Judgment · High Court · 2012

The facts of the case may be briefly noted.

#3. Petitioners claim to be working as casual labourers of BRPL, a G overnment of India undertaking, belonging to nearby villages. According to the p etitioners, they were engaged as casual labourers in BRPL on various dates comme ncing from 16-11-1981 and continued their engagement for various periods till th e year 1998. Petitioners had discharged their duties diligently and to the satis faction of the concerned authority of BRPL. Petitioners had worked as casual lab ourers in BRPL in different departments under different contractors but continuo usly. In the course of their engagements petitioners started taking orders from the management of BRPL directly. Distribution and allotment of work to the petit ioners were controlled and regulated by the BRPL authorities. Their service in t he BRPL was continuous and the nature of work performed by them were perennial a nd permanent. For all practical purpose, they were treated to be in regular empl oyment and consequently, deductions were made from their wages as contributions to Provident Fund Scheme etc.

#4. A review committee was set up by BRPL to consider abolition or r egulation of contract labour. The recommendations of the review committee was pr imarily to reduce engagement of contractual labour.

#5. Alarmed, petitioners and a few others filed a writ petition befo re this Court seeking a direction to BRPL to appoint them on regular basis again st the posts in which their services were extracted as contract labour and not t o give effect to the recommendations of the review committee. The said writ peti tion was registered and numbered as Civil Rule No.2915/1996. On 19-06-1997, this Court directed the Regional Labour Commissioner (Central), Guwahati to mak e an enquiry with regard to contract labour in BRPL with special reference to th e petitioners.

#6. According to the petitioners, BRPL authorities did not cooperate with the enquiry. Ultimately, the Regional Labour Commissioner (Central) compl eted the enquiry and submitted report dated 17-12-1997. The report indicated tha t the petitioners were engaged in perennial and permanent nature of jobs and tha t the petitioners worked under the control and supervision of BRPL authorities. In the meanwhile, BRPL filed writ appeal against the order of th 7. e Single Bench dated 19-06-1997, which was registered as Writ Appeal No.392/1997 . By the judgment and order dated 17-12-1997, the Division Bench held that the v ery foundation of the direction given by the Single Bench was not present. Accor dingly, order dated 19-06-1997 was setaside and quashed. Petitioners filed special leave petition before the Hon’ble Supr 8. eme Court against the order of the Division Bench. The Hon’ble Supreme Court dis posed of the special leave petition by order dated 15-03-1999 with the observati on that the writ petition pending before the Single Bench may be decided on its own merit without being influenced by the observations made by the Division Benc h. It was further observed that if the petitioners could persuade learned Single Judge to look into the report of Regional Labour Commissioner (Central), it wou ld be open to him to do so in accordance with law.

#9. Civil Rule No.2915/1996 was finally heard and disposed of by the learned Single Judge vide the judgment and order dated 30-08-2001. Observing th at consideration of the report by the concerned authority would in no way affect or prejudice the case of either party, learned Single Judge directed that the a ppropriate Government i.e. the Central Government should proceed in accordance with law and after consultation with the Central Board, take decision in the mat ter. It was ordered that while taking the decision, the Central Government may c onsider the report of the Regional Labour Commissioner (Central) to appreciate t he facts. To enable such decision to be taken, the writ petitioners were directe d to file representation before the Central Government under section 10 of the C ontract Labour (Regulation and Abolition) Act, 1970 (Act). In terms of the said judgment, petitioners submitted representat 10. ion to the Secretary to the Government of India, Ministry of Labour on 28-09-200 1.

#11. stry of Labour (respondent No.2) passed the impugned order dated 04-03-2004. Thereafter, the Under Secretary to the Government of India, Mini

#12. BRPL and its authorities (respondents 3 to 6) have filed counter affidavit. They have stated that the petitioners were not engaged as casual lab ourers by BRPL but were engaged as contract labourers by various contractors for carrying out works awarded to such contractors. BRPL had no role in the matter of engagement and discharge of contract labourers like the petitioners. Responsi bility of BRPL as principal employer was to ensure payment of minimum wages and other statutory benefits to the contract labourers so long works awarded to the contractors subsisted and they were engaged by the respective contractors. The c laim of the petitioners that the nature of works performed by them were perennia l and permanent has been denied. According to BRPL, there is no justification fo r abolition of contract labour in the job/work of transportation and handling of materials in stores and ware-houses in BRPL and no notification under section 1 0 of the Act for abolition of contract labour has been issued by the appropriate Government. BRPL has justified the impugned order dated 04-03-2004.

#13. Heard Mr. K.P. Sarma, learned Senior Counsel assisted by Mr. H.D as, learned Counsel for the petitioners. Also heard K.N. Choudhury, learned Seni or Counsel assisted by Mr. R. Dubey, learned Counsel for the BRPL (respondents 3 to 6) as well as Mr. S. Chakraborty, learned Central Government Counsel, who ha s produced the record in original.

#14. Mr. Sarma, learned Senior Counsel for the petitioners assailing the validity of the impugned order dated 04-03-2004 has submitted that there wer e two reports in favour of the petitioners, one by the Regional Labour Commissio ner (Central) and the other by the Central Advisory Contract Labour Board, both being expert bodies. Inspite of that, the Central Government, which is the appro priate Government in the present case, decided not to prohibit employment of con tract labour in the job/work of transportation and handling of materials in BRPL , which is not justified. According to Mr. Sarma, there was no effective consult ation by the Central Government with the Central Board within the meaning of sec tion 10(1) of the Act, which has vitiated the impugned order. He asserts that th e impugned decision is perverse and grossly unjust. He, therefore, prays for set ting aside of the impugned order and for issuance of appropriate direction to BR PL to treat the petitioners as in regular employment. In support of his submissi ons, learned Senior Counsel has referred to and relied upon the following decisi ons :- 1993 (II) LLJ 1179 (Bombay) Lalbavta Hotel and Bakery Mazdoor Union and Another -Vs- Bharat Petroleum Cor poration Limited and others. 1995 Supp. (3) SCC 579 All India General Mazdoor Trade Union -Vs- Delhi Administration and others. AIR 1995 SC 1617 National Federation of Railway Porters, Vendors and Bearers -Vs- Union of India and others. (2001) 4 SCC 498 Barat Fritz Werner Limited -Vs- State of Karnataka 2000 (1) LLJ 1050 (SC) Railway Parcel and Goods Handling Mazdoor Union and others -Vs- Union of India a nd others

#15. Mr. K.N. Choudhury, learned Senior Counsel appearing for BRPL on the other hand submits that there is no infirmity in the impugned order dated 0 4-03-2004. In view of the provision contained in sub-section (2) of section 10 o f the Act, the Central Government was justified in not accepting the recommendat ions of the Central Board. Referring to the report of the Regional Labour Commis sioner (Central), he submits that the recommendation of the Commissioner was its elf contrary to the details of work of the petitioners recorded by him, which in dicated significant and considerable breaks in the periods of engagements of the petitioners. Asserting that the writ petition lacks merit, he seeks dismissal o f the same. In support of his submissions, Mr. Choudhury has referred to and rel ied upon the following decisions :- R.K. Panda and others -Vs- Steel Authority of India and others (1994) 5 SCC 304 (2001) 7 SCC 1 Steel Authority of India and others -Vs- National Union Water-Front Workers and others Mr. S. Chakraborty, learned Central Government Counsel has produ 16. ced the record in original. He also supports the impugned order dated 04-03-2004 , contending that the said order was passed on due consideration of all relevant factors.

#17. The submissions made have been considered.

#18. Before proceeding further, let us examine section 10 of the Act, which is the core provision of the Act. For better appreciation, the same is qu oted hereunder:- (cid:28)10. Prohibition of employment of contract labour- (1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with t he Central Board or, as the case may be, a State Board, prohibit, by notificatio n in the Official Gazette, employment of contract labour in any process, operati on or other work in any establishment. (2) Before issuing any notification under sub-section (1) in relation to an esta blishment, the appropriate Government shall have regard to the conditions of wor k and benefits provided for the contract labour in that establishment and other relevant factors, such as - (a) whether the process, operation or other work is incidental to, or necess ary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient d uration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) ent or an establishment similar thereto; Whether it is done ordinarily through regular workmen in that establishm (d) kmen. whether it is sufficient to employ considerable number of whole-time wor Explanation- If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shal l be final. (cid:29)

#19. Section 10 has to be read and understood in the context of the o verall scheme of the Act. The Act has two main objectives- (1) to prohibit emplo yment of contract labour, and (2) in case such prohibition is not possible, to r egulate the working conditions of the contract labour. Section 10 empowers the a ppropriate Government (in this case the Central Government) after consultation w ith the Central Board i.e. the Central Advisory Contract Labour Board, to prohib it employment of contract labour in any process, operation or other work in any establishment by notifying in the official gazette. Establishment has been defin ed under section 2(e) of the Act to mean any office or department of the Governm ent or a local authority or any place where any industry, trade, business, manuf acture or occupation is carried on. Before issuing any such notification, the ap propriate Government shall consider the conditions of work, benefits extended to the contract labour and other relevant factors as mentioned in sub-section (2) of section 10. Consultation with the Central Board is mandatory and has to be me aningful.

#20. This Court while disposing of the earlier writ petition, had dir ected the Central Government to consider the representation of the petitioners u nder section 10 of the Act and while doing so, to consider the report of the Reg ional Labour Commissioner (Central).

#21. Though in the report of the Regional Labour Commissioner (Centra l) it is stated that the petitioners were engaged by the BRPL in perennial and p ermanent nature of jobs and that the petitioners worked under the BRPL authoriti es, the engagement details of the petitioners which formed part of the report de picted a different picture. There were huge gaps in the periods of engagement of the petitioners which showed that they were not in continuous engagement. For e xample, petitioner No.1 Shri Thiren Ch. Roy worked from 07-10-1986 to 06-04-1987 . Thereafter, he was engaged from 08-09-1988 to 30-09-1988, which showed that th ere was a gap of more than 5 months in between. There were similar gaps between the other periods of engagement. This pattern is repeated in case of other petit ioners as well. Infact, in case of petitioner No.2 Shri Ananda Chandra Barman, b etween the period of first engagement from 11-03-1980 to 30-09-1981 and the seco nd period of engagement from 10-03-1986 to 10-03-1987, there was a gap of about 5 years.

#22. When the relevant papers were placed before the Central Board, i t constituted a committee to go into the question of abolition of contract labou r system in the establishment of BRPL. The committee recommended that the jobs i n which the petitioners were engaged may be prohibited under section 10 of the A ct. The Central Board accepted the recommendations of the committee and suggeste d to the Central Government prohibition of employment of contract labour in the job/work of materials handling in stores and ware-house department of BRPL. The Central Government examined the report of the Regional Labou 23. r Commissioner (Central) as well as the recommendation of the Central Board and arrived at the following tentative conclusion:- (cid:28)The material handling department is the backbone of the business activity of th e establishment of the Bongaigaon Refinery & Petrochemicals Ltd. and therefore, the job/work of material handling in the department is necessary for the marketi ng business of the establishment though it may not have a direct nexus with the core activity of the establishment that is refining of crude oil and their produ ction. Section 10(2)(a) of the Act is thus fulfilled. The Committee has come to the conclusion that the jobs are of continuous and permanent / perennial in natu re for the last about 10 years as the workers continued to work for pretty long duration between 80-96 inspite of contract being awarded to different contractor s from time to time. The length of service of the petitioners determined by RLC( C) Guwahati, however, shows that there has been break in service rendered by the petitioners ranging from 6 months to 5 years during the period 80-96. In view o f this, it is not possible to come to a definite conclusion that the work is of permanent / perennial nature. The management’s submission that volume of work fl uctuates so much so that on a particular day there is no work or hardly any work seems possible. The condition of Section 10(2)(b) does not appear to be met. Th e Committee has found that 6 permanent material handling personnel have been emp loyed by the establishment though actually none of them are performing material handling work. As permanent employees of the company do not perform material han dling work and the contention of the management that similar work is done by IOC L on contract basis has not been refuted, Section 10(2)(c) is thus not satisfied . The Committee / Board has not rejected the management’s contention that the wo rk activities are only for part of the day and as the volume of work also fluctu ates, on a day to day basis, the work does not require employment of considerabl e number of whole time workmen. Section 10(2)(d) is therefore, not fulfilled. Th e workers are being paid more than the minimum wages and are getting benefits of PF, ESI, bonus, weekly off with wages and 15 days annual leave. There, thus doe s not appear to be any exploitation of contract labour (cid:29). 24. ned order dated 04-03-2004, the relevant portion of which is quoted hereunder:- After due consideration, the Central Government passed the impug (cid:28) In pursuance of the recommendations of the Board, the matter has been consider ed in detail by the Central Government having regard to the conditions of work a nd benefits provided to contract labour and other relevant factors enumerated in sub-section (2) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. It has been decided not to accept the recommendations of the Board f or the reason that the work rendered had not been continuous and there were brea ks in service and hence non-perennial in nature, the work fluctuates day to day; and the permanent workers do not perform the job/work in which abolition has be en sought. The conditions of section 10(2) have thus not been fulfilled. Accordi ngly it has been decided not to prohibit employment of contract labour in the jo bs/works of transportation and handling of materials in the establishment of Bon gaigaon Refinery and Petrochemical Limited, Dhaligaon, District- Bongaigaon, Ass am for which the ’appropriate government’ under the Contract Labour (Regulation and Abolition) Act, 1970 is the Central Government (cid:29).

#25. From a perusal of the impugned order it is seen that the Central Government has decided not to issue the prohibition notification under section 10 of the Act in respect of job/work of transportation and handling of materials in the establishment of BRPL for the following reason:- (i) the works rendered were not continuous, there were breaks in between and hen ce, non-perennial in nature, (ii) work fluctuates day to day, and (iii) permanent workers do not perform the job/work in respect of which abolitio n has been sought for. Thus, the Central Government came to the conclusion that the conditions of secti on 10(2) were not fulfilled, therefore prohibition notification could not be iss ued. The above findings of fact have been arrived at by the Central G 26. overnment on due consideration of the relevant factors, which have been noticed above. The consideration carried out cannot be said to be arbitrary, unreasonabl e or irrational. It was carried out after due consultation with the Central Boar d. Consultation doesn’t mean that the Central Government is bound by the recomm endation of the Central Board. As has been held by the Apex Court in Barat Fritz Werner Ltd. (supra), the appropriate Government is required to consult the Boar d and it does not mean that the Government is bound by the advice given by the B oard. All that is required is that the Government should consult the Board. I ha ve carefully perused the record produced by learned Central Government Counsel. On perusal thereof, I am satisfied that there was consultation by the Central Go vernment with the Board. Petitioners have not been able to show any convincing material t 27. o controvert the findings of fact arrived at by the Central Government. This Cou rt exercising jurisdiction under Article 226 of the Constitution of India would not like to enter into an adjudication on such findings of fact arrived at by t he Central Government. 28. As has been held by the Apex Court in the case of R.K.Panda (sup ra), the question whether the contract labourers have become employees of the pr incipal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen is a quest ion of fact and has to be established by the contract labourers on the basis of requisite material. It is not possible for the High Court while exercising writ jurisdiction to decide such questions. At what point of time a direct link is es tablished between the contract labourers and the principal employer, eliminating the contractor from the scene is a matter which has to be established on materi als produced before the competent Court for adjudication, which normally is the Labour Court or the Industrial Tribunal under the Industrial Disputes Act, 1947.

#29. Elaborating further, a Constitution Bench of the Hon’ble Supreme Court in the case of Steel Authority of India Limited (supra) held that in an i ndustrial dispute brought by any contract labour with regard to conditions of se rvice, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to pro duce 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 / camoufla ge to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. Explaining use of the expression (cid:28)industrial adjudicator (cid:29), the Apex Court held that determination of questions relating to p rohibition of contract labour would require enquiry into disputed questions of f act which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution and that in such cases, the appropriate a uthority to go into those issues will be the Industrial Tribunal / Court whose d etermination will be amenable to judicial review.

#30. Without much elaboration, it can be said that the decisions reli ed upon by the learned Counsel for the petitioners are all distinguishable factu ally and, therefore, cannot be of much assistance to the petitioners. For exampl e, the directions for permanent absorption were given in National Federation of Railway Porters (supra) as the report of the Assistant Labour Commissioner and h is findings recorded therein remained unrebutted.

#31. ided on the contextual facts of that case. Law cannot be applied in a vacuum. Each case will have to be dec

#32. Therefore, in view of the discussions made above, this Court fin ds no good ground to interfere with the impugned order dated 04-03-2004 and to a ccede to the prayer made by the petitioners. Writ petition is adjudged as being without merit and is accordingly dismissed. However, there shall be no order as to cost.

#33. al Government Counsel be returned back to him. The original record produced by Mr.S. Chakraborty, learned Centr