principal employer, to contend that the principal
employer has to keep track with the number of workmen
employed, terms and conditions on which they are employed and,
therefore, the employer cannot be permitted to plead that no
relationship of master and servant exists between the principal
employer and the contract labour. It is elaborated that under the
CLRA Act, the action of the contractor who is the agent of the
principal employer to engage contract labour, binds him and
creates relationship of master and servant between them,
therefore, the only consequence of notification under Section
10(1) could be to remove the contractor (middle-man) and
mature the relationship which had already existed between the
workman and the principal employer into a completely direct
relationship and that the effect of the notification could never be
to extinguish the rights of the persons for whose benefit the
notification was required to be issued; reliance is placed on the
three Judge Bench of this Court in Air Indias case (supra) and it
is pointed out that Justice S.B. Majmudar who was a party to
Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat
Vs. Hind Mazdoor Sabha & Ors. case has given very weighty
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reasons for automatic absorption in his concurring judgment.
Insofar as the reservation quota in favour of Scheduled Castes,
Scheduled Tribes and Backward Classes is concerned, he
submitted that there would be many situations in which the rule
of reservation could not be complied with, e.g. when a private
company had made appointments without following the rule of
reservation and if such a company were to be taken over by the
State the claim of the workers for absorption could not be denied
on the ground that it would upset the rule of reservation. It is
further contended that if on issuing notification under Section
10(1) prohibiting employment of contract labour, there is no
automatic absorption, the employer cannot employ work force
which will result in closing down the industry producing a
crippling affect on the establishment; but if automatic absorption
is held to be the rule, no disturbance will be caused in the
functioning of the industry and the contract labourers would
become employees of the principal employer and that the
employer will, however, have a right to retrench any excess staff
by following the principles of retrenchment and paying
retrenchment compensation as provided in the Industrial Disputes
Act.
Mr. Bhaskar P. Gupta, the learned senior counsel appearing
for the contract labour (respondents in Civil Appeal Nos.719-720
of 2001), submitted that identification forms for working in
different departments of the company were issued by the appellant
company to the contract labour and, therefore, there was a direct
relationship of master and servant between the management and
the labourers; and if it were to be held that there was no automatic
absorption on prohibition of engagement of contract labour the
workers would be placed in a position worse than that held by
them before abolition. He urged for construction of the
provisions of the Act on the principles laid down in Heydons
case to support the plea that the Act provided for absorption of
the contract labour on issuing abolition notification by necessary
implication and provided penal consequences to prevent
exploitation and abuse of the contract labour. In that case, it is
submitted, the company itself understood that the provisions of
the Act required automatic absorption and absorbed 1550 workers
leaving only 400 workers to be absorbed.
Ms. Indira Jaisingh has contended that the primary object
of the labour laws is to effectuate the Directive Principles of State
policy and, therefore, the provisions of CLRA Act have to be
interpreted accordingly; the principles of contract law are
inapplicable in sricto sensu to labour-management relations; she
relied on the following judgments of this Court : Western India
Automobile Association Vs. The Industrial Tribunal, Bombay
and Ors. , The Bharat Bank Ltd., Delhi Vs. Employees of the
Bharat Bank Ltd., Delhi & Anr. , Rai Bahadur Diwan Badri Das
Vs. The Industrial Tribunal, Punjab and Uptron India Ltd. Vs.
Shammi Bhan & Anr. . Prior to the enactment of CLRA Act, it
is pointed out, the courts have ordered abolition of contract labour
and their departmentalisation in The Standard-Vacuums case
(supra) and Hussainbhais (supra). She has argued that the
Statement of Objects and Reasons does not say that the CLRA
Act is intended to alter the then existing law; it codifies the
existing law and confers quasi legislative power upon the
government to prohibit contract labour; it does not affect the
powers of the court to direct absorption of contract labour [see
Barat Fritz Werner Ltd.etc.etc. Vs. State of Karnataka ; the
abolition notification is issued after consideration of all the facts
and circumstances so the consequence can only be that the
contractor is displaced and a direct relationship is established
between the principal employer and the contract labour; in Air
Indias case (supra), it was held that the consequence of the
abolition of contract labour, by necessary implication, would
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result in the principal employer absorbing the contract labour;
the linkage between the contractor and the employee would be
snapped and a direct relationship between the principal employer
and the contract labour would emerge to make them its
employees; she invited our attention to Vegoils Private Limited
Vs. The Workmen , Dena Nath & Ors. Vs. National Fertilisers
Ltd. & Ors. and Gujarat Electricitys case (supra) and submitted
that the award proceedings stipulated in Gujarat Electricitys Case
(supra) was cumbersome procedure making the remedy a teasing
illusion, therefore, automatic absorption alone was the proper
solution. Our attention was also invited to various Forms
prescribed under the Rules to bring home the point that the
principal employer had complete control over the number of
contract labourers being employed and there could be no over-
employment without the knowledge of the employer and it was
urged that the fact that the labourers had been working for quite a
number of years would show that their continuance was
necessary.
Mr. R. Venkatramani, the learned senior counsel appearing
for the respondents in the appeal filed by the O.N.G.C. submitted
that though the CLRA Act itself did not abolish the contract
labour, it empowered the appropriate government to abolish the
system in any establishment in the given circumstances. His
contention is that Section 10 is intended to remove the contractor
from the picture and that it can not be read as leading to removal
of workers. He has also relied on the reasoning of Justice
Majmudar in Air Indias case (supra) and added that if the
contract labour is not absorbed the remedy of the abolition of the
contract labour would be worse than the mischief sought to be
remedied. He submitted that this Court directed absorption in
V.S.T. Industries Ltd. Vs. V.S.T. Industries Workers Union &
Anr. , G. B. Pant University of Agriculture & Technology, Pant
Nagar, Nainital Vs. State of U.P. & Ors. , Union of India & Ors.
Vs. Mohammed Aslam & Ors. , Indian Petrochemicals
Corporation Ltd. & Anr. Vs. Shramik Sena & Ors. .
Mr. K.K. Singhvi, the learned senior counsel for the
contract labour, referred to the reports of the Royal Commission
appointed by the then British Government, the Rege Committee,
the Second Planning Commission and the Second National
Commission of Labour headed by Justice Gajendragadkar to
emphasise that the practice of contract labour is an unfair practice
of exploiting the labour and that each of these reports
recommended abolition of the contract labour and where it was
not possible so to do, to regulate the same. He pleaded for
absorption of the contract labourer by the principal employer on
the abolition of the contract labour system in the process,
operation or other work in the establishment in which it was
employed in three situations : (1) where there has been
notification for abolition of contact labour; (2) where in violation
of the notification, contract labour is employed; and (3) where
principal employer resorts to employing of contract labour
without getting itself registered or through a contractor who is
not licensed. He laid emphasis upon the Directive Principles
contained in Articles 39, 41, 42 & 43 and urged for interpreting
the beneficial legislation like CLRA Act to promote the intention
of the legislature; he argued that the purpose of abolition of the
contract labour was to discontinue the exploitation of the contract
labour and to bring it on par with the regular workmen, therefore,
it was implicit that on abolition of the contact labour system, the
concerned workmen should be absorbed as regular employees of
the principal employer; relying upon the reasoning of Justice
Majmudar in his concurring judgment in Air Indias case (supra),
it was submitted that in labour laws the development had been on
the basis of the judgments of the Courts and, therefore, we should
interpret Section 10 to hold that as a result of issuance of
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prohibition notification, the contract labour working in an
establishment at that time should stand absorbed automatically.
Ms. Asha Jain Madan, the learned counsel appearing for
the contract labour (respondents in C.A. Nos. of 2001 @
S.L.P. (C) Nos.12657-12658 of 1998), adopted the argument of
the other learned senior counsel; she also relied on the concurring
judgment of Justice Majmudar in Air Indias case (supra) in
support of her contention that automatic absorption should follow
prohibition of contract labour by the appropriate Government in
any given establishment.
The contentions of the learned counsel for the parties,
exhaustively set out above, can conveniently be dealt with under
the following two issues :
A. Whether the concept of automatic
absorption of contract labour in the
establishment of the principal employer on
issuance of the abolition notification, is
implied in Section 10 of the CLRA Act; and
B. Whether on a contractor engaging contract
labour in connection with the work entrusted
to him by a principal employer, the
relationship of master and servant between
him (the principal employer) and the contract
labour, emerges.
For a proper examination of these issues, a reference to
Section 10 which provides for prohibition of employment of
contract labour and Clauses (b), (c), (e), (g) and (i) of Section 2
of CLRA Act which define the terms contract labour,
contractor, establishment, principal employer and
workman respectively will be apposite. To interpret these and
other relevant provisions of the CLRA Act, to which reference
will be made presently, we may, with advantage, refer to
CRAIES on Statute Law quoting the following observation of
Lindley M.R. in Re Mayfair Property Co. in regard to Rule in
Heydons case,
in order properly to interpret any statute it is
as necessary now as it was when Lord Coke
reported Heydons Case, to consider how the
law stood when the statute to be construed
was passed, what the mischief was for which
the old law did not provide, and the remedy
provided by the statute to cure that mischief.
What the learned Master of the Rolls observed in 1898
holds good even in 2001, so we proceed in the light of Rule in
Heydons case.
We have extracted above Section 10 of the CLRA Act
which empowers the appropriate Government to prohibit
employment of contract labour in any process, operation or other
work in any establishment, lays down the procedure and specifies
the relevant factors which shall be taken into consideration for
issuing notification under sub-section (1) of Section 10. It is a
common ground that the consequence of prohibition notification
under Section 10(1) of the CLRA Act, prohibiting employment of
contract labour, is neither spelt out in Section 10 nor indicated
anywhere in the Act. In our view, the following consequences
follow on issuing a notification under Section 10 (1) of the CLRA
Act:
(1) contract labour working in the concerned establishment at the
time of issue of notification will cease to function; (2) the
contract of principal employer with the contractor in regard to
the contract labour comes to an end; (3) no contract labour can
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be employed by the principal employer in any process,
operation or other work in the establishment to which the
notification relates at any time thereafter; (4) the contract
labour is not rendered unemployed as is generally assumed but
continues in the employment of the contractor as the
notification does not sever the relationship of master and
servant between the contractor and the contract labour; (5) the
contractor can utilise the services of the contract labour in any
other establishment in respect of which no notification under
Section 10 (1) has been issued; where all the benefits under the
CLRA Act which were being enjoyed by it, will be available;
(6) if a contractor intends to retrench his contract labour he
can do so only in conformity with the provisions of the I.D.
Act. //The point, now under consideration, is : whether
automatic absorption of contract labour working in an
establishment, is implied in Section 10 of the CLRA Act and
follows as a consequence on issuance of the prohibition
notification thereunder. We shall revert to this aspect shortly.
Now we shall notice the definitions of the terms referred to
above.
The term contract labour as defined in clause (b) of
Section 2 reads:
(2)(1)(b) 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.
By definition the term contract labour is a species of
workman. A workman shall be so deemed when he is hired in or
in connection with the work of an establishment by or through a
contractor, with or without the knowledge of the principal
employer. A workman may be hired: (1) in an establishment by
the principal employer or by his agent with or without the
knowledge of the principal employer; or (2) in connection with
the work of an establishment by the principal employer through a
contractor or by a contractor with or without the knowledge of
the principal employer. Where a workman is hired in or in
connection with the work of an establishment by the principal
employer through a contractor, he merely acts as an agent so there
will be master and servant relationship between the principal
employer and the workman. But where a workman is hired in or
in connection with the work of an establishment by a contractor,
either because he has undertaken to produce a given result for the
establishment or because he supplies workman for any work of
the establishment, a question might arise whether the contractor
is a mere camouflage as in Hussainbhai Calicuts case (supra) and
in Indian Petrochemicals Corporations case (supra) etc.; if the
answer is in the affirmative, the workman will be in fact an
employee of the principal employer; but if the answer is in the
negative, the workman will be a contract labour.
Clause (c) of Section 2 defines contractor as under:
(2)(1)(c) Contractor, in relation to an
establishment, means a person who
undertakes to produce a given result for the
establishment, other than a mere supply of
goods or articles of manufacture to such
establishment, through contract labour or who
supplies contract labour for any work of the
establishment and includes a sub-contractor.
It may be noticed that the term contractor is defined in
relation to an establishment to mean a person who undertakes to
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produce a given result for the establishment through contract
labour or supplies contract labour for any work of the
establishment and includes sub-contractor but excludes a supplier
of goods or articles of manufacture to such establishment.
The definition of principal employer in clause (g) of
Section 2 runs thus:
(2)(1)(g)(i) in relation to any office or
department of the Government or a local
authority, the head of that office or
department or such other officer as the
Government or the local authority, as the case
may be, may specify in this behalf.
(ii) in a factory, the owner or occupier of the
factory and where a person has been named
as the manager of the factory under the
Factories Act, 1948 ( 63 of 1948), the person
so named,
(iii) in a mine, the owner or agent of the
mine and where a person has been named as
the manager of the mine the person so
named,
(iv) in any other establishment, any person
responsible for the supervision and control of
the establishment.
Explanation: For the purpose of sub-clause
(iii) of this clause, the expressions mine,
owner and agent shall have the meanings
respectively assigned to them in clause (j),
clause (l) and clause (c) of sub-section (1) of
section 2 of the Mines Act, 1952 ( 35 of
1952).
It contains four parts. Under the first part, the head of any
office or department or such other officer as the Government or
the local authority, as the case may be, may specify in that behalf,
is called the principal employer. The second part takes in the
owner or occupier of the factory and where a person has been
named as the manager of the factory under the Factories Act,
1948, the person so named is treated as the principal employer.
The third part includes, within the meaning of the principal
employer, the owner or agent of a mine or where a person has
been named as the manager of the mine, the person so named .
And the fourth part embraces every person responsible for the
supervision and control of any establishment within the fold of
principal employer.
The term workman as defined in clause (i) of Section 2 of
the CLRA Act is as follows:
workman means any person employed in or
in connection with the work of any
establishment to do any skilled, semi-skilled
or un-skilled manual, supervisory, technical or
clerical work for hire or reward, whether the
terms of employment be express or implied
but does not include any such person-
(A) who is employed mainly in a
managerial or administrative capacity;
(B) who, being employed in a supervisory
capacity draws wages exceeding five
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hundred rupees per mensem or
exercises, either by the nature of the
duties attached to the office or by
reason of the powers vested in him,
functions mainly of a managerial
nature; or
(C) who is an out-worker, that is to say, a
person to whom any articles and
materials are given out by or on behalf
of the principal employer to be made
up, cleaned, washed, altered,
ornamented, finished, repaired, adapted
or otherwise processed for sale for the
purposes of the trade or business of the
principal employer and the process is to
be carried out either in the home of the
out-worker or in some other premises,
not being premises under the control
and management of the principal
employer.
The definition is quite lucid. It has two limbs. The first
limb indicates the meaning of the term as any person employed in
or in connection with the work of any establishment to do any
skilled, semi-skilled or un-skilled, supervisory, technical or
clerical work for hire or reward. It is immaterial that the terms of
employment are express or implied. The second limb contains
three exclusionary classes - (A) managerial or administrative staff;
(B) supervisory staff drawing salary exceeding Rs.500/-(p.m.) and
(C) an out worker which implies a person to whom articles and
materials are given out by or on behalf of the principal employer
to be made up cleaned, washed, altered, ornamented, finished,
repaired, adapted or otherwise processed for sale for purposes of
the trade or business of the principal employer and the process is
to be carried out either in the home of the out-worker or in some
other place not being the premises under the control and
management of the principal employer.
Now we shall consider issue A:
Whether the concept of automatic absorption
of contract labour in the establishment of the
principal employer on issuance of abolition
notification, is implied in Section 10 of the
CLRA Act.
It would be useful to notice the historical perspective of
the contract labour system leading to the enactment of the CLRA
Act for a proper appreciation of the issue under examination. The
problems and the abuses resulting from engagement of contract
labour had attracted the attention of the Government from time
to time. In the pre-independence era, in 1929 a Royal Commission
was appointed by the then British Government to study and report
all the aspects of labour. Suffice it to mention that in 1931 the
Royal Commission ( also known as Whitley Commission)
submitted its report mentioning about existence of intermediary
named jobber and recommended certain measures to reduce the
influence of the jobber. Nothing substantial turned on that. In
1946 Rege Committee noted that in India contractors would either
supply labour or take on such portions of work as they could
handle. The Committee pointed out, whatever may be the
grounds advanced by employers, it is to be feared that the
disadvantages of the system are far more numerous and weightier
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than the advantages; though the Rege Committee recognised
need for contract labour yet urged for its abolition where it was
possible and recommended for regulating conditions of service
where its continuance was unavoidable. In 1956 the Second
Planning Commission (of which the then Prime Minister Pandit
Jawahar Lal Nehru was the Chairman) observed that in the case
of contract labour the major problems relate to the regulations of
working conditions and ensuring them continuous employment
and for that purposes suggested that it was necessary to:
(a) undertake studies to ascertain the extent
and the nature of the problems involved in
different industries:
(b) examine where contract labour could be
progressively eliminated. This should be
undertaken straightway;
(c) determine cases where responsibility for
payment of wages, ensuring proper
conditions of work, etc. could be placed
on the principal employer in addition to
the contractor;
(d) secure gradual abolition of the contract
system where the studies show this to be
feasible, care being taken to ensure that
the displaced labour is provided with
alternative employment;
(e) secure for contract labour the conditions
and protection enjoyed by other workers
engaged by the principal employer; and
(f) set up a scheme of decasualisation,
wherever feasible.
It is no doubt true that one of the suggestions referred to
above, does speak of care being taken to ensure that the
displaced labour is provided with alternative employment, but a
careful reading of the recommendation shows that the Committee
was not unmindful of the fact that abolition of the contract labour
system would result in displacement of labour, nonetheless what
it thought fit to recommend was alternative employment and not
absorption in the establishment where the contract labour was
working.
In 1969, the National Commission of Labour submitted its
report recording the finding that the contract labour system was
functioning with advantage to the employer and disadvantage to
the contract labour and recommended that it should be abolished.
The Commission also observed that under the various enactments
the definition of worker was enlarged to include contract labour
and thus benefits of working conditions and hours of work
admissible to labour directly employed were made available to the
contract labour as well.
Indeed, the National Commission which was chaired by
Justice P.B. Gajendragadkar who was a party to the judgment of
this Court in The Standard Vacuums case (supra) possibly
inspired by that judgment enumerated factors, indicated therein
which would justify dispensing with the contract labour system,
in para 29.11 of its report, which is reproduced hereunder.
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29.11 - Judicial awards have discouraged the
practice of employment of contract labour,
particularly when the work is (i) perennial and
must go on from day to day; (ii) incidental
and necessary for the work of the factory; (iii)
sufficient to employ a considerable number of
wholetime workmen; and (iv) being done in
most concerns through regular workmen.
These awards also came out against the
system of middlemen.
While recommending abolition of contract labour
altogether, it was emphasised that such facilities which other
regular workers enjoyed, should be made available to contract
labour if for some unavoidable reasons the contract labour had to
stay. In para 29.15 of its report the National Commission of
Labour noticed the fact of introduction of The Contract Labour
(Regulation and Abolition) Bill, 1967 (for short the Bill) in the
Parliament, which incorporated to a great extent the said
recommendations. The Bill later became the CLRA Act. It is
worth noticing that in spite of absence of a provision for
absorption of contract labour in the Bill (on issuance of
notification under Section 10(1) of the CLRA Act prohibiting
engagement of contract labour), the National Commission
endorsed that measure.
We have given punctilious reading to the report of the
Joint Committee of the Parliament on the said Bill. Neither in the
main report nor in the dissent note, do we find a reference to the
automatic absorption of the contract labour. This may perhaps be
for the reason that on abolition of contract labour system in an
establishment, the contract labour nonetheless remains as the
workforce of the contractors who get contracts in various
establishments where the contract labour could be engaged and
where they would be extended the same statutory benefits as they
were enjoying before. We noticed that it was clear to the Joint
Committee that by abolition of contract labour, the principal
employer would be compelled to employ permanent workers for
all types of work which would result incurring high cost by him,
which implied creation of employment opportunities on regular
basis for the contract labour. This could as well be yet another
reason for not providing automatic absorption.
This is so far as the recommendations of various
commissions and committees leading to enactment of CLRA Act.
We have already referred to the Statement of Objects and
Reasons of the Act elsewhere in this judgment which also does
not allude to the concept of automatic absorption of the contract
labour on issuance of notification for prohibition of employment
of the contract labour.
Now turning to the provisions of the Act, the scheme of the
Act is to regulate conditions of workers in contract labour system
and to provide for its abolition by the appropriate Government as
provided in Section 10 of the CLRA Act. In regard to the
regulatory measures, Section 7 requires the principal employer
of an establishment to get itself registered under the Act. Section
12 of the Act obliges every contractor to obtain licence under the
provisions of the Act. Section 9 of the Act places an embargo on
the principal employer of an establishment, which is either not
registered or registration of which has been revoked under Section
8, from employing contract labour in the establishment.
Similarly, Section 12(1) bars a contractor from undertaking or
executing any work through contract labour except under and in
accordance with a licence. Sections 23, 24 and 25 of the Act
make contravention of the provisions of the Act and other
offences punishable thereunder. With regard to the welfare
measures intended for the contract labour, Section 16 imposes an
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obligation on the appropriate Government to make rules to require
the contractor to provide canteen for the use of the contract
labour. The contractor is also under an obligation to provide rest
room as postulated under Section 17 of the Act. Section 18
imposes a duty on every contractor employing contract labour in
connection with the work of an establishemnt to make
arrangement for a sufficient supply of wholesome drinking water
for the contract labour at convenient places, a sufficient number of
latrines and urinals of the prescribed type at convenient and
accessible places for the contract labour in the establishment,
washing facilities etc. Section 19 requires the contractor to
provide and maintain a first aid box equipped with prescribed
contents at every place where contract labour is employed by him.
Section 21 specifically says that a contractor shall be responsible
for payment of wages to workers employed by him as contract
labour and such wages have to be paid before the expiry of such
period as may be prescribed. The principal employer is enjoined
to have his representative present at the time of payment of wages.
In the event of the contractor failing to provide amenities
mentioned above, Section 20 imposes an obligation on the
principal employer to provide such amenities and to recover the
cost and expenses incurred therefor from the contractor either by
deducting from any amount payable to the contractor or as a debt
by the contractor. So also, Sub-Section (4) of Section 21 says that
in the case of the contractor failing to make payment of wages as
prescribed under Section 21, the principal employer shall be liable
to make payment of wages to the contract labour employed by the
contractor and will be entitled to recover the amount so paid from
the contractor by deducting from any amount payable to the
contractor or as a debt by the contractor. These provisions clearly
bespeak treatment of contract labour as employees of the
contractor and not of the principal employer.
If we may say so, the eloquence of the CLRA Act in not
spelling out the consequence of abolition of contract labour
system, discerned in the light of various reports of the
Commissions and the Committees and the Statement of Objects
and Reasons of the Act, appears to be that the Parliament intended
to create a bar on engaging contract labour in the establishment
covered by the prohibition notification, by a principal employer so
as to leave no option with him except to employ the workers as
regular employees directly. Section 10 is intended to work as a
permanent solution to the problem rather than to provide a one
time measure by departmentalizing the existing contract labour
who may, by a fortuitous circumstance be in a given
establishment for a very short time as on the date of the
prohibition notification. It could as well be that a contractor and
his contract labour who were with an establishment for a number
of years were changed just before the issuance of prohibition
notification. In such a case there could be no justification to prefer
the contract labour engaged on the relevant date over the contract
labour employed for longer period earlier. These may be some of
the reasons as to why no specific provision is made for automatic
absorption of contract labour in the CLRA Act.
In the light of the above discussion we are unable to
perceive in Section 10 any implicit requirement of automatic
absorption of contract labour by the principal employer in the
concerned establishment on issuance of notification by the
appropriate Government under Section 10(1) prohibiting
employment of contract labour in a given establishment.
Here we may also take note of the judicial approach in
regard to absorption of contract labour on issuing direction for its
abolition, from the cases decided before the enactment of CLRA
Act. In The Standard Vacuums case (supra), the appellant-
company engaged contractor for cleaning and maintenance work
at the refinery and plant belonging to it. The contract labour made
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a demand for abolition of contract labour system and for
absorption of the contract labour in the regular service of the
company. The dispute was referred to the Tribunal under the
Industrial Disputes Act. The appellant raised an objection to the
competence of the reference, inter alia, on the ground that there
can be no dispute between it and the respondents as they were the
workmen of a different employer namely, the contractor. The
Tribunal found against the appellant on the question of
competence of the reference and passed award directing that the
contract labour system should be abolished. On appeal, this Court
held that as the ingredients of Section 2(k) of the Industrial
Disputes Act were present, the dispute between the parties was an
industrial dispute and, therefore, reference was competent. It was
further held that the work entrusted to the contractor was
incidental to and necessary for the work of the refinery and was
of perennial nature; it was sufficient to employ a considerable
number of whole-time workmen and that type of work was being
done in most concerns through regular workmen. Therefore, the
Tribunals suggestion directing abolition of contract labour was
right and no interference with the award of the Tribunal was
called for. However, it was observed that the date from which the
direction for abolition of contract labour was to be effective,
should not be put into force with retrospective effect and having
noted that a few months remained for the existing contract to
come to an end, permitted the existing contract system to be
continued for the rest of the period of the contract. A chary
reading of the above judgment shows that though direction for
abolition of contract labour was approved, no automatic
absorption of the contract labour working as on the date of
abolition in the establishment was ordered by this Court. It is
interesting to notice that the conditions pointed out by this Court,
namely, (i) the work was incidental and necessary for the work of
establishment; (ii) was of perennial nature; (iii) was sufficient to
employ a considerable number of whole time workmen and (iv)
that type of work was being done in most concerns through
regular workmen, have been incorporated in sub-section 2 of
Section 10 of CLRA Act.
Much emphasis is laid on the judgment of this Court in The
Standard Vacuums case (supra) in support of the contention that
the Courts directed absorption of contract labour as a consequence
of prohibition of employment of contract labour. We have
pointed out above that a thoughtful reading of the said judgment
would disclose that no such principle has been laid down therein.
On the contrary, the Court having affirmed the direction
prohibiting employment of contract labour extended the date from
which the prohibition was to take effect so as to permit the
existing contractor to continue for the rest of the period of the
contract. Thus it is clear that before the enactment of the CLRA
Act the industrial adjudicators/courts did direct abolition of
contract labour system but did not order absorption of contract
labour by the principal employer on such abolition of the contract
labour system.
Now, it would be apt to notice the judicial approach after
the enactment of the CLRA Act.
In Vegoilss case (supra), the question before this Court
was: had the Industrial Tribunal jurisdiction to issue direction to
the establishment to abolish contract labour with effect from the
date after coming into force of the CLRA Act? The appellant-
company had engaged contract labour in seeds godown and
solvent extraction plants in its factory. The appellant took the
plea that the type of work was intermittent and sporadic for which
the contract labour was both efficient and economic. On the other
hand, the union of the workmen submitted that the work was
continuous and perennial in nature and that in similar companies
the practice was to have permanent workmen; it claimed that the
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contract labour system be abolished and the contract labour be
absorbed as regular employees in the concerned establishment of
the appellant. The Tribunal having found that the work for which
the contract labour was engaged was closely connected with the
main industry carried on by the appellant and that the work was
also of perennial character, directed abolition of contract labour
system from a date after coming into force of the CLRA Act but
rejected the claim for absorption of contract labour in the
establishment of the appellant. On appeal to this Court, after
pointing out the scheme of Section 10 of the Act, it was held that
under the CLRA Act, the jurisdiction to decide about the abolition
of contract labour had to be in accordance with Section 10,
therefore, it would be proper that the question, whether the
contract labour in the appellant industry was to be abolished or
not, be left to be dealt with by the appropriate Government under
the Act, if it became necessary. From this judgment, no support
can be drawn for the proposition that absorption of the contract
labour is a concomitant of the abolition notification under Section
10(1) of the Act.
A Constitution Bench of this Court in M/s Gammon India
Ltd. & Ors. Vs. Union of India & Ors. considered the
constitutional validity of the CLRA Act and the Rules made
thereunder in a petition under Article 32 of the Constitution of
India. In that case, the work of construction of a building for the
banking company was entrusted to the petitioners - building
contractors - who engaged contract labour for construction work.
While upholding the constitutional validity of the CLRA Act and
the Rules made thereunder, this Court summed up the object of
the Act and the purpose for enacting Section 10 of the Act as
follows :
The Act was passed to prevent the
exploitation of contract labour and also to
introduce better conditions of work. The Act
provides for regulation and abolition of
contract labour. The underlying policy of the
Act is to abolish contract labour, wherever
possible and practicable, and where it cannot
be abolished altogether, the policy of the Act
is that the working conditions of the contract
labour should be so regulated as to ensure
payment of wages and provision of essential
amenities. That is why the Act provides for
regulated conditions of work and
contemplates progressive abolition to the
extent contemplated by Section 10 of the Act.
Section 10 of the Act deals with abolition
while the rest of the Act deals mainly with
regulation. The dominant idea of Section 10
of the Act is to find out whether contract
labour is necessary for the industry, trade,
business, manufacture or occupation which is
carried on in the establishment.
There is nothing in that judgment to conclude that on
abolition of contract labour system under Section 10(1), automatic
absorption of contract labour in the establishment of the principal
employer in which they were working at that time, would follow.
In Dena Naths case (supra), a two-Judge Bench of this
Court considered the question, whether as a consequence of non-
compliance of Sections 7 and 12 of the CLRA Act by the
principal employer and the licensee respectively, the contract
labour employed by the principal employer would become the
employees of the principal employer. Having noticed the
observation of the three-Judge Bench of this Court in The
Standard-Vacuums case (supra) and having pointed out that the
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guidelines enumerated in sub-section (2) of Section 10 of the Act
are practically based on the guidelines given by the Tribunal in
the said case, it was held that the only consequence was the penal
provisions under Sections 23 and 25 as envisaged under the
CLRA Act and that merely because the contractor or the employer
had violated any provision of the Act or the Rules, the High Court
in proceedings under Article 226 of the Constitution could not
issue any mandamus for deeming the contract labour as having
become the employees of the principal employer. This Court thus
resolved the conflict of opinions on the said question among
various High Courts. It was further held that neither the Act nor
the Rules framed by the Central Government or by any
appropriate Government provided that upon abolition of the
contract labour, the labourers would be directly absorbed by the
principal employer.
In the case of R.K. Panda and Ors. Vs. Steel Authority of
India and Ors. contract labour was employed at Rourkela Plant
of the Steel Authority of India through contractors and continued
in employment for long periods - between 10 and 20 years - as
contract labourers. It was found that though the respondents were
changing the contractors, yet under the terms of the agreement
the incoming contractors were obliged to retain the contract
labour engaged by the outgoing contractors. That apart, for about
eight years the contract labour was continued to be employed by
virtue of the interim order of this Court. It was noticed that in
B.H.E.L. Workers Association, Hardwar & Ors. etc. Vs. Union
of India & Ors. etc. , Mathura Refinery Mazdoor Sangh through
its Secretary Vs. Indian Oil Corpn. Ltd., Mathura Refinery
Project, Mathura and Anr. and the Dena Naths case (supra), on
the question - whether the contract labourers had become the
employees of the principal employer in course of time or whether
the engagement and employment of labourers through a contractor
was a mere camouflage and a smokescreen - this Court took the
view that it was a question of fact and had to be established by the
contract labourers on the basis of the requisite material in the
industrial court or industrial tribunal. However, having regard to
the various interim orders passed by this Court and the time taken
in deciding the case, this Court considered the matter on merits
and on the basis of the offer made by the respondents, which was
recorded, issued certain directions which need not be quoted here.
However, no order was made directing absorption of contract
labour on abolition of contract labour system.
In National Federation of Railway Porters, Vendors &
Bearers vs. Union of India & Ors. , a two-Judge Bench of this
Court on the basis of findings contained in the report of the
Labour Commissioner that there was no evidence that the
labourers were the employees of the Society (contractor) and that
they were contract labourers provided by the Society under the
agreement, treated them as labourers of the Northern Railway as
they had completed 240 days of continuous service in a year,
some from 1972, some from 1980 and some from 1985.
Following the order of this Court dated April 15, 1991
[Raghavendra Gumashta vs. Union of India (Writ Petition
No.277 of 1988)], the Court directed their absorption in the
Railway Service.
It is obvious that direction to absorb the labourers was
given on the premise that they were not the employees of the
contractor (the society) but were of the Northern Railways.
In Mathura Refinery Mazdoor Sanghs case (supra), the
disputes between the contract labourers represented by the
appellant and the respondents, referred to the industrial tribunal
for adjudication, included the question, whether the contract
labourers were the employees of the respondent corporation. The
tribunal answered the question against the appellant but issued,
among others, a direction that the respondent should give
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preference to the contract labour in the employment by waiving
the requirement of age and other qualification wherever possible.
It was, however, clarified by the industrial tribunal that the
ameliorative steps should not be taken to mean that the contract
labour had become the direct employees of the refinery. Against
those directions, this Court dismissed the appeal holding that the
suggestions and directions given by the tribunal in the impugned
award, could not be improved upon.
In Association of Chemical Workers, Bombay vs. A.L.
Alaspurkar and Ors. a three-Judge Bench of this Court declined
to go into the correctness of the pronouncement in Dena Naths
case (supra) that automatic absorption does not follow on
prohibition of contract labour but directed the principal employer
to consider the contract labour, by giving them preference, in
appointment.
In Gujarat Electricity Boards case (supra), a two-Judge
Bench of this Court has held that if there is a genuine labour
contract between the principal employer and the contractor, the
authority to abolish the contract labour vests in the appropriate
Government and not in any court including industrial adjudicator.
If the appropriate Government abolishes the contract labour
system in respect of an establishment the industrial adjudicator
would, after giving opportunity to the parties to place material
before it, decide whether the workmen be absorbed by the
principal employer, if so, how many of them and on what terms,
but if the appropriate Government declines to abolish the contract
labour the industrial adjudicator has to reject the reference. If,
however, the so-called contract is not genuine but is sham and
camouflage to hide the reality, Section 10 would not apply and the
workmen can raise an industrial dispute for relief that they should
be deemed to be the employees of the principal employer. The
court or the industrial adjudicator would have jurisdiction to
entertain such a dispute and grant necessary relief.
While this was the state of law in regard to the contract
labour, the issue of automatic absorption of the contract labour
came up before a Bench of three learned Judges of this Court in
Air Indias case (supra). The Court held : (1) though there is no
express provision in the CLRA Act for absorption of the contract
labour when engagement of contract labour stood prohibited on
publication of the notification under Section 10(1) of the Act,
from that moment the principal employer cannot continue
contract labour and direct relationship gets established between
the workmen and the principal employer; (2) the Act did not
intend to denude the contract labour of their source of livelihood
and means of development throwing them out from employment;
and (3) in a proper case the Court as sentinel on the qui vive is
required to direct the appropriate authority to submit a report and
if the finding is that the workmen were engaged in violation of the
provisions of the Act or were continued as contract labour despite
prohibition of the contract labour under Section 10(1), the High
Court has a constitutional duty to enforce the law and grant them
appropriate relief of absorption in the employment of the principal
employer. Justice Majmudar, in his concurring judgment, put it
on the ground that when on the fulfillment of the requisite
conditions, the contract labour is abolished under Section 10 (1),
the intermediary contractor vanishes and along with him vanishes
the term principal employer and once the intermediary
contractor goes the term principal also goes with it; out of the
tripartite contractual scenario only two parties remain, the
beneficiaries of the abolition of the erstwhile contract labour
system, i.e. the workmen on the one hand and the employer on the
other, who is no longer their principal employer but necessarily
becomes a direct employer for erstwhile contract labourers. The
learned Judge also held that in the provision of Section 10 there is
implicit legislative intent that on abolition of contract labour
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system, the erstwhile contract workmen would become direct
employees of the employer on whose establishment they were
earlier working and were enjoying all the regulatory facilities
under Chapter V in that very establishment. In regard to the
judgment in Gujarat Electricity Boards case (supra), to which he
was a party, the learned Judge observed that he wholly agreed
with Justice Ramaswamys view that the scheme envisaged by
Gujarat Electricity Board case was not workable and to that extent
the said judgment could not be given effect to.
For reasons we have given above, with due respect to the
learned Judges, we are unable to agree with their reasoning or
conclusions.
The principle that a beneficial legislation needs to be
construed liberally in favour of the class for whose benefit it is
intended, does not extend to reading in the provisions of the Act
what the legislature has not provided whether expressly or by
necessary implication, or substituting remedy or benefits for that
provided by the legislature. We have already noticed above the
intendment of the CLRA Act that it regulates the conditions of
service of the contract labour and authorizes in Section 10(1)
prohibition of contract labour system by the appropriate
Government on consideration of factors enumerated in sub-
section (2) of Section 10 of the Act among other relevant factors.
But, the presence of some or all those factors, in our view,
provide no ground for absorption of contract labour on issuing
notification under sub-section (1) of Section 10. Admittedly when
the concept of automatic absorption of contract labour as a
consequence of issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in Section 10 or
at any other place in the Act and the consequence of violation of
Sections 7 and 12 of the CLRA Act is explicitly provided in
Sections 23 and 25 of the CLRA Act, it is not for the High Courts
or this Court to read in some unspecified remedy in Section 10 or
substitute for penal consequences specified in Sections 23 and 25
a different sequel, be it absorption of contract labour in the
establishment of principal employer or a lesser or a harsher
punishment. Such an interpretation of the provisions of the statute
will be far beyond the principle of ironing out the creases and the
scope of interpretative legislation and as such clearly
impermissible. We have already held above, on consideration of
various aspects, that it is difficult to accept that the Parliament
intended absorption of contract labour on issue of abolition
notification under Section 10(1) of CLRA Act.
We have gone through the decisions of this Court in V.S.T.
Industries case (supra), G. B. Pant Universitys case (supra) and
Mohammed Aslams case (supra). All of them relate to statutory
liability to maintain the canteen by the principal employer in the
factory/establishment. That is why in those cases, as in The
Saraspur Mills case (supra), the contract labour working in the
canteen were treated as workers of the principal employer. These
cases stand on a different footing and it is not possible to deduce
from them the broad principle of law that on the contract labour
system being abolished under sub-section (1) of Section 10 of the
CLRA Act the contract labour working in the establishment of the
principal employer has to be absorbed as regular employees of the
establishment.
An analysis of the cases, discussed above, shows that they
fall in three classes; (i) where contract labour is engaged in or in
connection with the work of an establishment and employment of
contract labour is prohibited either because the Industrial
adjudicator/Court ordered abolition of contract labour or because
the appropriate Government issued notification under Section
10(1) of the CLRA Act, no automatic absorption of the contract
labour working in the establishment was ordered; (ii) where the
contract was found to be sham and nominal rather a camouflage in
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which case the contract labour working in the establishment of
the principal employer was held, in fact and in reality, the
employees of the principal employer himself. Indeed, such cases
do not relate to abolition of contract labour but present instances
wherein the Court pierced the veil and declared the correct
position as a fact at the stage after employment of contract labour
stood prohibited; (iii) where in discharge of a statutory obligation
of maintaining canteen in an establishment the principal
employer availed the services of a contractor and the courts have
held that the contract labour would indeed be the employees of the
principal employer.
The next issue that remains to be dealt with is:
B. Whether on a contractor engaging contract labour
in connection with the work entrusted to him by a
principal employer, the relationship of master and
servant between him (the principal employer) and
the contract labour emerges.
Mr. Shanti Bhushan alone has taken this extreme stand that
by virtue of engagement of contract labour by the contractor in
any work of or in connection with the work of an establishment,
the relationship of master and servant is created between the
principal employer and the contract labour. We are afraid, we are
unable to accept this contention of the learned counsel. A careful
survey of the cases relied upon by him shows that they do not
support his proposition.
In The Maharashtra Sugar Millss case (supra), the question
that fell for consideration of this court was whether the contract
labour was covered by the definition of employee under the
Bombay Industrial Relations Act, 1946 and, therefore, should be
treated as employees of the appellant-sugar mills. There
contractors were engaged by the appellant for carrying on certain
operations in its establishment. The contractors were to employ
contract labour (workers) for carrying out the work undertaken
but they should have the approval of the appellant, although it was
the obligation of the contractors to pay wages to the workers.
However, the contract labour engaged by the contractors got the
same amenities from the appellant as were available to its muster
roll workers. An industrial dispute arose in respect of the
payment of wages to the contract labour engaged by the
contractors which, along with other disputes, was referred to the
Industrial Court by the Government. The reference was
contested, as being not maintainable, by the appellant on the plea
that the contractors workers were not employees within the
meaning of the said Act. The term employee is defined in the
said Act to mean any person employed to do any skilled or
unskilled manual or clerical work for hire or reward in any
industry and includes a person employed by a contractor to do any
work for him in execution of a contract with an employer within
the meaning of sub-clause (3) of clause 14. It was on the basis
of the definitions of the terms the employer and the
employee, the contract labour engaged by the contractors was
held to be employees of the appellant. The decision in that case
cannot be read as holding that when a contractor engages contract
labour in connection with the work of the principal employer, the
relationship of master and servant is created between the principal
employer and the contract labour.
In Shivnandan Sharmas case (supra), the respondent-Bank
entrusted its cash department under a contract to the treasurers
who appointed cashiers, including the appellant - the head cashier.
The question before the three-Judge Bench of this Court was:
was the appellant an employee of the Bank? On the construction
of the agreement entered into between the Bank and the
treasurers, it was held that the treasurers were under the
employment of the Bank on a monthly basis for an indefinite
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term as they were under the complete control and direction of the
Bank through its manager or other functionaries and, therefore,
the appointees including the appellant (nominees) of the
treasurers, were also the employees of the Bank. This Court laid
down,
if a master employs a servant and
authorises him to employ a number of persons
to do a particular job and to guarantee their
fidelity and efficiency for a cash
consideration, the employees thus appointed
by the servant would be equally with the
employer, servants of the master.
We do not think that the principle, quoted above, supports the
proposition canvassed by the learned counsel.
The decision of the Constitution Bench of this Court in
Basti Sugar Mills case (supra) was given in the context of
reference of an industrial dispute under the Uttar Pradesh
Industrial Disputes Act, 1947. The appellant-Sugar Mills
entrusted the work of removal of press mud to a contractor who
engaged the respondents therein (contract labour) in connection
with that work. The services of the respondents were terminated
by the contractor and they claimed that they should be re-instated
in the service of the appellant. The Constitution Bench held,
The words of the definition of workmen in
Section 2(z) to mean any person (including
an apprentice) employed in any industry to do
any skilled or unskilled, manual, supervisory,
technical or clerical work for hire or reward,
whether the terms of employment be express
or implied are by themselves sufficiently
wide to bring in persons doing work in an
industry whether the employment was by the
management or by the contractor of the
management. Unless however the definition
of the word employer included the
management of the industry even when the
employment was by the contractor the
workmen employed by the contractor could
not get the benefit of the Act since a dispute
between them and the management would not
be an industrial dispute between employer
and workmen. It was with a view to remove
this difficulty in the way of workmen
employed by contractors that the definition of
employer has been extended by sub-clause
(iv) of Section 2(i). The position thus is : (a)
that the respondents are workmen within the
meaning of Section 2(z), being persons
employed in the industry to do manual work
for reward, and (b) they were employed by a
contractor with whom the appellant company
had contracted in the course of conducting the
industry for the execution by the said
contractor of the work of removal of press-
mud which is ordinarily a part of the industry.
It follows therefore from Section 2(z) read
with sub-clause (iv) of Section 2(i) of the Act
that they are workmen of the appellant
company and the appellant company is their
employer.
It is evident that the decision in that case also turned on the
wide language of statutory definitions of the terms workmen
and employer. So it does not advance the case pleaded by the
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learned counsel.
In The Saraspur Mills case (supra), the question was
whether the respondents engaged for working in the canteen run
by the co-operative society for the appellant-company were the
employees of the appellant-Mills. The respondents initiated
proceedings under Section 79 of the Bombay Industrial Relations
Act, 1946 for payment of D.A. in terms of the award of the
Industrial Court. The appellant contested the claim on the ground
that the respondents were employees of the co-operative society
and not of the appellant. A two-Judge Bench of this Court
approached the question from the point of view of statutory
liability of the appellant to run the canteen in the factory and
having construed the language employed in the definitions of
employee and employer in sub-sections (13) and (14),
respectively, of Section 3 of the Act, and the definition of
worker contained in Section 2(i) of the Factories Act and having
referred to the Basti Sugar Mills case (supra), held that even
though in pursuance of a statutory liability the appellant was to
run the canteen in the factory, it was run by the co-operative
society as such the workers in the canteen (the respondents) would
be the employees of the appellant. This case falls in class (iii)
mentioned above.
In a three-Judge Bench decision of this Court in
Hussainbhais case (supra), the petitioner who was manufacturing
ropes entrusted the work to the contractors who engaged their own
workers. When, after some time, the workers were not engaged,
they raised an industrial dispute that they were denied
employment. On reference of that dispute by the State
Government, they succeeded in obtaining an award against the
petitioner who unsuccessfully challenged the same in the High
Court and then in the Supreme Court. On examining various
factors and applying the effective control test, this court held that
though there was no direct relationship between the petitioner and
the respondent yet on lifting the veil and looking at the conspectus
of factors governing employment, the naked truth, though draped
in different perfect paper arrangement, was that the real employer
was the management not the immediate contractor. Speaking for
the Court, Justice Krishna Iyer observed thus :-
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.............
Of course, if there is total dissociation in fact
between the disowning Management and the
aggrieved workmen, the employment is, in
substance and in real-life terms, by another.
The Managements adventitious connections
cannot ripen into real employment.
This case falls in class (ii) mentioned above.
The above discussion amply justifies rejection of the
contentions of Mr. Shanti Bhushan by us.
We find no substance in the next submission of Mr. Shanti
Bhushan that a combined reading of the definition of the terms
contract labour, establishment and workman would show that
a legal relationship between a person employed in an industry and
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the owner of the industry is created irrespective of the fact as to
who has brought about such relationship.
We have quoted the definitions of these terms above and
elucidated their import. The word workman is defined in wide
terms. It is a generic term of which contract labour is a species. It
is true that a combined reading of the terms establishment and
workman shows that a workman engaged in an establishment
would have direct relationship with the principal employer as a
servant of master. But what is true of a workman could not be
correct of contract labour. The circumstances under which
contract labour could be treated as direct workman of the principal
employer have already been pointed out above.
We are not persuaded to accede to the contention that a
workman, who is not an out-worker, must be treated as a regular
employee of the principal employer. It has been noticed above
that an out-worker falls within the exclusionary clause of the
definition of workman. The word out worker connotes a
person who carries out the type of work, mentioned in sub-clause
(C) of clause (i) of Section 2, of the principal employer with the
materials supplied to him by such employer either (i) at his home
or (ii) in some other premises not under the control and
management of the principal employer. A person who is not an
out worker but satisfies the requirement of the first limb of the
definition of workman would, by the very definition, fall within
the meaning of the term workman. Even so, if such a workman
is within the ambit of the contract labour, unless he falls within
the afore-mentioned classes, he cannot be treated as a regular
employee of the principal employer.
We have also perused all the Rule and Forms prescribed
thereunder. It is clear that at various stages there is involvement
of the principal employer. On exhaustive consideration of the
provisions of the CLRA Act we have held above that neither they
contemplate creation of direct relationship of master and servant
between the principal employer and the contract labour nor can
such relationship be implied from the provisions of the Act on
issuing notification under Section 10(1) of the CLRA Act, a
fortiorari much less can such a relationship be found to exist
from the Rules and the Forms made thereunder.
The leftover contention of Ms. Indira Jaisingh may be dealt
with here. The contention of Ms. Indira Jaisingh that the
principles of contract law sticto sensu do not apply to the labour
and management is too broad to merit acceptance.
In Rai Bahadurs case (supra), the industrial dispute referred
to the Industrial Tribunal was: whether all the employees of the
appellant should be allowed 30 days earned leave with full wages
for every 11 months service without discrimination. The
appellant framed the rules on July 1, 1956 providing that every
workman employed on or before that date would be entitled to 30
days earned leave with full wages for every 11 months service.
The contention of the employer was that those who were
employed after that date were not entitled to the same period of
leave. It was contended that the appellant was entitled to fix the
terms of employment on which it would employ the workmen and
it was open for the workman to accept or not to accept those terms
so the Tribunal was not justified in interfering with such matter.
A three-Judge Bench of this Court, by majority, held that the
Tribunal was justified in directing the appellant to provide the
same uniform rules as to earned leave for all its employees that
the doctrine of absolute freedom of contract had to yield to the
higher claims for social justice and had to be so regulated. After
referring to Western Indias case (supra) and The Bharat Banks
case (supra), Justice P.B. Gajendragadkar speaking for the
majority observed:
in order that industrial adjudication should be
free from the tyranny of dogmas or the sub-
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conscious pressure of pre-conceived notions,
it is important that the temptation to lay down
broad principles should be avoided.
Accordingly, it is not necessary to decide the
broad contention whether industrial
adjudication can interfere with the contract
between the employers and the employees.
It is apparent that the case was decided on the ground that
there could be no discrimination of the employees in regard to
their entitlement for earned leave on the basis of a fixed date and
that no general principle was laid down that the contract laws are
inapplicable to labour-management relation.
In the case of Uptron India (supra), the controversy related
to the termination of the services of the workmen for
unauthorised absence. The Industrial Employment (Standing
Orders) Act, 1946 provided that a workman is liable to automatic
termination on the ground of unauthorised absence. It is in that
context that this Court has observed that the general principles of
the Contract Act, 1872 applicable to an agreement between two
persons having capacity to contract, are also applicable to a
contract of industrial employment but relationship so created is
partly contractual and partly non-contractual as the States have
already, by legislation, prescribed positive obligations for the
employer towards his workmen, as for example, terms, conditions
and obligations prescribed by the Payment of Wages Act, 1936;
Industrial Employment (Standing Orders) Act, 1946; Minimum
Wages Act, 1948; Payment of Bonus Act, 1965; Payment of
Gratuity Act, 1972 etc. In our view, the law has been correctly
laid down therein. The judgment in that case cannot be read as
laying down a principle of law that the provisions of the Contract
Act are not applicable to relation between the labour and the
management.
The upshot of the above discussion is outlined thus:
(1) (a) Before January 28, 1986, the determination of the
question whether Central Government or the State
Government, is the appropriate Government in relation to
an establishment, will depend, in view of the definition of
the expression appropriate Government as stood in the
CLRA Act, on the answer to a further question, is the
industry under consideration carried on by or under the
authority of the Central Government or does it pertain to
any specified controlled industry; or the establishment of
any railway, cantonment board, major port, mine or oilfield
or the establishment of banking or insurance company? If
the answer is in the affirmative, the Central Government
will be the appropriate Government; otherwise in relation
to any other establishment the Government of the State in
which the establishment was situated, would be the
appropriate Government,
(b) After the said date in view of the new definition of
that expression, the answer to the question referred to
above, has to be found in clause (a) of Section 2 of the
Industrial Disputes Act; if (i) the concerned Central
Government company/undertaking or any undertaking is
included therein eo nomine, or (ii) any industry is carried
on (a) by or under the authority of the Central Government,
or (b) by railway company; or (c) by specified controlled
industry, then the Central Government will be the
appropriate Government otherwise in relation to any other
establishment, the Government of the State in which that
other establishment is situated, will be the appropriate
Government.
(2) (a) A notification under Section 10(1) of the CLRA
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Act prohibiting employment of contract labour in any
process, operation or other work in any establishment has
to be issued by the appropriate Government :
(1) after consulting with the Central Advisory Board
or the State Advisory Board, as the case may be,
and;
(2) having regard to
(i) conditions of work and benefits provided for
the contract labour in the establishment in
question; and
(ii) other relevant factors including those
mentioned in sub-section (2) of Section 10;
(b) inasmuch as the impugned notification issued
by the Central Government on December 9, 1976 does not
satisfy the afore-said requirements of Section 10, it is
quashed but we do so prospectively i.e. from the date of
this judgment and subject to the clarification that on the
basis of this judgment no order passed or no action taken
giving effect to the said notification on or before the date of
this judgment, shall be called in question in any tribunal or
court including a High Court if it has otherwise attained
finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other
provision in the Act, whether expressly or by necessary
implication, provides for automatic absorption of contract
labour on issuing a notification by appropriate Government
under sub-section (1) of Section 10, prohibiting
employment of contract labour, in any process, operation or
other work in any establishment. Consequently the
principal employer cannot be required to order absorption
of the contract labour working in the concerned
establishment;
(4) We over-rule the judgment of this court in Air Indias
case (supra) prospectively and declare that any direction
issued by any industrial adjudicator/any court including
High Court, for absorption of contract labour following the
judgment in Air Indias case (supra), shall hold good and
that the same shall not be set aside, altered or modified on
the basis of this judgment in cases where such a direction
has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section
10(1) of the CLRA Act prohibiting employment of contract
labour or otherwise, in an industrial dispute brought before
it by any contract labour in regard to conditions of service,
the industrial adjudicator will have to consider the question
whether the contractor has been interposed either on the
ground of having undertaken to produce any given result
for the establishment or for supply of contract labour for
work of the establishment under a genuine contract or is a
mere ruse/camouflage to evade compliance of various
beneficial legislations so as to deprive the workers of the
benefit thereunder. If the contract is found to be not
genuine but a mere camouflage, the so-called contract
labour will have to be treated as employees of the principal
employer who shall be directed to regularise the services of
the contract labour in the concerned establishment subject
to the conditions as may be specified by it for that purpose
in the light of para 6 hereunder.
(6) If the contract is found to be genuine and
prohibition notification under Section 10(1) of the CLRA
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Act in respect of the concerned establishment has been
issued by the appropriate Government, prohibiting
employment of contract labour in any process, operation or
other work of any establishment and where in such process,
operation or other work of the establishment the principal
employer intends to employ regular workmen he shall give
preference to the erstwhile contract labour, if otherwise
found suitable and, if necessary, by relaxing the condition
as to maximum age appropriately taking into consideration
the age of the workers at the time of their initial
employment by the contractor and also relaxing the
condition as to academic qualifications other than technical
qualifications.
We have used the expression industrial adjudicator by
design as determination of the questions afore-mentioned requires
inquiry into disputed questions of facts which cannot conveniently
be made by High Courts in exercise of jurisdiction under Article
226 of the Constitution. Therefore, in such cases the appropriate
authority to go into those issues will be industrial tribunal/court
whose determination will be amenable to judicial review.
In the result :
C.A.Nos.6009-6010 /2001 @S.L.P. (C) Nos. 12657-58/98
The order of the High Court at Calcutta, under challenge,
insofar as it relates to holding that the West Bengal Government is
the appropriate Government within the meaning of the CLRA Act,
is confirmed but the direction that the contract labour shall be
absorbed and treated on par with the regular employees of the
appellants, is set aside. The appeals are accordingly allowed in
part.
C.A.No.6011/2001@ SLP(C)No.20926/98
In the impugned order of the High Court of Judicature,
Madhya Pradesh, Bench at Jabalpur in C.P. 143 of 1998 dated
October 14,1998, it was held that no contempt of the High Court
was committed. In view of this finding, no interference of this
Court is warranted. The appeal is accordingly dismissed.
T.C.No.1/2000
W.A.No. 80/1998 on the file of the High Court of
Judicature at Andhra Pradesh was transferred to this Court and
numbered as TC.1/2000. The writ appeal is directed against the
order of the learned Single Judge dismissing W.P.No.29865/1998
on 13.11.1997. The petitioner questioned the competence of the
State Government to make reference of the industrial dispute to
the Labour Court at Visakhapatnam. It will be open to the
Labour Court to decide the question whether the reference was
made by the appropriate Government on the basis of the main
judgment. Transferred Case No.1/2000 ( W.A.80/1998 ) is
dismissed accordingly.
T.C. Nos.5-7/2000
Civil Writ Petition Nos.1329/97, 655/97 and 1453/97 on
the file of the High Court of Delhi were transferred to this Court
and numbered as TC. 5/2000, TC. 6/2000 and TC. 7/2000
respectively. The petitioners therein prayed for a writ of
mandamus directing the respondents to absorb them as regular
employees in the establishment in which they were working at the
relevant time. Their claim is based on the impugned notification
dated December 9, 1976 issued by the Central Government. In
view of the finding recorded by us that the notification is illegal
and it is not issued by the appropriate Government under the
CLRA Act in relation to the establishment in question, the
petitioners in writ petitions cannot get any relief. However, we
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leave it open to the appropriate Government to issue the
notification under Section 10(1) of the CLRA Act in respect of the
concerned establishment of the petitioners. Subject to the above
observation the transferred cases are dismissed.
T.C.Nos. 17/2000 and 18/2000
L.P.A. Nos. 326/97 and 18/98 on the file of the High Court
of Judicature, Madhya Pradesh, Bench at Jabalpur were
transferred and numbered as TC.Nos. 17/2000 and 18/2000. The
Letter patent appeals were directed against the order of a learned
Single Judge allowing the writ petitions and directing absorption
of the members of the respondent-union. The claim of the
petitioners was based on a notification issued by the Central
Government on 17.3.1993 prohibiting with effect from the date of
publication of the notification the employment of contract labour
in the limestone and dolomite mines in the country, in the works
specified in the Schedule to the notification. The points that arise
in these cases are: (i) the validity of the notification and (ii) the
consequential orders that may be passed on issue of the abolition
notification. Having regard to the facts of these cases, we consider
it appropriate to direct that the cases be transferred back to the
High Court to be decided by the High Court in the light of the
main judgment. Transferred cases are disposed of accordingly.
C.A.No.6012/2001@SLP(C)No.9568/2000
This appeal arises from the order of the High Court of
Judicature at Jabalpur in LPA No.418/1999 dated 1.5.2000. The
High Court declined to pass any order and dismissed the LPA as
this Court had stayed proceedings in the connected LPA Nos.
326/97 and 18/98 on August 17, 1998. Inasmuch we have now
transferred back those LPAs, we consider it appropriate to transfer
this case also back to the High Court to be heard and decided
along with the said cases. The appeal is accordingly disposed of.
C.A.Nos. 719-720/2001
These appeals arise from the judgment and order of a
Division Bench of the High Court of Judicature at Calcutta in
MAT Nos. 1704 and 1705 of 1999 dated August 12, 1999. A
learned Single Judge of the High Court directed, inter alia,
absorption of contract labour on the ground that the type of work
in which the contract labour was engaged was prohibited in view
of the notification issued by the Central Government on February
9, 1980 under Section 10(1) of the CLRA Act. The appellants
filed the application against the notification on the ground that the
respondents are not covered by the notification. Be that as it may,
the Central Government issued a further notification on
14.10.1999 which appears to cover the respondents herein. The
Division Bench maintained the directions under appeals with
modification in regard to interim order. In view of the fact that we
have over-ruled the judgment of this Court in Air Indias case
(supra) which covered the field when the order of the High Court
was passed, we set aside the order of the High Court under
challenge. Appeals are accordingly allowed.
T.C.No. 14/2000
M.A.T. No.1592/1997 pending before the Division Bench
of the High Court of Calcutta which was filed against the order of
a learned Single Judge dated 9.5.1997 in C.O. No.6545(w) of
1996, holding that having regard to the impugned notification of
the Central Government dated December 9, 1976 issued under
Section 10(1) of the CLRA Act prohibiting employment of
contract labour, the appellants are bound to absorb the contract
labour as regular employees of the appellants. In view of the main
judgment, the order of the learned Single Judge cannot be
sustained. It is accordingly set aside and the transferred case is
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allowed.
C.A.Nos. 5798-99/1998
In these appeals, the Food Corporation of India is the
appellant. Having regard to the un-amended definition of the
appropriate Government which was in force till 28.1.1986, the
appropriate Government within the meaning of CLRA Act was
the government of the State in which the concerned establishment
of FCI was situated. With effect from 28.1.1986, the amended
definition of that expression under the CLRA Act came into force.
Consequently, the definition of that expression as given in the
Industrial Disputes Act would apply for purposes of the CLRA
Act also. FCI is included within the definition of appropriate
Government in sub-clause (1) of clause (a) of Section 2 of the
Industrial Disputes Act. It follows that for any establishment of
FCI for the purposes of the CLRA Act, the appropriate
Government will be the Central Government.
In these appeals, prohibition notification was issued on
March 26, 1991 under Section 10(1) of the CLRA Act prohibiting
employment of contract labour in the concerned establishment in
the process, operation or work of handling of foodgrains including
loading and unloading from any means of transport, storing and
stocking. The respondents claimed absorption of contract labour
in the concerned establishment of the appellant. A Division Bench
of the High Court of Bombay following the judgment of this
Court in Air Indias case (supra) directed the appellant to absorb
the contract labour engaged in the depots of the appellant in
Jalgaon, Srirampur and Ahmednagar (Khedgaon). Inasmuch we
have over-ruled the judgment in Air Indias case (supra), the
appeals deserve to be allowed. We, accordingly, set aside the
judgment of the High Court under challenge and allow these
appeals leaving it open to the contract labour to seek appropriate
relief in terms of the main judgment.
C.A.Nos.6013-22/2001@SLP(C) Nos. 16122-16131/98
These appeals by FCI from the judgment of a Division
Bench of the Karnataka High Court in W.A. Nos. 345-354/97
dated April 17, 1998 confirming the judgment of a learned Single
Judge passed in W.P. NO.22485/94 and batch dated 22.11.1996.
The learned Single Judge directed absorption of the contract
labour with effect from 29.1.1996. Inasmuch as the impugned
judgment, under challenge, was passed following the judgment in
Air Indias case (supra) which has since been over-ruled, we set
aside the judgment of the High Court and allow these appeals
accordingly, leaving it open to the contract labour to seek
appropriate relief in terms of the main judgment.
C.A.Nos. 4188-94/98 and 4195/98
These appeals arise from a common judgment of the High
Court of Karnataka in W.A.Nos. 228-229, 231, 233-236/97 and
1742/97 dated 17.4.98 are filed by union of workmen and
workmen of FCI. The Division Bench confirmed the judgment of
the learned Single Judge directing absorption of contract labour in
the concerned establishment of the appellants w.e.f. 29.1.96. The
grievance of the appellants is that they should have been absorbed
with effect from the date of the prohibition notification dated
November 1, 1990. Inasmuch as in the connected civil appeals we
have set aside the judgment of Division Bench passed following
the judgment of this Court in Air Indias case (supra) which has
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since been over-ruled, the appellants are not entitled to any relief
in these appeals. Accordingly, these appeals are dismissed.
T.P(C) Nos. 284-302/2000 and 308-337/2000
In these transfer petitions, the petitioners prayed for
transfer of various writ petitions/writ appeals pending in the High
Court of Andhra Pradesh mentioned in para (a) of prayer on the
ground that the question involved in those cases is pending
consideration of this Constitution Bench in SLP (C) Nos. 12657-
58/98. Notice has been ordered in these cases but the cases are not
transferred. Inasmuch as we have already pronounced the
judgment in the above-mentioned cases, we are not inclined to
allow these transfer petitions. The High Court will now proceed to
decide those cases in accordance with the main judgment.
Transfer petitions are dismissed accordingly.
C.A.No.6029/2001@SLP(C)No. 16346/2000
The order under challenge in this appeal is the judgment of
a Division Bench of the High Court of Bombay in W.P.No.
4050/99 dated 2.8.2000. On the ground that the members of
respondent union (employees of ONGC) are covered by the
notification issued by the Central Government on December 9,
1976, the High Court ordered absorption of the workers employed
as contract labour. Inasmuch as the Central Government became
the appropriate Government, for an establishment of ONGC after
the amended definition of the appropriate Government came into
force under the CLRA Act w.e.f. 28.1.1986 whereunder the
definition of the said expression under the Industrial Disputes Act
is adopted in the CLRA Act, therefore, the Central Government
will be the appropriate Government for ONGC w.e.f. 28.1.1986.
It follows that the notification issued on December 9, 1976 would
not cover the establishments of the appellant. However, as the
High Court directed absorption of the contract labour in the
establishments of the appellant following the judgment of this
Court in Air Indias case (supra) and that judgment has since been
over-ruled, both on the question of appropriate Government as
well as on the point of automatic absorption, we set aside the
order under challenge and accordingly allow this appeal.
C.A.Nos.6030-34/2001@SLP(C)Nos.13146-150/2000
These appeals are directed against the order of the High
Court of Andhra Pradesh in W.A. Nos. 1652-1655/99 and 1959/99
dated 22.11.99. The Division Bench of the High Court took note
of the fact that the order of the learned Single Judge had been
given effect to and on the facts declined to condone the delay of
353 days in filing the writ appeals. In our view, having regard to
the facts and circumstances of the case, no interference with the
impugned order, is warranted. The appeals are, therefore,
dismissed.
C.A.Nos.6024-25/2001@SLP(C)Nos.8282-83/2000
These appeals are from the order of the Division Bench of
the High Court of Gujarat in L.P.A.No.118/2000 dated 19.4.2000
which was directed against the interim order passed by a learned
Single Judge. Inasmuch as the writ petitions are pending before
the High Court, we are not inclined to interfere with the orders
impugned in the appeals. We leave it open to the High Court to
dispose of the writ petitions in terms of the main judgment. The
appeals are accordingly dismissed.
T.P.(C)No. 169/2000
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In this transfer petition, the petitioner seeks transfer of
S.C.A.No.5192/99 pending in the High Court of Gujarat. Notice
has been issued but the case is not transferred. In view of the fact
that we have pronounced the judgment in the connected cases, we
are not inclined to order transfer of the case from the High Court.
We leave it open to the High Court to dispose of the said appeal in
accordance with the main judgment of this Court. Transfer
petition is dismissed accordingly.
C.A.No.6023/2001@SLP(C)No.19391/99
This appeal arises from the judgment and order dated
19.8.1999 of the High Court of Patna, Ranchi Bench, Ranchi, in
L.P.A.No. 214/99 (R). The Division Bench declined to interfere
with the order of the learned Single Judge dismissing the writ
petition filed by the appellant.
The case arose out of the award dated October 3, 1996
passed by the Central Government Industrial Tribunal No.1
directing the appellant to absorb the contract labour. The Tribunal,
on appreciation of the evidence, found that the contract labourers
were not regularised to deprive them from the due wages and
other benefits on par with the regular employees under sham
paper work by virtue of the sham transaction. It was also pointed
out that the workmen in other coal washery were regularised. The
claim of the appellant that the washery was given to the purchaser
was not accepted as being a sham transaction to camouflage the
real facts. The learned Single Judge on consideration of the entire
material confirmed the award and the Division Bench declined to
interfere in the LPA. We find no reason to interfere with the order
under challenge. The appeal is, therefore, dismissed with costs.
C.A.No. 141/2001
This appeal arises from the judgment of the High Court of
Judicature at Bombay passed in W.P.No. 2616/99 dated 23.12.99.
The employment of contract labour in the concerned
establishment of the appellant was prohibited by the notification
issued by the Central Government under Section 10(1) of the
CLRA Act on 16.11.99. Following the judgment of this Court in
Air Indias case (supra), the High Court directed the appellant to
absorb the contract labour. Inasmuch as we have over-ruled the
judgment of this Court in Air Indias case (supra), the direction
given by the High Court cannot be sustained. We, however, leave
it open to the respondent-union to seek appropriate relief in terms
of the main judgment. The order, under challenge, is set aside.
The appeal is accordingly allowed.
In all these cases except in C.A.6023/2001@SLP(C)No.
19391/99, the parties are directed to bear their own costs.
In this part, unless the context otherwise requires, the State includes the
Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of India or
under the control of the Government of India.
The explanation appended to this clause clarifies that the expressions mine, owner
and agent shall have the meanings respectively assigned to them in clause (j), clause (l)
and clause (c) of sub-section (1) of section 2 of the Mines Act, 1952.
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