ORDER
A.K. Sikri, J.
1. All these writ petition are filed by contract workers who are engaged by different contractors and all these contractors are/were awarded work by CPWD. All these contract workers in these writ petitions are claiming regular appointment/direct absorption by CPWD as their principle employer. It is not necessary to state facts in each case for the purpose of disposing of these writ petitions. It would be sufficient to mention that these contract workers have been working for varying periods which is as less as 1-2 years and as long as 18-20 years in certain cases. Admittedly every contract worker has worked for more than 240 days. Further, admittedly, no notification has been issued by the “appropriate Government” u/S. A href=”javascript:fnOpenGlobalPopUp(‘/ba/disp.asp’,’82156′,’1′);”>10 of the Contract Labour Regulation and Abolition Act, (hereinafter referred to as the Act, for short) for abolishing the contract labour system in the CPWD in respect of the nature of work being undertaken by these contract workers. These writ petitions are filed at a stage when in most of these cases request was made to the “appropriate Government” for constitution of the Board to undertake the task of ascertaining whether the process, operation, for the work being carried on by the contract labour needs abolition. It has been the contention of the petitioners that the work being undertaken is of perennial nature and they have been doing this work for long time. It is further contended that the contract system is a camouflage and needs abolition and therefore in these cases the “appropriate Government”, which is the Central Government in the instant cases, should issue nortification u/S. 10 of the Act prohibiting employment of contract labour in the process, operation and the work carried on by these contract workers in the establishment of CPWD through contractors.
2. All these writ petitions were heard at length when M/s. V. Shekhar, Naresh Kaushik, Shankar Divate, Manas Panigrahi argued on behalf of the petitioners in different writ petitions. Mr. P. Chandramouly, National President, National Forum for Forces Fighting Corruption and Injustice had argued in person in support of claim in Civil Writ Petition No. 1159 of 1999. Dr. Abishek Singhvi, Senior Advocate with Mr. Sandip Aggarwal argued for the respondent-CPWD. After the arguments were heard and judgment was reserved, before the judgment could be pronounced certain subsequent development took place. Some more matters relating to CPWD when listed for hearing, Mr. S.B. Jaisinghani, learned Additional Solicitor General, appeared on behalf of the CPWD alongwith Mr. Jayant Bhushan, Mr. A.K. Bhardwaj and Ms. Kumud L. Das and submitted that the “appropriate Government” was considering constitution of a Committee to go into the question of abolition of contract labour and requested that judgment in these matters be not pronounced at that stage. This second batch of writ petitions were adjourned from time to time and ultimately on 20th April, 2000, Resolution dated 30th March, 2000 was produced which was issued by Government of India u/S. 5 of the Act whereby Central Advisory Contract Labour Board ( hereinafter referred to as the Board, for short ) constituted a Committee to go into the question of abolition of contract labour deployed in different offices/establishments by the CPWD. In the schedule annexed to the above Resolution brief submissions were made by counsel for both the parties after this Resolution and that batch of writ petitions were also reserved for delivering a common judgment.
3. At the time of arguments on the first batch of writ petitions learned counsel for the petitioners formulated the following propositions:-
1. When the “appropriate Government” is not issuing notification u/S. 10 of the Act for abolishing contract labour in respect of the work being performed by the petitioners, this Court should give necessary directions to the “appropriate Government” to issue such notification. It was submitted that there was sufficient material placed on record and hardly any disputed questions of fact were involved in view of the aforesaid material and taking cognizance thereof this Court could give necessary directions in exercise of its powers under Article 226 of the Constitution of India.
2. It was argued in the alternative that in case the Court felt that there was no sufficient material before the Court or because of the disputes raised by the respondent with regard to the sufficiency or admissibility of such material/evidence on record, this Court under Article 226 had ample power to refer the matter to the Board with the directions to undertake necessary exercise and submit report as to whether contract labour deployed in different offices/establishments of CPWD needed abolition and after calling for the said report appropriate writ be issued by the Court itself for abolition of the contract system in CPWD.
3. If the Court did not want to accept any of the alternatives suggested above and was of the opinion that the matter is to be gone into by the Board which is the expert body and ultimately it is the “appropriate Government” which has to decide whether contract labour system needs to be abolished or not, mandamus/direction be issued to the “appropriate Government” to constitute a Committee to go into this question and thereafter in consultation with the Board, Govt. shall decide as to whether notification u/S. 10 of the Act is to be passed or not. However if this course of action is to be adopted, the services of the petitioners/contract workers on whose behalf these petitions are filed be protected in the meantime and stay granted in these cases be continued till the completion of exercise by the Central Government in terms of the provisions of Section 10 of the Act.
4. In support of their submissions the petitioners had relied upon the following judgments and extensively quoted therefrom :- (i) Air India Statutory Corporation etc. Vs. United Labour Union and others ; (ii) Secretary, Haryana State Electricity Board Vs. Suresh and others etc. etc. ; (iii Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Hind Mazdoor Sabha and others ,(iv) National Federation of Railway Porters, Vendors and Bearers Vs. Union of India and others reported in 1995 (3) SCC 152; (v) All India General Mazdoor Trade Union (Regd.) Vs. Delhi Administration and others .
5. It was also argued that merely because alternative remedy was available i.e. namely the machinery provided u/S. 10 of the Act, did not bar the jurisdiction of this Court under Article 226 of the Constitution and it was still the discretion of this Court to entertain the writ petition and facts of these cases warranted such discretion to be exercised rather than forcing the petitioners to invoke machinery provided u/S. 10 of the Act and on this aspect various judgments of this Court were also cited.
6. Respondents in their reply had vehemently opposed the prayers of the petitioners and submitted that these writ petitions were not maintainable at all. It was submitted that there was not a single case where High Court under Article 226 or Supreme Court under Article 32 of the Constitution had exercised discretion by issuing mandamus for abolition of the contract
labour. It was argued that Air India (supra) case was a meter where there was already a notification u/S. 10 of the Act abolishing contract labour and the Court was concerned with the effect and consequences of such notification. As far as HSEB (supra) case is concerned, it was submitted that, that case had originated from Industrial Tribunal and findings of facts after the evidence led by both the parties were recorded by the Industrial Tribunal, to the effect that the contract labour system was a sham and camouflage. Referring to the passages from the very judgment cited by the petitioners, it was sought to be argued that the Courts had generally directed the “appropriate Government” to go into this question in consultation with the Board. It was also submitted that in the absence of any notification u/S. 10 of the Act, the petitioners/these contract workers were not entitled to any relief. The matter was to be left to the expert body namely, the Board which could go into the exercise as contemplated u/S. 10 of the Act inasmuch as various factors as per the said Act were to be considered by the “appropriate Government” in consultation with the Board as this was not a function of this Court. It was further argued that the alternative course of action suggested by the petitioners namely calling for the report and then passing the order was also not proper as such directions in few cases were given by the Supreme Court (on which reliance was placed by the petitioners) and in the peculiar facts and circumstances of those cases which could be stated to be directions under Article 142 of the Constitution,
there was no justification to adopt such course by this Court under Article 226 of the Constitution. The only direction which could be given to the “appropriate Government” is to constitute a Committee to go into the aspect of abolition of contract labour and decide as to whether contract labour needs to be abolished or not. On merits, it was also vehemently argued that the kind of activities being undertaken by the CPWD warranted continuation of contract labour system as in the absence of such system the very structure of CPWD would crumble as it was neither feasible nor appropriate nor proper to abolish the contract labour system for carrying out the kind of activities being undertaken by CPWD for which it was imperative to award contracts to the contractors and engage contract labour. Apart from relying on the same very judgment quoted by the petitioners and distinguishing some of those judgments, the respondents referred to the judgment in the cases of Dr. D.C. Wadhwa and others Vs. State of Bihar and others , Union of India and another Vs. Kirloskar Pneumatic Company Limited reported in JT 1996 (5) SC 26, Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Limited and others , State of West Bengal and others Vs. Calcutta Hardware Stores and others , Syndicate Bank and another Vs. K. Umesh Nayak reported in 1994 (5) SCC 572, State of Haryana and another Vs. Chanan Mal etc. , Dhananjay Jana and others Vs. Union of India and others reported in 1999 (4) SLR 289, in support of their various contentions.
7. I have noted the arguments of both the parties in very brief and in truncated form. In view of the fact that Resolution dated 30th March, 2000 is passed constituting Committee to go into the question of abolition of contract labour deployed in different offices/establishments of CPWD, it is not necessary at least in these matters to go into the first two propositions advanced by the petitioners as noted above. Infact when the second batch of petitions were heard on 20th April, 2000 even the counsel for the petitioners admitted that since the Committee has been constituted and the Government has started undertaking necessary exercise the issues mentioned in the first two propositions have become more or less academic in so far as these cases are concerned. However, the third proposition was strenuously pressed and it was submitted that since Committee had been constituted and government was to decide about abolition of contract labour system the services of the contract labourers/petitioners be continued and protected in the meantime. It was also submitted that direction be issued to the respondents to complete the exercise within time bound frame. In these circumstances it is this part of third proposition which only remains to be dealt with in the instant case.
Regarding interim arragement
8. In support of this claim, the counsel for the petitioners submitted that all these contract workers required interim protection till the matter was decided by the Government u/s. 10 of the Act. It was submitted that in many of the cases these contract workers were working for number of years and they could not be thrown out and rendered unemployed merely because they had approached this Court. Infact it was submitted by the petitioners that it was the duty of the “appropriate Government” itself to examine as to whether contract labour needed to be abolished and the Government had failed in its duty by not undertaking this exercise uptil now. It was further submitted that Supreme Court in some of the cases, even while referring the matter to the “appropriate Government”, had granted interim protection. Reference was made to these judgments including following passage from All India General Mazdoor Trade Union (Regd.) Vs. Delhi Administration and others (supra):-
“Till this process is completed, subject to what we have said earlier, the workmen will be continued in employment and Respondent 2 will ensure their continuance.”
9. It was submitted that same directions are given by the Supreme Court in several other cases also.
On the other hand, learned counsel for the respondent submitted that no such direction was warranted in these cases and in support of its submission following arguments were advanced:-
(a) in the absence of any notification u/S. 10 of the Act writ petitions are not maintainable. When the writ was not maintainable and the Court could not grant the relief claimed by the petitioners, namely, Court could not give direction to regularise/absorb these contract workers by CPWD and no interim direction could also be given.
(b) High Court under Article 226 of the Constitution was Court of sub….. and was not meant to give semantic direction. There was no juristic basis to give such directions and infact giving such directions would be contrary to the provisions of the Act and the same being not permissible in view of the observations of the Supreme Court in Abdul Rehman Antulay Vs. R.S. Nayak case . What could not be done directly cannot be allowed to be done indirectly. Giving such directions would amount to allowing the contract workers to continue even when they were not entitled to any such relief finally. Infact giving such interim relief would amount to giving final relief.
(c) The reliance placed by the petitioners on the aforesaid judgments of the Supreme Court was misconceived inasmuch as the directions given by the Supreme Court in the aforesaid two cases were in exceptional circumstances and were just directions under Article 142 of the Constitution of India and were not the directions under Article 141 of the Constitution of India laying down ratio decidendi or obiter and therefore were not binding on this Court. It was also argued that giving such directions would lead to laying down bad law resulting in serious consequences and it would be difficult to draw a line inasmuch as any contract worker after working for 240 days would file writ petition under Article 226 of the Constitution claiming that contract system in the work being carried by him needs abolition and on this pretext he would seek directions to be issued to the Government to constitute a Committee/Board and decide whether the contract system needs to be abolished and in the meantime would enjoy the protection of the Court and continue to work, whether he is required or not. Therefore, if such course of action is adopted in the present case it would be prone to misuse and the entire contract labour system, even if legitimately adopted and even when there is no notification u/S. 10 of the Act to abolish contract labour in a particular activity in a particular establishment, would be put to naught.
10. It was also submitted that interim orders passed in many of these petitions were infact creating difficulties for the CPWD inasmuch as in many cases CPWD was given the contract of maintenance of buildings etc. which were owned by other establishments/public sector undertakings etc. where the CPWD itself was playing the role of a contractor. In many of these cases the contract were not renewed by the concerned establishments but as cases by the contract workers with regard to such establishments were also pending, the CPWD was forced to continue with them notwithstanding the fact that the corpus itself had vanished in so far as CPWD is concerned.
11. I have given my considered thought to this aspect in the light of the legal position as well as factual matrix of these cases. There may be some force in the arguments advanced by the respondents. However, it is not necessary to go into these arguments in detail again because of the subsequent developments which have taken place in this case and I am more influenced by these developments while directing the interim arrangement which should be made in the intregnum. After all it would be a question of few months only when the whole exercise has to be completed and decision is to be taken by the Central Government one way or the other. The position as of today is that the Board has already constituted a Committee to go into the question of abolition of contract labour deployed in different ffices/establishments of CPWD in the schedule annexed to Resolution dated 30th March, 2000. Thus it is not a case where this Court or the Government has to decide whether there is a requirement for constitution of a Committee or not. Once a Committee is constituted which is to undertake the study of contract labour system in the jobs/work/process given in column 4 of Schedule annexed to Resolution dated 30th March, 2000 in respect of such offices/establishments maintained by CPWD, the Committee after undertaking this study would submit its report to the Board and based on such a report, Central Government as the “appropriate Government” would take decision as to whether contract labour system needs to be abolished or not. If services of these contract workers are dispensed with at this stage and ultimately it is found that contract labour in respect of jobs/work/process undertaken by these contract workers in respect of the offices/establishments where they are working, needs to be abolished and notification u/s. 10 of the Act issued to this effect by the Central Government, these contract workers would suffer irreparable injury and it may become difficult for them to get the benefits of such notification abolishing contract labour system. Moreover, when the Committee is going ahead with the task then in the meantime it would also be not proper if the services of these contract workers are dispensed with and fresh contract labour is engaged in their place. Not only it would cause injustice to these contract workers, it may prove to be counter productive even for CPWD if ultimately notification abolishing contract labour system is issued u/S. 10 of the Act by the Central Government because at that point of time CPWD would be confronted with a situation where not only the present contract workers ( discontinued in the meantime if not protected) but contract labour engaged in their place and working at that point of time would seek claim for absorption and regularisation with CPWD. That would be a worse situation for CPWD itself then the present situation where these contract workers are allowed to continue in the intregnum. Therefore, the least protection which these petitioners/contract workers require is that till the exercise u/S. 10 of the Act is on after issuance of Resolution dated 30th March, 2000, their services be not substituted with other contract workers. These writ petitions are accordingly disposed of with the following directions:-
1. The services of these contract workers shall not be substituted with other contract workers i.e. if the respondent require to employ contract workers in the jobs assigned to these contract workers, then they will not replace the present contract workers with fresh contract workers.
2. In case of contract with a particular contractor who has engaged these petitioners/contract workers, comes to an end the said contract may be renewed and if that is not possible and the contract is given to some other contractor endeavour should be made to continue these contract workers with the new contractor. It would be without prejudice to the respective stand of the parties before the “appropriate Government” and their continuation would depend upon the decision taken by the Government to abolish or not to abolish the contract labour system.
3. These directions shall not apply in those cases where the particular contract of maintenance etc. given by other establishment to the CPWD earlier has ceased to operate with the result that CPWD is not having the work/contract any longer. In those cases it would be open to the CPWD to disengage such contract workers as not required any longer in the absence of work/job/particular activity with the CPWD.
4. If the decision is taken to abolish the contract labour in particular job/work/process in any of the offices/establishments of CPWD (as per the terms of reference contained in Resolution dated 30th March, 2000), as per the judgment of the Supreme Court in Air India Statutory Corporation (supra) such contract workers would be entitled to be absorbed with CPWD and would be entitled to claim the benefits in terms of aforesaid judgment. In case the decision of the “appropriate Government” is not to abolish contract labour system in any of the works/jobs/process in any offices/establishments of CPWD the effect of that would be that contract labour system is permissible and in that eventuality CPWD shall have the right to deal with these contract workers in any manner it deems fit.
5. Such contract labours who are still working shall be paid their wages regularly as per the provisions of Section 21 of the Act and in those cases where the contractor fails to make payment of wages, it shall be the responsibility of the CPWD as principle employer to make the payment of wages.
6. The exercise undertaken by the “appropriate Government” u/S. 10 of the Act, starting with the formation of a Committee by Resolution dated 30th March, 2000 should be completed as expeditiously as possible and in any case within a period of six months from today.
12. There shall be no order as to costs.