Orissa High Court
Bijay Kumar Jena And Ors. And Banambar ... vs Union Of India (Uoi) And Ors. on 26 August, 1999
Equivalent citations: [2000(85)FLR239], (2000)ILLJ609ORI, 1999(II)OLR530
JUDGMENT R.K. Dash, J.
1. National Aluminium Company (for short. 'NALCO') a Government of India undertaking at Angul, has two units, namely, Smelter Plant and Captive Power Plant for generation of electric energy for its own consumption. The petitioner in both the writ petitions are the security personnel engaged in these two units by the contractor, namely, Investigation and Security Services (India) Private Ltd., opposite party No. 7. They have prayed for issuance of a writ of mandamus directing the management of NALCO, the principal employer, to declare them as the employees of NALCO consistent with the nature of duties they have been discharging in different capacities. Both the writ petitions were, therefore, heard analogously and are disposed of by this common judgment.
2. Shortly, stated, the petitioners' case is that Investigation and Security Services (India) Private Ltd., opposite party No.7, is a licensee under the Contract Labour (Regulation and Abolition) Act, 1970 (for short, 'the Act') and engages large number of security personnel in various industries. These petitioners-belonging to the said security services have been deployed in the two units of NALCO as security personnel since many years. The duties performed by them being permanent and perennial in nature, they approached the authorities of NALCO several times to declare them as its regular employees. Due to their persistent demand the Government of Orissa in Labour and Employment Department vide Notification dated April 9, 1991 prohibited employment of contract labour in security services in NALCO. Despite such prohibition, the authorities of NALCO allowed the contractor-opposite party No. 7 to engage the petitioners as contract labourers in security service without paying them the remuneration as is being paid to their counterpart in the regular establishment. Finding no other alternative, the petitioner submitted representation to declare them as regular employees belonging to security service of NALCO but nothing was done to ameliorate their grievances. Hence they have filed the present writ petitions praying for the present writ petitions praying for the relief as indicated earlier.
3. The management of NALCO and its officials, opposite parties 3 to 6, on being noticed, filed their return. Admitting that part of the petitioners' case that the petitioners have been engaged as security personnel through the contractor, opposite party No. 7 in the two units of NALCO, it is urged that there being no master and servant relationship in between them and the NALCO, they cannot be declared as regular employees of the latter. They have further urged that since security service requires well trained and disciplined security personnel, the Central Industrial Security Force (for short, 'CISF') has been constituted under the Industrial Security Force Act, 1968 and the management of NALCO has taken steps to induct the personnel from the said security force in gradual process by replacing the present security arrangement, their further seek to that investigation and Security Services (India) because as rendering security services to various public sectors as well as private sectors. The said organisation is having its headquarters at Hyderabad in Andhra Pradesh. The petitioners being the employees of the said organisation, the management of NALCO has no control over them and does not pay their remuneration/ salary. In the above factual backdrop petitioners are not entitled to the reliefs as claimed by them.
4. Opposite parties 7 and 8 in their counter affidavit have pleaded inter alia that opposite party, a limited company registered under the Companies Act, is having its registered office at Hyderabad. The petitioners are its employees and having acquired special training have been engaged to render service as security personnel in both the units of NALCO. Their remuneration and other statutory benefits are being paid by the Company. The State Government by notification dated April 9, 1991 prohibited employment of contract labour in NALCO and these opposite parties along with some of the petitioners challenged the validity of the said notification in OJC No. 3249 of 1992 which was ultimately quashed. In the above view of the matter, the Company being the immediate employer of the petitioners, the latter cannot claim absorption as regular employees of NALCO.
5. Shri S. Palit, learned counsel for the petitioners contended that security service rendered by the petitioners for years together is permanent and perennial in nature which requires full time workmen to be employed in both the units of NALCO. The management instead of absorbing them in the regular employment, has started recruiting CISF personnel in their place. In that view of the matter, the Court should come to their aid and keeping in view the decision of the Apex Court rendered in National Federation of Railway Porters, Vendors and Bearers v. Union of India and Ors. (1995-II-LLJ-712) (SC) a report may be called for from the State Labour Commissioner as to whether all the factors prohibiting employment of contract labour as envisaged in Sub-section (2) of Section 10 of the Act are satisfied. If the report suggests for such prohibition, the Court in exercise of power conferred by Article 226 of the Constitution may direct the Management of NALCO for absorption of the petitioners as regular employees.
6. Shri B. Rath, learned counsel appearing for the Management, on the other hand, submitted that deployment of security personnel in the two Units of NALCO has been undertaken by drawing trained hands from the CISF and within a period of 10 years 583 CISF personnel have been deployed. The petitioners came to be engaged through the licensed contractor, opposite party No. 7 as there was no adequate number of staff available in the CISF, Shri Rath further urged that the petitioner after being replaced by the CISF personnel, will not be without any employment, because the contractor is having its establishments throughout India and the petitioners can be accommodated anywhere.
7. The undisputed factual position emerging from the pleadings of the parties is that the management of NALCO, the principal employer, is a registered establishment and the Investigation and Security Services (India) Private Ltd., opp. party No. 7, is a licensed contractor under the Act and the security service rendered by the petitioners through opposite party No. 7 for quite a long time is of a perennial nature. It is also admitted that Labour and Employment Department, Government of Orissa, in exercise of power conferred by Sub-section (1) of Section 10 of the Act prohibited employment of contract labour in the work of security service of NALCO by notification dated April 9, 1991, the validity of which came to be challenged by opposite party No. 7 and others in this Court in OJC No. 3249 of 1992. A Bench of this Court to which one of us (Hon'ble R. K. PATRA, J.) was a member, by judgment dated September 28, 1993 quashed the said notification, since all the factors provided in Sub-section 1 of Section 10 of the Act were not taken into account by the subcommittee while recommending prohibition of engagement of contract labour.
8. The Act was enacted with the object to regulate the contract labour system in order to prevent exploitation of the workers. It provides for both regularisation and abolition of contract labour. The abolition can be made in those establishments where possible and practicable and where it cannot be abolished, the Act makes provision regulating the conditions of work, payment of wages and other essential amenities of the contract labour. Despite there being statutory protection with regard to employment, wages and other benefits, the contract labourers are being treated as bonded labourers. Because they are illiterate and are not united, they are ignored and they suffer a lot. They are exploited not only by the contractors, but also by the principal employer. State owned Corporations/Undertakings where large number of contract labourers are employed, honour the provisions of the Act more in breach than in observance, and do not take steps to abolish the contract labour system in the work which is perennial in nature and absorb and regulairse the services of the labourers. Ultimately they knock the door of the Court for justice. This case is a glaring example where the Management of NALCO, a Central Government Undertaking, has taken decision to throw out the petitioners lock, stock and barrel of their employment by engaging CISF personnel in their place. It is not the case of the Management that the petitioners are not well trained and have exhibited lack of sincerity in discharge of the duties entrusted to them. The notification abolishing contract labour system having been quashed by this Court, the Management of NALCO, a registered employer under the Act, ought not to have, in utter violation of law, undertaken engagement of CISF personnel in the security service. It is expected that the Management of NALCO, a Central Government Undertaking, should be a model employer and strictly adhere to the provisions of the Act in order to protect the interest of the contract labourers. The security service admittedly being of a perennial nature, the Management should have moved the Government afresh for abolition and after it is so abolished, steps should have been taken for absorption of the petitioners in the said work as regular employees. Instead, it started abolishing contract labour system in contravention of the provisions of the Act by engaging CISF personnel in regular service. We do not appreciate and approve such action of the Management.
9. In view of the above, the question now arises whether the Court in exercise of power under Article 226 of the Constitution can pass appropriate order to regularise the services of the petitioners in the security service of NALCO in spite of there being no abolition under Section 10(1) of the Act.
10. We have stated earlier that the main factors for abolition of contract labour in the establishment of NALCO are satisfied. It stands admitted that security service rendered by the petitioners is of perennial nature and is necessary for both the units of NALCO. The only material lacking is the number of employees required for being engaged on regular basis. Shri Palit relying upon the decision of the Apex Court in Railway Porters (supra) contended that a report from the State Labour Commissioner in the light of the said decision may be obtained for determining the question of regularisation of services of the petitioners.
11. In Railway Porters (supra) the petitioners who were working as Railway Parcel Porters in Railway Stations of Northern Railway, North Eastern Railway and Eastern Railways as contract labour prayed for issuance of a direction to the Union of India and its Railway Administration for their permanent absorption on regular basis in terms of the decision made in Writ Petition No. 227 of 1988. Considering the nature of prayer, the Court by order dated November 30, 1992 directed the Assistant Commissioner (Labour), Central Government at Lucknow to conduct an inquiry as to whether the petitioners as porters had been working continuously and whether the work was a perennial source and the requirements of Section 10 of the Act were satisfied. Pursuant to the said direction, the Assistant Commissioner held an inquiry and submitted report in the affirmative. In view of such report and relying upon the decision in R.K. Panda v. Steel Authority of India : (1997-III-LLJ (Suppl)-1202) (SC) the Court directed the Union of India and its Railway Administration for absorption of the petitioners working on contract labour as regular Railway Parcel Porters in the respective railway stations. The principle decided in the aforesaid case was followed in Air India Statutory Corporation v. United Labour Union and Ors. : (1997-I-LLJ-1113) (SC). The Court also referred to and relied upon the decision in R. K. Panda (Supra). Their Lordships held that even if there is no prohibition of employment of contract labour under Section 10(1) of the Act, the High Court in exercise of power under Article 226 of the Constitution can give suitable direction to absorb the contract labour as regular employees. The relevant observation made in the aforesaid judgment is extracted hereunder :
" x x x This ratio is an authority for several propositions. In spite of there being no report by the Advisory Board under Section 10(2) and no prohibition under Section 10(1) of the Act was enforced and this Court directed to absorb them within the guidelines laid down in the judgment. This ratio also is an authority for the proposition that the jurisdiction of the Court under Article 32, pari materia with Article 226 which is much wider than Article 32 'for any other purpose' under which suitable directions are required to be given based on factual background, x x x"
In view of the authoritative pronouncement of the Apex Court, we would hold that in the facts and circumstances of a particular case, this Court would be well within its jurisdiction to direct the principal employer of an establishment to absorb the contract labour on regular basis even if there is no abolition of contract labour as provided in the Act.
12. Having given our anxious consideration to the admitted facts as borne out from the pleadings of the parties, and keeping in mind the law laid down by the Apex Court, we direct the Labour Committee (Central). Bhubaneswar to conduct an inquiry after due notice to the parties and submit his report within six months on the following points :
(1) Number of contract labourers with their designation, age, date of entry and total period of engagement in the security service of both the units, viz. Smelter Plant and Captive Power Plant of NALCO;
(2) Requirement of total number of security personnel in different cadres/posts to be employed on regular basis.
The matter be listed in the 1st week of February, 2000 to pass further order after receipt of the report from the Labour Commissioner (Central), Bhubaneswar.
R.K. Patra, J.
13. I agree.