Mgurneiactiepralmucmobrapioration
of Vs. K.V.Shramik Sangh & Ors [2002] Insc 128 (12 March 2002)
D.P.
Mohapatra & Shivaraj V. Patil Shivaraj V. Patil, J.
Leave
granted.
This
appeal is filed by the Municipal Corporation of Greater Mumbai challenging the
correctness and validity of the impugned judgment and order made in the writ
petition by the High Court.
The
writ petition was filed by a registered trade union called Kachara Vahatuk Shramik
Sangh (hereinafter referred to as `Union'.
It
claims to represent 2000 workmen doing the work of lifting, transporting and
dumping of debris, garbage, silt, house gully material etc., at the various
dumping grounds of the Bombay Municipal Corporation. The appellant herein is
the respondent no.
1 in
the writ petition (hereinafter referred to as 'Corporation') and respondent
nos. 2-33 are different contractors who had been entrusted with the
above-mentioned work on contract basis.
Respondent
no. 34 is the State of Maharashtra and respondent no. 35 is the Contract Labour
Board established under the provisions of the Contract Labour (Regulation &
Abolition) Act, 1970 (CLRA Act). Respondent No. 36 is the Commissioner of Labour
for the State.
In the
writ petition, it was emphasized that the nature of work carried out by the contract
labour is perennial; merely because the Corporation has chosen to employ system
of contract labour for discharging its statutory obligations, the contract labour
does not cease to be workman of the principal employer the Corporation.
According to the writ petitioners (Union), if at all, contract labour system
was to be permitted, it could be done only in accordance with the provisions of
the CLRA Act; an employer could not be allowed to carry on work through
contract labour unless provisions of the statute were strictly complied with
and that the Corporation was carrying on the work through contract labour for
almost 15 years even without registering itself as a principal employer, that
too through contractors who were not holding any licence under the CLRA Act. It
is the further case of the Union that it
kept on complaining to the Labour Commissioner about the gross violation of law
and the legal rights of the workmen concerned. The Labour Commissioner, after
investigation into the complaints, addressed letter dated 18.7.1998 to the
Chief Secretary of the State recommending abolition of the contract labour
system observing that Solid Waste Management Department is one of the sections
of the Corporation, which is in operation for more than hundred years; in this
Department the work of collection, transportation, dumping and disposal of the
garbage, refuse, debris etc. is performed. The Labour Commissioner also stated
in the letter that the Solid Waste Management Department had applied for
registration as principal employer under the CLRA Act on 17th December, 1996. In the meanwhile, the writ
petition had already been filed, so the said application was kept in abeyance.
He also stated that none of the contractors had obtained licence under the
provisions of the CLRA Act. He further pointed out that by the letters of 25th October, 1997 and 19th May, 1998, the Union had made representations to the
Chairman of the State Contract Labour Advisory Board requesting him to advise
the State Government to abolish the system of employment of contract labour in
the solid Waste Management Department of the Corporation. In the letter of the Labour
Commissioner, it is also stated that the work performed by the workers employed
by the contractors is of regular and permanent nature. In the writ petition, it
is also stated that the contract entered into by the Corporation with the
contractors is a sham arrangement. The workmen concerned with the writ petition
are in law and in fact employees of the Corporation, particularly so, when the
task of sweeping and cleaning roads, gullies and removal of debris and garbage
etc. are the statutory duties to be performed by the Corporation under Sections
61(C), 365 and 367 of the Bombay Municipal Corporation Act, 1888 (for short the
`Act').
It is
also stated in the writ petition that the conditions of service of these
workmen are horrible and inasmuch as they are required to handle corpses of
animals, excreta of animals and human-beings from house gullies and garbage
dumps toxic and other danger material etc. In support of the writ petition,
reliance was placed to the Circular dated 26.4.1985 issued by the Govt. of Maharashtra
relating to Bhangi Mukti (prevention of scavenging), Circular dated 30.8.1996
issued by the Corporation on the precautionary measures to be taken while
engaging contract labour, the letter dated 27.11.1996 addressed to the
Additional Commissioner, Corporation, by the then Chairman of the Standing
Committee of the Corporation Shri Hareshwar Patil stating that the garbage workers
were not properly treated; there was no difference between the permanent
workers of the Corporation and the contract workers; their conditions were
really pitiable and steps are to be taken to improve the situation. Reference
is also made to the letter of the Labour Commissioner dated 18.7.1998 addressed
to the Chief Secretary of the State requesting to recommend the matter to the
State Contract Labour Advisory Board for abolition and prohibition of the
contract labour system. The Minister for Labour of the State addressed a letter
dated 4.2.1999 to the Commissioner of the Corporation recommending for
abolishing the existing contract system. In the writ petition, the following reliefs
were sought :-
"(a)
for a Writ of Mandamus or any other appropriate Writ, order or direction,
directing the State of Maharashtra and Contract Labour Board, Bombay Municipal
Corporation to forthwith abolish the contract labour system in the Solid Waste
Department and for regularization of the services of all the workmen concerned
with this Petition with retrospective effect forthwith and to pass appropriate
order forthwith.
(b) for
an order directing the Respondent to maintain status quo in respect of the
employment of the workmen concerned with this Petition.
(c)
For an order directing the Respondent No. 1 to forthwith absorb all the workmen
concerned with this Petition as regular and permanent workmen with
retrospective effect from their initial date of work.
(d)
For an order directing the Respondent No. 1 to treat all the workmen concerned
with this case on par with the permanent workmen in terms of wages and all
service conditions....................."
In
reply to the writ petition the Corporation in the affidavit filed on its behalf
inter alia submitted that the writ petition should be dismissed declining to
entertaining it under Article 226 of the Constitution to adjudicate the
disputed questions of facts. Section 61(2) of the Act imposes a statutory duty
on the Corporation for removal of garbage. The Solid Waste Management
Department has employees, mukadams and overseers engaged in the activity of
removal of garbage. For this purpose the Department uses its own staff and not
contract labour. It has its own vehicles for the purpose of removal of garbage.
Because of insufficiency of vehicles it also hires private vehicles on contract
basis for the removal of garbage; the vehicle owners supply the vehicles with a
driver and cleaner; and only the Corporation employees are engaged in removal
of garbage.
Further,
according to the Corporation, under Section 367 of the Act its Commissioner
provides or appoints in proper and convenient situations public receptacles,
depots and places for the temporary deposit or final disposal of the
refuse/debris.
Under
Section 368, if the owner or occupier of any trade premises desires permission
to deposit trade refuse, collected daily or periodically from the premises,
temporarily upon any place appointed by the Commissioner in this behalf, he
may, on the application and on payment of such charges, allow the applicant to
deposit refuse/debris. The Corporation merely provides its services to those
generators of debris like MHADA or private land owners or builders, who are
liable to pay stipulated charges for the work of disposal of debris performed
by the Corporation. For the purpose of removal of debris the Corporation
accepts separate tenders from the contractors. This work, not being the
statutory responsibility of the Corporation, is not done by its employees.
Copy
of the tender submitted by the contractor for removal of debris and copy of the
contract entered into by the Corporation with the contractors, as per Ex.-5 and
6, clearly show that the workers engaged in the said activity of removal of
debris are not employees of the Corporation. The allegations that merely paper
arrangements are made by the Corporation to avoid statutory liabilities and
that such contracts are sham and illegal are denied by the Corporation. It is
also stated that the Corporation has been taking stringent action against the
contractors so that they should comply with the statutory requirements such as
Minimum Wages Act and the contractors are also directed to provide the labourers
with good quality of raincoats with caps, gum boots and hand gloves etc. It is
denied that the Corporation is using the contract labour as slaves or bonded labour.
It is the specific case of the Corporation that the workers engaged by the
contractors are not its employees It is further the case of the Corporation
that CLRA Act does not abolish contract labour as alleged by the Union; the
power to abolish contract labour vests with the appropriate Government and in
this case the appropriate Government is State Government. The appropriate
Government before abolition of contract labour under Section 10 of the CLRA Act
must consult State Board, constituted under Section 4 of the CLRA Act being an
expert body, before contract labour can be provided. Further, the relevant
factors such as whether the work is incidental or necessary for the establishment
is to be taken into consideration as contemplated under Section 10 of the CLRA
Act. Based on these statements made in the affidavit the Corporation prayed for
dismissal of the writ petition.
The
High Court by its order dated 18.11.1998 in writ petition No. 2135/98 ordered
the Labour Commissioner to authenticate the list of workmen of the respondent
no. 1 - Union.
The Labour
Commissioner on 9.2.1999 gave his report to the High Court stating that it was
not possible for him to verify the authenticity of the list of workmen.
However,
the High Court allowed the writ petition and made the following order:-
"(a)
The system of employing contract labour on the work in Solid Waste Management
Department shall be discontinued by the first Respondent- Corporation with
immediate effect.
(b)
782 contract labourers who have been identified as working through contractors
on the work of Solid Waste Management Department shall be absorbed as permanent
employees in the employment of the first Respondent-Corporation on the appropriate
wage scales and extended all conditions of service as available to other
permanent employees doing same or similar work in the employment of the first
Respondent- Corporation.
(c) A
Committee comprising of an officer to be nominated by the Commissioner of Labour,
an officer to be nominated by the Municipal Commissioner and a representative
of the Petitioner-union, shall verify the claims of all workmen other than
those whose claims have already been verified by the Commissioner of Labour,
after taking such evidence as the said Committee desires.
(d)
The said Committee shall make a report to the Municipal Corporation indicating
the persons who were actually working as contract labourers in the Solid Waste
Management Department on the date on which the Writ Petition was filed.
Immediately on receipt of such report, the first Respondent Corporation shall
absorb such workmen also as permanent workmen in the Solid Waste Management
Department and extend to them pay and all conditions of service and benefits as
given to other permanent workmen doing same or similar work.
(e)
Though, strictly speaking, under the principles laid down in Air India's case
(supra), the workmen would have to be absorbed as permanent employees and given
all the benefits from the dates of their respective employment, as we have
found some difficulty with regard to identification, we direct that the
absorption into service as permanent employees and extension of all benefits
shall be done as from the date of the Writ Petition i.e. from 1st July,
1997." On behalf of the Corporation it was contended:
(a)
That the disputed questions of facts arose for consideration in the writ
petition. Hence the High Court was not right and justified in adjudicating
those disputed questions of facts exercising jurisdiction under Article 226 of
the Constitution; as held by this Court in various decisions in matters like
this it was for the industrial adjudicator to decide in appropriate
proceedings; even assuming that all the conditions of contract labour under
Section 10 of the CLRA Act were shown to exist it was for the court to order
abolition of contract labour;
(b)
The matter ought to have been left to be decided by the Government as to
abolition of contract labour as laid down by this Court in BHEL Workers
Association, Hardwar and others vs. Union of India and others [(1985) 1 SCC
630], Catering Cleaners of Southern Railway vs. Union of India and others
[(1987) 1 SCC 700] and Gujarat Electricity Board, Thermal Power Station, Ukai,
Gujarat vs. Hind Mazdoor Sabha and others [(1995) 5 SCC 27].
(c)
The High Court was also wrong in ordering automatic abolition of the contract labour
on the basis of judgment of this Court in Air India Statutory Corporation and
others vs. United Labour Union and others [(1997) 9 SCC 377]; the said judgment
now stands overruled by the Constitution Bench National Union Waterfront
Workers [(2001) 1 SCC 1].
(d)
Neither there was enquiry nor finding was recorded by the High Court that the labour
contracts with the contractor were sham or camouflage or only device to deprive
the worker of the benefits otherwise available to him; the High Court has not
ordered absorption of the labours on the ground that the labour contracts were
sham or bogus; the High Court without enquiry and consideration whether such
contracts were sham proceeded to say so on the ground that such labour
contracts were made without complying with the provisions of the CLRA Act and,
therefore, there is automatic absorption.
(e)
The Union has not filed cross-objections against the High Court judgment
complaining that the High Court ought to have recorded a finding that such
contracts were sham; further such investigation as to whether contracts were
sham could be investigated only by an industrial adjudicator as strongly held
by this Court in several cases including in the reasoned Constitution Bench
judgment in SAIL (supra).
On
behalf of the Union submissions were made supporting the impugned judgment and
order, contending that (a) contract labour system may be characterized as sham
if the work is of continuous nature, supervision and control is by the
principal employer, the work is of statutory nature, the principal employer and
the contractor cannot produce any records such as pay slips, muster roll,
attendance cards or wage registers to show that the workers were actually
employed through a contractor, the workers work in the establishment of
principal employer, neither the principal employer nor the contractors have
obtained licences or certificates under the CLRA Act, the nature of work is
essential to the work of the establishment, the establishment rules itself
provide that contract labour shall not be used for perennial work and workers
are kept in bondage.
(b)
Normally the High Court, under Article 226 of the Constitution, enquire as to
whether the contract labour system is a sham, and direct absorption, but where
facts are by and large undisputed, many years have passed and all the
authorities have recommended the absorption of workers but the ultimate authority
has failed to act for a long time and it would be an act in futility and waste
of time and also cause injustice to the workers, the High Court could go into
the question and pass orders instead of remanding the matter.
On
behalf of both the sides our attention was drawn to relevant material on record
in support of their respective contentions.
After
the High Court passed the impugned judgment and order, request was made on
behalf of the Corporation for staying the order to enable it to approach this
Court challenging the same.
After
hearing both sides, the high Court stayed the order for a period of six weeks
subject to certain conditions in the following terms:-
"(a)
There shall be stay of our order for a period of six weeks, except the
direction pertaining to the appointment of the Committee and the work to be
done by it as provided in paragraphs (c) and (d) above.
(b)
All 782 workmen who have already been identified by the Office of the
Commissioner of Labour shall be provided work by the first Respondent
Corporation and paid daily wages of Rs. 100/- without prejudice to the rights
and contentions of the first Respondent Corporation and also without prejudice
to the rights and contentions of the concerned workmen.
(c)
The first Respondent Corporation is not obliged to extend any other conditions
of service except safety and sanitary equipments to the concerned workmen
during the period of six weeks from today." On 26.10.1999, this Court
passed order to maintain status quo till the matter came up before the Motion
Bench. On 5.11.1999, this Court issued notice to the respondents and ordered to
maintain status quo regarding employment of the concerned employees till
further orders.
In
view of the order of this Court dated 10.10.2001, the ex- officio Member Secretary,
State Contract labour Advisory Board and Commissioner of Labour at Mumbai filed
additional affidavit on behalf of respondent no. 35 saying that the Union by
its letter dated 19.5.1998 requested the State Contract Labour Advisory Board
to take up the matter regarding prohibition of contract labour system
prevailing in the Solid Waste Management Department of Corporation. Pursuant to
the direction received from the Government of Maharashtra dated 9.2.1999, the
Board in its meeting held on 6.3.1999 heard the representatives of the
Corporation and the Union and advised the Corporation to
abide by the CLRA Act and the Minimum Wages Act, 1949 and to provide all
facilities to the contract labourers employed in the Solid Waste Management. It
is further stated that in view of the impugned judgment and due to the pendency
of Special Leave Petition in this Court, the State Contract Labour Advisory
Board has kept the matter in abeyance.
The
High Court noticing the duties of the Municipal Corporation under the Act
contained in the various Sections held that the said provisions imposed
statutory duties on the Corporation to keep the city clean free of garbage,
rubbish, refuse etc. The High Court took the view that if the Corporation chose
to employ some other agency to discharge its obligation, it could do so
provided it is consistent with the applicable legal provisions; after the
enforcement of the CLRA Act under Section 7, the Corporation being principal
employer was compulsorily required to register itself with the appropriate
registering authority and every contractor was required to obtain a licence
under Section 12 of the Act but neither the Corporation nor the contractors
complied with the said provisions in spite of the grievances voiced by the
union repeatedly. The High Court looking to the letter of the Labour
Commissioner dated 18th July, 1998 to the Chief Secretary of the State
recommending abolition of the contract labour system, letters dated 4th
February, 1999, 5th April, 1999 and 10th may, 1999 addressed by the Labour
Minister to the Commissioner of Corporation dealing with the working conditions
of the contract labour and inaction of the Corporation and finally recommending
for abolition of the contract labour system ordered for absorption of workers
directly. During the course of the argument, the learned Addl. Govt. Pleader
was asked as to why the said Contract Labour Abolition Advisory Board and the
State of Maharashtra should not issue an order prohibiting employment of
contract labour in the Solid Waste Management Department, it was informed that
on account of election code of conduct, decision could not be taken in the
matter. In this view, the High Court felt that the fate of the workers could
not be left hanging on the sweet mercy of the Corporation and/or the State
Government and it has become the responsibility of the Court to discharge its
constitutional duty to see if the Union was entitled to relief in law and grant
them such relief by then and there itself.
Thereafter,
the High Court referring to various decisions cited and mainly relying on the
decision of this Court in Air India case (supra) and applying the principles
stated therein to the present case and allowed the writ petition granting the reliefs
to the union in terms already stated above.
In a
recent Constitution Bench judgment of this Court in Steel Authority of India
Ltd. & Anr. vs. National union Waterfront Workers & Ors. (2001) 7 SCC
1] Air India case (supra) is specifically
overruled. In the said judgment, after referring the various decisions of this
Court including the decisions cited before us and on elaborate consideration
and analysis, the Constitution Bench in para 125 of the said judgment, outlined
the conclusions. To the extent they are relevant for the present purpose read:-
"o1u2t5l.inedThtehuusp:s-hot of the above discussion is
(1)
.....................................
(2)
................................
(3)
Neither Section 10 of the CLRA Act nor any other provision in the Act, whether
expressly or by necessary implication, provides for automatic absorption of
contract labour on issuing a notification by the appropriate Government under
sub-section (1) of Section 10, prohibiting employment of contract labour, in
any process, operation or other work in any establishment.
Consequently
the principal employer cannot be required to order absorption of the contract labour
working in the establishment concerned.
(4) We
overrule the judgment of this Court in Air India case prospectively and declare
that any direction issued by any industrial adjudicator/any court including the
High Court, for absorption of contract labour following the judgment in Air
India 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 and it has become final.
(5) On
issuance of prohibition notification under Section 10(1) of the CLRA Act
prohibiting employment of contract labour or otherwise, in an industrial
dispute brought before it by any contract labour in regard to conditions of
service, the industrial adjudicator will have to consider the question 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 a mere
ruse/camouflage to evade compliance with various beneficial legislations so as
to deprive the workers of the benefit thereunder. If the contract is found to be
not genuine but a mere camouflage, the so-called contract labour will have to
be treated as employees of the principal employer who shall be directed to
regularize the services of the contract labour in the establishment concerned
subject to the conditions as may be specified by it for that purpose in the
light of para 6 hereunder.
(6) If
the contract is found to be genuine and prohibition notification under Section
10(1) of the CLRA Act in respect of the establishment concerned has been issued
by the appropriate Government, prohibiting employment of contract labour in any
process, operation or other work of any establishment and where in such
process, operation or other work of the establishment the principal employer
intends to employ regular workmen, he shall give preference to the erstwhile
contract labour, if otherwise found suitable and, if necessary, by relaxing the
condition as to maximum age appropriately taking into consideration the age of
the workers at the time of their initial employment by the contractor and also
relaxing the condition as to academic qualifications other than technical
qualifications." Para 126 of the same judgment reads:- "126. We have
used the expression "industrial adjudicator" by design as
determination of the questions aforementioned requires enquiry into disputed
questions of facts which cannot conveniently be made by the High Courts in
exercise of jurisdiction under Article 226 of the Constitution. Therefore, in
such cases the appropriate authority to go into those issues will be the
Industrial Tribunal/Court whose determination will be amenable to judicial
review." A Division Bench of the Bombay High Court following the judgment
of this Court in Air India case (supra) had directed the appellant to absorb
the contract labour but the Constitution Bench judgment in view of the
overruling of Air India case (supra) set aside the judgment of the High Court
leaving it open to the contract labour to seek appropriate relief in terms of
the main judgment as stated in para 136 of the Constitution Bench judgment.
Similar
orders were passed as can be seen from paras 137, 140 and 146 of the same
judgment dealing with other cases where orders were passed by the high Court
relying on Air India case (supra).
We do
not consider it necessary to refer to the decisions cited by the learned
counsel in the light of the authoritative pronouncement of the Constitution
Bench of this Court aforementioned.
Now,
we proceed to consider the validity and correctness of the impugned judgment
and order in the light of judgment of the Constitution Bench in SAIL case
(supra). The High Court held that the work entrusted to the members of the Union continued to be basically the work of the
Corporation itself of perennial nature; the Corporation has chosen to carry out
the work under so-called system of labour contract without complying with the
provisions of the CLRA Act and as such the labour contract was a camouflage. We
must state here itself that the Union in the writ petition alleged that the labour
contract was sham and the Corporation specifically denied it in its counter
affidavit but the High Court did not go into this question and did not record a
finding that the labour contract in the present case was sham or a camouflage
considering the material on record; even otherwise this being a serious and
disputed fact in terms of the Constitution Bench judgment aforementioned, the
High court could not have appropriately adjudicated on the issue exercising
jurisdiction under Article 226 of the Constitution. It appears to us that the
High Court proceeded to conclude that the labour contract was not genuine and
the workers of the Union were employees of the Corporation because the
Corporation and the contractors did not comply with the provisions of the CLRA
Act. Conclusion that the contract was sham or it was only camouflage cannot be
arrived at as a matter of law for non-compliance of the provisions of the CLRA
Act but a finding must be recorded based on evidence particularly when disputed
by an industrial adjudicator as laid down in various decisions of this Court
including the Constitution Bench judgment in SAIL. The cases on which the High
Court placed reliance were the cases where finding of fact was recorded by the labour
courts on evidence. In para 34 of the impugned judgment, it is stated :-
"This court is hardly competent to record evidence or appreciate it in
exercise of its powers under Article 226 of the Constitution.
This
Court as well as the Supreme Court have always taken the view that writ
jurisdiction should not be permitted to be invoked if disputed questions of
facts are involved, is the submission of the learned counsel. The submissions
are wholly unexceptionable. If the facts were not clear, we would have hardly
allowed our writ jurisdiction to be invoked.
The
material which we have referred to at several places hereinbefore, is more than
adequate, in our view, to come to the conclusion we have arrived at." The
material referred to relates to the complaints of the Union, recommendations of
the Labour Commissioner, Labour Minister and the Labour Contract Advisory Board
in regard to abolition of contract labour under Section 10 of CLRA Act but that
material could not be a foundation or basis to say that the labour contract was
sham, camouflage or a devised to deny the statutory benefits to the workers.
From the judgment under challenge, it is clear that Air India case (supra)
weighed with the High Court which judgment now stands overruled as already
stated above. The High Court rejected the contention that jurisdiction to
abolish the contract labour system vested with the appropriate Government under
Section 10 of CLRA Act and that power could be exercised after obtaining advice
of the Contract Labour Advisory Board which in turn had to keep several factors
enumerated in clauses (a) to (d) of Section 10(2) of CLRA Act stating that in
the present case in almost 15 years, there was no registration of principal
employer; none of the contractors ever held a licence under the Act; the work
that was being carried on fell within the parameters of clauses (a) to (d) of
Section 10(2) of the Act and having regard to what was said by the Chairman,
Standing Committee of the Corporation and the contractors and the
recommendation of the Labour Commissioner to abolish the contract labour
system.
Further
the Minister for Labour of Govt. of Maharashtra went on to record in clear
terms that the Government had taken a decision to abolish system of contract labour
in the Solid Waste Management Department of the Corporation, the High Court
thought that there was sufficient material for abolishing the contract labour
system.
The
High Court drew an inference that the State admitted that all the requirements
were satisfied for acting under Section 10(2) but because of the election code
of conduct it was unable to act and passed order for absorption of workers
saying that it had no impediment to do so in view of its conclusions. Referring
to Air India case (supra), the High Court observed that the said judgment
suggested that a contract labour system can be said to be genuine only if it is
carried in compliance with the provisions of the CLRA Act and anything contrary
thereto would lead to the presumption that the purported contract labour system
was merely a devise and sham. In our view, the conclusion of the High Court
that the contract labour system in the present case was sham cannot be
sustained in the light of what is stated above and particularly when the
disputed questions of fact arose for consideration in the light of rival
contentions raised by the parties. We have detailed them above to say so.
The
code of conduct relating to election related to 1998.
The
High Court at the time of passing the impugned order could have directed the
State Government/authority to pass orders within a given time frame but the
High Court took up the task itself.
It may
also be noticed that the High Court by its order dated 18th November 1998
directed the Labour Commissioner to verify the authenticity of the list of
workmen claiming to be the members of the Union. After investigation, the Labour
Commissioner made three reports to the High Court on 9th February 1999, 23rd
April 1999 and 12th June, 1999. In the report of 9th February, 1999, the Labour
Commissioner pointed out that the work of investigation of the authenticity of
the members of the Union could not be carried out as the contractors did not
maintain any record. In the said report, it is stated that :
"In
these circumstances mentioned above, it has not been possible for the
Commissioner of Labour to verify the authenticity of the list of workmen
claiming to be members of Kachara Vahatuk Shramik Sangh." The Labour
Commissioner suggested that in the absence of any record of contract labourers
maintained by the principal employer/contractors, the list of the workers as
submitted by the Union may be considered as valid list. In the said list, the Labour
Commissioner had mentioned that about 2000 workmen had been working since last
15 years as contract labourers. In the report of 23rd April, 1999, after giving
the details of the work carried by him, the Labour Commissioner says "that
the Government Labour Officers designated by him had interrogated the contract labourers
present in the Ward in the morning and filled up 1172 forms after interrogating
1172 workers. It was also noticed that merely 219 workers' names were in the
list and remaining 953 workers' names were not found in the list of that
Ward." In the report dated 12th June, 1999, the Labour Commissioner has
also indicated that out of 1540 workmen listed out in the writ petition, he had
been able to identify 541 workers. Similarly, out of the 607 contract labourers
whose names were annexed to the list exhibited to the Chamber Summons No. 31 of
1991 in Writ Petition No. 1027 of 1997, he had been able to identify 138
workers. Thus, he pointed out that, out of the total 2147 workers whose names
were put forward by the Union, the Government Labour Officers
were able to identify 947 workers while actually working on the dates of the
visits of the Government Labour Officers on 20th and 21st May, 1999.
The
Corporation has disputed as to the number of workers under the contract labour
system and their authenticity and the period of their work etc. Merely because
the records are not maintained by the contractors, it may not be appropriate to
accept the list of workers given by the Union.
Even from the reliefs granted by the High Court already extracted above, it is
clear that 782 contract labourers were identified as working through contracts;
a direction was given to constitute a committee to verify the claims of all
workmen other than already verified and to make a report to the Corporation
indicating the presence who were working actually as the contract labourers in
the Solid Waste Management Department on the date on which the writ petition
was filed. Further, immediately on receipt of such report, the Corporation
shall absorb such workmen as the permanent workmen.
These
directions themselves indicate as to the disputed questions that arose for consideration
The High Court having said earlier although the power of abolishing the
contract labour system vested in the Government because of delay in doing so,
there was no impediment to pass such an order itself. In para 45 of the
judgment, the High Court states thus:- "We are inclined to direct that the
workmen required for work in the Solid Waste Management Department should not
fall within the purview of the Contract labour (Regulation & Abolition)
Act, 1970 at all, but that they should be absorbed as direct employees of the
Bombay Municipal Corporation." This direction cannot be sustained not
being consistent with the judgment of the Constitution Bench in SAIL case
(supra).
As
laid down in the Constitution Bench judgment, absorption of contract labourers
cannot be automatic and it is not for the court to give such direction.
Appropriate course to be adopted is as indicated in para 125 of the said
judgment in this regard. Thus having considered all aspects, we are of the view
that the impugned judgment and order cannot be upheld.
In the
result, for the reasons stated and discussion made above, the impugned judgment
and order are set aside leaving it open to the Union to seek remedies available
in terms of para 125 of the judgment of the Constitution Bench in SAIL
aforementioned before the State Government or the Industrial Adjudicator as the
case may be. In case, the Union moves the
appropriate Government or the Industrial Adjudicator within four weeks from
today, they shall consider the same and pass appropriate orders within a period
of six months. The order to maintain status quo regarding the employment of the
contract labourers to the extent indicated was passed in the writ petition on
20.4.1998 and even after disposal of the writ petition, the High Court stayed
the order for a limited period and further this Court passed order to maintain
the status quo on 26.10.1999 which is continuing. In these circumstances, the
order of status quo shall continue for a period of six months. We also make it
clear that this order does not prevent the State Government to proceed in
accordance with law in the matter of abolition of contract labour system. The
appeal is allowed accordingly in the above terms.
No
costs.
.......................J.
[D.P. Mohapatra]
.......................J.
[Shivaraj
V. Patil] March 12, 2002.
Back