Petroleum Corpn Ltd. Vs. Mumbai Shranik Sangha & Ors  INSC 18 (13 January 1998)
Majmudar, M. Jagannadha Rao M. Jagannadha Rao. J.
J U D
G E M E N T
appellant. Bharat Petroleum Corporation Ltd.(hereinafter called he Corporation)
was the first respondent before the High Court in Writ Petition No 436 of 1991
filed by Mumbai Shramik Sangha (a trade union) Bombay. The said trade-union is the first respondent in this
appeal. M/s Kieenwel (India) Bombay and he Union of India are the second and third respondent
in this appeal and were second and third respondents respectively before the
High Court. The appeal is perferred by the Corporation against the orders of
the High Court of Bombay dated 30.1.1997, 31.1.1997 and 21.2.1997. The
abovementioned trade-union and held that the workmen who were employed by the
Contractor M/s. Kleenwel (India) for cleaning sweeping etc. in the housing
colony and sports complex of the Corporation were entitled to the benefits of
Notification dated 9.12.1976 issued by the Government of India under Section
10(1) of the Contract Labour (Regulation & Abolition) Act, 1970 (Act
37/91970) (hereinafter called the `Act'), abolishing contract labour and hence
the said contract labour should be absorbed. w.e.f. 1.2.1991 as permanent
employees of he corporation and entitled to the emoluments and other benefits
available to other workmen of the Corporation doing similar work.
point therefore is whether the words "in any establishment" in
section 10 of the Act which section deals with abolition of contract labour can
taken in contract labour employed not at the place where the industrial
operations or other operations necessary or incidental thereto are carried on
but also those employed at the staff quarters/sports complex of the
Solicitor General Sri T.R. Andhyarujina however strongly relied up the
observation of the Constitution Bench [1974 (3) SCR 665] to contend that in
view of the language used in section 10 of the Act and in particular the words
"in any establishment" in section 10 (1) and the words "in that
establishment" in Section 10(2), the Government of India could not have
issued any notification prohibiting contract labour who do the work of cleaning
sweeping, etc. at the residential or sports complex of the staff of the
counsel for the respondents have relied upon Section 2(b) which defines
`contract labour' and on section 2(1) which defines `workmen' where the words '
in connection with the work of an establishment are used. Similar words are
used in Section 2(9)(1) of the Employees State Insurance Act and such words
have been widely interpreted in N.E.L.P. Insurance Corporation [1978 (9) SCC
204], Regional Director words "in connection with" are also used in
section 2 (f) of the Employees Provident Fund Act. 1952 and have been widely
(1) SCC 32]. Learned counsel for the respondents also relied upon the judgments
of this Court interpreting the definition of `workman' in Section 2(s) of the
Industrial Disputes Act. 1947 where even though the words "in connection
with" have not been used, the said words were more or less implied .
was in Secretary, Madras Gymkhana Club Employees Union reliance was also placed
by respondents on J.K.Cotton SC 737] where mails working at the residential
premises of the staff were treated as `workmen' entitled to move the Industrial
Court and have the benefits covered by a notification, which was applicable to
that case it was held that the words "in connection with" have to be
implied n Section 2(s).
other hand, learned solicitor General contends that section 10(1) and (2) are
based upon the limited power which earlier vested with the Industrial Courts as
declared in Standard Vacuum case [1960 (3) SCR 466] and that power Suppl. SCC
608] vested exclusively i the Central Government and that the judgment in
Gammon adopts what is said in standard Vaccum as the true basis for section
10(1) and 10(2) and hence, the power of the Central Government to abolish
contract labour extends only to the contract labour at the place where the
industrial operations are going on and to other operations incidental or
necessary thereto again, at the place where industrial operations are going on.
Standard Vaccum related to certain cleaning operations incidental and necessary
to the main industrial operations.
no doubt accepted that even in gammon this Court agreed that the workmen
employed by a contractor at Allahabad where a building for a Delhi Bank was being
constructed, were `workmen' doing work "in connection with" the work
of the principal employer and entitled to the welfare benefits like drinking
water, canteen, latrines, rest rooms, first aid, equal pay as regular workers. etc.
and gave an extended meaning to the definition of "contract labour"
and "workmen" in Section 2(b) an d 2(i) of the Act.
the same time, this Court in Gammon referred to Section 10(1) and (2) by way of
contrast, and interpreting the same, restricted the power of prohibition in
section 10 to the contract labour at the place of the industrial operations and
to work incidental/necessary thereto again at the place where the industrial
operations are going on and that hence. Section 10 cannot apply to prohibit
contract labour at the residential quarters/sports complex which have no direct
link with the industrial operations of the Petroleum Corporation.
have given our anxious consideration to the rival contentions. It appears to us
that matter is important and also that the observations of the Constitution
Bench in Gammon (at p.669, of SER) in so far as section 10 was concerned were
indeed not strictly necessary because Gammon was not a case dealing with
prohibition of contract labour.
the restricted scope attributed to section 10 of the Act given in Gammon is
correct or not must, in our opinion, be decided independently. We are therefore
of the view that this question is to be decided by a Constitution Bench. We
therefore, refer the following questions to be decided by a constitution Bench
of this Court:
"Whether the observations of the constitution Bench in Gammon in so far as
section 10 of the Act is concerned are correct and whether the Central
Government under Sections 10 (1) & (2) of the Act can be notification
prohibit contract labour doing the work of cleaning, sweeping, etc, at the
residential premises of the staff or sports Complex owned by the Bharat
petroleum Corporation or whether the Central Government under Section 10 of the
Act has no jurisdiction to abolish such contract labour".
"Whether the Notification dated 9.12.1976 issued by the Government of india
under Section 10(1) of the Contract Labour (Regulation & Abolition) Act,
1970 can be construed as validly abolishing can be construed as validly
abolishing contract labour employed by contractor M/s Kleenwel (India) Ltd. for
cleaning, sweeping etc. in the Staff Housing Colony and Sports Complex owned by
the appellant-Corporation and situated at Chambur. Bombay." The Registry is directed to
place the matter before My Lord the Chief Justice of India for passing
appropriate orders referring to the above questions of law to a Constitution