Orissa High Court
Jogendra Sabar vs Union Of India And Others on 7 December, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.23279 of 2015
In the matter of an application under Article 226 of the Constitution of
India.
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Jogendra Sabar .... Petitioner
Versus
Union of India & others .... Opp. Parties
For Petitioner ... Mr. B.S. Tripathy, Adv.
Mr. Atul Tripathy, Adv.
For Opposite Parties ...Mr. D.R. Swain, CGC
(O.P.1)
Mr. Manoj Ku. Mishra, Sr. Adv.
Mr.Tanmay Mishra, Adv.
(O.P.3)
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 07.12.2017 : Date of judgment : 07.12.2017
Dr. A.K.Rath, J By this petition under Article 226 of the Constitution of
India, challenge is made to the decision of the opposite parties 1 and
2 in prohibiting employment of contract labours in different
Departments of National Aluminium Company Limited (NALCO),
Damanjodi and for a direction to the opposite party no.3 to pay
wages to the unskilled, semi-skilled, skilled and high-skilled contract
labours working in the NALCO, Damanjodi at the rate to their
counterparts working in regular establishment.
2. Shorn of unnecessary details, the short facts of the case are
that the petitioner and other contract labours belong to the Scheduled
Tribe. They are working in different Departments of NALCO,
2
Damanjodi. They approached the Central Government for abolition of
contract labour system and regularization of their services in NALCO,
Damanjodi. There was no response. They approached this Court in
several writ petitions for abolition of contract labour system and
regularization of services. This Court disposed of the writ petitions
directing opposite party no.1 to consider the representations and
take a decision within three months. The Central Advisory Contract
Labour Board (CACLB) in its 80th meeting held on 20th & 21st
October, 2011 at New Delhi decided that all cases shall be taken up
together as one case. The CACLB considered the report of Dy.
CLC(C), Bhubaneswar and decided not to accept the report as the
issue was not examined by the Dy. CLC(C) strictly in terms of
Sec.10(2) of the Central Labour (Regulation and Abolition) Act, 1970
("CLRA Act, 1970"). Accordingly, CACLB formed a sub-committee to
study the working of contract labour system in the establishment of
NALCO, Damanjodi and to make suitable recommendations whether
or not the employment of contract labour in the jobs mentioned in
the representations of the workers union be prohibited in the said
establishment keeping in view the provision of Sec.10 of the CLRA
Act, 1970 and to submit its report within three months from the date
of its constitution. Since no decision was taken, they filed WP(C)
No.16059 of 2014 before this Court seeking a direction to the
opposite party no.2 to take a decision in the matter. The sub-
committee fixed the date of meeting on 18.9.2014. This Court
disposed of the writ petition directing the sub-committee to take a
decision in its meeting and submit a report to the opposite party
no.2. A direction was issued to the opposite party no.2 to take a
decision within two months from the date of receipt of the report of
the sub-committee. The petitioner requested the opposite party no.2
to fix a date of hearing. Opposite party no.2 assured the petitioner
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that the case would be taken up in the next Board meeting. On
receipt of the letter of intimation, the petitioner as well as affected
contract labours found that the letter addressed to Bharat Khosla
(one of the contract labourer) was communicated by the opposite
party no.2 on 13.8.2015 with a wrong pin code. The said letter was
served in the house of Bharat Khosla on 27.8.2015. On verification, it
was found that the said letter was received at Damanjodi on
25.8.2015and thereafter communicated to Mathalput for service. Besides that no letter was issued to any contract labours including the petitioner. Subsequently the petitioner and the affected contract labours ascertained from the office of NALCO that another letter dated 17.8.2015 was issued by the Under Secretary of the opposite party no.2 to all participants to attend the 86th meeting of the Board to be held on 26th-27th August, 2015 at 11.00 AM in Mumbai. But then, the letter dated 17.8.2015 was never served on the contract labours as well as the petitioner. On enquiry, it was found that the said letter was communicated on 17.8.2015 from New Delhi and was received at Damanjodi on 24.8.2015. On further enquiry, the petitioner and other affected contract labours found that the said letter was addressed to Bharat Khosla. The petitioner and other contract labours could know that the 86th meeting of the Board was over on 26th-27th August, 2015 in their absence.
3. Pursuant to issuance of notice, opposite party nos.1 and 2 entered appearance and filed a counter affidavit. Case of the opposite parties is that CACLB constituted a sub-committee to examine whether contract labour system shall be prohibited at Damanjodi. The opposite party no.3 intimated the petitioner regarding place and date of the meeting. The petitioner remained absent deliberately. The members of the sub-committee interacted with the contract labours on 28.6.2012, who are engaged in different 4 sectors of NALCO at Damanjodi and recorded their opinion. The sub- committee prepared a draft report. One of the members of the sub- committee was absent in the meeting. The report was prepared by four members out of five members. The sub-committee submitted report after personal meeting with the contract labours. NALCO has accepted the proposal given by the sub-committee regarding monthly wages of the contract labours. Further, the contract labours shall be paid at par with lowest wages of the regular employees per month. Abolition of contract labour system is the sole discretion of the appropriate Government. Opposite party no.2 has taken a decision on the report placed by sub-committee after thorough enquiry and personal interaction with the contract labours. NALCO declined to abolish the contract labour system.
4. Opposite party no.3 filed a counter affidavit stating, inter alia, that the petitioner had knowledge the date of proceeding and had not taken any step. The tracking report shows that the letter dated 17.8.2015 was served on 24.8.2015. The petitioner received the letter much prior to the date of proceeding. The work assigned to the petitioner is by way of job contract entrusted to a particular contractor in a tendering process. Opposite party while assigning the work to the successful bidder ensures that undertaking of the contracts for compliance of statutory requirements in the greater interest of the workers engaged by the contractors for the purpose of job contract. There is no privity or contractual relationship between the opposite party and the workers engaged in job contracts. The principal employer is only required to look into the standard of work. Opposite party entrusts particular job to the contract labours through contractors. In terms and conditions of the contract, the supervision of the work completely lies with the contractor. Payment of minimum wages to the contract labours are made as per the 5 circular issued from time to time under the provisions of the Minimum Wages Act, 1948. Besides minimum wages, the contract workers are paid Rs.32/- as part of wages and canteen allowance of Rs.12/- per day. The statutory and non-statutory payments like provident fund, ESI and canteen allowance are extended to them. The working hours of the workers are maintained. The work assigned to the contractor has no link with the core business of production of alumina and the main activities. The work is only anciliary and intermittent in nature. In the event the contract labour system is abolished, then it will loss of employment and livelihood to many contract labours. Opposite party no.1 has rightly decided not to abolish the contract labour system.
5. The petitioner has filed a rejoinder affidavit to the counter affidavit filed by opposite party no.3.
6. Heard Mr. B.S. Tripathy, learned counsel along with Mr. Atul Tripathy, learned counsel for the petitioner, Mr. D.R. Swain, learned Central Government Counsel for the opposite party no.1 and Mr. Manoj Kumar Mishra, learned Senior Advocate along with Mr. Tanmay Mishra, learned counsel for the opposite party no.3.
7. Mr. Tripathy, learned counsel for the petitioner submits that the letter dated 11.8.2015 was sent to Bharat Khosla by speed post. He was informed that the next date of hearing of the Board to be held on 26.8.2015 at 11.00 A.M in Mumbai with a further stipulation that the venue of the meeting would be intimated shortly. The petitioner received the letter dated 23.9.2015 and minutes of 86th meeting of CACLB. He came to know that in the absence of contract labours, the decision had been taken. No notice was served on the petitioner or other similarly circumstanced persons. There has been a deliberate attempt at the level of opposite party no.2 in issuing notice to the petitioner and other contract labours. They received the 6 notice after the date of hearing. The same is an infraction of principle of natural justice. Elaborating his submission, he submits that the notice dated 11.8.2015 was issued with a wrong pin code for which the same was received on 27.8.2015. The noticee was unable to know the venue of the meeting. Annexure-7 reveals that the letter dated 17.8.2015 fixing the venue of the Board meeting was never served on any of the contract labours including the petitioner. Because of delayed receipt of the letter dated 11.8.2015, on 27.8.2015 it was not practically possible for the contract labours to participate in the hearing which was taken up on 26th-27th August, 2015 in Mumbai. He further submits that the decision was taken in uncanny haste to denude the benefits to the contract labours. The report of the sub- committee recommending not to prohibit engagement of contract labours in NALCO, Damanjodi was adopted unilaterally. The contract labours in all the Departments of NALCO have been working in various categories like unskilled, semi-skilled, skilled and high- skilled, but the Board has suggested that unskilled labour engaged by the contractor at NALCO, Damanjodi in the Departments be paid at par with the lowest wage paid to a regular unskilled worker per month. The said decision was not in respect of semi-skilled, skilled and high-skilled contract labours. The same is the outcome of non- application of mind. The recommendation so far as the minimum wages at par with unskilled regular employees is required to be modified in the interest of justice and fair-play. He further submits that the abolition of contract labour system has been made in all the departments of NALCO in respect of its unit at Angul whereas the contract labours working in the establishment of NALCO, Damanjodi for more than two decades have not been regularized.
8. Mr. D.R. Swain, learned CGC and Mr. Mishra, learned Senior Advocate reiterated the stand taken in the counter affidavit.
79. The CACLB constituted a sub-committee consisting of five members on 6.1.2012 to examine whether contract labour system shall be prohibited in NALCO, Damanjodi. The terms of reference was to study the working of contract labour system in the jobs/works of Civil Maintenance Department, Horticulture Department, Sanitation Department, Central Store in Material Department, Mechanical Maintenance Department in the establishment of M/s. NALCO Damanjodi and to make suitable recommendations whether or not the employment of contract labour in the above jobs/works in the said establishment be prohibited keeping in view the provisions of Section 10 of the CLRA Act, 1970. The file containing the proceedings of the sub-committee (produced in Court in course of hearing) shows that the members of the sub-committee went to Damanjodi to study the matter on the terms of reference. Except one of the member, other members were present at HRD Centre, NALCO, Damanjodi on 27.6.2012. The management of NALCO and other contract labours had been informed to be present at the venue on 27.6.2012 at 9.30 A.M. None of the labours or the union leaders came for interaction with the sub-committee. The committee decided to visit each individual unit and interact with the workers to ascertain the factual position. On 28.6.2012, the committee members tried to contact the workmen of the Horticulture Department, Civil Maintenance Department, Material Department (Central Store) and Sanitation Department. On 27.6.2012 and 28.6.2012, the sub-committee went to the spot and interacted with the contract labours. The sub- committee prepared a draft report holding, inter alia, that there is no need to prohibit the engagement of contract labours. The Secretary, CACLB sent a letter on 11.8.2015, vide Annexure-6, to Bharat Khosla intimating him that the report of the sub-committee will be discussed in the next meeting of CACLB Board on 26.8.2015 at 11 A.M in 8 Mumbai. The Secretary, CACLB had also issued notice, vide Annexure-7, on 17.8.2015 intimating about the Board's meeting in Mumbai to be held on 26th - 27th August, 2015 to all the participants as per list attached of the representatives of Workers/Employers/Management/Ministries/ Departments. The CACLB in its 86th meeting held on 26th - 27th August, 2015 recommended to the Central Government not to prohibit employment of contract labour in the jobs/works of Horticulture Department, Civil Maintenance Department, Material Department (Central Store), Sanitation Department and Mechanical Maintenance Department in the establishment of M/s. NALCO, Damanjodi. Pursuant to the recommendation of CACLB, the Government of India, Ministry of Labour and Employment accepted the recommendation of CACLB not to prohibit employment of contract labour in the jobs/works of Horticulture Department, Civil Maintenance Department, Material Department (Central Store), Sanitation Department and Mechanical Maintenance Department in the establishment of M/s. NALCO, Damanjodi.
10. In his inimitable style, Justice Krishna Iyer in Chairman, Board of Mining Examination & another v. Ramjee, AIR 1977 SC 965 proclaimed that "natural justice is no unruly horse, no lurking land mine, 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 9 jurisdiction. No man shall be hit below the belt--that is the conscience of the matter".
11. Judged on the touchstone of the decision of the apex Court in the case of Ramjee (supra), this Court is of the unhesitant opinion that the sufficient opportunity has been provided to the management, trade union and the contract labours by the sub- committee. The CACLB in its 86th meeting held on 26th - 27th August, 2015 accepted the report of the sub-committee and recommended to the appropriate Government not to prohibit employment of contract labours in the jobs/works of Horticulture Department, Civil Maintenance Department, Material Department (Central Store), Sanitation Department and Mechanical Maintenance Department in the establishment of M/s. NALCO, Damanjodi. The decision taken by the appropriate Government can not be dubbed as arbitrary warranting interference of this Court. As a sequel to the above discussion, the writ petition is dismissed. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 7th December, 2017/Pradeep