Document Fragment View

Matching Fragments

we overrule the judgment of this court in Air Indias case prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labour following the judgment in Air Indias case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to it as becomes final.
In the case on hand the matter is pending and therefore the reference is not yet answered at all. Therefore, the question of absorption of the workmen is not there in the case on hand as such, it cannot be said that the said observations of the Honble Supreme Court is prospective and there is no application. Intention of Their Lordship is that in case contract labourers were already absorbed and regularised in view of the judgment rendered in Air Indias case, the position will be disturbed in case the judgment is followed. Therefore, Their Lordship observed application of the judgment prospectively only. In view of specific observation of Their Lordship, automatic absorption of contract labour by principal employer is not contemplated under the Contract Labour (Regulation and Abolition) Act.
The SAIL filed counter affidavit and has taken preliminary objections to the maintainability of the writ petition and also the right and entitlement of members of petitioner union for engaging as labour in the loading and unloading operations. Averments in writ petition No.21548 of 2002:
After referring to the circumstances till the filing of transfer case and the decision of Apex Court in SAIL case (2 supra) the petitioner alleges that SAIL through its counsel represented before the 2nd respondent on 19.12.2001 that the management is not questioning the reference made to the Labour Court. Therefore, G.O. Ms. No.375 dated 05.06.1981 and the reference in G. O. Rt. No.1227 dated 05.06.1992 cannot be questioned at that stage of hearing I.D. It is asserted that in view of SAIL case (2 supra), it is essential for the workmen to adduce evidence on their behalf to consider the question whether the contractor has been interposed to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a near ruse/camouflage to evade compliance of beneficial legislation and deprive the workers the benefits of those beneficial legislation. If the workmen on the contrary can demonstrate that the contract is not genuine and also a camouflage and the employment of contract labour is a ruse the labour Court having regard to the principles laid down by the Apex Court in SAIL case (2 supra) could mould the relief. It is stated I.A. No.96 of 2002 was filed for adducing evidence on behalf of workman. When I.A. No.96 of 2002 is pending, SAIL filed I.A. No.122 of 2002 to reject the reference made in G.O.Rt.No.1227 dated 05.06.1992 on the ground that in view of the law declared by the Apex Court in SAIL case (2 supra) the contract labour cannot claim automatic absorption as employees of Principal employer and the very reference does not survive. The grounds against the order impugned are that the reference in G.O. Rt.1227 dated 05.06.1992 had attained finality in view of the orders in SAIL case (2 supra) particularly in Para No.124 while disposing of T.C. No.1 of 2002. The representation of counsel for management on 19.12.2001 has given quietus to the debate on legality on G.O.Ms.No.375 dated 05.06.1981and G.R.Rt.No.1227. The SAIL case (2 supra) is prospective but not retrospective. It is further pointed out that the Industrial Tribunal/2nd respondent failed to appreciate that the dispute is pending before it before the pronouncement of judgment in SAIL case (2 supra). According to petitioner, the issue for consideration in ITID No.5 of 1992 is whether the contractor has been interposed or is a mere camouflage. Therefore, the petitioner prays for setting aside the order in I.A. No.122 of 2002.

On the other hand, Mr. C.R.Sridharan contends that the dispute referred is whether the demand of petitioner for absorption on the abolition of employment of contract labour in loading and unloading is justified or not. According to him, even assuming as first argument that contract labour in loading and unloading in SAIL is abolished still according to SAIL case that does not lead to automatic absorption of workmen working under a contractor. The industrial dispute referred through G.O.Rt.No.1227 is substantially based on abolition of employment of contract labour vide G.O.Ms.No.375 dated 05.06.1981. Therefore, according to him, the demand for absorption cannot be a dispute for reference or at this stage of matter a decision at all in view the law declared by the Apex Court in SAIL case (2 supra). On the contention that the 2nd respondent is required to examine 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 is mere rouse/camouflage does not arise for consideration by reference to paragraph 124 (5) and are to be read and appreciated in the light of the law laid down by the Apex Court in Gujrat Electricity Board case (7 supra), for Gujrat Electricity Board case envisages examination of these issues in a dispute raised by contract labour but not by union. He further contends that the very basis of the industrial dispute is traceable to G.O.Ms.No.375. Though on the date of disposing of I.A. No.122 of 2002, G.O.Ms.No.375 vis--vis the SAIL was concerned was in force. In view of the order in W.P. No.851 of 1991 dated 04.03.2004, he submits that the very abolition of contract labour in loading and unloading in SAIL is set aside. Once the Government Order prohibiting employment of contract labour is set aside by this Court, the basis for reference of industrial dispute namely the abolition of employment of contract labour in loading and unloading abolition in SAIL is effaced. According to him, in view of the dicta laid down by the Apex Court in SAIL case (2 supra) absorption of contract labour with the issuance of notification of prohibition or abolition does not arise. Therefore, the findings are justifiable and for additional reason namely that when writ prayers are considered G.O.Ms.375 dated 05.06.1981 does not operate and consequently there is no abolition of engagement of contract labour in SAIL.

Therefore, it is open to contract labour to raise a dispute for adjudication on these aspects, if they are so advised. The lis between the parties has been pending for more than two and half decades. The contract labour are engaged by SAIL either by virtue of order of this Court or due to work exigencies arising in the course of operations and provided employment to these contract labour. Now the writ petitions are decided basing on the law declared in SAIL case (2 supra). The contract labour should not be denied what they have been otherwise provided namely, engaging as contract labour by SAIL on account of dismissal of writ petition. SAIL is a public sector undertaking and this Court has no reason to doubt that the outcome of the writ petitions is not treated as a circumstance for not engaging contract labour i.e. the members who are working for SAIL and are members of petitioner union as and when exigencies require. Therefore, while engaging contract labour, the services of the contract labourers whose cases are canvassed in these writ petitions ought not to be denied or deprived the normal expectations from SAIL. For the above reasons and having regard to the detailed discussions, the writ petitions fail and accordingly dismissed. No order as to costs.