JUDGMENT
K. Sukumaran, J.
1. Air India has come up in appeal against the verdict of Variava J., adverse to it. It has arisen in respect of the implementation of a Notification under the Contract Labour Act (hereinafter referred to as ‘the Act’).
2. The Act, a piece of social legislation, provided, in great detail, for the regulation of Contract Labour under Section 10, it proceeded further; and empowered the Government to have even the prohibition of contract labour in the contingencies and subject to the conditions set out in that behalf, in the Act. The Central Government issued such a Notification on 9.9.1976, prohibiting “employment of contract labour on and from 10th March 1977, for sweeping, cleaning, dusting and washing of buildings owned or occupied by establishments in respect of which the appropriate Government under the said Act is the Central Government”. Air India had initially accepted the Central Government as its appropriate Government. Air India sent in the application and got itself registered under an officer by Union of India as the appropriate Government. It soon made a volte-face and treated it as a Swiss engagement. All its might and influence were thereafter invested for resisting the implementation of the Notification as against it. The workers not having the full strength as enjoyed by those directly employed in some organised sectors would not willingly part with their humble pie.
3. By an amendment of the Act, the Central Government was made the appropriate Government as regards Air India and other establishments, from 20.1.1986. No excuse of escape route was therefore available for further inaction. At long last, some tangible steps were taken by the State Government, to enforce the Notification. A prosecution was launched against Air India for the offences disclosed by the violation of the statute and the disobedience of the statutory Notification. Air India pressed into service Section 482 of the Criminal Procedure Code by filing Writ Petition No. 1695 of 1987 for quashing the proceedings. Two gratuitous circulars of the Chief Labour Commissioner of the Central Government issued a clarification that the Notification did not apply to the establishments as referred to therein. This was more than sufficient for the State Government to file a statement in the High Court about its intention to withdraw the prosecution. The High Court recorded the submission and dismissed the Writ Petition. The workers were back to square one.
4. They then came to the Court, taking a positive step and with a clear view of their rights and constitutional remedies. A writ of mandamus was sought for, for the meaningful and effective implementation of the Notification with the fulsomeness of its benefits. Understandably, Air India resisted the Petition. The only ground on which the Notification was sought to be disowned by Air India was that as regards its establishments, the Central Government was not the appropriate Government. After an admirably lucid and exhaustive consideration of all relevant aspects, Variava J., repelled the plea of Air India and upheld the claim of the workmen. It is in these auspices that Air India has come up in appeal.
5. We have had the benefit of long arguments before us the pleasing persuasion of Mr. Bharucha, supplemented by the aggressive advocacy – which we appreciate – of the learned Additional Solicitor General. Mr. Singhvi demonstrated his professional loyalty to the labour by his effective elucidations of hazy aspects. At the end of the day, we have come to the conclusion that the finding of the learned Judge is impeccable. In view of the detailed treatment of all aspects by the learned Judge and our clear conviction of its correctness, ordinarily, it would have sufficed to express our agreement with the reasoning and conclusion of the learned Judge, That Would have entailed the dismissal of the appeal. We, however, proceed to deal with the submissions in greater details, as it would give us greater satisfaction to express our appreciation for the helpful arguments, that way.
6. The controversy hinges essentially on the true meaning and scope of the term ‘appropriate Government’ occurring in Section 2(a) of the Act.
7. The definition, as noted earlier, underwent an amendment on 20.1.1986. Thereafter, it is admitted that the appropriate Government, as regards Air India, is the Central Government. Air India has a second string to the bow, even in that situation. It contends that no fresh Notification was issued under Section 10, by the Central Government, after it became the appropriate Government. If we come to the conclusion that even initially, the Central Government was the appropriate Government, it would be unnecessary to consider that subsidiary issue. We have come to such a conclusion in the case and have, accordingly desisted from discussing the second aspect. Though a definite conclusion on the point is thus unnecessary in the circumstances, we may indicate our inclination to affirm the view of the learned Judge on that aspect too.
8. Section 2(1)(a) in its unamended form reads :-
“appropriate Government”, means
(1) in relation to
(i) any establishment pertaining to any industry carried on by or under the authority of the Central Government, or pertaining to any such controlled industry as may be specified in this behalf by the Central Government, or
(ii) any establishment of any railway, Cantonment Board, major port, mine or oilfield,
or
(iii) any establishment of a banking or insurance company, the Central
Government.
9. A direct and concentrated look at the definition would bring home the following features: The definition is vis-a-vis the establishments. In our developing country -fast developing in areas of trade, commerce and industry – there are multitudinous establishments. Understandably, the Central Government is not the appropriate Government as regards all of them. The segregation or separation is based on the nature of the industry to which the establishment pertains. The words qualifying the industry are the crucial ones. The query to be raised is:Is the industry in question, one carried on by the Central Government? Even if it is not carried on by the Central Government is it carried on under the authority of the Central Government? If the answer is affirmative as regards either of the questions, it would place a lid on the controversy. (We need not search for the third category of controlled industry, as no case is put forward on that basis). The enticing etymology and history of the word ‘industry’ would show how the word had shifted a long way from its early sense of ‘intelligent or clever working’ (1494) to the more utilitarian establishment of the House of Industry, recorded from 1696 which is the base of the modern sense of the word. (See Moneyed words : The Growth of Capitalism, in ‘Words in Time’ by Geoffrey Hughes P 84).
10. Air India is engaged in an industry, an important industry, as regards the modern man and modern world – the Aviation Industry. Air Port by Arthur Halley, may bring home even to the lay mind, minute details of that industry. Is it an industry carried on by the Central Government? The answer does not appear to be that difficult. The structure of civil aviation in Britain was transformed by the merger of existing companies to form Imperial Airways. A similar exercise was undertaken in India by the Air Corporation Act, 1970. A consummate analysis has been made in relation to its provisions by the learned Judge. The analysis confirms the nature of the industry in which Air India is engaged in, as the aviation industry.
11. The next step in the ratiocination would be about the person carrying on that industry. If Air India is carrying on that industry as an agent of the Central Government, then, doubtless, the industry in question is one carried on by the Central Government. It would then follow that Central Government is the appropriate Government.
12. The learned Judge, set himself to the difficult task of investigating that question with reference to all relevant factors, carrying with him in that process, and in proper proportions the distilled dicta available from well flavoured judicial decisions. With the analysis of the provisions of the Air Corporation Act, as attempted in paragraph 28 of the Judgment, and the evaluation of other factors we entirely agree.
13. Aviation industry is the virtual monopoly of the Central Government. Other entrants are few and only those who are permitted, to have such short flights. In this respect, it stands on an entirely different footing from that of Food Corporation which is only one among the buyers of foodgrains at harvest times and distributors to needy regions. Unlike in the aviation area, millions of other operators, big and small, are hectic in similar activities. Aviation industry has much more significance that meets the eye. Its link witn the most vital defence organisation arid consequent nexus with the sovereignty of the country itself cannot be overlooked while gazing at the take-offs and landings and in the sounds of booms the sight of signals. Its proximity to sovereign functioning cannot therefore be missed. (See Bakunm on regulating the Airlines P. 216)
14. Coming to the scheme of the Act, we notice that the purse of Air India is provided by the Central Government, its pace is controlled by the Central Government; the pay to its officers is effected in the manner indicated by the Central Government; it is accountable to the Central Government; it is to act according to the dictates of the Central Government. Coupled with its role in activities connected with functions of a sovereign character as well, the inference is irresistible. In truth and substance, the industry is carried on by the Central Government. The establishments are run by Air India as the agent of the Central Government. In essence, Central Government itself is running the aviation industry with its Maharajah form Even without bifocals, binoculars or multiple microscope, and even to a wearied eye, the figure is familiar with the chubby cheeks and majestic moustaches A veil-lifting operation is supremely superfluous to see the real personality. The King is naked. Variava J. said so. We fully endorse the view.
15. The Additional Solicitor General attempted to cut out an escape route from the concerned situation by relying on the Food Corporation case Food Corporation of India Workers Union v. Food Corporation of India, . That was his sole sortie; that was his scud missile. Relying heavily on it, he submitted that it was a binding precedent and that we should hold that every enumerated Corporation in the latter part of definition of the term in Industrial Disputes Act would be ipso facto outside the definition of the term ‘appropriate Government’ as occurring in the Act.
16. Mr. Additional Solicitor General did not spare any energy or time in researching on, and citing before us, decisions on the place of precedents. Precedents no doubt have their place in law. Precedents, of course are there in other walks of life as well. On the death of Queen Victoria, Esher went to Windsor Castle and noted:
“Today all has been confusion. Precedents date back sixty years…. The ignorance of historical precedent in those whose business it is to know, is wonderful.”
There is another but pejorative reference to Precedent by a queen herself. “Queen Adelaide had a delightfully idiosyncratic disregard for the humbug of precedent”
17. When spirited submissions were made, we confess, we did not present a pleasing pause of silence; we proceeded with academic curiosity, to extensive areas of soulless rigour of precedent ; and express ourselves –
“So plain that men on every passing thought may look like fishes gliding in a crystal brook”
(Aurang – Zele Dryden IV, 1; 41-5).
The result was a refreshing addition of precedents on the next day of his
arguments:
(i) Ballabhdas Mathuradas v. Municipal Committee, .
(ii) Pradyut Natwarlal Shah v. S.N. Sanf gani .
(iii) T. Govindraja Mudaliar v. State of Tamil Nadu, .
(iv) Smt. Somvati v. State of Punjab, .
(v) G.K. Duclani v. S.D. Sharma, .
(vi) KM. Ghatale v. Union of India, .
18. We can supplement the list of precedents by re-reading some clear thoughts available from another country as well, by reference to those of immediate past:
(1) Re Hetherington (decd) Gibbs v. Me Donnell and Anr., 1989 2 All. E.R. Ch.D. 129
(2) Ashiville Investments v. Elmer Contractors, 1988 2 AII.E.R. 577 (582).
One sentence is particularly interesting:
“Incorporations of proposition of law assumed to be correct in the ratio decidendi does not create a precedent.”
Baker VR 1975 3 AII.E.R. 55 (64)
Basse v. Bethell 1982 1 AII.E.R. 106 (116).
19. The same is orchestrated littany all over the common law countries. Invariably, they end up with the familiar statement as made, as for example in a typical case by a typical Court of America. “Each case must be determined by the facts and circumstances disclosed therein”. Young v. Brozon 46 S.E. 2nd 673.
20. A note of caution on precedents is always available in legal literature. In its opening issue, the Nagpur Law Journal observed thus as regards precedents:
“……….. few have that sharp and deep penetration into facts which can abstract a legal principle out of them,”
and cautioned:
“Slavish mechanical reliance on the reasoning of others or their decisions is a stumbling block in the evolution of thought and unless reason does her function to the best of the powers and strength, no good out-turn in the advancement of legal thought can be expected”
We have learnt the elementary proposition that in a set up upholding the Rule of Law, the emphasis is not on the reason of authority but on the authority of the reason.
Courts of law cannot overlook the background of the law and the large number of relevant factors that go to interpret the law. They would not emulate that simpleton soldier who in all innocence, understood and literally obeyed implicitly a dress Regulation that “Trousers will not be worn when ladies are present” – a regulation which was intended to ensure that he should on such occasions wear only Kerseymere breeches.
21. When a decision is rendered by the Apex Court, it is the law of the land. That is trite law. In the additional written submissions filed by the learned Additional Solicitor General, an added endeavour was made to bring home the point. It was indeed a redundant exercise. One of us (K. Sukumaran J.) had expressed a recent decision Philip v. Mariamma, I.L.R. 1988 (1) Kerala, at 533, giving in the Judgment a sub-title on “effect of the Article 141 of the Constitution, and making a reference to and extracting from the decisions of the Supreme Court, some of which have been missed in the submissions of the learned Additional Solicitor General.
22. What exactly is the ratio, is still a matter for careful examination and clear detection. The ratio in Food Corporation’s case is that the establishment of Food Corporation is not run under the authority of Central Government. And only that. We shall not miss the thrust and emphasis of the observations of the Supreme Court to that effect, in the very decision. To cite only a few instances of such observations:
(1) “However, an investigation is necessary to collect factual details to ascertain whether the Corporation comes within exemption indicated in Clause (para 7, concluding sentence);
(2) It the Food Corporation of India was an industry carried on…. (para II);
(3) Be it made clear that it was not suggested that the various establishments of me Corporation pertain to any controlled industry;
(4) We hold that the appropriate Government for the purpose of this case pertaining to the regional offices and their warehouses in the respective States in the State Government………”
The instances are only illustrative and not exhaustive. Even without these additional thrusts, there could not be any doubt about the issues before the Court as pertaining to Food Corporatjon, and the answer given by Court as applicable to the Food Corporation. To miss it, even when the bright lights are on, would be confessing stark blindness or perverse defiance to recognise facts attributes which Court would do well to shun.
23. Heavy Engineering Union case referred to and discussed in Food Corporation’s case, was the subject matter of discussion by the Supreme Court and in the context of the Contract Labour question in Regional Provident Fund Commissioner, Karnataka v. Workmen, . After noticing what the Court held in Heavy Engineering’s case, the following further observations were made:
“The Court, however, proceeded to observe that the question whether a Corporation is an agent of the State would depend upon the facts of each case. It referred to the decision in Graham v. Pubic Works Commissioner, (1901) 2 KB, 781 and said that where a statute setting up a Corporation so provided such a Corporation could be easily identified as the agent of the State and that it was possible for the Crown with the consent of Parliament to a’ppoint or establish certain bodies constituted by the Government for purposes of administration are given the garb of a statutory corporation they do not cease to be what they truly are.”
24. Four years later, the Supreme Court discussed Heavy Engineering case again in , (which is sometimes referred to as C.V Roman’s case and at other times as Stalin’s case; the name does not matter). Paragraph 13 makes a reference to Regional Provident Fund Commissioner’s case (supra) and to the observations in Graham’s case (1901 2 KB. 781). It is not without reason that all the Courts, the Supreme Court and the High Courts, had repeatedly stressed by extracting in its entirety, the sentence in the Heavy Engineering case:
“The question whether a Corporation is an agent of the State must depend on the facts of each case.”
Be it noted that the Supreme Court had repeatedly referred to the concession made in Heavy Engineering case, as is evident from paragraph 2 (“Before High Court, it was conceded that the Company was not an industry carried on by the Central Government”) and from paragraph 3 (“As was done before the High Court Mr. Nag conceded that he would not contend that the Company is an industry carried on by the Central Government.) We shall also not miss a crucial sentence in paragraph 6 of that judgment:
“The definition…suggests that an industry carried on by or under the Government means either the industry carried on directly by a department of the Govt. as the Posts and Telegraphs, or the Railways or one carried on by such department through the instrumentality of an agent.”
Variava J., found pointedly that the Airway is just like the Railways; the Airways
was carried on by the Central Government through the instrumentality of an agent. Here are the very words of the learned Judge:
“It is clear that the 2nd Respondent is an agency of the Central Government.”
25. While considering the question of ‘appropriate Government under a cognate enactment, a learned Judge of this Court did not find any shackles on thoughts and felt free to analyse independently the ingredients of the section as is seen in Srivastava’s case. We feel it highly profitable to extract the passage in its entirety lest its lucidity may be missed or appear attenuated:
“This question will have to be decided on the facts and circumstances of each case depending upon the manner in which the statutory corporation in question is set up and the manner in which it functions and discharges its obligations. It is possible that in a given case a corporation would not have been considered as an industry carried on by or under the authority of the Central Government. But by virtue of its express inclusion in Section 2(a)(i), a reference in case of such a corporation is required to be made by the Central Government. It is equally possible that in the case of another Corporation, on the facts and circumstances relating to that Corporation it can be seen that it is an industry carried on by or under the authority of the Central Government. Its express inclusion in Section 2(a)(i) will not make the first part of Section 2(a)(i) inapplicable to it. (See International Air Port Authority v. P.K. Sriwastava : 1987-1 Lab LJ 212.
The analysis fully accords with the directions in interpretation as given by the Supreme Court in Sankar Mukerjee’s case:
“The Act is an important piece of social legislation for the welfare of the labourers and has to be literally construed.”
(See Sankar Mukerjee v. Union of India,.)
26. A Division Bench (P.B. Sawant J, as he then was and Sujata Manohar J.) expressly referred to the above decision in an approving strain (See Bombay Telephone Canteen Employees Association v. Mahanagar Telephone Nigam Ltd., 1989 Mah L.J. 6). Variava J., enthusiastically, and in our view, rightly, adopted that approach. We would have independently perched on the same safe and lofty branch.
27. We affirm his conclusion and adopt and approve of the train of thoughts which he had taken that heavy haul to the safe station and the correct destination.
28. We were told about the value of judicial discipline; the resultant chaos if such discipline is jettisoned was hammered on by the learned Solicitor General. We almost felt that he was using a sledge hammer to break an egg. The proposition is ingrained in our system; it is an internal part of the pattern of our functioning. We have no hesitation in rejecting his submission that Variava J. broke the Code of Judicial discipline. We do not feel that we breach judicial discipline in affirming Variava J.
29. One of us (K. Sukumaran J.) sitting in Kerala High Court, asserted that judicial discipline should not be equated with mental slavery. (See Thampi v. Mathew, 1987 (2) K.L.T. 848) The academic critics appear to have appreciated that view point. (See 1990 (1) K.L.T. Journal Page 39). Such was the stand of that High Court when it was asked to follow a decision of the Supreme Court regarding provisional employee’ as laid down in Jacob v. Kerala Water Authority, : 1991-II Lab LJ 65 that even when Counsel cited the decision of the Supreme Court in Jacob’s case and argued mat the High Court had no option but to blindly apply it in cognate situation, it declined to extend it to other or similar areas. The manner in which the High Court did not incarcerate itself into the prison of precedent is demonstrated by the latest decision on that aspect now available in K. Rajan v. Kerala Electricity Board 1992-II LLJ 728. It is some relief that the Supreme Court has adopted the Kerala stance as the correct one in Delhi Development Horticulture Employees Union v. Delhi, : 1992-II LLJ 452.
30. We were told that when the Central Government took the view that as regards Air India, it is not run by the Central Government and consequently the Central Government is not the ‘appropriate Government’ there is an end of the enquiry by the Court and that all that remains for the Constitutional Court is to give it a Homeric nod. The communications of the Government of India Officials in 1971, the Circulars of 1986 and decision of 26.3.1992 are paraded as the declarations of the Central Government. It is impossible to accept that stance which questions the existence of Courts, detracts from their role and undermines their authority. We cannot transport ourselves to the earlier days of French tyranny, when Louis XIV said “L”, etat, C’ est moi” (“I am the State”) and Louis XVI said 1789: It is the law because I wish it.” Soon after the advent of the Constitution, the position was unmistakably clarified by the Supreme Court (and in a decision in a case which arose from this State) (See Commissioner of Police v. Gordhandas Bhanji ):
“We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the Officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
31. It is too late in the day to dare sing Hallelujah to Contract Labour. It is one of the ugly and unruly offsprings of classical capitalism. A Prime Minister of England, with literary talents as well, made his character, Sybil, in ‘Two Nations’ (Published in 1845) exclaim bitterly :
“The capitalist flourishes, he amasses immense wealth; we sink, lower and lower; lower than the beasts of burden.”
(See Words in Time by Geophery Hughes P.85).
The contract labour was little better than the beasts of burden.
32. All strong epithets have been used to expose its crude and cruel features by Royal Commissions, Labour Parliament, Pit-boys Commissioners, by Tribunals and Courts – the Apex Court included. ‘Archaic’, ‘primitive’ ‘of baneful nature’ are only some of them as used Southern Railway caterers case : 1987-I Lab LJ 345. A typical case of cruel exploitation of workmen through the medium of contract labour was visible in the Plantation Industry. The penal provisions, the police and the Magistrate Courts were used to see that the workmen did not leave the plantation, even occasionally, to their native village and home surroundings. The State of Kerala appointed a Committee (with Mr. P. Balagangadhara Menon, a leading lawyer with intimate connection with labour problems) to enquire into the operative system and the desirability of eradication of the evil. That was in the year 1959. On the basis of the Report, the Contract labour system was done away with. Similar cries of bonded labour were heard in other parts of India as well. The Courts and Tribunals were soon in seine of that question. Now, the final say has been made by Apex Court, the legal principles bearing on contract Labour have been encapsulated in Standard Vaccum Refinery Co’s case : 1960-II Lab LJ 233. After due and long deliberation, the Parliament of India also frowned upon the system when it enacted the Contract Labour (Regulation and Abolition) Act, 1970 which was brought into force on 10.2.1971.
33. It is not as though it was a hasty legislation. Historical facts would indicate a conscious slant towards Socialism on the part of the enlightened administrators with ideological fervour and international insight. The process started in 1954 when socialism was adopted as the governing spirit of the ruling party and later got entrenched into its programme at the Avadi Congress in 1955. The architects of the policy were not blind zealots or dare-devil dogmatists. The first Prime Minister of India noted the distinguishing nuances in the philosophical principles and their practical applications in countries with different stages of development. A helpful publication of the Government in Bombay – The Maharashtra -has preserved in its pages some such thoughts:
“The socialist programme in developing countries cannot be the same as the one foreseen by Marx for the industrial Countries of Western Europe in his time”. (See Maharashtra – dated 1.6.1967, page 4).
34. The chronicled events in the implementation of that socialistic programme are also available from the autobiography of one closely and directly associated with those historic feats – one of the finest Finance Ministers of India, a much praised member of the India Civil Service, an eminent educationalist and one who had been called to the Bar – Dr. C.D. Deshmukh. He was no blind opponent of the private sector. Whenever a positive contribution had been by the private sector, he had openly acknowledged it. He noted how on the positive side, many socialistic measures had been carried through without causing over much distress to the interests concerned.” He lamented how things were so manipulated and administration itself; “influenced by industrial magnates not to give me any further opportunities of perpetrating socialistic measures”; and how “after my departure the rightists……..had made their influence felt”. That is now an old story. The Constitution itself has been amended in 1976, to envelope socialism as an essential component of the Constitutional programme and methodology.
35. The Supreme Court of India has emphasised that aspect and feature of the Constitution in more decisions than one, and without any discordant note or dissent. Some of the decisions are: (1) Akadasi v. State of Orissa, ; (2) Excel Wear v. Union of India,: 1978-II Lab LJ 527 and (3) Bachi Ram v. Union of India, . A Conservative Judge had observed hastily when a local authority did something to mitigate hardship of the women. It was even characterised as ‘socialistic eccentricity’. That was in 1925 and done by the Court of Appeal then. The Judges of those times were of a mental approach as evident from the decision in Liversidge v. Anderson, when Lord Atkin was the sole dissenter; that attitude in the later times as has changed is discernible from the decision of the House of Lords in 1978. It is impossible for democratic socialistic republic to go back to reactionary or primitive times. Experiences here and outside would give us many lessons. We live and learn. Correctives may be needed in matters of details or even in more basic areas of functioning. All such changes can, and need to be, made by any agile government. Yet, it is necessary to realise the limitations and conditionalities of the existing Constitutional and legal framework. You may have to put the mobile in a reverse gear when the exigencies require it. It is always useful to be aware of the speed and limitations of the gear.
36. Let us examine the nature and activities in respect of which a prohibition has been imposed by the Notification under Section 10. The prohibited activities are in relation to cleaning, dusting and sweeping.
37. Physical cleanliness is part of our daily routine. A Prime Minister has gone on record expressing his anguish when, on a visit to a mighty State, he came across a sea of unwashed humanity. India is noted for its insistence on cleanliness. A text on Statistics (by Seetharaman) published many decades back, stated with a demonstrative sentence reading:
“The people of Kerala are clean in their habits”.
This image of cleanliness was long before the spread of message on soup, soap and salvation, which gained momentum in the West. Cleanliness is next to Godliness -asserted ‘Mr. Clean’. India extolled cleanliness in word, thought and deed. Cleaning is thus a daily routine in the Indian system. Even before the rosy hands of Dawn are seen, the house-wife is there to cleanse her Courtyard.
38. Dust has its philosophic attributes. ‘Dust though art; and to dust you return’ – is a grand message. Dusting operations are necessarily part of a daily routine. Sweeping is always associated with a cultured life and a civilised living. Its effect is somewhat conveyed by the aphorism:
‘do not make sweeping generalisations from isolated instances’
All are aware of the showy enthusiasm of fresh brooms to sweep cleaner.
39. It was good that the pernicious system (of Contractor Labour) was done away with in 1976. There could not be much difficulty to continue a cultured life.
40. We need not dilate further on the nature of those works, in view of the authentic pronouncement of the Supreme Court:
“It is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day. Such work is generally done by workmen in the regular employ of the employee .
See Standard Vacuum Refining Co. v. Their Workmen . These observations were made in a case where the Supreme Court found the Contractor a real one, and not a camouflage. The notification dated 9.9.1976 prohibiting Contract Labour was a conscious decision
translating into action the laudable objectives of the Act and brought about a qualitative change in the atmosphere of the employment complex. There is no longer any apprehension about an apparition of Contractor haunting and harassing the labour.
41. The provisions of the Act and the Notification, therefore, cannot be ignored. Those who violate it do so at their peril. Once within its vortex, no one can wriggle out of it. If there be any re-thinking on the part of the Government, that has to project itself through – and only through – a clear and positive legislative exercise. What cannot be done directly will not be permitted to be done slyly or surreptitiously.
42. We must hasten to add that it is farthest from our intention to entrench on areas of policy formulation which are entirely for the Government of the day to evolve and implement.
43. When the Constitutional policy decision is clearly set out on the constitutional framework clearly cast, no one can attempt putting spokes in the wheel. Operations are possible only within that framework. If any obsolescene is noted, steps for renewal or rehabilitation will have to be undertaken. No administrative or legal action contrary to the scheme of socialistic goal and social justice – objective can be undertaken unless and until the framework itself is duly and legally altered.
44. We pointed out to the learned Additional Solicitor General that it was unnecessary to remind us on that aspect, when we sensed such an attempt on his part. A recent Full Bench decision of this Court in Ashwin Pimpalwar v. State of Maharashtra 1991 Mh.L.J. 1336 (to which one of us, K. Sukumaran J., was a party) stated the proposition without giving room for any doubt. We refrain from quoting from the decision. To quote oneself, and at length, is poor taste.
45. When we have affirmed the finding of the learned Judge regarding the binding character of the Notification on Air India, normally there should be the affirmance of the reliefs granted by the learned Judge. Here again, there was disputation about the appropriateness of grant of relief in the manner done by the learned Judge.
46. It was contended that even if the Notification under Section 10 is violated with impudence, it could only, at the most, expose the violator to penal action under Sections 23 and 25. No other civil consequences would flow from the arid areas of the Act – according to the Appellants. The decision in Dena Nath’s, Dena Nath v. National Fertilisers Limited 1992-I LLJ 289, was relied on in that connection. In particular, stress was laid on the observations contained in paragraph 22, where the Supreme Court expressed its disagreement with the observations of the Madras and Bombay High Courts regarding the effect of the violation of provisions for registration and the consequences of non-registration. Understandably, the Kerala, Delhi and Punjab decisions were cited and relied on as adventitious aids for the Appellants.
We have necessarily to bear in mind the important distinctive features of that case. The emphasis in paragraph 21 of the Judgment cannot be missed. See in particular, the observation:
“In the present case and other connected Special Leave Petitions no Notification has been issued under Section 10 of the Act vis-a-vis establishment with which we are concerned.”
47. Paragraph 13 of the Judgment posed the question which arose for consideration: can the Court direct the contract labour employed to be direct employee of the principal employer, merely on the question of non-compliance with Sections 9 or 12? The view taken by the Madras and Bombay High Courts that even in such cases, an absorption of contract labour as permanent labour, was rejected by the Supreme Court. In the Kerala
case, a person employed under a contractor running a catering unit, wanted absorption in the Railway Service. That overambitious claim was turned down by the High Court. The Supreme Court, obviously, had no occasion in those cases to consider the effect and impact when a notification under Section 10 had also intervened.
48. A notification under Section 10 is not a simple event. It is a matter of great moment and of serious consequences. Much spade work, in the form of collection and collation of data and other materials, consideration of such materials and evidence, discussions, deliberations and debates, and processing at various levels of the Government -all precede issue of a Notification under Section 10. An employment postulates a vinculum juris. The factum of employment is not disputed. The employees are admittedly there at one end of the vinculum. Who is there at the other? The contractor or Air India? The Notification under Section 10 settled the question finally; things are in brighter light thereafter. There is no longer any ghost of the Labour Contractor. There is the direct nexus between the workers and Air India. The impact of the concept of private enforcement and criminal enforcement is dealt with in Legislation by Miers and Page at pages 219 to 223 and other text books. The impact of the Notification is massive. Its effect is something similar to that indicated by the Supreme Court while dealing with the abolition of contract labour in the Standard Oil Refining Co’s. case Supra. It may be noted that in the aforesaid case, the Supreme Court did not content itself by a mere declaration of the disappearance of the Contract from the employment complex. It gave a further and more important directive for the preferential treatment to be accorded to the contract labour in the absorption of contract labour in the permanent employment of principal employer. The absorption as a permanent employee under the principal employer is a substantial benefit contract labour could aspire for. No responsible Court could miss the effect and implications of such a direction. If that is so, in relation to an award of a Tribunal, clearer may be the implications arising from the issue of a Notification under Section 10. Even then, to direct the employee to be satisfied with the spectacle of an employer being prosecuted for violation of the provisions of the Act and of the Notification under Section 10, would be a cruel joke on the workers. The workers have been, by now, fighting for their rights for over a decade and half after the Notification. In that process, they have worn much dirt and rain they have suffered severe stress and strain – a situation which brings to mind, the lines of William Morris:
“Has she come all the way for this to part at least without a kiss?”
We are clearly of the view that the workmen are entitled to tangible results and specific benefits.
49. It has become unnecessary for us to search for stronger support in theoretical fields, in view of a clear and strong guide post available from another decision of the Supreme Court, in Sumar Banerji’s case supra. That was a case where segment of workmen complained of discrimination in being excluded from the benefit under the provisions of the Notification under Section 10. The Supreme Court upheld their plea about unjustified discrimination. The result was their established entitlement to the benefit of the Notification. Therefore, conies the directive relevant for the purpose of our present case. The direction was:
“We direct that the petitioners …. be treated at par with effect from the date of the Notification that those who are doing the work of……and clearing. It is further directed that the workmen doing the job of loading and unloading have been retrenched during the pendency of the Writ Petition to put in service with all back wages…..”
(See Samar Banerji v. Union of India 1990-II LLJ 440)
The direction was for reinstatement with all back wages. That throws much light on the entitlement of contract labour in the wake of a Notification under Section 10. The Petitioner have been attending to these works admittedly for over a decade. Their areas of work are not such as require expertise or sophistication of skills. In that view, we are fully justified in affirming the direction of the learned Judge in the grant of reliefs. The Petitioners will be entitled to be absorbed as permanent workers in Air India. If any problem arises in respect of any worker or group of workers, appropriate clarification can be sought from this Court.
50. In the course of the hearing, the learned Additional Solicitor GeneraF submitted that on the basis of a report submitted by the Government, the Union Government has taken a decision not to prohibit the Notification to contract labour in the establishments of Air India; that consequently, we should allow the appeal and dismiss the Writ Petition taking due note of the subsequent developments coming as it does from the learned Additional Solicitor General. It would be certainly open to a Court to take note of subsequent events, particularly in modulating the reliefs. That does not, however, oblige the Court, particularly an appellate Court, to reverse a decision on the basis of a subsequent order, when the validity of the new order is in serious dispute. We do not express any final view on the legal efficacy of the order. It would, however, prima-facie appear that without a valid exercise under Section 10 revoking the Notification, the effectiveness of the Notification which held the field from 1976, could not be done away with.
51. We may note in this connection the earlier conduct of Air India. In 1971, the Central Government notified the registering officers under whom registration of establishments falling within the purview of the Central Government, had to register themselves. Air India was issued a specific communication in that behalf. It was not a signal on the hazy radar screen, but a dispatch of a fatal fact for responsive action in that behalf. Air India got itself registered under that officer, and without demur. The manner in which it attempted to wriggle out of the situation is a shabby one. A letter indicative of its withdrawal on the basis of a telephonic advice received from the officer of the Labour Commissioner’s office, is put forward as an excuse and as an effective insulation against the positive operation of the provisions of the Act. We express our disapproval of the manner in which such attempts have been made. A matter of such consequence for the workers, who get considerable benefit on the basis of the registration of the principal employer, and from the binding effect of a Notification under Section 10 could not be got away, by secretive deals or surreptitious correspondence as has been undertaken by the Appellants. A serious decision which jettisoned the Central Government from its position as the ‘appropriate Government’ is seen to have been taken on the basis of a telephone communication. We are clearly of the view that Air India erred grievously in the manner in which it conducted itself in the matter. A matter of such consequence should not have been treated in such a light vein as a telephonic query regarding the ETA of a plane.
Of course, old habits die hard – particularly for the feudal overlords. One of them took pride in parading the virtue in reducing the strength of the harem from 300 to 30. Quite often, the obstinate policy is pursued, “takht or takhta” (throne or coffin): Habits of adjustments and accommodations wherever they are possible or permissible are unknown to them. The temptation to revert back to ‘good old’ days (such as those described by Dicey in relation to the mid-Victorian period as preeminently an age of individualism and Laissez Faire) is always there. It is, however, useful to remember that the world is no longer in that morning haze of mid-victorian period. It is already midday, The 20th Century, Dicey said, is one of ‘Collectivism and State intervention’ (See Lectures on the Relation between Law and Public Opinion in England during the 19th Century, by A.V. Dicey 2nd Edn.’ 1914).
52. We have had very many occasions where allied problems of contract labour including those in Air India, had to be tackled at different stages of interlocutory proceedings. Many materials and contentions presented themselves, recurringly in connection with such litigative exploits. We are saddened by an impression that there are some unseen and unseemly hands pulling the strings from behind, in the operational fields of contract labour, both at Bombay level and at the higher bureaucratic planes. It could deal with this problem in a more humane and pragmatic way. We hasten to add that this general impression has not in any way influenced our conclusion reached independently. Needless to add, these prima-facie observations, shall not in any way inhibit the Court which undertakes the examination of the pleas and contentions centering round the order of the Union Government dated 26th March, 1992.
53. We have repelled all the contentions of the Appellants. The costs, ordinarily follow the want. Yet, having due regard to the desirable cordiality in the relationship of the parties and an overall consideration of all aspects, we refrain from making any order as to costs.
54. We are now at the end of the flight. The ‘Fasten Seat Belt’ signs have shone. The weather is good; visibility is all right. The lights are on and the run way bright. It is a safe and smooth landing. “Disarm all doors” – has come as the command from cockpit. The ladder is safely tackled; the door is open. All that remains to be done is to bid good-bye; with folded hands and a pleasing smile. That we do, while dismissing the Appeals.
Immediately on the pronouncement of the Judgment in these Appeals, learned Counsel appearing for the Appellants sought leave for taking up the matter to the Supreme Court.
We do not find any issue which, in our view, is required to be decided by the Supreme Court. The prayer is, therefore, declined.
Counsel for the Appellants made an application for stay of the operation of the Judgment.
We do not find any ground whatsoever for granting the prayer. The prayer is declined.