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6. In view of the aforesaid contentions, the questions that fall for consideration in this appeal, which are common to all the appeals are, as follows:

[a] Whether an industrial dispute can be raised for abolition of the contract labour system in view of the provisions of the Act?
[b] If so, who can raise such dispute?
[c] Whether the Industrial Tribunal or the appropriate Government has the power to abolish the contract labour system? and [d] In case the contract labour system is abolished, what is the status of the erstwhile workmen of the contractors?
"It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them."

14. It is no doubt true that neither Section 10 of the Act nor any other provision thereof provides for determination of the status of the workmen of the erstwhile contractor once the appropriate Government abolishes the contract labour. In fact, on the abolition of the contract, the workmen are in a worse condition since they can neither be employed by the contractor nor is there any obligation cast on the principal employer to engage them in his establishment. We find that this is a vital lacuna in the Act. Although the Act has been placed on the statute book with all benevolent intentions, and elaborate provisions are made to prevent the abuse of the contract labour system as is evident from the Statement of Objects and Reasons and the provisions of the Act referred to by us in detail earlier, the legislature has not provided any relief for the concerned workmen after the contract is abolished. One reason for the same pointed out to us was that the workmen engaged by the contractor may not be qualified to be engaged by the principal employer according to the latter's rules of recruitment. In this respect, we envisage two different situations, first where similar type of work is being carried out by the direct employees of the principal employer and, second where the contract labour is engaged to execute work which is not being carried out by any section of the direct employees of the principal employer. As regards the first situation, the condition no. [5] of the licence to be granted to the contractor in Form VI under Rule 25 [1] of the Rules requires that wage rates, holidays, hours of work and other conditions of service of the contract workmen shall be the same as applicable to the workmen directly employed by the principal employer for performing the same or similar type of work. In other cases, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor, as per condition [6] of the said Form, shall be such as may be specified by the Chief Labour Commissioner [Central]. When the legislature has been careful enough to take such precautions, we are unable to appreciate as to why it could not have provided also for the absorption of the workmen who have been doing the work in question. It is possible that the contractor has been transferring his workmen from one job to another and the same workmen may not be working for all the time in the same establishment or the process. But as pointed out earlier, the application for registration under Rule 17 [1], the certificate of registration under Rule 18 [1], the register of establishment under Rule 18 [3], the application for licence under Rule 21 [1] and the licence granted under Rule 25 [1] all require the particulars of contract labour to be furnished in the prescribed form. Hence is should not be difficult to verify the workmen who were actually working in the establishment in question for a given period of time and the period for which they had worked since the record of payment of wages made to them would be available as it is to be made in the presence of the representative of the principal employer who is also responsible to make the payment of the whole of the wages or the balance of it in case the contractor makes default. For ensuring the payment to the workmen, the muster roll has necessarily to be maintained. If they have in fact worked for a reasonably long time satisfactorily and have thus gained experience, it should not be difficult to identify and absorb them. In fact, they will any time be better than fresh recruits and their engagement would be beneficial to the establishment concerned. On account of the abolition of the contract labour, the establishment will in any case require replacement of the contract labour. It may be that the establishment may not require the whole complement of the workmen erstwhile employed by the contractor. But that also may not always be correct since the contractor would more probably than not have employed less work-force than may be necessary in order to keep his margin of profit as wide as possible. Whatever the case, the logic in not employing the workmen of the erstwhile contractor or those of them who may be necesary, in the principal establishment after the contract is abolished, does not appear to be sound.

The remedy of the workmen is to raise a proper industrial dispute as indicated earlier for appropriate reliefs. If and when such dispute is raised, the Government should make the reference within two months of the receipt of the dispute and the industrial adjudicator should dispose of the same as far as possible within six months thereafter.

Civil Appeals are therefore dismissed but with no order as to costs.

C.A. 5504/95 @ S.L.P. (C) No. 13520 of 1991

26. In this case, the Labour Court has given relief of reinstatement with back-wages to the workmen. There is no finding recorded by the Court whether the industrial dispute was raised by the direct employees of the appellant-Society and whether the labour contract was genuine or not. The Labour Court has proceeded to grant the relief to the workmen only on the basis that the registration certificate and the licences under the Act were not produced by the Society and the contractors concerned respectively and, therefore, the workers should be deemd to be the employees of the Society.