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3. Petitioners in these petitions are contract workers and/or the unions representing such contract workers. They are engaged by various contractors who are also imp leaded as parties in these petitions. These contractors have been awarded the work by the principal employer. Admittedly, engagement of such contract workers is governed by the provisions of Contract Labour Regulation and Abolition Act, 1970 (hereinafter referred to as the Act, for short). According to the petitioners the work is of perennial nature and the award of work by the principal employer to the contractors and engagement of the contract workers by the contractors is nothing but a subterfuge and camouflage. When the work is of perennial and permanent nature contract labour is prohibited and therefore introduction of contracor as a middle man is an artificial plug to deprive the contract workers of their legitimate rights. The veil should be lifted and direct relation-

III. EFFECT OF NON-OBSERVANCE OF FORMALITIES REQUIRED UNDER SECTION 7 AND 12 OF THE ACT.

29. 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 for registration of the establishment meaning thereby, if the particular establishment wants to engage contract labour and to such an establishment the provisions of this Act applies, it has to get itself registered with the Registering Officer. Likewise, under Section 12 of the Act the Contractor, to whom this Act applies, has to obtain a license from the Licensing Officer under this Act and unless it has taken such a license, contractor is not permitted to undertake or execute any work through contract labour. The non-observance of Section 7 and/or 12 is penal and the erring establishment or the contractor, as the case may be, can be prosecuted (refer, Sections 22 to 27 of the Act). However, the question which falls for determination is as to what would be the fate of such contract labour which is engaged by the contractor who is not having a valid license under Section 12 of the Act or where the principal employer has not got itself registered under Section 7 of the Act. The initial judicial thinking was that consequence of violation of Sections 7 and 12 of the Act would be that establishment or the contractor, as the case may be, would attract penalty under the provisions of the Act but that would not make employees engaged by the contractor direct employees of the principal employer. Registration/licensing was only a regulatory measure and it did not create any privilege in favour of contract workers (refer General Labour Union (Red. Flag) Vs. K.N.Desai reported in 1990 LLR 208 (Bom.), Steel Authority of India Vs. Steel Authority of India Contract Worker's Union reported in 1990 (64) FLR 573 (Karn.) and Dinanath Vs. Natiional Fertiliser Limited reported in 1992 LLR 46 (SC). However, recent judicial trend shows that in such cases directions can be given to the principal employer to treat such contract workers as its direct employees if the contract labour is engaged violating Section 7 and/or 12 of the Act (refer United Labour Union Vs. Union of India reported in 1990 (Vol. 60) FLR 686). In this case Division Bench of Bombay High Court dealt with this aspect in great detail. The Supreme Court also has in the cases of Air India (supra) and HSEB (supra) has categorically held such a consequence to follow. Therefore, following these judgments one can conclude that incase the establishment, is not registered under Section 7 of the Act or the contractor, to which this this Act applies has not taken license under Section 12 of the Act and still contract labour is engaged such contract workers would be treated as direct employees of the principal employer.

31. Similarly, in the case of Catering Cleaners of Southern Railway Vs. Union of India and another, , the Supreme Court while directing the Central Government, as "appropriate Government" to take appropriate action under Section 10 of the Act protected such contract workers in the meantime.

32. On the other hand, various counsel appearing on behalf of the respondents in these writ petitions made fervent appeal to dismiss the writ petition arguing that the petitioners could not get such protection so long as the contract system was permissible for want of notification under Section 10 of the Act. It was argued that the directions given by the apex Court in aforesaid cases were in exercise of its power under Article 142 of the Constitution, keeping in view the peculiar facts of these case. No law or ratio was laid down tantamounting to a binding precedent to the effect that such protection has to be given in all cases of contract labourers where mandamus to the "appropriate Government" is sought to discharge its duty under Section 10 of the Act. It was submitted that such a direction if given in these cases would set bad precedent. It would be difficult to decide where to draw the line.It would lead to misuse of process of law inasmuch as these contract workers would file writ petitions, seeking mandamus to the "appropriate Government" to issue notification under Section 10 of the Act and in the meantime pray for their continuation of service. It will have the effect of continuing such contract workers even when they are not required and were engaged genuinely as contract labour for a particular period. The consequence would be disastrous. It was also argued that when the writs were not maintainable and no final direction could be given to absorb such contract workers by the principal employer in these proceedings, how interim direction/protection could be given to continue such contract workers in the interregnum.

34. In view of my aforesaid discussion I am inclined to accept submissions of the respondent that the directions contained in the aforesaid judgment do not lay down any precedent or ratio. If this Court in these writ petitions cannot give any directions to the respondents to treat these contract workers/petitioners as their own workers and if this Court in these proceedings cannot undertake the exercise which "appropriate Government" is supposed to undertake in view of the provisions of Section 10 of the Industrial Disputes Act and if the direction to the "appropriate Government" which can be given only to the extent of discharging its duties under Section 10 of the Act and decide whether contract labour needs abolition or not, that too when this Court is convinced that the "appropriate Government" has failed in its duty cast upon it by the statute, how can the Court give a direction to the respondent to continue to engage these workers/petitioners even beyond the period for which they were taken as contract workers. So long as contract labour in a process, operation or work etc. in an establishment is not abolished it is permissible for the principal employer to get the said process, operation or work in an establishment done through a contractor who can employ its own workers namely, contract workers. Thus giving of such a direction when there is no material on record, as contemplated under Section 10 of the Act on the basis of which it is yet to decide whether the contract labour needs to be abolished would be contrary to the statute which permits engagement of contract labour till it is prohibited by issuing of notification under Section 10 of the Act. It would also amount to doing a particular act indirectly which cannot be done directly. It may be pointed out that High Court are now witnessing an upsurge of such petitions being filed under Article 226 of the Constitution, particularly after the judgment of the apex Court in Air India (supra), even in the absence of notification under Section 10 of the Act, notwithstanding the fact that, that case related to post Section 10 notification. It is also observed that within few months of their engagements such contract workers file writ petitions under Article 226 of the Constitution, just before the period of contract is about to expire and want the protection of the Court. In most of these cases they do not even approach the "appropriate Government" with the request to issue notification under Section 10 of the Act and file writ petition either with a prayer to issue directions to abolish the contract labour by the Court itself or seek mandamus to the "appropriate Government" to undertake the exercise contemplated under Section 10 of the Act and issue necessary notification. After all mandamus to "appropriate Government" can be issued only if in a particular case, the Court is satisfied that the "appropriate Government" has failed to discharge its statutory obligation. Even in those cases, where mandamus to the "appropriate Government" is to be issued as to whether contract labour in a particular process, operation, or work etc. in an establishment needs abolition or not, giving of such a direction to protect such contract workers in the interregnum may permit the workers to misuse the process of law by filing the writ petition under Article 226 of the Constitution and continuing as contract workers even beyond the contract period. Therefore, such direction cannot be given as a matter of course or on a mere asking when the writ petition is filed or during the pendency of the writ petition or when the writ petition is disposed of with directions to the "appropriate Government" to discharge its duty under Section 10 of the Act. However, at the same time one also cannot lose sight of the situations where it is found that such contract workers have been engaged for years together, they have remained as contra workers notwith-standing the fact that the contractor namely intermediaries between the principal employer and the contract workers have also changed. In such cases, where the petitioners in the writ petitions have placed on record sufficient and strong material to establish that the factors as mentioned in Section 10 of the Act are prima facie satisfied and they may be thrown out by the principal employer or the contractor, merely because they have approached the Court by way of writ petition and it would be in the interest of justice to give that direction in the interregnum till the enquiry is completed by the "appropriate Government" under Section 10 of the Act and the decision taken thereon, Court should not be powerless to give such workers protection in order to do complete justice in the matter. In some of the judgments of apex Court, referred to above, this course was resorted to. Therefore, although directions to continue such contract workers in the interregnum should not be given liberally and in a routine manner, in exceptional cases where the Court is convinced that the facts and peculiar circumstances of the case justify giving of protection to such contract workers, appropriate orders can be passed. It would be, prudent to give reasons while adopting such an exceptional course in a particular case, normal rule being that the Court should not generally exercise such a power.