Patna High Court
Tata Engineering & Locomotive Co. Ltd. vs Singhbhum Thekedar Mazdoor Sangh And ... on 15 May, 2000
Equivalent citations: 2000(48)BLJR1449, [2000(86)FLR922], (2000)IILLJ1541PAT
Author: P.K. Sinha
Bench: P.K. Sinha
JUDGMENT S.N. Jha, J.
1. The dispute in this letters patent appeal arising from the judgment and order of the learned single Judge in C.W.J.C. No. 3133 of 1995(R) relates to abolition of contract labour in storage and handling work of scrap materials in the scrapyard of Telco Ltd., Jamshedpur, under the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 (in short the Contract Labour Act) and regularisation of the services of the members of the respondent-Union as employees of Telco. The respondent-Union filed the aforesaid writ petition seeking implementation of the notification regarding abolition of contract labour in the aforesaid works under Section 10 of the Act. By the impugned judgment and order, the learned single Judge allowed the writ petition with certain consequential directions. The management has come in appeal.
2. Tata Engineering and Locomotive Company Limited (Telco), the appellant, is a company incorporated under the Companies Act engaged in the manufacture of automobiles, etc. having factory premises at Jamshedpur. In connection with its works, it employs a large number of workmen and also engages contractors for certain types of work who in turn engage their own labourers for executing such works. Dispute arose relating to employment of contract labour in the establishment of the appellant-company in view of the provisions of the Contract Labour Act and on December 16, 1977 a notification was issued prohibiting employment of contract labour in works relating to(a) production and maintenance of machines, (b) carrying of materials from the storages to the machines and back in different departments, (c) sweeping and cleaning of workshops, roads and drains within the factory premises, (d) stock taking and watch & ward, and (e) sanitation in the Telco colony. The said notification was published as SO 1721 on December 31, 1977. Writ petitions were filed by one Birsa Nagar Welfare Society and another before this Court as well as the Supreme Court. During the pendency of the case on February 14, 1980, a tripartite settlement was arrived at between the management and the Unions concerned with respect to absorption of contract labourers rendered unemployed due to abolition of contract system. As per the terms of the settlement, the contract labourers who were engaged in the works specified in the aforementioned five categories on rolls on July 31, 1979 and had put in minimum, one year service up to that date were to be enrolled as regular employees of the company with effect from January 1, 1980, subject to certain conditions, which are not required to be noticed in this case. One of the terms of the settlement was that in case of dispute as to the strength of the workmen in the aforementioned category, the Union would submit details to the management by March 15, 1980, followed by tripartite discussion if the management and the union are not able to resolve the dispute. Further, in case of anomaly or difficulty in the implementation of settlement the dispute was to be raised within three months and sorted out jointly by the management and the Union, and in case of difference the matter was to be referred to the Labour Department of the State Government for resolution. In this manner, it is said, between February 14, 1980 and March 22, 1982 about 2,500 workmen were absorbed in the service of the appellant-Company. The dispute, however, remained with respect to about 200 workers working in the scrapyard. Though as per the terms of the settlement, as mentioned above, the dispute was to be resolved bilaterally or, if necessary, through the intervention of the Labour Department, grievance was raised on the floor of the Bihar Legislative Assembly by one Shri Dinanath Pandey, Member of the Assembly. Another motion was made by one Shri Abhay Charan Lal, another Member. The Speaker referred the matter to the Petitions Committee of the House. After inquiry, the Petitions Committee submitted reports being Report Nos. 222 and 223 recommending abolition of the contract labour system in the scrapyard of appellant's establishment. The reports submitted to the Speaker were forwarded to the State Government for compliance. The Joint Labour Commissioner, Government of Bihar, vide his letters dated February 4, 1985 and February 5, 1985 asked the Deputy Labour Commissioner, Jamshedpur, to ensure compliance of the two reports and the Deputy Labour Commissioner vide his letter dated February 26, 1985 asked the management to implement the same.
3. The appellant preferred C.W.J.C. Nos. 412 and 414 of 1985(R) for quashing the said reports of the Petitions Committee and directions of the Joint/Deputy Labour Commissioners. The grounds of challenge, inter alia, were (a) recommendation of the House Committee amounted to encroachment upon the jurisdiction of the State Government under Section 10 of the Contract labour Act as well as the Industrial Courts and were also violative of the appellants fundamental rights under Articles 14 and 19(1)(g) of the Constitution, (b) matter relating to abolition of contract employment in the appellant's establishment was not a matter of such general public importance of which the House Committee could take cognizance, (c) respondents had no power to thrust upon the principal employer the employees of the contractor retrenched on account of abolition of contract labour system, and (d) those employed in the scrapyard were the employees of the contractors and not of the appellant's company.
4. A Division Bench of this Court vide its judgment dated June 14, 1990 did not go into the fourth contention aforesaid because it involved questions of fact, but rejected all other contentions. It did not accept the plea that the Petitions Committee was incompetent to entertain the grievance, make inquiry and submit its recommendation. However, observing that though the recommendation of the House Committee deserves respect, having regard to the statutory provisions, the recommendation notwithstanding the State Government was duty-bound to follow the procedure under Section 10 of the Contract Labour Act, and since no notification as envisaged in that Section had been issued by the State Government, the impugned recommendation could not be given effect to. The Court held that the only way in which the State Government can abolish the contract labour in the petitioner's scrapyard is to act in accordance with Section 10 of the Contract Labour Act, and in the matter of reinstatement of the employees, in accordance with the procedures laid down in the Industrial Disputes Act. The writ petitions, were accordingly allowed, the orders of the Joint/Deputy Labour Commissioners were quashed and the respondents were restrained from giving effect to the said two orders. The respondents, however, were given liberty to proceed further in accordance with law in the light of the observations made in the judgment, I shall refer to the relevant parts of the judgment again hereinafter at the appropriate place.
5. The respondent-Union preferred Special Leave Petition/Civil Appeal No. 4049 of 1990 in the Supreme Court which was disposed of on September 27, 1991 with certain observations and directions. I shall refer to those observations/directions later at the appropriate place in this judgment. Suffice it to mention here that while approving the conclusion of this Court that the only way the State Government could act to abolish the contract labour was to take steps in accordance with Section 10 of the Contract Labour Act, the Supreme Court observed that it was incumbent upon the Government to consider the case of the appellant, i.e., the Union with reference to the provisions of Section 10 of the Contract Labour Act and pass appropriate order keeping in mind all the facts and circumstances including the findings of the Petitions Committee of the Bihar Legislative Assembly. Observing further that long delay had already occurred and the dispute has remained unsettled for more than 20 years the State Government was directed to pass appropriate orders within three months. On February 12, 1993, the State Government issued the impugned notification which was published in the Official Gazette as SO 34 on February 17, 1993 but this was only after a Contempt Petition (M.J.C. No. 290 of 1992) was filed in this Court. When nothing further happened in the matter, the respondent-Union filed an interlocutory application in Civil Appeal No. 4049/1990 before the Supreme Court on or about September 12, 1994. On January 13, 1995, the said application was withdrawn. According to the Union, the application was withdrawn to enable the Union to file writ petition in this Court at the first instance. The Union, thereafter, filed C.W.J.C. No. 3133 of 1995(R), giving rise to the present letters patent appeal, which was allowed by judgment and order dated September 13, 1999 with a direction to the appellant to implement the provisions of the Contract Labour Act, particularly, the notification dated 12/17 of February, 1993 and, further, to regularise the services of the members of the Union working in the Scrapyard under Kay Pee & Company, the alleged contractor, with effect from the date of the notification. The learned single Judge further directed that upon their regularisation, after proper identification and verification the workmen concerned would be entitled to the same wages as are being paid to similarly situate workmen. Any workman unable to work on account of injury after February 17, 1993 shall be entitled to suitable compensation in accordance with law.
6. I have omitted to mention the developments that took place between the date of the order of the Supreme Court i.e. September 27, 1991 and the impugned notification i.e. 12/17 of February, 1993 during which the Bihar State Contract Labour Advisory Board and the sub-Committee constituted by it considered the matter and submitted their opinion and the notification was issued. There is dispute on the point and considerable argument has been advanced by the Counsel for the parties in this regard, and I propose to first briefly mention the relevant facts about which there is no dispute.
7. It appears that after the disposal of Civil Appeal No. 4049 of 1990, report was called for by the Labour Commissioner, Bihar, from the Deputy Labour Commissioner, Jamshedpur who submitted his report on January 9, 1992. On June 5, 1992, the State Advisory Board constituted a sub-Committee consisting of the then Labour Commissioner, Shri Shashikant Sharma as convenor and Shri N.K. Sharan, Shri Ramashray Prasad and Shri Yogendra Thakur as members. On September 5, 1992, the convenor submitted his individual opinion. On November 19, 1992, the Advisory Board recommended abolition of the contract labour working in the scrapyard of the appellant-company. Though S/Shri N.K. Sharan, Ramashray Prasad and Yogendra Thakur were party to the recommendation they submitted a different opinion on November 24, 1992 holding that the contract labour working in the scrapyard cannot be stopped.
8. Before noticing the contentions of the parties, a small dispute as to the date of the report/advice of the Advisory Board may be sorted out. I have mentioned hereinabove that on November 19, 1992, the Advisory Board submitted its report/advice. According to the appellant, the date of the report is October 19, 1992 and as the members of the sub-Committee gave their opinion on November 24, 1992 the report/advice of the Advisory Board should be rejected as being antedated, as already held by the learned single Judge. The first part of the submission, if I may say so, is based on misreading of the document. October 19, 1992 is the date on which meeting of the State Advisory Board was held and the minutes of the proceedings were recorded, while November 19, 1992 is the date when the minutes/advice were circulated amongst the members and communicated to the Department by memo No. 556 of date. Thus, I do not find any discrepancy in the two dates, though it is true that even if November 19, 1992 is treated as the date of the report, three members of the Committee had submitted their separate opinion later. I shall deal with this aspect of the case a little later.
9. Shri M.N. Rao, learned counsel for the appellant, raised the following contentions. The State Government has purportedly acted on the advice of the State Advisory Board contained in its recommendation (Annexure-E/4), but considering the fact that the sub-Committee submitted its report later on November 24, 1992, the so-called advice of the Advisory Board could not form the basis of the decision. The learned single Judge having already held the report/advice of the Advisory Board to be ante-dated, committed error in relying on the individual opinion of the convenor of the Committee dated September 5, 1992. Once the report of the Committee dated November 24, 1992 is ignored, it would follow that there was no basis left on which the State Government could take the decision. In any view, three members of the Committee had taken a contrary view holding that the contract labour in the scrapyard cannot be abolished, which not only takes away the sanctity of the minutes of the proceeding but also removes the very basis on which the State Government could take the decision. The advice of the Advisory Board is a pre-condition for abolishing the contract labour under Section 10 of the Contract Labour Act and there being no such advice, the State Government could not decide to abolish the contract labour in the appellant's scrapyard; In any case, the decision is not in conformity with the provisions of Section 10 of the Contract Labour Act as it does not take into account the factors mentioned in Sub-section (2) thereof. Though the High Court cannot sit in appeal over the decision of the State Government, it is open to it to make a judicial review of the existence of the foundational facts or conditions precedent, and to that extent the satisfaction of the State Government is subject to judicial review by this Court.
10. Submissions were also made on facts. It was contended that Kay Pee & Company does not conform to the description of contractor under Section 2(c) of the Contract Labour Act nor the appellant can be called principal employer, and the contract labour in question could not be brought within the purview of the Act. The settlement of 1980 was a comprehensive settlement which covered all contract labourers coming within the purview of Section 2(b) of the Act. Without getting the dispute resolved bilaterally or through the intervention of the Labour Department, a dispute was raised on the floor of the Legislative Assembly. The Petitions Committee had no jurisdiction to entertain and submit any recommendation. Lastly, having approached the Supreme Court by filing interlocutory application in Civil Appeal No. 4049 of 1990 and later withdrawn the same, the writ petition of the respondent-Union seeking similar direction was not maintainable.
11. On behalf of the respondent-Union the following contentions were raised. The appellant did not challenge the validity of the impugned notification dated 12/17 of February, 1993 and it cannot be allowed to do so at this stage. Under Section 10(1) of the Contract Labour Act, consultation with the Advisory Board is essential but the opinion of the Advisory Board is not binding on the State Government. The decision in regard to the abolition of the contract labour has to be taken by the State Government taking into account all materials before it, giving due regard to the factors mentioned in Section 10(2), without limiting itself to the report/advice of the Advisory Board. In the present case, it was not only open to the Government, rather the Government was obliged to take into consideration the report/recommendation of the Petitions Committee as per the judgment and order of this Court in C.W.J.C. Nos. 412 and 414 of 1985(R) and Civil Appeal No. 4049 of 1990. Though three members of the committee submitted a contrary opinion, it would appear that in course of the deliberations of the Advisory Board on October 19, 1992 in which they had participated, they had left the decision to be taken by the Labour Commissioner-cum-Convenor of the Committee. The members having, thus, acquiesced in the opinion recommending abolition of contract labour could not turn around and submit a different opinion. In any view, it was open to the State Government to accept the minority opinion of the Convenor and reject the majority opinion of the members. The appellant's case that with the removal of the scraps and their sale in the scrapyard the work of the management comes to an end and it is concern of the auction-purchaser to lift the scraps is not correct.
12. I find sufficient force in the argument of the Union that having not challenged the impugned notification dated 12/17 of February, 1993, the appellant cannot question its validity as a respondent in a writ petition. The submission of the Counsel for the appellant in this regard was that Kay Pee and Company has instituted a suit viz., Title Suit No. 10 of 1993 before the subordinate Judge, Jamshedpur, challenging the validity of the said notification. I have gone through the plaint of that suit. The suit is against the State of Bihar and the officials of the Labour Department. The Bihar State Advisory Contract Labour Board and the members of the Sub-Committee, including Shri Shashikant Sharma, the then Labour Commissioner who also happened to be the convenor of the sub-Committee have also been impleaded as defendants. The appellant-Company and one Bindavasini Iron Steel Company figure as "pro forma defendants". The plaintiff tried to make out a case that abolition of contract labour is likely to cause irreparable loss to their business and thus impair their fundamental right to carry on trade and business. As the suit is said to be still pending, I do not propose to make comments on the plaintiffs case. But, prima facie, the plea does not seem to be in accord with the state of affairs or the provisions of the Contract Labour Act. The term contractor has been defined in Section 2(c) of the Act to mean, inter alia, a person who supplies contract labour for any work of the establishment, and the term contract labour has been defined in Section 2(b) to mean a workman 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 10, which is the charging Section of the Act, lays down that notwithstanding anything contained in the Act, the appropriate Government may prohibit employment of contract labour in any process, operation or other work under any establishment, having regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors such as enumerated in Sub-section (2). Thus, where the conditions requisite are fulfilled and the appropriate Government is so satisfied, it may after consulting the Advisory Board prohibit employment of contract labour. The provision, it need hardly be emphasised, has been enacted for the benefit of the workmen employed as contract labour. Prohibition of employment of contract labour results in making them employees of the principal employer. I fail to understand how this can be said to be detrimental to the interest of business and trade of plaintiff Kay Pee & Company.
13. A more or less similar argument, though from a different angle, seems to have been advanced by the appellant before this Court in the previous writ petitions, i.e., C.W.J.C. Nos. 412 and 414 of 1985(R). It was argued that there is no power to thrust upon the principal employer, such employees of the contractor who stand retrenched on account of the abolition of the contract labour. Being inter-party judgment, I feel tempted to quote the relevant parts of the judgment as under:
"This argument is quite attractive. Yet to hold that a decision to prohibit employment of contract labour in any process, operation or other work in any establishment will result in rendering a contract labour unemployed and the principal employer shall have no obligation to continue such contract labour in its roll, is not possible.....Every worker who works in connection with the work of an establishment is to be treated as the worker of the principal employer.... Abolition of the contract labour system on account of prohibition under Section 10 of the Act, therefore, shall only remove the contractor and continue the work and the employment with the principal employer.....".
In view of these findings of this Court and, having regard to the aims and objects of the Contract Labour Act, I wonder, if there was any scope for filing a suit by the contractor. The approach of this Court, it may be pointed out, is in accordance with the recent decisions of the Supreme Court in Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 : 1997 (9) SCC 377 : 1997-I-LLJ-1113 and Haryana State Electricity Board v. Suresh, AIR 1999 SC 1160 : 1999 (6) SCC 610 : 1999-I-LLJ-1086.
14. In the facts and circumstances, I have grave doubts about the bona fide of the suit. I am inclined to think that the suit was collusively filed at the behest of the appellant as proxy litigation, if I may say so. That being so, I wonder if it is possible for the appellant to take shelter of the suit to escape the consequence of the failure to challenge the impugned notification in a Court of law till date. The law, I think, is settled that like defendant of a suit, no person can be allowed to challenge any action of the Government collaterally as a respondent.
15. However, I do not propose to reject the case of the appellant on the solitary ground that it did not challenge the validity of the notification. The Union has approached this Court seeking direction to implement the notification, and any such direction can be issued only if the notification is in accordance with law. If it is not so, the Court may decline to enforce its implementation, for that may result in perpetuating a wrong or illegality. And to that extent the appellant may be allowed to point out the infirmities, if any, in the notification.
16. At this stage, Section 10 of the Contract Labour Act may be quoted in extenso as under:
"10. Prohibition of employment of contract labour.(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under Sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as:
(a) Whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment,
(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment,
(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) whether it is sufficient to employ considerable number of whole time workmen.
Explanation: If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final."
The Section, it would appear, empowers the appropriate Government to prohibit, that is, abolish employment of contract labour in any process, operation or other works in any establishment "after consultation" with the Board, i.e., the State Advisory Contract Labour Board constituted under Section 4 of the Act in the case of the State. Under Sub-section (2), the Government is required to take into account the conditions of work and benefits provided for the contract labour in the establishment and other relevant factors as enumerated in Clauses (a) to (d). The submission of Shri M.N. Rao in this regard was that the factors having been specified in Clauses (a) to (d), the expression "and other relevant factors occurring in subsection (2) should be interpreted ejusdem generis because the words are qualified by the expression "such as". In other words, while considering the question of prohibition/abolition of contract labour, the State Government is required to confine itself to the question as to whether process, operation or other work (in question) is incidental to or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment, whether it is of perennial nature, whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto and whether it is sufficient to employ considerable number of whole time workmen and any other factor similar to those four factors.
17. The significance of the above submission is that if a narrow interpretation is given to the provisions of Section 10(2), it would not be open to the Government to take into consideration the report of the Petitions Committee and/or other materials which admittedly were with the State Government. In my opinion, Contract Labour Act has been enacted as a beneficial legislation to provide protection to the labour class and it would not be correct to give a restricted interpretation to the provisions. According to me, the factors specified in Clauses (a) to (d) are merely illustrative in nature. The words "such as"
leave little room for doubt that they are not exhaustive. As per the main provisions of Subsection (2), the State Government is required to have due regard to "the condition of works and benefits provided for the contract labour" in the particular establishment. In other words, while taking decision in regard to the prohibition/abolition of the contract labour, the State Government is under a mandate to, first give due regard to the conditions of work and the benefits available to the contract labour, and then to other relevant factors such as those mentioned in Clauses (a) to (d).
18. The question as to whether the Petitions Committee report could form the basis of abolition of the contract labour was the main thrust of challenge by the appellant in the previous writ petition, i.e., C.W.J.C. Nos. 412 and 414 of 1985(R). Dealing with the submissions, this Court had observed:
"Should the Court be unmindful of the grandeur and majesty of the task which has been assigned to the legislature under the Constitution? It is often said, and I repeat with respect, that all the legislative chamber in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country and that naturally gives the legislative chamber a high place in making history today. Their role is important but critical. They tread on difficult paths. They cannot be unmindful of the plight and misery, pains and sufferings of the people. Their awareness and concern for those employed as contract labour and those who were retrenched on account of abolition of contract labour system shall be in tune with the calling and the duty as members of the Legislature.
It is, however, difficult to accept that a matter which concerns the life of labourers who had been working under the contractors until the contract system was abolished or the life of contract labourers under a principal employer who had engaged contractors to works which were incidental to or necessary for its trade/business and of perennial nature, and done ordinarily through regular workmen in that establishment or an establishment similar thereto, is not a matter of general public importance. So long the Petitions Committee acted within the four corners of the rules and did not step out of (sic) the limitations imposed by them, it cannot be said to have acted arbitrarily.
Every conscious citizen shall get concerned with the plight of the contract labour, particularly those who are retrenched on account of abolition of contract system. Even as an individual and citizen of the country one may have the privilege of calling upon the appropriate authorities to look into the matter and do the needful. By their act of entertaining, the motion of the two members of the Legislature, the Petitions Committee in no way encroached upon the jurisdiction either of a Court or Tribunal or authority empowered to take cognizance under (sic) Act.
I repeat that it is not possible to hold that the House Committee exceeded its Constitutional or statutory limitations. .. .It is not a case to consider whether the House Committee had any jurisdiction to call upon the petitioners to show cause or to disclose before it facts which they did not intend to disclose. The petitioners did not question any act of the Petitions Committee at any stage earlier to their objecting to the impugned actions. Actions which appear to affect the petitioners have been taken by the Joint Labour Commissioner and the Deputy Labour Commissioner and not by the House Committee.... The relevant issues, therefore, concern the acts of the two officers of the State Government after the reports were received by them."
Having made the above observations, this Court held that though the recommendation of the House Committee deserved respect, in view of the statutory provisions of the Contract Lahour Act, it had no legal effect and unless the State Government abolishes the contract labour system in accordance with Section 10 of the Contract Labour Act, the employment of the contract labour in the appellant's scrapyard cannot be prohibited, that is, abolished.
19. When the matter went to the Supreme Court at the instance of the respondent-Union, the Supreme Court noted that as the findings of the High Court had not been challenged either, by the management or the State Government they had become final and were binding on them and in the circumstances it was incumbent upon the Government to consider the question of abolition of the contract labour system in the context of the Union under Section 10 of the Act and pass appropriate order "bearing in mind all the facts and circumstances concerning it, as pleaded by it and also considered by various bodies including the findings of the Petitions Committee of the Bihar Assembly."
20. Shri Rao urged that having regard to the express provisions of Section 10(2), which does not permit or contemplate considering: reports or findings of foreign bodies like the Petitions Committee of the Legislative Assembly, the aforesaid direction of the Supreme Court to also bear in mind the findings of the Petitions Committee should be ignored. He submitted that it is well settled that the judgment of a Court is not to be read like words of statute.
21. It is true that the words of a judgment or order of a Court are not to be read as words of statute. But this is so because the judgment in a particular case is given in the facts of that case and since the facts of two cases may not be same or similar, all that has been said in a case may not be quite relevant in another case. This is the reason why it has been held that what binds the Court is the principle or law laid down in an earlier case and not what follows from it. This principle, however, will not be applicable in the case of inter-party judgment. While considering the correctness of the action of the State Government in abolishing contract labour in the appellant's scrapyard by the impugned notification, the findings recorded by the Court in the previous case cannot be ignored. In fact, being inter-party, they are binding. Dealing with the report of the Petitions Committee, this Court observed that the findings of the Petitions Committee deserve respect; the Supreme Court going a step further directed the State Government to take the decision "bearing in mind all the facts and circumstances", concerning the Union as pleaded by it and also as considered by various bodies, "including the findings of the Petitions Committee of the Bihar Assembly". The above direction of the Supreme Court was clearly binding on the State Government and is equally binding on this Court. The submission of Shri M.N. Rao in this regard, therefore, has to be rejected. It would, thus, follow that the State Government was not only competent but under a mandate to consider the entire facts and circumstances of the case, the findings of different bodies including the Petitions Committee of the Bihar Legislative Assembly.
22. It has been urged that majority opinion of the Committee was not in favour of the abolition of the contract labour system and since the State Government cannot act under Section 10 of the Contract Labour Act without seeking the opinion of the Advisory Board, it would follow that the very basis for abolition of contract labour system was absent and hence, the notification must be held to be bad. The submission involves the question whether the opinion of the Advisory Board is binding on the Government and secondly, where the opinion of the Board is not unanimous, whether the Government is bound to accept the majority opinion.
23. Section 10 of the Act has been quoted above and it would appear that there are two distinct parts of this Section. Under Sub-section (1), the appropriate Government is required to consult the Central Advisory Board or the State Advisory Board, as the case may be. Such consultation is a precondition of the exercise of power. However, under Sub-section (2), the Government is required to take its own independent decision keeping in view the guidelines laid down therein. In taking the decision, the Government is supposed to give due consideration to the conditions of work and the benefits available for the contract labour in the particular establishment and other factors such as specified therein.
24. Reading the two sub-sections conjointly, as it ought to be, there is little room for doubt that advice of the Advisory Board is not binding on the Government. By saying so, I should not be understood as belittling the importance of the advice. The Advisory Board consists of persons of expertise and experience. Section 4 of the Act lays down the composition of the State Advisory Board from which it appears that the Board consists of, besides the Chairman to be appointed by the State Government, the Labour Commissioner or (or in his absence any other officer nominated by the State Government in that behalf), members not exceeding eleven but not less than nine representing the Government, the contractor, the workmen and other interests which in the opinion of the State Government ought to be represented. The Advisory Board thus is supposed to be an expert body representing different and varied interests. Being a body of experts, it is supposed to provide necessary inputs to the Government in the matter and that is apparently why consultation with the Advisory Board has been made mandatory. The idea seems to be that the Government should not act on its own without getting opinion of the experts? The decision to prohibit/abolish contract employment depends on several factors and it may not be worthwhile taking decision without expert advice. But, this does not mean that the opinion of the Board should be treated as final and binding on the Government. If it were so, Sub-section (2) of Section 10 would have said so. Instead, as it is, Sub-section (2) obliges the Government to decide the matter having due regard to the conditions of the work and the benefits available to the contract labour in the establishment and other factors such as mentioned therein. I am inclined to think that while tendering its advice the Advisory Board also should give due regard to those very considerations but the decision in the matter has to be taken by the Government. Advice after all is an advice and unless the context in which it is tendered suggests otherwise, it cannot be binding on the authority. If it is so, where the advice tendered by the Board is fractured, it would be open to the Government to accept the minority advice in preference to the majority advice.
25. Taking its legal position to its logical end, in the present case, if the State Government was in possession of materials or evidence having bearing on the conditions of work and the benefits available to the contract labour in the scrapyard of the appellant, for example, through the report of the Petitions Committee, and on that basis decided to abolish the contract labour system, I wonder if the decision could be interfered with in writ jurisdiction on the ground that the opinion of the Board/ Committee was 'antedated' or that majority had opined against the abolition.
26. The submission that Kay Pee & Company does not conform to the description of contractor in Section 2(c) of the Act is not understandable to me. Contractor in relation to an establishment means, inter alia, a person who provides contract labour for any work of the establishment. There is no dispute that after the scraps are brought from the factory premises to the scrapyard by the employees of the appellant-Company and by auction sold there, the work of removal of the sold out scraps, some times after segregating them from the unsold materials also piled there into the vehicles hired by the auction-purchaser is performed by the employees provided by the Contractor, i.e. Kay Pee & Company. In the manufacturing process, scraps of different kinds do come out of the process and they have to be removed to another place for disposal. The process involved in the employment of contract labour does prima facie appear to be incidental to and necessary for the manufacturing process carried on in the establishment, and of permanent nature.
27. The submission that instead of raising the dispute bilaterally or in the Labour Department as agreed per 1980 settlement is peripheral and does not go to the root of the matter particularly in view of the subsequent events including judgments by this Court as well as the Supreme Court in the meantime, and appellant cannot be allowed to rake up such issues now. The other submission that the writ petition was not maintainable in view of the fact that the Union had withdrawn its Interlocutory Application filed in Civil Appeal No. 4049/1990 before the Supreme Court has no substance whatsoever. A fresh cause of action having accrued, upon issuance of notification under Section 10(1) of the Contract Labour Act, it was certainly open to the Union to file writ petition for implementation of the notification/decision and the fact that the Interlocutory Application was not entertained by the Supreme Court cannot be understood as depriving the Union of its right to seek its implementation.
28. Before I close the discussion, I must notice the decisions cited on behalf of the appellant. Three decisions were cited on the point of consultation. They are Narayanan v. State of Kerala, 1974 (1) SCC 68; Narayan Das v. State of Madhya Pradesh, 1974 4 SCC 188 and Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987 : 1967-I-LLJ-412.
The first case related to revocation of licence under Section 4 of the Electricity Act, 1910. The point for consideration was at what stage consultation with the Electricity Board was necessary. The Board had been consulted but before the receipt of the explanation of the licensee. Upon construction of the provisions of Section 4 of the Act, as amended in 1958, keeping in mind the mandate of Article 19(1)(g) of the Constitution it was held that such consultation was required to be made after the licensee had submitted its explanation and the Board was made aware of it. It is relevant to mention here that in paragraph 22 of the judgment, the Court observed that the opinion of the Board was not binding.
Narayan Das v. State of M.P., was a case of prescription of text books for schools. Section 4 of the relevant Act laid down that the text books for Secondary Education shall not be prescribed without prior consultation with the Board. The notification mentioned that the prior consultation had been made, which was challenged on behalf of the petitioners. The point which fell for consideration was which party was required to prove whether the Board had been consulted earlier or not. In this connection the Court observed, "It is settled law that whenever the validity of an order depends on the fulfilment of a condition precedent and there is recital in the order that condition precedent is satisfied, the presumption arises in favour, of the satisfaction of the condition precedent and the burden is on the person challenging satisfaction of the condition precedent to prove that, in fact, the condition precedent was not satisfied."
The last mentioned case, i.e., Chandra Mohan v. State of U.P., was a case of appointment of a Judicial Officer as District Judge under Article 233 of the Constitution of India. Rule framed under Article 309 of the Constitution provided for appointment of District Judges in consultation with the Selection Committee. The Supreme Court struck down the rule as being violative of Article 233 of the Constitution which provides for consultation with the High Court. It was observed that the Indian Constitution provides for an independent Judiciary, the Court upheld the supremacy of the High Court in the matter of appointment of the District Judges and the word consultation in Article 233(1) was interpreted accordingly. Such interpretation was in the context of and on the basis of the provisions of Article 233 and can have no relevance while considering the amplitude of the same term occurring in Section 10(1) of the Contract Labour Act.
29. The decisions in Rohtas Industries v. S.D. Agarwal and Ors. 1969 AIR SC 707 : 1969 (1) SCC 325 and Slate of Gujarat v. Jamuna Das G. Pabri and Ors., AIR 1,974 SC 2233 : 1975 (1) SCC 138, were cited in support of the contention that the existence of the condition precedent in exercise of power is subject to judicial review under Article 226 of the Constitution. The principle is unexceptionable but the decisions are of little help as they were rendered on different facts and circumstances. The former case related to appointment of Inspector to investigate, the Company's affairs under Section 237(b) of the Companies Act Section 237(b) of the Companies Act provides, "If in the opinion of the Central Government, there are circumstances suggesting...". The Court held that the condition precedent for the exercise of power is the opinion of the Government and not the existence of the circumstances. I fail to understand how the decision can be of any help to the appellant. As a matter of fact, having regard to the provisions of Section 10(2) of the Contract Labour Act, it may be open to a principal employer to contend that the factors specified therein, which are required to be taken into account by the State Government, were not taken into account and therefore, exercise of power is bad in law. So far as the existence of the opinion of the Advisory Board is concerned, though it was a fractured opinion of the Board/Committee and not unanimous, as it normally should have been; I do not think that such condition precedent was absent and, therefore, the Government could not exercise the power under Section 10(1).
The case of State of Gujarat v. Jamnadasjee, related to postponement of reconstitution of Panchayats. Section 303-A of the Gujarat Panchayat Act, 1961 provided that notwithstanding anything contained in the Act or the Rules or bye-laws made thereunder, if at any time, the State Government is satisfied that a situation exists by reason of disturbance in the whole or any part of the State of Gujarat whereunder it was not possible or expedient to hold election for the re-constitution of Panchayats on the expiry of its term, the State Government could by notification in the official Gazette, make a declaration to that effect. Under Sub-section (2), such notification was to remain in force for a period not exceeding six months as specified therein; however, if the State Government be of the opinion that it was necessary to do so, it could by order and for reasons to be mentioned therein, extend, from time to time, the period so specified. But, in any case, the notification could not remain in force for more than a year in the aggregate. Upon analysis of the provisions, the Supreme Court held that a declaration referred to in Section 302(1) depends upon fulfilment of two requirements (i) that a situation existed by reason of disturbance in the whole or any part of the State, and (ii) the satisfaction of the State Government that it was not expedient to hold election for reconstitution of a Panchayat on the expiry of its term. The Court held that the first requirement was an objective fact but, the second was an opinion being inference drawn from that fact. The first requirement, if disputed, must be established objectively as a condition precedent to the exercise of the power, the second was the matter of subjective satisfaction of the Government and not justiciable.
30. The decisions cited on behalf of the appellant lay down principles which, if I may say so with respect, are well established. The only question is as to their application. In the facts of the present case, I do not think, they lend any support to the appellant's case. The learned single Judge has relied upon the recent decisions of the Supreme Court rendered in the context of the Contract Labour Act in the cases of Air India Statutory Corporation v. United Labour Union (supra), and Haryana State Electricity Board v. Suresh (supra), in order to highlight the salutary objects underlying the abolition of contract labour and its consequence. Instead of repeating what has been stated by the learned single Judge on the point, I would record my respectful assent with him.
31. The contentions raised on behalf of the appellant being devoid of substance and rejected, this appeal must fail, which is accordingly, dismissed, but without any order as to costs.
P.K. Sinha, J.
I agree.