[Cites 13, Cited by 0]
Bombay High Court
Navi Mumbai Mahanagarpalika ... vs The State Of Maharashtra Through The ... on 30 January, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2026:BHC-AS:5294-DB 3-WP-7301-2012.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7301 OF 2012
WITH
CIVIL APPLICATION NO. 92 OF 2016
Navi Mumbai Mahanagarpalika Karmachari Sena ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
_________
Mr. Sanjay Thokade a/w Deshmukh and Anupkumar Prajapati for Petitioner.
Ms. Savita Prabhune, AGP for State.
Mr. Kiran Bapat a/w Sandesh Deshpande and Shravani Gujar for Respondent
Nos.5 and 6.
__________
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 30 JANUARY 2026
P.C.
1. The petitioner trade union the Navi Mumbai Mahanagarpalika
Karmachari Sena has filed this petition under Article 226 of the Constitution of
India seeking a relief of regularisation of the contract labourers stated to be
working in the capacity of drivers and conductors in respect of the buses deployed
by the Navi Mumbai Mahanagarpalika Transport Undertaking (for short
"NMMT") in the service of the NMMT by abolishing the contract labour system
being adopted by the NMMT. The prayers as made in the petition are required to
be noted which read thus:
[a] Rule be issued and record and proceedings may be called for:
[b] This Hon'ble Court may be pleased to issue a Writ Mandamus or any other
appropriate Writ or Direction directing::
[i] The State Government i.e. Respondent No.1 and the Advisory Committee.
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i.e. Respondent No.4 to take decision immediately and within such stipulated
time, for abolition of Contract Labour system of the NMMT and to regularize
those Contract Labours working as Drivers and Conductors since last several
years;
[ii] Directing the Respondent No.2 to forthwith grant sanction to the posts of
Drivers and Conductors as per proposal submitted by the Navi Mumbai
Municipal Transport;
[iii] Direct the Respondent No.5 NMMT not to appoint Drivers and
Conductors on Contract Labour basis or Daily Wages basis and immediately
make appointment of Drivers and Conductors on permanent basis from
amongst those employees who were working on contract labour basis since
last so many years;"
2. We find from the record that the parties were heard on the present
proceedings and a substantive order came to be passed by a coordinate Bench of
this Court on 1 August 2019. The said order is required to be noted which reads
thus:
"1. The present petition is filed in the year 2012 by Navi Mumbai
Mahanagarpalika Karmachari Kamgar Sena initially seeking relief of abolition of
the contract labour system and to regularize those contract labours working as
Drivers and Conductors for several years. On institution of the said petition,
several orders have been passed from time to time and in particularly, by order
dated 17.11.2016 this Court had expressed its displeasure over the manner of
continuation of practice of contract labour and had issued directions to the State
Government as well as the corporation to file affidavit explaining how it proposes
to deal with issue relating to additional posts or sanction to the existing posts. On
17.02.2017 we have noted that the State is interested in continuing and
perpetuating contract labour rather than abolishing the same and the Court had
observed that if that was not the case, the Court could be constrained to observe
that the State is flouting the Constitutional mandate.
2. The petition is listed before us in the year 2019 and there is no change in the
scenario except that after 2012, the employees who were working on contractual
basis, came to be continued with corporation on ad-hoc/daily wages basis.
However, the status of the employees being changed to the employees of the
corporation.
3. We have heard the matter and it was pointed out to us that there are 204 posts
of drivers and 262 posts of conductors, which are vacant and the association
comprises of approximately 500 to 600 employees working on the said posts.
4. While dealing with the issue as to whether these employees can be regularized,
Mr. Bapat, learned counsel for the respondent Nos.5 and 6 has invited our
attention to the judgment in the case of State of Karnataka & Another vs.
Umadevi (3), reported in (2006) 4 SCC 1 and he has pointed out that such
backdoor entries are frowned upon by the said judgment, and therefore, the
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appointment of the petitioners cannot be regularized since initially they were
employees of the contractors and subsequently, they are working on the
establishment of the corporation on daily wages basis since 2012. He has invited
our attention to Para 53 of the said judgment. The learned counsel for the
petitioner has, however, placed reliance on the subsequent judgments of the
Apex Court in the case of State of Karnataka & Ors. vs. M.L. Kesari & Ors.,
reported in (2010) 9 SCC 247 and Narendra Kumar Tiwari vs. State of
Jharkhand & Ors., reported in (2018) 8 SCC 238.
5. We have taken note of the said judgments and also considered the submissions
of the learned counsel for the petitioner relying on the said judgment. It is no
doubt true that both these judgments curve out exception to Paragraph 53 of the
Umadevi (supra) and has clarified the position as stated by the Constitution
Bench in Paragraph 53.
6. In the case of State of Karnataka & Ors. vs. M.L. Kesari & Ors., reported in
(2010) 9 SCC 247 in Paragraphs 9 to 11, their Lordship explained the term "one-
time measure" and it is observed that the object behind the said direction in
Paragraph 53 of Umadevi (supra) is two-fold. First is to ensure that those who
have put in more than ten years of continuous service without the protection of
any interim orders of courts or tribunals, before the date of decision in Umadevi
was rendered, are considered for regularization in view of their long service and
second object is to ensure that the departments/instrumentalities do not
perpetuate the practice of employing persons on daily-wage/ad-hoc/casual basis
for long periods and then periodically regularize them on the ground that they
have served for more than ten years, thereby defeating the constitutional or
statutory provisions relating to recruitment and appointment.
7. Considering the spirit and the underlining principle laid down in the said
judgment, it is clear that the object is not to continue with the practice of
employing persons on daily-wage/ad-hoc/casual basis, without following due
procedure of law and then to continue them for years together. We are in
agreement with Mr. Bapat who submit that even if assuming that the window
that has been opened in case of M.L.Kesari (supra) is extended to the petitioner,
they have not completed 10 years of service as on the cut-off date i.e. 10.04.2016,
and therefore, they cannot seek the benefit of the relaxation of Paragraph 53 as
laid down by the Constitution Bench in Umadevi (supra). We see substance in
the said submission of Mr. Bapat in as much as though we can depict the manner
of the appointment of the petitioner on contractual basis since 2012. However,
the one time measure as has been explained by the Hon'ble Apex Court in the
aforesaid case cannot be of any assistance to the petitioner and we do not intend
to extend the benefits to the petitioner in the manner in which it is sought to be
done by the learned counsel for the petitioner by stating that since they have now
completed 10 years of service, they can be regularized. This is not the spirit and
object of Paragraph 53 of the Constitution Bench of Umadevi's case.
8. However, we have also taken a note of the fact that the members of the
petitioner's association have been working on the post of driver and conductor
for a considerable length of time and one of the object to render assistance to
such employees on account of their long tenure of employment when neither of
then have secured an entry in an illegal manner or what has been referred to the
backdoor entry, some benefit can be conferred upon them.
9. We are conscious of our limitation in not going behind the letter and spirit of
the Constitution Bench judgment, but at the same time, we are of the view that
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members of the petitioner's association may be granted some protection and Mr.
Bapat fairly submitted before us that the corporation is ready and willing to
confer benefit of relaxation in the age of those members of the association who
are working on their establishment. When we see that mere relaxation of age
would not suffice the purpose of the petitioner and they will have to compete in
the open market along with the other candidates, it is the submission of Mr.
Bapat across the bar that the qualification that are required at the time of
appointment of the petitioner was 10th standard, however, today it has been
raised to 12th standard and because of this, some of the members of the
petitioner association may not be able to match the said qualification criteria.
10. In such circumstances, we hope and expect that whatever possible relaxation
can be extended to the members of the petitioner's association for their long
drawn tenure with the corporation and specifically when the nature of their duty
is skilled job like driver and conductor and the members of the petitioner's
association, are working in the said post for a considerable time, their experience
would be given due weightage and certain relaxation should be granted in their
favour.
11. In such circumstances, we direct Mr. Bapat to file an affidavit of competent
officer from the respondent corporation to state on affidavit the following things;
(i) The criteria for selection to the post of drivers and conductors in terms
of the recruitment process.
(ii) The process for selection for effecting appointments on the said posts.
(ii) The relaxation which can be granted in favour of the petitioners taking
into consideration their service experience as drivers and conductors.
(iv) Whether any relaxation can be granted in respect of the educational
qualification by giving due weightage to the experience earned by them.
12. We direct the said affidavit to be filed within a period of two weeks from
today.
13. Stand over to 16th August 2019."
3. At the outset, we may observe that considering the settled position in law,
and more particularly as laid down by the Constitution Bench decision of the
Supreme Court in Steel Authority of India Ltd. & Ors. Vs. National Union
Waterfront Workers & Ors1., it would be certainly not the jurisdiction of the writ
Court to issue a writ to grant any regularization in service of the contract workers
in the present case, even if there was to be a notification issued by the appropriate
1 (2001) 7 SCC 1
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Government under the provisions of Section 10 of the The Contract Labour
(Regulation And Abolition) Act, 1970. The petitioners, however, have directly
approached this Court seeking such relief. The difficulties in the petitioners' path
even otherwise are very well observed in the order dated 1 August 2019 (supra)
passed by a coordinate Bench of this Court as noted by us hereinabove.
4. In the context of such reliefs as prayed for in the petition, we may note the
relevant observations of the Supreme Court in the Five Judge Constitution Bench
decision in Steel Authority of India Limited (supra) wherein, the Supreme Court
overruling the earlier decision in the case of Air India Statutory Corporation Vs.
United Labour Union & Ors2., which had kept a window open for regularisation
in the event of a notification under Section 10(1) of the Contract Labour
(Regulation and Abolition Act, 1970) by approaching the High Court seeking
regularization, was held to be not the correct position in law. In such context the
following observations made by the Constitution Bench in Steel Authority of
India (supra) are required to be noted which reads thus:
"102. In Gujarat Electricity Board case [(1995) 5 SCC 27 : 1995 SCC (L&S)
1166] a two-Judge Bench of this Court has held that if there is a genuine labour
contract between the principal employer and the contractor, the authority to
abolish the contract labour vests in the appropriate Government and not in any
court including industrial adjudicator. If the appropriate Government abolishes
the contract labour system in respect of an establishment, the industrial
adjudicator would, after giving opportunity to the parties to place material before
it, decide whether the workmen be absorbed by the principal employer, if so,
how many of them and on what terms, but if the appropriate Government
declines to abolish the contract labour the industrial adjudicator has to reject the
reference. If, however, the so-called contract is not genuine but is a sham and
camouflage to hide the reality, Section 10 would not apply and the workmen can
raise an industrial dispute for relief that they should be deemed to be the
employees of the principal employer. The court or the industrial adjudicator
would have jurisdiction to entertain such a dispute and grant necessary relief.
103. While this was the state of law in regard to the contract labour, the issue of
2 (1997) 9 SCC 377
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automatic absorption of the contract labour came up before a Bench of three
learned Judges of this Court in Air India case [(1997) 9 SCC 377 : 1997 SCC
(L&S) 1344] . The Court held: (1) though there is no express provision in the
CLRA Act for absorption of the contract labour when engagement of contract
labour stood prohibited on publication of the notification under Section 10(1) of
the Act, from that moment the principal employer cannot continue contract
labour and direct relationship gets established between the workmen and the
principal employer; (2) the Act did not intend to denude the contract labour of
their source of livelihood and means of development by throwing them out from
employment; and (3) in a proper case the court as sentinel on the qui vive is
required to direct the appropriate authority to submit a report and if the finding
is that the workmen were engaged in violation of the provisions of the Act or
were continued as contract labour despite prohibition of the contract labour
under Section 10(1), the High Court has a constitutional duty to enforce the law
and grant them appropriate relief of absorption in the employment of the
principal employer. Justice Majmudar, in his concurring judgment, put it on the
ground that when on the fulfilment of the requisite conditions, the contract
labour is abolished under Section 10(1), the intermediary contractor vanishes
and along with him vanishes the term "principal employer" and once the
intermediary contractor goes the term "principal" also goes with it; out of the
tripartite contractual scenario, only two parties remain, the beneficiaries of the
abolition of the erstwhile contract labour system i.e. the workmen on the one
hand and the employer on the other, who is no longer their principal employer
but necessarily becomes a direct employer for erstwhile contract labourers. The
learned Judge also held that in the provision of Section 10 there is implicit
legislative intent that on abolition of the contract labour system, the erstwhile
contract workmen would become direct employees of the employer in whose
establishment they were earlier working and were enjoying all the regulatory
facilities under Chapter V. in that very establishment. In regard to the judgment
in Gujarat Electricity Board case [(1995) 5 SCC 27 : 1995 SCC (L&S) 1166] to
which he was a party, the learned Judge observed that he wholly agreed with
Justice Ramaswamy's view that the scheme envisaged by Gujarat Electricity
Board case [(1995) 5 SCC 27 : 1995 SCC (L&S) 1166] was not workable and to
that extent the said judgment could not be given effect to.
104. For reasons we have given above, with due respect to the learned Judges, we
are unable to agree with their reasoning or conclusions.
05. The principle that a beneficial legislation needs to be construed liberally in
favour of the class for whose benefit it is intended, does not extend to reading in
the provisions of the Act what the legislature has not provided whether expressly
or by necessary implication, or substituting remedy or benefits for that provided
by the legislature. We have already noticed above the intendment of the CLRA
Act that it regulates the conditions of service of the contract labour and
authorizes in Section 10(1) prohibition of contract labour system by the
appropriate Government on consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant factors. But, the presence of
some or all those factors, in our view, provides no ground for absorption of
contract labour on issuing notification under sub-section (1) of Section 10.
Admittedly, when the concept of automatic absorption of contract labour as a
consequence of issuing notification under Section 10(1) by the appropriate
Government, is not alluded to either in Section 10 or at any other place in the
Act and the consequence of violation of Sections 7 and 12 of the CLRA Act is
explicitly provided in Sections 23 and 25 of the CLRA Act, it is not for the High
Courts or this Court to read in some unspecified remedy in Section 10 or
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substitute for penal consequences specified in Sections 23 and 25 a different
sequel, be it absorption of contract labour in the establishment of principal
employer or a lesser or a harsher punishment. Such an interpretation of the
provisions of the statute will be far beyond the principle of ironing out the
creases and the scope of interpretative legislation and as such, clearly
impermissible. We have already held above, on consideration of various aspects,
that it is difficult to accept that Parliament intended absorption of contract labour
on issue of abolition notification under Section 10(1) of the CLRA Act.
107. An analysis of the cases, discussed above, shows that they fall in three
classes: (i) where contract labour is engaged in or in connection with the work of
an establishment and employment of contract labour is prohibited either because
the industrial adjudicator/court ordered abolition of contract labour or because
the appropriate Government issued notification under Section 10(1) of the
CLRA Act, no automatic absorption of the contract labour working in the
establishment was ordered; (ii) where the contract was found to be a sham and
nominal, rather a camouflage, in which case the contract labour working in the
establishment of the principal employer were held, in fact and in reality, the
employees of the principal employer himself. Indeed, such cases do not relate to
abolition of contract labour but present instances wherein the Court pierced the
veil and declared the correct position as a fact at the stage after employment of
contract labour stood prohibited; ( iii) where in discharge of a statutory obligation
of maintaining a canteen in an establishment the principal employer availed the
services of a contractor the courts have held that the contract labour would
indeed be the employees of the principal employer.
125.The upshot of the above discussion is outlined thus :
(1)(a) Before 28-1-1986, the determination of the question whether the Central
Government or the State Government is the appropriate Government in relation
to an establishment, will depend, in view of the definition of the expression
"appropriate Government" as stood in the CLRA Act, on the answer to a further
question, is the industry under consideration carried on by or under the
authority of the Central Government or does it pertain to any specified
controlled industry, or the establishment of any railway, cantonment board,
major port, mine or oilfield or the establishment of banking or insurance
company? If the answer is in the affirmative, the Central Government will be the
appropriate Government; otherwise in relation to any other establishment the
Government of the State in which the establishment was situated, would be the
appropriate Government;
(b) After the said date in view of the new definition of that expression, the
answer to the question referred to above, has to be found in clause ( a) of Section
2 of the Industrial Disputes Act; if ( i) the Central Government
company/undertaking concerned or any undertaking concerned is included
therein eo nomine, or (ii) any industry is carried on ( a) by or under the authority
of the Central Government, or (b) by a railway company; or (c) by a specified
controlled industry, then the Central Government will be the appropriate
Government; otherwise in relation to any other establishment, the Government
of the State in which that other establishment is situated, will be the appropriate
Government.
(2)(a) A notification under Section 10(1) of the CLRA Act prohibiting
employment of contract labour in any process, operation or other work in any
establishment has to be issued by the appropriate Government:
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(1) after consulting with the Central Advisory Board or the State Advisory Board,
as the case may be, and
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the
establishment in question, and
(ii) other relevant factors including those mentioned in sub-section (2) of Section
10;
(b) Inasmuch as the impugned notification issued by the Central Government on
9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is quashed
but we do so prospectively i.e. from the date of this judgment and subject to the
clarification that on the basis of this judgment no order passed or no action taken
giving effect to the said notification on or before the date of this judgment, shall
be called in question in any tribunal or court including a High Court if it has
otherwise attained finality and/or it has been implemented.
(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 [(1997) 9 SCC 377
: 1997 SCC (L&S) 1344] 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 [(1997) 9 SCC 377 :
1997 SCC (L&S) 1344] 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 regularise 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
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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.
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 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.
In the result
CAs Nos. 6009-10 of 2001 @ SLPs (C) Nos. 12657-58 of 1998"
(emphasis supplied)
5. This apart, in the present case, the State Government has taken a clear
position and has not accepted the petitioners contention that additional posts can
be created so that the services of the contract workers can be absorbed/regularized
as asserted on behalf of the petitioner. This has been pointed out in a recent
affidavit filed in pursuance of the order passed by this Court dated 15 December
2025 on behalf of Respondent Nos. 5 and 6 (NMMT) of Shri Yogesh Nathuram
Kaduskar. The concern of the NMMT is also in regard to the number of buses
then plying as also presently plying which cannot be overlooked. The statement as
made in the affidavit are required to be noted which reads thus:
"1. I say that I am filing this additional affidavit in pursuance of the Order passed
by this Hon'ble Court on 15.12.2025. In view of the said Order I am bringing the
true and correct facts as per as the present status of the Drivers and Conductors
working in our Undertaking. Hereto annexed and marked as EXHIBIT "1" is the
copy of said Order dated 15.12.2025.
2. I say that, the Petitioners have filed aforesaid Petition with the prayers that the
Respondent No.4 i.e. Labour Commissioner be directed to take decision for
abolition of contract Labour in Respondent No.5 Undertaking. It was also prayer
that the Respondent No.2 i.e. State Government to grant sanction to the post of
the Drivers and Conductors as per the proposal submitted by the Respondent
No.6 Corporation.
3. I say that, to the aforesaid Petition the Respondent No.2 filed their Affidavit on
16.02.2017. I say that, the Respondent No.5 Undertaking had also filed their
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Affidavit on 31.07.2019. I say that, in the said Reply we have dealt in details about
the status of or Undertaking the Corporation.
4 I say that, in pursuance of the aforesaid Order dated 15.12.2025, I am filing the
present Additional Affidavit to point out the status of Buses owned by the
Respondent No.5 Undertaking and the number of Drivers and Conductors
working with our Undertaking.
5. I say that, as on date our Undertaking is the owner of 120 Buses and in
addition to there are 305 Buses owned by contractor which are used on GCC
(Gross Cost Contract) basis. I say that, as on date our Undertaking is having 267
number of Drivers on the sanctioned Pay Role and 311 Number of Conductors
on the sanctioned Pay Role. I say that, for running 120 buses on the road, we
need 3 Drivers and 3 Conductors for each Bus. Which means we need 360
Drivers and 360 Conductors for running our own Buses.
6. I say that, as on date there are 753 conductors, and 447 Drivers working on
contract basis. As we could not provide work to the Drivers, hence the Contractor
has accommodated the Drivers on the buses run on GCC basis.
7. I say that as on date our Undertaking is suffering huge losses more than 18 cr.
Per Month. I say that, the detail statement showing the income and expenditure:
incurred by the Undertaking. I say that the said statement also revealed the losses
suffered by the undertaking. Hereto annexed and marked as EXHIBIT "2" is the
copy of the statement showing the losses.
8. I say that in view of the judgment of Hon'ble Supreme Court of India, the
appointments will be given as per the procedure subject to the aforesaid
concession.
9. In the light of the aforesaid facts and circumstances, the writ petition as framed
and filed by the Petitioner may kindly be disposed off."
6. On the aforesaid premise, having heard learned counsel for the parties and
having perused the record, we are afraid, that considering the settled position in
law as laid down by the Supreme Court in Steel Authority of India Limited
(supra), the relief as prayed for by the petitioners cannot be granted in the present
proceedings filed under Article 226 of the Constitution. The petitioners are
concerned with the contract workers, who certainly have the remedy of
approaching the Industrial Court for adjudication of such proceedings in
appropriate proceedings seeking the relief of regularization, as prayed for. In the
context of the concerned workers, a relief of regularization involves an
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adjudication based on the factual matrix which would involve a factual enquiry on
a number of considerations, as observed by the Supreme Court in Steel Authority
of India Ltd. (supra).
7. In this view of the matter, we are of the clear opinion that the reliefs as
prayed for cannot be granted in the present proceedings. However, it is open to
the petitioners to seek appropriate reliefs in appropriate proceedings before the
Industrial Court and in the manner as known to law.
8. We accordingly keep open all such contentions of the petitioners and if
such proceedings are filed within a period of two months from today, the same be
decided on the merits and without an objection as to the limitation for the reasons
that the petitioner was bona fide pursuing the present petition as also substantive
orders are passed on the present proceedings.
9. All contentions of the parties are expressly kept open.
10. Disposed of in the aforesaid terms. No costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
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