Andhra HC (Pre-Telangana)
Pola Satyanarayana And Others vs Secretary, Govt. Of India, Ministry Of ... on 20 June, 2000
Equivalent citations: 2000(4)ALD403, 2000(4)ALT274, (2000)IILLJ1278AP
ORDER
1. The petitioners in these two writ petitions were working as contract labourers since several years in the maintenance and operation works in electrical department under the supervision of the 3rd respondent-Executive Engineer, Electrical Department in Begumpet Airport under the administrative control of the 2nd respondent i.e., Airport Authority of India and at a time when their services were sought to be terminated on the pretext that the term of the existing contractor expired and a new contractor has been engaged to attend to the works that are being performed by the petitioners all through filed these writ petitions for issuance of a Writ of mandamus to the respondents to consider their cases for regularisation in the trades they are working without inducting fresh candidates.
2. The undisputed facts of this case are that the 3rd respondent claiming to be the principal employer getting the works of maintenance and operation done by entering into contracts from time to time with the contractors who in turn were engaging the services of the petitioners as contract labourers to attend to these works. It also came to light that most of the petitioners are continuing in service by virtue of Clause incorporated in the agreement entered into between the 3rd respondent and the contractor that he shall engage the services of the existing contract labourers. There seemed to be a change in the officer in the year 1998 and this officer having deleted the said clause, issued notification and entered into an agreement with the 4th respondent to attend to the above works with effect from 20-6-1998 after following the procedure. In those circumstances, the 1st writ petition was filed. This Court while admitting the writ petition seemed to have not granted any interim directions for continuance of the services of the petitioners. Having failed to get the relief from this Court, Airport Authority Kamgar Union representing the petitioners, filed a case before the Conciliation Officer-cum-Regional Labour Commissioner (Centre) at Hyderabad under Section 2(k) of the Industrial Disputes Act, 1947 to admit the dispute of illegal termination of the services of the petitioners by the respondents in conciliation. The Conciliation Officer having admitted the dispute disposed of the same in his proceeding No.8(Ayi/98-E2, dated 18-8-1998 by addressing a letter to the Secretary to the Government of India, Ministry of Labour, New Delhi wherein he suggested that the entire dispute should be referred to Contract Labour Advisory Board (Central) for giving appropriate relief to the petitioners.
3. In the last week of July, 1998 the petitioners filed 3 WPMPs i.e., (1) WP MP 26343 of 1998 seeking permission of the Court to implead 3 more official respondents; (2) WP MP 26344 of 1998 seeking a declaration that the petitioners are entitled to continue in service by declaring the action of the respondents in not permitting the petitioner to attend duties as illegal and (3) WP MP 26345 of 1998 seeking a direction to the respondents to engage the services of the petitioners for attending to the electrical maintenance work at the Airport pending disposal of the writ petition. All these 3 WPMPs., were posted before this Court on 4-8-1998 and the respondents Counsel contended that there is no master and servant relationship between the petitioners and the 3rd respondent and as the term of the previous contractor was over, the question of continuing their services by the airport does not arise. As the new contractor was also made a party respondent to these proceedings while observing that the relief sought for by the petitioners will be considered after the counters are filed, directed the respondents to make internal arrangements to continue the petitioners in service. The respondents in the counter filed on 6-8-1998 contended that the works that are being attended by the petitioners are not perennial in nature and depending upon the adminislrative exigencies over and above the work turned out by the regular employees of the electrical department certain maintenance works of electrical installation are being got done through licensed contractors by awarding yearly contracts. As a contractor appointed these petitioners, they cannot be treated as employees working in the airport and there is no master and servant relationship between the petitioners and the respondents. They have gone to the extent of contending that the petitioners do not possess requisite qualifications to be appointed as regular employees forgetting the fact that in the contract entered into between the parties specified the qualifications to be possessed by the contract labour for attending the works specified in the contract.
4. They also contended that there is provision in the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act) for regularisation of services of the contract labour. In the additional counter filed, the respondents contended that the petitioners are working for different spells at different intervals with different contractors intermittently and as such any enforcement of'a claim or right against the official respondents for regularisation of their services isperse bad in law and cannot be entertained in the eye of law. It is nextly contended that the respondents started getting the work done through contract labour since 1994 after installation of radar for its maintenance and the contractors are being engaged by inviting tenders. It is also their case that modernisation of airports to provide improved facilities to the passengers on international standards is in progress and once modernisation and automation/ mechanisation is put into operation even the existing staff have to be removed gradually in a phased manner. Lastly, it is contended that this dispute cannot be resolved by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India as disputed questions of fact and law are involved in the light of the contentions of the parties the only proper forum would be Labour Court under the Industrial Disputes Act.
5. Before adverting to the various contentions raised by the respondents, it is useful to refer to the subsequent events that have taken place while arguments are being heard in this case nearly for one year. On 30-12-1998, petitioners filed WP MP No.44856 of 1998 to implead the contract labour engaged by the 4th respondent in attending to the works as party respondents 5 to 19 and the said application was allowed on the same day. When the petitioners Counsel tried to take out notices by registered post to all the proposed respondents they refused to receive the notices and they did not chose to participate in the proceedings. As the term of the 4th respondent expired on 20-6-1999, the petition to implead them as party respondents 5 to 19 outlived its purpose. Having come to know that the term of the 4th respondent is going to expire on 20-6-1999, by order dated 23-4-1999, I directed the 3rd respondent to make it a condition precedent while giving advertisement inviting applications from the intending parties that the successful bidder has to give preference and engage the services of the petitioners for attending to the electrical maintenance works in preference to all others and tender may be finalised on that basis. Against this order the respondents filed WA No.857 of 1999 without success. Even to my surprise it came to light that the respondents were extending the term of the contract of the 4th respondent after his term of contract came to an end even after dismissal of the writ appeal on the pretext that no contractor is coming forward to engage services of the petitioners. In those circumstances, once again by order dated 31-12-1999,1 directed the respondents to entrust the work to the petitioners from 7-1-2000 by paying amounts to them, that is being paid to the existing contractor, pending disposal of the writ petition. It is only after this order the respondents entrusted the work to the petitioners and as on today they are attending these works. On the same day, i.e. on 23-04-1999 the Counsel for the petitioners brought to my notice that the petitioners are not participating in the conciliation proceedings initiated by the Conciliation Officer. In those circumstances, I directed the petitioners to participate in the proceedings and the Conciliation Officer was directed to complete the proceedings by end of May, 1999 and communicate the result of the proceedings to this Court in a sealed cover by 7-6-1999. This representation of the Counsel for the respondents turned out to be a false one as the Conciliation Officer closed the proceedings way back on 18-8-1998. On 31-12-1999, the Counsel for the petitioners brought to my notice that the Central Advisory Board constituted under Section 3 of Ihe Contract Labour Act advised the Central Government to abolish contract labour system in the maintenance and installation of A/c plants and maintenance of electrical installation. Now, Ihis fact has been admitted by the Additional Central Government Standing Counsel by submitting to the Court a detailed note on the dilated tactics adopted by the Airport Authority of lndia since 1991 and the impediments placed by it in not allowing the board to take a decision for over a decade. Now, it is seen that the Chairman of the Board, after taking the comments and views of the members of the Board sent final recommendation of the Board for abolition of Contract Labour System on 20-7-1999 and the Central Government after completing the procedural formalities involved in issuance of notification i.e., consultation with the Ministry of Law, Justice and Company Affairs (Legislative Department) issued the final notification on 16-11-1999 abolishing the contract labour system in the above two wings of the airport.
6. The Counsel for the respondents while admitting the fact of issuance of final notification by the Central Government contended that the 2nd respondent filed a writ petition in Delhi High Court and obtained stay of the notification. As I am not bound by the stay orders granted by .the Delhi High Court, I directed him to advance arguments on the legality or otherwise of the notification issued by the Government of India as I was hearing this matter for a considerable length of time and gave many an opportunity to the respondents to realise their mistake and discharge their duties in a manner known to law in a welfare State as they are representing an instrumentality of the State. The Counsel for the respondents initially contended that they are not parties to the proceedings before the Central Advisory Board and as such the recommendations of the Board are vitiated. I got the file maintained by the Board and verified the same. From the record it is seen that several officers representing Airport Authority of India, Indian Airlines and Air India participated in the deliberations of the Board in its 36th, 37th, 38th, 39th and 40th meetings held on 30-5-84, 24/25-8-1998, 5/6-1-1999, 4/5-3-1999 and 28/29-4-1999 respectively and submitted their objections for prohibition of Contract Labour system in the airports. From the note, it is seen that the Board even recorded oral evidence from the workers as well as representatives of the organisations. The Board in its 39th meeting held on 4-3-1999 wherein 13 out of 19 members of the Board were present, heard all the three managements i.e., Airport Authority of India, Indian Airlines and Air India. After closing of the hearing, the Board could not deliberate on the draft conclusions arrived at by the Board on 5-3-1999 due to indisposition of the Chairman.
7. From this it is seen that the wisdom has not dawn on the respondents even at this belated stage also and even now they are trying to mislead the Court. They have neither respect for truth nor to the proceedings of the Court as the Courts are feeling shy of whistling their hunter to eradicate the evil of committing acts of perjury by the Government officers. With the result these officers gained an impression that they can swear to false affidavits and mislead the Courts with immunity. As the administrator has completely lost his direction resulting in total collapse of the system a time has come for the Courts to ponder and evolve methods to bring the system to the rails so that the Courts and the legal system of the country is respected by the bureaucrats. Ultimately at its 40th meeting held on 28/29-4-1999, after detailed discussions on the subjects, the Board decided to authorise the Chairman of the Board to draw up the conclusions and circulate the same in draft form to the members for their concurrence or otherwise by 15-5-1999. It was further resolved that basing on the comments/views to be received from the members of the Board within the stipulated time, the Chairman was authorised to finalise the recommendations of the Board and forward the same to me Government.
8. Thereafter the Chairman of the Board sent draft conclusions in two parts Part-I relates to Annual Maintenance and installation of A/c Plants ; (2) Maintenance of Electrical installations. Part-II relates to abolition of employment of contract labour in the entire activity of electrical Maintenance of High Mast Towers and Street Lights. While communicating the draft conclusions in Part-1 to the members on 20-5-1999 to offer their comments on or before 4-6-1999, the Chairman made it very clear that if any of the members fail to communicate his comments/views, it is presumed that he is in agreement with the draft conclusions. The second draft conclusions were forwarded to the members on 31-5-1999 for offering their comment/views by 11-6-1999 making it clear that if the member fails to offer his views/ comments, it would be presumed that the members are in agreement with the draft conclusions. From the note submitted by the Regional Labour Commissioner (Central) Hyderabad, it is seen that out of 18 members excluding Chairman, 7 members have agreed for abolition while one member refused to offer his comments on the ground that he is an employee of the department concerned and one member did not agree with the majority view on the first draft conclusions. From the note it is seen that including the Chairman 8 members agreed for abolition of contract labour, 9 members did not.offer their views/comments and in the light of the letter of the Chairman dated 20-5-1999 communicated to them, it has to be treated that they are in agreement with the draft conclusions. With regard to the Part II conclusions for abolition of contract labour in the maintenance of High Mast Towers and street lights, 4 members including Chairman agreed for abolition and 13 members did not offer their comments/views in respect of Part II draft conclusions and it has to be presumed that they are in agreement with the draft conclusions as per the letter of the Chairman dated 31-5-1999. On the basis of the views/comments offered by the members of the Board, the Chairman of the Board sent final recommendations of the Board to the Government on 20-7-1999 wherein engagement of contract labour was abolished in annual maintenance and installation of A/c plants, maintenance of electrical installation and electrical maintenance of High Mast Towers and street lights except periodical maintenance such as annual maintenance of the equipments for which the establishment might have entered into maintenance contract with the suppliers or their nominees. The Central Government having considered the recommendations of the Board issued notification on 16-11-1999 abolishing engagement of contract labour in the above operations under the control of the 2nd respondent. Hence, there is no truth in the 1st contention and it is accordingly rejected.
9. A feeble attempt is sought to be made by the Counsel that there was no quorum at the Board meetings held for the purpose and as such the recommendations are non est in the eye of law. From the rules relating to the holding of meetings by the Board, it is seen that the quorum required for taking any decision by the Board is 4 and in all the meetings i.e., from 36th to 40th meeting held for the purpose by the Board more than the required members for constituting quorum attended the meeting and when the draft conclusions were circulated in two parts by the Chairman on 20-5-1999 and 31-5-2000 while 7 members positively gave consent for abolition of the engagement of contract labour with regard to Part I conclusions 4 members have given consent positively for the second conclusions. Apart from them, though the members were made known that if the Chairman won't receive their comments/ views by a stipulated date, it should presumed that they are in agreement with the draft conclusions only one member positively descended to the recommendations while others remained in silence. Hence, I do not find any substance in the contentions of the Counsel for the respondents.
10. Nextly, the Counsel for the respondents contended that as the petitioners were not taken a specific plea in support of the recommendations of the Advisory Board, in the absence of any pleadings to thai effect this Court would be going beyond the scope of the pleadings if any relief is given on the basis of the recommendations of the Central Advisory Board and notification issued by the Central Government, I have no hesitation in rejecting this contention for more than one reason. Firstly, it is well settled principle that the Court is always well within its competence to mould the relief by taking note of the events that have taken place during the pendency of the case. Secondly, from the events that have taken place in this case, it is seen that the issue of engagement of the contract labour in the respondents organisation was the subject matter of various writ petitions in various High Courts and also the Supreme Court for more than a decade and the respondent authority successfully dragged on the proceedings in various Courts all these years. Without referring to the entire factual background at this stage it is suffice to state that while disposing SLP No.4088-4094/97 along with other civil appeals in International Airports Authority Employees Union and another etc. etc. v. Airport Authority of India and others etc. etc., , their Lordships of the Supreme Court directed the Central Advisory Board to take a decision with regard to abolition of engagement of contract labour in (1) Trolly Retrievers (WP No.1494/89; (2) Loaders (WP No.1494/89); (3) Bird chasers (WP No.1263/91); (4) Conveyor Belt Workers (WP Nos.2641/92, 1256/96); (5) Car Parking Clerks (WP No.2362/90) (employed at International and National Airports of Airport Authority of India) Electrical Maintenance Workers (WP No.430 of 1992) and Civil Maintenance Workers (Employed at Staff Colony at Kalina, Indian Airlines) on the file of Bombay High Court and tender necessary advise to the Government of India for taking appropriate action under Section 10 of the Act. A Division Bench of the Bombay High Court while disposing of the WP No. 1431 of 1998 filed by Airport Authority Kamgar Union for abolition of engagement of contract labour, by order dated 18-8-1988, following the directions given by the Supreme Court of India in AH India Gen. Mazdoor Trade Union (Regd) v. Delhi Administration, 1995 Supp. (3) SCC 579, issued the following directions:
(i) The petitioner union shall make a representation of its demand for abolition of Contract Labour in the concerned occupations, to the Board within a period of four weeks from today.
(ii) The Board shall, in accordance with law, and after hearing the affected parties, consider the grievances of the workmen represented by petitioner-union tender its advise to the Central Government within a period of six months thereafter.
(iii) Within a period of six weeks from the receipt of the advise tendered by the Board, the Government of India shall, after consideration thereof, make an order under Section 10 of the Act either directing abolition of contract labour in different concerned occupations on the first respondent's establishment or for continuation thereof.
(iv) Until the decision is taken by the Central Government and for a period of 6 weeks thereafter, the services of the workmen employed as contract labour represented by the petitioner union. The first respondent shall however, be free to engage fresh contractors if the term of the present contractor comes to an end, but the workmen engaged by the present contractor as contract labour shall be continued through the fresh contractors till the aforesaid period.
11. Nextly, when the petitioners failed to get the interim relief before this Court, they raised an industrial dispute under Section 2(k) of the Industrial Disputes Act before the Conciliation Officer on 1st April, 1998 and the Conciliation Officer by his proceedings dated 18-8-1998 requested the Central Government to refer the dispute to the Central Advisory Board for its opinion to take further action in the matter.
12. During the marathon hearing that took place in this case for over one year, the Counsel for the respondents on 24-3-1999 brought to the notice of the Court that the petitioners were not participating in the conciliation proceedings and the orders passed thereon were referred supra. In fact, at one stage having come to know that the matter is pending before the Central Advisory Board for over a number of years, having opined prima facie that the works that are being attended by the petitioners are of perennial nature and the Central Government which is bound to abolish contract labour system did not apply its mind and passed orders as required under Section 10 of the Act, I thought of giving a direction to the Central Advisory Board to take a decision in the matter within 3 months positively by dictating an order to that effect. But the above direction was not signed on the basis of a representation made by the Counsel for the petitioners that the Central Advisory Board has already recommended for abolition of the engagement of contract labour in these operations and the matter is pending before the Central Government for taking final decision. At that stage, I directed the Counsel for the Central Government to find out whether the Board has already recommended for abolition of the contract labour. Pursuant to the directions given by this Court. The Central Government Standing Counsel not only produced the files, but also submitted a note on 27-1-2000 on the events that taken place from 18-5- 1991 to 16-11-1999, the day on which the Central Government ultimately issued a notification for abolition of the engagement of contract labour in the 3 operations referred supra. Further the Supreme Court as well as this Court held . that it is the appropriate Government that has to take decision whether employment of contract labour in any process, operation, or any other work in an establishment should be abolished or not after considering the matter as required under Section 10 of the Act and when once a decision is taken by the Government the same is final, subject, of course to the judicial review and on the usual grounds. In Ferro Alloyes Corporation Ltd, Vizianagaram v. Government of A.P., 1996 (6) ALD 550, a Single Judge of this Court held that " Section 10(1) of the Contract Act provides that the Government may issue notification after consultation with such Advisory Board. Once the Board is consulted, the requirement of Section 10(1) are complied with and this Court under Article 226 would not be in a position to go beyond such consultation and find out whether the reasons are valid or not. Section 10(2) does not provide any notice and opportunity to be given to the concerned management before issuing such notification, abolishing the contract labour. Such a consultation is purely an executive act and only for the purpose of satisfaction of the Government for issuing notification under this Section and nothing more ".
13. In this case, the Central Advisory Board having given an opportunity to the representatives of the respondents to put forth their case, recommended for abolition of the engagement of contract labour and the Government having accepted the recommendation issued the notification. The contentions raised by the Counsel for the respondents against the recommendation were already dealt with supra and I do not find any illegality or irregularity in the whole process undertaken by the Central Advisory Board at the instance of the Supreme Court as well as the High Court of Bombay and accordingly the notification of the Central Government is upheld.
14. On the other hand, the conduct of the officials of the 2nd respondent-airport is not at all commendable and reprehensible for the simple reason that the issue of abolition of engagement of contract labour is being agitated in Bombay High Court for the last 10 years and at the instance of the said High Court the board ultimately recommended for abolition of the contract labour. Now, the respondents have gone all the way to Delhi to question the validity of the notification though the principal seat of the office is at Bombay, obviously to avoid Bombay High Court.
15. Lastly, the Counsel for the respondents contended that there is divergence of opinion on the question "appropriate Government" relying on the judgment of the Supreme Court in FCI, Bombay v. Transport and Dock Workers Union, (1997) 7 SCC 59, in which their Lordships of the Supreme Court, having taken note of the divergent views in interpreting the word "appropriate Government" occurred under Section 2-A of the Act and also the absence of a provision in the Act with regard to the status of contract labour working till then i.e., whether they are entitled for absorption or not as a consequence of the notification issued under Section 10 of the Act, referred the case to a Larger Bench and as the legal position is not yet crystallised, this Court may not dispose of the case on hand on the basis of the notification given by the Central Government. As far as the first limb of the argument is concerned, it is true that a Division Bench of the Supreme Court in Hindustan Aeronautics Ltd. v. Workmen, , held that though the company was only owned and controlled by the Central Government, appropriate Government would be the State Government to issue notification under Section 10 of the Act and the same was followed by the two Division Bench's judgment of the Supreme Court in Rashtriya Mill Mazdoor Sangh v. Model Mills, 1984 Supp. SCC 443, and also in Workers' Union v. Food Corporation of India, 1985 SCC (L&S) 456. But a Full Bench of the Supreme Court in Air India Statutory Corporation v. United Labour Union, , having considered the above judgments held that the Supreme Court placed a narrow interpretation on the word "appropriate Government" and held that in the case of establishment owned and controlled by the Central Government the appropriate Government to issue notification is the Central Government. In fact, throughout the proceedings since 1991 the respondent authority never contended that the appropriate Government is not the Central Government. The Supreme Court as well as the Bombay High Court all through proceeded under the assumption that Central Government is the appropriate authority for issuance of the notification under Section 10 of the Act. In fact in United Labour Union v. Union of India, FLR 1990 (60), Justice S.N. Variava, as he then was held that in respect of Air India Corporation the appropriate Government is the Central Government even poor to amendment of Section 2(a) in 1986 and continued to be so even after amendment. In Ferro Alloys Corporation's case (supra) this Court also held that in case of establishments under the control of Central Government, Central Government is the only appropriate Government to notify the abolition of contract labour in these establishments. Further the Division Bench of the Supreme Court while referring the matter to the larger Bench did not record any reasons for doubting view taken by the Full Bench of the Supreme Court in Air India Statutory Corporation's case (supra).
16. For all these reasons, I cannot set the clock in the reverse direction at this stage and allow the matter unsettled till a Larger Bench of the Supreme Court takes the decision one way or the other. On the other hand, I am inclined to follow the view taken by the Constitution Bench of the Supreme Court in Air India Statutory Corporation's case (supra). In this context, it is useful to refer to the observations of the Supreme Court in Secretary, Haryana State Electricity Board v. Suresh and others, AIR 1999 SC 1161, wherein justice Banerjee speaking for the Bench observed that "the law courts exist for the society and in the event law Courts feel the requirement in accordance with principles of justice, equity and good conscience, the law Courts ought to rise up to the occasion to meet and redress the expectation of the people. The expression 'regulation' cannot possibly be read as contra public interest but in the interest of public". In fact in Air India Statutory Corporation's case (supra), Ramaswamy, J., speaking for the Court held that "though the Directive Principles of State Policy cannot be elevated to inalienable fundamental human rights they are justiciable by themselves". His Lordship proceeded further and observed, "the concept of "Social justice" which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social justice" is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. His Lordship ultimately concluded, "Rule of law, therefore, is a potent instrument of social justice to bring about equality in status". As things stand today, the law of the land on this aspect is as declared in Air India Statutory Corporation. Hence on the ground that the Division bench of the Supreme Court in FCI, Bombay v. Transport and Dock Workers Union, (supra) referred the matter to a Larger Bench. More so, without indicating whether they are in agreement or in disagreement with the view expressed by the Constitutional bench of the Supreme Court, it is not desirable to postpone the adjudication of the dispute. Accordingly, the first contention is rejected.
17. Coming to the status of the contract labourers working prior to the issuance of the notification under Section 10 of the Act, it is true that the Act is silent on the question of the status of the workmen of the erstwhile contractor once the contract is abolished by the appropriate Government. Their Lordship of the Supreme Court in the case of Gujarath Electricity Board v. Hind Mazdoor Sabha Union, , having taken note of the absence ofa provision with regard to the status of the workmen suggested that the Central Government should amend the Act by incorporating a suitable provision to refer to the Industrial adjudicator the question of direct employment of the workers of the Ex-contractor in the principal establishment when appropriate Government abolishes the contract labour.
18. In Para 67 of the judgment, their Lordships observed as follows:
We have already pointed out that the Act is silent on the question of the status of the workmen of the erstwhile contractor once the contract is abolished by the appropriate Government. Hence as far as the question of detenu ination of the status of the workmen is concerned, it remains open for decision by the industrial adjudicator. There is nothing in the Act, which can be construed to have deprived the industrial adjudicator of the jurisdiction to determine the same. So long as, therefore, the said jurisdiction has not been taken away from the industrial adjudicator by any express provision of the Act or any other statute, it will have to be held that the said jurisdiction, which, as pointed out above, has been recognised even by the decisions in the case of Workmen v. Dimakuchi Tea Estates, 1958 SCR 1156 and Standard Vaccum Refining Co. of Indian Ltd v. Workmen, , continues to exist. In the exercise of the said jurisdiction, the industrial adjudicator can certainly make a contract between the workmen of the ex-contractor and the principal employer and direct the principal employer to absorb such of them and on such terms as the adjudicator may determine in the facts of each case.
19. From this it is evident that even in the absence of any provision with regard to the status of erstwhile contract labour, the Industrial Tribunal is empowered to go into this aspect and give directions to the principal employer to absorb them as per his need. It is worth noting the observations made by their Lordships on the sorry state of affairs prevailing in the Governmental undertakings and to the directions given by the Court.
(a) all undertakings which are employing the contract labour system in any process, operation or work which satisfies the factors mentioned in clauses (a) to (d) of Section 10 (2) of the Act, should on their own, discontinue the contract labour and absorb as many of the labour as is feasible as their direct employees.
(b) Both Central and the State Governments should appoint a Committee to investigate the establishments in which the contract labour is engaged and where on the basis of the criteria laid down in clauses (a) to (d) of Section 10 (2) of the Act, the contract labour system can be abolished and direct employment can be given to the contract labour. The appropriate Government on its own should fake the initiative to abolish the labour contracts in the establishments concerned by following the procedure laid down under the Act.
20. But the Central Government did not move in the matter either to incorporate a suitable provision for absorption of the contract labour on abolition of the contract labour system by amending the Act, or appointed a committee to investigate and to consider whether the contract labour system can be abolished and direct employment can be given to the contract labour on the basis of the criteria laid down in Section 10(2) clauses (a) to (d) of the Act.
21. The Counsel for the respondents also relied on two judgments in support of his contention. In the case of Singareni Collieries v. K. Posham, 1989 (2) APLJ 313, this Court rejected the contention of the Counsel for the contract labour working in the Singareni Collieries and consequently they became the employees of the company as the same comes within the meaning of the employer. Their Lordships observed that "the word as such was not used in the Act and the only word used in 'principal employer' which denotes the existence of middlemen i.e., the contractor. Therefore, there is no direct master and servant relationship between the company and the contract labour". It maybe that the contract labour comes under the definition of employees within the restricted meaning as mentioned in the Act; but that does not mean that they are the regular employees. At the same time, their Lordships of this Court gave a direction to the petitioner Company that white filling up the vacancies of Badili Fillers, the Company may bear in mind that the persons who worked as contract labourers and who have been sponsored by the Employment exchange have to be given due weightage and preference in view of their experience. Their Lordships came to this conclusion by relying on another decision of this Court in A. P. Dairy Development Co-operation Federation v. K. Ramulu, 1989 (1) ALT 288 (DB), wherein the Division Bench of this Court held thus: "Neither the Act nor the Rules provide that upon the abolition of the contract labour the said labour should be directly absorbed by the principal employer. Nor is there any provision that pending decision upon an application, under Section 10 by workers, the said workers should continue to be engaged by such principal employer". The judgment of another Division Bench of this Court in the case of Zonal Manager, FCI v. D. Venkat Rao, 1997 (2) ALD 225, is also to the same effect.
22. But all these judgments were rendered prior to the decision of the Full Bench of the Supreme Court in Air India Statutory Corporation's case (supra) wherein their Lordships of the Supreme Court overruled the judgment in Denanath v. National Fertilisers Ltd., 1991 AIR SCW 3026, case and held that the operation of the Act is structured on an inbuilt procedure leaving no escape route. Abolition of contract labour system ensures right to the workmen for their regularisation as employees in the establishment in which they were hitherto working as contract labour through the contractor. The contractor stands removed from the regulation under the Act and direct relationship of "employer and employee" is created between the "principal employer and workmen". It is useful to extract the relevant passages from the concurring judgments of Hon'ble Justice K. Ramaswamy and Hon'ble Justice S.B. Majmudar. Hoti'ble Justice K. Ramaswamy thus spoke in Para 58 of the judgment as follows:
"What would be the consequence that ensue from abolition is the question? It is true that we find no express provision in the Act declaring the contract labour working in the establishment of the principal employer in the particular service to be the direct employees of the principal employer. Does the Act intend to deny the workmen to continue to work under the Act or does it intend to denude him of the benefit of permanent employment and if so, what would be the remedy available to him. The phrase "matters connected therewith" in the Preamble would famish the consequence of abolition of contract labour. In this behalf the Gujarat Electricity Board case, 1995 AIR SCW 2942, attempted, by interpretation, to fill in the gap but it also fell short of ftill play and got beset with insurmountable difficulties in its working which were not brought to the attention of the Bench. With due respect, such scheme is not within the spirit of the Act. As seen, the object is to regulate the contract labour so long as the contract labour is not perennial. The labour is required to be paid the prescribed wages and are provided with other welfare benefits envisaged under the Act under direct supervision of the principal employer. The violation visits with penal consequences. Similarly, when the appropriate Government finds that the employment is of perennial nature etc., contract system stands abolished, thereby, it intended that if the workmen were performing the duties of the post which were found to be of perennial nature on par with regular service, they also require to be regularised. The Act did not intend to denude them of their source of livelihood and means of development, throwing them out from employment. As held earlier, it is socio-economic welfare Legislation. Right to socio-economic justice and empowerment are constitutional rights. Right to means of livelihood is also constitutional right. Right to facilities and opportunities are only part of and means to right to development. Without employment or appointment, the workmen will be denuded of their names of livelihood and resultant right to life, leaving them in the lurch since prior to abolition; they had the work and thereby earned livelihood. The Division Bench in Denananth 's case, 1991 AIR SCW 3026, has taken too narrow view on technical consideration without keeping at the back of the mind the constitutional animations and the spirit of the provisions and the object, which the Act seeks to achieve. The operation of the Act is structured on an inbuilt procedure leaving no escape route. Abolition of contract labour system ensures right to the workmen for regular) sation of them as employees in the establishment in which they were hitherto working as contract labour through the contractor. The contractor stands removed from the regulation under the Act and direct relationship of "employer and employee" is created between the "principal employer and workmen, Gujarath Electricity's case (1995 AIR SCW 2942), being of the coordinate Bench, appears to have softened the rough edges of Dena Nath's ratio. The object of the Act is to prevent exploitation of labour. Section 7 and Section 12 enjoin the principal employer and the contractor to register under the Act, to supply the number of labour required by the principal employer through the contractor, to regulate their payment of wages and conditions of service and to provide welfare amenities during subsistence of the contract labour. The failure to get the principal employer and the contractor registered under the Act visits with penal consequences under the Act. The object, thereby, is to ensure continuity of work to the workmen in strict compliance of law. The conditions of the labour are not left at the whim and fancy of the principal employer. He is bound under the Act to regulate and ensure payment of the full wages, and also to provide all the amenities enjoined under Sections 16 to 19 of the Act and the rules made thereunder. On abolition of contract labour, the intermediary, i.e., contractor is removed from the field and direct linkage between labour and principal employer is established. Thereby, the principal employer's obligation to absorb them arises. The right of the employee for absorption gets ripened and fructified. If the interpretation in Dena Nath's case (1991 AIR SCW 3026) is given acceptance, it would be an open field for the principal employer to freely flout the provisions of the Act and engage workmen in defiance of the Act and adopt the principle of hire and fire making it possible to exploit the appalling conditions in which the workmen are placed. The object of the Act thereby gets rudely shattered and the object of the Act easily defeated. Statutory obligation of holding valid license by the principal employer under Section 7 and by contractor under Section 12 is to ensure compliance of the law. Dena Nath's ratio falls foul of the constitutional goals of the trinity; they are free launchers to exploit the workmen. The contractor is an intermediary between the workmen and the principal employer. The moment the contract labour system stands prohibited under Section 10(1), the embargo to continue as a contract labour is put an end to and direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes responsible for taking the services of the workmen hitherto regulated through the contractor. The object of the penal provisions was to prevent the prohibition of the employer to commit breach of the provisions of the Act and put an end to "exploitation of the labour and to deter him from acting in violation of the conslitutional right of the workmen to his decent standard of life, living, wages, right to health etc."
22. Hon'ble Justice S.B. Majmudar thus spoke in Para 69 of the judgment:
"Now the moot question is as to what happens after such prohibition. It is obvious that prior to abolition, the contract labour doing work of perennial nature on the establishment of principal employer had the advantage of regulatory provisions found in Chapter V and these provisions were given teeth by the legislature in Chapter VI by providing for penalties and procedure for imposition of sanctions by prosecution. The question is whether after abolition of contract labour system, the contract labourers who were earlier, having regulatory protections would be rendered persona nan grata and would be thrown out from the establishment and told off the gates. Then in such a case the remedy of abolition of contract labour would he worse than the disease and it has to be held that the legislature while trying to improve the lot of erstwhile contract labourers who are doing work of perennial nature for the principal employer and are doing work which is otherwise to be done by regular workmen had really left them in the lurch by making them lose all the facilities available to contract labour on the establishment as per Chapter V and desired them to wash their hands of the establishment and get out and face starvation. It is axiomatic that if they continued to be contract labourers their wages would have been guaranteed under Section 21 of the Act with an obligation on the principal employer to pay them if the contractor fails to discharge his obligation in connection with payment of wages. Wages are the livelihood of workman and his large number of dependants. If on abolition of contract labour system contract labour itself is to be abolished, it would cause economic ruin and economic death to contract labourer and his dependants for amelioration of whose lot order under Section 10 is to be passed. If it is held that on abolition of contract labour system, the erstwhile contract labourers are to be thrown out of the establishment lock stock and barrel, it would amount to throwing the baby out with the bath water. That obviously cannot be the scope, ambit and purport of Section 10 of the Act. It has to be kept in view that contract labour system in an establishment is a tripartite system. In between contract workers and the principal employer is the intermediary contractor and because of this intermediary the employer is treated as principal employer with various statutory obligations flowing from the Act in connection with regulation of the working conditions of the contract labourers who are brought by the intermediary contractor on the principal's establishment for the benefit and for the purpose of the principal employer and who do his work in his establishment through the agency of the contractor. When these contract workers carry out the work of the principal employer which is a perennial nature and if provisions of Section 10 get attracted and such contract labour system in the establishment gets abolished on fulfilment of the conditions requisite for that purpose, it is obvious that the intermediary contractor vanishes and along with him vanishes the term 'principal employer'. Unless there is a contractor agent there is no principal. Once the contractor intermediary goes the term 'principal' also goes with it. Then remains out of this tripartite contractual scenario only two parties the beneficiaries of the abolition of the erstwhile contract labour system i.e., the workmen on the one hand and the employer on the other who is no longer their principal employer but necessarily, becomes a direct employer for these erstwhile contract labourers. It was urged that Section 10 nowhere provides for such a contingency in express term. It is obvious that no such express provision was required to be made as the very concept of abolition of a contract labour system wherein the work of the contract labour is of perennial nature for the establishment and which otherwise would have been done by regular workmen, would posit improvement of the lot of such workmen and not its worsening, Implicit in the provision of Section 10 is the legislative intent that on abolition of contract labour system, the erstwhile contract workmen would become direct employees of the employer on whose establishment they were earlier working and were enjoying all the regulatory facilities on that very establishment under Chapter V prior to the abolition of such contract labour system. Though the legislature has expressly not mentioned the consequence of such abolition, but the very scheme and ambit of Section 10 of the Act clearly indicates the inherent legislative intent of making the erstwhile contract labourers direct employees of the employer on abolition of the intermediary contractor. It was contended that contractor might have employed a number of workmen who may be in excess of the requirement and, therefore, the principal employer on abolition of the contract labour may be burdened with excess workmen. It is difficult to appreciate this contention. The very condition engrafted in Section 10(2)(d) shows that while abolishing contract labour from the given establishment, one of the relevant considerations for the appropriate Government is to ascertain whether it is sufficient to appoint considerable number of whole time workmen. Even otherwise there is an inbuilt safety value in Section 21 of the Act, which enjoins the principal employer to make payment of wages to the given number of contract workmen whom he has permitted to be brought for the work of the establishment if the contractor fails to make payment to them. It is, therefore, obvious that the principal employer as a worldly businessman in his practical commercial wisdom would not allow contractor to bring larger number of contract labour, which may be in excess of the requirement of the principal employer. On the contractor, the principal employer would see to it that the contractor brings only those number of workmen who are required to discharge their duties to carry out the work of the principal employer on his establishment through, of course, the agency of the contractor. In fact the scheme of the Act and regulations framed thereunder clearly indicate that even the number of the workmen required for the given contract work is to be specified in the license given to the contractor. Consequently, the aforesaid apprehension projected on behalf of the principal employer is more imaginary than real. Even apart from that, after the absorption of the erstwhile contract workmen by the principal employer on abolition of contract labour system under Section 10, it is always open for the employer as an entrepreneur, in an appropriate case, if the excess working staff is not found to be required by him to retrench such excess staff in accordance with law by following the provisions of the Industrial Disputes Act, 1947. But that has nothing to do with the moot question, as to what is the fate of erstwhile contract labour on abolition of contract labour system under the provision of Section 10 of the Act. As rightly observed by Brother Ramaswamy, J., in his judgment, the scheme envisaged in the Gujarath Electricity Board's case, 1995 AIR SCW 2942, is not workable as the existing workmen may not espouse the cause of erstwhile contract workmen who were aspiring to get employment on regular basis and even if they espouse their cause the litigation itself would be spread over a number of years and in the meantime the erstwhile contract labourers and their dependants would starve. I, therefore, wholly agree with Brother Ramaswamy, J., in his view that the scheme envisaged by Gujarat Electricity Board's case is not workable and to that extent the said judgment cannot be given effect to."
23. As things stand today, the law of the land on this aspect is as declared in Air India Statutory Corporation. Hence on the ground that the Division Bench of the Supreme Court in FCI, Bombay v. Transport and Dock Workers Union, (supra) referred the matter to a Larger Bench. More so, without indicating whether they are in agreement or in disagreement with the view expressed by the Constitutional Bench of the Supreme Court, it is not desirable to postpone the adjudication of the dispute. Further, in Secretary, Haryana Electricity Board's case (supra) their Lordships observed that "the Act being a beneficial piece of Legislation as engrafted in the statute book ought to receive the widest possible interpretation in regard to the words used and unless words are taken to their maximum amplitude, it would be a violent injustice to the framers of the law. Their Lordships in Para 17 of the judgment observed as follows:
"As noticed above Draconian concept of law is no longer available for the purpose of interpreting a social and beneficial piece of Legislation specially on the eve of the new millennium. The democratic polity ought to survive with full vigour.: socialist status as enshrined in the Constitution ought to be given in full play and it is in this perspective the question arises - is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution -- the answer cannot possibly be in the affirmative- the law Courts exist for the society and in the event law Courts feel the requirement in accordance with principles of justice, equity and good conscience, the law Courts ought to rise up to the occasion to meet and redress the expectation of the people. The expression 'regulation' cannot possible be read as contra public interest but in the interest of public.
24. In fact after Deena Nath's case (supra) and before Air India Statutory Corporation's case (supra) Hon'ble Justice P.B. Sawanth along with Justice S.B. Majmudar pointed out the absence of any provision with regard to the status of the workmen of the erstwhile contract on the abolition of the contract system by the appropriate Government and recommended to the Central Government for amendment of the Act. Sitting in an earlier judgment of the Supreme Court in the case of R.K. Panda and Ors. v. Steel Authority of India, , the constitutional Bench constituting Justice Kuldeep Singh, Justice P.B. Sawanth along with Justice N.P. Singh held that in all cases where labourers are initially employed and engaged by the contractors, it is to be seen at what point of time the direct link is established between the contract labourers and principal employer eliminating the contractor from the scene is a matter to be established with material before the Court and normally, the labour Court and the Industrial Disputes Act are the competent forums to adjudicate such disputes on the basis of oral and documentary evidence produced before them, gave several directions to the respondent-Corporation including the one that all labourers who have been initially engaged through contractors and have been continuously working with the respondent for the last 10 years on different jobs assigned to them and inspite of the replacement and change of contractors, shall be absorbed by the respondent, as their regular employees subject to being found medically fit and if they are below 58 years of age, which is the age of superannuation under the respondent.
25. Hence I am not only inclined but also bound by the Supreme Court judgment in Air India Statutory Corporation, which categorically held that on abolition of the contract labour system a right accrues to the workman working under the principal employer for regularisation of their services in which they were hitherto working.
26. The issue can be looked at from another angle also in this case. The Act being a welfare Legislation, the general interests of the community of the workers having public purpose i.e., abolition and regularisation when it is found to be of perennial nature. In other words, the Act is intended to prohibit the engagement of contract labour if the work turned out by them is found to be of perennial nature and in other cases to regulate and improve the conditions of the service of the contract labour. Now it is well settled principle that if the work that is attended by the contract labour is of perennial nature, the employer is prohibited from getting the work done by engaging the services of the contract labour. In Secretary, Haryana State Electricity Board's case (supra) their Lordships of the Supreme Court held that "when contract workers carry out perennial nature of work, contract labour system gets abolished. On the other hand, ifthe contract labour is for the seasonal work, the question of abolition would not arise. If it is found that the contractor is a mere name lender and had procured labour for the Board from the open market, he is almost a broker and agent of the principal employer for that purpose".
27. The next judgment of the Supreme Court is Union of India and others v. Suber Mukerjee, 1998 (2) SLR 728, wherein it was held that the work carried out by the respondents numbering 20 as contract labourers in a printing press of Eastern Railway, Calcutta were held to be a work of perennial nature.
28. From the above, it is seen whether the work that is being attended by the petitioners in the respondent Corporation is of perennial nature or their services arc being engaged through a contractor to meet the urgent requirements of temporary nature as contended by the Counsel for the respondents. Admittedly, all the petitioners are working in the maintenance wing of the Electrical department as wiremen, operator (conveyor belt), A.C. operator, supervisor and Kalasis (helper) under the administrative control of the 3rd respondent and in all these categories, even according lo the respondents, all these categories of the workmen are there in the permanent cadre strength of the 3rd respondent organisation and as per their own statements showing the details of the work done by the contract labourers and the regular staff, both the regular employees as well as the contract labourers, are attending to the identical and similar works round the clock in shift system for all the 365 days, even on public holidays and to my mind I do not find any difference in the work turned out by the regular employees and the contract labourer. Further from the agreement that is being entered into by the 3rd respondent with the contractors from time to lime made this aspect more crystal clear. For instance Clause 02.00.
29. 02.00. Scope of work:--The scope of work covers operation and maintenance of electrical and mechanical installations/ services as given below by providing skilled and unskilled workmen of requisite qualifications and experience. Tools and sundry materials necessary to carry out day today operation, routine, preventive, break down maintenance, troubleshooting and attending minor repairs as per the conditions given in the subsequent sections. The scope of work however does not cover major repair, overhauling and periodical servicing of major equipment winch needs to be carried out through specialist agencies, however the contractor is required to assist the specialist agencies in carrying out periodical services.
30. Clauses 02.01 to 02.03 speak about the details of the work that have to be attended by the contract labourers.
31. Clause 08.00 speaks of the minimum staff to be employed by the contractor at each location, apart from engaging additional staff as and when required. As per clause 08.00 the contract labourer has to work for 8 hours in general shift as well as in the other shifts.
32. The most important clause being clause 08.03, the same is extracted hereunder.
33. 08.03. The staff of skilled and unskilled category shall be present on all days as specified above in shifts including Sundays and public holidays round the clock. However, the supervisor can he absent on Sundays and public holidays, but in case of any breakdown and urgency the supervisor shall also be deployed on all holidays without any extra cost.
34. Clause 11.00. Care of building, equipments and installation: The E & M installations under the operation and maintenance contract shall be handed over to the contractor 'at the time of commencement of work' and the same shall be handed over to AAI (NAD) in 'good condition on completion of the work'.
35. Clause 12.02; Immediately on commencement of the work, the contractor shall prepare the complete detailed inventory of the installation and submit the same to engineer-in-charge. All the dismantled materials shall be returned to AAI (NAD) and the contractor has to maintain the dismantled items register. If the dismantled materials are not handed over to the department, then the engineer-in-charge shall assess the cost of dismantled materials and the same shall be recovered at two times the assessed value. The decision of the engineer-in-charge shall be final.
36. Clause 08.02 speaks of the staff to be employed.
37. Clause 10.00 speaks of the operational area and entry passes. The work has to be carried out within the operational area of the Airport and the contractor should arrange for security clearances and entry passes for his staff.
38. Clause 13.01: Licence for deploying contract labour: The contractor is required to obtain the licence from the Regional Labour Commissioner, Central for deployment of the labour on contract. The successful tenderer shall obtain the licence at his cost.
39. Clause 13.05: Fire regulations: Installations shall be maintained in conformity with the local fire regulations and rules thereunder wherever they are enforce and provision in local by" laws if any.
40. Clause 13.06 : Essential Services : The jobs entrusted under this contract are essential services coming under the purview of maintenance of Essential Services Act. The contractor has to ensure that the services are not disturbed either due to abstention or due to wilful act of his staff.
41. While Clause 20.00 deals with operation and maintenance of electrical installation, clause 20.01 deals with operation and maintenance of all the installations. The details of the works were enumerated in other sub-clauses i.e., daily activity, weekly activity, quarterly activity and half yearly activity so on and so forth.
42. Clause 21.00 deals with maintenance and upkeep of 200 KVA, 3ph, llkv/433, and 50hz indoor transformer. The work done on this transformer is again divided into weekly, quarterly and half yearly checks.
43. Clause 22.00 deals with 4x15 TR air-cooled package type air conditioning plant. The other clauses also deal with the operation and maintenance of transformers, stabilizers and D.G sets so on and so forth.
44. From the terms of the contract, it is very much evident that the operation and maintenance of electrical and mechanical installations in the Civil Airport, Bcgumpet are being got done by the 3rd respondent by engaging the contract labour through contractor through out the year and round the clock. It is rather highly difficult to believe the version of the respondents that the contract labourers are attending only to urgent requirement of the respondent Corporation. Further it is their case that after installation of radar in the year 1994, they are getting the work done through the contract labour, but from the details of the employment of the contract labourers given by the petitioners, which have been admitted by the respondents, the 3rd respondent is getting the work in the Civil Airport done through the contract labour since 1992. As stated supra while the Central Advisory Board is seized of the matter i.e., whether to prohibit engagement of the contract labour in maintenance and operational wing of electrical department of the respondent-Corporation pursuant to the orders of the Supreme Court in International Airport Authority Employees Union's case (supra). The respondents have chosen to swear a false affidavit in a judicial proceedings before this Court that the work that is being attended by the petitioners is not of perennial nature but they are attending to the works intermittently depending on the need and requirement of the Airport authorities, though the contract labour is working through out the year and in all shifts. Hence, I hold that the work that is being attended to by the petitioners at the Begumpet Airport is of perennial nature but is not of seasonal work or urgent work as contended by the respondent. The Court must be astute to avoid the mischief and achieve the purpose of the law and not to be misled by the Maya of legal appearance as held by the Supreme Court in Haryana State Electricity Board's case (supra). The legal position on this aspect is summarised by Justice Umesh Chandra Eanerjee in the above case. Para 12 of the judgment is as follows:
"There is however, a total unanimity of judicial pronouncements to the effect that in the event, the contract labour is employed in an establishment for season workings, question of abolition would not arise but in the event of the same being of perennial in nature, that is to say, in the event of the engagement of labour force through intermediary which is otherwise in the ordinary course of events and involves continuity in the work, the Legislature is candid enough to record its abolition since, involvement of contractor may have its social evil of labour exploitation and thus the contractor ought to go out of scene bringing together the principal employer and the contract labourers rendering the employmer; as direct, and resultantly a direct employee. This aspect of the matter has been dealt with great lucidity by one of us (Majmudar, J.), in Air India Statutory Corporation etc. v. United Labour Union and others etc. Lastly, Their Lordships observed, 'keeping in view the nature of work being carried out by the petitioners, the nature of duties which were performed by the respondent-workmen, the continuity of the labour and the fact that the servants were paid by the petitioner-employer who supervised and controlled not only the attendance but also discipline of the workmen in the discharge of duties and keeping in view the conditions of the contract of the employer with Kashmir Singh, contractor, there is no other conclusion which can be arrived at except the one that there exist a relationship of employer and workmen between the contesting parties and the Labour Court had rightly passed the award which is impugned in this petition'. The Bench approved the observations of the Justice Majmudar in Air India Statutory Corporation's case that when once the contract labour system is abolished, it is obvious that the intermediary contract vanishes and along with him vanishes the term 'principal employer'. Unless there is a contractor agent there is no principal. Once the contractor intermediary goes the term 'principal' also goes with it and out of this tripartite contractual scenario only two parties i.e., the beneficiaries of the abolition of the erstwhile contract labour system i.e., the workmen on the one hand and the employer on the other who is no longer their principal employer for these erstwhile contract labourers. In the end their Lordships held that 'once the Board was not a principal employer and the so called contractor Kashmir Singh was not a licensed contractor under the Act. The inevitable conclusion that had to be reached was to the effect that the so called contract system was a mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real contractual relationship between the Board, on the one hand, and the employees, on the other, could be clearly visualised'."
45. Following the above judgment, I hold that the contract system followed by the respondent-Corporation is a mere camouflage and intended to circumvent of the provisions of the Act. When once it is held that the respondent cannot engage the services of the contract labour for getting the works of perennial nature done, the very engagement of a contractor to get the works done is illegal and when once the intermediary contract vanishes, there exists a direct relationship of master and workmen between the employees and the 2nd respondent. I accordingly hold the issue in favour of the petitioners.
46. This leaves me two or three minor issues to be dealt with that were raised during the course of hearing. Whether the respondent is justified in deleting the clause 11.00 of the agreement for engagement of the exciting contract labour for the contract period 1997-98. The case of the respondent is that such a clause was incorporated only for the contracts relating to 1995-96 and 1996-97 but not earlier and the respondent is justified in deleting the clause for the year 1997-98. In fact he relied on a judgment of this Court in APDD Co-operation Federation's case (supra). It is true that a Division Bench of this Court in the above case held that the High Court cannot issue direction to Federation to impose a condition on the successive contractors to employ such employees till a final order is passed under Section 10 of the Act. In the light of the events that have taken place in the case since 1990, the judgment has no application. On the other hand, it is on the basis of the direction given by the Supreme Court and Bombay High Court, this clause was incorporated during the years 1995-96 and 1996-97. The Bombay High Court while quashing the notification issued by the Central Government prohibiting the employment of contract labour in the category of Telephone operator as the Central Advisory Board did not discharge its statutory duties as directed by the said Court in WP No.3797 of 1991 dated 18-3-1991 gave several directions and including the one that the protection given by the High Court for continuance of the services of the employees of the contractors will continue till final decision is taken by the appropriate Government. In other cases status quo in service as on that date shall continue till the appropriate Government takes final decision. Subsequently, the Hon'ble Supreme Court in International Airport Authority's case (supra) while directing the Central Advisory Board to examine the matter and then give necessary advice to the Government of India for taking appropriate action under Section 10 of the Act for various categories of the employees referred in the order directed that with regard to the services of the contract labour status quo will continue. Those who were dismissed earlier are directed to be reinstated. The same directions were again reiterated by the Bombay High Court in WP No.1451 of 1998 dated 18-8-1998 in Airports Authority, Kamgar Union's case while fixing time to the board as well as to the Central Government for taking the required decision, directed that the services of the workmen employed as contract labour represented by the petitioners shall be continued till a final decision is taken. Further, while the respondent Corporation was given a free hand to engage a fresh contractor, on expiry of the contract period of the existing contractor, it should be made a pre-condition that the workmen engaged by the present contractor as contract labour shall be continued through the fresh contractors for the aforesaid period. From this, it is seen that initially the clause 11.00 for continuation of the existing contract labour in the agreement was incorporated pursuant to the directions given by the Bombay High Court while the matter is pending decision by the Central Advisory Board and the Government. It is not in dispute that by the time new contract period commenced from 21-6-1998, there is change in the office of the 3rd respondent and it is not known whether the Officer deleted the clause knowing fully well the background under which it is incorporated in the agreement or not, but when this Court gave directions for their continuance, he has not cared to implement the same. On the other hand, even after expiry of the term of the contract in favour of the 4th respondent he continued the contract in favour of the 4th respondent under the pretext that no contractor is coming forward to take the contract by continuating existing contract labour till 7-1-2000. When contractors came forward to take up the work by continuing the existing contract labour in 1995-96 and 1996-97, or even prior to that, it is not known how the 3rd respondent could not get the contractors now. The very fact that the 3rd respondent extended the contract in favour of the 4th respondent without approaching the Court and without seeking necessary orders from this Court gives rise to any amount of suspicion on the bona fides of the 3rd respondent in extending the contract of the 4th respondent. This is how the officials of a welfare State are conducting themselves and the position was summarised by the learned Judge of the Supreme Court in Gitjarat State Electricity Board's case (supra), which was already extracted supra. Unless a stern action is taken against the officials who are prone to swear to false affidavit and try to mislead the Court, the very system of administration ofjustice crumbles down under its own weight.
47. The next question that has to be decided is whether the certificate of registration given by the Assistant Labour Commissioner (Central), Hyderabad permitting the 2nd respondent authority to engage 400 contract labourers vide certificate COR.No.2/97, dated 20-1-1997 is valid and can be given any credence. By the time the Act came into Force in 1970, the 2nd respondent Corporation is very much in existence though under the provisions of different enactment and as on today the Airport authority is governed by provisions of Airport Authority of India Act, 1994. Under Section 7 of the Act, every principal employer of an establishment to which this Act applies has to make an application to the Registering Officer in the prescribed manner for registration of the establishment within such period as the appropriate Government by notification in the official Gazette fixes in that behalf to get the works done by the contract labour. The Government of India in GSR No.1424 dated 17-8-1971 published at page 3908 of Gazette of India; Part II -Section 3(i) dated 22-10-1971 fixed 20th September, 1971 as the last date before which every principal employer of an establishment has to make an application to the Registering Officer for registration of the establishment It is admitted case that till 1997 the 2nd respondent did not obtain any registration as required under Section 7 of the Act. Perhaps having seen the proceedings that are going on in Bombay High Court as well as Supreme Court for the first time, the 2nd respondent filed an application in January, 1997 and the Registering Officer issued the certificate of registration on 20-1-1997 though the application for registration was filed nearly 16 years after the last date prescribed for that purpose expired and to the repeated enquiries made by the Court the Registering Officer was not able to place any material to show that he has conducted any enquiry and satisfied himself in condoning the delay in filing the application by the 2nd respondent before issuing the certificate. This very fact itselfvitiates the certificate issued by the Officer concerned. Further he has given permission to engage 400 contract labour for carrying on the work in Civil and Electrical maintenance at Airport, Hyderabad. While giving registration certificate he observed that contract labour should not be engaged in the prohibited categories of employment as per notification SO No.779(c) dated 9-12-1976. This notification was neither placed before this Court by the respondent/Airport authority nor the Registering Officer to know in what categories of employment the contract labour system was prohibited. In another communication 58/2/1997-E2/E5 of even date, the Registering Officer advised the Director to inform the contractor to obtain licence before commencement of work from the Licensing authority in case they engage more than 20 workers in any day and insisted a copy for his reference. Admittedly, the contractor engaged by the 2nd respondent did not obtain the licence for undertaking work through contract labour as required under Section 12 of the Act. The case of the respondents is that under the provisions of the Act a licence has to be obtained by the contractor when he engages more than 20 workers in any day during the subsistence of the contract and as no contractor engaged more than 20 workers no licence need be obtained as contemplated under the Act. From Section 1(4) of the Act, it is seen that the Act is made applicable to every establishment in which 20 or more workmen are employed on any day of the preceding 12 months as contract labour. From this it is evident that the whole establishment is treated as a single unit without reference to the nature of work that is being executed by the contract labour and if more than 20 workmen in all are employed as contract labour on any day of the year, the Act is applicable. But, it is interesting to note how the officials of the respondent-Corporation tried to circumvent the law not only by entrusting different works to different contractors but also by splitting the same work in different places, of course within the Airport. In fact, initially they tried to contend that the Rajiv Gandhi terminal and NTR terminal are different, but when this Court insisted for filing an affidavit to that effect they admitted that there are two terminals in the same Airport and to avoid rush and facilitate easy passenger movement independent terminals are provided in Hyderabad Airport and they are situated within the Hyderabad Airport in Begumpet. For instance, how they have split the work for the year 1997-98 is given hereunder:
Electrical works :
Year Sl.
No. Name of the work Agency Strength Whether the work of temporary in natue 1997-98 1 O&M of E&M installations at Non-residential building and ASR/MSSR O&M Baggage conveyors Harideep Electrical 18 Work is temporary in nature
-do-2
Gannon Dunkerly & Co. Ltd.09
do 1998-99 1 O&M of E&M installation at Non-residential building and ASR/MSSR building O&M of 3x250 ton AC plant Ashwani Ref & Electiicals 18 do 1998-99 2 Voltas Limited 09 Work is temporary in nature 1999-2000 1 O&M of 3x250 ton AC plant Voltas Limited 09 do 1999-2000 2 O&M of 3x80 tan AC plant Blue star Limited 09 do 1999-2000 3 O&M of Baggage Gannon Dunkerly & Co. Ltd 11 do 1999-2000 4 O&M of Passengers boarding Bridges Shenzhen Tianda Pvt. Ltd.14
do From the above it is seen that though more than 20 contract labour were engaged for attending to the maintenance work in Electrical wing in the Airport, the 3rd respondent to circumvent the provisions of the Act divided the work and entrusted work to different contractors. Further, it cannot be said that the particulars given by the 3rd respondent is reflecting the true physical position in the airport. I am constrained to make this comment by going through the information given in the tabular form by the respondent. While the work at O & M Baggage conveyors and O&M of Passenger Boarding Bridges were entrusted to contract labour during 1999-2000 no information was forth coming how and in what manner the 3rd respondent got the works done in 1998-1999.
Civil Engineering Wins :
Year Sl. No. Name of the work Agency Strength Whether the work of perecinial temporary in nature 1998-99 1 Amual work contract tor repairs and maintenance of civil works of quarters Arvind Kumar 4 Average Temporary in nature do 2 Annual Rate Contract for repairs and maintenance (ARC for R&M) of Civil Works at Domestic Terminal building and operational area ARC foe repairs and maintenance to New integrated Terminal Building (NITB) D. Narasimha Reddy 30 Average do do 3 M.V. Prasad Rao 43 Average do 1999-2000 1999-2000 1 ARC for R&M of various civil works at Rajiv Gandhi Terminal (RG Terminal) ARC forR& (V) of various civil works at NTR Terminal M.V. Prasad 43 (Average) do 1939-2000 2 D. Seetharama Reddy 40 do From the above, it is seen that in case of Civil works at each place of work more than 20 casual labourers worked during 1998-99 and 1999-2000 and none of the contractors obtained license as required under Section 12 ofthe Act to undertake the work by engaging contract labour Schedule III Year Sl. No. Name of the work Agency Strength Whether the work of perennial or temporary in nature 1997 to 1999 1 Contract for Garbage lifting Sri Sai Enterprises 03 Temporary in nature
48. In fact during the Course of hearing it came to the light that they are continuing the contract labour system even in prohibited works like sweeping etc. From the fact, it is seen that while obtaining registration, the 2nd respondent did not give any details for engaging the contract labour within the Airport itself and to circumvent the law they divided the same work within the same premises under different captions and entrusted the work to the contractors. Unfortunately, the Labour Officers who are expected to enforce the provisions of the Act never cared to inspect the premises to find out what is happening in the Airport, whether the work sought to be executed through contract labour is of perennial nature or of urgent/temporary nature, whether any justification is there to issue Certificate of Registration permitting the Airport Authorities to engage as many as 400 contract labourers, more so, without any details of the work and the workmen required to do the work. Hence, I hold that the certificate given by the Registering Officer suffers from the infirmity of non-application of mind and the certificate was given on mere asking for it, without conducting any inquiry on the nature of work to be undertaken and without condoning the delay in filing the application by the 3rd respondent. Nextly, under Clause No.13.01 of the agreement without reference to the number of contract labourers that are to be engaged by him, the contractor has to obtain the license as required under Section 12 of the Act. But, without insisting for the same the work was entrusted to the contractor. For all these reasons, I hold that the registration obtained by the 2nd respondent as a Principal employer has to be treated as non est in law as the same was obtained by the Airport long long after they started getting the work done by the contract labour; and by suppression of facts, apart from adopting dubious method of splitting the same work at different places in the Airport itself and entrusting the work to different contractors so that the contract labour employed by each of the contractor does not exceed 20 in number, without obtaining the licence as reqirred under Section 12 of the Act as well as the terms of the contract only to defeat the provisions of the Act. As pointed out supra, under the provisions of the Act the entire establishment is treated as a single unit to find out whether the provisions of the Act are applicable or not but not department-wise as is being done by the respondent Corporation in this case. At any rate the respondent cannot split up the same work in the same departments, place wise and entrust the works to different contractors to circumvent the provisions of the statute. In one word the entire procedure followed by the 3rd respondent is nothing but mala fide exercise of power. Likewise, as per the terms of the agreement the successful contractor has to obtain a license without reference to the number of contract labour engaged by him to execute the work. In this case the contractors do not hold a licence as required under the agreement. On that ground also the engagement of contract labour by the 2nd respondent cannot be held to be legal. In Deenanath's case (supra) the Supreme Court held to treat the workmen as contract labour, both the principal employer as well as contractor should obtain registration under Section 7 of the Act as well as Section 12 of the Act respectively. In the instant case while the 3rd respondent obtained registration under Section 7 of the Act in 1997 by suppression of facts long after they started engaging contract labour the contractors failed to get license as required under Section 12 of the Act. In the instant case the 3rd respondent obtained registration under Section 7 of the Act in 1997 by suppression of facts long after they started engaging contract labour and entrusted the works in the manner referred supra, to different contractors without obtaining necessary licenses on the pretext that the contract labour engaged by them are less than 20 in number.
49. In the light of the above discussion, 1 hold that it cannot be said that the 2nd respondent is legally entitled to get the works done by contract labourers through contractor. On this ground also I hold that there is direct relationship ofMaster and servant between the 2nd respondent Corporation and the petitioners.
50. Nextly, the Counsel for the respondent contended that the Airport is being modernised on par with International standards and when once modernisation and automation/mechanisation is put into operation even the existing staff have to be retrenched gradually on phase-wise manner.
51. I have no hesitation to reject this contention with the contempt it deserves for the simple reason that this Court cannot shrunk its responsibility in implementing the law of the land on the ground that something is going to happen in future, which may ultimately result in large scale retrenchment of the employees. It is not known after modernisation whether the existing staff will be retrenched or more staff is required. If really the existing staff has to be retrenched on modernisation, it is always open to them to do so as per law, but that cannot be a ground for refusal of the relief to the petitioners at this stage.
52. The next question that cropped up for decision in this writ petition is whether a contractor has to obtain -licence as required under Section 12 of the Act if he engages more than 20 contract labour in any day in the preceding year only in an establishment but not otherwise. In other words whether the contractor has to obtain a license on the basis of total number of workmen working under him for executing the works undertaken by him in various establishments or only establishment-wise for applicability of the provisions of the Act.
53. In this case the 4th respondent is undertaking works in various establishments without obtaining license as required under Section 12 of the Act on the pretext that the contract labour working in each ofthe establishments are less than 20 in number.
54. On this issue there is no decided case and I am leaving it open for decision at an appropriate time, in the light of the view taken by me on the other issues with regard to the applicability of the provisions ofthe Act to the 2nd respondent-Corporation and any finding given by me on this issue do not materially alter the result of the case.
55. Lastly, I will be failing in my duty if I do not advert to the preliminary objection raised by the Counsel for the respondent that it is not desirable for the High Court, while exercising the extraordinary jurisdiction sitting under Article 226 ofthe Constitution of India, to decide disputed questions of fact and law, only on the basis of the affidavits and it is always safe to direct them to approach the Labour Court or the Industrial Tribunal, a competent fora for adjudication of these aspects on the basis of oral and documentary evidence adduced by the parties. At the same time in the written arguments submitted by him he admitted that no fetters are placed on the exercise of power of the High Court under Article 226 of the Constitution of India except it is a self-imposed limitation and he also admitted that in works of perennial nature the establishments/undertakings are prohibited getting the works done through contract labour.
56. As the issue of getting the works done by the respondent-Corporation through contract labour was dealt with by the Constitution Bench in Air India Corporation Authority case and Haryana Electricity Board case (supra) and the view taken by me on the basis of the information furnished by the respondent Corporation on the works that are being attended by the contract labour as well as the regular staff after going through various clauses of the agreement that is being entered into by the respondent Corporation and the successful contract, that the words that are being attended by the contract labour in the respondent Corporation are of perennial nature and the action ofthe respondent Corporation in splitting the same work at different places in the Airport and trying to get them done by the contract labour by entrusting them to different contractors to see that the contract labour engaged by them do not exceed 20 persons, so that the statutory requirement of obtaining licence under Section 12 ofthe Act by the contractor is circumvented. I do not find any disputed question of fact or law in this case, more so, after the Central Government issued notification abolishing contract labour in the works that are being attended by the petitioners herein. Hence, I have no hesitation to reject the preliminary objection raised by the Counsel for the respondent, as the arm of the Court is long enough to reach injustice wherever it is found. The Court is sentinel in the qui vive is to mete out justice in given facts of the case. In support of the view taken by me any number of decisions can be cited. It is suffice to refer to the judgment of the Supreme Court in Air India Statutory Corporation Case:
59. The founding fathers placed no limitation for fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinal in the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by catena of decisions of this Court starting from Indira Gandhi v. Raj Narayan, and Bommai's case, 1994 AIR SCW 2946. It would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court would properly mould the relief and grant the same in accordance with law.
57. In the light of the findings recorded by the Court on the issues that have cropped up for consideration in these two writ petitions, the petitioners have to succeed and accordingly Rule Nisi issued is made absolute and a writ of mandamus shall issue to the respondent-Corporation to take immediate steps to regularise the services of the petitioners in the posts they are working forthwith, at any rate not later than four weeks from the date of receipt of a copy of the order. Till the services of all the petitioners in these writ petitions are regularised, the respondent-Corporation shall continue the present arrangement of getting the works done by the petitioners as per the orders of this Court dated 31-12-1999.
58. In the result both the writ petitions are allowed with costs. Advocates fee is fixed at Rs.5,000/- in each of the writ petitions.