Andhra HC (Pre-Telangana)
K. Butchi Reddy And Others vs Central Administration Tribunal, Hyd. ... on 22 January, 2001
Equivalent citations: 2001(2)ALD241, 2001(2)ALT166, [2001(89)FLR972]
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. SINHA, CJ
1. This writ petition is directed against a judgment dated 16-6-2000 passed by the Central Administrative Tribunal in OS No.261 of 1999 whereby and whereunder the petitioners' application was dismissed. Bereft of all the unnecessary details, the basic fact of the matter is as follows:
2. A notification purported to be under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 (the Act, for brevity) was issued on or about 9-12-1976, which is to the following effect:
"In exercise of the powers conferred by sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition Act, 1970 (37 of 1970), the Central Government after consultation with the Central Advisory Contract Labour Board, hereby prohibits employment of contract labour on and from the 1st March, 1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the Act is the Central Government:
Provided that this notification shall not apply to the outside cleaning and other maintenance operation of multi-storied buildings where such cleaning or maintenance operations cannot be carried out except with specialised experience".
3. A contractor was appointed by the Defence Research Development Laboratory (DRDL, for short). The petitioners, who are 59 in number, along with others appear to have been appointed by the Contractor in the year 1986. The petitioners filed an application before the learned Tribunal in terms of Section 19 of the Administrative Tribunals Act praying for a direction to the respondents to absorb them as regular employees of the DRDL with effect from the date of their respective joining in services. The learned Tribunal inter alia held that (1) there is no relationship of master and servant between the Laboratory and the applicants; (2) as they have been working since 1986 onwards, a presumption must be raised that the Contractor was appointed in relation to the work which comes within the purview of the proviso appended to the aforementioned notification dated 9-12-1976; and (3) in a decision of this Court dated 21-12-1999 in WPNo.15186 of 1999 while setting aside an order of the Tribunal in M. Sudhakar Reddy v. Union of India, in OA No.1485 of 1996 dated 9-12-1998, it was directed that :--
"However, the petitioner's organisation is directed that if in future any project is entrusted to them and if the services of the respondents-workers herein are required, they may be engaged in service on priority basis before going to open market. The services of the respondents-workers herein be continued if they are required by the petitioners organisation", which is binding.
4. Mr. P.B. Vijayakumar, the learned Counsel appearing on behalf of the petitioners inter alia submitted that having regard to the decision of the Apex Court in Secretary, Haryana Electricity Board v. Suresh , the impugned order must be set aside and a direction should be issued by this Court directing absorption of the petitioners in the services of the 3rd respondent herein.
5. The Act was enacted not only to prohibit employment of contract labour but also to regulate the same. Section 10 of the Act reads thus:
"70. 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 wholetime 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."
6. There cannot be any doubt whatsoever that after coming into force of the said Act; it is the appropriate Government, alone which can issue a notification in terms of the aforementioned provision. A Court exercising the power of judicial review or even a High Court or the Supreme Court cannot direct the appropriate Government to issue such a notification.
7. This aspect of the matter is no longer res-integra having regard to the decision of the Constitution Bench of the Supreme Court in M/s. Gammon India Limited v. Union of India, .
8. We are not, however, oblivious of the fact that the Apex Court in Air India Statutory Corporation v. United Labour Union and others, , inter alia held that on issuance of a Notification under Section 10 of the Act, all the contract labourers in the services of the principal employer should be directed to be abolished.
9. We may, however, note that the correctness of the above decision of the Apex Court has been doubted in two decisions in Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha, and FCI and others v. Transport and Dock Workers Union, and the matter is pending consideration before a larger Bench.
10. But in a different situation workmen had been held to be entitled to be treated as employees of the principal employer in a recent decision of the Apex Court in Indian Petrochemicals Corporation Ltd v. Shramik Sena, . However, in the said judgment it was held-
"At this stage, it is necessary to note another argument of Mr. Andhyaujina that in view of the fact there is no abolition of contract labour in the canteen of the appellant's establishment, it is open to the management to manage its canteen through a contractor. Hence, he contends that by virtue of the contract entered into by the management with the contractor, the respondent-workman cannot be treated as the employees of the management. This argument would have had some substance if in reality the management had engaged a contractor who was wholly independent of the management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workman in this case are in the fact the workmen of the management".
11. However, having regard to the factual matrix involved in this writ petition, it is not necessary for us to go into the larger question having regard to the fact that the applicants-writ petitioners had utterly failed to show that the contractor was appointed in violation of the terms contained in the notification dated 9-12-1976.
12. In any event, the writ petitioners on their own showing do not come within the four corners of the dicta laid down in Air India Statutory Corporation (supra). Apart from the fact that the learned Tribunal has arrived at a finding of fact to the effect, which is not questioned before us, that the petitioners having not been appointed to do any job which is perennial in nature or which is covered in terms of the principal portion of the notification dated 9-12-1976 and not under the proviso appended thereto, no relief could be granted to the petitioners by the Tribunal.
13. Furthermore, we are of the opinion that only because a notification under Section 10 of the Act has been issued, the contract labourers who were appointed subsequent to the coming into force of the said notification, cannot be directed to be absorbed, as the Supreme Court in Air India Statutory Corporation (supra) has specifically laid down the law that only those contract labourers who were working at the time of issuance of the said notification could be directed to be absorbed in the establishment of the principal employer.
14. Furthermore, in the event the petitioners contend that the appointment of the contractor is a mere facade or smoke and screen, the remedy of the applicants-writ petitioners would be to raise an Industrial Dispute in this regard. Neither any writ petition under Article 226 of the Constitution of India before this Court nor any application under Section 19 of the Administrative Tribunals Act before the Tribunal would be maintainable in this regard;
15. The decision in Suresh (supra) has no application in the facts and circumstances of this case and in fact it runs counter to the submission made by the learned Counsel for the petitioners. Therein an Industrial Dispute was raised. The Industrial Court having regard to the materials brought on record arrived at a finding of fact that the appointment of the contractor was merely a smoke and a screen of the principal employer. The Apex Court applying the doctrine of 'lifting of the veil' arrived at a finding of fact to the effect that the concerned contract labourers were in truth and substance were employees of the principal employer. As indicated herein before, such a finding of fact can be arrived at by an appropriate Industrial Court only in the event an ID is raised in terms of the provisions of the Industrial Disputes Act, 1947.
16. It may be that in Suresh (supra), certain observations have been made. Those observations, with utmost respect were rendered per incuriam.
17. In Dias on Jurisprudence, Fifth Edition at page 143, it is stated-
'Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. Rationes and dicta tend to shade into each other. The former have law-quality and are binding on lower Courts; dicta, too, have law quality but are not binding at all. Vis-a-vis a higher Court even the ratio decidendi of a lower Court decision has only persuasive force like that of a dictum. It has been pointed out that some dicta are so authoritative that the distinction between ratio and dictum is reduced to vanishing point. Dicta, which have no force, are propositions stated by way of illustration or on hypothetical facts. Greater difficulties attend rulings of law which are subsequently relegated to the status of dicta by interpretation. The distinction in such cases between ratio and dictum is but a device employed by subsequent Courts for the adoption or rejection of doctrine expressed in previous cases according to the inclination of the Judges. An example would be the treatment of Lord Atkin's neighbour proposition in subsequent cases'.
17. In Salmond on Jurisprudence 12th Edition, page 29, it is stated-
'One of the essential features of the doctrine of precedent in the common law is that rules of law are developed in the very process of application. This means that they are created by Judges and not by teachers and other academic lawyers. However, learned they may be. It also means that they are created by Judges only when acting as Judges i.e., when deciding cases and not for example when giving lectures or other addresses; statements made by Judges in their extra-judicial capacity, like other extra-judicial opinions, are without binding authority. For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides.
In the course of his judgment, however, a Judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situation and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by Counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision. Or again, having decided the case on one point, the Judge may feel it unnecessary to pronounce on the other points raised by the parties, but he may nevertheless want to indicate how he would have decided these points if necessary. Here again we are not given the Judge's final decision on a live issue, so that once more it would be unwise to endow it with as much authority as the actual decision. These observations by the way, obiter dicta are without binding authority, but are nonetheless important; not only do they help to rationalise the law but they serve to suggest solutions to problems not yet decided by Courts. Indeed dicta of the House of Lords or of Judges who were masters of their fields, like Lord Blackburn, may often in practice enjoy greater prestige than the rationes of lesser Judges."
19. In CIT v. Sun Engineering Works (P) Limited, , Dr. A.S. Anand, J (as the learned Judge then was) stated the law in the following terms:
"..... It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court....."
20. In Jaya Sen v. Sujit Kr. Sarkar, 2000 (1) ILR A & N 145, it was held :
"It is now well know that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process (See Quinn v. Lealhain [(1990-1903) AER (Rep.)1], Krishna Kumar v. Union of India ), Commissioner of Income Tax v. Sun Engineering Co., Ltd., , Regional Manager v. Pawan Kumar Debey, and Municipal Corporation of Delhi v. Gurnam Kaur [1988(1) SCC 101)."
21. It is also a settled law that a decision is not an authority on a point which was not argued (See Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, .
22. The Apex Court in Madyamik Siksha Parishad v. Anil Kumar Mishra, , has categorically held that a person's services cannot be directed to be regularised only because he has put in 240 days of continuous service in a year. The said provision contained in Section 25-F of the Industrial Disputes Act was meant to be applied for the purposes confined thereto and not for any other purpose. It was held-
"The assignment was an ad hoc one which anticipatory spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularisation. It merely imposes a certain obligation on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here".
Unfortunately, the said binding precedent was not brought to the notice of the Apex Court in Suresh (supra).
23. We may notice that even in this jurisdiction a learned single Judge of this Court in Y. Prabhakar Rao v. ONGC, , upon noticing Air India Statutory Corporation (supra) and other decisions inter alia held-
".... Except abolition of the contract labour system which is the exclusive domain of the appropriate Government, other factual aspects have to be agitated and tried by adducing evidence. However, this Court in similarly situated circumstances in WP No.13551 of 1997 and batch dated 24-9-1998 observed that the dispute raised in all the writ petitions as to the nature of the job, a particular petitioner was discharging, would be a matter, prima facie this Court cannot decide in a writ jurisdiction....."
24. The Calcutta High Court, however, has also taken the same view in the case of Canteen employee in a fact situation where a contractor had been engaged in Sri Raj Kumar Sardar v. Union of India, 1999 (1) Cal.LJ 125, the Indian Iron and Steel Co., Ltd. v. United Contract Workers' Union, 100 CWN 171, Dhananjay Jana and others v. Union of India, 1998 (3) SLR 472 and Kishan Jawanjal and others v. Steel Authority of India Limited, 1999 (4) SLR 532.
25. There cannot be any doubt whatsoever that the Contract Labour (Regulation and Abolition) Act, 1970 is a beneficial statute but a statute although may be construed in favour of the beneficiary but only to the extent such benefit is intended to be conferred and not beyond the same (see Regional Director Employees' State Insurance Corporation, Trichur v. Ramanuja Match Industries, ).
26. Furthermore, a Court normally while interpreting a beneficial legislation may not go to the extent of making a law. In Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Limited, , the Apex Court while holding that Article 137 of the Limitation Act, 3963, in relation to a proceeding under Section 33-C(2) of the industrial Disputes Act is not applicable, held-
"It is not the function of the Court to prescribe the limitation where the Legislature in its wisdom had thought it fit not to prescribe any period. The Courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the Legislature".
27. In Prem Narayan Barchhiha v. Hakimuddin Saifi, , while considering the provision of a Rent Control Legislation it was held that while seeking to ironing out the creases a violence to the language or rewriting the clause which is far beyond the object of the Act is impermissible.
28. Having regard to the aforementioned decisions, the writ petition is not maintainable and it is accordingly dismissed.
No costs.