Delhi Airport Tdi Employees Union vs Union Of India And Others
2001 Latest Caselaw 718 Del

ORDER

Dr. Mukundakam Sharma, J.

1. The writ petition is field by the petitioner seeking for a direction to respondents 2 & 3 for absorption of the workers mentioned in Annexure-A to the writ petition, directly under the said respondents, on regular basis, or in the alternative to issue a direction to respondent No.1 to constitute a Board and issue a notification under Section 10 of the Contract Labour (Regularisation and Abolition) Act, 1970 with a further direction no to terminate the services of the a workers and to maintain status quo in so far as the persons mentioned at Sr. No.1 to 130 of the the persons mentioned at Sr. No.1 to 130 of the Annexure-A to the writ petition are concerned and to reinstate the workers mentioned at Sr. Nos. 131 to 137 of the said Annexure-A

2. The Delhi Airport TDI Employees Union is the petitioner in the present case and the petition is preferred on behalf of 137 Trolley Retriever working with the Airports Authority of India, whose full particulars are given in Annexure-A to the writ petition. According to them they have been working as Trolley Retrieves for the Airports Authority of India, which is a Government of India undertaking and an authority with the meaning of Article 12 of the Constitution of India. It is also stated in the petition that the petitioners mentioned at sr. No.s 1 to 130 in Annexure-A to the writ petition have been working in the aforesaid capacity for the last over three years for respondents 2 & 3 whereas the workers mentioned ate Sr. No.s 131-137 in Annexure-A, who were also working similarly as Trolley Retrievers for the Airports Authority of India, stood terminated from service about five months prior to filing of the present writ petition writ petition. It is stated that the said persons were appointed by the Airports Authority of India though the contractor, namely, respondent No.4. It is also specifically stated in paragraphs 2 & 3 of the writ petition that the petitioners/ works have been working with the respondents 2 & 3 for the last about 2 to 3 years and that they are fully eligible to be regularly appointed to the aforesaid post by abolishing the contract labour. The have contended that the trolley retrieval work performed by the petitioners/workers is of permanent and perennial nature and since the employment of the workers through the contractors deprived them of security of job and further since all the requirements of Section 10 of Contract Labour (Regulation & Abolition) Act 1970 are fulfillled, the workers are entitled to be absorbed in regular service, particularly when the contract entered into between respondents 2 to 3, on the one hand and respondent No.4 on the other hand, is for 7 years, conclusively proving that the work of trolley retrieval is of permanent nature. It is also mentioned that instead of absorbing the said workers, the respondents terminated the services of the persons/workers mentioned at Sr. NO.s 131-137 in Annexure-A and were taking steps for terminating the services of persons mentioned at Sr. Nos. 1-130 and, therefore, the present petition was preferred in this court.

3. I have heard the learned counsel appearing for the petitioner as also the counsel appearing for the respondents.

4. Counsel appearing for the parties, relied upon the ratio of the decision of this court in I.C.M. Engineering Union & Others vs. Union of India & Others in support of their respective contentions. In the said decision, four specific issues were formulated and came to be decided by a Single Judge of this court. They are in the following terms:-

1. Whether this Court, in a writ petition India, can issue direction of regularisation/absorption of the contract labour by the principal employer in the absence of notification?

2. Whether this Court can, in a writ petition under Article 226 of the constitution of India, gave a direction the "appropriate Government" to issue notification under Section 10 of the Act abolishing contract labour in a particular process, operation or other work in that establishment? OR whether the jurisdiction is limited to give direction to undertake the exercise contemplated under Section 10 of the Act and decide whether contract labour system, in any process, work operation, etc. in an establishment needs to be abolished or not?

3. What is the effect of non-compliance of Sections 7 and 12 of the Act by the contractor and/or principal employer?

4. If the answer to question No.2 is in negative and the matter is to be referred to the "appropriate Government" under Section 10 to examine whether contract labour system needs to be abolished in a particular process operation or work, etc, or not, can this Court pass any interim order protecting these contract workers?

5. The first issue with regard to power to issue a direction in absence of a notification was considered by the court and in that context the Court also considered the position in law in respect of contract workers under the aforesaid Act, which was summarised as under:-

(1) The Act allows and recognises contract labour and framers of the Act, never purported to abolish it in its entirety.

(2)It is for the appropriate Government to decide under Section 10 of the Act whether to abolish contract labour in any process, operation or other work in any establishment. For this procedure is prescribed under Section 10(2) of the Act as per which "appropriate Government" has not only to consult the Board but also take into consideration factors mentioned in Section 10(2) which include the consideration as to whether the work being performed by the works in such establishment is of perennial nature or not. IN various judgments Supreme Court has held that this is a function which is to be essentially performed by appropriate Government and not by the High Court under Article 226 of the Constitution of India or Supreme Court under Article 32 of the Constitution of India.

(3) If notification under Section 10(2) i s issued by the appropriate Government then the said establishment in that process, operation or work to which such notification relates, the said establishment cannot engage contract labour. Further existing contract labour wold become direct employees of the Principal employer- Air India Statutory Corporation case (supra).

(4) In the absence of such notification, there is no right which flows from the provision of the Act for the contract labourers to be absorbed or become the employees of principal employer and, therefore, such contract labourers cannot approach High Court under Article 226 or Supreme Court under Article 32 or Article 136 of the Constitution of India for claiming regularisation.

(5) However, if in a particular case the contract workers claim that the contract system in the particular process, operation or other work in an establishment is of perennial nature and notwithstanding the fact that in gradients of Section 10(2) of the Contract Labour (Regularisation and Abolition) Act, are satisfied, the practice of contract labour is continued, then they can approach the appropriate Government under the Act for issuing necessary notification under Section 10(2) of the Contract Labour (Regularisation & Abolition) Act.

(6) In case the contract workers claim that a particular contract in any process, operation or other work in the establishment is sham , and they have become direct employees, of the principal employer, then the remedy is to raise industrial dispute.

6. In case held in para 21 of the said decision that whether such contract labourers have become employees of the principal employer in course of time and whether the engagement and employment of labourers through contract is a mere camouflage and a smokescreen is a question of fact and has to be established by the contract labourers on the basis of requisite material. It was further held that if in a given case, contract labourers contend that the work is of perennial nature and the contractor is a mere camouflage, the appropriate remedy for them is to raise industrial dispute and seek reference to labour Court/Industrial Tribunal under the Industrial Disputes Act, which are the competent for a to adjudicate such dispute on the basis of oral and documentary evidence produced before them. Therefore, it was held that even in the absence of notification under Section 10(2) of the Act, the contract worker can raise dispute and if they are able to establish that the contract was a sham and a contractor is mere camouflage and a smokescreen, Industrial Tribunal/Labour Court can give appropriate relief to them directing the principal employer to absorb such contract workers as its direct employees. It was also held that the same has to be done by the Labour Court/Industrial Tribunal on the basis of material produced before it as it is to be determined by the said court as to at what point of time a direct link is established between the contract labourers and the principal employers, eliminating the contractor from the scene. It is a matter which has to be established on the material produced before the Court. It was held in para 24 of the said decision that when there is no notification under Section 10(2) of the Act writ petition under Article 226 for regularisation of contract works cannot be entertained as it is not the function of the High Court, in exercise of its extraordinary jurisdiction, to delve into such highly disputed questions of fact and undertake the exercise of the "appropriate Government" which is charged with the duty as per the provision of Section 10(2) of the Act or the Industrial Tribunal under the provisions of the Industrial Disputes Act. It shall therefore, be open to the petitioner to seek for appropriate remedy in the appropriate fora a terms of the aforesaid observations.

7. So far the second issue which arose for consideration in that case is concerned, the same relates to power of the High Court to issue direction to the appropriate Government to issue notification under Section 10 of the Act. In view of the contention and after discussion the court held that the party seeking to invoke the provision of Sections 10 of the Act should initially directly approach the appropriate Government with the request to discharge its obligation under Section 10 of the Act and if the circumstances justify undertaking of such an exercise and the appropriate Government still does not initiate this exercise and thus fails to perform its statutory duty, then a petition can be field seeking mandamus to the appropriate Government to undertake such an exercise and take a decision there on. Accordingly, it was held that if the case is made out the Court under Article 226 of the Constitution of india can only give direction to the "appropriate Government" to the extent namely to discharge its duty as required under Section 10 of the Act if the High Court is satisfied that the "appropriate Government" is failing to discharge the same.

8. Another issue which was decided in the said decision also requires mention as the same is relevant for the purpose of deciding the present case. The said issue is as to whether the workers are entitled to interim protection if the matter is to be referred to appropriate Government under Section 10 of the Act. In respect of the same it was decided int he said decision that when directions are given to the appropriate Government, as stated above, normally the Court would not pass any interim order continuing the contract workers but in exceptional cases where protection is required, Court is not powerless and can issue such directions.

9. The aforesaid conclusions were arrived at after holding that giving of such interim protection when there is no material on record as contemplated under Section 10 of the Act, on the basis of which it is yet to decide whether the contract labour needs to be abolished, would be contrary to the statute which permits engagement of contract labour till it is prohibited by issuing of notification under Section 10 of the Act, for it would also amount to doing a particular act indirectly which cannot be done directly. It was held that at the same time one also cannot lose sight of the situations where it is found that such contract workers have bene engaged for years together and they have remained as contract workers notwithstanding the fact that the contractor namely intermediaries between the principal employer and the contract workers have also charge in such case, where the petitioners in the writ petitioner have placed on record sufficient and strong material to establish that the factors as mentioned in Section 10 of the Act are prima facie satisfied and they may be thrown out by the principal employer or the contractor, merely because they have approached the Court by way of writ petitio it would be in the interest of justice to give that direction in the interregnum till the enquiry is completed by the appropriate Government under Section 10 of the Act and the decision taken there on. In such a situation the court should not be powerless to give such workers protection in order to do complete justice in the matter.

10. Counsel appearing for the parties relied upon the ratio of the aforesaid decision in support of their cases. In that view of the matter, I do not find any reason to take a different vie when what is taken in the decision in ICM Engg. Workers Union's case (supra). However, since the petitioners have stated their writ petition that although they were appointed as contract labourers and that they have become employees of the principal employer in course of time and that their engagement and employment through contractor is mere camouflage and smokescreen, the said contention could be decided more appropriately be raising an industrial dispute and seeking reference to Labour Court/Industrial Tribunal under the Industrial Disputes Act. It is not the function of the High Court, in exercise of its extraordinary jurisdiction, to delve into such highly disputed questions to fact as to whether the work performed by the workers is perennial in nature or not and whether the contract is a mere camouflage and a smokescreen,in view of the fact that this court would not undertake the exercise of the "appropriate Government" which is charged with the duty as per the provisions of Section 10(2) of the Act or the Industrial Tribunal under the provisions of the Industrial Disputes Act.

11. So far the aforesaid relief for issuance of a direction to the appropriate Government to issue a notification under Section 10 the Act is concerned, I am satisfied that a case is made out by the petitioner under Article 226 of the Constitution of India for giving a direction to the appropriate Government to discharge it duty as required under Section 10 of the Act. Accordingly, it shall be open to the petitioner to approach the appropriate Government for issuance of notification under Section 10 of the Act and in the event of petitioner seeking the said remedy, the appropriate Government shall take action in accordance with law as contemplated under Section 10(2) of the Act.

12. This leaves me to deal with the last relief, which is sought for in this writ petition, which relates to issuance of interim direction to the respondents to continue these services of the workers, who are working with the said respondents being engaged by the respondent No.4. It is stated in the writ petition that so far the persons mentioned at Sr. Nos.131-137 Annexure-A are concerned, their services were terminated by the respondents five months prior to filing of the writ petition. So are they are concerned, no interim order could be passed by this court since their services already stand terminated. So far the persons mentioned at sr. Nos.1 to 130 in Annexure-A are concerned, it is station the writ petition that they have been working for about 2 to 3 years to filing of the filing of the writ petition and by virtue of the impugned order passed by this court while issuing notice in this writ petition, they are continuing in service till date. As propounded in the aforesaid decision of their court in ICM Engg.'s case (supra), normally the court should not as any interim order continuing the contract workers but in exceptional case where protection ins required, the Court is not powerless and can issue such directions. Individual cases were also dealt with by the said court in the said decision. On perusal of the said decision find that when most of the petitioners had worked for a duration ranging from few months to 1 to 2 years and also for a longer period of 3 to 4 years, not interim relief was given by this court in respect of such persons also. In the present case, interim order as sough for could be passed only when an exceptional circumstance is made out. Merely because some of the petitioners had worked for about 2 to 3 years prior to the filing of the writ petition the same does not make out a case of exceptional circumstances. The petitioners cannot also claim any equity of the ex parte interim order passed by this court in their favor. Accordingly, I am satisfied that no interim order, as sought for by the petitioners, could be g ranted in this case except for observing that in case the contractor, namely- respondent No.4 decides to continue the service of the petitioners till expiry of its contract,it shall be open to the said contractor to continue with the services of the persons mentioned at Sr. Nos. 1 to 130 in Annexure-A. In terms of the aforesaid observations and directions, this writ petition stands disposed of.