Andhra HC (Pre-Telangana)
Oil And Natural Gas Corporation ... vs N. Satyanarayana And Ors. on 21 January, 2003
Equivalent citations: 2003(3)ALD711, (2003)IIILLJ289AP
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. In this batch of writ petitions filed by Oil and Natural Gas Corporation Limited, Krishna Godavari Project, writs of prohibition are sought against the Central Government Industrial Tribunal-cum-Labour Court from proceeding with the adjudication of the cases filed by the respective contract labour arrayed as respondent No. 1 in each of the writ petitions.
2. Since the reliefs claimed in all the writ petitions are identical, they are disposed of through this common judgment.
3. It is averred in the affidavits filed in support of the writ petitions that the petitioner is a Central Government Company engaged in the activities of exploration and exploitation of Oil and Natural Gas and that it has its offices and establishment in the Krishna Godavari Basin, with headquarters at Rajahmundry.
4. It is their contention that the work involved in the project is not confined to any particular place and that it keeps on changing depending on the availability of Hydro Carbons at various places. The work at a particular place is of relatively shorter duration. While its main activity is carried out through highly qualified technical personnel, the intermittent works like providing security arrangement for field staff etc., are performed through contracts. One such contract was awarded to Godavari Industrial Workers Maintenance and Supervise Co-operative Society, Rajahmundry/the 2nd respondent.
5. The Government of India, Ministry of Defence has issued directions, through the Ministry of Industries and other associated Ministries to the effect that the security work being given on contract by the Public Sector Undertakings should be entrusted only to the societies or agencies established by Ex-Servicemen, recognised and sponsored by the Director General of resettlement of Ex-Servicemen. Further, there were also allegations against the 2nd respondent-society to the effect that it was indulging in large scale exploitation of workers and misappropriation of provident fund contributions by resorting to forgeries etc. It was on account of these two reasons that the labour contract with the 2nd respondent was not renewed after 30.6.1997.
6. The 2nd respondent filed W.P. No. 12190/1997 in this Court seeking a declaration that the workers engaged by it for performing the work with the petitioner should be treated as regular employees of the petitioner and that the services of such employees cannot be terminated unilaterally, and thereby deprive them of their livelihood. The writ petition was dismissed through order dated 22.6.2000 holding that once the labour contract between the petitioner and the 2nd respondent had expired on 30.6.1997, the 2nd respondent was under obligation to withdraw the labour deployed by it under that contract. It was also held that there was no termination disengagement of the contract labour on account of notification issued under Section 10 of the Contract Labour (R&A) Act (for short "CLRA Act"). However, it was left open to the concerned contract labour to work out the remedies.
7. The respective workers have filed cases under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short the "I.D. Act") before the Industrial Tribunal, the 4th respondent, against the writ petitioner and respondent No. 2, the Society which engaged them and the 3rd respondent, Ex-Service and Resettlement Co-operative Society seeking a direction to the petitioner to reinstate them with full back wages from the date of termination i.e. 1.7.1997. It was the contention of the contract labour that they were engaged as the contract labour as Security Guards/Supervisors from 1.3.1989 and that they were disengaged with effect from 1.7.1997. They further contended that the engagement of contract labour as watchmen was prohibited by the Central Government by issuing a notification dated 9.12.1976 in exercise of powers under Section 10(1) of the CLRA Act and as such they shall be deemed to be workmen of the petitioner. Consequently, the termination of services without following the procedure under Section 25-F of the I.D. Act was illegal and they were entitled to be reinstated into service.
8. It was their further contention that though they were appointed as security guards and Supervisors, they were entrusted with the functions of Typists and Clerks. Referring to the notification dated 8.9.1994 issued by the Central Government under Section 10 prohibiting the employment of contract labour in various kinds of works including Typists and Clerks, they pleaded that in view of the said notification they were entitled to be absorbed into the service of the petitioner.
9. In the counter-affidavits filed in these writ petitions by the contract labour, it is contended that the writ petition of prohibition is not maintainable in as much as there was no inherent lack of jurisdiction in the 4th respondent. It is their contention that they have approached the Tribunal under Section 2-A (2) of the I.D. Act and their rights and entitlements are to be decided by it. Any plea as to the maintainability of the petitions or merits of the claim has to be adjudicated by the Tribunal. It is their case that such adjudication is permissible in view of the judgment of the Supreme Court in Steel Authority of India (Sail) v. National Union Waterfront Workers and Ors., .
10. Sri E. Manohar, the learned Senior Counsel appearing for the petitioner submits that, on their own showing, the petitioners before the Industrial Tribunal were contract labour engaged by the 2nd respondent herein for watch and ward duties, and that the contract was not extended beyond 30.6.1997. It is his contention that there did not exist any notification under Section 10 of the CLRA Act to warrant any consideration of the cases of the contract labour. He further submits that the notification dated 9.12.1976 was held to be contrary to law by Supreme Court in SAIL and even otherwise, the relief contemplated under Air India Statutory Corporation v. United Labour Union, , could have been available to the contract labour only if a notification under Section 10(1) of the CLRA Act to be issued when the labour contract was in vogue. As regards the notification dated 8.9.1994 issued by the Central Government, the learned senior Counsel submits that the same does not refer to the employment of Security Guards/Supervisors and the plea of the contract labour that they were assigned the works of Typewriting and Clerkage was only an attempt to put their cases within the purview of that notification.
11. It is his further contention that Section 2-A(2) of the I.D. Act which is introduced through A.P. amendment has a very limited application. According to him, it is only the workmen who are engaged by an Industry and whose services are discharged, dismissed, retrenched or terminated that can invoke the extraordinary procedure and that by no stretch of imagination, it is available to a contract labour, particularly in view of the unequivocal pronouncement of the Supreme Court in SAIL that an automatic absorption of a contract labour working in an establishment cannot be implied even in the event of issuance of a notification under Section 10 of the CLRA Act. He submits that the adjudication that is referred to in the various judgments of the Supreme Court including the one in SAIL as regards the rights of the contract labour, is of industrial disputes as defined in Section 2(k) and referred to by the appropriate Government under Section 10 of the I.D. Act. It is in this context, the learned Senior Counsel submits that the labour Court lacked jurisdiction to entertain the petitions presented by the contract labour and contends that the writ of prohibition is maintainable.
12. It is also his contention that even the A.P. State amendment, by inserting Sub-section (2) of Section 2-A of the I.D. Act, did not empower any workman straightaway to approach the labour Court or Industrial Tribunal. According to him, though it was not necessary to await any reference by the appropriate Government, the workmen were under obligation to approach the employer and it is only when the employer refuses or fails to respond to such representation within the stipulated time, that the workmen can approach the labour Court. In this context, he refers to the Form 2k-4 prescribed by the A.P. Rules for presentation of dispute under Section 2-A(2) and the non-compliance with the same by the contract labour. He relied upon several decisions of the Supreme Court and this Court in support of his contention, be it as regards maintainability of the writ petition or interpretation of the provisions of the I.D. Act and CLRA Act.
13. Sri Vedula Venkataramana, the learned Counsel for the contract labour raised an objection as to the maintainability of the writ petition. According to him, the Industrial Tribunal cannot be said to be lacking jurisdiction to adjudicate such disputes. It is his contention that the Supreme Court, even after overruling the judgment in Air India's case, held in SAIL, at more places than one that the rights of the contract labour are to be adjudicated by the labour adjudicator and that being the situation, writ of prohibition cannot be maintained.
14. He submits that from the point of view of the provisions of I.D. Act and CLRA Act, there is no distinction between the regular workmen on the one hand and the contract labour on the other. According to him, both of them stand on the same footing. It is also his case that once an application is made under Section 2-A(2), language of that very provision mandates that the same shall be treated as a reference under the provisions of the I.D. Act. He too has relied upon the judgments of the Supreme Court and this Court in support of his contention.
15. In view of the submissions of the learned Counsel for the parties, the following principal issues fall for consideration:
(a) Whether there existed any legal and factual basis for the contract labour to file applications under Section 2-A(2) of the I.D. Act before the 4th respondent/Tribunal ?
(b) Whether the writ of prohibition is maintainable in the facts and circumstances of the case against the 4th respondent/Tribunal ?
16. The petitioner had entered into a contract with the 2nd respondent for providing security to its establishment and workmen. The contract was entered into in the year 1989 and thereafter it was being renewed from time to time. The 2nd respondent in turn, had engaged a number of contract labour to perform its contract with the petitioner. The contract was not renewed beyond 30.6.1997. The petitioner had shown two reasons for the same. The first reason was that the Government of India had issued instructions to its Public Section Undertakings to entrust the security work on contract basis to the societies or agencies established by Ex-Servicemen. The second reason was that there were certain allegations as to irregularities and misappropriation of funds by the 2nd respondent.
17. The 2nd respondent filed W.P. No. 12190/1997 for a writ or order "declaring that all the employees purported to have been employed on contract basis by it were regular employees of the ONGC and in any event the management cannot unilaterally terminate the contract at their will and pleasure".
18. After considering the contentions raised on behalf of contract labour and the petitioner herein, the writ petition was dismissed through order dated 22.6.2000 with the following observations:
"Under these circumstances, I am of the view that the petitioners are not entitled for the relief as prayed for. Accordingly, the Writ Petition is dismissed.
However, I leave it open to the concerned employees to take resource to the appropriate forum, if they so chooses".
19. It was in this context that the contract labour have approached the Industrial Tribunal by filing petitions. In their petitions filed under Section 2-A(2) of the I.D. Act they have referred to the relevant facts relating to their having been engaged by the 2nd respondent herein and the discontinuance of contract. Ultimately they prayed as under:
"The petitioner therefore prays that this Hon'ble Court may be pleased to direct the Respondent-1 to reinstate the petitioner with full back wages from the date of termination i.e., 1.7.1997, continuity of service and all other attendant benefits. The respondent-1 may also be directed to pay the difference in salary from 1.3.1989 to 30.6.1997 bonus, incentives, annual increments and other benefits as were paid to regular employees and pass such other order or orders as this Hon'ble Court deems fit and proper in the interest of justice".
20. In as much as the industrial disputes are raised by individual contract labour, they filed the same under Section 2-A(2) of the I,D.Act, 1947.
21. Under the scheme of the I.D. Act, 1947 as it originally stood, it was only the disputes as defined under Section 2-k that were contemplated to be conciliated or adjudicated, as the case may be, by the agencies created under that Act. By and large, such disputes concern the workmen in the industry in general or as to their service conditions. The dispute in relation to an individual workman did not constitute an industrial dispute as defined under Section 2(k). It was in this context, Section 2-A was inserted through an amendment in the year 1965. Section 2-A reads as under:
"Section 2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute :--Where any employer discharges, dismisses, retrenches or otherwise terminates the. services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute."
22. The purport and implications of Section 2-A has been explained by the Supreme Court in Rajasthan S.R.T. Corporation v. Krishna Kant, as under:
"By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2-A. Section 2-A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that- to give an example- if a workman is reduced in rank pursuant to a domestic enquiry, the dispute raised by him does not become an industrial dispute within the meaning of Section 2-A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2-A."
23. Therefore, even where the dispute relates to only an individual workman, it is compatible under the I.D. Act to raise an industrial dispute and for adjudication of the same. The instances of such dispute relating to an individual workman that can be treated as industrial dispute are, however, limited to the instances of discharge, dismissal, retrenchment or termination. All these are the various descriptions of the same incident namely: the cessation of employment of the workmen with the industry. For any other matter concerning the industrial workman espousal by union is necessary to render it an individual dispute. Cessation, of whatever description, presupposes the existence of relationship of employer and employee or master and servant.
24. The question as to whether a contract labour can be treated as a workman, in the context of the I.D. Act was debated in several cases. The learned Counsel for the first respondent places reliance upon the judgments of the Supreme Court in Basti Sugar Milk v. Ram Vijagar, AIR 3964 SC 355 and Hussainbhai v. Alath Factory, .
25. In Basti Sugar Mills, it was held that the contract labour or workmen within the meaning of Section 2(z), being persons employed in the industry to do manual work for reward and that they were employed by a contractor with whom the employer had contracted in the course of conducting the industry for execution of the work. It was ultimately summed up by stating that such employees are workmen and the industry is the employer as defined under the relevant provisions of the I.D. Act. In Hussainbhai's case the Supreme Court took the view that even though there did not exist any direct relationship between the contract labour and the industry, yet, if on examination of various factors governing the employment, it is evident that the real employer was the industry, such contract labour are entitled to be treated as the workmen of the industry.
26. This question was extensively discussed by the Supreme Court in SAIL. The issue was framed as under:
"Whether, on a contractor engaging contract labour in connection with the work entrusted to him by a principal employer, the relationship of master and servant between him, (the principal employer) and the contract labour emerges."
27. The Constitution Bench reviewed the various decided cases on the subject, including Maharashtra Sugar Mills v. State of Bombay, AIR 1951 SC 313, Shivanandan Sharma v. Panjab Bank, , Basti Sugar Mills v Ram Vijagar (supra), Saraspur Mills Ltd. v. Ramanlal Chemanlal, , and Hussainbhai Alath Factory (supra). It was ultimately held that the contention that by virtue of engagement of the contract labour by the contractor in any work or in connection with the work of an establishment, the relationship of master and servant is created between the principal employer and the contract labour, cannot be accepted. It was also observed that what is true of a workman could not be true of contract labour. This being the final word on the subject as on today, the contention of the learned Counsel for the contract labour cannot be accepted.
28. The claim for absorption has always been as a consequence of issuance of notification under Section 10(1) of the CLRA Act. The question as to whether there existed such a notification in the present case for pressing such a claim is a different thing altogether. Even in cases where such a notification is issued, the consequences are enlisted by the Supreme Court in para 68 of the judgment in SAIL as under:
(1) contract labour working in the establishment concerned at the time of issue of notification will cease to function;
(2) the contract of principal employer with the contractor in regard to the contract labour comes to an end;
(3) no contract labour can be employed by the principal employer in any process, operation or other work in the establishment to which the notification relates at any time thereafter;
(4) the contract labour is not rendered unemployed as is generally assumed but continues in the employment of the contractor as the notification does not sever the relationship of master and servant between the contractor and the contract labour;
(5) the contractor can utilise the services of the contract labour in any other establishment in respect of which no notification under Section 10(1) has been issued where all the benefits under the CLRA Act which were being enjoyed by it, will be available;
(6) if a contractor intends to retrench his contract labour he can do so only in conformity with the provisions of the I.D. Act."
29. The entire discussion was summed up by the Supreme Court in para 125 as under:
"125. The upshot of the above discussion is outlined thus:
(1)(a) Before 28.1.1986, the determination of the question whether the Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression "appropriate Government" as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry, or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government:
(b) After the said date in view of the new definition of that expression the answer to the question referred to above, has to be found in Clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government company/undertaking concerned or any undertaking concerned is included therein Eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by a railway company; or (c) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(2) (a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government:
(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and (2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question, and
(ii) other relevant factors including those mentioned in Sub-section (2) of Section 10:
(b) Inasmuch as the impugned notification issued by the Central Government on 9.12.1976 does not satisfy the aforesaid requirements of Section 10. It is quashed but we do so prospectively i.e., from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any Court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/ camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder:
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications."
30. Placing reliance upon sub-paragraphs 5 and 6, Sri Venkataramana submits that the Supreme Court, in terms, held that it was competent for an industrial adjudicator to decide as to whether the contractor was only a ruse/camouflage to evade compliance with the various beneficial legislations so as to deprive the workers, of the benefits thereunder, and that on such a finding being recorded, the contract labour have to be treated as the employees of the principal employer. Even in the absence of such a finding, necessary directions have to be issued to the employer to be followed as to when they intend to employ regular workmen; no exception can be taken to the proceedings initiated by the contract labour in the present case. He contends that this very exercise needs to be undertaken in the proceedings before the Tribunal.
31. As observed earlier, the objection is as to the form in which the dispute is raised before the 4th respondent. It was observed that to invoke Section 2-A there should not exist any dispute as to the person invoking it having been under the employment of the employer and the termination thereof. The adjudication will be only as to the mode of discharge, dismissal, retrenchment or termination and the consequences thereof. When it is categorically held by the Supreme Court that a contract labour can never be treated as an employee of the principal employer, it is too difficult to imagine that such a contract labour stands discharged, dismissed, retrenched or terminated, with the expiring of the labour contract. Even where a notification under Section 10(1) of the CLRA Act is issued, the Supreme Court categorically held that such a notification could only bring about an end to the contract between the principal employer and the labour contractor. It was further observed that the relationship of the master and servant between the labour contractor and contract labour would continue to exist even after such a notification. When this is the legal and factual aspect, it cannot be said that there existed any relationship of master and servant or employer and employee between the contract labour on the one hand and the petitioner herein on the other till 30.6.1997 and that the contract labour stood discharged, dismissed, retrenched or terminated with effect from 1.7.1997. Therefore, the applications filed by the contract labour before the 4th respondent under Section 2A of the I.D. Act were not maintainable.
32. It is true that the rights and status of the contract labour vis-a-vis the principal employer need to be adjudicated in the event of a notification being issued under Section 10(1) of the CLRA Act. Sub-paragraphs 5 and 6 of Para 125 of the judgment in SAIL (supra) mandate that such an exercise should be undertaken. Whether there was any warrant for such adjudication in this case is a different question. Even where the facts warrant such an adjudication by the Labour Court or Industrial Tribunal, as the case may be, the subject matter of adjudication is totally different from the one contemplated under Section 2A of the ID Act. The adjudication in such proceedings would not be as to whether there was any illegal discharge, dismissal, retrenchment or termination of the contract labour, much less, an individual contract labour. The subject matter of the adjudication will be as to whether the labour contractor was a ruse or camouflage. Finding on this aspect will lead to certain consequences, as provided for under Sub-Paras 5 or 6, as the case may be. By no stretch of imagination, such an adjudication can fit into the kinds of disputes contemplated under Section 2A of the ID Act.
33. This, however, cannot be construed as saying that the contract labour are without any remedy. It is certainly open to them to raise a dispute as contemplated under Section 2(k) and the matter can be brought before the concerned Labour Court through a reference under Section 10(1) of the I.D. Act. What is found not permissible is treating the individual disputes under Section 2-A as those under Section 2(k) of the I.D. Act.
34. It is contended by Sri Venkatammana that in view of the insertion of Sub-section 2 to Section 2-A of the I.D. Act through A.P. amendment, once an application is made by a workman, it shall be treated as reference under the Act for all practical purposes and it has to be adjudicated as such. In this regard, it needs to be observed that while Section 2-A is substantive, Sub-section 2 is procedural in nature. Sub-section 2 does not have the effect of restricting or expanding the scope of the substantive right created under Section 2-A. It may be pointed out that while in the absence of Sub-section 2, the only way for an individual worker to gain an entry into the Labour Court or Industrial Tribunal, even in the event of discharge, dismissal, retrenchment or termination was through the process of conciliation and thereafter reference under Section 10(1), Sub-section 2 provides a direct entry into the Labour Court for the workman. However, even such a direct entry is not without any restrictions. Sub-section (2) reads as under:
"(2) Notwithstanding anything in Section 10, any such workman as is specified in Sub-section (1) may, make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act; and accordingly all the provisions of this Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute".
35. A reading of the Sub-section (2) indicates that the application is to be made in the prescribed manner. A form is prescribed under the A.P. Rules being Form K-4. The form contains various items, which are required to be complied with. One of the requirements is that the workmen should have submitted a representation to the employer. The form also requires the response from the employer to be mentioned. The petitioner alleged that the contract labour did not submit their application in Form k-4 at all and that they did not submit any claim before the petitioner. The same has not been disputed. Even assuming that the contract labour were otherwise competent to make an application under Section 2-A(2), it was obligatory on their part to present it only in the prescribed form. The reason is that when a special procedure is provided for, in substitution of the one prescribed under the Act, and when the application is required to be submitted in the prescribed form, any deviation therefrom is impermissible.
36. The insistence on submission of a representation and furnishing of the information as to the response of the same is not without any purpose. But for Section 2-A(2), the workman was to undergo the ordea! of the reference under Section 10(1). While relieving the workman of such an ordeal, Section 2-A(2) had prescribed a basic minimum procedure or exercise which is compatible with the scheme of the I.D. Act. Just as it was not permissible for a reference by an appropriate Government without exhausting the process of conciliation, it was not permissible for the workmen to approach the Labour Court and Industrial Tribunal without submitting their representation as contemplated under Form K-4 before presentation of the application.
37. The cumulative effect of the discussion is that the applications filed by the contract labour before the 4th respondent under Section 2-A(2) were not maintainable in law.
38. Strong objection was raised as to the maintainability of the present writ petitions. The learned Counsel for the 1st respondent contends that Writ of Prohibition can be maintained if only such an authority lacked the inherent jurisdiction to adjudicate the matters, which are sought to be interdicted. As a limb of the same argument, he submits that such authorities will have the competence to decide even the jurisdictional facts. According to him, the Industrial Tribunal was vested with the power to adjudicate the disputes brought before it under Section 2-A(2) and the various objections raised by the petitioners, would have bearing only on the merits of the claim and not on their maintainability. He further submits that various contentions put forward by the writ petitions in this Court can very well be raised before the Industrial Tribunal.
39. Under Article 226 of the Constitution of India, High Courts are vested with the jurisdiction to undertake judicial review of the proceedings that are pending before or have emanated from judicial, quasi-judicial or administrative authorities. The considerations and parameters for issuance of writs of certiorari and prohibition are almost similar except for the stages at which they are issued. While in a writ of certiorari, the High Court will review the decisions, which have been rendered by such authorities, in case of writs of prohibition the matter will be examined by the High Court, even while the proceedings are pending before such authorities. The exercise in such a case will be to examine as to whether even if the contentions advanced before the judicial, quasi-judicial or administrative authority are taken on their face value, it was competent for such authority to adjudicate upon the same. In a way it resembles the exercise by the High Court in quasi proceedings initiated under Section 482 of Cr.P.C. The observations of Chief Justice Rajamannar in State of Madras v. Padmanabha Ayyar, 1958 (2) LLJ, are very apt. He said:
"If by virtue of such an administrative act a quasi-judicial Tribunal like the Industrial Tribunal is vested with jurisdiction to proceed with an adjudication which certainly will be proper subject-matter of a writ of certiorari at a later stage, then it would be open to this Court, under the powers conferred on it by Article 226 of the Constitution, to issue a writ in the nature of a writ of prohibition prohibiting the quasi-judicial Tribunal, that is, the industrial Tribunal from proceeding with the enquiry, in pursuance of the administrative order of the Government, if, this Court is convinced that the executive act is illegal or ultra vires".
40. The Madras High Court has taken a view in that case that even where any specific prayer is not made for issuance of writ of prohibition, the Court can consider the grant of such a relief if necessary ingredients exist therefor.
41. The examination by the High Court as to the maintainability of such proceedings will be with reference to the provisions of law, which are invoked. Incidentally, it may so happen that appropriate proceedings touching on the same subject-matter may have been maintainable before the same authority, but under a different provisions of law. Even in such a case, writ of prohibition can be maintained. The fact that the proper proceedings are to be brought before and adjudicated by the same authority is not an excuse to refuse the relief of writ of prohibition.
42. As regard the parameters of adjudication in writs of prohibition, Justice Subba Rao, as he then was, speaking for the majority in East India Commercial Company v. Collector of Customs, , observed as under:
"To state it differently, if on a true construction of the provisions of the said two sections the lespondent has no jurisdiction to initiate proceedings or make an enquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the same. We, therefore, reject this preliminary contention".
43. A Division Bench of this Court had an occasion to consider this very question in D. Samba Murthy v. Collector of East Godavari, 1979 (2) An.WR 86, Justice Alladi Kuppu Swamy, as he then was, speaking for the Bench summed up the law as under:
"When an inferior Court takes up for hearing a matter over which has no jurisdiction, the remedy is by way of prohibition seeking an order forbidding the inferior Court from continuing the proceedings. On the other hand, if the Court hears the cause or matter and gives a decision, the party aggrieved would have to move the superior Court for a writ of certiorari quashing the decision. From these observations, it is clear that the Supreme Court entertained no doubt about the power of the High Court to issue a writ of prohibition or certiorari to an inferior Court. In Golad Menon v. Union of India the Supreme Court observed that the object of writ of prohibition is to restrain Courts or inferior Tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them exceeding the limits of the jurisdiction. In other words, the object is to confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds".
44. From the above observation, it is evident that if the High Court is satisfied that proceedings before an interior Court or Tribunal are not maintainable either on the grounds of fact or law, it can certainly interdict the Court or Tribunal from proceeding with and the party complaining of the same need not be compelled to approach that very Tribunal to raise the objection. It was observed that it was not only the right of the High Court, but also its duty to undertake such an exercise. Since it is found that the proceedings before the Industrial Tribunal initiated by the contract labour were not maintainable, this Court finds that the same can be interdicted by issuing Writs of Prohibition.
45. The result is that
(a) The proceedings initiated against the petitioner by the contract labour before the 4th respondent under Section 2-A(2) of the I.D. Act were not maintainable; and
(b) Writs of Prohibition would issue restraining the 4th respondent from proceeding with the adjudication of the same; and
(c) The writ petitions are accordingly allowed with no order as to costs.
46. This, however, does not preclude the adjudication of the rights and entitlement of the contract labour if the same is brought before the 4th respondent in accordance with the procedure under Section 10(1) read with Section 2(k) of the I.D. Act.