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TMI Blog1996 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... tching of the building owned ad occupied by the appellant. The Contract Labour (Regulation and Abolition) Act, 1970 (for Short, the Act ) regulates registration of the establishment of principal employer, the contractor engaging and supplying the contract labour in every establishment i which 20 or more workmen are employed o ay day of the preceding 12 months as contract labour. The appellant had obtained on September 20,1971 a certificate of registration form Regional Labour Commissioner (Central) under the Act. The Central Government, exercising the power under Section 10 of the Act, on the basis of recommendation and in consultation with the Central Advisory Board constituted under Section 10(1) of the Act, issued a notification on December 9,1976 prohibiting employment of contract labour on and from December 9,1976 for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishment in respect of which the appropriate government under the said act is the Central Government . However, the said prohibition was not apply to outside cleaning and other maintenance operations of multistoreyed building where such cleaning or maintenance cannot be carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, contended that the term appropriate Government under section 2 (1)(a) of the Act, as on December 9, 1976, was the State Government. The appellant was not carrying on the business as an agent of the Central Government nor the Central Government was its principal. This Court, in Heavy Engineering Majdoor Union v. The State of Bihar Ors. [ (1969) 3 SCR 995 (for short, the Heavy Engineering case ], had interpreted the phrase the appropriate Government and held that the Central Government was not the appropriate Government under the ID Act. The ratio therein was followed in Hindustan Aeronautics Ltd. v. The Workmen Ors. [(1975) 4 SCC 679] and Rashtriya Mill Mazdoor Sangh v. Model Mills Nagpur Anr. [1984 Supp. SCC 443] and food Corp. of India Workers Union v. Food Corp. Of India Ors.[(1985) 2 SCC 294], It is thus firmly settled law that the appropriate Government until the Act was amended with effect from January 28,1986. Therefore, the view of the High Court that the appropriate Government is the Central Government is not correct in law. The learned Attorney General Further argued that the interpretation of this Court in Heavy Engineering case has stood the test of tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be entitled to satisfy the Industrial Court that there was no need to absorb all the contract labour but only smaller number is required as regular employees. On recording finding in that behalf, the industrial court would make his award which would be enforceable by the workmen. This court in Gujarat Electricity Board v. Hind Mazdoor Sabha Ors. [(1995) 5 SCC 27] had pointed out the lacuna in the act and given directions of the manner in which the industrial action has to be take on abolition of the contract labour system. The High Court, therefore, was not right in its direction that the workmen require to be absorbed in the respective service of the establishment of the appellant. it is also contented that the appellant, though initially was a statutory Corporation under the IAAI Act, on its abolition and constitution as a company, is entitled to regulate its own affairs on business principal and the direction for absorption would lead to further losses in which it is being run. The learned Solicitor General has, therefore, submitted a scheme under which its subsidiary, namely, Air Cargo Corporation would take the workmen ad absorb them into service, subject to the above regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular, after the development of law of other authority or instrumentality of the State under Article 12 of the Constitution, the ratio in Heavy Engineering case is no longer good law. In Hindustan Aeronautics Ltd. and Food Corp of India cases, this court had not independently, laid any legal preposition. Food Corporation of India case was considered with reference to the regional warehouses of the FCI situated in different States and in this functional perspective, this court came to the conclusion that the appropriate Government would be the State Government. This Court in Sukhdev Singh Ors. v. Bhagatram Sardar Singh Anr. [(1975) 3 SCR 619]; R.D. Shetty v. Airport Authority Ors. [(1979) 3 SCR 1014]; Managing Director, U.P. Warehousing Corporation Anr. v. V.N. Vajapayee [(1980) 2 SCR 733]; Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc. [(1981) 2 SCR 79] - wealth of authorities - had held that settled legal position would lend aid to interpret the phrase appropriate Government in public law interpretation; under the Act the Central Government is the appropriate Government to take a decision under section 10 of the Act to abolish the contract labour system. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the ID Act, if applicable. In either event, the right to absorption assures to the workmen the right to livelihood as economic empowerment, right to social justice and right to dignity of person which are the concomitants of social democracy. These facets of constitutional rights guaranteed to the workmen as their Fundamental Rights should be kept in view in interpreting the expression appropriate Government enjoined under Section 10(1) of the Act and other regulatory provisions in relation to the employment of the workmen. Therefore, the view in Dena Nath s case is not correct is law and requires to be overruled. There is no hiatus in the operation of the Act on abolition of the contract labour system under Section 10. The object and purpose of the Act are twofold. As long as the work in an industry is not perennial, the Act regulates the conditions of the workmen employed through the contractor registered under the Act. The services of the workmen are channelised through the contractor. The principle employer is required to submit the number of workmen needed for employment in its establishment who are supplied by the contractor, an intermediary; but the primary responsibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the appellants who are unlikely to espouse their dispute. Therefore, the methodology suggested in Gujarat Electricity Board s case, by another bench of two Judges, apart from being unworkable and incongruous, is not correct in law. On abolition of the contract labour, the principle employer is left with no right but duty to enforce the notification, absorb the workmen working in the establishment on contract basis transposing them as its regular employee with all consequential rights and duties attached to a post on which the workmen working directly under the appellant was entitled or liable. The Act gave no option to pick and choose the employees at the whim of the principal employer. The view of the High Court, therefore, is correct to the extent that the notification should be enforced with effect from date of abolition, namely, December 9,1976. The subsequent amendment with effect from January 28,1986 is only a recognition of ad superimposition of preexisting legal responsibility of the Central Government as the appropriate Government. It does not come into being only from the date the amendment came into force. Consequently, the workmen, namely, the members of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablishment the Government of the State in which that other establishment is situate. Section 2(a)(i) of the ID Act defines appropriate Government thus : ... Unless there is anything repugnant in the subject or context, appropriate Government means, in relation to any Industrial Disputes concerning any industry carried on by or under the authority of the Central Government or by a railway company for concerning any such controlled industry as may be specified in this behalf by the Central Government... and India Airlines and Air India Corporation established under Section 3 of the Air Corporation Act 1953 are enumerated industries under Amendment Act 46 of 1982 which came into force with effect from 21.8.1984. In Heavy Engineering case (supra), industrial dispute was referred under Section 10 of the ID Act by the State Government of Bihar to the Industrial Tribunal for its adjudication. The competency of the State Government was questioned by the Mazdoor Union contending that the appropriate government to refer the dispute was the Central government. The High Court negatived the contention and had upheld the validity of reference, On appeal, a Bench of two Judges had h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government exercised the power to give a direction under section 16 and the management is subjected to regulatory control. It is seen that the above decision was reached in the context in which the payment of bonus was to be determined and paid to the employees by the department. In Food Corporation of India s case (supra), a Bench of two Judges was to consider whether regional office of the Food Corporation of India and the warehouses etc. were an establishment within the meaning of Section 2(i)(e) of the Act and whether FCI is an industry carried on by or under the authority of the Central Government. Following the aforesaid three decisions, it was held that a bare reading of the definition under the Act means inter alia any place, any industry, trade, business, manufacture, warehouse, godown or the place set up by the corporation where its business is carried on. Though for the purpose of industrial disputes the Central Government is an appropriate Government in relation to Food Corporation of India, its establishment at various places is not under the control of the Government of India. Therefore, appropriate Government under the Industrial Disputes Act is the state Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The individual interest can, therefore, no longer stem the forward flowing tide and must, of necessity, give way to the broader public purpose of establishing social and economic democracy in which every workmen realises socioeconomic justice assured in the preamble, Articles 14,15 and 21 and the Directive Principles of the Constitution. The founding fathers of the Constitution, cognizant of the reality of life wisely engrafted the Fundamental Rights and Directive Principles in Chapters III and IV for a democratic way of life to every one in Bharat Republic, the State under Article 38 is enjoined strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life and to minimise the inequalities in income and endeavour to eliminate the inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations, Article 39(a) provides that the State shall direct its policies towards securing the citizens, men and women equally, the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspiration of the society in establishing the egalitarian of the society in establishing the egalitarian social order. Therefore, the concepts engrafted in the statute require interpretation from that perspectives, without doing violence to the language. Such an interpretation would elongate the spirit and purpose of the Constitution and make the aforesaid rights to the workmen a reality lest establishment of an egalitarian social order would be frustrated and Constitutional goal defeated. Keeping this broad spectrum in view, let us consider whether the interpretation given in Heavy Engineering case is consistent with the scheme and spirit of the Constitution. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal Ors. [(1967) 3 SCR 377, a Constitution Bench, composing the learned judges who formed the Bench in Heavy Engineering case, considered the issue interpretation and Bhargava, J. speaking on behalf of the majority, had held that other authority within the meaning of Article 12 of the Constitution need no necessarily be an authority to perform governmental functions. The expression other authority is wide enough to include within it every authority created by a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentalities or agencies of natural and juridical person. There is a distinction between State action and private action. There is nothing strange in the notion of the State acting through a Corporation and making it an agency or instrumentality of the State with an advent of the welfare State. The framework of the civil service administration became increasingly insufficient for handling new tasks which were often of a specialised and highly technical character. Development of policy of public administration, through separate Corporations which would operate largely according to business principles and separately accountable though under the Memorandum of Association or Articles of Association become the arm of the Government. Though their employees are not civil servants, it being a public authority and State Corporation, therefore, is subject to control of the Government. The public corporation, being a corporation of the State, is subject to the constitutional limitation as the State itself. The governing power, wherever located, must be subject to the fundamental constitutional limitations. The Court, therefore, had laid the test to see whether the Corporation is an agency or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector should be secured as much as the independence and integrity of the Civil servants. it was, therefore, held that a writ would lie against the warehousing corporation. In Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc. [(1961) 2 SCR 79], a Constitution Bench was to consider whether a Society registered under the J K Societies Registration Act would be a State under Article 12 of the Constitution amenable to the reach of the writ jurisdiction. The Constitution Bench laid the following tests to determine whether the entity is an instrumentality or agency of the State : (1) if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency or Government ; (2) where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation being impregnated with governmental character; (3) it must also be relevant factor whether the corporation enjoys monopoly status which is State conferred of State protected; (4) existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. v. Union of India Ors. [(1984) 2 SCC 141], ICAR, a Society registered under the Societies Registration Act, was held an adjunct of the Government of India. Its budged was voted as part of the budget of the Ministry of Agriculture. It was held that it was the State under Article 12 and was amenable to jurisdiction under Article 32 of the Constitution. The Project and Equipment Corporation of India which is subsidiary owned by State Trading Corporation was held by this Court in A.L. Kalra v. Project and Equipment Corpn. of India Ltd. [(1984) 3 SCR 316], to be an agency of the Government within the meaning of Article 12 of the Constitution of India. In Central Inland Water Transport Corpn. Ltd. Anr. v. Brojonath Ganguly Anr. [(1986) 3 SCR 156], a Government Company incorporated under Companies Act was held to be an instrumentality or agency. In this case, this court construed the Fundamental rights under Articles 14 to 17, the Director Principle under Article 38,41 and 42, the Preamble of the Constitution and held that the River Steam Navigation Co. Ltd, was carrying on the same business as the corporation was doing. A scheme of arrangement was entered into between the corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are amenable to public accountability for health and growth of society, housing construction or building activities, by private or statutory body rendering service within the meaning of Section 2(0) of the said Act. In Star Enterprises Ors. v. C.I.D.C. of Maharashtra Ltd. [(1990) 3 SCR 280], it was held that the State or its instrumentality entering into commercial field must act in consonance with the rule of law. In paragraph 10, it was held the judicial review of administrative action has become expansive and its scope is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded, State activity too is becoming fast perversive as the State has descended into the commercial field and joint public sector undertaking has grown up. The State action must be justified by judicial review, by opening up of the public law interpretation. Accordingly, it was held that the action of company registered under the Companies Act was amenable to judicial review. In LIC of India Anr. v. Consumer Eduction Research Centre Ors. [(1995) 5 SCC 482], it was held that in the contractual field of State action, the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning fraud in administrative law. It has been aptly observed in Khwaja vs. Secretary of State for the Home Department Ors. [(1983) 1 All. E.R. 765] that it is dangerous to introduce maxims of common law as to the effect of fraud while determining fraud in relation to the statutory law . In Khwaja s case (supra), it was held despite the wealth of authority on the subject, there is nowhere to be found in the relevant judgments (perhaps because none was thought necessary) a definitive exposition of the reasons why a person who has obtained leave to enter by fraud is an illegal entrant. To say that the fraud vitiates the leave or that the leave is not in accordance with the Act is, with respect, to state a conclusion without explaining the steps by which it is reached. Since we are here concerned with purely statutory law, I think there are dangers in introducing maxims of the common law as to the effect of fraud on common law transaction and still greater dangers in seeking to apply the concepts of void and voidable . In a number of recent cases in your Lordships House, it has been pointed out that these transplants from the field of contract do not readily take root in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial activities carried on by a Corporation established by or under the control of the appropriate Government having protection under Articles 14 and 19 [2], it is an instrumentality or agency of the State. [4] The State is a service Corporation. It acts through its instrumentalities, agencies or persons natural or juridical. [5] The governing power, wherever located, must be subject to the fundamental constitutional limitations and abide by the principles laid in the Directive Principles. [6] The framework of service regulations made in the appropriate rules or regulations should be consistent with and subject to the same public law principles and limitations. [7] Though the instrumentality, agency or person conducts commercial activities according to business principles and are separately accountable under their appropriate bye-laws or Memorandum of Association, they become the arm of the Government. [8] The existence of deep and pervasive State control depends upon the facts and circumstances in a given situation and in the altered situation it is not the sole criterion to decide whether the agency or instrumentality or persons is by or under the control of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on concession. In R.B. Shetty s case, the need to dwelve indepth into this aspect did not arise but reference was make to the premise of private law interpretation which was relegated to and had given place to constitutional perspectives of Article 14 which is consistent with the view we have stated above. In Food Corporation of India s case, the Bench proceeded primarily on the within the jurisdiction of different State Governments which led it to conclude that the appropriate Government would be the State Government. In the light of the above principles and discussions, we have no hesitation to hold that the appropriate Government is the Central Government from the inception of the Act. The notification published under Section 10 on December 9,1976, therefore, was in exercise of its power as appropriate Government. So it is valid in law. The learned Solicitor General is not right in contending that the relevant factors for abolition of the contract labour system in the establishment of the appellant was not before the Central Advisory Board before its recommendation to abolish the contact labour system in the establishment of the appellant. The learned Attorney General has plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are used in defining workmen as contract labour being employed in connected with the work of an establishment indicate that the work of the establishment there is the same as word in the establishment contemplated by Section 10 of the Act. The contractor under takes to produce a given result for the establishment through contract labour. He supplies contract labour for any work of the establishment. The entire site is the establishment and belongs to the principal employer who has a right of supervision and control; he is the owner of the premises and the end product and from whom the contract labour receives its payment either directly or through a contractor. It is the place where the establishment intends to carry on its business, trade, industry, manufacture, occupation after the construction is complete. Accordingly, the constutionality of the Act was upheld. The appalling conditions of contract labour who are victims of exploitation have been engaging the attention of various committees for a long tie and in furtherance of the recommendations, the Act was enacted to benefit, as a welfare measures, viz., provisions for canteens rest room, facilities for supply of drinking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration and have it registered thereunder. The registration is subject to the revocation under Section 8 on fulfilment of certain conditions enumerated therein. The effect of nonregistration is enumerated in Section 9 in the mandatory language that no principal employer shall employ contract labour in the establishment af ter the specified period. Section 12 enjoins similar obligations on the contractor for registration, with mandatory language, that from the appropriate date, no contractor to whom the Act applies, hall undertake or execute any work through contract labour except under and in accordance with the licence issued in that behalf by the licensing officer. Licence is grated under Section 13 and revocation, suspension and amendment thereof have been provided, in Section 14 with which we are not concerned in this case. The welfare measures mandated in Chapter V be complied with by every establishment. Under Section 21, every principal employer shall nominate his representative to be present at the time of disbursement of wages by the contractor and the contractor should be responsible for payment of wages to every such workman. Representative of the principal employer sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bour. Chapter VI deals with payment of wages to the workmen and the manner of payment has also been provided therein. Form III referred to in Rule 18 (3) envisages, among others, name and address of the contractor, nature of work in which contract labour is to be employed on any day, maximum number of contract labour to be employed on any date, probable duration of employment of contract labour etc. The licence issued in Form IV under Rule 21(1) indicates the particulars envisaged in Forms III. Form XIII under Rule 75 requires information as to the list of workmen employed by the contractor and also to be specified, the name and surname of the workmen, Sl. No., age and sex, father s/husband s name, nature of employment, designation, permanent home address of the workmen, date of commencement of employment, signature/thumb impression of workmen, date of termination. Certificate of completion of the work has been provided in form XV as per Rule 77, Forms XVII as per Rule 78 (1) (a) (i) is Register of wages and provides the particulars, apart from other details, number of days worked, units of work done, daily-rate of wages/piece rate etc. Register of wages-cum-Muster Roll is prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce or post; right to life and right to equality which would amplify the roots of socialism in democratic form of Government; right to equality of status and of opportunity, right to equal access to public places and right to freedoms, protective discrimination, abolition of untouchability, its practice in any form an constitutional offence, as guaranteed in Part III IV i.e., Fundamental Rights and Directive Principles which to every citizen are Fundamental Rights. In Minerva Mills Ltd. Ors. vs. Union of India Ors. [(1981 (1) SCR 206 = AIR 1980 SC 1789], the Constitution Bench had held that the Fundamental Rights and the Directive Principles are two wheels of the chariot in establishing the egalitarian social order. Right to life enshrined in Article 21 means something more than survival of animal existence. It would include the right to live with human dignity [vide Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi Ors. (AIR 1981 SC 746 para 3); Olga Tellis vs. Bombay Municipal Corporation vs. D.T.C. Mazdoor Congress [AIR 1991 SC 101 para 223,234 and 259 = (1991) supp. 1 SCC 600]. Right to means of livelihood and the right to dignity, right to health, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Without equality, liberty would produce supremacy of the few over the many equality without liberty would kill the initiative to improve the individual s excellence, political equality without socio-economic equality would run the rusk of democratic institutions to suffer a set back. Therefore, for establishment of just social order in which social and economic democracy would be a way of life inequalities in income should be removed and every endeavour be made to eliminate inequalities in status through the rule of law. Socialism brought into the preamble and its sweep elaborately was considered by this Court in several judgments. It was held that the meaning of the word socialism in the Preamble of the Constitution was expressly brought in the Constitution to establish an egalitarian social order through rule of law as its basis structure. In Minerva Mills Ltd. case, the Constitution Bench had considered the meaning of the word socialism to crystalise a socialistic state securing to its people socio-economic justice by interplay of the Fundamental rights and the Directive Principles. In D.S. Nakara Ors. v. Union of India [(1983) 2 SCR 165], another Constitution Bench had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b), therefore, has a social mission. it embraces the entire material resources of the community. Its task is to distribute such resources. Its goal is to undertake distribution as best to subserve the common good. In Sanjeev Coke Manufacturing Co. v. Bharat Cooking Coal Ltd. Anr. [(1983) 1 SCR 1000], another Constitution Bench interpreted the word socialism and Article 39(b) of the Constitution and had held that the broad egalitarian principle of economic justice was implicit in every Directive Principle. The law was designed to promote broader egalitarian social goals to do economic justice for all. The object of nationalisation of mining was to distribute nation s resources. In State of Tamil Nadu etc. v. L. Abu Kavur Bai Ors. etc. [(1984) 1 SCR 725], the same interpretation was given by another Constitution Bench upholding nationalisation of State Carriages and Contract Carriages (Acquisition) Act. Therefore, all State actions should be such to make socio-economic democracy with liberty, equality and fraternity, a reality to all the people through democratic socialism under the rule of law. In Consumer Education Research Centre Ors. v. Union of India Ors. [(1995) 3 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economic and political democracy. Social justice, equality and dignity of persons are cornerstones of social democracy. The concept of social justice which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relive the poor etc. From handicaps, penury to ward off distress and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Social security, just and humane conditions of work and leisure to workman are part of his meaningf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o livelihood. In Murlidhar Dayandeo Kesekar V. Vishwanath Pandu Barde Anr.[1995 supp (2) SCC 549] (to which two of us, K. Ramasway, and B.L. Hansaria JJ., were members), the question arose; whether the alienation of the lands assigned to Scheduled Tribes was valid in law ? In that context considering the Preamble, the Directive Principles and the Fundamental Rights including the right to life, this court had held that economic empowerment and social justice are Fundamental Rights to the tribes. The basic aim to the welfare State is the attainment of substantial degree of social, economic and political equalities and to achieve self-expression in his work as a citizen, leisure and social justice. The distinguishing characteristic of the welfare State is the assumption by community acting through the State and as its responsibilities to provide the means, whereby all its members can reach minimum standard of economic security, civilised living, capacity to secure social status and culture to keep good health. The welfare State, therefore, should take positive measure to assist the community at large to act in collective responsibility towards its member and should take positive mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alienation of assigned land without permission of competent authority was held void. In R. Chandevarappa and Ors. v. State of Karnataka and Ors. [(1995) 6 SCC 309] (to which two of us, K. Ramaswamy and B.L. Hansaria, JJ., were members) this Court was to consider whether the alienation of Government lands allotted to the Scheduled Castes was in violation of the Constitutional objectives under Article 39(b) and 46. It was held that economic empowerment to the Dalits, Tribes and the poor as a part of distributive justice is a Fundamental Right; assignment of the land to them under Article 39(b) was to provide socio-economic justice to the Scheduled Castes. The alienation of the land, therefore, was held to be in violation of the Constitutional objectives. It was held thus: In fact, the cumulative effect of social and economic legislation is to specify the basic structure. Moreover, the social system shapes the wants and aspirations and its citizens come to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is not only an institutional device for satisfying existing wants and needs but a way of creating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to life. Mahatma Gandhiji, the Father of Nation said that every human being has a right to live and, therefore, to find the wherewithal to feed himself and where necessary to clothe and house himself . In D.K. Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259], the question was whether the workman for absence in service for 7 days can be removed without an enquiry. In that context a bench of three judges had held thus: Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious contents of dignity of person would be reduced to animal existence. When right to life is interpreted in the light of the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness . In Dalmia Cement (Bharat) Ltd. Anr. vs. Union of India Ors. etc. [JT 1996 (4) SC 555], a Bench of three judges (to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /or sections in the social structure or individuals by means of which alone it would be possible to build up a welfare State. The idea of economic justice is to make equality of status meaningful and the life worth living at its best removing inequality of opportunity and of status - social, economic and political. Law is the ultimate aim of every civilised society, as a key system in a given era, to meet the needs and demands of its time. Justice, according to law, comprehends social urge and commitment. Justice, liberty, equality and fraternity are supreme constitutional values to establish the egalitarian social, economic and political democracy, Social justice, equality and dignity of person are cornerstones of social democracy. Social justice consist of diverse principles essential for the orderly growth and development of personality of every citizen. Justice is its facet, a dynamic device to mitigate the sufferings of the disadvantaged and to eliminate handicaps so as to elevate them to the level of equality to live life with dignity of person. Social justice is not a simple or single idea of a society but it an essential part of complex social change to relieve the poor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss. Economic justice means abolishing such economic conditions which remove the inequality of economic value between man and man, concentration of wealth and means of production in the hands of a few and are detrimental to the vast. Law, therefore, must seek to serve as a flexible instrument of socioeconomic adjustment to bring about peaceful socio-economic revolution under rule of law. The Constitution, the fundamental supreme lex distributes the sovereign power between the Executive, the Legislature and the Judiciary. The Court, therefore, must strive to give harmonious interpretation to propel forward march and progress towards establishing an egalitarian social order. The validity of the Act was accordingly upheld. It is already seen that in D.T.C s case (supra), this Court had held that right to life to a workman would include right to continue in permanent employment which is not a bounty of the employer nor can its survival be at the volition and mercy of the employer. Income is the foundation to enjoy many Fundamental right and when work is the source of income, the right to work would become as such a fundamental right. Fundamental Right can ill-afford to be consigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 14 and all other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. The democracy offers to everyone as doer, an exerter and developer and enjoyer of his human capacities, as stated by Justice K.K. Mathew, in his The Right to Equality and Property under the Indian Constitution at page 47-48. These exercises of human capacity require access to the material resources and also continuous and sufficient intake of material means to maintain human energy. Lack of access to the material resources is an impediment to the development of human personality. This impediment, as a lack of access to means of labour, if we take labour i its broadest sense of human resources, requires removal only under the rule of law. To the workmen, right to employment is the property, source of livelihood and dignity of person an means of enjoy life, health and leisure. Equality, as a principle of justice, governs leisure, the distribution of material resources including right to employment. Private property ownership has always required special justifications and qualifications to reconcile the institution with the public intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countable for the consequences to free human personality. It would, thus, be clear that in a socialist democracy governed by the rule of law, private property, right of the citizen for development and his right to employment and his entitlement for employment to the labour, would all harmoneously be blended to serve larger social interest and public purpose. Mahatma Gandhiji, the Father of the Nation, in his book Socialism of my concept , has said thus: To a people famishing and idle, the only acceptable form in which God can dare appear is work and promise of food as wages. God created man to work for his food, and said that those who ate without work were thieves. Eighty per cent of India are compulsory thieves half the year. Is it any wonder if India has become one vast prison? Again, he stressed: No one has ever suggested that grinding pauperism can lead to anything else than moral degradation. Every human being has a right to live and, therefore, to find the wherewithal to feed himself and, where necessary, to clothe and society the securing of one s livelihood should be, and is found to be the easiest thing in the world. Indeed, the test of orderliness in a country is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subjected to and understood within a general theory of justice, and addressed within the framework of a complete socio-political concept of justice. As we have seen, in the prophetic concept of justice the misery of the poor called for dividne retribution, since alleviating misery was believed to be a matter not of optional charity but of moral duty, To neglect this duty was to sin, to breach the divine laws. Plato proposed the abolition of private property for the caste of guardians in order to make the Republic as a whole just. Aristotle, who coined the term distributive justice , recommended a relative equality of wealth - neither too much nor too little, but medium wealth - as a condition of the good life of the good citizen and the good city. Even Roussseau., the most egalitarian philosopher in respect of distribution, subjected the solution of this problems to the general patterns of an sociopolitical concept of justice. Locke did not completely break with this longstanding tradition either. As we have seen, he contributed to the emergence of the concept retributive justice rather than distributive justice. However, he had already presented a sophisticated theory legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt problem in constitutional law for years to come in this court will be how to implement the Directive Principles and at the same time give full play to the Fundamental Right. It is only by implementing the Directive Principle that distributive justice will be achieved in the society. Justice, as Aristotle said, is the bond of men in society and States without justice are, as St. Augustine said, robber-bands . In Keshvanand Bharti s case, Jaganmohan Reddy, J. had held that what is emplicit in the Constitution is that there is a duty one the courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37 are fundamental in the governance of the country . The majority had held in favour of the way for the implementation of the Directive Principles under rule of law. Justice Palekar, in particular had laid emphasis on social and economic justice to make fundamental Rights a reality. Coming to the meaning of regulation under the Act, in Blacks law Dictionary (sixth edition) at page 1286 the word regulation is defined as the act of regulating; a rule or order prescribed for management or government; a regulating principle; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under such circumstances it is difficult to see why, if the common carrier or the miller, or the ferrymen or the innkeeper or the wharfinger or the baker, or the cartmen, or the chakney-coachman, pursues a public employment and exercise a sort of public office, these plaintiffs in error do not. They stand, to use again the language of their counsel, in the very gateway of commerce, and take toll from all who pass. Their business most certainly tends to be a common charge and has become a thing of public interest and use. Therein, there is a specific observation which is apposite to the facts in this case. It was held that the statute simply extends the law so as to meet this new development of commercial progress. There is no attempt to compel the owners to grant the public an interest in their property, but the Act declares their obligations, if they use it in the particular manner. It is immaterial whether the plaintiffs therein had built their warehouses and established their business before the regulation was made. It was held that after, the regulation has come into force, they are enjoined to abide by the regulation to carry on the business. This Court had approve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a public function. It was subject to State regulation. The Supreme court, therefore, had held that when the rights of the private owners and the constitutional rights requires interpretation, the balance has to be struck and the court would, mindful of the Fact that the right to exercise liberties safeguarded by the Constitution lies at the foundation of free government by free men, in all cases weigh the circumstances and appraise the reasons in support of the regulations of the rights etc. It was accordingly held that for interpretation of the rights, it is but the duty of the Court to weigh the balance and to consider the case in the dropback. In Georgia Railroad Banking Co. vs. James M. Smith [128 US 377 = 32 L.Ed. 174], it was held that in the absence of any provision in the charter, legislature has power to prescribe rates when the property is put to public use and the statue was held to be constitutional. German Aliance Insurance Co. vs. IKL Lews [58 L.Ed. 1011 = 233 US 387], per majority it was held that a business may be as far as affected with a public interest as to permit legislative regulation of its rates and charges, although no public trust is imposed upon the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the workmen and are facets of right to life guaranteed under Article 21. When the principal employer is enjoined to ensure those rights and payment of wages while the contract labour system is under regulation, the question arises whether after abolition of the contract labour system that workmen should be left in a lurch denuding them of the means of livelihood and the enjoyment of the basic fundamental rights provided while the contract labour system is regulated under the Act? The Advisory Committee constituted under section 10(1) requires to consider whether the process, operation and other work is incidental to or necessary for the industry,, trade, business, manufacture or occupation that is carried on in the establishment, whether it is of perennial nature, that is to say, whether it is substantive duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment, whether it is done ordinarily through regular workmen in the establishment or an establishment similar thereto, whether it is sufficient to employ considerable number of whole time workmen. Upon consideration of these facts and recommendation for abolit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of the post which were found to be of perennial nature on par with regular service, they also require to be regularised. The Act did not intend to denude them of their sources of livelihood and means of development, throwing them out from employment. as held earlier, it is a socio-economic welfare legislation. Right to socio-economic justice and empowerment are constitutional rights. right to means of livelihood is also constitutional right. Right to facilities and opportunities are only part of and means of livelihood and resultant right to life, leaving them in the lurch since prior to abolition, they had the work and thereby earned livelihood. The Division Bench in Dena Nath s case has taken too narrow a view on technical consideration without keeping at the back of the mind the constitutional animations and the spirit of the provisions and the object which the Act seeks to achieve. The operation so the Act is structured on an unbuilt procedure leaving no escape route. Abolition of contract labour system ensures right to the workmen for regularisation of them as employees in the establishment in which they were hitherto working as contract labour through the contractor. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur is put an end to and direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes responsible for taking the services of the workmen hitherto regulated through the contractor. The object of the penal provisions was to prevent the prohibition of the employer to commit breach of the provisions of the act and to put an end to exploitation of the labour and to deter him from acting in violation of constitutional right of the workmen to his decent standard of life, living, wages, right to health etc. The founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as reach injustice wherever it is found. The court as sentinal in the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the realm of public law-be it a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question requires to be determined in each case. However, it may not be possible to generalise the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions. As held by this Court in Calcutta Gas Co. Ltd. v. State of West Bengal [Air 1961 SC 1044, para 5] that if the legal right of a Manager of company is denuded on the basis of recommendation by the Board of Management of the company, it would give him right to enforce his right by filling a writ petition under Article 226 of the Constitution. In Mulchand v. State of M.P. [AIR 1968 SC 1218], this court had held that even though the contract was void due to non-compliance of Article 229, still direction could be given for payment of the amount on the doctrine of restitution under Section 70 of the Act, since the had derived benefit under the void contract. The same view was reiterated in State of West Bengal v. V.K. Mandal SOrs. [AIR 1962 SC 779 of 789] and in New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contract labour to retire on voluntary basis or to be absorbed for local employment. A Bench of three judges of this court had held that the contract labour were continuing the employment of the respondent for last 10 years, in spite of change of contractors, and hence they were directed to b e absorbed as regular employees. On such absorption, their inter se seniority be determined, department or job-wise, on the basis of continuous employment; regular wags will be payable only for the period subsequent to absorption and not for the period prior thereto. Such of those contract labour is respect of whom the rate of wages have not been fixed, the minimum, rate of wages would be payable to such workmen of the wages of the regular employees. The establishment was further directed to pay the wages. If the staff is found in excess of the requirement, the direction for regularisation would not stand in their way to reached the workmen in accordance with law. If there arises any dispute as regards the identification of the contract labour to be absorbed, the Chief Labour Commissioner, Central Government, on evidence, would go into that question. The retrenched employees shall also be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted for the operation of the Act is with the factory or establishment sin which they work and not with agency or agent through and by whom they were employed. In other words., the ratio of that case is that it is not material as to through which contractor the employee came to be appointed or such labour came to be engaged in the establishment concerned. The direct relationship would emerge after the abolition of the contract labour. In Sankar Mukherjee Ors. vs. Union of India Ors. [ AIR 1990 SC 532], the State Government exercising the power under Section 10 of the Act prohibited employment of contract labour in cleaning and stacking and other allied jobs in the brick department. Loading and unloading of bricks from wagons and trucks was not abolished. Writ petition under Article 32 of the Constitution of India was filed. A Bench of three judges of this court had held that the act requires to be construed liberally so as to effectuate the object of the act. The bricks transportation to the factory, loading and unloading are continuous process; therefore, all the jobs are incidental to or allied to each other. All the workmen performing these jobs were to be treated alike. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we hold that though there is no express provision in the Act for absorption of the employees whose contract labour system stood abolished by publication of the notification under section 10 (1) of the Act, in a proper case, the court as sentinal in the qui vive is required to direct the appropriate authority to act in accordance with law and submit a report to the court and based thereon proper relief should be granted. It is true that learned counsel for the appellant had given alternative proposal, but after going through its contents, were are of the view that the proposal would defeat, more often than not, the purpose of the Act and keep the workmen at the whim of the establishment. The request of the learned Solicitor General that the management may be left with that discretion so as to absorb the workmen cannot be accepted. In this behalf, it is necessary to recapitulate that on abolition of the contract labour system, by necessary implication, the principal employer is under statutory obligation to absorb the contract labour. The linkage between the contractor and the employee stood snapped and direct relationship stood restored between principal employer and the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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