JUDGMENT
S.B. Sinha, C.J.
1. An application for review of this Court’s Order dated
16.04.2002 passed in C.W.P. No. 182 of 1993 has been filed
by the applicant herein. The said Order reads thus:-
“Learned counsel for the petitioner
requested for an adjournment. In view of the
fact that this is a case of the year 1993 request
for an adjournment is declined.
From a perusal of the prayer in the writ
petition, it appears that the writ petition is
covered by the latest Constitution Bench
judgment in the case of Steel Authority of India
Ltd. and Ors. v. National Union Waterfront
Workers and Ors.
In view of the aforesaid decision of the
Apex Court, the petitioner may raise industrial
dispute.
Writ petition stands dismissed.’
2. The contention of he learned counsel for the applicant is
that in passing the said Order, this Court did not take into
consideration that the security guards were employed on
09.12.1983, whereas the Contractor was appointed on
01.02.1984 and by reason thereof, there existed a direct
relationship of employee and employer between them and
the principal employer, although they wee shown to be the
employees of the alleged contractor. The said arrangement
was entered into only by way of a camouflage by Steel
Authority of India to escape its liability under various labour
laws enacted for the benefit of the workmen. It has been
pointed out that after the death of the contractor in the year
1989, his wife had been asked to continue as Contractor.
The learned counsel would further contend that the
petitioner made representation in December, 1989 for
their regularization whereupon interviews were held and
selection process was carried out, but no action thereupon
had been taken.
The learned counsel would further contend that this Court
has also not taken notice of the decision of the Apex Court
in Gujarat Electricity Board Thermal Power Station, Ukai v.
Hind Mazdoor Sabha and Ors. .
3. The applicant herein in the writ petitioner had prayed for
the following reliefs:-
(1) may please issue writ of mandamus
directing the respondent No. 3 to implement the
Notification bearing No. 423013 (7) /76LW
dated 9th December, 1976 by regularizing all
the 10 Security Guards whose names are
mentioned in Annexure ‘A’ to the present writ
petition permanently employed in the
respondent No. 2 IRCOn Ltd.
(2) to issue a writ or direction calling upon
the Indian Railways Construction Co. Ltd. i.e.
the respondent No. 2 to fix all the 10 Security
Guards whose names are mentioned in
Annexure ‘A’ to the present writ petition in the
regular scale of pay applicable as per their
services with effect from the date of their
joining and to gave them other consequential
benefits.
Any other relief which this Hon’ble Court
deems fit and proper in the facts and
circumstances of the present case may kindly
be given in favor of the petitioner and against
the respondent Corporation.
4. It is not in dispute that the said notification dated
09.12.1976 has been set aside and quashed by the Apex
Court in Steel Authority (Supra) and, thus, no relief could
be granted so far as prayer (1) is concerned.
The second relief is although sought for grant of a regular
scale of pay, such a relief could have been granted only in
the event, the prayer (1) could be granted in favor of the
petitioner, namely, a direction to regularize all the 10
security guards whose names are mentioned in Annexure ‘A’
to the writ petition.
5. A Constitution Bench of the Supreme Court precisely dealt
with the aforementioned question in Steel Authority of India
Ltd. and Ors. v. National Union Waterfront Workers and Ors. and
stated the law in the following terms:-
“107. An analysis of the cases, discussed
above, shows that they fall in three classes: (i)
where contract labour is engaged in or in
connection with the work of an establishment
and employment of contract labour is
prohibited either because the industrial
adjudicator / court ordered abolition of
contract labour or because the appropriate
Government issued notification under Section
10(1) of the CLRA Act, no automatic absorption
of the contract labour working in the
establishment was ordered; (ii) where the
contract was found to be a sham and nominal,
rather a camouflage, in which case the contract
labour working in the establishment of the
principal employer were held, in fact and in
reality, the employees of the principal employer
himself. Indeed, such cases do not relate to
abolition of contract labour but present
instances wherein the Court pierced the veil
and declared the correct position as a fact at
the stage after employment of contract labour
stood prohibited; (iii) where in discharge of a
statutory obligation of maintaining a canteen
in an establishment the principal employer
availed the services of a contractor the courts
have held that the contract labour would
indeed be the employees of the principal
employer.”
It was further held:-
“(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;
(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
Aur India case Air India Statutory Corporation v.
Union Labour Union, 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 there under.
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
regularize the services of the contract labour in
the establishment concerned subject to the
conditions as may be specified by it for 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.
As regard the meaning of “industrial adjudicator”, it was
clarified:-
“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. In that view of the matter, this Court’s Order dated
16.04.2002 squarely comes within the purview of the
Constitutional Bench decision in Steel Authority of India
Ltd.’s case (Supra).
7. In Gujarat Electricity Board Thermal Power Station’s case
(Supra) has also been noticed in Steel Authority of India
Ltd.’s case (supra) and it was noticed that even in Air India
Statutory Corporation v. United Labour Union , Justice Majmudar
opined:-
“103 …..Justice Majmudar, in his
concurring judgment, put it on the ground that
when on the fulfilllment of the requisite
conditions, the contract labour is abolished
under Section 10(1), the intermediary
contractor vanishes and along with him
vanishes the term “principal employer” and
once the intermediary contractor goes the term
“principal” also goes with it; out of the
tripartite contractual scenario, only two parties
remain, the beneficiaries of the abolition of the
erstwhile contract labour system i.e. the
workmen on the one hand and the employer on
the other, who is no longer their principal
employer but necessarily becomes a direct
employer for erstwhile contract labourers. The
learned Judge also held that in the provision of
Section 10 there is implicit legislative intent
that on abolition of the contract labour system,
the erstwhile contract workmen would become
direct employees of the employer in whose
establishment they were earlier working and
were enjoying all the regulatory facilities under
Chapter V in that very establishment. In regard
to the judgment in Gujarat Electricity Board
case to which he was a party, the learned
Judge observed that he wholly agreed with
Justice Ramaswamy’s view that the scheme
envisaged by Gujarat Electricity Board case was
not workable and to that extent the said
judgment could not be given effect to.”
8. This question as to whether the contractor was appointed by
way of camouflage being essentially a question of fact, the
same must be determined before the Industrial Adjudicator.
Such a disputed question of fact cannot be determined in a
writ proceeding. Even otherwise, the writ court should not
substitute itself as an Industrial Court.
In Bhuneshwar Mallah and Anr. v. Central Coalfields Ltd. and
Ors. 1995 (1) PLJR 43 (of which one of us S.B. Sinha, J. was a member)
held:-
“5. In view of the fact that the petitioner
No. 1 has since been retired, in our opinion, no
case for issuance of any writ in favor of the
petitioners has been made out. Further, even
if it be found that the action of the
Management is malafide, the remedy of the
petitioner is to raise an Industrial Dispute as in
our view, this Court, in the facts and
circumstances of the case, while exercising
jurisdiction under Article 226 of the
Constitution of India cannot convert itself into
an Industrial Dispute Court. Reference in this
connection may be made to a decision of the
Supreme Court reported in 1964 S.C. 1260.”
There is, thus, no error apparent in the face of the
records.
9. For the reasons aforementioned, we do not find any merit in
this review application, which is accordingly dismissed.