Delhi High Court
Jaspal Singh & Ors. vs Commercial Officer/G. M. Airports ... on 30 September, 1999
Equivalent citations: 1999VIAD(DELHI)430, 82(1999)DLT502, (2000)ILLJ744DEL
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. The petitioners who are 20 in numbers have filed this writ petition with the following prayers:
(a) Issue directions directing the respondents to regularise the service of the petitioners from the date of their joining along with other arrears of difference in pay scale and all other consequential benefits:
(b) Issue the directions for stay of the illegal action of handing over of customs detained baggage warehouse to department of Customs, till the decision of this court;
(c) To issue any other appropriate direction to take civil and criminal action against the respondents for indulging in an unfair labour practice, against the provision of Industrial Dispute Act,1947.
(d) to issue directions directing the inclusion of appropriate definition of CASUAL in the Industrial Disputes Act,1947.
(e) Pass any other order or orders as may be deemed fit and just under the facts and circumstances of the case.
(f) Award the costs of the present petition in favour of the petitioners.
2. The events which led to filing of the aforesaid petition by the petitioners may be recaptulated.
3. There is customs detained Baggage Warehouse located in the Indira Gandhi International Airport ( hereinafter to be referred as "IGI Airport" ). It was managed by Customs Department till some time in the year 1986. Terminal-II, was commissioned at IGI Airport. After the date of commissioning of Terminal-II, a joint meeting between the Airport Authority of India and Customs Department was held wherein it was decided that Airport Authority of India (hereinafter to be referred as 'AAI' ) will be notified as custodian of mishandled/detained baggage and it will manage the warehouse purely on temporary basis till such time the Customs Department is ready to takeover the management of Warehouse. Pursuant to this decision, Notification dated 9.12.1976 was issued whereby Customs Department notified AAI as custodian of mishandled/detained baggage. To lookafter this work AAI gave contract to M/s. Ex-serviceman's Airlink Transport Services Ltd. (hereinafter to be referred as `EATS Ltd.) which is an agency sponsored by Directorate General of Resettlement, Ministry of defense, Government of India for the welfare and Resettlement of Ex-servicemen . This contract was given vide letter No. AAD/EST-307 (MB)/6317-21 dated 25.06.1986 directing M/s. EATS Ltd. to provide manpower for management of the said warehouse under supervision of Airport Authority of India and Customs Department for a period of six months. It is in these circumstances the said M/s. EAST Ltd. deputed these petitioners to the Warehouse for managing and supervising the said Warehouse. This arrangement continued till April, 1995. However, Customs Department vide letter dated 27.4.95 intimated AAI that Government of India had taken a decision that Customs Department will manage the Warehouse departmentally as is being done in other International Airports. It was followed by another letter dated 22.3.97 of the Customs Department to AAI to the effect that Customs Department would be taking over the management of said Warehouse w.e.f. 31.3.97. In view of this position AAI wrote letter dated 27.3.97 to M/s. EAST Ltd. for handing over said Ware-house to the Customs Department. Under these circumstances, petitioners approached this Court and filed the present writ petition making the aforesaid prayers.
4. It is stated by the petitioners in the writ petition that petitioners are working continuously for last more than 10 years and, therefore, they are entitled to regularisation. It is also stated that the work is of perennial nature and further that Notification dated 9.12.76 had been issued by the Central Government abolishing Contract Labour in respect of certain categories including "Watching of building" and the work performed by the petitioners come under this category and, therefore, in view of judgment of Supreme Court in the case of Air India Statutory Corporation & others Vs. United Labour Union and others reported in 1997 SCC (L&S) 1344 petitioners are entitled to be absorbed with the AAI as its regular employees.
5. Counter-affidavits have been filed by AAI as well as Customs Department. In the counter-affidavit filed by the AAI it is stated that by virtue of entrustment of the job by Customs Department to the AAI the contractor was awarded with the work and Contract Labour was engaged. Since the work is taken over by Customs Department, the grievance, if any, of the petitioners can be against the Customs Department only and not against AAI. it is also submitted that Notification dated 9.12.76 is not applicable inasmuch as the petitioners were not engaged in Watch and Ward Service but were engaged to lookafter the mishandled/detained baggages of the passenger by the Customs Department and there is no notification abolishing Contract Labour to engage mishandled/detained baggage. It is also stated that the work performed by the petitioners is not of perennial nature.
6. From the pleading mentioned above as well as argument advanced by the petitioners, following two points arise for consideration:
1. Whether the petitioners are covered by Notification dated 9.12.76 ?
2. Whether the petitioners are entitled to regularisation on the ground that the work is of perennial nature and they have been working for last more than 10 years. ?
Applicability of Notification dated 9th December,1976.
7. Coming to the question of the applicability of Notification dated 9.2.76, it may be mentioned that petitioners had prayed for interim relief in CM. 2438/97 filed along with the writ petition seeking stay of handing over of Customs detained baggage Warehouse to Customs Department. On 31.3.97 interim orders were passed directing the parties to maintain status quo. After notice, this CM came up for hearing and vide order dated 28.11.97 Single Judge dismissed the said application. At the time of arguments of this application the petitioners had contended that in view of Notification dated 9.12.76 employment of Contract Labour was prohibited and, therefore, petitioners were entitled to be regularised treating them as direct employees of Respondent No. 1/AAI while dismissing said application, the Single Bench made the following observations:
"Even according to the averments in the writ petition, the petitioners are serving as Counter-Clerk/Watch and Ward/Supervisors in the warehouse. Learned counsel for the petitioner contended that as per the notification issued by the Central Government on 9th December, 1976 as S.O. 779(E) under sub-section (i) of Section 10 of the Contract Labour (Regulation & Abolition) Act 1970, employment of contract labour was prohibited in the jobs done by the petitioners and hence they are entitled to be regularised treating them as direct employees of respondent No.1. As per the said notification the Central Government prohibited employment of contract labour "for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the said Act is the Central Government". On a perusal of the description of the work carried out by the petitioners as given in the writ petition, prima facie, I am of the view that the petitioners cannot claim any benefit under the said notification because the said notification has not prohibited employment of contract labour as ounter-clerk or Supervisor or watch and Ward of the baggages. There is no averment in the petition that the petitioners are employed for sweeping or cleaning or dusting or watching of building. Moreover, the warehouse was being managed by respondent No.1 only on a temporary basis till the Customs Department is ready to take over the management and it has now been decided that the Customs Department will manage the warehouse departmentally.
In view of the above facts in this case, the judgment in Air India Statutory Corporation and Others Vs. United Labour Union & Others 1997 S.C.C. (L&S) 1344 has no application to this case.
Hence I do not find any justification for staying the handing over of the warehouse to the Customs Department pending final decision in the writ petition. The interim order is vacated. The application is dismissed."
8. The petitioners had filed LPA NO.324/97 against the said order , which was dismissed by the Division Bench of this Court vide Judgment dated 18.9.98. SLP against this order was dismissed by Supreme Court. The aforesaid sequence of events is stated only to demonstrate that prima facie view was taken by this Court that Notification dated 9.12.76 is not applicable in the instant case. However, this does not preclude the petitioners from raising this point and final view has to be taken regarding this aspect at this stage.
9. Vide Notification dated 9.12.76 issued under Section 10(1) of the Contract Labour (Regulation and Abolition) Act,1970, (hereinafter to be referred as "the Act") the Central Government, after consultation with Central Advisory Contract Labour Board, prohibited employment of Contract Labour on and from 1.3.77 for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the said Act is the Central Government. The argument raised by counsel for the petitioners is that the petitioners would be covered by the said Notification as the duties discharged by them would come within the expression "watching of buildings." Dilating on this submission Mr. G.D. Gupta, learned counsel for the petitioners argued that it is the function of the petitioners to take proper care of the goods seized by Customs Authorities which are entrusted into their custody. These goods are kept inside the building/warehouse and, therefore, while protecting these goods the petitioners are to ensure that no unauthorised person or outsider/intruder comes inside the premises where the goods are kept and, therefore, in the process of ensuring the protection of goods, the petitioners are watching the building also. In this context Mr. Gupta referred to letter dated 30.10.86 addressed by AAI to M/s. EATS in which it was made clear to M/s.EATS that it was assigned with the responsibility of "managing the mishandled/detained baggages warehouse" and he was "responsible for having the custody of all types of goods being delivered and deposited" to it. It was further mentioned that the contractor was responsible not only for proper stocking, storage, security and accounting of all the goods, but for any pilferage or damage etc. He also referred to Para-4 of the counter-affidavit filed by M/s. EATS as per which M/s. EATS, in terms of contract, was given the management of the customs warehouse round the clock on shift basis. In letter dated 31.3.97 written by M/s.EATS to AAI, which is annexed with the counter-affidavit of Ms. EATS, it was mentioned that the petitioners were employed as Watch and Ward Staff to handle the affairs of warehouse round the clock and they have been continuously employed for past 11 years. Accordingly, Mr. Gupta submitted that since it was their duty to be there at warehouse round the clock and it is accepted by even the Respondent No.1/AAI that it was the task of the petitioners to "manage the warehouse", it amounted to "watching the building" as warehouse could not be managed round the clock without watching the building. However, this argument is to be noted to be rejected. It is an admitted case that the petitioners are serving as Counter-Clerks/Watch and Ward of the baggage's Supervisors in the Warehouse. The duties of the petitioners are to take care of the Customs seized goods, which are kept inside the Warehouse. This Warehouse is admittedly inside Terminal-II of IGI Airport, which is a protected/prohibited area and outside without prior permission cannot even enter the main building. The expression "Watching of building" is to be given its natural grammatic meaning i.e. those who are posted as Security Guards to watch the building from outside. Such staff for watching the building is admittedly posted outside the building, or for that matter outside Warehouse. The expression "Watching of building" relates to "security staff" and by no stretch of imagination it can exclude those persons who are entrusted with Customs seized goods to take care of these goods only which are kept inside the Warehouse. The complete reading of the documents referred to by Mr. Gupta would show that the responsibility of these petitioners was to take care of and manage the mishandled/detained baggages in the Warehouse and "managing the Warehouse" is used in this particular sense. As per "Chambers Dictionary" the meaning of "Watch and Wards" is" the old custom of watching by night and by day in towns & cities; uninterrupted vigilance". As per "Law Dictionary" the meaning of "Watch and Wards is " "Watch" denotes keeping guard during the night "Ward by day". Therefore, Notification dated 9.12.76 would not be applicable in the case of the petitioners. Now let me deal with second question formulated above, which arises for consideration in this petition.
Claim for regularisation.
10. Mr. G.D. Gupta, counsel for the petitioner argued that, in any case, the petitioners are entitled to regularisation inasmuch as the work which the petitioners are doing is of perennial nature. It was further pointed out that petitioners have been working since 1986 and they worked till the time work was taken away from AAI by the Customs Authorities. Even thereafter, 12 petitioners, namely, (1) Mr. Jaspal Singh (2) Mr. Vishnu Prakash (3) Mrs. Rajni Malhotra (4) Mr. Mool Chand (5) Mr. Shambhu Prasad (6) Mr. Sumer Singh (7) Mr. Surat Singh (8) Mr. Puran Singh (9) Mr. Hawa Singh (10) Mr. Ram Saran (11) Mr. Mam Chand (12) Ramesh Chand-11 are continuously working till date. It was submitted that as the petitioners have worked for long period the work is of perennial nature, they should be regularised. In support of the contention Mr. Gupta has placed reliance on the judgment of Supreme Court in the case of R.K. Panda Vs. Steel Authority of India 1995 (6) SLR 665 and particularly Para-9 thereof. Reliance is also placed on the following judgments of the Supreme Court:
1. Daily Rated Casual Labour employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and Others .
2. National Federation of Railway Porters, Vendors and Bearers Vs. Union of India and Other 1995 Supp. (3) SCC 152.
3. Secretary H.S.E.B. Vs. Suresh and Others .
11. Refuting the aforesaid contentions of the petitioners, Mr.Raj Birbal, learned Senior Counsel appearing on behalf of AAI argued that in the facts and circumstances of this case, it cannot be said that the work performed by the petitioners is/was of perennial nature. To support his arguments he contended that as far as AAI is concerned, it had undertaken the work in question by virtue of the instructions given by the Customs Department and it was to handle this work only on temporary basis till such time the Customs Department is ready to take over the management of Warehouse. He further contends that this position is more than obvious and needs no further proof because Customs Department took back the said work vide letter dated 27.4.95 intimating AAI that Government of India had taken a decision that Customs Department will manage the Warehouse departmentally as is done in other International Airports. Therefore, as the Notification dated 9.12.76 was issued by the Customs Department making AAI as custodian of mishandled/detained baggage and as this was arrangement of temporary nature with AAI, it gave a contract to M/s. EATS Ltd. It is M/s. EATS Ltd. which engaged these petitioners to perform the aforesaid work and on this basis it was submitted that it could not be said that the work in question of M/s. EATS Ltd. was of perennial nature. Mr. Raj Birbal also contended that, in any case, whether the work is of perennial nature or not, it could not be decided in these proceeding as this is disputed question of fact and the appropriate authority to decide the same is Industrial Tribunal/Labour Court, which is the machinery provided in the Industrial Disputes Act or appropriate Government under Section- 10 of the Contract Labour (Regulation & Abolition) Act. For this proposition, he has placed reliance on the same very judgment, the support of which has been taken by Mr. G.D. Gupta, Advocate for the petitioner. In addition he placed reliance on some other judgment of Supreme Court as well as this Court. I shall refer too and deal with these judgment at appropriate stage.
12. The admitted facts are that petitioners are not the direct employees of AAI and they are contract workers who were engaged by M/s. EATS Ltd. to whom contract was given by AAI in the circumstances noticed above. There is no notification under Section 10(2) of the Act abolishing the contract labour of the nature of the work performed by the petitioners in the respondents establishment as contract labour. I have already held that Notification dated 9.12.76 is not application in the instant case.
13. The question that arises for consideration is as to whether, in the absence of such a notification, petitioners can claim regularisation of their services with AAI or Customs Department.
14. As far as AAI is concerned, it was only a Principal employer and there was no direct relationship of employer and employee between petitioners and AAI. As far as Customs Department is concerned, there was no relationship between petitioners and the said Department of any nature at all. The question is to be examined keeping in view these aspects and admitted facts mentioned above.
15. There are number of judgment pronounced by Supreme Court dealing with the nature of such contract labour under the Act. For the purpose of deciding the controversy in the present case, it is not necessary to refer to all these judgments. The matter is exhaustively dealt with in the case of Air India Statutory Corporation & Others Vs. United Labour Union and Others (supra) as well as recent judgment of the Supreme Court in the case of Secretary H.S.E.B. Vs. Suresh and Others (supra). It would be sufficient to refer to the judgments quoted by the parties in this case, reference to which has already been made above.
16. In the case of R.K.Panda Vs. Steel Authority of India (supra) dealing with the position of such contract labour under the Act, the Supreme Court observed as under:
"With the industrial growth, the relation between the employer and the employees also has taken a new turn. At one time the establishment being the employer all persons working therein were the employees of such employer. But slowly the employers including Central and State Governments started entrusting many of the jobs to contractors. Contractors in their turn employed workers, who had no direct relationship with the establishment in which they were employed. Many contractors exploited the labourers engaged by them in various manners including the payment of low wages. Hence, the Contract Labour (Regulation and Abolition) Act, 1970 was enacted to regulate the employment of contract ,labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith. The "contract labour" has been defined in Section 2(1)(b) to mean a workman, who has been employed as contract labour in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer. Section 2(1)(c) defines "contractor to mean a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor. "Principal employer" has been defined to mean (i) in relation to any office or department of the Government or a local authority the head of that office or department For such other officer as the Government or the local authority, as the case may be, may specify in this behalf and (ii) in a factory, the owner or occupier of the factory. In view of Section 10, 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 establishments". Sub-section (2) of Section 10 requires that before issuing any such notification 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. One of the relevant factors, which is to be taken into consideration is whether the work performed by the contract labourers is of perennial nature. Section 12 enjoins that no contractor to whom this Act is applicable shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing authority. The licence so issued may contain conditions in respect of hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with rules. Section 20 provides that if any amenity required to be provided under Section 16, Section 17, Section 18, or Section 19 for the benefit of the contract labour employed in an establishment, is not provided by the contractor within the time prescribed therefore, such amenity shall be provided by the principal employer within such time as may be prescribed and all expenses incurred by the principal employer within such time as may be prescribed and all expenc incurred by the principal employer in providing the amenity may be recovered by the principal employer from the contractor "either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor". Section 21 says that a contractor shall be responsible for the payment of wages to each worker employed by him as contract labour but at the same time in order to protect the interest or such contract labour it requires every principal employer to nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. It shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed. The same section also enjoins a duty on the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer. Because of sub-section (4) of Section 21, if the contractor fails to make payment of wages within the prescribed period, then the principal employer shall be liable to make payment of wages in full to the contract labour employed by the contractor and recover the amount so paid from the contractor. Any contravention of the provisions aforesaid has bee made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent that the framers of the Act have allowed and recognised contract labour and they have never purported to abolish it in its entirety. The primary object appears to be that there should not be any exploitation of the contract labourers by the contractor or the establishment. For achieving that object, statutory restrictions and responsibilities have been imposed on the contractor as well as on the principal employer. Of course, if any, expenses are incurred for providing any amenity to the contract labourers or towards the payment of wages by the principal employer he is entitled to deduct the same from the bill of the contractor. The Act also conceives that appropriate Government may after consultation with the Central Board or the State Board, as the case may be, prohibit by notification in Official Gazette, employment of contract labour in any process, operation or other work in any establishment, taking all facts and circumstances of employment of contract labour in such process, operation or the work into consideration."
17. The aforesaid discussion clearly demonstrates that the framers of the Act never intended to abolish Contract Labour in its entirety. It is for the appropriate Government to decide whether to abolish the contract labour in any process, operation or other work in any establishment. If it decides to abolish then the requisite notification has to be issued under Section 10(2) of the Act. So long as the contract labour is not abolished in an establishment, it is permissible to have contract labour. However, the Act, in such a situation, lays down certain provisions regulating service conditions of such contract labour.
18. After making the aforesaid observations in R.K. Panda case, the Supreme Court dealt with the question as to whether the contract workers could make a claim for direct absorption by the Principal employer by filing writ petition under Article 226 before a High Court or under Article 32 before Supreme Court or proceedings under Article 136 in Supreme Court.
Discussion on this aspect and the answer thereto is found in para 5 to 7 of the aforesaid judgment, which are reproduced below:
"Of late a trend amongst the contract labourers is discernible that after having worked for some years, they make a claim that they should be absorbed by the principal employer and be treated as the employees of the principal employer especially when the principal employer is the Central Government or the State Govern-
ment or an authority which can be held to be State within the meaning of Article 12 of the Constitution, although no right flows from the provisions of the Act for the contract labourers to be absorbed or to become the employees of the principal employer. This Court in the case of Gammon India Ltd. Vs. Union of India, , pointed out the object and scope of the Act as follows:-
"The Act was passed to prevent the exploitation of contract labour and also to introduce better conditions of work. The Act provides for regulation and abolition of contract labour. The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abol-
ished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated conditions of work and contemplates progressive abolition to the extent contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers Association Vs. Union of India, it was pointed out that Parliament has not abolished the contract labour as such but has provided for its abolition by the Central Government in appropriate cases under Section 10 of the Act. It is not for the Court to enquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any establishment should be abolished or not. That has to be decided by the Government after considering the relevant aspects as required by Section 10 of the Act. Again in the case of Mathura Refinery Mazdoor Sangh Vs. Indian Oil Corporation., , this Court refused to direct the Indian Oil Corporation Ltd., to absorb the contract labourers in its employment, saying that, the contract labourers have not been found to have direct connection with the refinery. In other words, there was no relationship of employer and employee between the Indian Oil Corporation Ltd., and the contract labourers concerned. Again in Dena Nath Vs. National Fertilizers Ltd., , this Court pointed out that the aforesaid Act has two purposes to serve: (i) to regulate the conditions of service of the workers employed by the contractor who is engaged by a principal employer and (ii) to provide for the abolition of contract labour altogether, in certain notified processes, operation or other works in any establishment by the appropriate Government, under Section 10 of the Act. It was further stated that neither the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of the contract labour, the labourers would be directly absorbed by the principal employer.
It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the Principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smoke screen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not ossible for High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such question, only on the basis of the affidavits. It need not to be pointed about that in such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer eliminating the contractor from the scene, is a matter which has to be established on material produced before the Court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them.
We would have also directed the petitioners herein to pursue the same remedy. But we are faced with different orders passed by this Court since 1986 when this writ application was entertained by this Court, on 19.12.1986, this Court was informed that services of a number of labourers were to be terminated w.e.f. 1.1.1987 because the contract of the contractor concerned was to expire on 31.12.1986. This Court, however, directed that notwithstanding it, the labourers should be continued. On 21.4.1987 again a direction was given to the new contractor to continue the employment of the labourers who had been already working, taking into consideration the fact that they had picked up expertise and therefore would be more suited to the job. On 8.5.1987 yet another order was passed by this Court, directing the respondent to see that the new contractors employ those who have been retrenched with effect from 1.4.1987 and 1.5.1987. In that very order, it was said that in the event the contractors job are taken over by the respondent, the respondent will not employ any other workers directly without giving preference to the persons who were working for more than three years. On 28.10.1987, this Court was informed that the State Government of Orissa which is the appropriate Government under the Contract Labour (Regulation and Abolition) Act, 1970, had appointed a Committee to enquire into the question whether the contract labour in the Steel industry in the State of Orissa should be abolished. It appears to be an admitted position that because of the different interim orders passed by this Court, many contract labourers whose employment in normal course would have ceased have continued with the respondent and directions have been given to the respondent to make payments to them from time to time. Such contract labour had been employed in 246 jobs in the Steel Plant. Out of them 104 jobs have been identified in which the contract labour has been abolished. But in 142 jobs the contract labour is being continued and the contract labourers, who might have ceased to be working with the respondent, are continuing by different interim orders passed by this Court. On 6.8.1992, the following order was passed by the Court:
"Mr. Harish Salve learned counsel appearing for the respondent states that there are 879 workmen holding notified jobs with the Management. According to him the Management is prepared to give options to all of them either to accept voluntary retirement on the terms offered by the management or agreement to be absorbed on the regular basis in the employment of the respondent-management. The offer made by Mr. Salve is fair and is acceptable to the learned counsel for the petitioner. We, therefore, modify the interim orders passed by this Court till date to the extent that we permit the respondent-management to give the offered options to all the notified workmen."
19. However, Mr. G.D. Gupta, learned counsel for petitioner relied upon Para-9 of this judgment and stated that Supreme Court had given directions in the said case to Steel Authority of India to absorb those contract labourers who had been continuously working with the Steel Authority of India for the last 10 years on different jobs assigned to them. On the other hand Mr. Raj Birbal, learned Senior Counsel for AAI argued that the said directions contained in Para-9 of the judgment were given by the Supreme Court in the peculiar facts and circumstances of that case, which is not a ratio of the case. The law is laid down by Supreme Court in that very case in Para-7, which is extracted above as per which it is very categorically held by Supreme Court that such question cannot be decided by High Court or Supreme Court and the appropriate and competent forum to adjudicate such disputes is Labour Court or Industrial Tribunal. To buttress his submission that the directions given in Para-9 of the said judgment are in the peculiar facts and circumstances of that case, Mr. Raj Birbal referred to the opening sentence of Para-7 and submitted that after lying down the law in preceding paragraphs, the Supreme Court observed as under:
"we would have also directed the petitioners herein to pursue the same remedy. But we are faced with different orders passed by this Court since 1986 when this writ application was entertained by this court..."
20. Thereafter the Supreme Court mentioned the different orders, which were passed and narrated the circumstances under which Supreme Court chose to give those directions. Otherwise, Mr. Raj Birbal argued, Supreme Court noted in the opening sentence of Para-7 that in a normal course even it would have been directed the petitioners to pursue the remedy before Labour Court or Industrial Tribunal under the Industrial Disputes Act. I find force in the submission made by Mr. Raj Birbal.
21. Same was the situation in the case of National Federation of Railway Porters, Vendors and Bearers Vs. Union of India and others (Supra), another judgment relied upon by Mr. G.D. Gupta. A perusal of the said judgment would show that it was a case where writ petition was filed by the petitioner under Article 32 of the Constitution of India. The court noticed that in another Writ Petition No. 277/88 the Court had passed order. In the said writ petition, Supreme Court had passed order dated 4.10.89 directing Labour Commissioner, UP to enquire as to whether the writ petitioners were the contract labourers working in Railway Station for several years as claimed by them. Labour Commissioner held elaborate enquiry after affording opportunity to the contesting parties and submitted his report dated 17.10.90. The findings recorded in the said report were examined by the Supreme Court and based on the said findings, Writ Petition No. 277/88 was decided on 15.4.91. The petitioners prayed for disposal of their writ petition in terms of order dated 15.4.91. It was in these circumstances, Supreme Court in the said petition passed an order datde 30-11-92 directing Assistant Labour Commissioner, Central Government, at Lucknow to conduct an enquiry into the allegations whether petitioners who are Porters have been working continuously and whether the work is of a perennial source and the requirement of Section- 10 of the Act have been satisfied. Pursuant to this order as well as another similar order dated 26.4.93, a detailed enquiry was made by Assistant Labour Commissioner after affording opportunity to all the concerned parties and he submitted his report dated 31.8.93 and gave the following findings:
"(i) Writ petitioners have been working as contract labour Railway Parcel Porters continuously for a number of years.
(ii) The work of parcel handling is permanent and perennial in its nature and it could keep all the petitioners-parcel porters continuously engaged.
(iii) in certain railway stations the parcel-handling work is done by Railway Parcel Porters, regularly and permanently employed by Railways.
(iv) Contract labour for parcel handling is done by labour supplied to Railways through societies or private contractors."
22. It was on the basis of aforesaid findings given by the Assistant Labour Commissioner in which it was clearly stated that the work done by such workers was of permanent and perennial in nature and in certain Railway Stations such work was done by employees regularly and permanently employed by Railways, that the court gave specific directions. It is, therefore, again a case where Supreme Court had called for the report, which was given by Assistant Labour Commissioner on the basis of evidence produced before it by both the parties. Thus, it can be said that under the directions of Supreme Court, Assistant Labour Commissioner performed the function, which is normally to be performed by Labour Court/Industrial Tribunal, as noticed in the judgment of R.K. Panda case or by appropriate Government under Section 10 of Contract Labour (Regulation & Abolition) Act. This case, therefore, cannot be of any help to the petitioners.
23. As far as case of Secretary Haryana State Electricity Board (H.S.E.B.) (supra) is concerned, again this was a case which arose from the Award passed by Labour Court in a reference made to it. The industrial dispute was referred to the Labour Court and on an evidence produced before it, Labour Court came to definite finding that the intermediary contract was a mere eye wash and after applying the principle of lifting of the veil it could be found that there was a direct relationship of employer and employee between the workman and the principal employer. This case, therefore, supports the contention of the respondents that the appropriate authority to decide the question as to whether contract is sham or camouflage, which is a disputed question of fact, is Labour Court/Industrial Tribunal which has to decide the question on the basis of material produced before it.
24. Mr. Raj Birbal, Senior Counsel for AAI relied upon following judgments to contend that the petitioners had alternate efficacious remedy before Labour Court/Industrial Tribunal which is a complete machinery provided under the Industrial Disputes Act :
1. Dinesh Prasad and Others Vs. State of Bihar and Others 1985 Lab. I.C. 287.
2. Chandrama Singh Vs. Managing Director, U.P. Cooperative Union, Lucknow and Others 1991 Lab. I.C. 2413.
3. Tarlok Chand and Others Vs. National Industrial Development Corporation Ltd. and Others 35 (1994) Delhi Law Times 157.
4. Shri D.P. Singh Vs. M/s. Engineering Projects (India) Limited 1995 1 AD (Delhi) 478.
5. Chet Ram Vs. Union of India 1998 IV AD (Delhi) 816.
6. Modern Food Industries Employees Union Vs. Modern Food Industries and Another CWP. 5066/1993 decided on 18.5.1999 by K. Ramamoorthy, J.
25. It would not be necessary to deal with these judgments in detail in view of my aforesaid discussion. Suffice it to say that as per well settled law in all these judgments, the appropriate remedy for the petitioners is to invoke the machinery under the Industrial Disputes Act.
26. The position in law in respect of contract workers under the Contract Labour (Regulation & Abolition) Act can be summarised as under :
1. The Act allows and recognises contract labour and framers of the Act never purported to abolish it in its entirety.
2. It is for the appropriate Government to decide under Section 10 of the Act whether the abolish contract labour in any process, operation or other work in any establishment. For this, procedure is prescribed under Section 10(2) of the Act as per which "appropriate Government" has not only to consult the Board but also take into consideration factors mentioned in Section 10, which include the consideration as to whether the work being performed by the workers in such establishments is of perennial nature or not. In various judgments Supreme Court has held that this is a function which is to be essentially performed by appropriate Government and not by the High Court under Article 226 of the Constitution of India or Supreme Court under Article 32 of the Constitution of India.
3. If Notification under Section 10(2) is issued by the appropriate Government then the said establishment in that process, operation or work to which such Notification relates, the said establishment cannot engaged contract labour. Further existing contract labour would become direct employees of the Principal employer - Air India Statutory Corporation case (supra).
4. In the absence of such Notification, there is not right which flows from the provisions of the Act for the contract labourers to be absorbed or become the employees of Principal employer and, therefore, such contract labourers cannot approach High Court under Article 226 or Supreme Court under Article 32 or Article 136 of the Constitution of India for claiming regularisation.
5. However, if, in a particular case the contract workers claim that the contract system in the particular process, operation or other work in an establishment is of perennial nature and notwithstanding the fact that ingredients of Section 10(2) of the Contract Labour (Regularisation & Abolition) Act are satisfied, the practice of contract labour is continued, then they can approach the appropriate Government under the Act for issuing necessary notification under Section 10 of the Contract Labour (Regulation & Abolition) Act.
6. In case the contract workers claim that a particular contract in any process, operation or other work in the establishment is sham, and they have become direct employees of the principal employer then the remedy is to raise industrial dispute.
27. Whether such contract labourers have become the employees of Principal Employer in course of time and whether the engagement and employment of labourers through contract is a mere camouflage and a smoke screen is a question of fact and has to be established by the contract labourers on the basis of requisite material. If in a given case, contract labourers contend that the work is of perennial nature and the contractor is a mere camouflage, the appropriate remedy for them is to raise industrial dispute and seek reference to Labour Court/Industrial Tribunal under the Industrial Disputes Act, which are the competent fora to adjudicate such dispute on the basis of oral and documentary evidence produced before them.
28. Therefore, even in the absence of Notification under Section 10(2) of the Act, the Contract workers can raise dispute and if they were able to establish that the contract was a sham and a contractor is mere camouflage and a smoke screen, Industrial Tribunal/Labour Court can give appropriate relief to them directing the Principal Employer to absorb such contract workers as its direct employees but it has to be done by the Labour Court/Industrial Tribunal on the basis of material produced before it as it is to be determined by the said court as to as such at what point of time a direct link is established between the contract labourers and the Principal Employer, eliminating the contractor from the scene, is a matter which has to be established on the material produced before court.
29. In the instant case, as mentioned above, the work was assigned to AAI by the Customs Department on temporary basis which can be treated as a stop gap arrangement. No doubt, in the process, AAI handled the said work for more than a decade. But fact remains that it awarded the work to contractor, namely, M/s. EATS Ltd. who engaged the petitioners. Again, it is an admitted fact that there is no such work for AAI after it is taken over by the Customs Department and even otherwise it is a statutory obligation of the Customs Department to manage mishandled/detained baggage Warehouse. There is neither any such work with AAI as on today nor there is any likelihood of this work with AAI in future as well. Therefore, it cannot be said that in the hands of AAI, the work was of perennial nature. After the Government of India took the decision that Customs Department would manage the Warehouse departmentally and it is taken away from AAI, AAI was left with no alternative but to terminate the contract with M/s. EATS Ltd. asking it to handover the said Warehouse to the Customs Department. Therefore, petitioners, cannot claim any relief of regularisation against AAI on this ground as well.
30. Faced with this situation Mr. G.D. Gupta argued that as far as Customs Department is concerned it has to undertake the work of managing mishandled/detained baggage Warehouse and since this work has to continue by the Customs Department, and as petitioners have been working in the same baggage warehouse for a number of years, direction can be issued to Customs Department to absorb the petitioners. In the counter-affidavit filed by the Customs Department, it is stated that as far as Customs Department is concerned, it had vested the custody of Warehouse to M/s. AAI under the provisions of Customs Act and it is AAI which inturn engaged M/s. EATS Ltd. as contractor and M/s. EATS Ltd. deployed these petitioners. Therefore, there is no privity of contract between Customs Department and M/s. EATS Ltd. and in the absence of my contractual obligation with M/s. EATS Ltd., the Commissioner of Customs Department could not be imp leaded as respondent and no relief can be sought against it. During the course of the arguments, Mr. B.P. Aggarwal appearing on behalf of Commissioner of Customs pointed out that the Customs Department had decided to manage the said Warehouse with its own existing officers and it did not require any additional hands and, therefore, there was no scope to absorb the petitioners.
31. In view of the above said facts, no direction can be issued against Commissioner of Customs as well to absorb the petitioners or regularise their services. However, keeping, in view that fact that these petitioners have worked for number of years and 12 petitioners are working in the said Warehouse even today, it would be appropriate for Commissioner of Customs to consider as to whether there is requirement of manpower of manage the mishandled/detained baggage warehouse and, if so, to consider the cases of the petitioners for suitable appointments keeping in view the nature of job being performed by them and having regard to the Recruitment Rules of the said respondents in this respect for such posts. With these observations the writ petition is otherwise dismissed.
No orders as to costs.