Orissa High Court
The Management Of Hira Cement Works vs The Union Of India (Uoi) And Anr. on 28 August, 1986
Equivalent citations: 1986(II)OLR416
JUDGMENT G.B. Pattnaik, J.
1. In these four writ petitions, the legality of an award by the Board of Arbitrators on a voluntary reference of disputes being made Under Section 10A of the Industrial Disputes Act is in question and since common questions of law and fact are involved, the petitions were heard together and are being disposed of by this common judgment.
2. Petitioners in these writ applications entered into contract for doing jobs of shifting laying, packing and re-packing in the lime-stone quarries. Petitioners have been granted licence by the Assistant Labour Commissioner-cum-Licensing Officer permitting to employ some workmen on any particular day and the said contracts are being renewed) from time to time and are still subsisting, as admitted to by the Counsel for both parties. The workmen in the cement industry submitted a charter of demands to the employer sometimes in the year 1977, but the negotiation failed and, therefore, both the parties agreed to refer the same for arbitration and an agreement to that effect was entered into by and between the said parties on 14th of September, 1977. The said agreement is one in terms of Section 10A of the Industrial Disputes Act. The Board of Arbitrators consisted of two persons, namely, Shri G. Ramanujam and Shri R. P. Nevatia. The arbitrators passed an award and submitted the same to the Central Government for publication and the Central Goverrnent has published the said award Under Section 17 of the Industrial Disputes Act. The award has dealt with several topics, but in these applications we are concerned with that part of the award which deals with abolition of contract labour. Clause 166 of the award states :
"We, therefore, direct according that no contract labour shall be employed in the industry by any employer, except in loading (including packing) and unloading operations..."
In view of the aforesaid direction given in the award, the manufacturer has terminated the contract with the petitioners and hence the present writ petitions. The prayer in the writ petitions is to quash the award relating to abolition of contract labour and to quash the order of the manufacturer passed pursuant to the said invalid award.
3. The main contention urged by Mr. Das appearing for the petitioners is that to regulate the employment of contract labour, as well as to provide for its abolition in certain circumstances, Parliament has enacted the Contract Labour (Regulation & Abolition) Act, 1970, and Section 10 of the said Act deals with prohibition of employment of contract labour. In view of such specific provision in the said statute, the arbitrators will havo no jurisdiction to entertain such a dispute even if such arbitration is a voluntary act of the parties and reference is made Under Section 10A of the Industrial Disputes Act.
4. The sole question which, therefore, comes up for consideration is whether in view of Section 10 of the Contract. Labour (Regulation & Abolition) Act, 1970, a reference in respect of abolition of contract labour can be made Under Section 10A of the Industrial Disputes Act. This contention was directly raised before the arbitrators but was negatived by the arbitrators and has been dealt with in paragraphs 154 to 166 of the award.
A similar question came up for consideration before the Supreme Court in the case of Vegoils Private Ltd. v. The Workmen, AIR 1972 S.C. 1942. In that case, a reference had been made Under Section 10A of the Industrial Disputes Act, one of the disputes being in relation to abolition of contract labour system in the industry One of the contentions which were urged by the Company before the Supreme Court was whether the tribunal had jurisdiction to consider the question of abolition of contract labour in view of the Contract Labour (Regulation & Abolition) Act, 1970. The Supreme Court came to the conclusion :
"...Therefore, it is reasonable to conclude that the jurisdiction to decide about the abolition of contract labour or to put it differently to prohibit the employment of contract labour is now to be done in accordance with Section 10. Therefore, it is proper that the question whether the contract labour regarding loading and unloading in the industry of the appellant is to be abolished or not is left to be dealt with by the appropriate Government under the Act, if it becomes necessary. On this ground, we are of the opinion that the direction of the Industrial Tribunal in this regard will have to be set aside..."
In paragraph 46 of the said judgment, the Supreme Court further observed:
"...The Central Act, as mentioned earlier, had come into force on February 10, 1971. Under Section 10 of the said Act the jurisdiction to decide matters connected with prohibition of contract labour is now vested in the appropriate Government. Therefore, with effect from February 10, 1971, it is only the appropriate Government that can prohibit contract labour by following the procedure and in accordance with the provisions of the Central Act. The Industrial Tribunal in the circumstances will have no jurisdiction though its award is dated November 29, 1970, to give a direction in that respect which becomes enforce- able after the date of the coming into force of the Central Act. In any event such a direction contained in the award cannot be enforced from a date when abolition of contract labour can only be done by the appropriate Government in accordance with the provisions of the Central Act. In this view also it must be held that the direction of the Industrial Tribunal abolishing contract labour with effect from May 1, 1971, regarding loading and unloading cannot be sustained".
The only distinction between the Vagoils' case (supra) and the cases in hand is that in that case the reference had been made by the appropriate Government Under Section 10 of- the Industrial Disputes Act whereas in the cases in hand, the reference has been made to. a body of arbitrators Under Section 10A of the Industrial Disputes Act. Rut in our opinion, the distinction is of no consequence and the ratio of the Vegoils' case would equally apply to the facts and circumstances of the present case. Both Under Section 10 as well as Under Section 10A of the Industrial Disputes Act, what is referred is an 'industrial dispute' and the pre- conditions for making the reference also are the same, the only difference being that whereas Under Section 10, it is the State Government which makes the reference, Under Section 10A, the parties to the dispute make the reference. But if the feference is not entertainable on the ground that it is specifically provided for in a special statute like the Contract Labour (Regulation & Abolition) Act, then, the adjudicator will have no jurisdiction to entertain the same whether it has come before him by way of a reference Under Section 10 or by way of an agreement Under Section 10A of the Industrial Disputes Act. The underlying principle is that where a power has been given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. Since the Contract Labour (Regulation & Abolition) Act, 1970, provides for prohibition of employment of contract labour and the mode of such prohibition is contained in Section 10 of the said Act, it would be wholly incompetent for the same matter to be agitated by way of an industrial dispute either before the tribunal or before a body of arbitrators contemplated Under Section 10A of the Industrial Disputes Act.
5. The provision of Section 10 of the Contract Labour (Regulation &. Abolition) Act came up for consideration before the Supreme Court in the case of B. H. E. D. Workers' Association, Hardware and Ors. v. Union of India and others, AIR 1985 S. C, 409. The Supreme Court observed :
"...It is clear that Parliament has not abolished contract labour as such but has provided for its abolition by the Central Government in appropriate cases Under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. 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. This is a matter for the decision of the Government after considering the matters required to be considered Under Section 10 of the Act......" (underlining is ours) The aforesaid observation of the Supreme Court prohibited the Court from looking into the question and held that it was only for the Government to consider the same Under Section 10 of the Contract Labour (Regulation & Abolition) Act. Such observation as to prohibition would equally apply to a tribunal or a body of arbitrators under the Industrial Disputes Act before whom such question comes up for consideration by way of reference In this view of the matter, we would conclude that the arbitrators had no jurisdiction to entertain the dispute in respect of abolition of the system of contract labour which was Demand No. 12 in the award in question and which has been answered in paragraph 166 of the award. We would accordingly quash that part of the award contained in paragraph 166 pertaining to the abolition of contract labour. Since the order of the manufacturer dated 18th October, 1978; is based solely on the aforesaid award and the award has been declared by us to be invalid, the said order of opp. party No. 2 also cannot be sustained and we would accordingly quash the said order in Annexure-3.
6. In the ultimate result, therefore, the arbitration award relating to the abolition of contract labour pertaining to Demand No. 12 and as provided in paragraph 166 of the award in Annexure-4 and the order dated 18th of October, 1978 passed by opp. party No. 2 in Annexure-3 in each of O. J. Cs. Nos. 1507,1508 and 1509 of 1978 are quashed. So far as OJC No. 1495 of 1978 is concerned, the arbitration award relating to abolition of contract labour pertaining to Demand No. 12 and as provided in paragraph 166 of the award in Annexure-2 is hereby quashed.
All the writ applications are accordingly allowed, but in the circumstances, without any order as to costs.
L. Rath, J.
I agree.