Calcutta High Court
Sujan Banerjee And Ors. vs Union Of India (Uoi) And Ors. on 7 September, 2000
Equivalent citations: (2001)IILLJ470CAL
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT
1. The appeal and the stay application were taken up for hearing together having regard to the fact that the matter involves a short question of law. The appellants/writ petitioners who were 16 in number filed a writ application claiming, inter alia, the following reliefs:
"a) A writ of and/or Order and/or direction in the nature of Mandamus do issue commanding and/or directing the respondents authorities to regularise and/or absorb the petitioners in the service of the customs authorities for the post of Entry Data Operator in respect of the petitioners No. 1 to 15 and Peon in the case of petitioner No. 16 and to act in accordance with law;
b) A writ of and/or Order and/or direction in the nature of mandamus do issue commanding and/or directing the respondents No. 1 and 2 to consult with the Central Board under the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 for prohibition of employment of contract labour in the job undertaken by the petitioners which is perennial nature in the establishment of the respondent No. 13, by notification in the Official Gazette and to direct for regularisation and or absorption of the petitioners in the service of the respondent following the decision of the Hon'ble Supreme Court reported in (Air India Statutory Corporation v. United Labour Union Ors. ) followed by the decision reported in Secretary, Haryana State Electricity Board v. Suresh and Ors. and to act in accordance with law;"
2. The petitioner Nos. 1 to 15 were initially appointed as Data Entry Operators and petitioner No. 16 as peon. They had been deployed in. International Air Complex (Import and Export Division) of Calcutta Customs at Netaji Subhas Chandra Bose International Airport. Admittedly, the matter relating to electronic data interchange system was entrusted to Computer Maintenance Corporation Limited, which in turn had entered into an agreement with the respondent No. 6 at the first instance and then with the respondent No. 5 herein. The respondent No. 5 herein accepts the petitioners as its own employees. The terms and conditions of such employment are:
"1. You will be paid a gross salary of Rs. 2100/- per month consisting as follows:
Basic Pay Rs. 1260 H.R.A. Rs. 300 Conveyance allowance Rs. 350 Tiffin allowance Rs. 190 Normal Deductions as per Company Rules will be effected. 2. PF, ESI coverage will be provided as per rules. 3. You will be paid Bonus as per Bonus Act subject to maximum of Rs. 2,100/-.
4. This is a transferable job and we may transfer you to any part of India giving you 7 days' notice.
5. Your appointment can be terminated by giving one month's notice from either side.
6. Please confirm by placing your signature on the copy of this letter that you have clearly understood that you will remain a staff number of our organisation only, and at no point of time there will be any employer employee relationship of yours with our valued customer/client CMC Limited."
3. Some of petitioners were transferred to Chichira Check Post as Data Entry Operators on or about June 23, 2000, whereafter the instant writ application has been filed.
4. The learned Trial Judge, having regard to an earlier judgment passed by a learned Judge of this Court in Sk. Jahangir Ali and Ors. v. Calcutta Port Trust, reported in 1999-II-LLJ-381 (Cal), inter alia, held that the writ application was premature.
5. Mr. Majumdar, learned counsel appearing on behalf of the appellants herein has strenuously contended that having regard to the fact that Customs Department is a model employer, they cannot be permitted to violate the provisions of the Contract Labour (Regulation & Abolition) Act, indirectly. Learned counsel would urge that although the provisions of the said Act are applicable, the first and the third respondents had systematically been violating the same, and even the contractors are not registered in terms of the provisions. It was submitted that having regard to the fact that the job is perennial in nature, the first and the third respondents herein were statutorily obliged as model employer to do the job departmentally by abolishing the contract labour. Strong reliance has been placed in this connection in Munna Khan and Ors. v. Union of India and Ors., reported in 1989 Suppl. (2) SCC 99.
6. Mr. Ghosh, learned counsel appearing on behalf of the respondent No. 5, on the other hand, submitted that the application filed by the appellants herein was a mala fide, inasmuch as, they indirectly questioned an order of transfer by raising a plea of non-compliance of the provisions of the said Act. According to the learned counsel, having regard to the definition of the terminologies 'contractor' and 'workman' as contained in Section 2(c) and 2(i) of the said Act, the provisions of the said Act cannot be said to be applicable in relation to the job in question.
7. Mr. Sengupta, learned counsel appearing on behalf of the respondent No. 4 further submitted that the contention of Mr. Majumdar is contrary to the stand taken before the learned trial Judge. According to the learned counsel, even if the provision of the said Act are held to be applicable, there cannot be any doubt whatsoever that the appellants herein are obligated to approach the appropriate Government at the first instance for issuance of a notification in terms of Section 10 of the said Act.
8. From the prayers made in the writ application, and particularly the prayer (f), it appears that the main purpose of the writ petitioners was to obtain an order of stay so far as the order of transfer dated June 23, 2000 is concerned. It further appears from prayer (b) that the writ petitioners intended to take benefit of the decision of the Apex Court in Air India Statutory Corporation v. United Labour Union, . As rightly submitted by Mr. Sengupta, from the order under appeal, it appears that before the learned trial Judge it was conceded that so long as a notification under Section 10 of the Act is not issued, the writ petitioners cannot get the reliefs mentioned in prayer (a), wherefor, leave was sought to be obtained to approach the appropriate Government for issuance of a notification under Section 10(1) of the Act having regard to the decision of this Court in Sk. Jahangir Ali (supra).
9. The rival contentions raised by the learned counsel clearly show that there exists a serious dispute with regard to the applicability of the provisions of the said Act. Even for the sake of argument if it be accepted that the provisions of the said Act would be applicable, there cannot be any doubt whatsoever that the said Act being a self-contained Code, a writ petition will no be maintainable for directing the Central Government to abolish contract labour. A Constitution Bench of the Apex Court in Gammon India Ltd. v. Union of India and Ors., has categorically held that after coming in force of the said Act, it is for the appropriate Government alone to issue an appropriate notification in this regard. The decision of the Apex Court in Munna Khan (supra) must be considered having regard to the decision of the Constitution Bench. In the said case, the provisions of the Railway Manual provided for abolition of contract employment wherefor a scheme had already been made. The Apex Court in. exercise of its jurisdiction under Article 142 of the Constitution of India could issue a direction directing the Central Government to issue an appropriate notification under the said Act and also direct the railway administration to consider the desirability of abolishing the contract labour itself during the intervening period. Having regard to the law laid down by the Constitution Bench of the Apex Court in Gammon India Ltd. (supra), we are afraid that having regard to the fact that no such provision exists in the instant case, the question of issuing such a direction does not arise. Air India Statutory Corporation (supra) ex facie has no application in the instant case, inasmuch as, therein the Apex Court has categorically held that the right of a contract labour to be absorbed in the service of the principal employer comes into being only upon issuance of a notification under Section 10 of the Act. In the instant case, not only no such notification has been issued, but no step in aid thereof has been taken by the appellants. It may be noticed that the correctness of the said decision is pending consideration before the Apex Court [See 1999(5) SCC 54].
10. This aspect of the matter has been considered by one of us in Raj Kumar Sardar v. Union of India, reported in 1999(1) CLJ 125.
11. Mr. Majumdar also placed reliance upon latest decision in the case of Secretary: Haryana State Electricity Board v. Suresh and Ors., . The said decision is also not applicable in the instant case. Therein, the Tribunal and consequently the Apex Court arrived at a finding of fact that the appointment of contractor by the employer was a facade and a smoke and screen and thus, there existed a direct relationship of employer and employee between the principal employer and the contractor's labourers. A decision, as is well known, is an authority for the proposition which it decides and not what can logically be deduced therefrom.
12. An industrial workman, in the event, prays for regularisation and/or absorption of service has only two remedies. First, if it is contended that in truth and substance he is an employee of the principal employer and a contractor has been appointed by the principal employer merely by way of a facade, an industrial dispute can be raised and in the event such a reference is made by the appropriate Government, Industrial Tribunal can arrive at a finding of fact that there exists a relationship of employer and employee between the principal employer and the contractor's labourers. Secondly, in the event the contractor's labourers are of the opinion that having regard to the perennial nature of the job a prohibition should be issued with regard to employment of contract labour, having regard to Gammon (supra), they will have to approach the appropriate Government which may on arriving at its satisfaction and upon compliance of the formalities laid down in Sub-section (2) of Section 10 of the Act, including Clause (d) thereof, may issue an appropriate notification in this regard. Thus, we have no doubt in our mind that the writ application filed by the appellants herein for the reliefs prayed for, was not maintainable, particularly in view of the stand taken by them before the learned Judge.
13. For the reasons aforementioned we do not find any merit in this appeal and both the appeal and the application are dismissed, but in the facts and circumstances of this case, there will be no order as to costs.