Andhra HC (Pre-Telangana)
Ferro Alloys Corporation Ltd., ... vs Government Of A.P. And Another on 27 September, 1999
Equivalent citations: 1999(6)ALD550
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. In this Batch of writ petitions, except in WP Nos. 15707 of 1989 and 1866 of 1989, in all the remaining writ petitions, the petitioners have challenged the validity of G.O. Ms. No.11, dated 12-2-1990, issued by the Government of Andhra Pradesh under Section 10 of the Contract Labour (Abolition and Regulation) Act, 1970 (hereinafter referred to as 'Contract Labour Abolition Act') abolishing the contract labour in all operation of canteens required to be provided under the Factories Act, 1948. In WP No. 15707 of 1989, G.O. Ms. No.287, dated 7-5-1981, issued by the Government of Andhra Pradesh under Section 10 of the Contract Labour Abolition Act is challenged. By this notification, the Government of Andhra Pradesh has abolished the employment of contract labour in certain processes of operations in the establishments/factories, in which the contract labour are employed, generally in all the establishments/factories in the Slate i.e., the contract labour engaged in watch and ward personnel, the workers employed for sweeping and scavanging inside the factory, boiler house workers, workers employed in the routine maintenance of the plant and machinery, persons engaged in automobile garages etc. In WP No.1866 of 1989, G.O. Ms. No.914, dated 24-8-1978 issued by the Government of Andhra Pradesh under Section 10 of the Contract Labour Abolition Act, for abolishing contract labour employed in M/s. Ferro Alloys Corporation, Shrikakulam for loading and unloading in lorries bagging the raw materials into ore bin eto, and G.O. Ms. No.9!5, dated 24-8-1978, appealing the management of Ferro Alloys Corporation, Garividi, Srikakulam District to absorb persons hitherto employed on contract labour system subject to suitability, are challenged.
2. First I will take up the writ petitions in which G.O. Ms. No.11, dated 12-2-1990, issued by the Government of Andhra Pradesh is challenged. As I have already stated above, by virtue of this G.O., the Government of Andhra Pradesh, by exercising the power under Section 10 of the Contract Labour Abolition Act, has prohibited the employment of contract labour in canteens in all factories and establishments in which canteen are required to be maintained under the Factories Act, 1948, with an appeal to the principal employers of such factories to absorb the canteen workers hitherto employed by the contractor on the factory rolls. The learned senior Counsel Sri Krishna Murthy, at the outset contended that the impugned G.O., cannot be made applicable to the Central Government undertakings, since the appropriate Government for the purpose of Central Government establishments or undertakings would be the Central Government, but not the State Government, and under Section 10 of the Contract Labour Abolition Act, it is only the appropriate Government which can prohibit such contract labour and in relation to the undertakings or establishments under the control of the Central Government, it is the Central Government which is the appropriate Government Therefore, the impugned G.O. issued by the State Government making it applicable to the factories/establishments under the control of the Central Government would be one without jurisdiction. Secondly he assailed this G.O. on the ground that in fact the petitioners' establishments are not the factories notified under Section 46 of the Factories Act read with Rule 65 of the A.P. Factories Pule, 1950. Therefore, canteens maintained by the petitioners are not the statutory canteens and as such, the canteen workers cannot be considered as workers employed by the factory as per the definition of "worker" found under Section 2(/) of the Factories Act and such workers also cannot be considered to be the workers employed for manufacturing process or any kind of work incidental to or connected with such manufacturing process, as per the definition of 'manufacturing process' found under Seefion 2(k) of the Factories Act. He further submitted that under Rule 65 of the A.P. Factory Rules, such factory or establishment shall provide in or near the factory an adequate facility for canteen according to the standards prescribed in these Rules and that means the petitioners are liable to provide only the facility for establishing the canteen, but not the canteen itself. Therefore, the canteens maintained by the petitioners' factories/ establishments cannot be considered as statutory canteens in any sense of the term. He submitted that in view of the judgment of the Supreme Court reported in Indian Petrochemical Corporation Ltd. and another v. Shramik Sena and others, 1999 (5) AI.D 93 (SC) - 1999 (6) Supreme 542. such workers of petitioners' canteens are not the employees of the petitioners' establishments/ factories and they are the workmen only for the purpose of Factories Act alone and not for all other purposes. He further submitted that the G.O. Ms. No.11 has been issued no doubt in the name of the Government of Audhra Pradesh, but it is signed by Ex-Officio Secretary to Government. The Commissioner of Labour is designated as Ex-Officio Secretary to Government and as a Commissioner, he is the Secretary to the Advisory Board and such a G.O., could not have been issued by him and this G.O., cannot be said to be one issued by the Government in terms of Section 10 of Contract Labour Abolition Act. He submitted that on this count also, the impugned G.O., is liable to be set aside. At any rate, he submitted that the impugned G.O., has not complied with the conditions imposed by Section 10(2) of the Contract Labour Abolition Act, inasmuch as the contract labour of all such canteens as a class has been abolished without ascertaining the conditions in a particular establishment as per Section 10(2) of the Contract Labour Abolition Act. In this view of the matter, the impugned notification is discriminatory and one without jurisdiction. The further argument of the Counsel for the petitioners' was that the Advisory Board said to have been consulted before issuing the impugned G.O., is not properly constituted in terms of Section 4 of the Contract Labour Abolition Act. Even otherwise, the board has not considered the conditions of individual establishments/factories before recommending such abolition of contract labour. Moreover, the reasons assigned by the Board are untenable and the Board has not given any personal hearing to the individual establishments and factories, therefore, the impugned G.O., is contrary to the principles of natural justice. Lastly, the Counsel for the petitioners' contended that such abolition of the contract labour in the canteens, would deprive the contractors their fundamental rights to practice any trade and it also makes the establishments/factories to maintain canteens with persons who are not skilled. Therefore, the impugned G.O., is violative of Article 19(1)(g) of the Constitution. With these submissions, the Counsel for the petitioners' prayed that these writ petitions may be allowed.
3. By filing a counter in WP No.6057 of 1990, the Government has denied the allegations made in the writ petitions. The learned Government Advocate submitted that this counter may be treated as counter in this batch of writ petitions. He strenuously supported the impugned G.Os. He submitted that the object of the Contract Labour Abolition Act itself is to abolish all kinds of contract labour as a rule, and in appropriate cases where such abolition is not possible, the Act provides for their regulation. But in the instant case, the Government in consultation with the Advisory Board, has decided to abolish the contract labour of statutory canteens and such a decision of the Government is in accordance with law. The Government has followed the procedure prescribed under Section 10 of the Contract Labour Abolition Act and also has considered the conditions prescribed under Section 10(2), in consultation with the Advisory Board and as such, the impugned G.O., is not liable to be quashed. He further submitted that as per the report of the Advisory Board, there has been abuse of such contract labourers of canteens and their conditions of services are less favourable compared to the conditions of services of regular labour of the establishments/factories and even their wages are lesser than the wage rate fixed for the regular labourers. He also submitted that the Advisory Board visited number of factories and held discussions with the employers, contractors, contract workers and accordingly made the recommendations for abolition of such contract labour. In this view of the matter, it cannot be said that no opportunity was given to the employers by the Advisory Board. He further submitted that under Section 10 of the Contract Labour Abolition Act, it is permissible to abolish contract labour in a class of establishments on the basis of the general conditions prevalent in all the factories. It is also submitted that the person who authenticated the G.Os. is also an Ex-Officio Secretary to Government and he is properly authorised to sign the G.Os. in the name of the Governor. Therefore, the impugned G.Os. does not contravene any provisions of the Contract Labour Abolition Act. The Board which was consulted by the Government is a properly constituted Board and the petitioners have not challenged the Government Oder, constituting such a Board on any ground, therefore, the contentions of the Counsel for the petitioners urged in this behalf cannot be accepted. He also submitted that all the contentions urged by the learned Counsel for the petitioners are already in one way or the other covered by the judgments of the Supreme Court, therefore, there is no substance in such contentions and absolutely there are no merits in the writ petitions and accordingly they are liable to be dismissed.
4. From the pleadings on both sides, and also from the contentions urged by the respective Counsels, I find that there are few facts which are not disputed. It is not disputed that the petitioners' establishments/' factories are the establishments in which more than 250 workers are ordinarily employed. It is also not in dispute that the concerned petitioners for whom G.O. Ms. No.11 is made applicable, are the establishments/factories who are maintaining the canteens in terms of Section 46 of the Factories Act and Rules 65 of the A.P. Factories Rules. However, the Counsel appearing for the petitioners contended that there is no notification issued under Rule 65 of the A.P. Factories Rules, notifying the petitioners' establishments/factories for the purpose of Section 46 of the Factories Act. So far as the issue of non-issue of notification in terms of Rule 65 of the A.P. Factories Rules is concerned, I do not find any pleadings in the writ petitions, contending that the petitioners' establishments/factories were not the ones which are not notified under Rule 65 of the A.P. Factories Rules. Highlighting this aspect, the Government Advocate submitted that since there is no pleading in the writ petitions, the same has not been traversed in the counter. He submitted that the allegation of the petitioners that no notification has been issued in terms of Rule 65 of the A.P. Factories Rules notifying particular industries as factories for the purpose of Section 46 of the Factories Act is not correct. He brought to my notice two G.Os., to substantiate his contention. From reading of G.O. Ms.No.191 dated 29-7-1991,1 find that about 46 establishments in different districts have been notified for the purpose of maintaining canteens under Section 46 of the Factories Act. From reading of another G.O. Ms. No. 158 dated 26-4-1985, I find that about 136 establishments/factories indifferent districts have been notified under Rule 65 of the A.P. Factories Rules. The learned Advocate for petitioners admitted that he could trace the number of establishments of the writ petitioners in these G.Os. From this fact it follows that the establishments/factories of the writ petitioners are the ones notified under Rule 65 of the A.P. Factories Rules. At any rate, under Section 46 of the Factories Act, in establishments/factories wherein more than 250 workers are ordinarily employed, a canteen or canteens shall be necessarily provided and maintained by the occupier for the use of the workers and in recognition of such a statutory requirement, if the establishments/factories maintains canteen or canteens, naturally such canteens would be those statutorily maintained under Section 46 of the Factories Act. The notification contemplated under Rule 65 of the A.P. Factories Rules is only to remind a particular factory in which more than 250 workers are employed, directing them to maintain a canteen. Therefore, issuing a notification in terms ofRule 65 would be only a directory and even in cases, where notification is not issued, it is the statutory duty of the establishments/factories to maintain a canteen or canteens in terms of Section 46 of the Factories Act. In this view of the matter, the first contention of the learned Counsel for the petitioners that petitioners' establishments/factories are not notified, therefore, the canteens maintained by them would not be statutory canteens is not acceptable.
5. Nextly, the Counsel for the petitioners contended that there are some establishments/factories of some petitioners which are directly controlled by the Central Government and for such Central Government establishments/factories, the appropriate Government would be only the Central Government to issue notification in terms of Section 10 of the Contract Labour Abolition Act, but not the State Government. There is substance in this contention. The Hon'ble Supreme Court in the decision reported in Air India Statutory Corporation v. United Labour Union, , has held that regarding the establishments under the control of the Central Government, the Central Government would be the appropriate Government in terms of Section 2(1)(a) of the Contract Labour Abolition Act. In view of this law declared by the Supreme Court, it is clear that the impugned G.O., would not be applicable to such of those petilioners' establishments/ factories which are either Central Government undertakings or under the control of Central Government. Therefore, a direction could be issued to the State Government not to apply the impugned G.O., in relation to the Central Government establishments or the establishments/ factories under the control of the Central Government.
6. The learned Counsel for the petitioners nextly contended that the canteens maintained by the petitioners' establishments/ factories are in fact not statutory canteens. He submitted that under Section 46 of the Factories Act, it is provided that the factories wherein more than 250 employees are ordinary employed, a canteen or canteens shall be provided and maintained by the occupier for the use of workers, and under Rule 65(2} of the A.P. Factories Rules, it is further provided that such employer shall provide in or near the factory, an adequate canteen according to the standards prescribed in these Rules. He submitted that reading Section 46 of the Factories Act along with 'Rule 65 of the A.P. Factories Rules, the only reasonable construction would be that the occupier or the employer shall provide a facility for maintaining the canteen and it is not the statutory duty of the establishments/ factory to maintain a canteen. This argument is noted only fortlie purpose of its rejection. Under Section 46 of the Factories Act, in a factory wherein more than 250 workers are ordinary employed, a canteen shall necessarily be provided and maintained by the occupier and it is the statutory duty and under Rule 65, it is further provided that such a canteen shall be provided in or near the factory according to the standards prescribed in the A.P. Factories Rules. From the reading of Section 46 of the Factories Act along with Rule 65 of the A.P. Factories Rules, the only interpretation possible is that it is the statutory duty of the occupier to provide a canteen in or near the factory and not merely providing a facility for a canteen. Therefore, it is not open for the occupier to say that he has to provide a facility for the canteen and not a canteen and such an argument would only defeat the object of Section 46 of the Factories Act. Rule 65 of the A.P. Factories Rules cannot be understood in isolation and it has to be understood along with Section 46. A rule being a delegated Legislation, is intended only to carry out the object of the main Act. Therefore, it cannot be said that the intendment of Rule 65 of the Factories Rules is only to provide a facility for a canteen and not canteen at all. Section 46 of the Factories Act makes a statutory obligation on the part of the occupier to maintain a canteen and it has specifically used the phrase "shall be provided" and not "may be provided". However, the learned Counsel for the petitioners submitted that the committee constituted for maintaining the canteens consists of the representatives from the management and also from the workers and such a committee could determine the price of eatable items to be sold. Therefore, such canteens cannot be said to be under the control of the occupier. In the course of the argument, the Counsel for the petitioners admitted that the committee is constituted by the manager of establishments/factories in terms of Rule 70 of the A.P. Factories Rules and the management also provides certain commodities on subsidised rates. From this, it follows that maintenance of a canteen for the use of the employees, becomes a part of the establishment and, therefore, the workers employed in such canteens would be the employees of the management. The Supreme Court already distinguished the obligation to provide a canteen and the obligation to provide facilities to run a canteen. In Parimal Chandra Raha v. LIC of India, AIR 1995 SC 1666, in which it is held that if under statute or rule if a canteen is to be provided, in such cases it is obligatory to provide canteen and not a facility for a canteen only.
7. It is not disputed, nor it can be disputed that the Contract Labour Abolition Act is a beneficial Legislation, providing both for abolition and regulation of the contract labour, so as to put an end to any kind of unfair labour practice. Hence, interpretation should be one which would be beneficial to the labour. I may immediately refer to the judgment of the Supreme Court reported in Union of India v. Pradeep Kumari, , in which the Hon'ble Supreme Court has held as under:
"In relation to beneficient Legislation, the law is well settled that while construing the provisions of such a Legislation the Court should adopt a construction which advances the policy of the Legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it."
Therefore, the reasonable construction of Section 46 of the Factories Act read with Rule 65 of the A.P. Factories Rules, would be that maintaining a canteen is a statutory duty of the occupier. Wherever the number of workers would be more than 250, canteens maintained in such establishments/factories could be termed as statutory canteens. Interpreting Section 46 of the Factories Act along with the rules applicable in the railway department, regarding the railway canteens, the Hon'ble Supreme Court in M.M.R. Khan v. Union of India, , has laid down a law to this effect that, in terms of the rules framed under Section 46 of the Factories Act, if the canteen is required to be maintained, such canteens would be statutory canteens. In this judgment, the Hon'ble Supreme Court classified the canteens into three categories viz., (I) statutory canteens, (2) non-statutory recognised canteens and (3) non-statutory, non-recognised canteens. The Supreme Court has stated that in an establishment where the employees are 250 or less, yet a canteen is maintained and recognised by the railway department, such canteen would be a non-statutory, recognised canteen, and in respect of non-statutory and recognised canteens, the Supreme Court has held that such canteen workers cannot be deprived of the status as railway employees. So far as the third category is concerned, i.e.., non-statutory and non-recognised canteens the Supreme Court has stated that such canteens which are not required, to be maintained by the statute, but yet maintained by certain departments, without being recognised by the railway administration, such canteens would be non-statutory, non-recognised canteens, because such canteens are run on ad hoc basis. The Supreme Court in this judgment by noticing that "the railway administration having no control on their working", held that "workers engaged in these canteens are not entitled to claim the status of a railway servant" (See Paragraphs 29 and 30). In the decision reported in Employers, Management of R.B.I. v. Their Workmen, AIR 1996 SC 124), the Hon'ble Supreme Court has held that regarding the workmen employed in the canteens run in the offices of Reserve Bank of India, over which the Reserve Bank of India, neither legally, nor administratively had any effective control and supervision on such canteens and its employees, it cannot be said that in such a case the relationship of master and servant existed between the Bank and various persons employed in canteens. In this judgment, their Lordships of the Supreme Court after referring to the earlier judgment of the Supreme Court reported in Parimala Chttfidraha v. Life Insurance Corporation of India, AIR 1995 SC 1666 (supra), have held as under:
"Where to provide canteen services has become a part of the service conditions of the employees, the canteen becomes a part of the establishment and the workers in such canteen become the employees of the management."
In view of this consistent law of the Supreme Court, it is clear that the workers of the canteens which are statutorily required to be maintained, become part of the establishment. As I have already stated above, all the establishments of all the petitioners in this writ petitions were statutorily required to maintain a canteen in terms of Section 46 of the Factories Act and Rule 65 of the A.P. Factories Rules and the workers of such canteens would become part of the establishments/factory and if that is so, they would be the employees in the establishments/factories. However, the learned Counsel for the petitioners relied upon the judgment of the Supreme Court reported in Indian Petrochemicals Corporation, case (supra) and contended that the status of workmen of the statutory canteen, would establish a relationship of employer and employee, only for the purpose of Factories Act alone and not for all other purposes. From the reading of this judgment, it is clear that this case was dealing with the direction issued by the High Court, directing the management to absorb the employees listed in Ex.A to the writ petition. That was not a case in which the notification issued under Section 10 of the Contract Labour Abolition Act was in issue. The simple issue in that case was that the petitioners who were the workmen, contended that they were working in the canteen maintained by the management since long time and they are entitled to be absorbed in the regular service like any other regular workman. They contended that since they were working for a long time and the management being the instrumentality of the State, an appropriate direction should be issued. The Hon'ble Supreme Court in such a situation was persuaded to interpret the definition of 'workman' found under Section 2(1) read with Section 46 of the Factories Act, and the Apex Court held that though the workmen in the case were the workmen working in a statutory canteen, and they ipso facto become the employees of the establishment not for all purposes and they are workmen only for the purpose of Factories Act. The facts of that case would clearly reveal that such contract labour in that particular canteen was not abolished under Section 10 of the Contract Labour and Abolition Act. If such a contract labour was not abolished in terms of Section 10 of the Contract Labour and Abolition Act, then under other provisions of Contract Labour Abolition Act, such contract labour was only to be regulated in terms of the other provisions of the contract labour Abolition Act. In the instant case, if such contract labour were not to be abolished under Section 10 of the Contract Labour Abolition Act, the position of the workers under the petitioners' establishments/factories would be the same as pointed out by the Supreme in Indian Petrochemical Corporation's case (supra), that they would be the workmen for the purpose of Factories Act alone. But the consequences would be entirely different, if such contract labour in such statutory canteens is abolished in terms of Section 10 of the Contract Labour Abolition Act. What would be the consequence of such abolition, has been clearly laid down by the Supreme Court in Air India Statutory Corporation's case (supra). In this judgment, His Lordship Justice Majmudar, in a separate and concurrent judgment as held as under:
".......... on abolition of contract labour system from any establishment under Section 10 of the Act by the appropriate Government the logical and legitimate consequences thereof will be that the erstwhile regulated contract labour covered by the sweep of such abolition for the activities concerned would be entitled to be treated as direct employees of the employer on whose establishment they were earlier working and they would be entitled to be treated as regular employees at least from the day on which the contract labour system in the establishment for the work which they were doing gets abolished."
Thus from the reading of the judgments of the Supreme Court in MM.R. Khan's case (supra), Employers. Management of Reserve Bank of India's case (supra) and Air India Statutory Corporation's case (supra), the only conclusion that is possible is that in case of statutory canteens, once such contract labour of statutory canteens are abolished, such workers in the canteens would become part of the establishment and they are entitled to be absorbed in the establishment. In this view of the matter, the judgment of the Supreme Court in Indian Petrochemical Corporation's case (supra), is distinguishable from the facts of this case. The case on hand is not the one in which the status of the workers is required to be considered for the purpose of Factories Act, but it is one in which there is a G.O., issued under Section 10 of the Contract Labour Abolition Act. In this view of the matter, the contention of the learned Counsel for the petitioners that the canteens maintained by the petitioners in terms of Section 46 of the Factories Act read with Rule 65 of tile A.P. Factories Rules are not the statutory canteens, cannot be accepted. Thus if the canteens maintained by the petitioners are statutory canteens, there could be a notification under Section 10 of the Contract Labour Abolition Act. On this count, the impugned G.O., under Section 10 of the Contract Labour Abolition Act, cannot be challenged.
8. The other argument of the learned Counsel for the petitioners is that the impugned G.O., issued under Section 10 of the Contract Labour Abolition Act is issued in the name of the Governor of Andhra Pradesh, but it is signed by Sri J.S. Sarma Ex-Officio Secretary to Government and therefore, the jmpugned G.O., cannot be said to be one issued by the appropriate Government in terms of Section 10(1) of the Contract Labour Abolition Act. The fact that the impugned G.O. is issued in the name of the Governor of Andhra Pradesh is not disputed. In fact, the stand of the Government is that the said Ex-Officio Secretary to Government is authorised to authenticate the impugned G.O. The official acts are presumed to be correct, unless contrary is proved. The learned Government Advocate submitted that Sri J.S. Sarma, Ex-Officio Secretary to Government of Andhra Pradesh is authorised to issue the impugned G.O., in the name of the Governor of Andhra Pradesh and this J.S Sarma is not the Member Secretary of the Advisory Board constituted under Section 4 of the Contract Labour Abolition Act. He stated that it is only the Joint Commissioner of Labour, who is member of the Board, and such a Board is properly constituted vide G.O. Rt. No.995, Labour, Employment, Nutrition and Technical Education (Lab.II) Department, dated 25-5-1987. Thus he submitted that the argument of the petitioners' Counsel is not correct. In my opinion, I think that the petitioners contention urged in this behalf cannot be accepted. At any rate, the person who has signed the impugned G.O., is Sri J.S. Sarma and he is designated as Ex-Officio Secretary to Government and if that is so, as a Secretary to the Government, the order can be authenticated by him. Therefore, I do not find any irregularity in the issue of the impugned G.O.
9. Nextly the Counsel appearing for the petitioners contended that the impugned G.O., is not in conformity with Section 10(2) of the Contract Labour Abolition Act. For immediate reference. I am extracting the relevant part of Section 10(2) of the Contract Labour Abolition Act as under:--
"(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 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."
From the reading of the above section, it is clear that the appropriate Government shall have regard to the conditions of work, whether such work is incidental to or necessary for the industry or whether such work is of perennial nature and whether such work is ordinarily done through the regular workmen in the establishment etc. The learned Government Advocate submitted that the report submitted by the Advisory Board to the Government vide letter No.CLAB/R2/55730/87-88 dated 9-12-1980 would clearly indicate that the Advisory Board considered all these factors and ultimately recommended for the abolition of all kinds of contract labour in all the establishments. Therefore, Section 10(2) of the Contract Labour Abolition Act has been complied with. There is substance in the argument of the learned Government Advocate. From the reading of the report furnished to me along with the letter dated 9-12-1988, 1 find that the Board considered the plight of contract labour employed in canteens in different establishments and ultimately recommended the abolition of contract labour in the canteens of the petitioners establishments. The Board in its report stated that it visited number offactories and held discussions with the management, interrogated the contract labour and others and it has also made necessary enquiries. The Board observed that:--
"......... that in certain factories the management are running the canteens by themselves and the workers in canteen are treated on par with regular workmen of the factory and paid wages on par with the regular workmen. In certain other factories both the regular workmen and contract labour are working in paratled and huge disparities existing wages and service conditions between the two types of employments. In certain other factories the management employed contract labour exclusively."
They also observed that in certain establishments/factories the latest revision of rates under the Minimum Wages Act are not paid and the management have not provided proper wages to the contract labour in canteens on par with the regular workmen and the terms of such contract labour varies from contractor to contractor. From the report it is further clear that the Board has not accepted the contention of the management that the canteen is not connected to the factory/establishment. Consequently the Board observed that unless the contract labour system in canteen is abolished by the Government, "the managements continue to exploit the contractor labour in canteens with lesser wages, besides other factors like not providing Bonus, Leave, Gratuity on par with regular workmen. The Board felt that the work of canteen workers was of perennial nature. The Board also felt that even in case the canteen is run on co-operative basis, the workers engaged in canteen should be provided wages and other benefits on par with that of regular workmen of the management. With these observations, the Board recommended for the abolition of contract labour not only regarding the canteen workers, but regarding the other workers also. But the Government by exercising its discretion under Section 10(1) of the Contract Labour Abolition Act, abolished employment of contract labour in all operations of canteens required to be provided under Factories Act. All this material I referred to, only to prima facie get myself satisfied whether requirements of Section 10(1) and (2) are complied with or not. Under Section 10(1) of the Contract Labour Abolition Act, the Government after consultation with such Advisory Board may prohibit the employment of contract labour. In the instant case, the Government has consulted with such Contract Labour Board, before issuing the impugned G.O. On the basis of the report submitted by such Advisory Board, the Government was satisfied that even the requirements of Section 10(2) have been complied with and consequently issued the impugned G.O., under Section 10 of the Contract Labour Abolition Act. If that is so, the impugned G.O., cannot be found fault as violating Section 10(1) and (2) of the Contract Labour Abolition Act. The explanation to Section 10 makes further clear that the decision of the appropriate Government that the work is of perennial nature shall be final. If that is so, the petitioners cannot challenge the impugned G.O., on the ground that the same is violative of Section 10(1) and (2) of the Contract Labour Abolition Act. At any rate, as per the law declared by the Supreme Court, which are already referred to above, in case of statutory canteen, the canteen is a part of the establishment and, therefore, such work is of perennial nature. In the decision reported in Vegoils (P) Ltd v. The Workmen, , the Hon'ble Supreme Court has pointed out that if the contract labour of loading and unloading is of perennial nature, the appropriate Government may abolish it under Section 10 of the Contract Labour Abolition Act. The Supreme Court in the said judgment further pointed out that it is for the appropriate Government to take decision, but not for the Court or authorities under the Industrial Disputes Act. A copy of the report of the Advisory Board placed before this Court, has helped this Court in lifting the veil as to see the nature of the contract labour regarding the canteen workers in statutory canteens. Having regard to the report of the Board, I am satisfied that requirement of Section 10(1) and (2) was fully complied with and absolutely there is no illegality or any irregularity in issuing the impugned G.O. In the decisions reported in Karri Pothu Raju v. National Thermal Power Corporation Ltd., and in Bharat Heavy Plates and Vessels Ltd. v.
B.H.P.V. Canteen Employees Union, , the Division Bench of this Court has treated the workers of statutory canteens are employees of the management. As pointed out by the Supreme Court this Contract Labour Abolition Act is enacted with a view to curb the unfair labour practice. In this view of the matter, the contentions urged in this behalf is hereby rejected. The other argument of the learned Counsel for the petitioners is that the Advisory Board is not properly constituted on the ground that there is no proper representation of the employers. The Government Advocate placed before me G.O. Rt. No.955, dated 25-5-1987, which 1 have already noticed above, constituting the A.P. State Advisory Contract Labour Board. The said G.O. clearly indicates that there are representatives from employers and representatives from the employees. Therefore, this contention also is simply noted only for the purpose of its rejection. The learned Counsel for the petitioners persisted and contended that at least the Advisory Board should have considered the conditions of individual establishments and industries and the reasons given by the Advisory Board are not tenable. At the outset I may point out that the report submitted by the Advisory Board is only a matter of consultation for the Government. The Advisory Board has not passed any statutory order as such. Therefore, the opinion of the Board cannot be questioned in this writ petition. Section 10(1) of the Contract Labour Abolition Act provides that the Government may issue notification under that section only after consultation with such Advisory Board. Once the Board is consulted, the requirement of Section 10(1) are complied with and this Court under Article 226 would not be in a position to go beyond such consultation and find out whether the reasons are valid or not. Section 10(2) does not provide any notice and opportunity to be given to the concerned management before issuing such notification, abolishing the contract labour. Such a consultation is purely an executive act and only for the purpose of satisfaction of the Government for issuing notification under this section and nothing more. In fact, to the same effect also is the judgment of the Division Bench of the High Court of Gujarat reported in Alembic Chemical Works Co., Ltd. v. State of Gujarat, 1995 (71) FLR 340. In this case also, the High Court of Gujarat has held that what is required under Section 10 of the Contract Labour Abolition Act is only the consultation with the Board and furnishing a copy of the report of the Advisory Board to the establishments was not necessary and hearing such establishments was also not necessary. I am in respectful agreement with this judgment of the Gujarat High Court.
10. The next argument of the Counsel for the petitioners is that there should have been a notification under Section 10 regarding each establishment having regard to the service conditions or the work conditions of each establishment. Therefore, the impugned notification abolishing the contract labour in the canteens required to be maintained under Section 46 of the Factories Act "as a class" is illegal. Therefore, the impugned notification covering all the establishments in which the canteens are to be maintained statutorily under the Factories Act, without issuing notification regarding each individual establishments is unsustainable under Section 10(1) of the Contract Labour Abolition Act. In my opinion, this argument cannot be countenanced for more than one reason. Section 10(1) and (2) read together do not indicate that such a notification should be in relation to each individual establishment. The intendment of the Section 10 is to abolish the contract labour of a particular type, whether it is in an establishment or in establishments. Section 10(1) provides that the appropriate Government may by notification in the official gazette prohibit "employment of contract labour in a process, operation or other work in an establishment". If the process, operation or other work in number of establishments are similar, and the contract labour employment thereto is similar, Section 10(1) per se does not prohibit a single notification effecting number of establishments. If there are many establishments having similar contract labour, in any process or operation or other work similar to any one establishment, all of them could be abolished by single notification. The conditions prevalent "in any establishment" may be the present in "many establishments". In such circumstances, a single notification could be issued under Section 10(1) of the Contract Labour Abolition Act.
11. Lastly the Counsel for the petitioners contended the abolishing contract labour in the canteens would result in deprivation of the fundamental rights of the contractors to practice any profession and trade under Article 19(1)(g) of the Constitution and it also compels the managements to start a canteen industry along with the main industry, for which it has no skill or aptitude. I may at the outset point out that the fundamental rights guaranteed under Article 19(1)(g) is subject to reasonable restrictions provided under clause (6) of the Constitution. Under clause (6), there could be a reasonable restriction on the rights conferred by Article 19(1)(g). In order to abolish the unfair labour practice and unjust treatment of the workmen, if the right of the contractor to practice trade or profession is restricted, that would definitely be a reasonable restriction. At any rate, the power of the appropriate Government to prohibit the contract labour of any kind or type is already upheld by the Supreme Court in more than one judgment. Therefore, I do not see any substance even in this contention of the Counsel for the petitioners.
12. For the above reasons, I do not find any merits in this Batch of writ petitions in which G.O. Ms. No. 11 is challenged and accordingly they are liable to be dismissed.
13. In WP No. 15707 of 1989, G.O. Ms. No. 287, dated 7-5-1981 is challenged. From the reading of this G.O., it is clear that the said G.O. was issued in the year 1981 but the same is challenged in the year 1987, i.e., after a period of six years. By the impugned notification, the Government of Andhra Pradesh has abolished the employment of contract labour in certain process of operations in the establishments/ factories. It is not brought to my notice that the contract labour abolished by this G.O., was not of the perennial nature. I have already pointed out that whether a particular type of work is of perennial in nature or not, the decision of the Government would be final, and regarding the other aspects, the petitioners establishment/ factory would stand covered by the above discussions.
14. In WP No.1866 of 1989, G.O. Ms. Nos.914 and 915 dated 24-8-1978 are challenged. This writ petition also is filed belatedly in the year 1989, challenging the G.O., issued in the year 1978. By the impugned notification, the contract labour regarding the loading and unloading in lorries etc., in M/s. Ferro Alloys Corporation, Shrikakulam is abolished. As I have already stated above, the contract labour of this type cannot be said to be not of perennial nature. Even for the purpose of this writ petition also, the above discussion holds true. At the same time, I make it clear that these last two writ petitions in WPNo.15707 of 1989 and WP No.1866 of 1989 are liable to be dismissed even on the ground of latches also, because within a period of six or ten years, lot of water must have flown and number of employees of the erstwhile contract labour must have been regularised and made permanent, and for any reasons stricking down these G.Os., in the absence of such workers would affect their service conditions, hence, it is not possible for this Court to exercise the jurisdiction vested under Articles 226 and 227 of the Constitution of India and accordingly I do not find any merits even in this writ petition.
15. For the above reasons, I pass the order as under:
The writ petitions are hereby dismissed. So far as the establishments/factories either owned or controlled by the Central Government are concerned, I direct the respondents not to apply the impugned G.Os., to such establishments/factories. Since it is not possible for this Court to find out which of establishment is owned or controlled by the Central Government, it is open to the concerned petitioners to approach the concerned respondent to explain their stand. Accordingly, the writ petitions in which the establishments/ factories are owned or controlled by the Central Government are concerned, are disposed of in terms of this order. In the circumstances of the case, the parties shall bear their own costs.