Calcutta High Court (Appellete Side)
Ibp Co. Ltd. Thika Sramik Union vs Indian Oil Corporation Ltd. & Ors on 10 January, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Bibek Chaudhuri
MAT 1818 of 2017
IBP Co. Ltd. Thika Sramik Union
v.
Indian Oil Corporation Ltd. & ors.
For the appellant : Mr. Biswaroop Bhattacharya, Advocate
Mr. Krishnendu Bhattacharya, Advocate,
Mr. Pratik Majumdar, Advocate.
Mr. Somsuvra Mukherjee, Advocate,
For the respondent : Mr. Arijit Choudhury, Sr. Advocate,
No.1 Mr. Soumya Majumdar, Advocate,
Mr. Raj Kumar Basu, Advocate,
Mr. Victor Chatterjee, Advocate.
For the respondents : Mr. Kaushik Chanda, ASG,
2, 3 and 4 Ms. Chandreyi Alam, Advocate.
Heard on : December 12 and 13, 2018
Judgment on : January 10, 2019
Dipankar Datta, J. :
1. The Central Government (hereafter 'the Govt.', for short) exercising power conferred by section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereafter 'the CLRA Act', for short), prohibited employment of contract labour in the establishment of Lube Oil Blending Plant of the Indian Oil Corporation Ltd. at Budge Budge (hereafter 'the IOC', for short) by a notification published in the Official Gazette dated May 25, 2011 (hereafter 'the said notification', for short). The said notification was challenged by the IOC before the writ court basically on a couple of grounds, viz. (i) there was no "consultation" between the Central Advisory Contract Labour Board (hereafter 'the Board', for short) and the Govt. prior to issuance of the said notification, as mandated by section 10 of the CLRA Act; and (ii) the Board denied natural justice to the IOC by not granting an opportunity of hearing and opportunity of making representation against the proposed abolition. The learned Judge, who had the occasion to consider the writ petition, allowed the same by a judgment and order dated September 12, 2017. His Lordship was impressed with the first ground of challenge and as such while setting aside the said notification based on the same, did not examine the other ground. The soundness of the said judgment is questioned in this intra-court appeal by the private respondent in the writ petition (hereafter 'the Union', for short).
2. The affidavit-in-opposition of the Govt. to the writ petition filed before the writ court did not indicate any "consultation" between the Board and the Govt. The learned Judge cannot, therefore, be faulted for returning the finding that there was no "consultation" as mandated by the relevant statute. However, inept drafting of a counter affidavit cannot have the effect of robbing the Govt. or any authority answering the description of "State" within the meaning of Article 12 of the Constitution to rely on the official records. Also, "consultation" as mandated by section 10 of the CLRA Act does not mean that prior to issuance of a notification thereunder, it is the sine qua non that the Board and the Govt. represented by its authorized officers, being the consulting parties, should meet together, discuss the points across the table and arrive at an informed decision. In view thereof, we considered it appropriate to look into the records.
3. Mr. Kaushik Chanda, learned Additional Solicitor General appearing for the Govt.
having been called upon by us, placed the relevant records for our consideration. Copies of the relevant documents were made over to the learned advocates-on- records for the Union and the IOC.
4. The word "consultation" in section 10 of the CLRA Act would not, in our opinion, require consultation across the table in course of a meeting between the parties but would mean the meeting of minds between the parties involved in the process of consultation on the basis of material facts and points to evolve a correct or at least a satisfactory solution. Since the power conferred by section 10 can be exercised by the Govt. only after "consultation" with the Board, "consultation" in the context should be conscious, effective, meaningful and purposeful, based on disclosure of full facts for due deliberation.
5. Perusal of the records produced by Mr. Chanda revealed that there was indeed a "consultation" between the Board and the Govt. We may narrate in brief what appears on a reading of the initial note dated April 6, 2011 prepared by a section officer in the Ministry of Labour and Employment on the question of prohibiting employment of contract labour in the concerned plant of the IOC under section
10.
6. The Board in its 76th meeting held on June 3, 2010 had the occasion to consider an order dated April 28, 2010 passed by a learned Judge of this Court while disposing of a writ petition of the Union. By such order, the Board was required to take a decision on the Union's prayer for prohibition of contract labour within six months of receipt thereof. A resolution dated July 31, 2010 of the Board led to constitution of a three-member committee (hereafter 'the Committee', for short) which, in due course of time, heard the IOC and the Union, made an inspection of the concerned plant, looked into the relevant materials placed before it by the disputing parties and submitted a final report dated March 14, 2011. The unanimous recommendation of the Committee was in favour of prohibiting employment of contract labour in the area of barrel filling and small can filling (upto 1 ltr.) in the concerned plant. Copies of the report were circulated to the members of the Board on March 15, 2011 and they were invited to offer their views/comments within March 22, 2011 failing which it would be presumed that they agree with the report. The short time given to respond to the Committee's report was necessitated because of pendency of proceedings before the learned Judge arising out of alleged contempt of the order dated April 28, 2010. Views/comments were received within the stipulated period from eight members of the Board, who broadly agreed with the report of the Committee. Agreement with the report was also expressed by two other members of the Board but their views/comments were received after the stipulated period. The rest of the Board members not having responded, it was deemed that they did not disagree with the report. All the papers were then placed before the Chairman of the Board, who agreed with the proposal for prohibition. The note thereafter dwelled on the aspects considered by the Committee and ultimately it was observed that "the case fulfills the conditions under section 10(2) as narrated in para 2 on pages:3/N and facts and position explained in the proceeding (sic preceding) paras, we may accept the recommendation of the Board and prohibit employment of contract labour system" as indicated therein. The proposal was, accordingly, submitted for consideration and approval of the Hon'ble Minister.
7. The proposal having the necessary approval, led to preparation of the draft notification which the said section officer by his note dated April 25, 2011 observed may be referred, after approval, to the Ministry of Law, Justice and Company Affairs (Legislative Department) for vetting of the notification. It is after such process, the said notification saw the light of the day.
8. Based on our appreciation of the records, we were satisfied that the first ground on which the writ petition of the IOC succeeded was devoid of any merit. Mr. Chowdhury, learned senior advocate representing the IOC, in his usual fairness, did not wish to address us on the point of "consultation" and waste precious judicial time but submitted that the other points arising for examination ought to be left to be considered by the writ court on a remand being ordered. Considering that the evidence upon the record is sufficient for us to pronounce judgment, we declined a remand and called upon Mr. Chowdhury first to argue the writ petition on the other points available to the IOC for having the said notification nullified.
9. Inviting our attention to section 10 of the CLRA Act, it was first contended by Mr. Chowdhury that the factors on the fulfillment whereof a notification of the nature spelt out in the relevant section could be issued had not been considered at all. The Committee had applied wrong tests which resulted in perverse results and the ministry's acceptance of the recommendation of the Board is without application of mind. Next, it was contended by him that the prohibition brought about by the said notification has affected the IOC prejudicially and having regard to the settled law that any action bringing about evil and civil consequences must be in conformity with principles of natural justice, the action of the Board in not extending to the IOC any opportunity to place its version and demonstrate the flaws in the report of the Committee constitutes breach of natural justice. Reliance in this connection was placed on the decision in State of Orissa v. Binapani Dei, reported in AIR 1967 SC 1269. Thirdly, it was submitted by him that the IOC had been meted out unfair treatment in the sense that dual standard in the decision making process is discernible. Previously, in 2005, when the Board declined to accept the demand of the Union to prohibit employment of contract labour, it had heard both the IOC and the Union. IOC successfully contested the demand of the Union on the earlier occasion making the most of the opportunity of hearing. Similar opportunity this time, if extended, could have enabled the IOC to bring about another rejection of the Union's demand, but deprivation of such opportunity by the Board while proceeding to accept the Committee's report and to recommend prohibition of employment of contract labour (and thereby, in effect, allow the Union's demand) is unfair. Finally, he submitted that the said notification was issued under the threat of contempt of court and had not been based on consideration of the pros and cons if employment of contract labour were prohibited. Referring to the decision in Steel Authority of India Limited v. National Union Waterfront Workers, reported in (2001) 7 SCC 1, he sought to contend that regularization in service of contract labours employed by a contractor upon a prohibitory notification being issued is not automatic and, therefore, the impugned notification far from being beneficial to the members of the Union would operate to their detriment. Accordingly, he prayed that the order of the learned Judge setting aside the said notification ought to be maintained.
10. Mr. Chanda, duly assisted by Ms. Alam, learned advocate submitted that although an opportunity of hearing was given by the Board to the parties in 2005 when a similar demand of the Union for prohibition was under consideration and the same practice is followed while considering similar such issues, the relevant law does not provide, either expressly or by implication, a right of hearing before the Board. Our attention was invited to rule 12 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 (hereafter the Rules) to drive home the point that no party can claim a hearing as of right. It was thereafter contended that the Committee constituted by the Board in terms of rule 16 of the Rules had given the IOC fullest opportunity to place its case/version before it and its report was the culmination of consideration of not only the IOC's case/version but that of the Union as well apart from its own assessment of the ground reality. The satisfaction reached in this behalf, first by the Committee, then by the Board, and finally by the Govt., does not suffer from any infirmity and that no case for interference by the writ court has been set up. It was, accordingly, submitted that the writ petition itself not being maintainable on facts and law, deserves dismissal upon setting aside of the order of the learned Judge impugned in the appeal.
11. Appearing for the Union, Mr. Bhattacharya traced the source of the present litigation and echoed the submission of Mr. Chanda that there was no error in the decision making process warranting judicial interdiction. It was vehemently contended by him that there is no pleading in the writ petition in support of the point urged before us by Mr. Chowdhury that the four factors mentioned in section 10(2) of the CLRA Act had not been fulfilled or that relevant materials were not considered by the Board, prior to recommending prohibition of employment of contract labour in respect of two activities carried on in the concerned plant. According to him, the complaint voiced in the writ petition was relatable to absence of "consultation" between the Board and the Govt. and the plea of denial of natural justice had been raised feebly. Referring to the decision in L&T McNeil Ltd. v. Govt. of T.N., reported in (2001) 3 SCC 170, it was submitted that a notification under section 10 of the CLRA Act would become vulnerable to challenge if the records reveal absence of advice by the Board or if the decision of the Govt. is vitiated by non-consideration of relevant materials and non-application of mind; however, that not being the case here, the controversy raised by the IOC ought to be set at rest by allowing the appeal and dismissing the writ petition. Reference was also made by him to the decision in Indian Oil Blending Ltd. v. Union of India & ors., reported in 2005 (2) CHN 547, wherein a learned Judge refused to interfere and strike down the impugned notification on the ground that there were some materials before the Board leading to the ultimate decision prohibiting employment of contract labour.
12. In reply, Mr. Chowdhury contended that the decision in L&T McNeil Ltd. (supra) supports his contention that without examining the relevant materials and on consideration of irrelevant materials the said notification was issued. Referring to the decision in Indian Oil Blending Ltd. (supra), he submitted that such decision has been set aside by a coordinate Bench by its decision dated September 19, 2005 on MAT 2822 of 2004 and, thus, the same is of no assistance to the Union's case.
13. At this juncture, a brief reference to the decision of the coordinate bench that decided MAT 2822 of 2004 (supra) would not be inapt. Inter alia, the points that emerged before the coordinate bench for decision were whether "consultation" as referred to in section 10 of the CLRA Act is mandatory or not, and whether the Govt. is bound by the advice of the Board. We share the views expressed therein that "consultation" is mandatory and also that the Govt. is not bound to act in terms of the advice of the Board, ~ it may or may not agree with such advice.
14. Now, it would be profitable to take a look at the CLRA Act including its preamble.
One of the objects that the CLRA Act seeks to achieve is abolition of contract labour in certain circumstances. The object is, thus, not to abolish contract labour in its entirety. In 1970 when the CLRA was enacted, employment opportunities in the country were scarce and that could be one of the reasons as to why the legislation did not seek to root out the archaic practice of employment of contract labour once and for all. Not that there are enough employment opportunities today, for the contract labour system is still in vogue.
15. While upholding the constitutional validity of the CLRA Act, the Supreme Court in its decision in Gammon India Ltd. v Union of India & ors., reported in (1974) 1 SCC 596, held that the CLRA Act and the rules framed thereunder have introduced social welfare legislative measures. Paragraph 14 of the said decision being a useful guide for appreciating the provisions of the CLRA Act, is quoted below:
"14. The Act was passed to prevent the exploitation of contract labour and also to introduce better conditions of work. The Act provides for regulation and abolition of contract labour. The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated conditions of work and contemplates progressive abolition to the extent contemplated by Section 10 of the Act. Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation. The dominant idea of Section 10 of the Act is to find out whether contract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the establishment."
16. Another decision of the Supreme Court to which reference can profitably be made is the one in Sankar Mukherjee v. Union of India & ors., reported in AIR 1990 SC 532, wherein employment of contract labour by big companies was deprecated in the following words:
"6. It is surprising that more than forty years after the independence the practice of employing labour through contractors by big companies including public sector companies is still being accepted as a normal feature of labour employment. There is no security of service to the workmen and their wages are far below than that of the regular workmen of the company. This Court in Standard-Vacuum Refining Co. of India Ltd. v. Its workmen, 1960 3 SCR 466 : (AIR 1960 SC 948) and Catering Cleaners of Southern Railway v. Union of India, (1987) 1 SCC 700 (AIR 1987 SC 777) has disapproved the system of contract labour holding it to be 'archaic', 'primitive' and of 'baneful nature'. The system, which is nothing but an improved version of bonded labour, is sought to be abolished by the Act. The Act is an important piece of social legislation for the welfare of labourers and has to be liberally construed."
17. In Steel Authority of India Limited (supra), three main issues emerged for a decision by a Constitution Bench of the Supreme Court. The decision on each of the said issues has no direct bearing so far as the present controversy is concerned and hence, may not provide useful guidance. However, the Bench noticed that the history of exploitation of labour was as old as the history of civilization itself. It then proceeded to advert to the Preamble of the Constitution, Articles 23, 14 and 16 as well as the Directive Principles of State Policy [Articles 38, 39, 43 and 43-A] and ruled that in interpreting a beneficial legislation such as the CLRA Act, which was enacted to give effect to the Directive Principles, the consideration of the Court cannot be divorced from those objectives; in a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of conferment of, rather than denial, a benefit on the labour by the legislature but without rewriting and/or doing violence to the provisions of the enactment. On perusal of the Statement and Objects and Reasons of the CLRA Act, the Bench also observed that it was enacted by the Parliament to deal with the abuses of the contract labour system.
18. Bearing in mind the above, the contentions raised by Mr. Chowdhury would now fall for consideration.
19. Stricto sensu, the foundation for urging the first contention is missing in the writ petition. However, there seems to be good reason for that and we ought to be charitable in our approach. IOC claims to have sought for copies of relevant documents from the Govt. but that did not bear fruit. Possibly, the IOC had access to the report of the Committee and the other related documents for the first time when the same were annexed to the affidavit-in-opposition filed by the Govt. while dealing with the writ petition of the IOC. True it is, the IOC could have amended its pleadings but omission to seek leave for amendment of its pleadings on the face of the writ petition succeeding on the ground of absence of "consultation" is not considered fatal. Since all the documents are now before us and the parties have been given copies thereof and the crux of the controversy is revealed from such documents, we do not feel inhibited to decide the point under consideration despite the lack of necessary pleadings.
20. Section 10 of the CLRA Act ordains as follows:
"10. Prohibition of employment of contract labour.--(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (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."
The expression 'shall have regard to' appearing in sub-section (2) of section 10 must be construed as obliging the Govt. to consider as relevant, data or material, to which it must have regard; it would imply a guidance rather than a fetter.
21. The terms of reference of the Committee required it to study the working of the contract labour system in the job/works of Lube Oil Blending, Filling/stenciling, packaging sealing, loading and unloading and office work in the establishment of Lube Oil Blending Plant of the IOC afresh and to make suitable recommendation whether or not the employment of contract labour in the job/works in the said establishment be prohibited keeping in view the provisions of section 10 of the CLRA Act. Each of the four factors indicated in clauses (a) to (d) of sub-section (2), we find from the report of the Committee, exercised its consideration. The findings of the Committee were based on collation of facts and figures during a nine-month period (April to December, 2010, was the period considered by the Committee). The Committee recommended prohibition "in some area of operation like Barrel filling and small can filling (upto 1 ltr.)". Regarding clause (a), it was observed that the "process is incidental to for the main manufacturing process/operation". Insofar as clause (b) is concerned, the word 'perennial' was not used by the Committee. However, while it was observed that the work in the barrel filling section "seems to be regular", in respect of small can filling (upto 1 ltr.) the observation was that "the work load was not there for one day in a month for three months, three days in a month for one month and balance other five months the work load is equal to the No. of working days in a month". Adverting to clause (c), we find from the version of the IOC (as evident from the Committee's report) that the number of contract labour employed in the two sections (barrel and small can) works out to nearly three times the number of permanent workmen. Finally, on clause (d), it was observed by the Committee that having regard to the area of operation, to some extent, regular workmen could be accommodated based on the regular nature of work. These are undisputed facts and figures and formed the plinth of the decision of the Govt. to issue the said notification.
22. The concerned plant that the IOC owns and operates at Budge Budge is a 'lubricant plant' (paragraph 2 of the writ petition). That clause (a) of sub-section (2) of section 10 of the CLRA Act was not fulfilled has not been seriously argued. The thrust of the contentions was in respect of the other clauses. Much stress has been laid on absence of the term 'perennial' in the Committee's report. We are of the opinion that merely because the Committee did not use the term 'perennial' does not detract from the nature and character of activities or dilute the effect of activities being carried on in the concerned plant of the IOC. From the materials on record and having regard to the nature of operation in the concerned plant, more particularly that number of permanent workmen has been employed by the IOC to perform the jobs associated with filling of barrels and cans (upto 1 ltr.), which has not been disputed before us, an inference could be drawn that the activities in the barrel and can filling sections are perennial in nature. The conclusion in respect of clause (d) is based on the ground reality that there is regular nature of work and that to some extent regular whole time workman could be accommodated.
23. It cannot be gainsaid that the Board is the body which has the necessary expertise and has been entrusted by the CLRA Act to give advice to the Govt. as to whether, in certain circumstances, prohibition of employment of contract labour in any establishment or part of it is called for or not. Normally, the courts exercising powers of judicial review are loath to interfere with the decision of a body comprised of experts. However, simply because the Board is an expert body does not make its advice to the Govt. immune from judicial review; any deficiency in the decision making process (and not the decision itself), if noticed, and on satisfaction of the conditions for judicial review, it is open to the courts to interfere. But in so doing, there are limits beyond which the court ought not to stray.
24. We may usefully quote here a passage from Professor Bernard Schwartz's book Administrative Law (3rd edition). It reads:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corpn. v. FCC (444 F 2d 841) the learned author also said:
"...the reviewing court must intervene if it becomes aware ... that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making.... "
25. There are, however, certain overriding considerations that narrow the scope of judicial review. We, as constitutional court judges, are not supposed to exercise our judicial powers like a bull in a china shop. On the face of an expert body's report, which does not suffer from either grave dereliction of duty or flagrant violation of fundamental principles of law, regard and deference due to the administrative expert's views must be accorded. Also, whether to prohibit employment of contract labour or not being sort of a technical matter, it is not a matter for determination by the court and it ought to desist itself from interference with the views of the administrative experts. The expediency and necessity to exercise power for prohibiting employment of contract labour must be left to be determined by the executive authority.
26. Moving on to the contents of the Committee's report, the same does reveal that the task entrusted to it was performed in a fair and reasonable manner upon taking into consideration the rival views of the IOC and the Union. Specific findings have been returned upon consideration of the four factors mentioned in sub-section (2) of section 10. More than half of the members constituting the Board gave their individual views upon perusal of such report. Testing the process leading to the decision of the Govt. to prohibit employment of contract labour upon acceptance of the Board's advice/recommendation in this behalf on the touchstone of the principles that power is not exercised by judicial review courts in India to interfere in administrative decisions unless the same is illegal or irrational or suffers from procedural impropriety, or shocks the court's conscience in the sense that it is in defiance of logic or moral standards, we do not feel persuaded to hold that relevant materials were excluded from consideration or that irrelevant materials were considered or that there is any apparent perversity vitiating such process.
27. The first contention, therefore, fails.
28. It is now time to examine the second contention of Mr. Chowdhury that natural justice has been denied to the IOC.
29. We must preface our discussion on the point by referring to a passage from Board of Mining Examination and Chief Inspector Mines v. Ramjee, reported in (1977) 2 SCC 256. Hon'ble V.R. Krishna Iyer, J. (as His Lordship then was) speaking for the Bench, observed as follows:
"13. Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt -- that is the conscience of the matter."
30. Observance of principles of natural justice, in our view, would invariably be attracted if an enquiry or proceeding were initiated having the potential of divesting a party of an existing right, benefit or privilege or even to change an existing state of affairs to his detriment, or if any action were contemplated that would affect a citizen in his civil life (legislative action and policy decisions affecting the mass, excepted). However, importantly, the applicability of the principles has to be adjudged regard being had to the nature of right that the party could claim in the given circumstances and the effect and impact of the order on such party who claims to be affected by non-observance thereof.
31. Having regard to the scheme of the CLRA Act, as understood in Gammon India Ltd. (supra), Sankar Mukherjee (supra) and the other two decisions referred to therein, as well as Steel Authority of India Limited (supra), we are unable to persuade ourselves to agree with Mr. Chowdhury that issuance of a notification under section 10 thereof would bring about evil and civil consequences for the IOC.
32. Civil consequences are consequences that affect a citizen's civil life. The question does not arise qua the IOC. What the said notification ordains is that so long the IOC continues with its activities in the matter of barrel filling and small can filling in the concerned plant, employment of contract labour is prohibited. We have failed to comprehend how it would bring about evil consequences for the IOC. The effect of the said notification is, instead of employing contract labour, the IOC must have the same work done by permanent workmen or not at all. The IOC has urged us to undo the prohibition, which the Govt. under the CLRA Act is obliged to do and has brought about.
33. Admittedly, the CLRA Act does not provide for a hearing to be given by the relevant Advisory Board before it gives its advice or makes a recommendation to the appropriate Government for abolition of employment of contract labour. In the system of governance of the country that the Constitution of India postulates, no citizen can seek to enforce a right unless its source can be traced to the Constitution or any statute that is intra vires, or to statutory instruments in the nature of subordinate legislation validly framed by the appropriate authority answering the definition of State, or to any statutory contract, or to any custom or usage having the force of law. It is no doubt true that employment of contract labour is a practice which has been prevalent in this country for years, but indubitably it is an unfair practice intended to exploit the labour. As the Supreme Court has commented, it is an improved version of bonded labour. The CLRA Act having been enacted in the light of the baneful effects of such practice and to regulate the same wherever abolition is not possible, no principal employer employing contract labour through a contractor can legitimately claim that it has a legal right to continue to employ contract labour, and that an order/notification prohibiting employment of contract labour should be preceded by a hearing before the Board. In our view, any step taken by the appropriate Government in the direction of abolishing contract labour, which is in tune with the Constitutional scheme, cannot impact the principal employer so adversely or prejudicially that the provisions thereof have to be given a strained interpretation to include a right of hearing to the principal employer before the relevant Advisory Board makes its recommendation to the appropriate Government for issuance of a section 10 notification.
34. However, we cannot also be unmindful of the line of cases decided by the Supreme Court laying down the law that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. In other words, a statutory silence could be taken to imply observance of natural justice unless it is excluded by express words of statute or by necessary intendment.
35. There is no express exclusion of natural justice in section 10. It is, therefore, required to be considered whether natural justice is impliedly excluded or whether natural justice has to be read into the statute.
36. It is imperative for finding an answer thereto to read rule 12 of the Rules. The same, to the extent relevant for a decision by us, reads as follows:
"Disposal of business. - Every question which the Board is required to take into consideration shall be considered at a meeting, or, if the Chairman so directs, by sending the necessary papers to every member for opinion, and the question shall be disposed of in accordance with the decision of the majority:
Provided that ...."
37. A bare perusal of rule 12 reveals that two courses are open to the Board while it proceeds to consider a question arising before it. The first is to convene a meeting of the members; in the alternative, the Chairman may direct the papers to be sent to each member for his opinion. Of course, the majority opinion shall prevail while disposing of the question.
38. More often than not, the Board has to decide whether employment of contract labour in an establishment should be abolished or not. In a given situation where recourse is taken to sending the papers to each of the members for their opinion on such question of abolition and the opinion of the majority supports a particular view of answering the question, we see no scope for the Board to afford any opportunity of hearing to the principal employer. However, if the first of the two courses is adopted, although ostensibly there is a scope to give an opportunity of hearing to a principal employer but having regard to the scheme of the CLRA Act and the objects that are sought to be achieved thereby, we hold the statutory silence to negate the claim that the relevant Advisory Board's advice or recommendation should be preceded by an opportunity of hearing to a principal employer. We further hold that reading rule 12 or section 10 to include a right of hearing could have the effect of frustrating the benevolent objects that the CLRA Act seeks to achieve and any such attempt ought to be eschewed. At the same time, we are fully conscious that the appropriate Government only upon fulfillment of the four factors specified in sub-section (2) of section 10 of the CLRA Act can issue a notification under sub-section (1) thereof. Should a notification be issued without any of such factors not being fulfilled, it could become vulnerable to challenge. Since the report of the Committee appointed by the Board is a material document that the Board is most likely to consider prior to giving/making its ultimate advice/recommendation to the Govt., and in order to give the stakeholders a voice and to ensure a fair and transparent proceeding, there could be no bar for the Board and in fact, it would serve the interest of fair- play in administrative action if an opportunity were extended to them to represent against the contents of the report of the Committee while the Board proceeds to give/make its advice/recommendation to the Govt. Apart from being in accord with notions of fairness and justice, it could obliterate any apprehension that a principal employer might entertain of not being meted reasonable and just treatment.
39. Our interpretation of the CLRA Act and the rules framed thereunder is not so much of granting recognition to a right of the principal employer to be heard by the relevant Advisory Board before it advises/recommends to the appropriate Government but acknowledging, to the limited extent, that the same do not bar the Board from extending an opportunity to such principal employer to make a representation against the report of the Committee, if it is in favour of abolition, to ensure that the ultimate decision of the Government resting on the advice/recommendation of the Board passes through a procedure which is fair, reasonable and transparent, and facilitates avoidance of unnecessary litigation being generated in the future. Grant of such opportunity to the principal employer of making representation against the report of the Committee would rule out the possibility of the Board taking a decision solely on the basis of the Committee's report and the points raised in such representation, if dealt with prior to arriving at a conclusion at the end of the Board, would also enable the court to render an appropriate decision if at all the notification under section 10 of the CLRA Act were challenged before it.
40. On facts, the latter course in terms of rule 12 was resorted to. That was obviously an available course. The opinions of the members were required to reach by March 22, 2011. A sense of urgency was indeed present because of the pending contempt proceedings. Although Mr. Chowdhury was heard to submit that the Board acted in hot-haste and under some sort of pressure, we reject such submission as untenable. The Board had received opinions of ten members (including two, which were received late), all of whom spoke in one voice. The rest not having responded, presumption was correctly drawn that they too agree with the report of the Committee. This being the factual position, the said notification followed upon passing through the channels that we have noticed above.
41. Pertinently, it is not disputed that the Committee constituted by the Board heard the officials of the IOC and the representatives of the Union while it conducted an inspection of the concerned plant. The facts and figures appearing in the report of the Committee are not disputed before us. If indeed the Committee had prepared and submitted a report full of incorrect data and such report had weighed in the minds of the members of the Board to unanimously advice/recommend abolition of contract labour, the situation would have called for an intrusive scrutiny by us and may be, a remand would have been the appropriate course. Although, as observed by us above that sharing the report of the Committee and seeking comments thereon from the stakeholders is a course available to the Board to ensure fairness and transparency in its decision making process and also that in the case at hand such course was not followed, we are not inclined to make any order in that behalf. The law seems to be well settled that rules of natural justice are to be followed for ensuring substantial justice and compliance with such rules is never intended for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. Since any infirmity in the report of the Committee has not been demonstrated, the question of a remand to the Board to deliberate on the matter afresh after receiving the comments of the IOC, does not arise here.
42. The second contention of Mr. Chowdhury, therefore, stands rejected.
43. This brings us to the third contention that the Board acted unfairly by not extending an opportunity of hearing in 2011 although in 2005 similar such opportunity was extended. We feel that this a contention advanced in desperation. The right, if any, of the IOC to claim a hearing must be traceable in the CLRA Act itself and not what course of action the Board had followed earlier. Our attention has not been drawn to any provision that seeks to confer on a principal employer the right to continue with employment of contract labour although the factors for its abolition are fulfilled. The earlier demand of the Union, made sometime in the first decade of this century, was not accepted by the Govt. It reveals from the documents on record that on the earlier occasion the report of the Committee appointed by the Board projected facts and figures which were not conducive for abolition of employment of contract labour. It could be so that before acting and accepting the report of the Committee to the effect that the factors for abolition of employment of contract labour by the IOC had not been fulfilled, which the CLRA Act seeks to abolish, the Board had thought it fit to extend an opportunity of hearing to the Union. If the Union were only heard and the IOC not heard, that would have amounted to unfair treatment. To avoid such situation, the Board may have thought it fit to hear the IOC too. However, the position emanating from the subsequent report having projected facts and figures favouring abolition, and the Board having opted for the second course of action available in terms of rule 12, there was no scope to hear the IOC. Such course of action cannot obviously be faulted on the ground that hearing was previously given when the Union's demand was not accepted. The dissimilarities in factual events cannot be simply brushed aside. We view the hearing given to the IOC by the Board while it considered the Union's demand raised in 2005 to be appropriate having regard to the facts and circumstances obtaining then. Resting on our findings in relation to the second contention, we have no hesitation to hold the third contention to be equally without merit. Accordingly, it stands rejected.
44. The final contention of Mr. Chowdhury has been dealt with in paragraph 40 (supra) while dealing with his second contention and needs no further deliberation.
45. In the result, the impugned notification dated May 25, 2011 issued by the Govt. is upheld. The judgment and order under challenge stands set aside with the result that the writ petition of the IOC would stand dismissed. Consequently, the writ appeal stands allowed. However, the parties shall bear their own costs. Urgent photostat certified copy of this judgment and order, if applied, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.) (Dipankar Datta, J.) LATER:
Mr. Majumdar, learned advocate for the IOC prays for stay of operation of the order. The prayer is opposed by Mr. Bhattacharya, learned advocate for the Union.
Having considered the prayer, we find no reason to grant the same. The prayer for stay stands refused.
(Bibek Chaudhuri, J.) (Dipankar Datta, J.)