Calcutta High Court
Indian Oil Blending Ltd. vs Union Of India (Uoi) And Ors. on 26 July, 2004
Equivalent citations: 2005(2)CHN547, (2005)IIILLJ425CAL
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. The present writ petitioner is a company by the pen of the Senior Plant Manager of the same. He has been described as the Constituted Attorney of the same. In the said writ petition, the company has thrown a challenge in respect of a notification dated 13th July, 1998 issued by the Director General, Labour Welfare, Government of India under which employment in the petitioner company of the contract labour in the works or jobs of loading, unloading and carrying empty and filled drums and raw materials was prohibited by applying Section 10(1) under Contract Labour (Regulation and Abolition) Act, 1970. According to the petitioner company, a Committee was formed for the purpose of recommendation to the appropriate Government in exercise of the power conferred under Section 5 of the Contract Labour (Regulation and Abolition) Act, 1970, in terms of reference hereunder :
"To study the working of contract labour system is loading and unloading, carrying empty drums, and raw materials etc. in Indian Oil Blending Ltd., Calcutta and keeping in view the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 to make suitable recommendation whether or not the employment of contract labour in Indian Oil Blending Ltd., Calcutta should be prohibited".
2. Chief Personnel, Coal India Limited and a representative of Trade Union Bharatiya Mazdoor Sangh and a Regional Labour Commissioner (Central) were the members of such Committee.
3. Such Committee studied the viability and furnished a report by saying that the Committee unanimously came to the conclusion that in view of the working system of IOBL factory at Calcutta the job of loading, unloading, carrying empty and filled drums and raw materials etc., through contract labour system, deserved no consideration for abolition. Although the report was said to be unanimous but the representative of the Union, not being present, did not sign in such report and forwarded his dissenting note subsequently in the form of a letter to the Secretary of the Central Advisory Contract Labour Board. Incidentally, Central Advisory Contract Labour Board formed a Committee through the pen of the Joint Director and Secretary. The Central Advisory Contract Labour Board, Government of India, Ministry of Labour, made an in-depth study on the basis of various enquiries and ultimately recommended to the Government that the policy of contract labour in the petitioner company in the jobs of loading, unloading, carrying empty and filled drums and raw materials should be abolished and in that way accepted the dissenting note of the representative of the Union. At the time of consideration of the report of the Committee, the Board found that the representative of the Union was absent from the meeting and deferred the meeting for due consideration of the report but subsequently in absence of the representative of the management accepted the dissenting note of the representative of the Union. However, following the recommendation of the Board a notification was issued on 13th July, 1998 and the employment of the contract labour was prohibited from the aforesaid works of the company. Such issuance of notification was challenged under the present writ petition in the year, 2000 and the Rule was obtained from the competent jurisdiction of this High Court as far back as on 22th March, 2000. Such writ petition was subsequently dismissed and again restored. At the present moment, it is lying with an application being CAN 5117 of 2004 for the purpose of obtaining the interim order in respect of the notification dated 13th July, 1998. Such application was filed on 22nd June, 2004, This Court feels that since the affidavits were exchanged in the main writ petition, and no interim order was passed in the year, 2000 in respect of a notification of the year, 1998, now at this belated stage such prayer for interim order should not be allowed but the writ petition is to be heard. Accordingly, parties argued at length on that score.
4. Mr. Arijit Chowdhury, learned Senior Counsel, appearing for the petitioner company, contended that basically three pertinent points are available in the writ petition for the purpose of due consideration. Firstly, no chance of hearing was given to the petitioner before the Advisory Board or the Central Board. Secondly, no materials were available before the Board to abolish the contract labour. Thirdly, the Board had no authority to differ with a majority decision. By citing a judgment reported in 2001(3) SCC 170, L & T Mc Neil Ltd. v. Government of Tamil Nadu, he stated that when notification was vitiated because of non-consideration of materials such notification would have to be quashed.
5. According to Mr. Chowdhury, if the Rules 12 and 16 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 are followed then two very important aspects of the matter will be obtained. Firstly, as per Rule 12 decision will be taken as per the majority view and secondly, as per Rule 16 the Board may constitute a Committee.
6. Mr. Madhusudan Dutta, learned Counsel appearing for the Union, contended that scheme of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 does not say that the appropriate Government will be bound by the report of the Committee and cannot differ with the recommendation of the Board. Secondly, whatever considerations are made as a question of fact that cannot be investigated in the writ petition. He cited two judgments to establish his aforesaid two points. A judgment reported in 2000(2) LLJ 1541, Tata Engineering & Locomotive Co. Ltd. v. Singhbhum Thekedar Mazdoor Sangh, Jamshedpur and Ors., whereunder a Division Bench of Patna High Court held that if the decision to prohibit/abolish contract employment depends on several factors and if it would not be a worthwhile decision without expert advice, this does not mean that the opinion of the Board should be treated as final and the Government will be bound to maintain it. It only obliges the Government to decide the matter with due regard to the conditions of the work and the benefits available to the contract labour in the establishment and other factors which are mentioned therein. At the time of tendering its advice the Advisory Board also should give due regard to these very considerations but the decision in the matter has to be taken by the Government. An advice, after all, is an advice and unless the context in which it is tendered suggests otherwise it cannot be binding on the authority. If it is so, where advice tendered by the Board is fractured it would be open to the party to accept the minority advice in preference to the majority advice. He further cited the Supreme Court decision reported in 2001 LAB. IC 1073, Barat Fritz Werner Ltd. etc. etc. v. State of Karnataka, whereunder Supreme Court held two important aspects in respect of the report/advice of the Board. It has held that what is required to be done by the Government in this regard is to consult with the Board and it does not mean that the Government is bound by the advice given by the Advisory Board. Further, it has held that matter was also taken note of by the Government in reaching its conclusion and hence assuming that the Advisory Board's proceeding was in conclusive will not materially affect the decision of the Government.
7. Therefore, according to me, there is neither any binding effect of the report of the Committee or the Board upon the Government nor the Government is empowered to differ with the Board in coming to the conclusion.
8. So far as the other referred judgment reported in AIR 1981 SC 789, P. Kasilingam v. P.S.G. College of Technology, is concerned it has only dealt with transgressing the jurisdiction of the High Court under Article 226 in the merit.
9. But by now, it has reached, to a settled position. The basic points are whether the principle of natural justice has been violated or whether there was no material available before the Committee or Board in coming to the conclusion. I am agreeable with the submission of Mr. Dutta that furnishing of the report alleged to be the majority view is sufficient material for the purpose of due consideration by the appropriate Government. Moreover, further enquiries were conducted by the Board and the hearings were given. Whether one was present at the time of forwarding the report or not, cannot be said to be non-hearing of the parties nor that the finality is reached without being backed by materials. The report of the Committee was considered by the Board. Board forwarded the majority view and also the dissenting view to the Government for the purpose of taking of a decision. The Government has taken the decision. It is to be noted hereunder that when the Government is not bound by the report of the Committee or the Board, it cannot be said whether it will take the majority view or the minority view. My reading of Rule 12 does not speak so. It speaks that the Board can take a decision on the majority view. No such case made out that neither the Board nor the Committee has taken the majority view. The only question relevant for the purpose of due consideration herein is whether there is any binding effect of such view/s on the Government or not. According to me, the Government is not bound by any of the reports irrespective of majority or minority. Assuming for the moment a majority view is to be taken against a minority view but when the appropriate Government is empowered to take his independent view in an administrative matter, unlike the judicial system, it will study the viability of all the views and come to a conclusion. Therefore, the Court cannot direct the appropriate Government to accept a view in the above circumstances.
10. So far as the Union of India is concerned, Mr. Dinesh Chandra Roy, learned Counsel has raised a very valuable question. He contended that the petitioner is a Government company covered by the Article 12 of the Constitution of India. This company is directly controlled by the Petroleum Ministry of Union of India. The decision regarding prohibition of the contract labour is taken by the Ministry of Labour, Government of India. Therefore, in effect, two Government authorities are fighting before the Court of Law not only by wasting public time but also by wasting public money. In such type of controversy it is appropriate either to refer the matter to the Cabinet Secretary for the purpose of necessary discussion amongst the two Ministries for coming to a conclusion or to refer the matter to the Cabinet. The petitioner has not chosen to opt any of such steps before coming to the Court of Law. He cited two decisions on that score. In a judgment reported in 1992 Supp. (2) SCC 432, Oil and Natural Gas Commission and Anr. v. Collector of Central Excise, the Supreme Court has, on more than one occasions, pointed out that public sector undertakings and the Union of India should not fight litigations among themselves in the Court by spending money towards the Court-fees, procedural expenses and by wasting public time, Courts are made for appropriate litigations. Court's time is not to be consumed in the litigations which are carried on either side at public expenses. In the judgment reported in 1995 Supp. (4) SCC 541, Oil and Natural Gas Commission and Anr. v. Collector of Central Excise, it was again held following the ratio of the judgment reported in 1992 Supp. (2) SCC 432 (supra).
11. In reply, Mr. Chowdhury contended that this is not a dispute as regards two Ministries or the public sector undertakings of the two Ministries or public sector undertaking of one Ministry directly with other Ministry with the Union of India. It is a dispute between the management, employee and the Government. Therefore, third party's involvement is there and as such logic as shown by the learned Counsel on behalf of the Union of India cannot be accepted.
12. I cannot agree with the submission of Mr. Chowdhury because the case of abolition or non-abolition of contract labour in an industry is a matter of policy of the Government backed by various reports. It is correct to suggest that instead of invoking the jurisdiction of this Court the point could have been finally resolved by the Government much before the due disposal of the legal proceeding before this Court. Incidentally, as against the query of the learned Counsel appearing for the Union of India I do not find any affidavit of competency available in the record on behalf of the deponent who made this writ petition before this Court.
13. So far as the submission of Union is concerned Mr. Chowdhury contended that careful consideration of the report which was made earlier cannot be the true interpretation of the Supreme Court judgment in respect of the availability of the materials in the judgment reported in 2001(3) SCC 170 : AIR 2001 SC 844 (supra). The Supreme Court held that upon careful perusal of the files it had not found any further or fresh material to reach to a conclusion one way or other. In absence of the advice of the Board and in absence of other materials, therefore, the decision of the Government in issuing the notification under Section 10(1) of the Act is, thus, vitiated by non-consideration of relevant materials.
14. According to me, the Supreme Court, at the time of hearing the appeal from an order of the High Court itself considered the availability of the materials of the files and came to a conclusion on the basis of the facts and circumstances therein. Therefore, such type of investigation, by the Supreme Court itself in a particular matter, cannot have any binding effect upon the High Court as a matter of principle. The principle is when there is no evidence the High Court under Article 226 of the Constitution of India can interfere with it but when some materials are available it can not interfere with it. If the factual aspects of the matter are taken into account I am not be able to find any rhyme or reason to come to a conclusion that no material was available before the Government to come to an appropriate conclusion about issuance of notification. It may be said that instead of taking the majority view the minority view has been taken. But it may not be said, in view of other judgments, that the Government is bound by any of the views irrespective of the majority or minority. When it appears to this Court that the Board had not shown any disrespect to the majority view but both the views were forwarded to the appropriate Government and the appropriate Government has taken a different view by accepting the minority view, the Government cannot be forced by this Court to accept the other view. Independently I find there are various materials for the purpose of due consideration for coming to a logical conclusion by the Government. So far as the question of natural justice is concerned, it is dependent upon various circumstances to come to a finding in what way the natural justice is violated. Therefore, the question of violation of natural justice is either in terms of the reference or in taking majority view. But there cannot be any violation of natural justice when only two view points, both majority and minority, were forwarded to the Government alter long two years of the issuance of notification by the Government. I fail to understand what prevented the petitioners to proceed for negotiation with the appropriate Government within such time on the basis of principle as laid down by the Supreme Court on that score. Therefore, it appears to me, that it is a chance application.
15. Accordingly, I dismiss this writ petition. Rule, if any, stands discharged. Considering the point that direction of payment of costs will ultimately affect the public exchequer directly or indirectly, I do not propose to pass such order of dismissal with costs. Therefore, no order is passed as to costs. CAN application being CAN 5117 of 2004 is formally treated as dismissed.
16. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties within two weeks from the date of putting the requisites.