JUDGMENT F.I. Rebello, J.
1. Rule. By consent heard forthwith. The petitioner by the present petition has prayed for writ of certiorari or any other writ to quash the order dated 25th September, 2003 which is the failure report submitted by the Conciliation Officer to the Appropriate Government, in the instant case the Central Government. The petitioner also seeks to quash the summons dated 22nd July, 2004 by which the petitioner herein has been called upon to appear before the Industrial Tribunal to which a reference in respect of the industrial dispute raised by the respondent No. 1 as represented by the Union has been referred to by the appropriate Government.
2. A few facts may now be set out :- There is no dispute that the petitioner falls within the expression State, within the meaning of Article 12 of the Constitution of India. The petitioners were engaging contract labourers through contractor for their business activities. In the instant petition and other petitions before this Court, we are concerned with the activities in Vidarbha Region. It is the case of the petitioners that by letter dated 4/8th November, 1985 the Ministry of Labour, Government of India had conveyed its decision not to prohibit the employment of contract labour in Sweeping, Cleaning, Dusting and Watching building occupied by Food Corporation of India. Thereafter by Gazette "Notification dated 1st November, 1990 issued under the provisions of Section 10 of the Contract Labour (Abolition and Regulation) Act the contract labour was abolished in handling of food grains in F.C.I. Depots. It is the case of the petitioners that the said Notification cannot be made applicable in respect of engagement of watchmen/security guards as the former are governed on the basis of other notification of Government of India or as a part of settlement with the labour union. The petitioners it is set out float tenders every two years for providing security guards for security of Food Corporation of India's godowns at various places. The contract was awarded to M/s Singh Security Services at Bombay for a period of two years with effect from 1st August, 1993 to 30th July, 1995. The appointment, payment of salary, the number of shifts are all done by the security agency. The petitioner was only concerned with the attendance part of the security guards who attended on duty for submission to the District Office Nagpur for arranging payment to them through the Contractor. The respondent "No. 1, it is submitted, is not an employee of the petitioner.
From the documents on record it appears that the Heart Office of the petitioners issued a letter dated 23rd March, 1999 not to engage contract labour in the job specified in Government of India, Ministry of Labour Notification and induction of handling labours under District Payment system cannot be composed/made available in respect of engagement of Watchman/Security Guards as the former are brought under the D.P.S., on the basis of either Notification of the Government of India or part of settlement with labour union. The later being class IV post, requirement are to be governed by the provision of FCI (Staff) Regulations 1971 and other relevant administrative instructions. A circular issued by the petitioners dated 4/8th November, 1985 has come on record which shows that the work of security was being done by engaging CISF personnel. Home Guards of State Government organisation or through security agencies who can provide suitable security personnel on contractual basis.
3. It is the case of the petitioners that one Rashtriya Mazdoor Sena had filed Writ Petition No. 1389 of 1999 before this Court. The relief sought in that petition was for setting aside the alleged termination of the workmen by the petitioner corporation with effect from 15 March, 1999. Relief was also prayed for reinstatement with continuity of service and backwages and for stopping the practice of engaging contract labour. The matter came up before this Court on 27th July, 2002 and this Court on 29th July, 2002 held that the workmen are not entitled for regularisation and the order of termination was legal, considering the judgment of the Apex Court in Steel Authority of India v. National Union Water Front Workers and Ors., 2000 (7) SCC 1. This Court also held that the prayer for reinstatement cannot be granted. Liberty was, however, granted to the workmen to approach the appropriate authority and the appropriate authority was directed to give its decision in the matter within a period of one year. Based on this it is contended that it was, therefore, open to the workmen to approach the appropriate authority for redressal of their grievance, in the instant case the appropriate authority means the petitioners. It is so contended based on their reading of the judgment of this Court in Writ Petition No. 1383 of 1999. It is also pointed out that this Court held that the workman had no authority to approach the Assistant Labour Commissioner for getting regularisation from the concerned authority. It is, therefore, submitted that the workman has not only committed contempt, but has also misled the Assistant Labour Commissioner in deciding the case.
4. Rashtriya Mazdoor Sena, a registered Union, it is submitted, filed a complaint against the petitioners before the A.L.C. A reply was filed on behalf of the petitioners wherein all the allegations made by the Union were denied and it was specifically set out that the members of the Union are not the employees of the petitioners and hence the petitioners had no liability towards them. The said proceedings before A.L.C. were stayed till the decision in Writ Petition No. 1389 of 1999. It is submitted that as the petition was dismissed the A.L.C, ought to have dismissed the reference. Instead of that, the office of A.L.C. once again issued notice dated 21st November, 2002 based on an application filed by the workman on 23rd October, 2002. The allegations were similar as earlier made. The petitioners were called upon to appear. The petitioners filed their reply on 18th December, 2002. It is set out that the A.L.C, did not consider the merits of the matter and mechanically referred the matter to the Industrial Court in spite of the judgment passed by the Nagpur Bench of this Court. It is set out that at Mumbai another Bench of this Court had also considered the issue in Writ Petition No. 9616 of 2000. The said petition came to be dismissed in view of the judgment of the Supreme Court in Steel Authority of India (supra).
It is the contention of the petitioners that there was no question of initiating conciliation proceedings as there was no dispute between the parties considering the judgment of this Court and consequently the matter could not have been referred by the Central Government and as such the reference is illegal. Various contentions have been raised which will be adverted to in the course of the judgment. It is also set out that the order dated 8th December, 2003 which is the order of reference is illegal and liable to be set aside.
5. One of the respondents in these group of petitions has filed submission which is being referred to for a limited purpose. It is pointed out that the petitioners have only challenged the failure report which is an administrative action and the issuance of summons, but have not challenged the order of reference and on this ground alone the petition is liable to be dismissed. It is also pointed out that after receiving notice from the Industrial Tribunal the petitioners and workmen have put in appearance and have filed return. This is in terms of the reply filed in Writ Petition No. 349 of 2005. It is also pointed out that the workman had led evidence by way of affidavit and the matter is fixed for cross-examination of the workman. In the light of that after having participated in the proceedings before the Industrial Tribunal, the petitioners ought not to be allowed to challenge the said reference at this stage. The matter had been taken in conciliation and on the failure report having been submitted to the Government, the appropriate Government has made a reference. The Tribunal, it is set out, can decide all issues as raised by the petitioners. It is, therefore, submitted that the petition be dismissed.
6. At the hearing of this petition on behalf of the petitioners their learned Counsel submits that (1) considering the judgment of this Court in Writ Petition No. 1369 of 1989 dated 29th July, 2002 it was not open to the Conciliation Officer to take the matter in conciliation and for the appropriate Government to make a reference; (2) It is submitted that in view of the earlier orders passed by this Court in other writ petitions the principles of res judicata would be applicable and/or principles of estoppel and as such no reference could have been made, more specifically considering the judgment of the Nagpur Bench of this Court in Writ Petition No. 1368 of 1989 and (3) Lastly it is submitted that considering the dismissal of the Writ Petition No. 9616 of 2000 at Mumbai, the reference made is without jurisdiction.
7. With the above we may first consider the law as declared by the Apex Court in Steel Authority of India (supra). The issue before the Apex Court was the effect of a Notification issued by the Central Government prohibiting employment of contract labour in certain establishments where the Central Government was the appropriate Government and the effect of such abolition and whether the employees employed at the time of abolition are to be absorbed as employees of the principal employer. After considering the various contentions the relevant conclusions insofar as we are concerned are as set out in paras 121 and 122, which read as follows :-
"(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 labourer in issuing a notification by appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labourer, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labourer working in the concerned establishment.
(4) We over-rule the judgment of this Court in Air India's case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any Court including High Court for absorption of contract labourer following the judgment in Air India's case (supra), shall hold good and that the same 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 labourer or otherwise, in an industrial dispute brought before it by any contract labourer 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 labourer for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of 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 labourer will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labourer in the concerned establishment 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 concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labourer in any process, operation on other work of any establishment and wherein such process, operation of other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labourer, 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.
122. We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires inquiry into disputed questions of facts which cannot conveniently be made by 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 industrial tribunal/Court whose determination will be amenable to judicial review."
8. We may now consider the submissions as advanced on behalf of the petitioners herein. As rightly pointed out by the Counsel for the respondents, in the petition as drafted there is no prayer to challenge the order of reference. The petitioners have only sought to challenge the failure report and the summons issued by the Central Industrial Tribunal. The petition on this count itself ought to be dismissed. However, considering the averments in the petition we propose to proceed to decide the contentions as urged on behalf of the petitioners.
The first submission is based on the judgment of this Court in Writ Petition No. 1369 of 1989. A reading of the judgment of this Court will disclose that the matter was not decided on merits, but based on the judgment of this Court in the Steel Authority of India (supra). The Division Bench of this Court refused to issue directions for regularisation also on the ground that it raised disputed questions of fact. While disposing of the petition the learned Bench also observed that in case the petitioners therein, the Union and workmen approach the appropriate authority the appropriate authority shall take decision in the matter within a period of one year and that the petitioners were free to approach the appropriate authority for redressal of their grievances. After so saying the learned Division Bench then proceeded to hold that in the facts and circumstances, FCI may consider appointment of the petitioners by relaxing the conditions as to minimum age and academic qualification other than technical qualifications. A careful reading of the judgment of the learned Division Bench will indicate that the matter was not decided on merits nor is there anything conflicting, with the law laid down by the Apex Court or the observations made asking the petitioner to consider the case of the workmen for recruitment by relaxing qualification and eligibility criteria. In our opinion the judgment read correctly, would clearly indicate that the learned Division Bench refused to consider the relief of absorption and regularisation based on the judgment of in Steel Authority of India (supra). It is further clear that the learned Division Bench considering the tests laid down by the Apex Court in the very same judgment observed that if the Union or workmen approach the appropriate authority the appropriate Authority would take a decision. That authority, by no stretch of imagination can be the petitioners herein as was sought to be advanced on behalf of the petitioners by their learned Counsel. The learned Division Bench was considering the judgment in the matter of Steel Authority of India (supra) and it will be clear from the judgment that the authority would be the Industrial Adjudicator who is entitled to go into the issue. Considering that the petitioners can by no stretch of imagination be said to be the Adjudicator or the appropriate authority. The other aspect of the matter which is sought to be advanced on behalf of the petitioners is that considering what is set out in the judgment the petitioners are not in a position to decide the issue as it will amount to contempt of the order of the Court. We have been unable to comprehend this contention. All that the order sets out is that the consequent to the abolition of contract labour, it is not open to the Writ Court to grant the relief as that can only be done by an Industrial Adjudicator. The learned Division Bench considering that the petitioners are State within the meaning of Article 12, observed in the event the petitioners seek to fill in vacancies, then the case of the workmen should be considered if they meet with other requirements and also by relaxing the condition as to minimum age and academic qualification other than technical qualifications and subject to otherwise found to be suitable. We do not find any conflict in the order. The further submission is that the Tribunal in view of the observations in the judgment of the Division Bench it is bound to regularise the employment. We find no such observation in the order. The law is now well settled. If the Tribunal comes to the conclusion that engaging contract labour for security services i.e. Watchmen or Security Guards has been abolished in terms of the Government Notification in the godowns, then it has to proceed to examine the other issues including as to how many of the workmen are entitled to be absorbed. There is nothing in the judgment which sets out that the Tribunal is bound to issue an order to absorb the workmen. We, therefore, do not find any merit in the aforesaid submissions.
9. Dealing with the second condition that the issue is barred by the principles of res judicata, we are again surprised by the contention advanced on behalf of the Corporation like the petitioners herein. To apply the principles of res judicata or principles akin to res judicata what is required is that the parties must be the same, the matter must have been in issue and/or could have been in issue and has been decided finally by a Competent Court having jurisdiction. In the instant case this Court refused to even consider the merits of the matter considering the judgment of Steel Authority of India (supra). The Court, therefore, declined to exercise jurisdiction. There is, therefore, no decision on merits and consequently the contention of the petitioners that the principles of res judicata or principles akin to res judicata apply must be rejected. Even otherwise the appropriate Government has made a reference. It would have been open to the Industrial Tribunal to have considered and answered the issue if it is raised before the Tribunal. At any rate in the instant case the principles of res judicata will not apply.
10. The last contention is that in view of the judgment of the Division Bench of this Court in Writ Petition No. 1396 of 2000 the workmen are estopped from proceeding before the Conciliation Officer. Firstly there is nothing to show is these workmen or other workmen in the present group of petitions which are also being decided today were parties before the learned Division Bench. Secondly, once again the matter was not decided on merits, but again in view of the judgment of the Apex Court in Steel Authority of India (supra). It is, therefore, clear that the last contention must also be rejected.
11. We may point out that having rejected these contentions the petition ought to have been dismissed. However, as it was sought to be argued before us rather vaguely, that the workmen or the Union had not raised the issue of contract being sham we may only refer to the reply filed before the Conciliation Officer by the Union dated 23rd October, 2002. The Union pointed out that the workmen in that case was in employment since 1st June, 1992 and engaged through contractor, though the work was available at all time. In other words there was regular work, yet a Contractor has been appointed. It was then set out that the contractor was brought in by the petitioners only with an intention to deprive the workman of his valuable right of getting permanent employment. It was also pointed that the Security Guards working at Bhusawal and Nagpur were regularised and absorbed by the management, but in other places in spite of notification abolishing contract labour the Petitioners continued the system though it was illegal, it was also set out that the Industrial Adjudicator will have to decide whether the engagement of contract labour for work in establishment is under a genuine contract or is a more ruse/camouflage to evade compliance of various beneficial legislations. It is not necessary for us to go further in the matter. Suffice it to say that on the pleadings as set out what was sought to be contended was that though contract labour had been abolished yet the work was being given to contractor and the contract was a sham and in these circumstances there was an Industrial dispute which the appropriate Government could refer for Industrial adjudication. We are clearly of the opinion that there was sufficient material before the appropriate Government to have referred the matter for industrial adjudication. It will, therefore, not be possible for us at this stage to quash the reference on the grounds urged more so, considering that it is open to the petitioners to raise all objections which they have including the maintainability of the reference before the Tribunal.
12. In the light of the above as there is no merit in this petition, Rule discharged. In the circumstances of the case there shall be no order as to costs.