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In the writ petition, it was emphasized that the nature of work carried out by the contract labour is perennial; merely because the Corporation has chosen to employ system of contract labour for discharging its statutory obligations, the contract labour does not cease to be workman of the principal employer the Corporation. According to the writ petitioners (Union), if at all, contract labour system was to be permitted, it could be done only in accordance with the provisions of the CLRA Act; an employer could not be allowed to carry on work through contract labour unless provisions of the statute were strictly complied with and that the Corporation was carrying on the work through contract labour for almost 15 years even without registering itself as a principal employer, that too through contractors who were not holding any licence under the CLRA Act. It is the further case of the Union that it kept on complaining to the Labour Commissioner about the gross violation of law and the legal rights of the workmen concerned. The Labour Commissioner, after investigation into the complaints, addressed letter dated 18.7.1998 to the Chief Secretary of the State recommending abolition of the contract labour system observing that Solid Waste Management Department is one of the sections of the Corporation, which is in operation for more than hundred years; in this Department the work of collection, transportation, dumping and disposal of the garbage, refuse, debris etc. is performed. The Labour Commissioner also stated in the letter that the Solid Waste Management Department had applied for registration as principal employer under the CLRA Act on 17th December, 1996. In the meanwhile, the writ petition had already been filed, so the said application was kept in abeyance. He also stated that none of the contractors had obtained licence under the provisions of the CLRA Act. He further pointed out that by the letters of 25th October, 1997 and 19th May, 1998, the Union had made representations to the Chairman of the State Contract Labour Advisory Board requesting him to advise the State Government to abolish the system of employment of contract labour in the solid Waste Management Department of the Corporation. In the letter of the Labour Commissioner, it is also stated that the work performed by the workers employed by the contractors is of regular and permanent nature. In the writ petition, it is also stated that the contract entered into by the Corporation with the contractors is a sham arrangement. The workmen concerned with the writ petition are in law and in fact employees of the Corporation, particularly so, when the task of sweeping and cleaning roads, gullies and removal of debris and garbage etc. are the statutory duties to be performed by the Corporation under Sections 61(C), 365 and 367 of the Bombay Municipal Corporation Act, 1888 (for short the `Act'). It is also stated in the writ petition that the conditions of service of these workmen are horrible and inasmuch as they are required to handle corpses of animals, excreta of animals and human-beings from house gullies and garbage dumps toxic and other danger material etc. In support of the writ petition, reliance was placed to the Circular dated 26.4.1985 issued by the Govt. of Maharashtra relating to Bhangi Mukti (prevention of scavenging), Circular dated 30.8.1996 issued by the Corporation on the precautionary measures to be taken while engaging contract labour, the letter dated 27.11.1996 addressed to the Additional Commissioner, Corporation, by the then Chairman of the Standing Committee of the Corporation Shri Hareshwar Patil stating that the garbage workers were not properly treated; there was no difference between the permanent workers of the Corporation and the contract workers; their conditions were really pitiable and steps are to be taken to improve the situation. Reference is also made to the letter of the Labour Commissioner dated 18.7.1998 addressed to the Chief Secretary of the State requesting to recommend the matter to the State Contract Labour Advisory Board for abolition and prohibition of the contract labour system. The Minister for Labour of the State addressed a letter dated 4.2.1999 to the Commissioner of the Corporation recommending for abolishing the existing contract system. In the writ petition, the following reliefs were sought :-

The High Court noticing the duties of the Municipal Corporation under the Act contained in the various Sections held that the said provisions imposed statutory duties on the Corporation to keep the city clean free of garbage, rubbish, refuse etc. The High Court took the view that if the Corporation chose to employ some other agency to discharge its obligation, it could do so provided it is consistent with the applicable legal provisions; after the enforcement of the CLRA Act under Section 7, the Corporation being principal employer was compulsorily required to register itself with the appropriate registering authority and every contractor was required to obtain a licence under Section 12 of the Act but neither the Corporation nor the contractors complied with the said provisions in spite of the grievances voiced by the union repeatedly. The High Court looking to the letter of the Labour Commissioner dated 18th July, 1998 to the Chief Secretary of the State recommending abolition of the contract labour system, letters dated 4th February, 1999, 5th April, 1999 and 10th may, 1999 addressed by the Labour Minister to the Commissioner of Corporation dealing with the working conditions of the contract labour and inaction of the Corporation and finally recommending for abolition of the contract labour system ordered for absorption of workers directly. During the course of the argument, the learned Addl. Govt. Pleader was asked as to why the said Contract Labour Abolition Advisory Board and the State of Maharashtra should not issue an order prohibiting employment of contract labour in the Solid Waste Management Department, it was informed that on account of election code of conduct, decision could not be taken in the matter. In this view, the High Court felt that the fate of the workers could not be left hanging on the sweet mercy of the Corporation and/or the State Government and it has become the responsibility of the Court to discharge its constitutional duty to see if the Union was entitled to relief in law and grant them such relief by then and there itself. Thereafter, the High Court referring to various decisions cited and mainly relying on the decision of this Court in Air India case (supra) and applying the principles stated therein to the present case and allowed the writ petition granting the reliefs to the union in terms already stated above.

We do not consider it necessary to refer to the decisions cited by the learned counsel in the light of the authoritative pronouncement of the Constitution Bench of this Court aforementioned.

Now, we proceed to consider the validity and correctness of the impugned judgment and order in the light of judgment of the Constitution Bench in SAIL case (supra). The High Court held that the work entrusted to the members of the Union continued to be basically the work of the Corporation itself of perennial nature; the Corporation has chosen to carry out the work under so-called system of labour contract without complying with the provisions of the CLRA Act and as such the labour contract was a camouflage. We must state here itself that the Union in the writ petition alleged that the labour contract was sham and the Corporation specifically denied it in its counter affidavit but the High Court did not go into this question and did not record a finding that the labour contract in the present case was sham or a camouflage considering the material on record; even otherwise this being a serious and disputed fact in terms of the Constitution Bench judgment aforementioned, the High court could not have appropriately adjudicated on the issue exercising jurisdiction under Article 226 of the Constitution. It appears to us that the High Court proceeded to conclude that the labour contract was not genuine and the workers of the Union were employees of the Corporation because the Corporation and the contractors did not comply with the provisions of the CLRA Act. Conclusion that the contract was sham or it was only camouflage cannot be arrived at as a matter of law for non-compliance of the provisions of the CLRA Act but a finding must be recorded based on evidence particularly when disputed by an industrial adjudicator as laid down in various decisions of this Court including the Constitution Bench judgment in SAIL. The cases on which the High Court placed reliance were the cases where finding of fact was recorded by the labour courts on evidence. In para 34 of the impugned judgment, it is stated :-

The Corporation has disputed as to the number of workers under the contract labour system and their authenticity and the period of their work etc. Merely because the records are not maintained by the contractors, it may not be appropriate to accept the list of workers given by the Union. Even from the reliefs granted by the High Court already extracted above, it is clear that 782 contract labourers were identified as working through contracts; a direction was given to constitute a committee to verify the claims of all workmen other than already verified and to make a report to the Corporation indicating the presence who were working actually as the contract labourers in the Solid Waste Management Department on the date on which the writ petition was filed. Further, immediately on receipt of such report, the Corporation shall absorb such workmen as the permanent workmen. These directions themselves indicate as to the disputed questions that arose for consideration The High Court having said earlier although the power of abolishing the contract labour system vested in the Government because of delay in doing so, there was no impediment to pass such an order itself. In para 45 of the judgment, the High Court states thus:-