JUDGMENT
P.K. Misra, J.
1. The petitioners have filed these writ petitions with a prayer to issue Writ of Mandamus directing the respondents to regularise the service of the petitioners with attendant benefits and to pay remuneration to them on par with the regular employees.
2. The petitioners after having served in Indian Defence Service have become members of the 5th respondent Corporation, which is a statutory corporation sponsored by 4th respondent to serve for the welfare of the Ex-Servicemen in the State. The second respondent, namely Oil and Natural Gas Corporation Limited, is a statutory Corporation owned by the Central Government and the petitioners are under the direct control of the third respondent.
It has been asserted :
” 4. The third respondent is in the habit of employing contract workers to perform the Electronic and Telecommunication functions. The Fourth respondent recommended the services of the petitioners through the fifth respondent in this regard. Thus the petitioners are employed by the third respondent from 1988 onwards within its control. . .”
It has been further asserted that
” 5. I respectfully submit that the third respondent and the fifth respondent used to enter into contract. Even though it is given to appear that the fifth respondent is paying salary and other remunerations to petitioners herein, in fact we are under direct control and management of the third respondent only. All of us are performing the work of the regular and permanent in nature and against permanent vacancies. . . .”
It has been further asserted :
” 6. In the meantime the Central Government passed a notification in consultation with the Central Advisory Contract Labour Board vide Notification No. V-23013/A/92-LW dated 08.09.1994, and abolished the practice of appointment of contract workers in the ONGC in several classes of employment as per the annexure to the notification. The petitioners are doing the works mentioned in items Nos. 5, 6, 9, 11 and 12 mentioned in the annexure to the said notification. Even after the notification the third respondent continues to enter into contract on total violation of the notification. The fifth respondent also gave representation to the third and fourth respondents on 19.10.1994 explaining the notification and sought for regularisation of the petitioners.”
The further allegation of the petitioners is to the effect that without considering the implication of the aforesaid notification, an agreement was entered into on 20.3.1996. It is claimed that even though work is of perennial in nature, and the petitioners are being employed through “pseudo contract labour system”, they are being paid less wages in comparison to the persons similarly situated and doing similar work under the Corporation. All the petitioners are doing the work of permanent and perennial in nature and therefore should be absorbed permanently by the third respondent Corporation. Even after expiry of the previous agreement, the petitioners were continuing the work without any break. It has been further stated that
” . . . the agreement has nothing to do with the actual employment of the petitioners with ONGC. I respectfully submit that the agreement entered into on 20.3.1996 which followed an addendum are all sham and are not genuine.”
It is claimed that the third respondent being a statutory Corporation, should not deny the genuine right of the petitioners and appropriate direction should be issued to regularise their services and to pay them regular salary.
3. In the counter affidavit of the contesting respondents, the basic allegations have been denied. It has been stated that as per the agreement, it is apparent that the respondents 2 & 3 do not have any control and the work is not perennial in nature. It has been submitted on their behalf that various disputed questions of fact cannot be decided in the writ petition and the appropriate remedy is available under the Industrial Disputes Act.
4. Relying upon the decision of the Supreme Court in STEEL AUTHORITY OF INDIA LIMITED AND OTHERS v. NATIONAL UNION WATERFRONT WORKERS AND OTHERS , which has been followed in NITINKUMAR NATHALAL JOSHI & OTHERS v. OIL & NATURAL GAS CORPORATION LIMITED & OTHERS (2002(2)SUPREME 406), it has been submitted on behalf of the contesting respondents that the questions raised should be left to be decided by the appropriate Industrial Forum and Writ of Mandamus should not be issued regarding regularisation.
5. The question relating to regularisation of workmen after abolition of contract labour was considered by the Constitutional Bench of the Supreme Court in the aforesaid decision . The law and the question was summarised in paragraph 125 of the said decision. It is profitable to extract the aforesaid paragraph, which is as follows:-
” … 125. The upshot of the above discussion is outlined thus :
(1)(a) Before 28-1-1986, the determination of the question whether the Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression “appropriate Government” as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried n by or under the authority of the Central Government or does it pertain to any specified controlled industry, or the establishment of any railway, cantonment board, major port, mine or oil field or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government;
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government company/undertaking concerned or any undertaking concerned is included therein eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by a railway company; or (c) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(2)(a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government:
(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question, and
(ii) other relevant factors including those mentioned in sub-section (2) of Section 10;
(b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court,for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service,, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it so that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
It was further observed in paragraph 126 as follows :
” 126. We have used the expression “industrial adjudicator” by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review.”
6. A similar question in respect of ONGC was considered in 2002(2) SUPREME 406, where after referring to the earlier decision, the Supreme Court thought it fit to leave the question to be decided by the appropriate industrial forum as the principle decided in Steel Authority of India Limited case was squarely applicable to the said case.
7. In such view of the matter, the writ petitions are disposed of with the observation that it would be open to the petitioners or other aggrieved persons to seek appropriate remedy before the Industrial Forum. In case the question is raised before the Industrial Forum, it goes without saying that the matter should be decided as expeditiously as possible. It is further observed that the fact that petitioners had been permitted to raise the question before the appropriate forum would not stand in the way of the respondents 2 & 3 considering the question of absorption of the petitioners on regular basis.
8. In the result, the writ petitions are disposed of subject to the aforesaid observations and directions. No costs. Consequently, the connected miscellaneous petitions are closed.