Andhra HC (Pre-Telangana)
Ongc, Rajahmundry Asset, Rep. By Its ... vs Vs on 11 March, 2016
HON'BLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.24817 of 2012
Dated 11-3-2016
ONGC, Rajahmundry Asset, Rep. by its ED/AM, Rajahmundry, E.G. Dist.-533 106...
Petitioner
Vs.
The Govt. of India, Rep. by its Secretary, Ministry of Labour & Employment, New
Delhi; and 3 others... Respondents
Counsel for the Petitioner: Sri E.Manohar,Senior Counsel, Rep. Sri Kakara
Venkata Rao
Counsel for Respondents 1 to 3: Sri B.Narayan Reddy
Counsel for Respondent No.4: Sri V.Hari Haran
<Gist:
>Head Note:
?Cases referred:
1.AIR 1990 SC 2072
HON'BLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.24817 of 2012
Order:
This writ petition is filed by Oil and Natural Gas
Corporation, Rajahmundry Asset (the Corporation, for
short) through its Executive Director/Asset Manager
seeking a Writ of mandamus declaring the Notification
S.O. 1418(E), dated 22-6-2012, published in the Gazette
of India dated 22-6-2012 issued by the Government of
India, Ministry of Labour and Employment, New Delhi,
the 1st respondent herein, as illegal and void, and to set
aside the same. The 4th respondent is the General
Secretary of the ONGC Krishna Godavari Contract
Workers' Union.
2. One G.Rama Swamy, the 4th respondent herein
and 53 others are said to be working as Security Guards
on contract basis in the petitioner-Corporation. They
have been consistently demanding for abolition of the
contract labour system in the petitioner-Corporation.
There have been several deliberations before the
respondents 1 to 3 in that regard by the contract workers
and the officials of the petitioner-Corporation. According
to the petitioner-Corporation, in respect of the Security
Guards of ONGC installations at Rajahmundry, Kakinada
etc., there are 3 rings of deployment of security.
The 1st ring of security is manned by the CISF (Central
Industrial Security Force). The 2nd ring of security is
manned by the Andhra Pradesh Special Force
(A.P. Police). The 3rd ring of security, which is of casual
nature, it is being discharged by the contract workers
engaged through a contractor. R.Rama Swamy
(respondent No.4) and 53 others have been raising their
grievances for regularisation of their services in the
establishment of ONGC at Rajahmundry. There were
conciliation proceedings before the Regional Labour
Commissioner (Central), Hyderabad and the said
authority submitted a failure report dated 22-9-2011 to
the Ministry of Labour and Employment, Government of
India. Later, the Ministry of Labour and Employment by
O.M., dated 16-12-2011 addressed to the Ministry of
Petroleum and Natural Gas, New Delhi informing that
it was proposed to refer the dispute to the Industrial
Tribunal for adjudication on the following issue - whether
the demand of the workers of the Union for regularisation
on tenure based employment by the ONGC,
Rajahmundry Asset is justified? If so, what relief these
workers are entitled to?
3. The Ministry of Petroleum and Natural Gas,
New Delhi has forwarded the same to the ONGC and the
ONGC objected to the same vide letter dated 14-02-2012.
According to the petitioner-Corporation, the Ministry of
Labour and Employment, Government of India vide Order
No.L 30011/44/2011-IR(M), dated 24-4-2012 instead of
dropping the proceedings referred the dispute for
adjudication to the Central Government Industrial
Tribunal cum Labour Court, Hyderabad in exercise of
powers conferred by Clause (d) of sub-section (1) of
sub-section 2-A of the Industrial Disputes Act, 1947 (the
I.D. Act, for short).
4. Ultimately, the matter came to be heard by the
Central Advisory Contract Labour Board (CACLB) before
which R.Rama Swamy and 53 others demanded for
abolition of contract labour system in the establishment
of ONGC, East Godavari district for which the petitioner-
Corporation submitted a written representation dated
29-9-2010 opposing the request for abolition. It was
submitted by the workers before the Board that they
have been engaged as Security Guards and Security
Supervisors through contractors for the last 20 years,
that there are around 186 contract workers, that they
have been performing 8 hours duty daily and that the
work of security is necessary and incidental to the work
of ONGC.
5. Thereupon the Board considering the number of
workers, period of employment on contract basis, the
necessity and perennial nature of the job and the wages
difference of contract employees took the view that the
case fulfills the conditions laid down under Section 10(2)
of the Contract Labour (Regulation and Abolition) Act,
1970. Thus, the Board recommended the abolition of
contract labour system in the said establishment in the
jobs of Security Guards and Security Supervisors.
Opposing the said decision of the Board, the Chairman
and Managing Director, ONGC sent a letter dated
05-5-2011 to the Secretary to the Government of India,
Ministry of Petroleum and Natural Gas, New Delhi
enclosing therewith the comments of ONGC to the
minutes of the 78th meeting of the Board. The Under
Secretary of Ministry of Petroleum and Natural Gas vide
letter dated 20-7-2011 informed the Chairman and
Managing Director, ONGC that the matter has been
examined by the Director General, Labour Welfare,
Ministry of Labour and Employment and it has been
decided by them to refer the matter to the Central
Advisory Contract Labour Board for reconsideration.
Consequently, the Board informed the petitioner-
Corporation vide letter dated 28-9-2011 that the subject
will be discussed on 20-10-2011 and written
representation may be submitted. The petitioner-
Corporation accordingly submitted a written
representation dated 20-10-2011. Ultimately, the
Government had referred back the issue to the CACLB
for reconsideration. The Board took a final decision
reiterating that all the conditions under Section 10(2) of
the Contract Labour (Regulation and Abolition) Act, 1970
are satisfied in the present case and therefore, there is no
necessity to change the earlier recommendation of the
Board.
6. It is submitted by the petitioner-Corporation that
the 1st respondent without further examining and
considering the matter passed the order in S.O. 1419(E),
dated 22-6-2012 and the notification was published in
the Gazette of India, dated 22-6-2012, which was
communicated and received by the corporate office of the
petitioner-Corporation, New Delhi on 11-7-2012 who
forwarded the same to the petitioner-Corporation on
28-7-2012. By this notification, the 1st respondent
prohibited the employment of contract labour in the jobs
of Security Guards and Security Supervisors in the
establishments of ONGC, namely, Thatipaka,
Amalapuram, Mori and Narsapuram of Rajahmundry
Basin with effect from the date of publication of the
notification in the Official Gazette.
7. It is under these circumstances, the petitioner-
Corporation filed the present writ petition seeking the
aforementioned reliefs.
8. The 4th respondent-Union filed counter-affidavit
contending, inter alia, as follows:
(a) The contract labour are themselves sham in
nature and in order to avoid its obligations and liabilities,
the contract labour system has been introduced and
perpetuated over the years. It is true that the
establishment set up for oil and natural gas exploration
and exploitation activities requires security as a part of
its core activity. The invidious differentiation sought to
be projected between core activity and non-core activity is
an attempt to wish away its responsibilities and
an attempt to mislead the Court in regard to the same.
The security is of perennial nature and if there is any
adhocism in the appointment, it is in violation of the
service conditions. The workmen, namely, the Security
Guards have been appointed for nearly two decades in
performance of their duties including the members of the
4th respondent-Union herein. The Board took note of the
representation of the petitioner-Corporation and also the
admission of the petitioner-Corporation that the security
is a necessity for their establishment and is of perennial
in nature, thus having taken all the issues into
consideration rightly recommended for abolition of the
contract labour system in the said establishment in the
jobs of Security Guards and Security Supervisors.
The petitioner-Corporation can have no grievance on the
same and the attempt now to stall the issue is only to
over-reach the issue, keep extension of the benefits to the
employees ad infinitum in abeyance and thus not only
deprive the employees of their justful right but continue
to operate in a less affair way. The 3rd respondent took
all these aspects into consideration and rightly opined
that no change is required in the earlier recommendation
of the Board.
(b) Contending as above, the 4th respondent-Union
sought to dismiss the writ petition.
9. I have heard Sri E.Manohar, learned Senior
Counsel, representing Sri Kakara Venkata Rao, learned
counsel for the petitioner-Corporation, Sri B.Narayan
Reddy, learned counsel appearing for the respondents
1 to 3 and Sri V.Hari Haran, learned counsel appearing
for the 4th respondent-Union.
10. The principal contention of the learned Senior
Counsel appearing for the petitioner-Corporation is as
follows:
In view of the provisions of the Contract Labour
(Regulation and Abolition) (Andhra Pradesh Amendment)
Act, 2003 (A.P. Act No.10/2003) [the A.P. Amendment
Act of 2003, for short], which came into force in the State
of Andhra Pradesh from 22-8-2003, the Principal Act was
amended and Section 2(d)(d) was inserted. Chapter II
relating to the Advisory Boards was omitted. Sections 10
and 31 were substituted. Section 35 was amended.
By this A.P. Amendment Act of 2003, the employment of
contract labour in core activities of any establishment is
prohibited. The core activity of an establishment is
defined in Section 2(d)(d) "means any activity for which
the establishment is set up but does not include watch
and ward service including security service".
11. Thus, according to the learned Senior Counsel,
in view of the aforesaid amendment, the employment of
contract labour in the security service cannot be
prohibited, therefore the 1st respondent has no power or
jurisdiction to prohibit the same in the establishments of
the petitioner-Corporation situated in the State of Andhra
Pradesh and the impugned notification issued by the
1st respondent in exercise of powers under sub-section (1)
of Section 10 of the Contract Labour (Regulation and
Abolition) Act, 1970, which is not in force in the State of
Andhra Pradesh, is null and void and unenforceable.
12. On the other hand, it is contended by the
learned counsel appearing for the 4th respondent-Union
as follows:
(a) The State Legislature is neither eligible nor
entitled to amend the Central Act with reference to the
establishment of the petitioner-Corporation. In terms of
Section 2A of the Contract Labour (Regulation and
Abolition) Act, 1970, the appropriate Government in
respect of the issues pertaining to the petitioner-
Corporation is the Central Government and therefore,
a notification, if any, issued by the State Government
cannot have the effect of abridging or regulating the
issues administered by the Central Government. Thus,
reference to the amendment brought in by the State of
Andhra Pradesh in Section 2(d)(d) is inapplicable to the
facts of the case and therefore, cannot be pressed into
service. The contention that the Contract Labour
(Regulation and Abolition) Act, 1970 to the extent stated
is not in force in the State of Andhra Pradesh and is null
and void and unenforceable is a misconception of law
and therefore is liable to be rejected.
13. To arrive at a conclusion as to the validity of the
A.P. Amendment Act of 2003, it is necessary to look into
the judgment in Vijay Kumar Sharma v. State of
Karnataka relied on by the learned Senior Counsel
appearing for the petitioner-Corporation, wherein it is
held as follows:
"2. Where, however, a law passed by the State comes
into collision with a law passed by Parliament on
an Entry in the Concurrent List, the State Act shall
prevail to the extent of the repugnancy and the
provisions of the Central Act would become void
provided the State Act has been passed in accordance
with clause (2) of Article 254.
3. Where, however, a law made by the State
Legislature on a subject covered by the Concurrent
List is inconsistent with and repugnant to a previous
law made by Parliament, then such a law can be
protected by obtaining the assent of the President
under Article 254(2) of the Constitution. The result of
obtaining the assent of the President would be that so
far as the State Act is concerned, it will prevail in
the State and overrule the provisions of the
Central Act in its applicability to the State only. Such
a state of affairs will exist only until Parliament may at
any time make a law adding to, or amending, varying
or repealing the law made by the State Legislature
under the proviso to Article 254." (emphasis
supplied)
14. In view of the judgment above-referred, the A.P.
Amendment Act of 2003 is valid and operative in the
State of Andhra Pradesh and the contention that the
same being inconsistent with the Contract Labour
(Regulation and Abolition) Act, 1970 is inoperative in the
State of Andhra Pradesh has no force.
15. In the A.P. Amendment Act of 2003, Section
2(d)(d) defines "core activity of an establishment" means
any activity for which the establishment is set up and
includes any activity which is essential or necessary to
the core activity. Substituted Section 10 in the A.P.
Amendment Act of 2003 lays down that the employment
of contract labour in Core Activities of any establishment
is prohibited, provided that the Principal employer may
engage Contract Labour or a Contractor to any core
activity in certain circumstances. Similarly, Section 31(1)
of the A.P. Amendment Act of 2003 lays down that the
appropriate Government may, in public interest, direct,
by notification in the Official Gazette, that subject to
such conditions and restrictions, if any, and for such
period or periods, as may be specified in the notification,
all or any of the provisions of this Act or the rules made
thereunder shall not apply to any establishment or class
of establishment or any class of contractors, as the case
may be.
16. It has to be kept in mind that by order in
S.O. 1419(E), dated 22-6-2012 and by the notification
issued pursuant thereto, the 1st respondent prohibited
the employment of contract labour in the jobs of Security
Guards and Security Supervisors in the establishment of
ONGC, namely, Thatipaka, Amalapuram, Mori and
Narsapuram of Rajahmundry Basin with effect from the
date of publication of the notification in the Official
Gazette, which is challenged in the present writ petition.
17. In respect of the Security Guards of ONGC
installations at Rajahmundry, Kakinada, etc., there are
3 rings of deployment of security. The 1st ring of security
is manned by the CISF (Central Industrial Security
Force), the 2nd ring of security is manned by the A.P.
Special Force (A.P. Police) and the 3rd ring of security,
which is of casual nature as and when required, the
workers are being deployed and they are engaged
through a contractor. According to the petitioner-
Corporation, the work performed by the Security Guards
in the 3rd ring of security is purely on ad hoc basis and
the Security Guards or Security Supervisors are engaged
through the contractors. Therefore, the impugned order
abolishing the contract labour system in the 3rd ring of
security is unsustainable as it does not relate to the core
activity of the Corporation.
18. The notification S.O. 1419(E), dated 22-6-2012,
published in the Gazette of India, dated 22-6-2012,
issued by the Government of India, Ministry of Labour
and Employment, New Delhi, therefore, is contrary to the
A.P. Amendment Act of 2003 and the same is liable to be
set aside in the present writ petition. This, however, does
not mean that the issue of regularisation has been
negatived in the present writ petition. The issue of
regularisation is altogether a different issue and the same
can be pursued by the contract workers in the
appropriate forum in a separate proceeding. This writ
petition only decides the issue as to whether the
notification in S.O. 1419(E), dated 22-6-2012, published
in the Official Gazette of India, dated 22-6-2012, issued
by the Government of India, Ministry of Labour and
Employment, New Delhi, is valid or liable to be aside.
19. The notification impugned dated 22-6-2012 was
issued in clear disregard of the A.P. Amendment Act of
2003. The same being in contravention of the A.P.
Amendment Act of 2003 is not sustainable in law.
Consequently, the impugned notification S.O. 1419(E),
dated 22-6-2012 published in the Gazette of India dated
22-6-2012 issued by the Government of India, Ministry of
Labour and Employment, New Delhi, the 1st respondent
herein, is set aside and the writ petition is allowed.
The miscellaneous petitions, if any, pending in this writ
petition shall stand closed. No costs.
___________________
R.KANTHA RAO, J.
11th March, 2016