Kerala High Court
Kerala Food Corporation Of India ... vs Union Of India (Uoi) And Ors. on 4 December, 1995
Equivalent citations: (1998)IIILLJ474KER
JUDGMENT V.V. Kamat, J.
1. For the purpose of regulation and abolition of Contract Labour, regulation in certain situations and abolition in other situations, Contract Labour (Regulation and Abolition) Act, 1970 was enacted. The position of law is more than settled by a catena of decisions of the Supreme Court. The Act was enacted with a view to abolishing wherever possible or practicable the employment of Contract Labour. The Act aimed at abolition of Contract Labour in respect of such categories as may be notified, where the law helps such anti-labour practices are required to be thwarted or nipped in the bud. The position that the Act is applicable to the Food Corporation of India is also beyond dispute, in the matter of handling, storage and transit of foodgrains at the depots of the Corporation. The question whether once when some workers became the workmen of the Corporation, was it open to the Corporation to induct a contract and treat its workmen as workmen of the contractor is not open as the answer is in the negative. This has to be understood that the Act does not provide for total abolition of Contract Labour but it provides for abolition by the appropriate Government in appropriate cases in accordance with the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, hereinafter referred to as the 'Act', and therefore as it is not for the Court to inquire into the question and decide whether the employment of Contract Labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act. In the process all labourers, who had been initially engaged through contractors but have been continuously working with the respondent for the last ten years on different jobs assigned to them in spite of the replacement and change of the contractors shall be absorbed by the respondent as their regular employees in the process of absorption. The final object appears to be that there should not be any exploitation of the contract labourers either by the contractors or by the establishment and it is for that purpose statutory restrictions and responsibilities have been imposed on the contractor as well as on the principal employer.
2. In accordance with the provisions of Section 10 of the Act there is a prohibition of employment of Contract Labour and the question is to be considered by the appropriate Government after consultation with the Central Board or the State Board as the case may be by issuance of a notification in the Official Gazette, prohibiting employment or Contract Labour in any process, operation or other work in any establishment. The provision also provides that appropriate Government shall have regard to the conditions of work and benefits provided for the Contract Labour. Such conditions in regard to which regard is expected are also enumerated in Section 10 of the Act depending on the nature of the work, whether "the work is incidental or necessary for the industries, whether the work is of perennial nature of sufficient duration having regard to the nature of Industry and whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto, together with the question of sufficiency to employ considerable number of wholetime workmen. In such matters it is explained that the decision of the appropriate Government in regard thereto is to be considered as final and in regard to all that the Court is expected to observe would be the necessary directions in the context. Even then once the notification is issued the consequences fall. The above position would have to be taken as settled as a result of the decisions of the Supreme Court, B.H.E.L. Workers Association v. Union of India, (1985-I-LLJ-428) (SC); The Workmen of the Food Corporation of India v. Food Corporation of India, (1985-II-LLJ-4) (SC), Dena Nath v. National Fertilisers Ltd., (1992-I-LLJ-289) (SC), R.K. Panda and Ors. v. Steel Authority India and Ors., (1997-III-LLJ-(Suppl.)-1202) (SC), leading to the conclusion that Contract Labourer is entitled to the same wages, holidays, hours of work and conditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate Industrial and Labour Laws. If there is any dispute with regard to the type of work, the dispute has to be decided by the Chief Labour Commissioner (Central) or this would go to him that the Parliament has not abolished Contract Labour as such but has provided for its abolition by the Central Government in appropriate cases under Section 10, ruling that it is not for the Court to enquire into the question and to decide whether the employment of Contract Labour in any process, operation or other work in any establishment should be abolished or not. It is clearly ruled that this is a matter for decision of the Government after considering the matters required to be considered under Section 10. Similarly even with regard to the question whether the work done by the Contract Labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the Chief Labour Commissioner in accordance with the provisions of the Act in question and the rules made thereunder.
3. The proceedings of these petitions if seen and examined in the light of the above position of law it will have to be stated that the first two petitions (O.P. Nos. 11406/1992 and 4985/1993) which are presented by the Union of Workers who are members of a Co-operative Society of workers, in the name and style of head load workers Cooperative Society in the concerned establishments, workers are engaged at the depots in the matter of supply of food grains as members of the Cooperative Society of workers and is against the action of the Food Corporation of India, to give it to the private patties ultimately leading to the submissions and prayers that the regularisation of the said head load workers in the Kerala regions are not yet initiated by the Food Corporation of India (respondent No. 3) which is a long standing demand of the handling workers of the Food Corporation of India. This is in spite of the issuance of the required notification under Section 10 of the Act. A copy of the concerned notification is also placed on record at Ext. P16 with a consequential prayer in the nature of a direction compelling the respondents to continue the operation of the sub depots, to regularise the handling workers at present and other incidental prayer. The prayer in the second petition (O.P. 4985/1993) is also in the nature of a direction against the attempt at bifurcation of the depots with a view to give them to the private parties for distributing food grains to ration shops for distribution.
4. On the other hand the other two petitions (O.P. Nos. 2415/1994 and 12151/1994) out of which one is by two workers and the other is by the workers union proceed on the basis of the issuance of notification under. Section 10 of the Act, in exercise of the provisions of Section 10 thereof for a prayer for legitimate consequences of the issuance of the notification in the matter of certain depots even after the issuance of the concerned notification. It is specifically urged and prayed that the notifications issued under Section 10 of the Act have to be implemented treating the workmen employed for regular work at its regular depots with effect from the date from which the said workers have been discharging the duties of the Corporation, such as by extending to the workmen, regular scale of pay or other benefits treating them as regular employees of the Corporation.
5. On behalf of the Corporation and other Respondents, in the counter it is urged that in this petition no relief as prayed could be granted and the Food Corporation of India cannot be compelled to absorb the petitioners as its regular employees because it is contended that the petitioners have no right for absorption in regular service under the Food Corporation of India.
6. In support of this contention it is firstly contended that the concerned workmen and the members of Labour Co-operative Societies are engaged in the process of doing the work. It is urged that the Co-operative Societies came to be formed with a view to replace the Contract Labour System which was in vogue earlier. As a result it is further urged that the workers are employees unto themselves and therefore the question of regularity and security of service would not arise at all. The relationship of the Food Corporation of India and the workers of the erstwhile contractors prior to the formation of the workers Co-operative Society would have to be understood as on principal-to-principal basis and the workers were encouraged to form Labour Co-operative Societies. It is urged that the above policy is in consonance with the object of improving the conditions of workmen and protecting them from exploiting by any intermediary private contractor. The contention is that a Labour Co-operative Society cannot be treated on par with a private contractor because it is a Co-operative Society of the workmen and the society cannot be attributed of the vices of Contract Labour. The work is undertaken by themselves as members of the Co-operative Society.
7. Food Corporation of India is engaging workers through an intermediary Co-operative Society to do its regular and perennial work and such workers would have to be understood as self-employed workmen who could not be treated on par with regular employees of the Food Corporation of India. It is also urged that they are not entitled to the benefits given to the regular employees of the Corporation. It is added that they cannot be absorbed as regular employees because it could entail infringement of equality of opportunity of others who have got a right to be considered in the matter of employment in public service. In fact, it is contended that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 are not applicable to the present case and as such there is no question of violation of the provisions of the said Act, in view of the position that there is no question of absorption by the principal employer because the workmen are self-employed.
8. The contention in the counter goes to the extent of going behind the issuance of the notification under Section 10 of the Act to contend that the notification itself was issued on the basis of inadequate information available to the Ministry of Labour. Consequently it is contended that the abolition of Contract Labour in the concerned depots was cancelled for in as much as the work of loading and handling in the depots was entrusted to the Co-operative Societies formed by the labourers themselves which was in pursuance of the policy adopted by the Food Corporation of India management. It must be said that in these petitions the necessary particulars in regard to the workmen from tenure of service, the nature of the work has not been placed on record. Even the counter restricts itself to the contention that even issuance of notification under Section 10 of the Act would be of no consequence in view of the position that the workers are members of a Cooperative Society and there is no question of there being a contractor as an employer with reference to the workmen at the depot. The position of law spells out the spirit of giving necessary protection to the workers in the context. The legislation in question itself is for giving the necessary protection. The question whether there is an individual contractor or whether there is a Co-operative Society would make no difference really in the matter of affording protection to the workers depending on their nature of work and duration of service entitling them to claim rights under the relevant Labour and Industrial Laws. This is in view of the situation that as far back as on November 1, 1990 the necessary notification under Section 10 of the Act is already issued and is on record. The question whether there is individual contractor or whether the employment is regularised through the Co-operative Society of workers would not change the situation. It is not possible to accept the contention that the concerned workers would merely continue as members of the Co-operative Society and the Corporation as usual will deal with the Co-operative Society in the matter of offering workers for doing the work. The position is that once a Contract Labour stands abolished in view of the issuance of the notification on and from November 1, 1990 it would not be permissible for the Corporation to claim that the workmen who had formed Co-operative Society, the work having been given to such a society would have to be understood as self-employed workmen not amenable to the conditions of the notification in question. Such a measure would naturally and inevitably result in driving the workmen to square one. The Co-operative Society would naturally have to be understood as stepping into the shoes of the contractors. This is not the (sic.) intention of the legislature in the enactment of the Act. There is no dispute that it cannot be allowed to be defeated. The intention is to prevent exploitation of workers and this cannot be allowed by merely substituting a Co-operative Society in the shoes of the previous contractor. Such contention is therefore incapable of acceptance on any count. In fact I am pursuaded in the context by the unreported Division Bench Judgment of the Karnataka High Court in Writ Appeal No. 939/1986 (quorum--Mr. ML. Pendse, Chief Justice and Mr. A.J. Sadashiva, Judge). Thus there is no dispute on consideration of the entire material on record that the notification in question has to be acted upon, even in the case of workers being members of a Co-operative Society.
9. In fact on the basis of the material on record all that can be declared would be that the workmen even though they are members of the Co-operative. Society of workmen at the concerned depot would have the benefit of the notification issued under Section 10 of the Act. In regard to the depots of the Food Corporation of India all labourers who have been continuously working with the Corporation for over last 10 years on different jobs assigned to them would have to be absorbed by the Corporation as their regular employees subject to the process of absorption according to law, their seniority being determined on the basis of their continuous employment. The workmen shall be treated on par with the regular employees of the Corporation and after absorption the labourers would be governed exclusively by the terms and conditions prescribed by the Corporation for its own regular employees. It is however made clear that the respondent Corporation shall have all the rights such as retrenchment and such rights would not be pleaded as a bar and the present order shall not be pleaded as a bar in regard thereto. The process of absorption would have to be in accordance with the provisions of the concerned labour and Industrial Law and in case of any dispute such dispute would be settled by the Chief Labour Commissioner (Central). It is needless to state that on absorption the workmen shall be entitled to the benefit of this order as well as the notification under Section 10 which is issued under the Act.
With these observations these petitions are disposed of leaving parties to suffer their costs.