Marathwada Vidyut Prakalp And ... vs The State Of Maharashtra, The ...
2002 Latest Caselaw 727 Bom

JUDGMENT

R.M. Lodha, J.

1. Marathwada Vidyut Prakalp and Vidyut Kamgar Karmachari Union (for short Union) is the petitioner before us. The Union is a registered Trade Union under the provisions of Trade Unions Act,1926 and claims to be affiliated to Centre of India Trade Union (C.I.T.U.). According to the Union the respondent No.2 namely Maharashtra State Electricity Board (M.S.E.B.) runs and operates Thermal Power Station at Parli-Vaijanath and for that it requires thousands of skilled and unskilled employees for the work connected with coal and ash handling, waste coal in the turbine boiler maintenance, water treatment plant, electric maintenance, Railway Line maintenance, Oil handling, Civil maintenance and all sorts of cleaning operations. The said work as per the Union is of perennial nature and regular employees on permanent basis are required to be employed but M.S.E.B. has adopted the system of labour contractors and take work from the employees through the contractors on year to year basis. Relying on the objectives of Contract Labour (Regulation and Abolition Act, 1970 the union has sought for a writ of mandamus directing the State Government to abolish contract labour system at Thermal Power Station, Parli-Vaijanath and direct M.S.E.B. to take permanent nature of work by appointing regular employees.

2. Mr. Shelke, leaned counsel for petitioner urged that M.S.E.B. is engaging in unfair labour practice by allotting the work of permanent nature to be done through labour contractors and therefore, the State Government should be directed to issue notification U/s 10(1) of the Act of 1970, abolishing contract labour system at Thermal Power Station, Parli-Vaijanath. In support of his contention Mr. Shelke, relied upon the judgment of the Apex Court in Sankar Mukherjee and others Vs. Union of India and others .

3. Section 10 of the Act of 1970 reads thus :

"10. (1)Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.

(2)Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as -

(a)whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;

(b)whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;

(c)whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;

(d)whether it is sufficient to employ considerable number of whole time workmen.

Explanation - If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final."

4. The aforesaid provision would show that appropriate Government is empowered to order abolition of contract labour in certain circumstances and appropriate cases. The appropriate Government is empowered to prohibit contract labour in any process, operation, or other works in other establishments after having consultation with the concerned Central Board or the State Board as the case may be by issuing notification in the official gazette. Before issuing the notification, the appropriate Government is required to have regard to the conditions to work and benefits provided for the contract labour in that establishment and other relevant factors as specified therein. We are afraid this Court in exercise of its writ jurisdiction cannot compel the appropriate Government to issue notification under sub-section (1) of Section 10. It is for the concerned appropriate Government to consider whether employment on contract labour in any process, operation or other work in any establishment deserves to be prohibited and if it decides to prohibit employment of contract labour, it has to do so in accordance with the provisions contained in Section 10. Notification U/s 10(1) of the Act of 1970, prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government in the light of the provisions contained in Section 10. It is not the domain of the High Court to direct the appropriate Government to issue notification U/s 10(1) of the Act of 1970 prohibiting employment on contract labour in any process, operation or other work in any establishment. Conversely if a notification has been issued by the appropriate Government U/s 10(1) of the Act of 1970 and its legality is under challenge, the Court can always consider its legality and correctness whether it has been issued in suitable cases within permissible limits. On issuance of prohibitory notification U/s 10(1) of the Act of 1970 prohibiting employment on contract labour in any process, operation or work in any establishment, upon its breach the aggrieved party may raise industrial dispute.

5. Be that as it may, we are satisfied that no direction can be given to the first respondent i.e. State Government to issue prohibitory notification U/s 10(1) abolishing contract labour at Thermal Power Station at Parli-Vaijanath operated and run by M.S.E.B.

6. We may note here that the judgment of the Apex Court in Sankar Mukherjee relied upon by the learned counsel for petitioner is of no help. In the case of Sankar Mukherjee the question raised was exclusion of the workmen in the Bricks Department of Iron and Steel company doing jobs of loading and unloading of bricks from trucks wagons from the purview of notification prohibiting employment of contract labour while at the same time granting the benefit of the notification to the workmen doing work of cleaning and stacking of Bricks in the same department the exclusion was challenged as discriminatory. In the present case there is no notification issued by the appropriate Government U/s 10(1) of the Act and no case of discrimination is pleaded.

7. The Writ petition accordingly has no merit and is dismissed. Rule is discharged. No costs.