Full Judgment Text
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CASE NO.:
Appeal (civil) 2675 of 2002
PETITIONER:
MGURNEIACTIEPRALMUCMOBRAPIORATION OF
Vs.
RESPONDENT:
K.V.SHRAMIK SANGH & ORS.
DATE OF JUDGMENT: 12/03/2002
BENCH:
D.P. Mohapatra & Shivaraj V. Patil
JUDGMENT:
Shivaraj V. Patil, J.
Leave granted.
This appeal is filed by the Municipal Corporation of Greater
Mumbai challenging the correctness and validity of the impugned
judgment and order made in the writ petition by the High Court.
The writ petition was filed by a registered trade union called
Kachara Vahatuk Shramik Sangh (hereinafter referred to as ‘Union’.
It claims to represent 2000 workmen doing the work of lifting,
transporting and dumping of debris, garbage, silt, house gully
material etc., at the various dumping grounds of the Bombay
Municipal Corporation. The appellant herein is the respondent no.
1 in the writ petition (hereinafter referred to as ’Corporation’)
and respondent nos. 2-33 are different contractors who had been
entrusted with the above-mentioned work on contract basis.
Respondent no. 34 is the State of Maharashtra and respondent no.
35 is the Contract Labour Board established under the provisions
of the Contract Labour (Regulation & Abolition) Act, 1970 (CLRA
Act). Respondent No. 36 is the Commissioner of Labour for the
State.
In the writ petition, it was emphasized that the nature of
work carried out by the contract labour is perennial; merely
because the Corporation has chosen to employ system of contract
labour for discharging its statutory obligations, the contract
labour does not cease to be workman of the principal employer
the Corporation. According to the writ petitioners (Union), if at
all, contract labour system was to be permitted, it could be done
only in accordance with the provisions of the CLRA Act; an
employer could not be allowed to carry on work through contract
labour unless provisions of the statute were strictly complied
with and that the Corporation was carrying on the work through
contract labour for almost 15 years even without registering
itself as a principal employer, that too through contractors who
were not holding any licence under the CLRA Act. It is the
further case of the Union that it kept on complaining to the
Labour Commissioner about the gross violation of law and the legal
rights of the workmen concerned. The Labour Commissioner, after
investigation into the complaints, addressed letter dated
18.7.1998 to the Chief Secretary of the State recommending
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abolition of the contract labour system observing that Solid Waste
Management Department is one of the sections of the Corporation,
which is in operation for more than hundred years; in this
Department the work of collection, transportation, dumping and
disposal of the garbage, refuse, debris etc. is performed. The
Labour Commissioner also stated in the letter that the Solid Waste
Management Department had applied for registration as principal
employer under the CLRA Act on 17th December, 1996. In the
meanwhile, the writ petition had already been filed, so the said
application was kept in abeyance. He also stated that none of the
contractors had obtained licence under the provisions of the CLRA
Act. He further pointed out that by the letters of 25th October,
1997 and 19th May, 1998, the Union had made representations to the
Chairman of the State Contract Labour Advisory Board requesting
him to advise the State Government to abolish the system of
employment of contract labour in the solid Waste Management
Department of the Corporation. In the letter of the Labour
Commissioner, it is also stated that the work performed by the
workers employed by the contractors is of regular and permanent
nature. In the writ petition, it is also stated that the contract
entered into by the Corporation with the contractors is a sham
arrangement. The workmen concerned with the writ petition are in
law and in fact employees of the Corporation, particularly so,
when the task of sweeping and cleaning roads, gullies and removal
of debris and garbage etc. are the statutory duties to be
performed by the Corporation under Sections 61(C), 365 and 367 of
the Bombay Municipal Corporation Act, 1888 (for short the ‘Act’).
It is also stated in the writ petition that the conditions of
service of these workmen are horrible and inasmuch as they are
required to handle corpses of animals, excreta of animals and
human-beings from house gullies and garbage dumps toxic and other
danger material etc. In support of the writ petition, reliance
was placed to the Circular dated 26.4.1985 issued by the Govt. of
Maharashtra relating to Bhangi Mukti (prevention of scavenging),
Circular dated 30.8.1996 issued by the Corporation on the
precautionary measures to be taken while engaging contract labour,
the letter dated 27.11.1996 addressed to the Additional
Commissioner, Corporation, by the then Chairman of the Standing
Committee of the Corporation Shri Hareshwar Patil stating that the
garbage workers were not properly treated; there was no difference
between the permanent workers of the Corporation and the contract
workers; their conditions were really pitiable and steps are to be
taken to improve the situation. Reference is also made to the
letter of the Labour Commissioner dated 18.7.1998 addressed to the
Chief Secretary of the State requesting to recommend the matter to
the State Contract Labour Advisory Board for abolition and
prohibition of the contract labour system. The Minister for
Labour of the State addressed a letter dated 4.2.1999 to the
Commissioner of the Corporation recommending for abolishing the
existing contract system. In the writ petition, the following
reliefs were sought :-
"(a) for a Writ of Mandamus or any other
appropriate Writ, order or direction,
directing the State of Maharashtra and
Contract Labour Board, Bombay Municipal
Corporation to forthwith abolish the
contract labour system in the Solid Waste
Department and for regularization of the
services of all the workmen concerned with
this Petition with retrospective effect
forthwith and to pass appropriate order
forthwith.
(b) for an order directing the Respondent to
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maintain status quo in respect of the
employment of the workmen concerned with
this Petition.
(c) For an order directing the Respondent No. 1
to forthwith absorb all the workmen
concerned with this Petition as regular
and permanent workmen with retrospective
effect from their initial date of work.
(d) For an order directing the Respondent No. 1
to treat all the workmen concerned with
this case on par with the permanent
workmen in terms of wages and all service
conditions....................."
In reply to the writ petition the Corporation in the
affidavit filed on its behalf inter alia submitted that the writ
petition should be dismissed declining to entertaining it under
Article 226 of the Constitution to adjudicate the disputed
questions of facts. Section 61(2) of the Act imposes a statutory
duty on the Corporation for removal of garbage. The Solid Waste
Management Department has employees, mukadams and overseers
engaged in the activity of removal of garbage. For this purpose
the Department uses its own staff and not contract labour. It has
its own vehicles for the purpose of removal of garbage. Because
of insufficiency of vehicles it also hires private vehicles on
contract basis for the removal of garbage; the vehicle owners
supply the vehicles with a driver and cleaner; and only the
Corporation employees are engaged in removal of garbage.
Further, according to the Corporation, under Section 367 of
the Act its Commissioner provides or appoints in proper and
convenient situations public receptacles, depots and places for
the temporary deposit or final disposal of the refuse/debris.
Under Section 368, if the owner or occupier of any trade premises
desires permission to deposit trade refuse, collected daily or
periodically from the premises, temporarily upon any place
appointed by the Commissioner in this behalf, he may, on the
application and on payment of such charges, allow the applicant to
deposit refuse/debris. The Corporation merely provides its
services to those generators of debris like MHADA or private land
owners or builders, who are liable to pay stipulated charges for
the work of disposal of debris performed by the Corporation. For
the purpose of removal of debris the Corporation accepts separate
tenders from the contractors. This work, not being the statutory
responsibility of the Corporation, is not done by its employees.
Copy of the tender submitted by the contractor for removal of
debris and copy of the contract entered into by the Corporation
with the contractors, as per Ex.-5 and 6, clearly show that the
workers engaged in the said activity of removal of debris are not
employees of the Corporation. The allegations that merely paper
arrangements are made by the Corporation to avoid statutory
liabilities and that such contracts are sham and illegal are
denied by the Corporation. It is also stated that the Corporation
has been taking stringent action against the contractors so that
they should comply with the statutory requirements such as Minimum
Wages Act and the contractors are also directed to provide the
labourers with good quality of raincoats with caps, gum boots and
hand gloves etc. It is denied that the Corporation is using the
contract labour as slaves or bonded labour. It is the specific
case of the Corporation that the workers engaged by the
contractors are not its employees
It is further the case of the Corporation that CLRA Act does
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not abolish contract labour as alleged by the Union; the power to
abolish contract labour vests with the appropriate Government and
in this case the appropriate Government is State Government. The
appropriate Government before abolition of contract labour under
Section 10 of the CLRA Act must consult State Board, constituted
under Section 4 of the CLRA Act being an expert body, before
contract labour can be provided. Further, the relevant factors
such as whether the work is incidental or necessary for the
establishment is to be taken into consideration as contemplated
under Section 10 of the CLRA Act. Based on these statements made
in the affidavit the Corporation prayed for dismissal of the writ
petition.
The High Court by its order dated 18.11.1998 in writ
petition No. 2135/98 ordered the Labour Commissioner to
authenticate the list of workmen of the respondent no. 1 - Union.
The Labour Commissioner on 9.2.1999 gave his report to the High
Court stating that it was not possible for him to verify the
authenticity of the list of workmen.
However, the High Court allowed the writ petition and made
the following order:-
"(a) The system of employing contract labour
on the work in Solid Waste Management
Department shall be discontinued by the
first Respondent- Corporation with
immediate effect.
(b) 782 contract labourers who have been
identified as working through contractors
on the work of Solid Waste Management
Department shall be absorbed as permanent
employees in the employment of the first
Respondent-Corporation on the appropriate
wage scales and extended all conditions of
service as available to other permanent
employees doing same or similar work in
the employment of the first Respondent-
Corporation.
(c) A Committee comprising of an officer to be
nominated by the Commissioner of Labour,
an officer to be nominated by the
Municipal Commissioner and a
representative of the Petitioner-union,
shall verify the claims of all workmen
other than those whose claims have already
been verified by the Commissioner of
Labour, after taking such evidence as the
said Committee desires.
(d) The said Committee shall make a report to the
Municipal Corporation indicating the
persons who were actually working as
contract labourers in the Solid Waste
Management Department on the date on which
the Writ Petition was filed. Immediately
on receipt of such report, the first
Respondent Corporation shall absorb such
workmen also as permanent workmen in the
Solid Waste Management Department and
extend to them pay and all conditions of
service and benefits as given to other
permanent workmen doing same or similar
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work.
(e) Though, strictly speaking, under the
principles laid down in Air India’s case
(supra), the workmen would have to be
absorbed as permanent employees and given
all the benefits from the dates of their
respective employment, as we have found
some difficulty with regard to
identification, we direct that the
absorption into service as permanent
employees and extension of all benefits
shall be done as from the date of the Writ
Petition i.e. from 1st July, 1997."
On behalf of the Corporation it was contended:
(a) That the disputed questions of facts arose for consideration
in the writ petition. Hence the High Court was not right
and justified in adjudicating those disputed questions of
facts exercising jurisdiction under Article 226 of the
Constitution; as held by this Court in various decisions in
matters like this it was for the industrial adjudicator to
decide in appropriate proceedings; even assuming that all
the conditions of contract labour under Section 10 of the
CLRA Act were shown to exist it was for the court to order
abolition of contract labour;
(b) The matter ought to have been left to be decided by the
Government as to abolition of contract labour as laid down
by this Court in BHEL Workers Association, Hardwar and
others vs. Union of India and others [(1985) 1 SCC 630],
Catering Cleaners of Southern Railway vs. Union of India and
others [(1987) 1 SCC 700] and Gujarat Electricity Board,
Thermal Power Station, Ukai, Gujarat vs. Hind Mazdoor Sabha
and others [(1995) 5 SCC 27].
(c) The High Court was also wrong in ordering automatic
abolition of the contract labour on the basis of judgment of
this Court in Air India Statutory Corporation and others vs.
United Labour Union and others [(1997) 9 SCC 377]; the said
judgment now stands overruled by the Constitution Bench
judgment of this Court in Steel Authority of India Ltd. Vs.
National Union Waterfront Workers [(2001) 1 SCC 1].
(d) Neither there was enquiry nor finding was recorded by the
High Court that the labour contracts with the contractor
were sham or camouflage or only device to deprive the worker
of the benefits otherwise available to him; the High Court
has not ordered absorption of the labours on the ground that
the labour contracts were sham or bogus; the High Court
without enquiry and consideration whether such contracts
were sham proceeded to say so on the ground that such labour
contracts were made without complying with the provisions of
the CLRA Act and, therefore, there is automatic absorption.
(e) The Union has not filed cross-objections against the High
Court judgment complaining that the High Court ought to have
recorded a finding that such contracts were sham; further
such investigation as to whether contracts were sham could
be investigated only by an industrial adjudicator as
strongly held by this Court in several cases including in
the reasoned Constitution Bench judgment in SAIL (supra).
On behalf of the Union submissions were made supporting the
impugned judgment and order, contending that
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(a) contract labour system may be characterized as sham if the
work is of continuous nature, supervision and control is by
the principal employer, the work is of statutory nature, the
principal employer and the contractor cannot produce any
records such as pay slips, muster roll, attendance cards or
wage registers to show that the workers were actually
employed through a contractor, the workers work in the
establishment of principal employer, neither the principal
employer nor the contractors have obtained licences or
certificates under the CLRA Act, the nature of work is
essential to the work of the establishment, the
establishment rules itself provide that contract labour
shall not be used for perennial work and workers are kept in
bondage.
(b) Normally the High Court, under Article 226 of the
Constitution, enquire as to whether the contract labour
system is a sham, and direct absorption, but where facts are
by and large undisputed, many years have passed and all the
authorities have recommended the absorption of workers but
the ultimate authority has failed to act for a long time and
it would be an act in futility and waste of time and also
cause injustice to the workers, the High Court could go into
the question and pass orders instead of remanding the
matter.
On behalf of both the sides our attention was drawn to
relevant material on record in support of their respective
contentions.
After the High Court passed the impugned judgment and order,
request was made on behalf of the Corporation for staying the
order to enable it to approach this Court challenging the same.
After hearing both sides, the high Court stayed the order for a
period of six weeks subject to certain conditions in the following
terms:-
"(a) There shall be stay of our order for a period
of six weeks, except the direction pertaining to
the appointment of the Committee and the work to
be done by it as provided in paragraphs (c) and
(d) above.
(b) All 782 workmen who have already been
identified by the Office of the Commissioner of
Labour shall be provided work by the first
Respondent Corporation and paid daily wages of
Rs. 100/- without prejudice to the rights and
contentions of the first Respondent Corporation
and also without prejudice to the rights and
contentions of the concerned workmen.
(c) The first Respondent Corporation is not obliged to
extend any other conditions of service except
safety and sanitary equipments to the concerned
workmen during the period of six weeks from
today."
On 26.10.1999, this Court passed order to maintain status
quo till the matter came up before the Motion Bench. On
5.11.1999, this Court issued notice to the respondents and ordered
to maintain status quo regarding employment of the concerned
employees till further orders.
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In view of the order of this Court dated 10.10.2001, the ex-
officio Member Secretary, State Contract labour Advisory Board and
Commissioner of Labour at Mumbai filed additional affidavit on
behalf of respondent no. 35 saying that the Union by its letter
dated 19.5.1998 requested the State Contract Labour Advisory Board
to take up the matter regarding prohibition of contract labour
system prevailing in the Solid Waste Management Department of
Corporation. Pursuant to the direction received from the
Government of Maharashtra dated 9.2.1999, the Board in its meeting
held on 6.3.1999 heard the representatives of the Corporation and
the Union and advised the Corporation to abide by the CLRA Act and
the Minimum Wages Act, 1949 and to provide all facilities to the
contract labourers employed in the Solid Waste Management. It is
further stated that in view of the impugned judgment and due to
the pendency of Special Leave Petition in this Court, the State
Contract Labour Advisory Board has kept the matter in abeyance.
The High Court noticing the duties of the Municipal
Corporation under the Act contained in the various Sections held
that the said provisions imposed statutory duties on the
Corporation to keep the city clean free of garbage, rubbish,
refuse etc. The High Court took the view that if the Corporation
chose to employ some other agency to discharge its obligation, it
could do so provided it is consistent with the applicable legal
provisions; after the enforcement of the CLRA Act under Section 7,
the Corporation being principal employer was compulsorily required
to register itself with the appropriate registering authority and
every contractor was required to obtain a licence under Section 12
of the Act but neither the Corporation nor the contractors
complied with the said provisions in spite of the grievances
voiced by the union repeatedly. The High Court looking to the
letter of the Labour Commissioner dated 18th July, 1998 to the
Chief Secretary of the State recommending abolition of the
contract labour system, letters dated 4th February, 1999, 5th April,
1999 and 10th may, 1999 addressed by the Labour Minister to the
Commissioner of Corporation dealing with the working conditions of
the contract labour and inaction of the Corporation and finally
recommending for abolition of the contract labour system ordered
for absorption of workers directly. During the course of the
argument, the learned Addl. Govt. Pleader was asked as to why the
said Contract Labour Abolition Advisory Board and the State of
Maharashtra should not issue an order prohibiting employment of
contract labour in the Solid Waste Management Department, it was
informed that on account of election code of conduct, decision
could not be taken in the matter. In this view, the High Court
felt that the fate of the workers could not be left hanging on the
sweet mercy of the Corporation and/or the State Government and it
has become the responsibility of the Court to discharge its
constitutional duty to see if the Union was entitled to relief in
law and grant them such relief by then and there itself.
Thereafter, the High Court referring to various decisions cited
and mainly relying on the decision of this Court in Air India case
(supra) and applying the principles stated therein to the present
case and allowed the writ petition granting the reliefs to the
union in terms already stated above.
In a recent Constitution Bench judgment of this Court in
Steel Authority of India Ltd. & Anr. vs. National union Waterfront
Workers & Ors. (2001) 7 SCC 1] Air India case (supra) is
specifically overruled. In the said judgment, after referring the
various decisions of this Court including the decisions cited
before us and on elaborate consideration and analysis, the
Constitution Bench in para 125 of the said judgment, outlined the
conclusions. To the extent they are relevant for the present
purpose read:-
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"125. The upshot of the above discussion is
outlined thus:-
(1) .....................................
(2) ................................
(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 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
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 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
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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."
Para 126 of the same judgment reads:-
"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 the
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."
A Division Bench of the Bombay High Court following the
judgment of this Court in Air India case (supra) had directed the
appellant to absorb the contract labour but the Constitution Bench
judgment in view of the overruling of Air India case (supra) set
aside the judgment of the High Court leaving it open to the
contract labour to seek appropriate relief in terms of the main
judgment as stated in para 136 of the Constitution Bench judgment.
Similar orders were passed as can be seen from paras 137, 140 and
146 of the same judgment dealing with other cases where orders
were passed by the high Court relying on Air India case (supra).
We do not consider it necessary to refer to the decisions
cited by the learned counsel in the light of the authoritative
pronouncement of the Constitution Bench of this Court
aforementioned.
Now, we proceed to consider the validity and correctness of
the impugned judgment and order in the light of judgment of the
Constitution Bench in SAIL case (supra). The High Court held that
the work entrusted to the members of the Union continued to be
basically the work of the Corporation itself of perennial nature;
the Corporation has chosen to carry out the work under so-called
system of labour contract without complying with the provisions of
the CLRA Act and as such the labour contract was a camouflage. We
must state here itself that the Union in the writ petition alleged
that the labour contract was sham and the Corporation specifically
denied it in its counter affidavit but the High Court did not go
into this question and did not record a finding that the labour
contract in the present case was sham or a camouflage considering
the material on record; even otherwise this being a serious and
disputed fact in terms of the Constitution Bench judgment
aforementioned, the High court could not have appropriately
adjudicated on the issue exercising jurisdiction under Article 226
of the Constitution. It appears to us that the High Court
proceeded to conclude that the labour contract was not genuine and
the workers of the Union were employees of the Corporation because
the Corporation and the contractors did not comply with the
provisions of the CLRA Act. Conclusion that the contract was sham
or it was only camouflage cannot be arrived at as a matter of law
for non-compliance of the provisions of the CLRA Act but a finding
must be recorded based on evidence particularly when disputed by
an industrial adjudicator as laid down in various decisions of
this Court including the Constitution Bench judgment in SAIL. The
cases on which the High Court placed reliance were the cases where
finding of fact was recorded by the labour courts on evidence. In
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para 34 of the impugned judgment, it is stated :-
"This court is hardly competent to record
evidence or appreciate it in exercise of its
powers under Article 226 of the Constitution.
This Court as well as the Supreme Court have
always taken the view that writ jurisdiction
should not be permitted to be invoked if
disputed questions of facts are involved, is the
submission of the learned counsel. The
submissions are wholly unexceptionable. If the
facts were not clear, we would have hardly
allowed our writ jurisdiction to be invoked.
The material which we have referred to at
several places hereinbefore, is more than
adequate, in our view, to come to the conclusion
we have arrived at."
The material referred to relates to the complaints of the
Union, recommendations of the Labour Commissioner, Labour Minister
and the Labour Contract Advisory Board in regard to abolition of
contract labour under Section 10 of CLRA Act but that material
could not be a foundation or basis to say that the labour contract
was sham, camouflage or a devised to deny the statutory benefits
to the workers. From the judgment under challenge, it is clear
that Air India case (supra) weighed with the High Court which
judgment now stands overruled as already stated above. The High
Court rejected the contention that jurisdiction to abolish the
contract labour system vested with the appropriate Government
under Section 10 of CLRA Act and that power could be exercised
after obtaining advice of the Contract Labour Advisory Board which
in turn had to keep several factors enumerated in clauses (a) to
(d) of Section 10(2) of CLRA Act stating that in the present case
in almost 15 years, there was no registration of principal
employer; none of the contractors ever held a licence under the
Act; the work that was being carried on fell within the parameters
of clauses (a) to (d) of Section 10(2) of the Act and having
regard to what was said by the Chairman, Standing Committee of the
Corporation and the contractors and the recommendation of the
Labour Commissioner to abolish the contract labour system.
Further the Minister for Labour of Govt. of Maharashtra went on to
record in clear terms that the Government had taken a decision to
abolish system of contract labour in the Solid Waste Management
Department of the Corporation, the High Court thought that there
was sufficient material for abolishing the contract labour system.
The High Court drew an inference that the State admitted that all
the requirements were satisfied for acting under Section 10(2) but
because of the election code of conduct it was unable to act and
passed order for absorption of workers saying that it had no
impediment to do so in view of its conclusions. Referring to Air
India case (supra), the High Court observed that the said judgment
suggested that a contract labour system can be said to be genuine
only if it is carried in compliance with the provisions of the
CLRA Act and anything contrary thereto would lead to the
presumption that the purported contract labour system was merely a
devise and sham. In our view, the conclusion of the High Court
that the contract labour system in the present case was sham
cannot be sustained in the light of what is stated above and
particularly when the disputed questions of fact arose for
consideration in the light of rival contentions raised by the
parties. We have detailed them above to say so.
The code of conduct relating to election related to 1998.
The High Court at the time of passing the impugned order could
have directed the State Government/authority to pass orders within
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a given time frame but the High Court took up the task itself.
It may also be noticed that the High Court by its order
dated 18th November 1998 directed the Labour Commissioner to verify
the authenticity of the list of workmen claiming to be the members
of the Union. After investigation, the Labour Commissioner made
three reports to the High Court on 9th February 1999, 23rd April
1999 and 12th June, 1999. In the report of 9th February, 1999, the
Labour Commissioner pointed out that the work of investigation of
the authenticity of the members of the Union could not be carried
out as the contractors did not maintain any record. In the said
report, it is stated that :
"In these circumstances mentioned above, it has
not been possible for the Commissioner of Labour
to verify the authenticity of the list of
workmen claiming to be members of Kachara
Vahatuk Shramik Sangh."
The Labour Commissioner suggested that in the absence of any
record of contract labourers maintained by the principal
employer/contractors, the list of the workers as submitted by the
Union may be considered as valid list. In the said list, the
Labour Commissioner had mentioned that about 2000 workmen had been
working since last 15 years as contract labourers. In the report
of 23rd April, 1999, after giving the details of the work carried
by him, the Labour Commissioner says "that the Government Labour
Officers designated by him had interrogated the contract labourers
present in the Ward in the morning and filled up 1172 forms after
interrogating 1172 workers. It was also noticed that merely 219
workers’ names were in the list and remaining 953 workers’ names
were not found in the list of that Ward."
In the report dated 12th June, 1999, the Labour Commissioner
has also indicated that out of 1540 workmen listed out in the writ
petition, he had been able to identify 541 workers. Similarly,
out of the 607 contract labourers whose names were annexed to the
list exhibited to the Chamber Summons No. 31 of 1991 in Writ
Petition No. 1027 of 1997, he had been able to identify 138
workers. Thus, he pointed out that, out of the total 2147 workers
whose names were put forward by the Union, the Government Labour
Officers were able to identify 947 workers while actually working
on the dates of the visits of the Government Labour Officers on
20th and 21st May, 1999.
The Corporation has disputed as to the number of workers
under the contract labour system and their authenticity and the
period of their work etc. Merely because the records are not
maintained by the contractors, it may not be appropriate to accept
the list of workers given by the Union. Even from the reliefs
granted by the High Court already extracted above, it is clear
that 782 contract labourers were identified as working through
contracts; a direction was given to constitute a committee to
verify the claims of all workmen other than already verified and
to make a report to the Corporation indicating the presence who
were working actually as the contract labourers in the Solid Waste
Management Department on the date on which the writ petition was
filed. Further, immediately on receipt of such report, the
Corporation shall absorb such workmen as the permanent workmen.
These directions themselves indicate as to the disputed questions
that arose for consideration
The High Court having said earlier although the power of
abolishing the contract labour system vested in the Government
because of delay in doing so, there was no impediment to pass such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12
an order itself. In para 45 of the judgment, the High Court
states thus:-
"We are inclined to direct that the workmen
required for work in the Solid Waste Management
Department should not fall within the purview of
the Contract labour (Regulation & Abolition)
Act, 1970 at all, but that they should be
absorbed as direct employees of the Bombay
Municipal Corporation."
This direction cannot be sustained not being consistent with
the judgment of the Constitution Bench in SAIL case (supra).
As laid down in the Constitution Bench judgment, absorption
of contract labourers cannot be automatic and it is not for the
court to give such direction. Appropriate course to be adopted is
as indicated in para 125 of the said judgment in this regard. Thus
having considered all aspects, we are of the view that the
impugned judgment and order cannot be upheld.
In the result, for the reasons stated and discussion made
above, the impugned judgment and order are set aside leaving it
open to the Union to seek remedies available in terms of para 125
of the judgment of the Constitution Bench in SAIL aforementioned
before the State Government or the Industrial Adjudicator as the
case may be. In case, the Union moves the appropriate Government
or the Industrial Adjudicator within four weeks from today, they
shall consider the same and pass appropriate orders within a
period of six months. The order to maintain status quo regarding
the employment of the contract labourers to the extent indicated
was passed in the writ petition on 20.4.1998 and even after
disposal of the writ petition, the High Court stayed the order for
a limited period and further this Court passed order to maintain
the status quo on 26.10.1999 which is continuing. In these
circumstances, the order of status quo shall continue for a period
of six months. We also make it clear that this order does not
prevent the State Government to proceed in accordance with law in
the matter of abolition of contract labour system. The appeal is
allowed accordingly in the above terms. No costs.
.......................J.
[D.P. Mohapatra]
.......................J.
[Shivaraj V. Patil]
March 12, 2002.