Calcutta High Court
Durgapur Steel Plant vs Kisan Jawanjal & Ors. on 25 November, 1999
Equivalent citations: (2000)1CALLT594(HC), 2000(1)CHN21, [2000(85)FLR585], (2000)ILLJ1015CAL
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT S.N. Bhattacharjee, J.
1. Respondents herein, all being contract labourers In the department of Blast Furnace Rellnlng (for short BFL) under the appellant No.2 filed a writ appllcation marked as Matter No. 3770 of 1994 alleging that although the Slate Government by Its notification dated 22nd February, 1982 prohibited the employment of contract labour In any process or operation in the jobs specified therein including BFL employed by M/s Durgapur Steel Plant (DSP) with effect from 1.3.82 by issuing notification under section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 they have not been absorbed as workmen under the appellant and have been still working as contract labours in the same department It is further alleged that petitioners were asked to appear before the Selection Committee on different dates for the post of unskilled workers and were required to submit application forms duly filed in with necessary documents on or before 19.3.1985 and since then a series of meetings at bipartite and tripartite levels with regard to the departmentalisation of Jobs as-well as absorption of contractor workmen were held and ultimately a memorandum of settlement dated 28.6.94 was signed pursuant to a tripartite meeting held before the Labour Commissioner between the Steel Authority India Limited (for short SAIL) and Durgapur Steel Plant (for short DSP) and their workmen represented by diverse Contrators Workers' Unions whereby it was stipulated in sub-Clause (1) (2) and (3) of Clause 5 that those who were found medically unfit and aged above 45 years as per medical examination report would have no claim for absorption In Durgapur Steel Plant and only those were medically fit and upto 45 years of age as per medical examination report would be considered for absorption.
2. Appearing to the writ petitioners-respondents, they have been working under the contractors since long even after the notification and they have been successful in the interview and the medical test and now the decision to exclude the incumbents from departmentalisation on the ground of being overaged is arbitrary, and vlolatlve of Article 16 of the Constitution of India.
3. The petition was resisted by filing affidavit-in-opposition by appellant No. 2 contending that the job of blast furnace rellnlng was undertaken from time to time and was completed by engaging contractors, the question of regularisation of the services of the petitioners did not arise and that SAIL or DSP is under no obligation to absorb the contract labour only because the Job has been declared perennial by a notification of the Government of West Bengal. The tripartite settlement dated 28.6.94 which is for the benefit of the majority of the contract labourers is binding upon the petitioners and is not open to challenge in the writ jurisdiction of this Court.
4. The learned trial Judge held, "Therefore, in my view, the said condition as to the cut off age below 45 years for absorption was designed to avoid the statutory liability of the employerenvlsaged under section 10 of the Act, 1970. To that extent I.e., the condition as to the prescription of age as below 45 years for purpose of absorption must be held to be void in view of section 23 of the Indian Contract Act because its object Is to defeat the provision of section 10 of the Act, 1970. It is accordingly so held, on the ratio of the Air India's case (supra)".
5. On such a finding the learned trial Judge allowed the writ petition and issued direction to absorb the petitioner in the lowest grade (L-1) on regular basis with effect from the date of abolition and to make payment in the prescribed scale from the date on which the writ application was filed.
6. The present appeal has been preferred against this order passed by the learned Trial Judge on 18.6.99.
7. Impugning the aforesaid order, the learned counsel appearing for the appellant has submitted that the learned Trial Judge ought to have held that the settlement arrived at tripartite level is statutortly binding on the respondent-writ-petitioners under section 18(3) of the Industrial Disputes Act and the same cannot lose its binding nature on the basis of subsequent judicial pronouncement in another case. It is further submitted that the learned Trial Judge having relied upon the judgment passed by the Hon'ble Supreme Court in Air India Statutory Corporation has failed to appreciate that the effect of a Tripartite Settlement subsequent to a notification under section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 on the aspect of absorption of contract labourers engaged in a notified job not having come up for consideration of the Supreme Court in the judgment , the said judgement was not applicable to the present case.
8. The learned counsel appearing for the respondent has submitted that the Industrial Dispute Act not being applicable the Contract Labours Tripartite Settlement under section 18(3) of the Industrial Disputes Act is not binding upon the writ petitioner and such settlement is void for being contrary to the provision and scheme of the Contract Labour Act and violatlve of the Article 16 of the Constitution of India.
9. The notification under section 10 of the Contract Labour Act was Issued on 28.6.82. The petitioners appeared before the Selection Committee and submitted documents on 19.3.85. The Tripartite settlement was signed on 28.6.94 and writ petition was filed on 12.8.94. From the date of abolition of Contract Labour the Department of Blast Furnace Re lining under appellant No. 2 more than 10 years rolled by and tripartite settlement was executed on 28.6.94 declaring the petitioners age-barred. The petitioners, therefore, challenged the tripartite settlement within two months from the date of settlement.
10. It has been argued for the Appellants that at the time of such settlement the appellants were under no obligation to absorb all the contract labourers in view of the decision of the Hon'ble Supreme Court in Dena Nath v. National Fertilizer Limited reported In which was the holding the field.
11. It was held therein that on abolition of contract labour there was no provision for such labour being directly absorbed by the principal employer and that the High Court under Article 226 of the Constitution had no power to direct absorption of the contract labour as direct employees. Therefore, according to the learned counsel for the appellant, the appellant employer although, was under no obligation to absorb the surplus contract labours framed a scheme for departmentalisation to maintain harmony and peace for the benefit of the majority of workers quite consistently with the law declared by the Supreme Court in Dena Nath's case and the same was acted upon. Such a settlement which was validly arrived at cannot be invalidated by subsequent decision in Air India Statutory Carpn. v. United Labour Association reported in AIR 1977 SC 645 particularly when the effect of such tripartite settlement did not come up for consideration before the Supreme Court, This being the main limb of the argument advanced on behalf of the appellants it is necessary to consider the same in details.
12. While over-ruling the decision in Dena Nath's case (supra) the Supreme Court in AIR India's case elaborately discussed the scheme of the Act, the nature and scope of the social welfare legislation, the duty of the law Courts and the power and jurisdiction of the Writ Court in giving effect to the provisions of the Act. From such discussion the following conclusions which necessarily emerge will clinch the issue:--
(i) The Act did not Intend to denude the labourers of their source of livelihood and means of development, throwing them out from employment. The Act Is a socio-economic welfare legislation. Right to socio-economic Justice and employment are constitutional rights. Right to means of livelihood is also a constitutional right. Right to facilities and opportunities are only part of and means to right to development. Without employment or appointment, the workmen will be denuded their means 6f livelihood and resultant right to life, leaving them in the lurch since prior to abolition they had the work and thereby earned livelihood.
(ii) The question is whether after abolition of contract labour system the contract labourers who were earlier having regulatory protections would be rendered persons non grata and would be thrown out from the establishment and told off the gates. Then in such a case the remedy of abolition of contract labour would be worse than the disease and it has to be held that the legislature while trying to Improve the lot of erstwhile contract labourers who are doing work of perennial nature for the principal employer and are doing work which is otherwise to be done by regular workmen had really left them in the lurch by making them loss all the facilities available to contract labour in the establishment as per Chapter V and desired them to wash their hands off the establishment and get out and face starvation. It is axiomatic that if they continued to be contract labourers their wages would have been guaranteed under section 21 of the Act with an obligation on the principal employer to pay them if the contractor fails to discharge his obligation in connection with payment of wages. Wages are the livelihood of a workman and his large number of dependants. If on abolition of contract labour system contract labour Itself is to be abolished, it would cause economic ruin and economic death to contract labourer and his dependents for amelioration of whose lot order under section 10 is to be passed. That obviously cannot be the scope, ambit and purport of section 10 of the Act.
(iii) The real scope and ambit of the Act is to abolish contract labour system as far as possible from every establishment. Consequently, on abolition which is the ultimate goal, the erstwhile regulated contract labour cannot be thrown out of establishment as tried to be submitted on behalf of the management taking resort to the express language of section 10 of the Act. Such a conclusion reached by the two-member Bench in Dena Nath case, flies In the face of the very scope and ambit of the Act and frustrates the very scheme of abolition of contract labour envisaged by the Act. Such a conclusion with respect cannot be countenanced as results in a situation where relatives of the patient are told by the operating surgeon that operation is successful but patient has died.
13. Therefore, the so-called cloak of protection thrown upon the tripartite settlement of 1994 by the decision in Dena Nath case stands removed as soon as the same is over-ruled by the subsequent decision of the Supreme Court In Air India Statutory Corporation Limited case and the provision of the said impugned settlement prejudicially affecting the right of absorption and seeking to thrown the petitioners out of employment became void and Inoperative for being contrary to the object of the Act and violatlve of constitutional right of the respondent-petitioner.
14. That, apart, the Supreme Court in the above decision has also laid down that the High Court and Supreme Court in exercise of power in Articles 226 and 32 can properly mould the relief and direct the appropriate authority to act in accordance with law and submit report to the Court for giving proper relief.
15. The Apex Court has held :--
"Though there is no express provision in the Act for absorption of the employees whose contract labour system stood abolished by publication of the notification under section 10(1) of the Act, in a proper case, the court as sentinel on the qui ulve is required to direct the appropriate authority to act in accordance with law and submit a report to the court and based thereon proper relief should be granted. The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the court is long enough to reach injustice whereever it is found. The court as sentinel on the qul vlue Is to mete out Justice in given facts. On finding that either the workmen or were continued as contract labour, despite prohibition of the contract labour under section 10(1) the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. It would, therefore, be necessary that in stead of leaving the workmen in the lurch, the Court properly moulds the relief and grants the same in accordance with law."
16. Thus the arguments on behalf of the appellants that the scheme of absorption of majority of the contract labourers by way of tripartite settlement under section 18(3) of Industrial Disputes Act was protected by reason of the Supreme Court judgment In Dena Nath case (supra) and subsequent ruling of the Supreme Court over-ruling its earlier decision cannot invalidate the scheme by giving retrospective effect towards the incidents of the past is not tenable. In Air India. Statutory Corporation case (Supra), Their Lordships dealt with the case which was also an event of the past. In that case the Central Government issued notification in the year as back as 1972.
17. It is also debatable whether the State Government after having Issued notification prohibiting contract labour can, being represented by Labour Commissioner participate in the settlement the effect of which is to thrown some contract labourers out of employment after having held that job rendered by them was of perennial nature. After having Issued notification the State Government was denuded of Its power to make further recommendation for non-absorption of the contract labourers. In that case of Air India Statutory Corporation the notification of the Government of India was Issued on 9.12.76. On 15.11.89 the Government of India referred the matter to the Central Advisory Mohlle Committee under section 10(1) which recommended the Central Government not to abolish the contract labour system In the aforesaid services. Their Lordships held, "There is no substance in the contention that the relevant factors for abolition of the contention that the relevant factors for abolition of the contract labour system in the establishment of the appellant was not before the Central Advisory Board before its recommendation to abolish the contract labour system in the establishment of the appellant. The minutes of the Board do show and the unmistakable material furnished do Indicate that the work on all the establishments including those of the appellants is of perennial nature satisfying all the tests engrafted in section 10(2) of the Act. Accordingly, on finding the work to be of perennial nature, it had recommended and the Central Government had considered and accepted the recommendation to abolish the contract labour system in the aforesaid services. Having abolished it, the Central Government was denuded of its power under section 10(1) to again appoint the Mohlle Committed to go once over into the selfsame question and the recommendation of the latter not to abolish the contract labour system in the above services and the acceptance thereof by the Central Government are without any legal basis and therefore non est."
18. We are, therefore, in agreement with the finding of the learned Trial Judge that the tripartite settlement dated 28.6.94 so far as it prejudicially affects the right of absorption of the respondents is Inoperative and of on consequence.
19. As regards the submission on behalf of the Appellants that the State Government was not the appropriate Authority for Issuing the notification, the learned Trial Judge rejected the contention relying upon the decision in Steel Authority of India Ltd. v. State of West Bengal & Ore., reported in 1998(80) FLR 245 and we do not find any reason to differ from the same. Moreover, the notification dated 28.6.82 issued by the State Government as the appropriate authority was acted upon by the Appellants and the same was never challenged till the filing of the affidavit-in-opposition in the writ petition before the learned Trial Judge.
20. The respondents herein would, however, be entitled to get the arrear of pay in the appropriate scale of pay after their absorption in the regular service from the month of December, 1996 when the Judgment of the Supreme Court in Air India Statutory Corporation was passed and the direction of the learned Trial Judge is modified accordingly. The appeal is otherwise devoid of any merit and the same is disposed of accordingly without any order as to costs.
R. Pal, J.
21. I agree.
22. Appeal disposed of