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14. If there was any lingering doubt on the subject, the Respondent Contractors, who have filed their affidavits, have dispelled the doubt. Jamanlal Jain, Respondent No. 6, in his affidavit dated August 12, 1997 says in paragraph 10, "..... I submit that since the tender submitted by me was the lowest and since I complied with all the terms and conditions of the said tender, the Respondent No. 1 entered into a regular legal contract with me for lifting the garbage and solid waste from the street of Bombay in accordance with the directions and instructions and for dumping the same at the place directed by Respondent No. 1 on the terms and conditions mutually agreed upon." (Emphasis ours). He further says that he has been a Contractor of the Responded No. 1 since last more than seventeen years and his work had been found satisfactory. Since he was complying with all the terms and conditions of the said contract and hence "the Respondents have been giving me the contract for lifting the garbage, debris etc. since then," Further on, he says, "I submit that under the said contract I am carrying on the work of lifting, transporting and dumping of debris, garbage, silt, house-gully materials, etc., at the various dumping grounds of Respondent No. 1 and as directed by them." (Emphasis ours). In paragraph 11 of the affidavit, he says that the contract of lifting of garbage and solid waste from the streets of Bombay was awarded to him on the basis of acceptance of his tender which was the lowest and that, in pursuance of the said contract, he had been supplying the labourers and carrying on the said work of lifting the garbage. Finally, he justifies the continuation of the contract system by saying, "I therefore submit that in view of the aforesaid circumstances, the daily paid workers who are engaged by the Contractors including myself cannot be termed as contract workers and as such their duty cannot be regularised under the Act".

There are about 5800 permanent workers working in this department and the strength of contact workers is 3066. All these contract workers are employed by 72 Contractors. The workers employed by the Contractors are represented by Kachara Vahatuk Shramik Sangh and Shri Milind Ranade is the General Secretary of the Union."

The Labour Commissioner also pointed out that the Solid Waste Management Department of the Corporation had made an application for registration as principal employer under the Contract Labour (Regulation and Abolition) Act, 1970 only on December 17,. 1996. As by that time this Writ Petition had already been filed, the said application was kept in abeyance. He also pointed out that none of the Contractors had obtained licence under the provisions of the said Act and as the Bombay Municipal Corporation had not taken any action against them, the application for registration made by the Bombay Municipal Corporation was also kept pending. He also points out that by letters dated October 25, 1997 and May 19, 1998 the Petitioner Union had made representations to the Chairman of the State Contract Labour Advisory Board urging him to advise the State Government to abolish the system of employment of contract labour in the Solid Waste Management Department of the Bombay Municipal Corporation. The letter also points out that an examination of the comparative conditions of service indicated that while permanent workmen of the Bombay Municipal Corporation get about Rs. 6040/- as wages per month, the contract workers get about Rs. 90/-per day (Rs. 2700/- per month). Besides, they were not allowed any other statutory benefits, nor were they in receipt of any fringe benefits, like, leave facilities, nor were their working hours subject to regulation. The Labour Commissioner ended up by saying;

"The work performed by the workers employed by the contractors is a work of regular and of permanent character. It is a regular and permanent work of the Corporation. This work is carried out for all the 12 months of the year. The solid waste management has employed 161 (sic), permanent workers for this work. The nature of work of the department requires employment of the other workers as its permanent workers and the same is easily possible.

Considering the salary paid to contract workers, non-extension of any statutory benefits, salaries and wages paid to permanent workers performing same work, other allowances and facilities etc. under the provisions of Section 10(2) of the Act read with provisions of the Sub-sections (a) to (d), this is a fit case for abolition and prohibition of the said contract system and hence the Government should recommend the matter to State Contract Labour Advisory Board. This office therefore recommends accordingly."

Developments during pendency of Writ Petition

21. Before we take up for consideration the legal contentions urged before us, it is necessary to point out a few developments which took place when this Writ Petition was pending before this Court. Pursuant to the letter of the Commissioner of Labour, which we referred to earlier, the matter was considered at the highest level by the Labour Ministry of the State Government. By his letter Ref. No. Lab/213/1999 dated February 4, 1999 addressed to the Commissioner of Bombay Municipal Corporation, the Labour Minister pointed out, inter alia, "in BMC there are many workers employed by contractors in cleaning the city (Safai Kamgar) and it has been observed by us that not a single contractor is a registered contractor (licence holder). It is the statutory duty of the BMC, being the principal employer to verify whether minimum wages, working hours, provident fund and other service conditions are not observed in breach. But in fact BMC has totally failed to carry out their statutory duty. Kachara Vahatuk Shramik Sangh has sent their proposal for abolition of the contract system to the Contract Labour Abolition Advisory Board, BMC and other contractors are exploiting the contract workers to such an extent that we are left with no other alternative but to abolish the existing contract system. "The Labour Minister also points out that this issue had been discussed with the Commissioner of the Municipal Corporation on occasions in the past, but not a single step had been taken by the Corporation to improve the situation. Hence, the Corporation was directed to send a representative for a meeting fixed on February 15, 1999 at 11.00 a.m. at Mantralaya.