Patna High Court
Rashtriya Koila Mazdoor Congress And ... vs Steel Authority Of India And Ors. on 29 February, 2000
Equivalent citations: [2000(87)FLR539], (2000)IILLJ1199PAT
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In all these writ applications, since the common question of law and facts as to whether the writ petitioners are entitled to be absorbed/regularised in service is involved, the same have been heard together and are disposed of by this common judgment.
2. In CWJC No. 1938/1995(R) the petitioners seek issuance of appropriate writ commanding upon the respondents to regularise their services as permanent employees of respondent No. 2, Indian Iron and Steel Company Ltd. in view of various settlements, agreements and notifications issued by the Central Government under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 and to declare that the nature of job being performed by the petitioners is permanent and perennial in nature and is of sufficient duration for more than 20 years and continuation of the petitioners to do the work under the contractors is unreasonable, unjustified, arbitrary and violative of Articles 14, 16, 21 and 300A of the Constitution of India.
3. In CWJC No. 1802/1994(R) the petitioners seek the similar relief directing the respondents to regularise the services of the workmen engaged in slurry excavation process at Dugda coal washery under the contractors and to pay the workmen engaged in the dump slurry preparation plant, equal pay for equal work and wages from the date of stoppage of the same.
4. Similarly in CWJC No. 1803/1994(R) petitioners pray for the same relief to regularise the services of the petitioners engaged in the maintenance and repairs of the plant and machineries in different sections of Dugda Washery under various contractors and further for a direction to pay them wages at par with the other workmen and further to restrain the respondents from engaging workmen in the establishment through contractors.
5. I shall first state the facts of each case, in brief, for better appreciation of the claim made by the petitioners.
6. CWJC No. 1930/1995(R): Petitioner No. 1 is a registered trade union representing petitioners Nos. 2 to 44, who are employed under the contractor for loading and unloading of washed coal from Chasnala washery to the Railway Yard for transportation to different steel plants, namely, Indian Iron and Steel Company Ltd. (in short IISCO), Bhilai Steel Plant, Rourkela Steel Plant, Bokaro and Durgapur Steel Plants. The main supply of washed coal is to the Indian Iron and Steel Company at Burnpur. Petitioners' case is that Chasnala Washery is situated within the Chasnala Collieries Complex wherefrom the raw coal is supplied to the washery for washing of the coal for reducing its ash contents for metallurgical use and after undergoing such process of washing in the Chasnala Washery, such coal is used mainly for steel plants, power plants and other such industrial purposes. Chasnala colliery is owned by IISCO and the same is controlled and managed by the respondent No. 1, Steel Authority of India Ltd. Petitioners' further case is that there is a rope way system introduced for transportation of washed coal from Chasnala washery directly to the IISCO, for feeding IISCO Steel Plant at Burnpur which is, however, not sufficient to meet the requirement and as such, contractor is engaged to supply the same through railway wagons at Tasara Branch Siding Railway Yard. The distance from Chasnala washery to Tasara Branch Siding Railway Yard is about one and half kilometer and washed coal, is transported by dumper and the same is stacked in the Railway Siding Branch and loaded through the pay loaders. It is contended that carrying of such nature of job is permanent and perennial in nature and is of sufficient duration and is continuing for more than 20 years i.e. perpetually continuing since 1973 through different contractors in spite of prohibition of such job being carried on by engaging contractors. Petitioners' further case is that for carrying out such job, there are 15 dumpers and three pay-loaders and about 69 persons are employed between the period 1976 to 1984 for discharging of different nature of jobs, namely, site-incharge, Asstt. Incharge, Sr. Supervisor, supervisor, Munshi, Sr. operator, watchmen, driver, helper and Mazdoor etc. Petitioners Nos. 2 to 44 are amongst the said 69 workers. It is stated that the petitioners are engaged solely for supply of washed coal to IISCO and, as such, the principal employer is IISCO with respect to the petitioners. The petitioners-workmen claimed to have continuously worked without any interruption or break for transportation to various steel plants. The IISCO also issued identity card to the petitioners and they are being paid wages only and have been denied other benefits. According to the petitioners the Central Advisory Contract Labour Board held a meeting in New Delhi on March 13, 1986 and purported to have resolved to constitute a sub-committee for abolition of the contract labour in the washeries in the operation of transportation of middlings, removal of slurry etc. The sub-committee so constituted, inspected the various coal washeries in connection with the aforesaid purpose but it could not submit its report. The Chief Labour Commissioner, (Central) passed an order on March 22, 1988 under the provisions of Rule 25 of the Rules holding that the Chief Labour Commissioner has jurisdiction to pass order in regard to the reliefs to be granted to the workmen and, accordingly, an order was passed that the contract labourers engaged by the contractors at coal washeries shall be paid the same wages and shall be entitled to same conditions of services as are available to the corresponding categories of departmental workers employed in the sister coal washeries. A copy of the order has been filed as Annexure-3 to the writ application. The petitioners, therefore, claim that the principal employer is primarily responsible for payment of equal pay to the contract labour engaged in the coal washery since the same is a subsidiary of IISCO within the meaning of Section 21 of the Act. Petitioners' further case is that the Central Government issued a notification under Section 10 of the said Act after consultation with the Central Board and prohibited the employment of contract labour in the works/operation specified in the Schedule in the coal washery in the country with effect from the date of publication of the notification in the Official Gazette. A copy of the said notification has been filed as Annexure 6 to the writ application. It is further stated that the National Joint Committee for the Steel Industries arrived at a memorandum of agreement at New Delhi dated May 25, 1983 with regard to the demand submitted by the workers for revision of pay scales. The said agreement provides, inter alia, for abolition of contract labour in respect of the jobs of permanent and perennial nature. According to the petitioners, therefore, transportation and removal of coal loading and unloading is strictly prohibited to be done by the contract labour in the colliery, washery or any other process connected therewith. But, still the respondents are carrying out this nature of job through contract labour perpetually in violation of the prohibition and are denying the constitutional right of regularisation of their services.
7. In the counter-affidavit filed on behalf of the respondents, it is stated, inter alia, that the petitioners are employed by the contractor, R.B. Traders for transportation of washed coal. As a matter of fact, loading and unloading of washed coal from the coal washery and loading in wagons have to be done mechanically and not manually. Respondents' further case is that awarding job of transportation of clean coal to various steel plants from Chasnala siding was handled by Central Coal Supply Organisation since 1991 and transportation of coal from coal washery to siding is being awarded by open tender by IISCO. It is contended that the respondent IISCO had been awarded tender for transportation of coal from the beginning and the same is being done by R. B. Traders. So far issuance of identity card is concerned, it is stated that the identity cards and other benefits being availed by the contract labour are supplied by the contractors as per the provisions required under various Acts and the Rules. The respondents expressed their unawareness about the constitution of the sub-committee for the contract labour in coal washery regarding transportation of middlings and removal of slurry etc. It is stated that in fact, it relates to transportation of middlings and removal of slurry which is not applicable.
8. In reply to the counter-affidavit the petitioners, in their rejoinder, have further stated that originally all coal washeries were controlled and managed by Central Coal Washery Organisation which is mainly engaged and carries on business of washing coal for use in various steel plants, Thermal Power Stations. This organisation was originally owned, controlled and managed by the Steel Authority of India, Dugda coal washery which was owned and managed by SAIL, was subsequently transferred to BCCL. However, Chasnala colliery is owned by IISCO for the purpose of extracting iron ore to be utilised in IISCO Plant. Subsequently for better quality of coal used for steel plants, Chasnala coal washery was established by IISCO and the same is owned, controlled and managed by IISCO. It is further stated the writ petitioners are working continuously and uninterruptedly, some of them for about 20 years and they are performing the job with different designations for the purpose of mechanical operation and lifting of coal, unloading and despatching the washed coal from Chasnala coal washery to Tasara siding which is permanent, perennial and accidental in nature.
9. OWJC No. 1802/1994(R): In this case the petitioners are the workmen employed in Dugda coal washery. It is stated that job of recovery of slurry bad been started in the said coal washery sometime in the year 1971 and the same set of workmen who were employed on December 12, 1989 for recovery of the same, are performing and discharging their duty continuously, uninterruptedly and without any break in service. The nature of job performed by the workmen in the said coal washery is permanent, perennial in nature and is of unending duration by reason of its very nature. It is stated that the said coal washery was previously a subsidiary of Central Coal Washery Organisation but subsequently it was transferred to the respondent BCCL. Petitioners' further case is that in the coal washery the raw coal received from the colliery is first broken into graded pieces and, thereafter, it undergoes wide variety of processes with the principal object of producing ash content to the minimum. Graded coal is mixed with water, magnetite lime stones and by such process the raw coal is washed and is made fit to high graded metallurgical purposes including use in the steel plants and thermal power stations. It is contended that the workmen engaged under various contractors from time to time are doing the job of Munshi, pay loaders, helpers, drivers, operators 'and were engaged in dump yard inside the plant. The petitioners further case is that they approached the Ministry of Energy Department of Coal and Mines and the Chairman cum Managing Director, BCCL for regularisation of their services. It is stated that the workmen working in the coal washery moved this Court earlier by filing CWJC No. 459/85(B) and the said writ application was disposed of on July 9, 1985 with a direction to the respondents to direct the Chief Labour Commissioner (Central) to inquire into the matter and give proper relief to the workmen. Pursuant to the direction of this Court the Assistant Labour Commissioner inquired into the matter and submitted a report dated December 27, 1985 to the Regional Labour Commissioner, Central, Dhanbad for forwarding it to the appropriate Government for taking necessary action. A copy of the said report has been filed as Annexure 4 to the writ application. In the said report a finding was given that slurry is the regular outcome of main process and whole time workmen will be required to recover slurry from the ponds. It is stated that inspite of the aforesaid report no action was taken by the respondents for abolition of the contract system nor any step was taken by the Chief Labour Commissioner for directing the management to pay the workmen in the slurry excavation process under the contractor equal pay as the regular daily rated labourers are being paid in the plant. The appropriate Government i.e. the Central Advisory Contract Labour Board held a meeting on March 13, 1986 and a sub-committee was constituted. The petitioners claimed that the committee inquired into the matter and recommended for abolition of contract labour. The petitioners including other labourers engaged in slurry excavation work in the washery again preferred an application under Article 32 of the Constitution before the Supreme Court for appropriate relief of regularisation of their services and for a direction to the respondents to abolish the contract labour system in Dugda coal washery under Section 10 of the Act. The Apex Court however, observed that the petitioner should move this Court first instead of moving directly before the Apex Court and permitted the petitioners to withdraw the writ petition. The petitioners, therefore, claimed that by virtue of the notification dated December 22, 1990 issued by the Central Government under Section 10 of the Act, the contract labour in the works/operation specified in the schedule in washery in the country has been prohibited. It is stated that pursuant to that notification contract job in different washery has been stopped but the petitioners are not given equal treatment and their services have not been regularised, rather the respondents stopped payment of wages with effect from November 29, 1992.
10. In the counter-affidavit it is stated, inter alia, that during the period from December 12, 1989 to November 29, 1992 the contract for loading and transportation of dump fine coal and unloading the same on receiving hoppers of dump fine preparation plant at Dugda coal washery was given to different contractors who used to employ 17 persons for the execution of the work. It is stated that about 17 workers were employed and were paid wages by the contractors. It is further stated that since the work was not of permanent and perennial nature, no contract was awarded after November 29, 1992 to any other contractor and the company started doing such job departmentally by workmen and its own equipments. In para 13 of the counter-affidavit it is stated that under the Act a Committee is required to inspect the work and recommend it a prohibited job. In case the recommendation of the Committee is accepted by the Central Government the job can be declared prohibited by the Central Government.
11. CWJC No. 1803/1994(B): In this case the 11 petitioners represented by the Union, made out a case that in Dugda coal washery there is a section for maintenance and repair of plants and machinery and about 130 workmen are employed or engaged in the maintenance side for maintenance of plant and machinery installed in the establishment through different contractors and they are working uninterruptedly since their appointment. The nature of job performed by these workmen are semi-skilled, skilled, helper, fitter, supervisor etc. and they have acquired a right to be regularly absorbed in the service. The respondents in their counter-affidavit, have denied and disputed the statements made in the writ petition. It is stated that the maintenance jobs are given to contractors for short duration and these workmen had not carried permanent and perennial nature of job. It is further stated that the departmental regular workers are doing the regular repairs and maintenance job including operational job which is quite different from the work done by the contractors.
12. Mr. Roy Shivaji Nath, learned counsel appearing for the petitioner in CWJC No. 1938/1995(R), has drawn my attention to the notification dated December 11, 1990 as contained in Annexure 6 to the writ application and submitted that the employment of contract labour in the works/operation of transport and middling and removal of slurry has already been prohibited in the coal washery. According to learned counsel petitioners are engaged in loading and unloading of washed coal from Chasnala washery to the railway yard which work is not perennial in nature. Learned counsel submitted that admittedly respondent-company introduced rope-way system for transportation of washed coal from Chasnala washery directly to the IISCO for feeding IISCO Steel Plant at Burnpur and for the present the work is not done mechanically and in that view of the matter the relief sought for the petitioners cannot be granted.
13. Before appreciating the submissions of the learned counsel, I will first refer to the order passed by this Court in CWJC No. 459/85(R) which in fact originated the matter with regard to absorption of labourers engaged in doing the job of this nature in coal washery. The writ petitioners of that case asserted that they were working under the contractors of the Central Coal Washery Organisation and Bharat Coking Coal Ltd. After the commencement of Contract Labour (Regulation and Abolition) Act, 1970 and after abolition of the contract system in the coal washery they are entitled to be absorbed in the service. This Court by order dated July 9, 1985 disposed of the writ application holding that the question whether the work done by the contract labourers is same or similar to that of the work done by workmen directly employed by the Principal employer is to be decided by the Chief Labour Commissioner. Pursuant to that order the Chief Labour Commissioner enquired into the matter in detail in support of the nature of work done by the labourers in different coal washery and submitted a report to that effect. A copy of the report of the Chief Labour Commissioner has been filed and annexed as Annexure 3 to the writ application. From perusal of the report, it appears that so far, Chasnala Coal Washery of IISCO is concerned, it has been reported that for the purpose of transportation of middling from the coal washery the labourers are engaged through the contractors under the contract system.
14. The stand of the respondents in the counter-affidavit is that the petitioners Nos. 2 to 24 are employed by the contractor R.B. Traders for transportation of washed coal. It is submitted that as a matter of fact loading is being done mechanically from siding to the wagons. Some mazdoors are required for cleaning Jobs for spirting washed coal. In paragraph 10 of the counter-affidavit it is stated that since 1991 transportation of coal from coal washery to siding is being awarded by open tenders by IISCO, Chasnala.
15. Similarly in CWJC No. 1802/1994(R) respondents' case is that the entire workmen working in washery are not governed under the Contract Labour (Regulation and Abolition) Act. However, it is stated that unless the recommendation of the Committee constituted by Central Advisory Board is accepted by the Central Government and the Job is declared prohibited, the petitioners are not entitled to any relief.
16. In CWJC No. 1803/1994(R) the stand of the respondents is that the contractors are engaged for doing temporary nature of jobs namely, Fabrication and replacement of pipes, chutes etc, These jobs are given to contractors for short duration and the work is not perennial in nature.
17. Mr. P. K. Sinha, learned Sr. counsel appearing on behalf of the petitioners relied upon various decisions of the Apex Court including the decision in the case of Air India Statutory Corporation v. United Labour Union AIR 1997 SC 645 : 1997 (9) SCC 377 : (1997-I-LLJ-1113) and Secretary, Haryana State Electricity Board v. Sitresh, AIR 1999 SC 1160 : 1999 (3) SCC 601 : (1999-I-LLJ-1086) and submitted that having regard to the law laid down by the Apex Court the petitioners are bound to be absorbed in services after abolition of the contract labour system. Learned counsel further has drawn my attention to the order passed by the Regional Labour Commissioner (Central) (Annexure 7) of CWJC No. 1802/1994(R) and the report of the Advisory Committee (Annexure 9) and submitted that despite all the requirements are satisfied the respondents have failed to issue the notification and regularise the service of the petitioners. I find much force in the submission of the learned counsel. Admittedly, the Chief Labour Commissioner (Central), Delhi after hearing the parties passed order holding that the nature of the work done by the contract labour in Dugda Coal Washery can be validly compared to the work (lone by the departmental workers in other washery. The Chief Labour Commissioner also determined the nature of job performed by the workmen engaged in Dugda Coal Washery under the contractors. The Commissioner further ordered that the contract labour engaged by the contractor shall be paid the same wages and they are entitled to same condition of services as are available to the corresponding category of departmental workers working in the sister coal washery. In my opinion, therefore, so far the case of petitioners of CWJC No. 1938/1995(R) and CWJC No. 1802/1994 (R), the work done by these petitioners are perennial in nature and all the necessary requirements of Section 11 of the Act are satisfied. Undisputedly the petitioners of these two writ applications have been working for the last more than a decade under the contractors and there is nothing to show that these petitioners are employed for seasonal working rather the perennial nature of work is evident from the stand taken by the respondents that they are getting the work done departmentally. These petitioners, therefore, cannot be deprived of their legitimate right to be regularised in service. At this stage I must quote the observation made by the Apex Court in the case Secretary, Haryana State Electricity Board v. Suresh (supra). Their Lordships observed (1999-I-LLJ-1086 at 1087) : :
"1. The doctrine of equality as enshrined in the Constitution promised an egalitarian society and the Contract Labour (Regulation and Abolition) Act, 1970 is resultant effect of such a constitutional mandate having its due focus in that perspective. This Court in Minerva Mills case AIR 1980 SC 1789 in no uncertain terms laid down that the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation and is thus consequently an essential ingredient of social and economic Justice. In short, this Court has equated the security clause in the Constitution so as to mean that the people of the country ought to be secured of socio-economic justice by way of fusion of Fundamental Right and Directive Principles of State Policy. As a matter of fact this Court has been candid enough on more occasions than one and rather, frequently to note that socialism ought not to be treated as a mere concept or an ideal, but the same ought to be practised in every sphere of life and be treated by the law Courts as a constitutional mandate since the law Court exists for the society and required to act as a guardian angel of the society. As a matter of fact the socialistic concept of society is very well laid in Part II and Part IV of the Constitution and the Constitution being supreme, it is a bounden duty of the law Courts to give shape and offer reality to such a concept."
"3. Ours is a socialist State as the Preamble depicts and the aim of socialism, therefore, ought to be to distribute the common richness and the wealth of the country in such a way so as to subserve the need and the requirement of the common man. Article 29 is a pointer in that direction. Each clause under the Article specifically fixes certain social and economic goal so as to expand the horizon of benefits to be accrued to the general public at large. In particular reference to Article 39(a) it is seen that the State ought to direct its policies in such a manner so that the citizens, men and women equally, have the right of an adequate means of livelihood and it is in this perspective again that the enactment in the statute book as noticed above The Contract Labour (Regulation and Abolition) Act, 1970 ought to be read and interpreted so that social and economic Justice may be achieved and the constitutional directive be given a full play."
18. These two writ applications being CWJC Nos. 1938/1995(R) and 1802/1994 (R) are disposed of with a direction to the Central Government to take appropriate action under Section 10 of the Contract Labour (Regulation and Abolition) Act in the matter of prohibiting the employment so far the nature of work done by these petitioners. The Central Government must take all necessary steps in this regard within four months from the date of receipt of a copy of this Judgment/Order. In the meantime, respondents shall also take necessary steps to regularise the services of these petitioners. So far CWJC No. 1803/1994(R) concerned, in view of the stand taken in the counter-affidavit, I dispose of this writ application, with a direction to the petitioners to make representation before the Chief Labour Commissioner, Central, who shall either enquire into the matter himself or through a competent officer and take a decision after giving opportunity of hearing to the petitioners as also to the respondents and to find out whether the nature of work done by the petitioners are perennial in nature.