Jaiprakash Singh & Ors vs Uoi And Others
2011 Latest Caselaw 1579 Del

                                                           UNREPORTABLE


*             IN THE HIGH COURT OF DELHI AT NEW DELHI


                              W.P. (C) No.1670/2011


                                          Date of Decision: March 18, 2011


       JAIPRAKASH SINGH & ORS               ....Petitioners
                      through Mr. C.A.Sundaram, Senior Advocate
                      with Mr. Sudanshu Batra, Ms. Rohini
                      and Mr. Zafar, Advocates

                     versus


       UOI AND OTHERS                         ..... Respondents

through Mr. B.V.Niren, Advocate for respondents No.1 to 4.

Mr. Sandeep Sethi, Senior Advocate with Mr. Gaurav Kejriwal, Mr. S.B.Dwivedi, Advocates for respondent No.5.

CORAM:

HON'BLE MISS JUSTICE REKHA SHARMA

1. Whether the reporters of local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J (ORAL)

The petitioners before me are only five in number, though they

claim to be representing huge number of workers. They are working

as labourers at Quarry "D" of Kaliapani Chromite Ore Mines at Jajpur,

Orissa. They have laid challenge, inter-alia, to the grant of licence to

respondent No.5, namely, Dhansar Engineering Co. Private Limited,

under Section 12(1) of the Contract Labour (Regulation and Abolition)

Act, 1970 (hereinafter called the "Act") for doing the work of

WP(C) No.1670/2011 Page 1 "HEMM Drilling and Blasting wherever necessary and dewatering,

transport of overburden and chrome ore and disposal/stacking of the

same work in the establishment of the Regional Manager, O.M.C. Ltd.,

Jajpur Road, Jajpur at South Kaliapani Chromite Mines of OMC Ltd.,

South Kaliapani."

It has been forcefully argued by the learned Senior counsel

Shri C.A.Sundaram appearing for the petitioners that the aforesaid

licence has been obtained by respondent No.5 by misquoting, rather

suppressing, material part of an order dated February 18, 2011 passed

by a Division Bench of this Court in a writ-petition that was filed by

respondent No.5. As the order passed in the said writ-petition has

been the mainstay of the submission of learned Senior counsel for the

petitioners, it will be appropriate to re-produce the said order in its

entirety:-

"CM No.2241-2242/2011

Allowed subject to just exceptions.

+ WP (C) No.1056/2011 & 2240/2011 (Stay)

On hearing learned senior counsel for the petitioner we are of the considered view that the writ petition is premature inasmuch as that if the legal position already stands settled by the Division Bench of this Court in WP (C) No.5550/1999 titled G.S. Atwal & Co. P. Ltd. & Anr. Vs. UOI & Anr. decided on 19.12.2002 vis-à-vis the principles of law, the petitioner must first approach the concerned authorities to make a representation that a notification dated 20.11.1984 would not apply to the petitioner as the petitioner is deploying its own permanent employees. The occasion for the petitioner to approach this Court would only arise if the concerned authorities take adverse view on this position.

WP(C) No.1670/2011 Page 2 In case a representation is made by the petitioner to the Labour Commissioner and the Orissa Mining Corporation, we would expect a decision to be taken within a week of making such representation.

The petition and the application stand disposed of with the aforesaid directions with liberty to the petitioner to approach this Court in case of any adverse decision being rendered by the concerned authorities.

Dasti to learned counsel for the petitioner under the signatures of the Court Master."

On December 30, 2010, the Deputy Chief Labour Commissioner,

Bhubaneswar had addressed a communication to the Orissa Mining

Corporation Limited and to the Additional General Manager (Mining),

OMC House, Bhubaneswar, warning them that the tender which they

had invited for doing the work at Quarry "D", South Kaliapani Chromite

Mines, appeared to be in violation of Section 10 of the Act, which

prohibits employment of contract labour in view of the Notification

dated November 20, 1984. It is contended by the learned Senior

counsel for the petitioners that inspite of the said communication, the

Assistant Labour Commissioner on March 07, 2011 granted licence to

respondent No.5 under Section 12(1) of the Act.

In so far as the licence is concerned, it is contended that before it

was granted, respondent No.3 had written a letter to Shri Sudhir Kumar

Patra, Central Government Standing Counsel, seeking his legal opinion

on the order passed by the Division Bench of this Court, but in the said

letter, he misquoted the order of the Division Bench. As per the

counsel, whereas, the Division Bench in its order had observed

that, "if the legal position already stands settled by the Division Bench

WP(C) No.1670/2011 Page 3 of this Court in WP (C) No.5550/1999 titled G.S. Atwal & Co. P. Ltd. &

Anr. Vs. UOI & Anr. decided on 19.12.2002 vis-à-vis the principles of

law, the petitioner must first approach the concerned authorities to

make a representation that a notification dated 20.11.1984 would not

apply to the petitioner as the petitioner is deploying its own permanent

employees.......", respondent No.3 in its letter while quoting the order

of the Division Bench intentionally omitted the word "if" and that had

the effect of changing the entire connotation of the order. The order

as quoted in the letter of respondent No.3 ran as under:

"................the legal position already stands settled by the Division Bench of this Court in WP (C) No. 5550/1999 titled G.S. Atwal & Co. P. Ltd. & Anr. Vs. UOI & Anr. decided on 19.12.2002 vis-à-vis the principles of law, the petitioner must first approach the concerned authorities to make a representation that a notification dated 20.11.1984 would not apply to the petitioner as the petitioner is deploying its own permanent employees. The occasion for the petitioner to approach this Court would only arise if the concerned authorities take adverse view on this position.

In case a representation is made by the petitioner to the Labour Commissioner and the Orissa Mining Corporation, we would expect a decision to be taken within a week of making such representation."

In view of the above, it is the submission of the learned Senior

counsel for the petitioners that respondent No.3 in connivance with

respondent No.5 misquoted the order of the Division Bench in order to

somehow obtain the licence.

Besides the aforesaid submissions, it is also contended by the

learned Senior counsel for the petitioners that since the Notification

issued under Section 10 of the Act dated November 20, 1984

WP(C) No.1670/2011 Page 4 prohibiting employment of contract labour in the Chromite Mines has

not been withdrawn till date, the Orissa Mining Corporation Limited

could not have invited tenders in respect of the site in question and

respondent No.4 could not have granted licence pursuant to the award

of tender in favour of respondent No.5.

The learned Senior counsel, Shri Sandeep Sethi, appearing for

respondent No.5 besides disputing the submissions made by the

learned Senior counsel for the petitioners on merits, has raised a

preliminary objection as to the very maintainability of the writ-petition

in this Court. It is submitted that the main relief, which the petitioners

are seeking, is contained in prayer (cc) of the writ-petition and thereby

they have prayed that the licence No.L/52/2011 dated March 07, 2011

granted to respondent No.5 by respondent No.4 be set-aside.

Referring to the licence in question, learned Senior counsel points out

that this licence has been issued by the Assistant Labour

Commissioner, Bhubaneswar and therefore, if the petitioners were to

challenge the same, they should be doing so at Orissa High Court and

not in this Court. The learned Senior counsel also points out that the

order granting licence is an appealable order under Section 15 of the

Act and that the said Section gives right to any person aggrieved by an

order so made to prefer an appeal to the appellate officer nominated

by the appropriate Government. Hence, it is the case of the

respondents that without resorting to the provisions of Section 15 of

the Act, the petitioners could not have filed the present writ-petition.

Having heard the learned counsel for the parties, I feel that the

writ-petition is liable to be dismissed on the question of maintainability.

WP(C) No.1670/2011 Page 5 It is not in dispute that the authority which awarded the contract to

respondent No.5, namely, Orissa Mining Corporation Limited is situated

in Bhubaneswar; the site in question is located in Orissa at Quarry "D"

of Kaliapani Chromite Ore Mines at Jajpur, Orissa; and the licence has

been granted by an authority which also is at Bhubaneswar. In this

view of the matter, no cause of action has arisen within the jurisdiction

of this Court. The mere allegation by the petitioners that the licence

has been obtained by misquoting and misrepresenting an order passed

by the Division Bench of this Court will not confer jurisdiction upon this

Court in relation to a licence which has been granted by respondent

No.4 at Bhubaneswar.

For the fore-going reasons, the writ-petition is dismissed as not

maintainable for want of jurisdiction. However, it will be open to the

petitioners to raise before the Appellate Authority or before the Orissa

High Court, whichever forum they are advised to choose, to raise all

the pleas which they have raised in this Court.

REKHA SHARMA, J.

MARCH 18, 2011
PC/ka




WP(C) No.1670/2011                                                   Page 6