JUDGMENT
1. Prayers made in para 10(AAA) are not pressed. Other prayers as contained in an amendment dated December 19, 1995 moved by Mr. Shabani, learned Counsel for the petitioner are also not pressed. This Special Civil Application has been flied by Bijli Mazdoor Panchayat on behalf of the workmen enlisted in Annexure ‘A’ filed with the Special Civil Application. It is submitted that all these workmen enlisted in Annexure ‘A’ were working with respondent No. 4 who was holding the contract labour of the Gujarat Electricity Board. The period of contract of respondent No. 4 was to be over on September 30, 1995 and respondent No. 5 was given contract by the Gujarat Electricity Board for a period of one year commencing from October 1, 1995 (sic). Respondent No. 4, therefore, terminated the services of these workmen as his contract period was going to be over on September 30, 1995. The present Special Civil Application was filed on September 28, 1995 and on September 29, 1995 notice returnable by October 5, 1995 was issued. While filing Special Civil Application respondent No. 5 was not impleaded as party and he was impleaded as respondent later on, i.e., on October 6, 1995. The grievance raised on behalf of the petitioner union was that the employees enlisted in Annexure “A” were working with respondent No. 4 for Gujarat Electricity Board for number of years, i.e., for a period of 7 to 8 years and they could not be rendered jobless at this stage and while giving contract to respondent No. 5, the Gujarat Electricity Board ought to have put the condition in the contract entered with respondent No. 5 that respondent No. 5 would carry the burden of the employees who are working with respondent No. 4 for Gujarat Electricity Board. However, the fact remains that no such terms was included in the terms of the contract between Gujarat Electricity Board and respondent No. 5. After the returnable date October 5, 1995 the matter came up before the Court several times but learned Counsel representing respondent No. 5 at that time having sought time on October 18, 1995 did not appear on the subsequent dates. Even on November 6, 1995 when the matter came up before the Court no one appeared on behalf of respondent No. 5. After hearing the learned Counsels who were present representing other parties Rule was issued and made returnable on November 27, 1995 and an order was passed that respondent No. 5 shall allow the members of the Bijli Mazdoor Panchayat enlisted in Annexure “A” to continue in service as they were, continuing under respondent No. 4 prior to September 30, 1995 with a liberty to respondent No. 5 to apply for vacation/modification of the order after complying with the order passed by this Court on that date and after filing para wise reply to the main Special Civil Application. Against this order dated November 6, 1995 passed by this Court a Letters Patent Appeal was preferred by respondent No. 5 being 1063 of 1995 and the same was dismissed as withdrawn on December 11, 1995. However, the fact remains that direction dated November 6, 1995 to allow the workmen enlisted in Annexure “A” to continue in service with respondent No. 5 was complied with on November 18, 1995 and it is given out by Mr. Shahani that 23 out of 27 workmen enlisted in Annexure “A” reported before respondent No. 5 and they are continuing. As against this Mr. Buch, appearing on behalf of respondent No. 5 has contested this Special Civil Application and has submitted that 9 out of 27 workmen did not report on duty and only 18 workmen out of 27 included in Annexure “A” are working with respondent No. 5.
2. In the main Special Civil Application, the prayer was made that respondent No. 1, i.e., State of Gujarat be directed to refer the demand of abolition of the contract labour to State Contract Labour Advisory Board and the Board may decide the reference within certain period as has been mentioned in prayer (A) and further that respondent No. 2, i.e., Regional Provident Fund Commissioner, Ahmedabad be directed to conduct the inquiry under Section 7A of the Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 to ensure that the employees become members of the provident fund immediately. Later on, an amendment was moved on December 19, 1995 by the petitioner union and through this amendment a further direction is sought to make reference with regard to the demands referred by the petitioner in para 7(C) of the petition before appropriate Tribunal/Court. Besides this a further prayer has been made to seek compliance of certain provisions of the Indian Factories Act through Inspector of Factories and to launch prosecution. This amendment was granted on December 19, 1995.
3. Now while the pleadings from both the sides are said to be complete except with regard to the amendment dated December 19, 1995 which is mainly an amendment to include some more clauses, it was submitted by all the sides that in the facts of the case, the whole matter may be disposed of at this stage.
4. The whole controversy has been precipitated because of the contract labour system being used in the Gujarat Electricity Board at Gandhinagar Power Station and the Gujarat Electricity Board holds licence for utilising the contract labour system. Mr. Pandya appearing on behalf of the Gujarat Electricity Board has submitted that the Board is not under any statutory obligation to put any terms in the contract that the services of the employees of the previous contractor shall be continued by the new contractor but realising that the absence of such a terms of contract creates legal complications and may result in prejudice to the employees who have worked for a long period with the particular contractor, he has very candidly stated that the Board would keep this aspect of the terms in mind in future when such contracts are entered and if the contract labour system remains permissible and the circumstances warrant the Board would ensure that such a term is included in the terms of contract with the new contractor so as to avoid such complications and multiplicity of the proceedings.
5. Mr. Buch who entered appearance on behalf of respondent No. 5 on December 18, 1995 only has submitted that he has accepted this contract and has started working for the Gujarat Electricity Board from October 1, 1995 under the new contract which has been given to him for one year only. He submits that respondent No. 5 started working with his own fleet of employees although the allegations have been made by the petitioner that all these employees with whom respondent No. 5 came were recruited by respondent No. 5 only for the purpose of contract which has commenced on October 5, 1995. All these averments have not been specifically denied in the pleadings of respondent No. 5. Mr. Buch has stated orally that there are 17 employees who were already working with respondent No. 5 prior to entering this contract with Gujarat Electricity Board and now he has to carry the burden of the employees who had worked with respondent No. 4 also and therefore, even if these employees are allowed to continue with respondent No. 5 at least it may be clarified that respondent No. 5 shall not be liable for breach of any of the provisions of the Industrial Disputes Act committed by the previous contractor, i.e., respondent No. 4 and respondent No. 5 may not have to carry on any liability of respondent No. 4 with regard to the failure of the provisions of the Industrial Disputes Act and other Labour Laws for any period prior to November 18, 1995 because that is the date on which the orders were passed with regard to the employees of respondent No. 4 in pursuance of the interim order passed by this Court on November 6, 1995 and because the order dated November 6, 1995 passed by this Court was complied with on November 18, 1995 with effect from November 8, 1995, i.e., following the date of November 7, 1995 on which date the order dated November 6, 1995 was served, all the employees who had reported are paid from November 8, 1995.
6. It is an undeniable fact that despite the Act for the abolition of the contract labour, in appropriate cases the Government grants permission for the purpose of contract labour to appropriate establishment in accordance with the provisions of the Act itself and at times it creates problems if care is not taken to include appropriate term in the new contract to watch the interest of the employees who have been working with the previous contractor for a long period. This predicament is being faced in many establishments but in the facts and circumstances of the case when it is found that the employees who have worked for a period of 7 to 8 years they may he little more useful to respondent No. 5 in comparison to the new recruits or employees who may be having less experience. I think it proper to direct that the employees who have already reported by now before respondent No. 5 may be allowed to continue for the period of one year of the contract, i.e., till September 30, 1996 and in case the contract is renewed with respondent No. 5 for further period they would further continue.
7. It appears that the petitioner union had approached the State of Gujarat only recently, i.e., in the month of September, 1995 only for the purpose of seeking abolition of the contract labour system vide application dated September 4, 1995 and immediately thereafter the present petition was filed. Therefore, it is clear that much time had not lapsed after the date of the application and respondent No. 1 did not get sufficient time to go ahead with the question of reference; but, for reasons of expediency none of the parties have any objection if respondent No. 1 is directed to consider the question of making reference to the State Contract Labour Advisory Board and if the Regional Provident Fund Commissioner is directed to conduct the inquiry, under Section 7A of Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. So far as the prayer made in the amendment dated December 19, 1995 seeking direction to make reference of the two demands referred by the petitioner in para 7(C) of the petition :
“I further say that our Union has submitted the demand for deciding the status of our members to the respondent No. 3. Thereafter, we have also sought intervention of Conciliation Officer on September 26, 1995. Inspite of this background and service of this petition on this respondent No. 3, on September 29, 1995 (last evening), the said respondent had acted contrary to the prayers of Interim Relief and has recruited about 25 fresh unskilled workers on daily wages since October 1, 1995. Therefore, it is the fit case where effective interim directions may please be issued by this Hon’ble Court for restoring status quo as on the date of notice”
is concerned, Mr. Pandya submitted that in view of the fact that the amendment was sought on December 19, 1995 only he has not been able to put the case of the Gujarat Electricity Board in this regard and therefore, all that can be said is that respondent No. 1 may consider the question of making reference as expeditiously as possible as soon as the Conciliation Officer submits his report.
8. Having considered all the aspects of the matter and having heard the learned Counsel for both the sides and keeping in view of the suggestions which have been made on behalf of both the sides it is directed as under :
(1) Respondent No. 1 shall consider the question of making reference of the demands with regard to the abolition of the contract labour system in the Gujarat Electricity Board at Gandhinagar Power House in respect of the contract work in question. The State of Gujarat shall consider and decide the question of making reference as expeditiously as possible but in no case later than January 31, 1996. In case the reference is made to the State Contract Labour Advisory Board, it shall decide the reference on priority preferably within a period of eight weeks from the date the reference is received and thereafter the State of Gujarat shall take final decision on the basis of the report made by the Board within reasonable period preferably one month.
(2) Regional Provident Fund Commissioner, Ahmedabad, respondent No. 2 herein, is directed to conduct the inquiry under Section 7A under Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, as early as possible but in no case later than a period of three months from the date of the receipt of the certified copy of this order.
(3) Respondent No. 1 shall also consider the question of making reference with regard to the petitioner union’s demand, i.e. –
“7(C) I further say that our Union has submitted the demand for deciding the status of our members to the respondent No. 3. Thereafter, we have also sought intervention of Conciliation Officer on September 26, 1995. Inspite of this background and service of this petition on the respondent No. 3, on September 29, 1995 (last evening), the said respondent had acted contrary to the prayers of Interim Relief and has recruited about 25 fresh unskilled workers on daily wages since October 1, 1995. Therefore, it is the fit case where elective interim directions may please be issued by this Hon’ble Court for restoring status quo as on the date of notice”.
in case pending conciliation proceedings fail. The respondent No. 1 on receipt of failure report from the Conciliation Officer would decide the question of making reference at the earliest possible opportunity.
(4) Employees of respondent No. 4 who have already reported before respondent No. 5 shall be continued in the services with respondent No. 5 for the period of contract, i.e. upto September 30, 1996 or till the contract survives. But while continuing these employees in the service, it will be open for respondent No. 5 to adjust them with reference to the place of working at any site other than the present one and in doing so due regard shall be given to the length of the period for which the employees of respondent No. 4 who have joined respondent No. 5 and the employees who are employed by respondent No. 5 itself. Respondent No. 5 shall prepare a list in the nature of seniority list on the basis of the data which may be made available by the petitioner union and which may be available with respondent No. 5 itself with reference to the date of the joining of the work by each of the employees whether they have come to respondent No. 5 from the employment of respondent No. 4 or other set of employees who are said to be employees of respondent No. 5 itself and such list shall be displayed on the notice board at the present site and only thereafter the site of the work shall be decided strictly in accordance with the length of the period of working including the period of working with respondent No. 4.
(5) Respondent No. 5 shall not be liable for breach of any provision of the Industrial Disputes Act or any other Labour Laws committed by respondent No. 4 and for any period prior to November 18, 1995 so far as the employees who have joined him from the service of respondent No. 4.
9. This Special Civil Application is accordingly allowed in part and the Rule is made absolute in the terms as aforesaid. In view of the final orders having been passed in the main Special Civil Application, no orders are required to be passed in the pending Civil Application No. 2702 of 1995 and the same is also hereby disposed of. No order as to costs.