Delhi Pradesh Rajdhani Mazdoor ... vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 944 Del

JUDGMENT

S.B. Sinha, C.J.

1. An application for review of this Court's Order dated 16.04.2002 passed in C.W.P. No. 182 of 1993 has been filed by the applicant herein. The said Order reads thus:-

"Learned counsel for the petitioner requested for an adjournment. In view of the fact that this is a case of the year 1993 request for an adjournment is declined.

From a perusal of the prayer in the writ petition, it appears that the writ petition is covered by the latest Constitution Bench judgment in the case of Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors.

In view of the aforesaid decision of the Apex Court, the petitioner may raise industrial dispute.

Writ petition stands dismissed.'

2. The contention of he learned counsel for the applicant is that in passing the said Order, this Court did not take into consideration that the security guards were employed on 09.12.1983, whereas the Contractor was appointed on 01.02.1984 and by reason thereof, there existed a direct relationship of employee and employer between them and the principal employer, although they wee shown to be the employees of the alleged contractor. The said arrangement was entered into only by way of a camouflage by Steel Authority of India to escape its liability under various labour laws enacted for the benefit of the workmen. It has been pointed out that after the death of the contractor in the year 1989, his wife had been asked to continue as Contractor.

The learned counsel would further contend that the petitioner made representation in December, 1989 for their regularization whereupon interviews were held and selection process was carried out, but no action thereupon had been taken.

The learned counsel would further contend that this Court has also not taken notice of the decision of the Apex Court in Gujarat Electricity Board Thermal Power Station, Ukai v. Hind Mazdoor Sabha and Ors. .

3. The applicant herein in the writ petitioner had prayed for the following reliefs:-

(1) may please issue writ of mandamus directing the respondent No. 3 to implement the Notification bearing No. 423013 (7) /76LW dated 9th December, 1976 by regularizing all the 10 Security Guards whose names are mentioned in Annexure 'A' to the present writ petition permanently employed in the respondent No. 2 IRCOn Ltd.

(2) to issue a writ or direction calling upon the Indian Railways Construction Co. Ltd. i.e. the respondent No. 2 to fix all the 10 Security Guards whose names are mentioned in Annexure 'A' to the present writ petition in the regular scale of pay applicable as per their services with effect from the date of their joining and to gave them other consequential benefits.

Any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be given in favor of the petitioner and against the respondent Corporation.

4. It is not in dispute that the said notification dated 09.12.1976 has been set aside and quashed by the Apex Court in Steel Authority (Supra) and, thus, no relief could be granted so far as prayer (1) is concerned.

The second relief is although sought for grant of a regular scale of pay, such a relief could have been granted only in the event, the prayer (1) could be granted in favor of the petitioner, namely, a direction to regularize all the 10 security guards whose names are mentioned in Annexure 'A' to the writ petition.

5. A Constitution Bench of the Supreme Court precisely dealt with the aforementioned question in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. and stated the law in the following terms:-

"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."

It was further held:-

"(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:-

(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;

(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 Aur India case Air India Statutory Corporation v. Union Labour Union, 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 there under. 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.

As regard the meaning of "industrial adjudicator", it was clarified:-

"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.

6. In that view of the matter, this Court's Order dated 16.04.2002 squarely comes within the purview of the Constitutional Bench decision in Steel Authority of India Ltd.'s case (Supra).

7. In Gujarat Electricity Board Thermal Power Station's case (Supra) has also been noticed in Steel Authority of India Ltd.'s case (supra) and it was noticed that even in Air India Statutory Corporation v. United Labour Union , Justice Majmudar opined:-

"103 .....Justice Majmudar, in his concurring judgment, put it on the ground that when on the fulfilllment 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 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 was not workable and to that extent the said judgment could not be given effect to."

8. This question as to whether the contractor was appointed by way of camouflage being essentially a question of fact, the same must be determined before the Industrial Adjudicator. Such a disputed question of fact cannot be determined in a writ proceeding. Even otherwise, the writ court should not substitute itself as an Industrial Court.

In Bhuneshwar Mallah and Anr. v. Central Coalfields Ltd. and Ors. 1995 (1) PLJR 43 (of which one of us S.B. Sinha, J. was a member) held:-

"5. In view of the fact that the petitioner No. 1 has since been retired, in our opinion, no case for issuance of any writ in favor of the petitioners has been made out. Further, even if it be found that the action of the Management is malafide, the remedy of the petitioner is to raise an Industrial Dispute as in our view, this Court, in the facts and circumstances of the case, while exercising jurisdiction under Article 226 of the Constitution of India cannot convert itself into an Industrial Dispute Court. Reference in this connection may be made to a decision of the Supreme Court reported in 1964 S.C. 1260."

There is, thus, no error apparent in the face of the records.

9. For the reasons aforementioned, we do not find any merit in this review application, which is accordingly dismissed.