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TMI Blog2025 (4) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... d de-stuffing in/from containers, in the CWC's Inland Clearance Depot [ICD] at Ghazipur, Patparganj, with immediate effect. 3. CWC's challenge alleges non-application of mind, as required by, and in accordance with, Section 10 (2) of the Act, while issuing the impugned notification under Section 10 (1) of the Act. 4. CWC is a statutory corporation, established under the Warehousing Corporation Act, 1962. The relevant facility to the present dispute is an ICD established in 1985 by CWC at Patparganj, for which it had been granted a license by Customs Authorities under the Customs Act, 1992. 5. The ICD at Patparganj forms a dry port. Here, all formalities related to export/import [EXIM] of containers are said to be completed before transit to their respective destinations. It is CWC's case that EXIM related handling and transport activities are largely mechanised and include activities such as stuffing/de-stuffing of containers, which happen in factories of parties intending to export/import relevant containers, and that these parties are free to have their own labour and equipment. 6. Clauses 29 and 30 of the General Terms and Conditions of Storage, CWC, are relevant in ascertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -12 March 2003 accepted the Committee's report, and recommended to the Government of India the prohibition of contract labour at CWC Patparganj. 12. Numerous petitions were then filed by workmen seeking prohibition of contract labour at the ICD by Government notification under Section 10 (1), as well as subsequent regularisation/absorption of these labourers into the CWC's workforce. 13. Vide order dated 18 April 2006, disposing of a large batch of writ petitions being WP (C)s 4334-4421/2006, this Court noted that the delay in the Government's decision on the recommendation of the CACLB to abolish contract labour deployment at the ICD was due to the Central Government's request for certain information and documents not being complied with in a timely manner by the CWC. This information was requested due to the presence of certain disputed facts within the CACLB's recommendations, regarding which the Government sought clarity before taking a decision. The CWC only submitted this information on 30 March 2006. 14. The aforementioned batch of petitions was disposed of with a direction to the UOI to consider the matter expeditiously and to take a final view on the matter within three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide storage and preservation of food grains and that operating the ICD would be an ancillary activity. e. The VRS utilised to reduce staff strength at the ICD was not considered by the CACLB. f. The work carried out is not perennial in nature as volume fluctuates with Government policy. g. The license conferred upon CWC by Customs authorities may be revoked at any time. h. The contract entered into with H & T contractors is not for the supply of labour/workman, but is on a job-work basis and involves the contractor keeping heavy machinery at hand, and that even payments are based on Rupees per Twenty-foot Equivalent Unit [TEU], Rupees per km, Rupees per quintal etc. i. Almost all other ICD's/CFS operated by CWC or other public sector undertakings outsource H & T work. The H & T contracts of CCI and other PSUs are on record as Annexure P-1 Colly. j. That the High-powered committee observed that the CWC operates in the same market as private persons and all handlers are not covered by the same rule. k. The CACLB did not sufficiently deal with the dissenting note of the employer-member. 22. Reliance is placed by learned Senior Counsel for CWC on the judgments of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nLine Del 4046, Sankar Mukherjee v UOI 1990 (Supp) SCC 668, Ram Avtar Sharma v State of Haryana (1985) 3 SCC 189, SAIL v UOI (2006) 12 SCC 233, and State of madras v C.P. Sarathy (1952) 2 SCC 606. Analysis 25. Presently, we are limited to the evaluation of the impugned notification, to the extent that it conforms with the parameters laid down within Section 10 (2) of the Act, which warrant reproduction: "10. Prohibition of employment of contract labour.-(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work 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 necessary for the industry, trade, business, manufacture or occupation that is carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened." 30. Section 10 (2) mandates the consideration of conditions of work and benefits provided to contract labourers in the establishment, along with factors (a) through (d) (supra), on the basis of which a notification may be passed under Section 10 (1). 31. Therefore, we shall proceed to weigh the submissions of parties against the findings contained within the CACLB's 53rd minutes of meeting ["MoM"] in the backdrop of the parameters contained within Section 10 (2) of the Act. 32. At the outset, we dismiss the CWC's argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ock, and may entrust its handling to the CWC. 38. Per contra, learned Counsel for the UOI submits that the loading and unloading of containers, stuffing and de-stuffing, and other tasks concerned with storage and handling of containers is an integral part of the work carried out at the Patparganj ICD. Relying upon the CACLB's findings, he states that though a trend of mechanisation is predominant, most machinery requires corresponding manpower to be operated. 39. Addressing the findings on this point of the CACLB's Committee, reported in its 53rd MoM, they observe at sub para (a) that the Committee found that the work of storage and handling of import and export containers/cargo, their stuffing and de-stuffing, has been carried out on the establishment since 1985 through contract labour, and that though contractors have changed since, the labourers remain the same. 40. It is relevant to note that an exception has been carved out with respect to Section 10 (2) (a), where the Supreme Court, in Barat Fritz Werner, observed that the work carried out need not necessarily be a core function for a valid notice prohibiting contract labour in the establishment to be issued. Paras 20 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any process, operation or other work in an establishment. The words "process, operation or other work" need not be interpreted to mean only the core activity and not peripheral activity as is sought to be suggested by learned counsel for the petitioners. In sub-section (2) of Section 10 of the Act certain guidelines have been provided for the Government before the issue of any notification to find out whether the "process, operation or other work" is incidental or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment. The expression used therein is wide in ambit to cover other activity arising in industry and not merely the actual manufacture. Otherwise to understand the expression "process, operation or other work" other than the meaning given in clause (a) of sub-section (2) of Section 10 would be to narrow down the meaning thereto. That does not seem to be the intention of the enactment at all. Therefore, we cannot agree with the submission made by the learned counsel for the petitioners in this regard either." 41. Given the above interpretation of Section 10 (2) (a), it appears that the argument of work carried out being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echanical operation can't be run in the absence of manual labour, however few their required number may be. 48. In fact, data showing the details of contract labourers employed along with the volume of work on an annual basis from the year 2000 to the year 2021, annexed along with the CWC's reply dated 18 January 2021 to Respondent 2 to 225's Section 151 application, as well as the CWC's written submissions, warrant reproduction: Sl.No. Year No. of workers/ contract labour Volume of business (No. of TEUs handled) Name of H&T contractor 1 2001 156 47496 M/s CTA Movers Pvt. Ltd (01.01.2001 to 01.03.2001) 2 2002 293 52565 M/s. OMMC Pvt. Ltd. 3 2003 322 48678 4 2004 320 53582 (01.03.2001 to 20.12.2006) 5 2005 311 59395 6 2006 327 51194 M/s Aqdas Maritime Pvt. Ltd. (21.12.2006 to 02.01.2013) 7 2007 327 46318 8 2008 326 43184 9 2009 321 41278 10 2010 319 43422 11 2011 319 41600 12 2012 313 37949 13 2013 313 41064 M/s. Suman Forwarding Agency Pvt. Ltd. (03.01.2013 to 05.01.2021) 14 2014 310 48611 15 2015 307 41387 16 2016 303 37101 17 2017 301 37797 18 2018 294 26072 19 2019 295 24548 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of contract labourers deployed, which were largely similar over 18 years out of the 20-year period for which data was produced. (c) Whether work is done ordinarily through regular workmen in that establishment or an establishment similar thereto 55. The CWC, in its pleadings, have vehemently opposed the finding contained at para (f) in the CACLB's MoM. In support of this, they have annexed tender documents concerning contracting out of H & T activities in establishments run by the CCI, Balmer Lowrie, and other entities. 56. The UOI echoes the unequivocal finding of the CACLB in its 53rd MoM that similar work is being carried out by regular employees at a similar establishment of the CCI. (d) Whether the work is sufficient to employ a considerable number of whole time workmen 57. While the phrase 'perennial nature of work' may appear interchangeable with evaluation of the sufficiency of work or its volume, we have regarded the term "perennial" to refer to the availability of work throughout an extended time frame. 58. On the point of sufficiency of work, we shall now refer to the data present in the tables reproduced in paras 45 and 50 (supra), to determine whether workme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The list is not exhaustive. The appropriate Government may also take into consideration other relevant factors of the nature enumerated in sub-section (2) of Section 10 before issuing notification under Section 10 (1) of the CLRA Act. 62. Therefore, it would be appropriate to record other factors advanced by parties. 63. However, before we delve into these factors, it would be imperative for us to analyse the CWC's relentless reliance upon the judgment of the Supreme Court in SAIL. 64. We shall now analyse whether the relevant portion of the judgment in SAIL which discusses the impugned notification is applicable to the facts before us - i.e., whether there has been an instance if passing of an "omnibus notification" under Section 10 (1) of the Act thereby rendering such prohibition to have been done without sufficient application of mind 65. The CWC, in its written submissions, refer to paras 52 and 53 of the judgment in SAIL, which merit reproduction: "52. Now, reading the definition of "establishment" in Section 10, the position that emerges is that before issuing notification under sub-section (1) an appropriate Government is required to: (i) consult the Central Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, unable to sustain the said impugned notification dated 9-12-1976 issued by the Central Government." 66. This is, in fact, the only portion of the judgment to delve into the question of the validity of the impugned notification prohibiting the deployment of contract labour, passed under Section 10 (1) of the Act. It is noted that in SAIL, there lay no material on record before the court to convey the reasoning behind the issuance of such notification, other than the text of the notification itself. 67. Therefore, it was observed that the notification was an "omnibus" one, in the sense that it prohibited the employment of contractual labour for the works mentioned at all establishments under which the appropriate Government is the Central Government. It was also noted by the Court that the only formality that notification stated to have complied with is the consultation with the central board, and that consideration of factors under Section 10 (2) of the Act were not stated to have been made. 68. Therefore, prima facie, the notification appeared to prohibit the employment of contract labour at numerous establishments without supplying cogent reasoning and specific consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahar Lal Nehru was the Chairman) observed that in the case of contract labour the major problems relate to the regulations of working conditions and ensuring them continuous employment and for these purposes suggested that it was necessary to: "(a) undertake studies to ascertain the extent and the nature of the problems involved in different industries; (b) examine where contract labour could be progressively eliminated, this should be undertaken straight away; (c) determine cases where responsibility for payment of wages, ensuring proper conditions of work etc. could be placed on the principal employer in addition to the contractor; (d) secure gradual abolition of the contract system where the studies show this to be feasible, care being taken to ensure that the displaced labour is provided with alternative employment; (e) secure for contract labour the conditions and protection enjoyed by other workers engaged by the principal employer; and (f) set up a scheme of decasualisation, wherever feasible."" 73. Contract labour has been equated with bonded labour by the Supreme Court in Sankar Mukherjee v UOI, reproduced below: "6. It is surprising that more than forty y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere assumption and not being one of significant gravity to sway the findings of the board on whether work carried out could be considered perennial. Retrospectively, about two decades hence, we see that neither the terminal at Dadri, nor the claimed instability attributed to the revocable nature of their Custom's license, were threats to the perennial nature of work handled by contract labourers at the ICD. Conclusion 80. We have weighed the findings of the CACLB's report against the factors contained within Section 10 (2). 81. It appears to us that there has been no error committed by the Government in the passing of the impugned notification and that the CACLB's 53rd MoM shows application of mind to the factors enshrined within Section 10 (2) (a) with specific consideration of data pertaining to the ICD at Patparganj. 82. Moreover, we notice that, after receipt of the CACLB's recommendations, the Government asked the CWC for further data add information to evaluate the findings of the CACLB and clarify disputed facts at hand. It was only after the receipt and consideration of this information, that the Government issued the impugned notification - as acknowledged in order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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