Jharkhand High Court
Indian Iron & Steel Co. Ltd. Etc. vs Union Of India (Uoi) And Ors. on 7 February, 2002
Equivalent citations: (2002)IIILLJ603JHAR
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT
The Court
1. These Letters Patent Appeals under Clause 10 of the Letters Patent have been filed against the judgment dated 22.02,2001 passed by the learned Single Judge in C.W.J.C. No. 745 of 2001 whereby the learned Single Judge has dismissed the writ application filed by the appellant, thus upholding the correctness, legality and validity of the impugned notification issued on 22.12.2002, in terms of Section 10(1) of the Contract Labour (Regulation & Abolition) Act, 1970. The judgment under challenge in these appeals being very very short is reproduced herein below :
"22.2.2001. Heard the parties.
The petitioner has challenged the notification dated 27.12.2000 issued by Govt. of India in exercise of the power conferred under Section 10(1) of the Contract Labour (Regulation & Abolition) Act. 1970, whereby the employment of contract labour for raising and breaking of iron-ore in the establishment of Manohar-pur Mines of Steel Authority of India Ltd. has been prohibited.
It appears that matter was fully considered by the Advisory Board and thereafter this decision has been taken. In my opinion, such job under the contract labour for raising and breaking of iron ores ought to have been prohibited immediately after the country got independence. However, of late, the Government act accordingly. I am not inclined to interfere with the notification. This writ application is accordingly dismissed."
2. The text of the notification under challenge in these appeals reads thus :
"In exercise of the powers conferred by Sub-section (1) of Section 10 of the Contract Labour (Regulation & Abolition) Act. 1970 (37 of 1970), the Central Govern-
ment, after consultation with the Central Advisory Contract Labour Board, hereby prohibits the employment of contract labour in the jobs/works of raising and breaking of iron ore in the establishment of Manoharpur Mines of Steel Authority of India Limited, Chiriya, Dist. Singhbhum [West). Bihar with effect from the date of publication of this notification in the Official Gazette-"
3. Relying upon a very recent Constitution Bench Judgment of the Supreme Court in the case of The Steel Authority of India Ltd. v. National Union Waterfront Workers, reported in 2001 (7) SCC 1, the learned senior counsel for the appellants has made a twofold submission with regard to the correctness of the judgment of the learned Single Judge. He contended that first and foremost the impugned notification suffers from a basic defect of a vital jurisdictional nature, inasmuch as it was not issued by the appropriate Authority as defined in Section 2(l)(a) of the aforesaid 1970 Act and secondly that it did not meet with the requirements as contemplated under Section 10 of the Act. in as much as the notification did not suggest or indicate that the appropriate Government had considered the parameters of, and the requirements contained, in Section 10 before ordering prohibition of the Contract Labour in Manoharpur Mines of the Steel Authority of India Limited.
4. On the question of 'appropriate government', the learned counsel for the appellants urged that in the case of The Steel Authority of India Ltd. v. The National Union Waterfront Workers, (supra), the Supreme Court by culling out various principles and some relevant guiding factors has now held by an authoritative pronouncement that in a case like the present one the appropriate Government is the State Government in as much as the establishment in question is not being carried on by or under the authority of the Central Govt. He in particular on this aspect, referred to the guiding principles as summarised in para 46 of the Judgment reported in 2001 (7) SCC 1.
5. On the question of the impugned notification suffering from non-compliance of the requirements of law as contained in section 10 of the Act the learned counsel referred to the observations of their Lordships of the Supreme Court contained in Paragraphs 52 and 53 of the aforesaid judgment in Steel Authority of India Limited (SAIL) and submitted that since the impugned notification on the face of it did not meet with the aforesaid mandatory requirements and binding principles, it was invalid and illegal on the said grounds alone.
6. Since we propose to dispose of these appeals only on the basis of the second ground of attack vis-a-vis, the impugned notification, we refrain from answering the first question raised by the learned counsel for the appellants in these appeals, viz. that the notification has not been issued by the "appropriate Government". On this question we do not propose to offer our comments or express our views. We leave that question unanswered.
7. Section 10 of the Contract Labour (Regulation & Abolition) Act. 1970 reads thus :
"10. 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 whole-time 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."
8. On what should be the requirements for issuing a notification under Section 10 of the Act, the Lordships in the Steel Authority of India Ltd. had the following to say :
"52. Now, reading the definition of 'establishment' in Section 10 the position that emerges is that before issuing notification under Sub-section (1) an appropriate Government is required to (i) consult the Central Board/State Board; (ii) consider the conditions of work and benefits provided for the contract labour; and (iii) take note of the factors such as mentioned in Clauses (a) to (d) of sub-section (2) of Section 10, referred to above, with reference to any office or department of the Government or local authority or any place where any industry, trade, business, manufacture or occupation is carried on......"
9. Since the Steel Authority of India Ltd. was dealing with a notification issued on 9.12.1976 and the observations their Lordships made with respect to that notification vis-a-vis the stated position of law, might be very pertinent to our case, it shall be advantageous to reproduce (herein below) the aforesaid notification dated 9.12.1976 which reads thus :
"S.O. 779(E).--In exercise of the power conferred by sub-section (1) of Section 10 of the Contract Labour (Regulation & 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 1.3.1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate Government under the said Act is the Central Government.
Provided that this notification shall not apply to the outside cleaning and other maintenance operations of multi- storeyed buildings where such cleaning or main-
tenance operations cannot be carried out except with specialised experience."
10. On the question of applicability of the guiding factors as contained in and the para-meters as emanating from Section 10 vis-a-vis the aforesaid notification dated 9.12.1976 their Lordships thus had the following observations to make :
"A glance through the said notification makes it manifest that with effect from 1.3.1977, it prohibits employment of contract labour for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishment in respect of which the appropriate Government under the said Act is the Central Government. This clearly indicates that the Central Government had not adverted to any of the essentials, referred to above, except the requirement of consultation with the Central Advisory Board. Consideration of the factors mentioned above has to be in respect of each establishment, whether individually or collectively, in respect of which notification under Sub-section (1) of Section 10 is proposed to be issued. The impugned notification apart from being an omnibus notification does not reveal compliance with Sub-section (2) of Section 10. This is ex facie contrary to the postulates of Section 10 of the Act. Besides, it also exhibits non-application of mind by the Central Government. We are, therefore, unable to sustain the said impugned notification dated 9.12.1976 issued by the Central Government."
11. Now, applying the aforesaid principles, the ratio and the well explained proposition of law, when we examine the correctness and the validity of the impugned notification dated 27.12.2000 (impugned before us) we find that, as in the notification dated 9th December. 1976, there is a mention in the impugned notification of the Government having consulted the Central Advisory Contract Labour Board. Not only that, additionally, in the notification dated 27th December. 2000, unlike in the notification dated 9th December, 1976, the description of the establishment has also been given. This notification clearly suggests that it is with respect to Manoharpur Mines of the Steel Authority of India Limited. Chiriya, Dist. Singhbhum (West). But the Similarities end there; or the similarities continue further? Let us examine.
12. Like the notification dated 9th December, 1976 the impugned notification (dated 27th December. 20001, does not at all say, suggest or reveal that the 'appropriate Government' complied with Sub-section (2) of Section 10 of the 1970 Act and whether it considered the questions relating to the conditions of work and the benefits provided for the contract labour and as to whether it took note of any of the factors mentioned in Clauses (a) to (d) of Section 10(2) of the Act and if so, which one of these factors (as mentioned in the said clauses (a) to (d))? On these aspects, the notification is silent.
13. The Supreme Court in The Steel Authority of India Ltd. (supra) had opined and held that a notification issued under Section 10 of the Act should reveal compliance with Sub-section (2) of Section 10 of the Act. When their Lordships of the Supreme Court laid down that such notification should reveal compliance of Sub-section (2) of Section 10, it clearly means that the notification on the face of it must be suggestive and indicative of the fact that the appropriate Government has, inter alia, consulted the Advisory Board, had also regard to the conditions of the work and the benefits provided for the contract labour in the establishment in question, and that based on one or the other of the relevant factors as contained in Clauses (a) to (d), it was of the opinion that the contract labour in that establishment was required to be prohibited.
14. Since their Lordships of the Supreme Court had taken a view that the notification itself, on its face, in its text, must reveal the compliance of the aforesaid mandatory requirements, no attempt by the appropriate Government in explaining the compliance of such requirement, either through the medium of a counter affidavit or with the aid of contemporaneous record would meet with the mandatory requirements of Section 10 of the Act. The notification, therefore, does not, on the face of it, reveal such compliance. There is error of law apparent on the face of the notification. On this simple legal ground the notification being invalid deserves to be declared as such.
15. Since we are quashing the notification on the aforesaid ground of non-compliance of Section 10 of the Contract Labour (Regulation & Abolition) Act. 1970, and on no other ground (we have not considered any other ground), we refrain from expressing any opinion with respect to any other question. Specifically and particularly so, we refrain from expressing any opinion about any question relating to the 'appropriate Government' and leave this question open.
16. For the foregoing reasons, these appeals are allowed; the judgment under challenge in these appeals is set aside and the impugned notification dated 27th December. 2000 is quashed and set aside on the ground of it not complying with the requirements of Section 10 of the Act as specifically mentioned herein-above.
17. Needless to say that the quashing of the impugned notification on the aforesaid ground would not and cannot operate as a bar to the 'appropriate Government' issuing a fresh notification, if so advised, but after complying with the requirements of law and following the procedures as prescribed.
18. We have been informed that in C.W.J.C. No. 1290 of 1996(R) and C.W.J.C. No. 435 of 1996(R), a Single Bench of this Court vide judgment dated 6.2.1998 hats issued mandamus to the Central Government to consider the question of issuance of the notification in terms of Section 10 of the Act and that it was in compliance of the aforesaid direction issued by the learned Single Judge in that Judgment that the impugned notification dated 27th December. 2000 came to be issued. Since we have quashed and set aside the impugned notification and further because of the ratio in the case of Steel Authority of India Ltd.. we have left the question of 'appropriate Government' undecided in this particular case, we do wish to observe and direct that the aforesaid direction by the learned Single Judge of this Court in the aforesaid-judgment dated 6.2.1998 shall be read as being subject to this judgment.