Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.__3641-42 OF 2008
(Arising out of SLP (C) No.22320-22321 of 2004)
FOOD CORPORATION OF INDIA & ANR. … APPELLANTS
Versus
PALA RAM & ORS. … RESPONDENTS
{With C.A. No._3654 of 2008 [@ SLP (C) No. 1742/2008], C.A.
Nos._3655-56 of 2008 [@ SLP (C) No. 22335-22336/2004 & C.A.
No._3657 of 2008 [@ SLP (C) No. 2757/2006]}
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. The case has a chequered history.
2
Appellant has been constituted under the Food Corporation of India
Act, 1964. For the purpose of carrying out its activities, it maintains a large
number of godowns in different parts of the country including the States of
Punjab and Haryana. As the law stood then, the respective State
Governments were considered to be the appropriate Government in respect
of the appellant. Various State Governments issued Notification prohibiting
employment of contract labour in some processes in its establishments
purported to be in exercise of its power under Section 10(1) of the Contract
Labour (Regulation and Abolition) Act, 1970 (for short, “the Act”).
Indisputably, the Government of India in exercise of the same power
issued a Notification bearing No. S.O. No. 779(E) on or about 9.12.1976 to
the following effect:
“S.O. No. 779(E) – In exercise of the power
conferred by sub-section (1) of Section 10 of the
Contract Labour (Regulation and Abolition) Act, 1970
(37 of 1970) the Central Government after consultation
with the Central Advisory Contract Labour Board,
hereby prohibits employment of contract labour on and
from the 1.3.1977, for sweeping, cleaning, dusting and
watching of buildings owned or occupied by the
establishments in respect of which the appropriate
Government under the said Act is the Central
Government: (emphasis supplied)
Provided that this notification shall not apply to
the outside cleaning and other maintenance operations of
multi-storeyed buildings where such cleaning or
3
maintenance operations cannot be carried out except
with specialized experience.”
In a decision of this Court titled “ Food Corporation of India Workers’
Union v. Food Corporation of India & ors.” reported in (1985) 2 S.C.C.
294, it was held:
“On the interpretation of the relevant sections extracted
above, we hold that the ‘appropriate Government’ for the
purpose of this case pertaining to the regional offices and
their warehouses in the respective States is the State
Government and not the Central Government.”
3. However, on or about 28.1.1986, the definition of ‘Appropriate
Government’ was amended by Act 14 of 1986 in terms whereof, the Central
Government was declared to be the ‘appropriate Government’, inter alia, so
far as establishments of FCI are concerned.
4. The Central Government thereafter issued a Notification on or about
28.5.1992 stating that no case for abolition of contract labour in respect of
the jobs of sweeping, cleaning, dusting and watching of buildings in Food
Corporation of India was made out. It reads as under:
“No. U.23013/11/89-LW
Government of India : Ministry of Labour
Jaisalmar House, Mansingh Road,
4
th
New Delhi, Dated 28 May, 1992
To,
All the members of Central
Advisory contract Labour Board.
Subject: Report (Part-I) of the Committee constituted to
study the working of Contractor Labour System in Sweeping,
Cleaning, Dusting and Watching of Buildings owned or
occupied by establishments in respect of which the Central
Government has become the appropriate government after the
amendment in 1986 of the Contract Labour (Regulation and
Abolition) Act, 1970.
Sir,
I am directed to refer to this Ministry’s letter of even No. dated
rd
3 April, 1992 and to say that the matter relating to the dusting
and watching of buildings owned or occupied by the
Corporation of India. Unit Trust of India, and Central
th
Warehousing Corporation was discussed in the 24 meeting of
the Central Advisory Contract Labour Board held on
29.02.1992 at New Delhi under the Chairmanship of Union
Deputy Labour Minister. It was inter-alia decided to leave the
matter further for a decision by Government keeping in views
the views expressed in the matter.
2. In pursuance of the recommendations of the
Board, the matter has been considered in detail by the Central
Government and it has been decided not to prohibit
employment of Contract Labour in the sweeping, cleaning,
dusting and watching of Building owned or occupied by the
establishments, of Food Corporation of India, Industrial
Finance Corporation of India, for which the appropriate
Government under the Contract Labour (Regulation and
Abolition) Act, 1970 is the Central Government.
Yours faithfully,
Sd/-
(Smt. P. Vankatachalam)
5
Deputy Secretary of the Govt. of India
And Secretary of the Central Advisory
Contract Labour Board.”
5. The question as to whether on abolition of contract labour, the
contract labourers working under the contractors became direct employees
of the management, has been debated in various High Courts. The question
came up before this Court in Air India Statutory Corporation & Ors. v.
United Labour Union & ors. reported in (1997) 9 S.C.C. 377 where it was
held that all the contract labourers on issuance of Notification dated
9.12.1976 became the direct employees of the respective managements. The
decision of this Court in Food Corporation of India Workers’ Union
(supra) however was not noticed.
6. A series of writ petitions thereafter were filed before the Punjab &
Haryana High Court. In one of the matters, a Division Bench of the said
Court in LPA No. 742 of 1993 by a judgment and order dated 21.7.1998
opined that the contract labour in the depots of the appellant by reason of
the said notification dated 9.12.1976, the workmen were entitled to the
benefits of the said decision of Air India (supra) holding:
“Accordingly, on finding the work to be perennial
nature, it had recommending and the Central
6
Government had considered and accepted the
recommendation to abolish the recommendation to
abolish the contract labour system in the afore-said
services. Having abolished it the Central
Government was denuded its power under Section
10(1) to again appoint insofar as the above
services of the Mohile Committee to go once over
into the self – same question and recommendation
of the latter not to abolish the contract labour
system in the above service and the acceptance
there of by the Central Government are without
any legal base and therefore nonest.”
7. It was also held that the Central Government was the appropriate
Government in view of the decision of this Court in Air India (supra),
stating :
“11. After recording the above mentioned
conclusions their Lordships examined the correctness of
the directions given by Bombay High Court for
enforcement of the notification dated 09-12-1976 qua to
the establishment of the Corporation and upheld the
same.
12. In view of the judgment of the Supreme
Court in Air India Statutory Corporation’s Case (supra)
approving decision of the Bombay High Court which has
direct bearing on the case of the appellant, the impugned
order of the learned Single Judge in which he dissented
from the decision of the Bombay High Court cannot be
regarded as laying down correct law. In our opinion the
interpretation given by the Apex Court to the definition
of appropriate Government is also sufficient to upset the
impugned judgment.
7
13. In the result we allow and set aside the order
of the learned Single Judge. Consequently the writ
petition filed by the appellant is accepted and the
respondent – Corporation is directed to give effect to the
notification dated 09.12.1976 while making employment
in its establishment. As a logical corollary, the
respondent is restrained from employ watchman for its
godowns as contract labour.”
8. Indisputably, a Special Writ Petition filed thereagainst by the
petitioner was dismissed by an order dated 30.8.1999 stating:
“In view of the circular No. 2 of 1999 dated 23.3.1999
by the Food Corporation of India and Office
Memorandum No. S-16-11/2/99-LW dated 8.2.1999
issued by the Government of India, this Special Leave
Petition deserves to be dismissed. The Special Leave
Petition is, therefore, dismissed.”
9. This question, however, again came up for consideration before a
Constitution Bench of this Court in Steel Authority of India Limited & ors.
v. National Union Waterfront Workers & ors. [(2001) 7 SCC 1].
The Constitution Bench took a different view. Air India (supra) was
overruled prospectively. It was held that there being no provision under the
Act to direct absorption of the contract labour on abolition thereof, Air
India (supra) did not lay down a good law, stating:
8
“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.
*
119. We are not persuaded to accede to the
contention that a workman, who is not an
outworker, must be treated as a regular employee
of the principal employer. It has been noticed
above that an outworker falls within the
exclusionary clause of the definition of
“workman”. The word “outworker” connotes a
person who carries out the type of work,
mentioned in sub-clause ( C ) of clause ( i ) of
Section 2(1), of the principal employer with the
materials supplied to him by such employer either
9
( i ) at his home, or ( ii ) in some other premises not
under the control and management of the principal
employer. A person who is not an outworker but
satisfies the requirement of the first limb of the
definition of “workman” would, by the very
definition, fall within the meaning of the term
“workman”. Even so, if such a workman is within
the ambit of the contract labour, unless he falls
within the aforementioned classes, he cannot be
treated as a regular employee of the principal
employer.
120. We have also perused all the Rules and
forms prescribed thereunder. It is clear that at
various stages there is involvement of the
principal employer. On an exhaustive
consideration of the provisions of the CLRA Act
we have held above that neither they contemplate
creation of direct relationship of master and
servant between the principal employer and the
contract labour nor can such relationship be
implied from the provisions of the Act on issuing
notification under Section 10(1) of the CLRA Act,
a fortiori much less can such a relationship be
found to exist from the Rules and the forms made
thereunder.”
The summary of the decision was outlined in paragraph 125; the
relevant portions whereof are as under:
“(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:
10
(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 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.
11
(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 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.”
12
The meaning of the expression “industrial adjudicator” was stated in
the following terms:
“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.”
10. Interpretation of the decision of this Court in Steel Authority of India
Limited (supra) vis-à-vis the circulars issued by the Central Government as
also by the appellant fell for consideration in a large number of writ
petitions filed by the concerned workmen of different establishments of the
appellant.
11. We have noticed hereinbefore the decision of the Division Bench of
the Punjab & Haryana High Court rendered in L.P.A. No. 742 of 1993. The
said decision itself was construed differently. Whereas one Division Bench
in its judgment and order dated 22.8.2002 passed in Writ Petition No. 4695
of 1999 titled “Sunil Kumar Vs. FCI & Ors.” opined that the said
Notification dated 9.12.1976 became final vis-à-vis the establishment of
FCI in Sangrur District, as noticed hereinafter, other Benches of the said
13
Court, however, took a different view. We may, however, notice the
Division Bench decision in “Sunil Kumar” wherein it was held:
“The only argument which survives for consideration of
this Court is whether the petitioners are entitled to claim
benefit of the directions contained in sub-para No. (6) of
paragraph No. 121 of the judgment in Steel Authority of
India’s case (supra). Learned counsel for the petitioners
contended that the judgment in relation to Food
Corporation India Class IV Employees Union (Regd.)
Sangrur, has attained finality and has been implemented
and, thus, would fall under the exception carved out by
the Hon’ble Apex Court in clause (2)(b) of paragraph
No. 121 and, therefore, the petitioners are entitled to the
relief limited to the extent that the Corporation would
grant them preferential treatment in terms of sub-para (6)
of paragraph 121 of the judgment. According to him, by
issuing the letters of 1999 and the judgment of the
Letters Patent Bench as well as the Apex Court would
make the judgment enforceable in favour of all
employees of the Food Corporation India, irrespective of
territory, as the judgment would have to be read as a
judgment in rem and not in personem. In other words,
the Food Corporation India being the respondent in these
petitions, is bound to enforce the judgment qua all its
employees and particularly those who are working in the
State of Punjab.”
12. Posing the question as to what would be the meaning of the
expression “if it has otherwise attained finality and/or it has been
implemented” used in Steel Authority of India Limited (supra) and having
noticed the fact that the Notification dated 9.12.1976 stood set aside by the
Constitution Bench of this Court, it was observed that the appellant cannot
14
justify refusing relief to the employees of the same sector of the
Corporation, rather same District, i.e. Sangrur in the following terms :
“It is not disputed that Sunam is a part of District
Sangrur and the petitioners are well within their rights to
claim the benefit of a settled right. It is only
implementation of the earlier judgment as the Union
itself was a party before the High Court in the other
cases.
On the one hand, the workers do not question the
genuineness of the agreement, while on the other, the
management admits implementation of the notification
and it having attained finality as back as in the year
1999. Once these two ingredients are satisfied in light of
the judgment of the Hon’ble Apex Court, denying
limited relief in terms of sub-paragraph (6) of paragraph
No. 121 of the judgment of Hon’ble Apex Court to the
petitioners, may not be permissible.
We have granted relief to the petitioners in these
petitions as it is only direction in furtherance to the
judgment of the Court pending between the parties to the
writ and which has attained finality. While, if we were
to deny relief to the petitioners, it would amount to
obstructing implementation of the judgment which has
attained finality upto the highest court of the land. In
other words, it would tantamount to denial of a settled
relief. This judgment merely adds to the existing order
of the court particularly in view of the fact that the
respondents have admittedly implemented the
notification in question.”
13. Indisputably, the Special Leave Petitions filed thereagainst have been
dismissed by this Court by an order dated 24.2.2003. Appellant thereafter
15
issued two advertisements being dated 13.9.2003 and 20.8.2003 for
enrolment of agencies for provision of security coverage of FCI foodgrains
stored in various godowns/CAP complexes in Haryana and also for the
purpose of security of FCI building at Chandigarh. A Division Bench of the
High Court opined that the workmen were entitled to the benefit of para 125
(b) of the judgment in Steel Authority of India Limited (supra) as
interpreted by the Division Bench of the said High Court in L.P.A. No. 742
of 1993 and Writ Petition No. 4695 of 1999. The advertisements were
quashed. The main judgment was delivered in CWP No. 15484 of 2003.
That case pertained to the State of Punjab.
14. Two other matters including one pertaining to the State of Haryana
came up for consideration before the High Court in CWP No. 16476 of
2003 and CWP No. 16482 of 2003. The main judgment was delivered in
CWP No. 15484 of 2003. The said decision was followed in other cases.
Noticing the decision of this Court in Steel Authority of India Limited
(supra) as contained in para 125(b), it was held:
“The observations aforesaid must accordingly be
applied to the present case. The judgment of this court
in the LPA is dated 21.7.1998. It is conceded that
directions given in that judgment had been implemented
and acted upon and in view of the observations of the
Supreme Court, the petitioners herein thus fall within the
exceptions. We have also been referred to the Division
16
Bench Judgment of this Court passed on 22.8.2002, in
Civil Writ Petition No. 4695 of 1999 Sunil Kumar and
Others vs. F.C.I. and others. The relevant observations
are as under:-
‘Consequently, in view of the discussion
aforestated, we allow this writ petition,
however, limited to the extent that the
petitioners would be entitled to the relief in
the light of the observations made by the
Hon’ble Court in the case of Steel Authority
of India (supra). However, the parties are
left to bear their own costs.’
In the aforesaid judgment after considering the
implications of the judgment of the Supreme Court in
Steel Authority of India’s case (supra), the Division
Bench granted the necessary relief to the petitioners.
We accordingly direct that the petitioners are
entitled to the same relief. The writ petition is allowed
in the above terms. In this view of the matter, the
advertisement Annexure P12 is quashed. The
respondents are directed to take a fresh decision in the
light of the observations aforesaid within a period of four
months from the day a certified copy of the order is
supplied to them.”
Curiously, the appellants have filed only two Special Leave Petitions
bearing No. 22320-21 of 2004 and 22335-36 of 2004 questioning the
decision of the High Court in CWP No. 16476 of 2003 and CWP No. 16482
of 2003 and no Special Leave Petition has been filed against the main
judgment, viz., CWP No. 15484 of 2003.
17
15. Before, however, embarking on the contentions raised by the parties,
we may also notice that Review Petitions had been filed thereagainst which
by reason of an order dated 21.5.2004 were dismissed.
16. The Food Corporation of India Class IV Employees’ Union filed a
Writ Petition praying for the following reliefs:
“i) a writ in the nature of mandamus or any other writ,
order of direction directing the Respondents to
employ the persons mentioned in Annexure P/1 as
watchmen in accordance with the directions of the
Hon’ble Supreme Court of India in Steel Authority
of India’s case reported as AIR 2001 SC 3527 and
in accordance with the directions given by this
Hon’ble Court in Civil Writ Petition No. 4695 of
1999 decided on 22.8.2002 (Annexure P/8)
ii) any other writ, order or direction which in the circumstances, of
this case, this Hon’ble Court deems fit and proper be also
passed;
iii) issuance of advance notices be dispensed with;
iv) filing of certified copies of annexures be dispensed with;
v) cost of the petition be awarded.”
It was furthermore prayed:
“i) that during the pendency of the writ petition, the
Respondents be restrained from employing any
other persons in preference to the persons
mentioned in Annexure P-1;
18
ii) and Respondents be directed to dispense with the
services of the SPOs/Home Guards employed as
watch and ward staff by way of a stop gap
arrangement.”
17. A Division Bench of the said Court dismissed the said Writ Petition
giving liberty to the Union to approach the Labour Court.
18. Special Leave Petition (Civil) No. 2757 of 2006 arose out of the said
order. Raj Kumar and 71 others also filed a Writ Petitioin before the High
Court which was marked as CWP No. 3945 of 2006. Therein a contention
was raised that the petitioners who had been working as watchmen could
not have been asked to appear at a test having regard to the directions issued
by this Court in Steel Authority of India Limited (supra). Reliance therefor
was placed on the decision of the Division Bench of the High Court in CWP
No. 15484 of 2003 as also a decision in Food Corporation of India, Class IV
Employments Union (Regd.) Sangrur v. Food Corporation of India,
Chandigarh, 1999 (1) Punjab Law Reporter 35. The Division Bench opined
that having regard to another Constitution Bench decision of this Court
rendered in Secretary, State of Karnataka and others v. Umadevi and
others [JT 2006 (4) SC 420 : (2006) 4 SCC 1], the Writ Petition is not
maintainable stating :
19
“The various grounds raised by the petitioners
need not be separately dealt with because the Supreme
Court of India in Secretary, State of Karnataka and
others vs. Umadevi and others JT 2006 (4) 420, has
clarified that the right to employment, if it is a part of
right to file, would stand denuded by preferring persons
who had got in casually or who had come through the
back door. It would be consistent with the policy of
Article 39(a) of the Constitution of India, if the Courts
recognized that the appointment to a post in government
service or in the service of its instrumentalities could
only be by way of a proper selection in a manner
recognized by legislation in the context of the provisions
of the Constitution of India.
This quite clearly would not permit FCI to recruit
the petitioners who had until 1999 worked for various
period as watchmen on contract labour. If the petitioners
are seeking benefit of direction given by this Court in
Food Corporation of India, Class IV Employments
Union (Regd.) Sangrur Vs. Food Corporation of India,
Chandigarh (1999-1) Punjab Law Reporter 35 then in
Umadevi’s case (supra), the Supreme Court had also
clarified that a decision which ran counter to the
principles settled by them shall stand denuded of their
effect as precedent.
Consequently, we have no hesitation in holding
that all judgments and directions which run counter to
Umadevi’s case including judgment of this court in Food
Corporation of India, Class IV Employments Union
(Regd.) Sangrur (supra) and any other judgment which
seems to enforce notification of 1976 to re-employ the
contract labour stand denuded of its effect as precedent.”
19. Mr. Ajit Pudussery, learned counsel appearing on behalf of the
appellant would submit that the Division Bench of the High Court
20
misconstrued and misinterpreted the decision of this Court in Steel
Authority of India Limited (supra) as also the decision rendered in the case
of CWP Nos. 4891 and 4887 of 2004 as the fact thereof was confined to the
District of Sangrur only. Each establishment being separate and distinct, the
decision in CWP Nos. 4891 and 4887 of 2004 could not have been applied
in relation to all other godowns.
20. Mr. Dharmendra Kumar Sinha, learned counsel appearing on behalf
of the respondent, on the other hand, would submit that it is incorrect that
the decision of the Punjab & Haryana High Court in CWP Nos. 4891 and
4887 of 2004 was rendered only in relation to the Sangrur District inasmuch
as it was contended that from a perusal of the order passed by the Punjab &
Haryana High Court as also the Circulars issued both by the Central
Government and the Food Corporation of India itself would appear that the
contract labour stood abolished and in that view of the matter the impugned
judgments rendered in CWP No. 15484 of 2003, CWP No. 16482 of 2003
and CWP No. 15694 of 2003 are wholly unassailable.
The learned counsel would contend that the fact of the matters being
wholly undisputed, the High Court has committed a manifest error in
passing the order dated 15.9.2005 in CWP Nos. 4891 and 4887 of 2004
21
which is the subject matter of Special Leave Petition (Civil) No. 2747 of
2006. Furthermore, the right of the workmen having been preserved and
protected in terms of the Constitution Bench decision of this Court in Steel
Authority of India Limited (supra), the High Court manifestly erred in
dismissing the Writ Petition filed by the Raj Kumar & ors. relying on or on
the basis of the Constitution Bench decision in Umadevi (supra).
21. The core question involved in these appeals is the interpretation of
the judgment of this Court in Steel Authority of India Limited (supra) and
in particular clause (b) of para 125 thereof. Air India (supra) has been
overruled prospectively. What has been directed is that despite the said
judgment, if any order had been passed or any action had been taken giving
effect to the Notification dated 9.12.1976, the same would not be called in
question in any Tribunal or Court including the High Court subject to the
condition that the same has otherwise attained finality or had been
implemented.
22. What was therefore required to be implemented or finality attached to
any judgment delivered or action taken, relates to the Notification of the
Central Government dated 9.12.1976. We do not find from the discussions
in any of the judgments of the High Court that the said Notification dated
9.12.1976 had been given effect to. We have noticed hereinbefore that the
22
Central Government upon becoming the appropriate Government in relation
to the appellant – Corporation issued a Notification on or about 28.5.1992.
The validity of the said Notification is not in question. Once the prohibition
purported to have been made by the Central Government in terms of its
Notification dated 9.12.1976 stood withdrawn with effect from 28.5.1992,
the question of prohibiting employment of contract labour in sweeping or
watching buildings owned or occupied by all the establishments of Food
Corporation of India, inter alia, would not arise.
It may be true that the writ petitioner in the writ application, inter alia,
contended that the Corporation had implemented the decision both in
Punjab and Haryana. What was however was sought to be implemented was
the Circular letters issued by the Central Government and/or the Food
Corporation of India itself, which find reference in the order of this Court
dated 30.8.1999 passed in Special Leave Petition (Civil) No. 4605 of 1999.
We may notice Circular No. 2 of 1999 as also Office Memorandum
dated 8.2.1999. By reason of the said Office Memorandum dated 8.2.1999,
the Central Government acting as the ‘appropriate Government’ in respect
of the Food Corporation of India opined that the Notification dated
9.12.1976 is applicable to it and the Regional Labour Commissioner (C)
Chandigarh has initiated action to enforce the said Notification, stating:
23
“In the circumstances, since the jobs in watching of the
buildings owned or occupied by the establishment, far
which the Appropriate Government is the Central
Government, have been prohibited by the notification
dated 9.12.1976, the Food Corporation of India would be
well advised not to engage contract labour in the jobs
specified in the notification.”
The Circular No. 2 of 1999 dated 23.3.1999 issued by the Food
Corporation of India is to the same effect whereby it was directed:
“In view of the above instructions of the Ministry of
Labour, you are requested not to engage the contract
labour in the jobs specified in the notification dated
9.12.76 (copy enclosed). Further it should be assured
that the instructions are strictly followed.
Please acknowledge the receipt.”
What however has not been noticed is the Notification issued under
Section 10(1) by the Central Government itself in the year 1992. The effect
of the Notification issued under sub-Section (1) of Section 10 of the 1970
Act cannot be taken away by a Circular letter issued by the Central
Government or by the appellant itself. The right of the workmen to file a
writ petition for obtaining a writ in the nature of mandamus must be based
on a legal right. This Court in Steel Authority of India Limited (supra)
only recognized an existing right and not any future right.
24
Such a right was to be existing as on 30.8.2001 when the judgment in
Steel Authority of India Limited (supra) was rendered and not thereafter.
Any decision rendered thereafter could not confer a right much less any
other right. In terms of the aforementioned judgment, what has been done is
to recognize such a right and not declaring the same afresh. The law as
enunciated in Steel Authority of India Limited (supra) is very clear. Even
the provisions of 1970 Act are unambiguous and explicit. There has to be a
Notification abolishing contract labour as regards watching of the buildings
or godowns belonging to the Corporation for the purpose of storage of
foodgrains.
23. Whether as on 9.12.1976 the Central Government was the appropriate
Government or not as opined by this Court in Food Corporation of India
Workers’ Union (supra) may not be of much significance as the Central
Government admittedly became the appropriate Government with effect
from 28.1.1986.
24. Clause (b) of Section 125 uses the word ‘establishments’ in plural. A
Corporation therefore may have more than one establishment. We may
notice hereinbefore the differences of opinion amongst the Benches of the
Punjab & Haryana High Court itself.
25
Whereas in the case of ‘Sunil Kumar’ a Division Bench opined that
the establishment which was the subject matter of L.P.A. No. 742 of 1993
was confined to the district of Sangrur, a different view is sought to be
projected before us.
It is, however, evident from the decision in L.P.A. No. 742 of 1993
dated 21.7.1998 that the petitioner therein confined its case to Sangrur. It
was the Sangrur branch of the Union which filed the application. The
learned counsel may be correct that while allowing the Writ Petition, no
distinction was made between one or the other godowns or one or the other
Regional Offices situated either in the State of Punjab or in the State of
Haryana. But as is well known, a judgment must be construed on its own
facts. Application of the said judgment in relation to the Sangrur
establishment of the Corporation is not in dispute. But the question as to
whether in absence of any valid Notification abolishing contract labour the
same could be held to be binding on other establishments or not required
serious consideration. The High Court unfortunately in its judgment did not
pose any such question.
It is interesting to notice that the writ petition filed by the Union and
of the Raj Kumar apparently proceeded on the basis that they were
26
appointed by the Corporation. In the writ petition filed by Raj Kumar and
others, camouflage was pleaded.
What was sought to be contended was that the contractor was supplier
of labour. It was not the contention that the watchmen had been deployed
by the contractor. The gravamen of the contention is that for all intent and
purport they have been appointed by the Corporation itself. It was stated
that the Assistant Manager used to prepare the duty list of the watchmen. It
has categorically been averred:
“That although the petitioners were shown to have been
employed through the contractor yet the petitioners
worked under the direct supervision and control of the
officials of the respondent – Corporation.”
This Court in Steel Authority of India Ltd. v. Union of India & ors.
[2006 (9) SCALE 597] held:
“22. We may reiterate that neither the
Labour Court nor the writ court could determine
the question as to whether the contract labour
should be abolished or not, the same being within
the exclusive domain of the Appropriate
Government.
23. A decision in that behalf undoubtedly is
required to be taken upon following the procedure
laid down in Sub-section (1) of Section 10 of the
27
1947 Act. A notification can be issued by an
appropriate Government prohibiting employment
of contract labour if the factors enumerated in
Sub-section (2) of Section 10 of the 1970 Act are
satisfied.
24. When, however, a contention is raised that
the contract entered into by and between the
management and the contractor is a sham one, in
view of the decision of this Court in Steel
Authority of India Limited (supra), an industrial
adjudicator would be entitled to determine the said
issue. The industrial adjudicator would have
jurisdiction to determine the said issue as in the
event if it be held that the contract purportedly
awarded by the management in favour of the
contractor was really a camouflage or a sham one,
the employees appointed by the contractor would,
in effect and substance, be held to be direct
employees of the management. The view taken in
the Steel Authority of India Limited (supra) has
been reiterated by this Court subsequently. [See
e.g. Nitinkumar Nathalal Joshi and Ors. v. Oil and
Natural Gas Corporation Ltd. and Ors. and
Municipal Corporation of Greater Mumbai v. K.V.
Shramik Sangh and Ors.”
The writ petition, therefore, was not maintainable.
Out attention, however, has been drawn to the fact that the direction
of the High Court in L.P.A. No. 742 of 1993 was applicable both to Punjab
as well as Haryana which had not been denied or disputed. We may notice
the following contention raised in the petition in this regard.
28
“This direction it is submitted is applicable both to
Punjab as well as Haryana as both fall within the
jurisdiction of this Hon’ble Court.”
The said statement therefore was primarily made for invoking the
jurisdiction of the High Court. In any event, if a decision is not applicable as
has been found by one Bench of the High Court, the same would not
become applicable only because the Corporation failed to rebut the said
contention. It is a question of jurisdiction.
25. The writ petitions of the workmen do not disclose the names of the
contractors. It has not been disclosed as to whether the contractors were
registered or not. What are the terms and conditions of employment have
also not been stated. On and from which date each individual was
appointed and by which contractor and in respect of which establishment
has not been disclosed.
The writ petition filed by the Raj Kumar and others categorically
show that the averments made therein proceeded on the basis that the actual
employer was the Corporation. If that be so, having regard to the decision
of this Court in Steel Authority of India Limited (supra), the writ petition
29
could not have been entertained. No authority or forum has scrutinized the
records. The registers maintained by the so-called contractors had not been
scrutinized. It was obligatory on the part of the High Court to take recourse
thereto. The benefit of any order or action taken will be a reputation to
State must have a direct nexus with the Notification dated 9.12.1976, that
9.12.1976 Notification ceased to have any application, question of its
attained finality in law would not arise.
26. Our attention has been drawn to the Order dated 23.1.2004 passed in
CWP No. 15484 of 2003 wherein it was recorded:
“It is the conceded position that the matter was taken by
the Food Corporation of India in a special Leave Petition
before the Supreme Court which too was dismissed on
30.08.1999. It is further conceded that the directions of
the Division Bench were subsequently complied with by
the Food Corporation of India.”
What was conceded was the implementation of the order in relation to
Sangrur District and not others. We therefore do not find any illegality in
the order dated 15.9.2005 passed in CWP No. 4891 of 2004. So far as the
order passed in CWP No. 3945 of 2006 is concerned we again do not find
any illegality therein apart from the fact that on their own showing, the writ
petition was not maintainable.
30
27. Keeping in view the decision of this Court in Steel Authority of
India Limited (supra), it is evident from the writ petition itself that another
right, viz., a right under Section 25(h) of the Industrial Disputes Act, 1947
had been claimed. The benefit of Steel Authority of India Limited (supra)
was sought to be invoked without stating the requisite foundational facts
therefor.
They were asked to appear in the written test. They were asked to do
so for judging their eligibility. They must know how to read and write.
They were required to show that they were in a position to perform their
duties as watchmen. Their contention that they should be exempted from
appearing at the written test was wholly unfounded. The High Court may
not be correct in following the Constitution Bench decision of this Court in
Umadevi (supra), but there cannot be any doubt whatsoever that the
ultimate conclusion of the High Court is correct; particularly, when it had
categorically been stated in the written reply of the Corporation that the
recruitment for the post provided for a test so that it could be determined as
to whether the candidates were literate or not. We may furthermore notice
that in para 3 of the said written reply it was stated by the Corporation :
“…Some persons were employed as Watchmen/security
guards through contractors/security agencies. It is wrong
31
that the appointment was shown to be through
contractor. The correct position is that the said workmen
were employees of the contractor. No watchman who
was the employee of the contractor was given
appointment letter by the answering respondent.
Whether the contractor concerned issued any
appointment letter or not in the knowledge of the
answering respondent. This fact can be disclosed by the
contractor.”
[See Bharat Heavy Electric Ltd. v. E.S.I. Corporation, AIR 2008
SCW 1494]
A series of disputed questions of fact therefore was raised. Even on
that premise, the writ petition was, thus, not maintainable.
28. We therefore allow the appeals arising out of Petition for Special
Leave to Appeal (Civil) Nos. 22320-22321 of 2004 and 22335-22336 of
2004 and dismiss the appeals arising out of Petition for Special Leave to
Appeal (Civil) Nos. 1742 of 2008 and 2757 of 2006.
29. In view of the fact that the order dated 23.1.2004 passed in CWP No.
15484 of 2003 is not in question, the same must be held to have been
32
attained finality. In the facts and circumstances of the case, however, there
shall be no order as to costs.
……………..…………J.
[S.B. Sinha]
.………………….……J.
[V.S. Sirpurkar]
New Delhi
May 16, 2008