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TMI Blog2002 (4) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... petition (hereinafter referred to as 'Corporation') and respondent Nos. 2-33 are different contractors who had been entrusted with the above- mentioned work on contract basis. Respondent No. 34 is the State of Maharashtra and respondent No. 35 is the Contract Labour Board established under the provisions of the Contract Labour (Regulation Abolition) Act, 1970 (CLRA Act). Respondent No. 36 is the Commissioner of Labour for the State. 3. In the writ petition, it was emphasized that the nature of work carried out by the contract labour is perennial; merely because the Corporation has chosen to employ system of contract labour for discharging its statutory obligations, the contract labour does not cease to be workman of the principal employer - the Corporation. According to the writ petitioners (Union), if at all, contract labour system was to be permitted, it could be done only in accordance with the provisions of the CLRA Act; an employer could not be allowed to carry on work through contract labour unless provisions of the statute were strictly complied with (sic) that the Corporation was carrying on the work State contract labour for almost 15 years even without registerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic and other danger material etc. In support of the writ petition, reliance was placed to the Circular dated 26.4.1985 issued by the Govt. of Maharashtra relating to Bhangi Mukti (prevention of scavenging), Circular dated 30.8.1996 issued by the Corporation on the precautionary measures to be taken while engaging contract labour, the letter dated 27.11.1996 addressed to the Additional Commissioner, Corporation, by the then Chairman of the Standing Committee of the Corporation Shri Hareshwar Patil stating that the garbage workers were not properly treated; there was no difference between the permanent workers of the Corporation and the contract workers; their conditions were really pitiable and steps are to be taken to improve the situation. Reference is also made to the letter of the Labour Commissioner dated 18.7.1998 addressed to the Chief Secretary of the State requesting to recommend the matter to the State Contract Labour Advisory Board for abolition and prohibition of the contract labour system. The Minister for Labour of the State addressed a letter dated 4.2.1999 to the Commissioner of the Corporation recommending for abolishing the existing contract system. In the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant to deposit refuse/debris. The Corporation merely provides its services to those generators of debris like MHADA or private land owners or builders, who are liable to pay stipulated charges for the work of disposal of debris performed by the Corporation. For the purpose of removal of debris the Corporation accepts separate tenders from the contractors. This work, not being the statutory responsibility of the Corporation, is not done by its employees. Copy of the tender submitted by the contractor for removal of debris and copy of the contract entered into by the Corporation with the contractors, as per Ex.-5 and 6, clearly show that the workers engaged in the said activity of removal of debris are not employees of the Corporation. The allegations that merely paper arrangements are made by the Corporation to avoid statutory liabilities and that such contracts are sham and illegal are denied by the Corporation. It is also stated that the Corporation has been taking stringent action against the contractors so that they should comply with the statutory requirements such as Minimum Wages Act and the contractors are also directed to provide the labourers with good quality of rain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Committee desires. (d) The said Committee shall make a report to the Municipal Corporation indicating the persons who were actually working as contract labourers in the Solid Waste Management Department on the date on which the Writ Petition was filed. Immediately on receipt of such report, the first Respondent -Corporation shall absorb such workmen also as permanent workmen in the Solid Waste Management Department and extend to them pay and all conditions of service and benefits as given to other permanent workmen doing same or similar work. (e) Though, strictly speaking, under the principles laid down in Air India's case (supra), the workmen would have to be absorbed as permanent employees and given all the benefits from the dates of their respective employment, as we have found some difficulty with regard to identification, we direct that the absorption into service as permanent employees and extension of all benefits shall be done as from the date of the Writ Petition i.e. from 1st July, 1997. 9. On behalf of the Corporation it was contended: (a) That the disputed questions of facts arose for consideration in the writ petition. Hence the High Court was not right and justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am if the work is of continuous nature, supervision and control is by the principal employer, the work is of statutory nature, the principal employer and the contractor cannot produce any records such as pay slips, muster roll, attendance cards or wage registers to show that the workers were actually employed through a contractor, the workers, work in the establishment of principal employer, neither the principal employer nor the contractors have obtained licences or certificates under the CLRA Act, the nature of work is essential to the work of the establishment, the establishment rules itself provide that contract labour shall not be used for perennial work and workers are kept in bondage. (b) Normally the High Court, under Article 226 of the Constitution, enquire as to whether the contract labour system is a sham, and direct absorption, but where facts are by and large undisputed, many years have passed and all the authorities have recommended the absorption of workers but the ultimate authority has failed to act for a long time and it would be an act in futility and waste of time and also cause injustice to the workers, the High Court could go into the question and pass orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned judgment and due to the pendency of Special Leave Petition in this Court, the State Contract Labour Advisory Board has kept the matter in abeyance. 15. The High Court noticing the duties of the Municipal Corporation under the Act contained in the various Sections held that the said provisions imposed statutory duties on the Corporation to keep the city clean free of garbage, rubbish, refuse etc. The High Court took the view that if the Corporation chose to employ some other agency to discharge its obligation, it could do so provided it is consistent with the applicable legal provisions; after the enforcement of the CLRA Act under Section 7, the Corporation being principal employer was compulsorily required to register itself with the appropriate registering authority and every contractor was required to obtain a licence under Section 12 of the Act but neither the Corporation nor the contractors complied with the said provisions in spite of the grievances voiced by the union repeatedly. The High Court looking to the letter of the Labour Commissioner dated 18th July, 1998 to the Chief Secretary of the State recommending abolition of the contract labour system, letters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abour working in the establishment concerned. (4) We overruled the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final. (5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution Bench of this Court aforementioned. 19. Now, we proceed to consider the validity and correctness of the impugned judgment and order in the light of judgment of the Constitution Bench in SAIL case (supra). The High Court held that the work entrusted to the members of the Union continued to be basically the work of the Corporation itself of perennial nature; the Corporation has chosen to carry out the work under so-called system of labour contract without complying with the provisions of the CLRA Act, and as such the labour contract was a camouflage. We must state here itself that the Union in the writ petition alleged that the labour contract was sham and the Corporation specifically denied it in its counter affidavit but the High Court did not go into this question and did not record a finding that the labour contract in the present case was sham or a camouflage considering the material on record; even otherwise this being a serious and disputed fact in terms of the Constitution Bench judgment aforementioned, the High court could not have appropriately adjudicated on the issue exercising jurisdiction under Article 226 of the Constitution. It appears to us that the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years, there was no registration of principal employer; none of the contractors ever held a licence under the Act; the work that was being carried on fellow within the parameters of Clauses (a) to (d) of Section 10(2) of the Act and having regard to what was said by the Chairman, Standing Committee of the Corporation and the contractors and the recommendation of the Labour Commissioner to abolish the contract labour system. Further the Minister for Labour of Govt. of Maharashtra went on to record in clear terms that the Government had taken a decision to abolish system of contract labour in the Solid Waste Management Department of the Corporation, the High Court thought that thee was sufficient material for abolishing the contract labour system. The High Court drew an inference that the State admitted that all the requirements were satisfied for acting under Section 10(2) but because of the election code of conduct it was unable to act and passed order for absorption of workers saying that it had no impediment to do so in view of its conclusions. Referring to Air India case (supra), the High Court observed that the said judgment suggested that a contract labour system can be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; names were not found in the list of that Ward. 24. In the report dated 12th June, 1999, the Labour Commissioner has also indicated that out of 1540 workmen listed out n the writ petition, he had been able to identify 541 workers. Similarly, out of the 607 contract labourers whose names were annexed to the list exhibited to the Chamber Summons No. 31 of 1991 in Writ Petition No. 1027 of 1997, he had been able to identify 138 workers. Thus, he pointed out that, out of the total 2147 workers whose names were put forward by the Union, the Government Labour Officers were able to identify 947 workers while actually working on the dates of the visits of the Government Labour Officers on 20th and 21th May, 1999. 25. The Corporation has disputed as to the number of workers under the contract labour system and their authenticity and the period of their work etc. Merely because the records are not maintained by the contractors, it may not be appropriate to accept the list of workers given by the Union. Even from the relief granted by the High Court already extracted above, it is clear that 782 contract labourers were identified as working through contracts; a direction was given to constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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