Document Fragment View

Matching Fragments

4.2 Affidavit-in-reply is filed by respondent No.3 opposing admission of present petition and raised a contention that complaint was made under Rule 25(2)(v)(a) of Contract Labour (Regulation & Abolition) Rules and competent authority has held that contract workers do not perform same or similar nature of works as those performed by regular employees of IOCL. Copy of order is also produced on record as Annexure-R-I. 4.3 It is necessary to consider that failure report which has been submitted by Conciliation Officer under Section 12(4) of I.D.Act,1947 dated 16.10.2009. In failure report, comments made by both parties have been narrated in detail by Conciliation Officer. According to petitioner Union, the contract system which is going on with respondent No.3 is not true and genuine but, it is sham and bogus. The review application which was preferred by petitioner Union (Annexure-E, Page-30) dated 1.5.2010. Even in that also, a specific stand has been taken by petitioner Union that contract system which is going on is sham and bogus and merely a paper arrangement and it is not genuine and real contract system continued with respondent No.3. Therefore, industrial dispute raised by petitioner Union to consider contract employees engaged by contractor on the job and regularize service of contract employees in job of principal employer. This specific aspect has not been considered by respondent No.1 - appropriate Government because merely claimants are engaged by contractor on the job in which employment a contract labour is not prohibited under provisions of Contract Labour (Regulation & Abolition) Act,1970, that itself is not enough but, real dispute is that claimants those who are engaged by contractor on job as a contract labour that contract system itself is merely a paper arrangement made between principal employer and contractor and such contract system is sham and bogus and not genuine. Therefore, it required to be considered that claimants those who are engaged by contractor on the job being an employee of principal employer or not ? This aspect has been considered by Apex Court in case of Sarva Shramik Sangh v. Indian Oil Corporation Ltd. & Ors., reported in 2009 Lab.I.C. 2297. Relevant observations of aforesaid decisions are in Para.10, 11 to 15 are quoted as under :

"10. The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not sound. What is impermissible is taking of an inconsistent plea by way of amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a plaintiff/petitioner. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed. When the case of the workers is that the contract was sham and nominal, they could seek a relief that they should be declared as the direct employees of the principal employer; and if that contention failed and it is found that the contract was valid, then they can seek issue a direction to the Central Government to consider their representation for abolition of contract labour. Similarly where the workers contend that the contract between principal employer and the contractor was sham and merely a camouflage to deny them the benefits of labour laws, and if their prayer for relief under CLRA Act is rejected, they can then seek relief under the ID Act. The contention of IOC that on account of the dismissal of the first petition, the second petition for a different relief was barred either by principle of res judicata or by principle of estoppel is liable to be rejected.

11.1) At that stage, presumably to get over the said objection regarding maintainability, the workmen filed an additional claim statement alleging that the contract entered into between VISL and the contractor was sham and bogus and they should be deemed to be the direct employees of the management. The Labour Court held that the dispute referred was whether the contract workers who were employed in the particular nature of contract work were justified in demanding absorption as regular employees; that the said dispute pre- supposed that the employees were contract workers under the contractors and the question therefore was whether the contract labour system should be abolished and contract workers had to be absorbed by the principal employer; that the employees who sought absorption by VISL were contract labour was evident from the averments made in the claim statement; and that the only remedy available to them was to file writ petition seeking a direction to the central government to take a decision under section 10 of CLRA Act to prohibit employment of contract labour. The Labour Court held that the question under reference related to abolition of contract labour and as the said question could be decided only by appropriate Government under section 10 of the CLRA Act, the dispute was not maintainable under ID Act. Therefore the Labour Court made an award holding that the reference was not maintainable.

19. A course correction, if we may use that expression, was applied by the Constitution Bench, in SAIL. This Court made it clear that neither section 10 nor any other provision in CLRA Act provides for automatic absorption of contract labour on issuing a notification by the appropriate government under section 10(1) of the CLRA Act and consequently the principal employer cannot be required to absorb the contract labour working in the establishment. This Court further held that on a prohibition notification being issued under section 10(1) of the CLRA Act, prohibiting employment of contract labour in any process, operation or other work, if an industrial dispute is raised by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract, or as a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of statutory benefits. If the contract is found to be sham or nominal and merely a camouflage, then the so called contract labour will have to be treated as direct employees of the principle employer and the industrial adjudicator should direct the principle employer to regularize their services in the establishment subject to such conditions as it may specify for that purpose. On the other hand if the contract is found to be genuine and at the same time there is a prohibition notification under section 10(1) of CLRA Act, in respect of the establishment, the principal employer intending to employ regular workmen for the process, operation or other work of the establishment in regard to which the prohibition notification has been issued, it shall give preference to the erstwhile contract labour if otherwise found suitable, if necessary by giving relaxation of age. As noticed above, SAIL did not specifically deal with the legal position as to when a dispute is brought before the Industrial Adjudicator as to whether the contract labour agreement is sham, nominal and merely a camouflage, when there is no prohibition notification under section 10(1) of CLRA Act.