{"id":36847,"date":"2011-04-26T00:00:00","date_gmt":"2011-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011"},"modified":"2018-03-12T13:22:17","modified_gmt":"2018-03-12T07:52:17","slug":"chemical-vs-secretary-on-26-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011","title":{"rendered":"Chemical vs Secretary on 26 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Chemical vs Secretary on 26 April, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/662\/2011\t 43\/ 43\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 662 of 2011\n \n\n \n \n=========================================================\n\n \n\nCHEMICAL\nMAZDOOR PANCHAYAT - Petitioner(s)\n \n\nVersus\n \n\nSECRETARY\nTHROUGH DESK OFFICER & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMRS\nSANGEETA N PAHWA for\nPetitioner(s) : 1, \nMR YV VAGHELA for Respondent(s) : 1 - 2, \nMRS\nMAUNA M BHATT for Respondent(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 26\/04\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mrs.Sangeeta N. Pahwa for petitioner, learned
\nadvocate Mr.Y.V.Vaghela for respondent Nos.1 and 2 and learned
\nadvocate Mrs.Mauna M. Bhatt for respondent No.3.\n<\/p>\n
2.\tWith
\nconsent of learned advocates appearing on behalf of respective
\nparties, the matter is taken up for final hearing today.\n<\/p>\n
3.\tIn
\npresent petition, petitioner has challenged order passed by
\nrespondent No.1 dated 10.5.2010 refusing to refer industrial dispute
\nraised by petitioner Union to Industrial Tribunal Central while
\nexercising powers under Section 12(5) of I.D.Act,1947.\n<\/p>\n
4.\tIn
\npresent petition, petitioner Union submitted charter of demand to
\nrespondent No.3 dated 13.6.2007, inter alia, submitting various
\ndemands whereby 39 workmen listed along with schedule were to be
\ntreated as workmen of principal employer and various other benefits
\nwere also prayed for. On 31.7.2008, petitioner requested respondent
\nNo.2 to intervene and to initiate conciliation proceedings, inter
\nalia, submitting various demands whereby 39 workmen listed along with
\n schedule were to be treated as workmen of principal employer and
\nvarious other demands were also prayed for. According to petitioner
\nUnion, it is very categorically stated that major thrust of demand is
\nto dispense with paper arrangement of so called labour contract
\nsystem which has been alleged to be sham and bogus and not genuine
\ncontract and employees of  Gujarat Refinery. According to petitioner,
\nin an identical demands related to 436 workmen has been referred for
\nadjudication being Reference Nos.12\/1993, 11\/1996 and 4\/2000.\n<\/p>\n
4.1\tOn
\n8.10.2009, petitioner requested respondent No.2 to permit to amend
\nthe charter of demand dated 13.6.2007 and requested to add another 31
\nworkmen in the schedule. Accordingly, conciliation proceedings were
\ninitiated and failure report was sent to appropriate Government by
\nrespondent No.2 on 16.10.2009. On 10.5.2010, respondent No.1 through
\nDesk Officer passed impugned order informing petitioner that demand
\nof petitioner Union cannot be referred by appropriate Government for
\nadjudication to concerned Industrial Tribunal.\n<\/p>\n
4.2\tAffidavit-in-reply
\nis filed by respondent No.3 opposing admission of present petition
\nand raised a contention that complaint was made under Rule
\n25(2)(v)(a) of Contract Labour (Regulation & Abolition) Rules and
\ncompetent authority has held that contract workers do not perform
\nsame or similar nature of works as those performed by regular
\nemployees of IOCL. Copy of order is also produced on record as
\nAnnexure-R-I.\n<\/p>\n
4.3\tIt
\nis necessary to consider that failure report which has been submitted
\nby Conciliation Officer under Section 12(4) of I.D.Act,1947 dated
\n16.10.2009. In failure report, comments made by both parties have
\nbeen narrated in detail by Conciliation Officer. According to
\npetitioner Union, the contract system which is going on with
\nrespondent No.3 is not true and genuine but, it is sham and bogus.
\nThe review application which was preferred by petitioner Union
\n(Annexure-E, Page-30) dated 1.5.2010. Even in that also, a specific
\nstand has been taken by petitioner Union that contract system which
\nis going on is sham and bogus and merely a paper arrangement and it
\nis not genuine and real contract system continued with respondent
\nNo.3. Therefore, industrial dispute raised by petitioner Union to
\nconsider contract employees engaged by contractor on the job and
\nregularize service of contract employees in job of principal
\nemployer. This specific aspect has not been considered by respondent
\nNo.1 – appropriate Government because merely claimants are
\nengaged by contractor on the job in which employment a contract
\nlabour is not prohibited under  provisions of Contract Labour
\n(Regulation & Abolition) Act,1970, that itself  is not enough
\nbut, real dispute is that claimants those who are engaged by
\ncontractor on job as a contract labour that contract system itself is
\nmerely a paper arrangement made between principal employer and
\ncontractor and such contract system is sham and bogus and not
\ngenuine. Therefore, it required to be considered that claimants those
\nwho are engaged by contractor on the job being an employee of
\nprincipal employer or not ? This aspect has been considered by Apex
\nCourt in case of Sarva Shramik Sangh v. Indian Oil Corporation Ltd. &
\nOrs.,<\/a> reported in 2009 Lab.I.C. 2297. Relevant observations of
\naforesaid decisions are in Para.10, 11 to 15 are quoted as under :\n<\/p>\n
“10.\tThe
\nassumption that there is an absolute bar on inconsistent pleas being
\ntaken by a party, is also not sound. What is impermissible is taking
\nof an inconsistent plea by way of amendment thereby denying the other
\nside, the benefit of an admission contained in the earlier pleading.
\nMutually repugnant and contradictory pleas, destructive of each other
\nmay also not be permitted to be urged simultaneously by a
\nplaintiff\/petitioner. But when there is no inconsistency in the facts
\nalleged, a party is not prohibited from taking alternative pleas
\navailable in law. Similarly, on the same facts, different or
\nalternative reliefs can also be claimed. When the case of the workers
\nis that the contract was sham and nominal, they could seek a relief
\nthat they should be declared as the direct employees of the principal
\nemployer; and if that contention failed and it is found that the
\ncontract was valid, then they can seek issue a direction to the
\nCentral Government to consider their representation for abolition of
\ncontract labour. Similarly where the workers contend that the
\ncontract between principal employer and the contractor was sham and
\nmerely a camouflage to deny them the benefits of labour laws, and if
\ntheir prayer for relief under CLRA Act is rejected, they can then
\nseek relief under the ID Act. The contention of IOC that on account
\nof the dismissal of the first petition, the second petition for a
\ndifferent relief was barred either by principle of res judicata or by
\nprinciple of estoppel is liable to be rejected.\n<\/p>\n
11.\tWe
\nwill next consider whether the decision in SAIL-II relied on by the
\nrespondents, is in any way applicable. That decision related to a
\ndispute raised by the contract labour employed by VISL (an unit of
\nSAIL) for prohibition of employment of contract labour in the
\nprocess\/operation in which they were employed and they should be
\nabsorbed as regular permanent employees of VISL. The state government
\nreferred the said dispute to the Tribunal under section 10(1)(c)\tof
\nthe ID Act. Before the Labour Court, VISL contended that as the
\nmatter related to regulation and abolition of contract labour,
\ngoverned by the provisions of the CLRA Act, there could be no
\nreference of the dispute to the Labour Court for adjudication under
\nsection 10(1)(c) of the ID Act. It was also submitted that as the
\nstate government had not issued any notification prohibiting
\nemployment of contract labour in terms of section 10 of the CLRA Act,
\nthe contract labour did not have a legal right to claim absorption.\n<\/p>\n
11.1)\tAt
\nthat stage, presumably to get over the said objection regarding
\nmaintainability, the workmen filed an additional claim statement
\nalleging that the contract entered into between VISL and the
\ncontractor was sham and bogus and they should be deemed to be the
\ndirect employees of the management. The Labour Court held that the
\ndispute referred was whether the contract workers who were employed
\nin the particular nature of contract work were justified in demanding
\nabsorption as regular employees; that the said dispute pre- supposed
\nthat the employees were contract workers under the contractors and
\nthe question therefore was whether the contract labour system should
\nbe abolished and contract workers had to be absorbed by the principal
\nemployer; that the employees who sought absorption by VISL were
\ncontract labour was evident from the averments made in the claim
\nstatement; and that the only remedy available to them was to file
\nwrit petition seeking a direction to the central government to take a
\ndecision under section 10 of CLRA Act to prohibit employment of
\ncontract labour. The Labour Court held that the question under
\nreference related to    abolition of contract labour and as the said
\nquestion could be decided only by appropriate Government under
\nsection 10 of the CLRA Act, the dispute was not maintainable under ID
\nAct. Therefore the Labour Court made an award holding that the
\nreference was not maintainable.\n<\/p>\n
11.2)\tThe
\nsaid award of the Labour Court was challenged in the High Court. A
\nlearned single Judge allowed the writ petition and directed the Union
\nof India to treat the writ petition as a petition submitted by the
\nUnion raising an industrial dispute in terms of section 2(k) read
\nwith section 12(1) of the ID Act as also under the provisions of CLRA
\nAct. The learned Judge further directed the central government to
\nrefer the said dispute to the Industrial Tribunal. The appeal filed
\nagainst the said judgment of the learned Single Judge was dismissed
\nby a division bench. Aggrieved thereby SAIL approached this Court. It
\nis in that background this Court held that the workmen having taken a
\ndefinite stand that they were working under the contractors, and as
\nthe dispute that was referred was one which arose under the CLRA Act,
\nthe workmen could not, by amending the claim statement filed before
\nthe Labour Court, take a contradictory and inconsistent plea that the
\ncontract between VISL and the contractor was sham and bogus and they
\nwere the direct employees of VISL. This Court observed that it was
\nimpermissible to raise such mutually destructive pleas in law, having
\nregard to the principles of estoppel, waiver and acquiescence which
\nwere also applicable in industrial adjudication.\n<\/p>\n
11.3)\tWe
\nhave referred to the factual situation in detail to demonstrate that
\nthe said observations made in the context of the peculiar facts of
\nthat case, where the reference by the state government under the ID
\nAct was in regard to a specific dispute that they were employees of
\nthe contractor and that after prohibiting the contract labour system
\nunder section 10 of the CLRA Act, they should be absorbed as direct
\nemployees of VISL. This court therefore held that in such a reference
\nunder ID Act, raising a contention that the  contract between VISL
\nand the contractor was bogus and sham and that they were direct
\nemployees of principal employer contradicted the case on the basis of
\nwhich the reference was sought and reference was made, and the two
\ncontentions being mutually destructive, such a plea which would
\ndestroy the very reference could not be permitted to be raised. The
\ndecision in SAIL-II is therefore of no assistance to the respondents.
\nWhat was held to be impermissible in SAIL-II was raising inconsistent
\nand mutually destructive pleas in the same proceedings. It does not
\nbar a particular relief being sought in a writ petition, and when it
\nis found that such a relief was inappropriate, then seeking
\nappropriate relief in a different proceedings.\n<\/p>\n
11.4)\tThe
\nfacts are completely different here. The issue in the first writ
\npetition was with reference to section 10 of CLRA Act. The issue in
\nthe second petition was whether the dispute (relating to their claim
\nthat they were the direct employees of IOC) should be referred under
\nsection 10(1)(c) of the ID Act. The decision in SAIL II will not
\ntherefore apply. When the parties are different, issues are
\ndifferent, reliefs are different, the question of either res
\njudicata, or finality of proceedings, acquiescence or estoppel will
\nnot arise.\n<\/p>\n
Re
\n: Question (ii)<\/p>\n
12.\tIt
\nis true that making a reference under section 10(1) of the ID Act is
\nwithin the discretion of the appropriate government. Referring to the
\nunamended section 10(1) of ID Act this court in State of Madras v.
\nC.P.Sarathy<\/a> [1953 (4) SCR 334], laid down the following principles:\n<\/p>\n
(I)\tThe
\ngovernment should satisfy itself, on the facts and circumstances
\nbrought to its notice, in its subjective opinion that an `industrial
\ndispute’ exists or is `apprehended.\n<\/p>\n
(ii)\tThe
\nfactual existence of a dispute or its apprehension and the expediency
\nof making reference are matters entirely for the government to
\ndecide.\n<\/p>\n
(iii)\tThe
\norder making a reference is an administrative act and it is not a
\njudicial or a quasi-judicial act.\n<\/p>\n
(iv)\tThe
\norder of reference passed by the government cannot be examined by the
\nHigh Court in its jurisdiction under art 226 of the Constitution to
\nsee if the government had material before it to support the
\nconclusion that the dispute existed or was apprehended.\n<\/p>\n
12.1)\tThe
\nopening words of section 10 of ID Act “if any industrial
\ndispute exists or is apprehended the appropriate government may”
\nwere replaced by the words “where the appropriate government is
\nof the opinion that any industrial dispute exists or is apprehended
\nit may at any time” by Act 18 of 1952. The issue was thereafter
\nagain considered in Rohtas Industries Ltd. v. SD Agarwal<\/a> [AIR 1969 SC
\n707]. After referring to the propositions in Sarathy, this Court held
\n:\n<\/p>\n
“This
\ninterpretation of s 10(1) is based on the language of that provision
\nas well as the purpose for which the power in question was given and
\nthe effect of a reference. That decision cannot be considered as an
\nauthority for the proposition that whenever a provision of law
\nconfers certain power on an authority on its forming a certain
\nopinion on the basis of certain facts, the courts are precluded from
\nexamining whether the relevant facts on the basis of which the
\nopinion is formed had in fact existed.” (emphasis supplied)<\/p>\n
12.2)\tThe
\namended section 10 was considered in Western India Match Co. v.
\nWestern India Match Co. Workers’ Union<\/a> [1970 (1) SCC 225]. This
\ncourt, again, after referring to the observation in Sarathy that the
\norder of the government is an administrative function, observed thus
\n:\n<\/p>\n
“…….the
\ngovernment cannot go into the merits of the dispute, its function
\nbeing only to refer such a dispute for adjudication so that the
\nindustrial relations between the employer and the employees may not
\ncontinue to remain disturbed, and the dispute may be resolved through
\na judicial process as speedily as possible.”\n<\/p>\n
12.3)\tIn
\nState of Bombay v. K.P. Krishnan<\/a> [1961] 1 SCR 227, this court
\nreferred to the scope of section 10(1) thus :\n<\/p>\n
“Section
\n10(1) provides that where the appropriate Government is of opinion
\nthat any industrial dispute exists or is apprehended, it may at any
\ntime by order in writing refer the dispute to one or the other
\nauthority specified in clauses (a) to (d). This section is of basic
\nimportance in the scheme of the Act. It shows that the main object of
\nthe Act is to provide for cheap and expeditious machinery for the
\ndecision of all industrial disputes by referring them to
\nadjudication, and thus avoid industrial conflict resulting from
\nfrequent lock-outs and strikes. It is with that object that reference
\nis contemplated not only in regard to existing industrial disputes
\nbut also in respect of disputes, which may be apprehended. This
\nsection confers wide and even absolute discretion on the Government
\neither to refer or to refuse to refer an industrial dispute as
\ntherein provided. Naturally this wide discretion has to be exercised
\nby the Government bona fide and on a consideration of relevant and
\nmaterial facts.”\n<\/p>\n
This
\ncourt clarified that the writ court can direct the government to
\nreconsider whether a reference should be made or not after leaving
\nout the relevant and extraneous considerations.\n<\/p>\n
12.4)\tIn
\nBombay Union of Journalists & Ors. v. The State of Bombay &
\nAnr.<\/a> [1964] 6 SCR 22, this court once again discussed the scheme of
\nreference and observed:\n<\/p>\n
“…\n<\/p>\n
section 10(1) confers discretion on the appropriate Government either
\nto refer the dispute, or not to refer it, for industrial adjudication
\naccording as it is of the opinion that it is expedient to do so or
\nnot … in entertaining an application for a writ of mandamus against
\nan order made by the appropriate Government under s. 10(1) read with
\ns. 12(5), the Court is not sitting in appeal over the order and is
\nnot entitled to consider the propriety or the satisfactory character
\nof the reasons given by the said Government. … It is no doubt
\ndesirable that the party concerned should be told clearly and
\nprecisely the reasons why no reference is made, because the object of
\ns. 12(5) appears to be to require the appropriate Government to state
\nits reason for refusing to make a reference, so that the reasons
\nshould stand public scrutiny; but that does not mean that a party
\nchallenging the validity of the Government’s decision not to
\nmake a reference can require the court in writ proceedings to examine
\nthe propriety or correctness of the said reasons.”\n<\/p>\n
This
\ncourt however made it clear that if the appropriate government
\nrefuses to make a reference for irrelevant considerations, on
\nextraneous grounds or acts mala fide, a party would be entitled to
\nmove the High Court for a writ of mandamus.\n<\/p>\n
12.5)\tThis
\nposition was reiterated in Hochtif Gammon v. State of Orissa<\/a> [1975
\n(2) SCC 649]. In Hochtif Gammon, this Court observed thus:\n<\/p>\n
“The
\nexecutive have to reach their decisions by taking into account
\nrelevant considerations. They should not refuse to consider relevant
\nmatter nor should take into account wholly irrelevant or extraneous
\nconsideration. They should not misdirect themselves on a point of
\nlaw. Only such a decision will be lawful. The courts have power to
\nsee that the executive acts lawfully. It is no answer to the exercise
\nof that power to say that the executive acted bona fide nor that they
\nhave bestowed painstaking consideration. They cannot avoid scrutiny
\nby courts by failing to give reasons. If they give reasons that they
\nare not good reasons, the courts can direct them to reconsider the
\nmatter in the light of relevant matters, though the propriety,
\nadequacy or satisfactory character of those reasons may not be open
\nto judicial scrutiny. Even if the executive considers it inexpedient
\nto exercise their powers they should state their reasons and there
\nmust be material to show that they have considered all the relevant
\nfacts.”\n<\/p>\n
12.6)\tThereafter
\nthe matter came up for consideration in Avon Services (supra) relied
\nupon by the High Court. In Avon Services, this Court reiterated the
\nprinciples thus:\n<\/p>\n
“Section
\n10(1) confers a discretionary power and this discretionary power can
\nbe exercised on being satisfied that an industrial dispute exists or
\nis apprehended. There must be some material before the Government on
\nthe basis of which it forms an opinion that an industrial dispute
\nexists or is apprehended. The power conferred on the appropriate
\nGovernment is an administrative power and the action of the
\nGovernment in making the reference is an administrative act. The
\nformation of an opinion as to the factual existence of an industrial
\ndispute as a preliminary step to the discharge of its function does
\nnot make it any the less administrative in character. Thus the
\njurisdictional facts on which the appropriate Government may act are
\nthe formation of an opinion that an industrial dispute exists or is
\napprehended which undoubtedly is a subjective one, the next step of
\nmaking reference is an administrative act. The adequacy or
\nsufficiency of the material on which the opinion was formed is beyond
\nthe pale of judicial scrutiny. If the action of the Government in
\nmaking the reference is impugned by a party it would be open to such
\na party to show that what was referred was not an industrial dispute
\nand that the Tribunal had no jurisdiction to make the Award but if
\nthe dispute was an industrial dispute, its factual existence and the
\nexpediency of making a reference in the circumstances of a particular
\ncase are matters entirely for Government to decide upon, and it will
\nnot be competent for the Court to hold the reference bad and quash
\nthe proceedings for want of jurisdiction merely because there was, in
\nits opinion, no material before Government on which it could have
\ncome to an affirmative conclusion on those matters.\n<\/p>\n
Merely
\nbecause the government rejects a request for a reference or declines
\nto make a reference, it cannot be said that the industrial dispute
\nhas ceased to exist…… The industrial dispute may nonetheless
\ncontinue to remain in existence and if at a subsequent stage the
\nappropriate government is satisfied that in the interest of
\nindustrial peace and for promoting industrial harmony it is desirable
\nto make a reference, the appropriate government does not lack power
\nto do so under s 10(1), nor is it precluded from making the reference
\non the only ground that on an earlier occasion it had declined to
\nmake the reference.”\n<\/p>\n
12.7)\tIn
\nRam Avtar Sharma vs. State of Haryana [1985 (3) SCC 189], this Court
\nconsidered a refusal by the government as it found that the services
\nof the employee were terminated only after charges against  him were
\nproved in a domestic enquiry, that this Court held that a clear case
\nof grant of writ of mandamus was made out on the ground of the
\nfollowing reasoning:\n<\/p>\n
“The
\nassumption underlying the reasons assigned by the Government are that
\nthe enquiry was consistent with the rules and the standing orders,
\nthat it was fair and just and that there was unbiased determination
\nand the punishment was commensurate with the gravity of the
\nmisconduct…….. The reasons given by the Government would show
\nthat the Government examined the relevant papers of enquiry and the
\nGovernment was satisfied that it was legally valid and that there was
\nsufficient and adequate evidence to hold the charges proved. It would
\nfurther appear that the Government was satisfied that the enquiry was
\nnot biased against the workmen and the punishment was commensurate
\nwith the gravity of the misconduct charged. All these relevant and
\nvital aspects have to be examined by the Industrial Tribunal while
\nadjudicating upon the reference made to it. In other words, the
\nreasons given by the Government would tantamount to adjudication
\nwhich is impermissible. That is the function of the Tribunal and the
\nGovernment cannot arrogate to itself that function. Therefore if the
\ngrounds on which or the reasons for which the Government declined to
\nmake a reference under Section 10 are irrelevant, extraneous or not
\ngermane to the determination, it is well settled that the party
\naggrieved thereby would be entitled 10 move the Court for a writ of
\nmandamus. It is equally well settled that where the Government
\npurports to give reasons which tantamount to adjudication and refuses
\nto make a reference, the appropriate Government could be said to have
\nacted on extraneous, irrelevant grounds or grounds not germane to the
\ndetermination and a writ of mandamus would lie calling upon the
\nGovernment to reconsider its decision.”\n<\/p>\n
12.8)\tIn
\nTelco Convoy Drivers Mazdoor Sangh vs. State of Bihar<\/a> [1989 (3) SCC
\n271], this Court held that while exercising power under section 10(1)
\nof the Act, the function of the appropriate government is an
\nadministrative function and not a judicial or quasi-judicial
\nfunction. In performing this administrative function the government
\ncannot delve into the merits of the dispute and take upon itself the
\ndetermination of the lis, which would certainly be in excess of the
\npower conferred on it by section 10 of the Act. However, there may be
\nexceptional cases in which the state government may, on a proper
\nexamination of the demand, come to a conclusion that the demands are
\neither perverse or frivolous and do not merit a reference. But the
\ngovernment should be slow to attempt an examination of the demand
\nwith a view to declining reference and courts will always be vigilant
\nwhenever the government attempts to usurp the powers of the Tribunal
\nfor adjudication of valid disputes, and to allow the government to do
\nso would be to render section 10 and section 12(5) of the Act
\nnugatory. Where, as in the instant case, the dispute is whether the
\npersons raising the dispute are workmen or not, the same cannot be
\ndecided by the government in exercise of its administrative function
\nunder section 10(1). When the dispute was whether the convoy drivers
\nwere employees or workmen of TELCO, that is to say, whether there was
\nrelationship of employer and employees between TELCO and the convoy
\ndrivers, the Deputy Labour Commissioner and\/or the state government
\nwas not justified in holding that the convoy drivers were not workmen
\nand accordingly, no reference could be made. When it is found that
\nthe dispute should be adjudicated by the Industrial Tribunal and the
\nstate government had persistently declined to make a reference under
\nsection 10(1) despite chances given by High Court and Supreme Court
\nto reconsider the matter, the court would direct the government to
\nmake a reference of the dispute to the appropriate industrial
\ntribunal. The principles were reiterated in Sultan Singh vs. State of
\nHaryana [1996 (2) SCC 66 and Secretary, Indian Tea Association vs.
\nAjit Kumar Barat<\/a> [2000 (3) SCC 93].\n<\/p>\n
13.\tThus
\nit can safely be concluded that a writ of mandamus would be issued to
\nthe appropriate government to reconsider the refusal to make a
\nreference, where (I) the refusal is on irrelevant, irrational or
\nextraneous grounds; (ii) the refusal is a result of the appropriate
\ngovernment     examining       the   merits    of   the    dispute
\nand prejudging\/adjudicating\/determine the dispute; (iii) the refusal
\nis mala fide or dishonest or actuated by malice; (iv) the refusal
\nignores the material available in the failure report of the
\nConciliation Officer or is not supported by any reason.\n<\/p>\n
14.\tThis
\ncase is squarely covered by the decisions in Ram Avtar Sharma and
\nTelco Convoy Drivers Mazdoor Sangh. The state government has examined
\nthe merits of the dispute and has refused to make the reference on
\nthe ground that the workers were not the employees of IOC, when the
\nvery dispute that required reference was whether the workers should
\nbe considered as the employees of IOC.\n<\/p>\n
15.\tIn
\nview of the above we allow this appeal        and direct the Central
\nGovernment to reconsider the matter in the light of the observations
\nabove and take an appropriate decision on the request for reference
\nof the dispute to the Industrial adjudicator. As and when the state
\ngovernment makes the reference, it is for the Industrial Tribunal to
\nconsider the dispute on merits, on the basis of materials placed
\nbefore it, uninfluenced by the observations of the High Court or this
\nCourt.”\n<\/p>\n
4.4\tIt
\nis necessary to note that in identical industrial dispute raised by
\ncontractor employees represented by petitioner Union wherein
\nindustrial dispute (page-46) has been referred for adjudication by
\norder dated 11.1.2000 which is quoted as under :\n<\/p>\n
“Whether
\nthe union, Chemical Mazdoor Panchayat has locus standi to raise the
\ndispute on behalf of 129 contractual workmen ? If so, whether the
\ncontract works between the management of Gujarat Refinery, Baroda,
\nand its various contractors (in respect of these 129 contractual
\nworkmen) are sham and bogus contracts ?”\n<\/p>\n
Whether
\nthe Notification No.779(E) dated 9.12.1976 is applicable  to the
\nestablishment  of Gujarat Refinery, Indian Oil Corporation Ltd.,
\nBaroda ?\n<\/p>\n
Whether
\nthe charter of demands raised by the President Chemical Mazdoor
\nPanchayat, Ahmedabad, vide representation dated 24.9.1999 against the
\nmanagement of Gujarat Refinery, Baroda, is proper and justified ? If
\nso, to what relief the 129 concerned workmen (list enclose) are
\nentitled to and from which date and what other directions are
\nnecessary in the matter ?”\n<\/p>\n
4.5\tSimilarly,
\nanother identical industrial dispute  has been referred by
\nappropriate Central Government dated 18.4.1996 (Page-48) between
\ncontract labours and OIC Ltd. being registered as Reference
\nNo.11\/1996 which has been raised by Union – Gujarat Mazdoor
\nPanchayat, which is quoted as under :\n<\/p>\n
“Whether
\nthe demand of the Union that the workmen listed in the annexure
\nappointed by the labour contractor should be treated as the direct
\nworkmen of the principal employer, i.e., Gujarat Refinery of Indian
\nOil Corporation Ltd. is justified ?\n<\/p>\n
“Whether
\nthe charter of demands raised by the union vide representation dated
\n7.9.93 against the management of Gujarat Refinery, Indian Oil
\nCorporation Ltd., Baroda, is justified ? If so, to what relief the
\nconcerned workmen are entitled ?”\n<\/p>\n
4.6\tThird
\nidentical industrial dispute referred for adjudication by appropriate
\nCentral Government dated 5.5.1993 (page-51) where dispute is raised
\nby Gujarat Mazdoor Panchayat being Reference No.12\/1993. The schedule
\nis quoted as under :\n<\/p>\n
“Whether
\nthe charter of demands raised by the General Secretary, Gujarat
\nMazdoor Panchayat, Ahmedabad vide its representation dated 18th
\nNovember,1991 against the management of Gujarat Refinery Baroda is
\njustified. If so, what relief the concerned workmen are entitled to.”\n<\/p>\n
4.7\tAll
\nthese details have been supplied by petitioner Union to respondent
\nNo.1 in review application dated 1.5.2010 (Annexure-E, Page-30) and
\nspecific stand has been taken that contract system which is going on
\nwith respondent No.3 is not genuine and true but, it is sham and
\nbogus and is merely a paper arrangement between contractor and
\nrespondent No.3 – Principal employer. The petitioner Union has
\nalso referred decision of Apex Court in case of Steel Authority of
\nIndia v. National Union Water Front Workers. Relevant Para.4 the<\/a>reof
\nis quoted as under :\n<\/p>\n
“An
\nanalysis of the cases, discussed above, shows that they fall in three
\nclasses; (i) where contract labour is engaged in or in connection
\nwith the work of an establishment and employment of contract labour
\nis prohibited either because the Industrial adjudicator\/Court ordered
\nabolition of contract labour or because the appropriate Government
\nissued notification under Section 10(1) of the CLRA Act, no automatic
\nabsorption of the contract labour working in the establishment was
\nordered;\n<\/p>\n
(ii)
\nwhere the contract was found to be sham and nominal rather a
\ncamouflage in which case the contract labour working in the
\nestablishment of the principal employer was held, in fact and in
\nreality, the employees of the principal employer himself. Indeed,
\nsuch cases do not relate to abolition of contract labour but present
\ninstances wherein the Court pierced the veil and declared the correct
\nposition as a fact at the stage after employment of contract labour
\nstood prohibited;\n<\/p>\n
(iii)
\nwhere in discharge of a statutory obligation of maintaining canteen
\nin an establishment the principal employer availed the services of a
\ncontractor and the Courts have held that the contract labour would
\nindeed be the employees of the principal employer.\n<\/p>\n
(5)<\/span><\/p>\n
On issuance of prohibition notification under S. 10(1) of the CLRA
\nAct prohibiting employment of contract labour or otherwise, in an
\nindustrial dispute brought before it by any contract labour in regard
\nto conditions of service, the industrial adjudicator will have to
\nconsider the question whether the contractor has been interposed
\neither on the ground of having undertaken to produce any given result
\nfor the establishment or for supply of contract labour for work of
\nthe establishment under a genuine contract or is a mere
\nruse\/camouflage to evade compliance of various beneficial
\nlegislations so as to deprive the workers of the benefit thereunder.
\nIf the contract is found to be genuine but a mere camouflage, the
\nso-called contract labour will have to be treated as employees of the
\nprincipal employer who shall be directed to regularize the services
\nof the contract labour in the concerned establishment subject to
\nconditions as may be specified by it for that purpose in the light of
\npara 6 hereunder.\n<\/p>\n
(6)<\/span><\/p>\n
If the contract is found to be genuine and prohibition notification
\nunder S. 10(1) of the CLRA Act in respect of the concerned
\nestablishment has been issued by the appropriate Government,
\nprohibiting employment of contract labour in any process, operation
\nor other work of any establishment and where in such process,
\noperation or other work of the establishment the principal employer
\nintends to employ regular workmen he shall give preference to the
\nerstwhile contract labour, if otherwise found suitable and, if
\nnecessary, by relaxing the condition as to maximum age appropriately
\ntaking into consideration the age of the workers at the time of their
\ninitial employment by the contractor and also relaxing the condition
\nas to academic qualifications other than technical qualifications.\n<\/p>\n
We
\nhave used the expression “industrial adjudicator” by design
\nas determination of the questions aforementioned requires inquiry
\ninto disputed question of facts which cannot conveniently be made by
\nHigh Courts in exercise of jurisdiction under Art. 226 of the
\nConstitution. Therefore, in such cases the appropriate authority to
\ngo into those issues will be Industrial Tribunal \/ Court whose
\ndetermination will be amenable to judicial review.\n<\/p>\n
It
\nis clear that the present demand of the union is under second
\ncategory of cases, “which do not relate to abolition of
\ncontract labour but present in stances wherein the Court pierced the
\nveil and declared the correct position as a fact” and “if
\nthe contract is found to be not genuine but a mere camouflage (to
\nevade compliance of various beneficial legislation so as to deprive
\nthe worker’s of the benefit there under), the so called contract
\nlabour will have to be treated as employees of the principle employer
\nwho shall be directed to regularize the services of the contract
\nlabour in the concerned establishment”.\n<\/p>\n
4.8\tRecently,
\nDivision Bench of this Court, in case of Thakor Nagjibhai Bhailal v.
\nIPCL, Now Amalgamated<\/a> with Reliance Inds. Ltd. & Ors., reported
\nin 2011 I CLR 183. Relevant observations of aforesaid decisions are
\nin Para.20 to 26 are quoted as under :\n<\/p>\n
“20.\tIn
\nthe case of Sarva Shramik
\nSangh vs. Indian Oil Corporation Ltd.,<\/a>
\nreported in (2009) 11 SCC 609, the Supreme Court observed as follows
\n:-\n<\/p>\n
“29.\tIt
\nis true that making a reference under Section 10(1) of the ID Act is
\nwithin the discretion of the appropriate Government.  Referring to
\nthe unamended Section 10(1) of the ID Act this Court in State
\nof Madras vs. C.P. Sarathy, AIR<\/a>
\n1953 SC 53 laid down the following principles :-\n<\/p>\n
(i)\tThe
\nGovernment should satisfy itself, on the facts and circumstances
\nbrought to its notice, in its subjective opinion that an “industrial
\ndispute” exists or is “apprehended”.\n<\/p>\n
(ii)\tThe
\nfactual existence of a dispute or its apprehension and the expediency
\nof making reference are matters entirely for the Government to
\ndecide.\n<\/p>\n
(iii)\tThe
\norder making a reference is an administrative act and it is not a
\njudicial or a quasi-judicial act.\n<\/p>\n
(iv)\tThe
\norder of reference passed by the Government cannot be examined by the
\nHigh Court in its jurisdiction under Article 226 of the Constitution,
\nto see if the Government had material before it to support the
\nconclusion that the dispute existed or was apprehended.”\n<\/p>\n
20A.\tIn Rohtas
\nIndustries Ltd. vs. S.D. Agarwal,<\/a> reported in (1969) 1 SCC
\n325, the Supreme Court held as follows :-\n<\/p>\n
“7.\t….\n<\/p>\n
This interpretation of Section 10(1) is based on the language of that
\nprovision as well as the purpose for which the power in question was
\ngiven and the effect of a reference.  That decision cannot be
\nconsidered as an authority for the proposition that whenever a
\nprovision of law confers certain power on an authority on its forming
\na certain opinion on the basis of certain facts the courts are
\nprecluded from examining whether the relevant facts on the basis of
\nwhich the opinion is said to have been formed were in fact existed.”\n<\/p>\n
21.\tWhether the Government
\ncan go into the merits of the dispute was the question raised before
\nthe  Supreme Court in Western
\nIndia Match Co. Ltd. vs. Western India March Co. Workers’ Union,<\/a>
\nreported in (1970) 1 SCC 225.  Therein, at para 9, the Supreme Court
\nobserved as under :-\n<\/p>\n
“9.\t…\n<\/p>\n
the Government cannot go into the merits of the dispute, its function
\nbeing only to refer such a dispute for adjudication so that the
\nindustrial relations between the employer and his employees may not
\ncontinue to remain disturbed and the dispute may be resolved through
\na judicial process as speedily as possible.”\n<\/p>\n
22.\tIf the appropriate
\nGovernment refuses to make a reference for irrelevant considerations,
\non extraneous grounds or acts mala fide, a party would be entitled to
\nmove the High Court for a writ of mandamus.  This was the view of the
\nSupreme Court in Hochtief
\nGammon vs. State of Orissa,<\/a> reported in (1975) 2 SCC 649,
\nwherein the Supreme Court made the following observations :-\n<\/p>\n
“13.\tThe
\nexecutive has to reach their decisions by taking into account
\nrelevant considerations.  They should not refuse to consider relevant
\nmatter nor should they take into account wholly irrelevant or
\nextraneous consideration.  They should not misdirect themselves on a
\npoint of law.  Only such a decision will be lawful.  The courts have
\npower to see that the executive acts lawfully.  It is no answer to
\nthe exercise of that power to say that the executive acted bona fide
\nnor that they have bestowed painstaking consideration.  They cannot
\navoid scrutiny by courts by failing to give reasons.  If they give
\nreasons and they are not good reasons, the court can direct them to
\nreconsider the matter in the light of relevant matters, though the
\npropriety, adequacy or satisfactory character of those reasons may
\nnot be open to judicial scrutiny.  Even if the executive considers it
\ninexpedient to exercise their powers they should state their reasons
\nand there must be material to show that they have considered all the
\nrelevant facts.”\n<\/p>\n
23.\tSection 10(1) of the ID
\nAct confers a discretionary power and is exercised on being satisfied
\nthat an industrial dispute exists or is apprehended.  There may be
\nsome material before the Government on the basis of which it forms an
\nopinion.  The adequacy or sufficiency of the material on which the
\nopinion was formed is beyond the pale of judicial scrutiny.  If the
\naction of the Government in making the reference is impugned by a
\nparty, it would be open to such a party to show that what was
\nreferred was not an industrial dispute and that the Tribunal had no
\njurisdiction to make the award but if the dispute was an industrial
\ndispute, its factual existence and the expediency of making a
\nreference in the circumstances of a particular case are matters
\nentirely for Government to decide upon, and it will not be competent
\nfor the court to hold the reference bad and quash the proceedings for
\nwant of jurisdiction merely because there was, in its opinion, no
\nmaterial before the Government on which it could have come to an
\naffirmative conclusion on those matters.  Such was the finding of the
\nSupreme Court in Avon
\nServices Production Agencies (P) Ltd. vs. Industrial Tribunal,<\/a>
\nreported in (1979) 1 SCC 1.\n<\/p>\n
\tIn the very same case,
\nhowever, the Supreme Court held that “….merely because the
\nGovernment rejects a request for a reference or declines to make a
\nreference, it cannot be said that the industrial dispute has ceased
\nto exist. …..   The industrial dispute may nonetheless continue to
\nremain in existence and if at a subsequent stage the appropriate
\nGovernment is satisfied that in the interest of industrial peace and
\nfor promoting industrial harmony it is desirable to make a reference,
\nthe appropriate Government does not lack power to do so under Section
\n10(1), nor is it precluded from making the reference on the only
\nground that on an earlier occasion it had declined to make the
\nreference.”\n<\/p>\n
24.\tIn Ram
\nAvtar Sharma vs. State of Haryana, reported in (1985) 3
\nSCC 189, the Supreme Court considered a refusal by the Government
\nwhich has decided on merit.  That was the case where the services of
\nthe employee were terminated  after charges against him were proved
\nin a domestic enquiry.  In the said case, the Supreme Court observed
\nas follows :-\n<\/p>\n
“….\n<\/p>\n
 The reasons given by the Government would show that the Government
\nexamined the relevant papers of enquiry and the Government was
\nsatisfied that it was legally valid and that there was sufficient and
\nadequate evidence to hold the charges proved.  It would further
\nappeal that the Government was satisfied that the enquiry was not
\nbiased against the workman and the punishment was commensurate with
\nthe gravity of the misconduct charged.  All these relevant and vital
\naspects have to be examined by the Industrial Tribunal while
\nadjudicating upon the reference made to it.  In other words, the
\nreasons given by the Government would tantamount to adjudication
\nwhich is impermissible.  That is the function of the Tribunal and the
\nGovernment cannot arrogate to itself that function.  Therefore if the
\ngrounds on which or the reasons for which the Government declined to
\nmake a reference under Section 10 are irrelevant, extraneous or not
\ngermane to the determination, it is well settled that the party
\naggrieved thereby would be entitled to move the court for a writ of
\nmandamus .. …  It is equally well settled that where the Government
\npurports to give reasons which tantamount to adjudication and refuses
\nto make a reference, the appropriate Government could be said to have
\nacted on extraneous, irrelevant grounds or grounds not germane to the
\ndetermination and a writ of mandamus would lie calling upon the
\nGovernment to reconsider its decision.”\n<\/p>\n
25.\tIn Telco
\nConvey Drivers Mazdoor Sangh vs. State of Bihar, reported
\nin (1989) 3 SCC 271, the Supreme Court held as under :-\n<\/p>\n
“….\n<\/p>\n
While exercising power under Section 10(1) of the Act, the function
\nof the appropriate Government is an administrative function and not a
\njudicial or quasi-judicial function.  In performing this
\nadministrative function the Government cannot delve into the merits
\nof the dispute and take upon itself the determination of the lis,
\nwhich would certainly be in excess of the power conferred on it by
\nSection 10 of the Act.  However, there may be exceptional cases in
\nwhich the State Government may, on a proper examination of the
\ndemand, come to a conclusion that the demands are either perverse or
\nfrivolous and do not merit a reference.  But the Government should be
\nvery slow to attempt an examination of the demand with a view to
\ndeclining reference and courts will always be vigilant whenever the
\nGovernment attempts to usurp the powers of the Tribunal for
\nadjudication of valid disputes, and to allow the Government to do so
\nwould be to render Section 10 and Section 12(5) of the Act nugatory.\n<\/p>\n
\t….\t…\t\t….\t\t….\t\t….\n<\/p>\n
Where,
\nas in the instant case, the dispute is whether the persons raising
\nthe dispute are workmen or not, the same cannot be decided by the
\nGovernment in exercise of its administrative function under Section
\n10(1).  When the dispute was whether the convoy drivers were
\nemployees or workmen of TELCO, that is to say, whether there was
\nrelationship of employer and employees between TELCO and the convoy
\ndrivers, the Deputy Labour Commissioner and\/or the State Government
\nwas not justified in holding that the convoy drivers were not workmen
\nand accordingly, no reference could be made.\n<\/p>\n
\t…\t….\t\t….\t\t….\t\t….\n<\/p>\n
When
\nit is found that the dispute should be adjudicated by the Industrial
\nTribunal and the State Government had persistently declined to make a
\nreference under Section 10(1) despite chances given by the High Court
\nand Supreme Court to reconsider the matter, the Court would direct
\nthe Government to make a reference of the dispute to the appropriate
\nIndustrial Tribunal.”\n<\/p>\n
26.\tWhen
\nsimilar matter fell for consideration before the Supreme Court in
\nSharad Kumar vs. Govt. of NCT
\nof Delhi,<\/a> reported in AIR 2002 SC 1724, the Supreme Court
\nobserved that where determination of the question required
\nexamination of factual matters for which materials including oral
\nevidence will have to be considered, in such matters, the State
\nGovernment could not arrogate on to itself the power to adjudicate on
\nthe question.\n<\/p>\n
4.9\tRecently,
\nSupreme Court has considered this aspect in case of International
\nAirport Authority of India v. International Air Cargo Workers’ Unio &
\nAnr.,<\/a> reported in 2009 (6) Scale 169. Relevant observations of
\naforesaid decision are in Para.16 to 20, which is quoted as under :\n<\/p>\n
“16.\tWhen
\nthe learned Single Judge considered the matter, the legal position
\nwas governed by the decision in Gujarat Electricity Board vs. Hind
\nMazdoor Sabha<\/a> – 1995 (5) SCC 27, partly modified by Air India
\nSatutory Corporation vs. United Labour Union<\/a> – 1997 (9) SCC\n<\/p>\n
377. By the time the Division Bench decided the writ appeal, the
\ndecision of the Constitution Bench in Steel Authority of India Ltd.,
\nvs. National Union Waterfront Workers<\/a> – 2001 (7) SCC 1 (for
\nshort `SAIL’) had been rendered, but on account of the short
\ngap between the two dates, the Division Bench did not notice the
\ndecision in SAIL.\n<\/p>\n
17.\tIn
\nGujarat Electricity Board, this Court held :\n<\/p>\n
“…..\n<\/p>\n
the exclusive authority to decide whether the contract labour should
\nbe abolished or not is that of the appropriate Government under the
\nsaid provision. It is further not disputed before us that the
\ndecision of the Government is final subject, of course, to the
\njudicial review on the usual  grounds. However, as stated earlier,
\nthe exclusive jurisdiction of the appropriate Government under
\nSection 10 of the Act arises only where the labour contract is
\ngenuine and the question whether the contract is genuine, or not can
\nbe examined and adjudicated upon by the court or the industrial
\nadjudicator, as the case may be. Hence in such cases, the workmen can
\nmake a grievance that there is no genuine contract and that they are
\nin fact the employees of the principal employer.\n<\/p>\n
If
\nthe contract is sham or not genuine, the workmen of the so called
\ncontractor can raise an industrial dispute for declaring that they
\nwere always the employees of the principal employer and for claiming
\nthe appropriate service conditions. When such dispute is raised, it
\nis not a dispute for abolition of the labour contract and hence the
\nprovisions of Section 10 of the Act will not bar either the raising
\nor the adjudication of the dispute. When such dispute is raised, the
\nindustrial adjudicator has to decide whether the contract is sham or
\ngenuine. It is only if the adjudicator comes to the conclusion that
\nthe contract is sham, that he will have jurisdiction to adjudicate
\nthe dispute. If, however, he comes to the conclusion that the
\ncontract is genuine, he may refer the workmen to the appropriate
\nGovernment for abolition of the contract labour under Section 10 of
\nthe Act and keep the dispute pending. However, he can do so if the
\ndispute is espoused by the direct workmen of the principal employer.
\nIf the workmen of the principal employer have not espoused the
\ndispute, the adjudicator, after coming to the conclusion that the
\ncontract is genuine, has to reject the reference, the dispute being
\nnot an industrial dispute within the meaning of Section 2(k) of the
\nID Act. He will not be competent to give any relief to the workmen of
\nthe erstwhile contractor even if the labour contract is abolished by
\nthe appropriate Government under Section 10 of the Act.”\n<\/p>\n
In
\nview of the provisions of section 10 of the Act, it is only the
\nappropriate government which has the authority to abolish genuine
\nlabour contract in accordance with the provisions of the said
\nsection. No court including industrial adjudicator has jurisdiction
\nto do so.\n<\/p>\n
18.\tGujarat
\nElectricity Board was partly overruled in Air India in regard to the
\nquestion whether on abolition of contract labour system, the contract
\nlabour have to be automatically absorbed by the principal employer,
\nthis Court held as follows in Air India : “The moment the
\ncontract labour system stands prohibited under section 10(1), the
\nembargo to continue as a contract labour is put an end direct
\nrelationship has been provided between the workmen and the principal
\nemployer. Thereby, the principal employer directly becomes
\nresponsible for taking the services of the workmen hitherto regulated
\nthrough the contractor. The linkage between the contractor and the
\nemployee stood snapped and direct relationship stood restored between
\nthe principal employer and the contract labour as its employees.
\nConsidered from this perspective, all the workmen in the respective
\nservices working on contract labour are required to be absorbed in
\nthe establishment of the employer.”\n<\/p>\n
19.\tA
\ncourse correction, if we may use that expression, was applied by the
\nConstitution Bench, in SAIL. This Court made it clear that neither
\nsection 10 nor any other provision in CLRA Act provides for automatic
\nabsorption of contract labour on issuing a notification by the
\nappropriate government under section 10(1) of the CLRA Act and
\nconsequently the principal employer cannot be required to absorb the
\ncontract labour working in the establishment. This Court further held
\nthat on a prohibition notification being issued under section 10(1)
\nof the CLRA Act, prohibiting employment of contract labour in any
\nprocess, operation or other work, if an industrial dispute is raised
\nby any contract labour in regard to conditions of service, the
\nindustrial adjudicator will have to consider whether the contractor
\nhas been interposed either on the ground of having undertaken to
\nproduce any given result for the establishment or for supply of
\ncontract labour for work of the establishment under a genuine
\ncontract, or as a mere ruse\/camouflage to evade compliance with
\nvarious beneficial legislations so as to deprive the workers of
\nstatutory benefits. If the contract is found to be sham or nominal
\nand merely a camouflage, then the so called contract labour will have
\nto be treated as direct employees of the principle employer and the
\nindustrial adjudicator should direct the principle employer to
\nregularize their services in the establishment subject to such
\nconditions as it may specify for that purpose. On the other hand if
\nthe contract is found to be genuine and at the same time there is a
\nprohibition notification under section 10(1) of CLRA Act, in respect
\nof the establishment, the principal employer intending to employ
\nregular workmen for the process, operation or other work of the
\nestablishment in regard to which the prohibition notification has
\nbeen issued, it shall give preference to the erstwhile contract
\nlabour if otherwise found suitable, if necessary by giving relaxation
\nof age. As noticed above, SAIL did not specifically deal with the
\nlegal position as to when a dispute is brought before the Industrial
\nAdjudicator as to whether the contract labour agreement is sham,
\nnominal and merely a camouflage, when there is no prohibition
\nnotification under section 10(1) of CLRA Act.\n<\/p>\n
20.\tBut
\nwhere there is no abolition of contract abour under section 10 of
\nCLRA Act, but the contract labour contend that the contract between
\nprincipal employer and contractor is sham and nominal, the remedy is
\npurely under the ID Act. The principles in Gujarat Electricity Board
\ncontinue to govern the issue. The remedy of the workmen is to
\napproach the industrial adjudicator for an adjudication of their
\ndispute that they are the direct employees of the principle employer
\nand the agreement is sham, nominal and merely a camouflage, even when
\nthere is no order under section 10(1) of CLRA Act. The industrial
\nadjudicator can grant the relief sought if it finds that contract
\nbetween principal employer and the contractor is sham, nominal and
\nmerely a camouflage to deny employment benefits to the employer and
\nthat there is in fact a direct employment, by applying tests like:
\nwho pays the salary; who has the power to remove\/dismiss from service
\nor initiate disciplinary action; who can tell the employee the way in
\nwhich the work should be done, in short who has direction and control
\nover the employee. But where there is no notification under section
\n10 of the CLRA Act and where it is not proved in the industrial
\nadjudication that the contract was sham\/nominal and camouflage, then
\nthe question of directing the principal employer to absorb or
\nregularize the services of the contract labour does not arise. The
\ntests that are applied to find out whether a person is an employee or
\nan independent contractor may not automatically apply in finding out
\nwhether the contract labour agreement is a sham, nominal and is a
\nmere camouflage. For example, if the contract is for supply of
\nlabour, necessarily, the labour supplied by the contractor will work
\nunder the directions, supervision and control of the principal
\nemployer but that would not make the worker a direct employee of the
\nprincipal employer, if the salary is paid by contractor, if the right
\nto regulate employment is with the contractor, and the ultimate
\nsupervision and control lies with the contractor. The principal
\nemployer only controls and directs the work to be done by a contract
\nlabour, when such labour is assigned\/allotted\/sent to him. But it is
\nthe contractor as employer, who chooses whether the worker is to be
\nassigned\/allotted to the principal employer or used otherwise. In
\nshort worker being the employee of the contractor, the ultimate
\nsupervision and control lies with the contractor as he decides where
\nthe employee will work and how long he will work and subject to what
\nconditions. Only when the contractor assigns\/sends the worker to work
\nunder the principal employer, the worker works under the supervision
\nand control of the principal employer but that is secondary control.
\nThe primary control is with the contractor.”\n<\/p>\n
4.10\tRecently,
\nthis Court has also taken view in case of  Food Corporation of India
\nWorkers’ Union v. Food Corporation of India,<\/a> reported in 2001 (1) GLH\n<\/p>\n
90. Relevant observations are in Para.14 which is quoted as under : <\/p>\n
\n\n \n\n\n \n\n\n \n\n\n14.\tI\nhave considered  the  submissions  of  all  the       learned\nadvocates.      The   question  is  that  yet  no       notification \nhas  been   issued   by   the   appropriate       Government \n<\/pre>\n
prohibiting  labour  contract in the field of the FCI at Gandhidham
\nDepot and that the  respondent  No. 6  is having legal and valid
\nlicence of engaging contract  labour.  These are the facts which  are
\n not  in  dispute between the  parties.    Rest  of  the  averments
\nare in  dispute between  the  parties.    The  prayers   of   the
\npetitioner union either to abolish the contract system or to  direct
\nthe  respondent  corporation  to  absorb  the members of the
\npetitioner union as a regular employee  in  such  a  situation
\ncannot  be  entertained by this court because all these are the
\ndisputed questions of fact.  In such  a  situation,  the  petitioner
\nunion   can   raise  industrial  dispute  under  the  Industrial
\nDisputes Act, 1947 on the ground that the  contract  labour  system
\nis camouflage, sham  and  bogus.    It  is also open for the
\npetitioner union to  approach  the  machinery  under  the provisions
\n of   the  Contract  Labour  (Regulation  and Abolition) Act,1970
\nwith a prayer to  issue  notification for  prohibiting  labour
\ncontract  system at Gandhidham. According to me, the petitioner union
\ncan  simultaneously approach  the  machineries  under  both  the
\nlegislations namely Industrial Disputes Act as well  as  the
\nContract  Labour (Regulation  and  Abolition)  Act,  1970.  Similar
\nsituation has arisen in past before this court in case of  Gujarat
\nMazdoor  Panchayat  versus  State   of   Gujarat reported in  1992
\n(2) LLJ 486.  In paragraph 29 and 30 of the decision, division bench
\nof this court  has  held  as  under:\n<\/p>\n
 “29.\tIt, therefore,  becomes  clear  that  the              references   for  declaration  that  workmen  are  direct employees of the  principal  employer  and the  intermediary contractor is a camouflage will have to be adjudicated upon on their  own  merits under  the  ID  Act and they operate in their own field, viz.  in the personal field i.e.  personal relation between the workmen on the one hand  and the   principal  employer  on  the  other,  while references  for  abolition  of  contract   labour system under sec.  10 of the Act would operate in  their   own   field   and  they  touch  upon  the industrial activities  themselves,  their  nature and upon the question whether such activities can  be  allowed  to  be  subject  to  contract labour system or   not.      Thus,   former   references investigate  upon and cover personal relationship between the contesting parties while  the  latter references   deal   with   objective  aspects  of industrial activities as such.  These  two  types of  references  operate  in  different fields and they do not overlap nor do they intermix and both these types of references can  be  considered  on their own merits under the respective Acts by the   respective appropriate authorities.\n<\/p>\n
30.\tIn view of the  aforesaid  contingencies, resulting   from  interaction  of  the  principal dispute under the ID Act and  subsidiary  dispute  under  the Contract Labour Act, from the point of view of time when such disputes get  decided  and the  nature  of respective decisions under these  two Acts, it is not possible to  agree  with  the contentions  of  the learned  advocate  for  the respondents  that  once the  dispute   regarding abolition  of  given labour contract system is in the offing and is  referred  to the  appropriate Government under sec.10(1) of the Contract Labour  Act  is  decided,  no industrial dispute about de  facto existence of such  labour contract  system  can  ever survive for reference under the ID Act. In this connection, it will be necessary to  note  that  even  if  contract  labour is in vogue in a concern, employees employed by the contractor can  validly raise the following contentions which may buttress their grievance that  even though they are   the   direct  employees  of  the principal employer,  they  have  wrongly  been treated  as employees  of  the  contractor  who is not a real intermediary.  Such types of disputes  under the ID Act   can  legitimately  be  raised  in  the following cases which are  mentioned  by  way  of illustrations only  without suggesting that they are exhaustive;\n<\/p>\n
 (1)\twhen  it  is  alleged  that   the employees  were directly employed by the principal   employer   and subsequently contract  system  was  introduced for the same activities resulting in snapping  of relationship of employee-employer between the workmen on the one hand and the main  employer on the  other,  thus,  violating  sec.  9A of the ID Act.\n<\/p>\n
(2)\tWhen there is absence  of  proper   registration   of   concerned   principal  employer under the Contract Labour Act.\n<\/p>\n
 (3)\tWhen there is absence  of  proper licensing of the concerned contractor who employs  contract labour at a given point of time.\n<\/p>\n
(4)\tEven  though  principal  employer  may  be registered employer under the Act and  the concerned  contractor  may   be licensed  contractor under  the Act, his licence may not cover the activity which is carried on by the contract labour.\n<\/p>\n
(5)\tEven  though  principal  employer  may  be registered  employer  under  the Contract  Labour Act  and the contractor  may be having a valid license to  employ contract   labour,   under  the  Contract Labour Act, for a given  activity,  still licence issued to him may not cover exact  number  of permissible employees employed by  him   meaning   thereby member   of permissible  employes  under  the licence may be  less  than  number  of  employees actually  employed  and  qua  such excess number of employees, protective  umbrella   of  licence would not be available to the   contractor so far as the activity covered  by the licence is concerned.\n<\/p>\n
(6)\tEven  though  principal  employer may   be   registered  employer  and  the contractor may be licensed contractor and  the workmen  employed  by  him  might  be  covered  by  the  permissible  number  of employees as recognised  by  the  licence and  even  though  such activities may be  covered  by  licence,  in  fact  and   in substance, control including disciplinary control  and  supervision  of  the entire activity  may  be  with   the   principal employer  and  the wages of the employees  may in fact be coming out of  coffers  of the   principal   employer,  and  may  be getting paid through the  contractor  who may operate as a mere conduit pipe.  Such type of control, supervision and payments   being outside  the  scope  of sec.  10(2)  read with  secs.    20  and  21  of   the  Contract  Labour Act would give rise to a  legitimate contention that the  principal  employer  is  in  fact  and substance the real employer and the so called  contract is an eye wash.”\n<\/p>\n
5.\tLearned
\nadvocate Mrs.Mauna Bhatt has raised contention that in fact, there is
\nno employer – employee relationship with workers, on whose
\nbehalf industrial dispute has been raised by petitioner Union. She
\nalso submitted that these employees are engaged by contractor on job
\nin which employment of contract labour is not prohibited and
\ntherefore, they are not entitled to raise industrial dispute to
\nconsider their service being regularized in job of principal employer\n<\/p>\n
– respondent No.3. Therefore, she submitted that appropriate
\nGovernment – respondent No.1 has rightly examined matter and
\ndecided the same and for that, no interference is required.\n<\/p>\n
6.\tIn
\nview of aforesaid submissions made by learned advocate Mrs.Mauna
\nBhatt, question involved and raised in present petition requires
\ndetailed examination. Hence, Rule.\n<\/p>\n
7.\tLearned
\nadvocate Mr.Y.V.Vaghela waives service of notice of Rule on behalf of
\nrespondent Nos.1 and 2 and learned advocate Mrs.Mauna M. Bhatt waives
\nservice of notice of Rule on behalf of for respondent No.3.\n<\/p>\n
8.\tLearned
\nadvocate Mrs.Sangeeta Pahwa for petitioner submitted that decision
\nwhich has been taken by appropriate Government – respondent
\nNo.1 dated 10.5.2010 wherein industrial dispute raised by petitioner
\nUnion itself is decided on merits. For that, appropriate Government
\nhas no jurisdiction to examine question on merits in respect to
\nindustrial dispute raised by petitioner Union.\n<\/p>\n
8.1
\nLearned advocate Mrs.Sangeeta Pahwa has placed reliance on the
\ndecision of Apex Court in case of  Telco Convoy Drivers Mazdoor Sangh
\nand Anr. v. State of Bihar and Others,<\/a> reported in AIR 1989 SC 1565.
\nRelevant observations of aforesaid decision are in Para.11 to 16,
\nwhich reads as under:\n<\/p>\n
“11.\n<\/p>\n
It is true that in considering the question of making a reference
\nunder Section 10(1), the Government is entitled to form an opinion as
\nto whether an industrial dispute “exists or is apprehended”,
\nas urged by Mr. Shanti Bhusan. The formation of opinion as to whether
\nan industrial dispute “exists or is apprehended” is not the
\nsame thing as to adjudicate the dispute itself on its merits. In the
\ninstant case, as already stated, the dispute is as to whether the
\nconvoy drivers are employees or workmen of TELCO, that is to say,
\nwhether there is relationship of employer and employees between TELCO
\nand the convoy drivers. In considering the question whether a
\nreference should be made or not, the Deputy Labour Commissioner
\nand\/or the Government have held that the convoy drivers are not
\nworkmen and, accordingly, no reference can be made. Thus, the dispute
\nhas been decided by the Government which is, undoubtedly not
\npermissible.\n<\/p>\n
12.
\nIt is, however, submitted on behalf of TELCO that unless there is
\nrelationship of employer and employees or, in other words, unless
\nthose who are raising the disputes are workmen, there cannot be any
\nexistence of industrial dispute within the meaning of the term as
\ndefined in Section 2(k) of the Act. It is urged that in order to form
\nan opinion as to whether an industrial dispute exists or is
\napprehended, one of the factors that has to be considered by the
\nGovernment is whether the persons who are raising the disputes are
\nworkmen or not within the meaning of the definition as contained in
\nSection 2(k) of the Act.\n<\/p>\n
13.
\nAttractive though the contention is, we regret, we are unable to
\naccept the same. It is now well settled that, while exercising power
\nunder Section 10(1) of the Act, the function of the appropriate
\nGovernment is an administrative function and not a judicial or quasi
\njudicial function, and that in performing this administrative
\nfunction the Government cannot delve into the merits of the dispute
\nand take upon itself the determination of the lis, which would
\ncertainly be in excess of the power conferred on it by Section 10 of
\nthe Act. See Ram Avtar Sharma v. State of Haryana, (1985) 3 SCR 686 :
\n(AIR 1985 SC 915) ; M.P. Irrigation Karamchari Sangh v. State of
\nM.P.,<\/a> (1985) 2 SCR 1019 : (AIR 1985 SC 860) ; Shambu Nath Goyal v.
\nBank of Baroda, Jullundur,<\/a> (1978) 2 SCR 793: (AIR 1978 SC 1088).\n<\/p>\n
14.
\nApplying the principle laid down by this Court in the above
\ndecisions, there can be no doubt that the Government was not
\njustified in deciding the dispute. Where, as in, the instant case,
\nthe dispute is whether the persons raising the dispute are workmen or
\nnot, the same cannot be decided by the Government in exercise of its
\nadministrative function under Section 10(1) of the Act. As has been
\nheld in M.P. Irrigation Karamchari Sangh’s case (supra), there may be
\nexceptionl cases in which the State Government may, on a proper
\nexamination of the demand, come to a conclusion that the demands are
\neither perverse or frivolous and do not merit a reference. Further,
\nthe Government should be very slow to attempt an examination of the
\ndemand with a view to declining reference and Courts will always be
\nvigilant whenever the Government attempts to usurp the powers of the
\nTribunal for adjudication of the valid disputes, and that to allow
\nthe Government to do so would be to render Section 10 and Section
\n12(5) of the Act nugatory.\n<\/p>\n
15.
\nWe are, therefore, of the view that the State Government, which is
\nthe appropriate Government, was not justified in adjudicating the
\ndispute, namely, whether the convoy drivers are workmen or employees
\nof TELCO or not and, accordingly, the impugned orders of the Deputy
\nLabour Commissioner acting on behalf of the Government and that of
\nthe Government itself cannot be sustained.\n<\/p>\n
16.
\nIt has been already stated that we had given one more chance to the
\nGovernment to reconsider the matter and the Government after
\nreconsideration has come to the same conclusion that the convoy
\ndrivers are not workmen of TELCO thereby adjudicating the dispute
\nitself. After having considered the facts and circumstances of the
\ncase and having given our best consideration in the matter, we are of
\nthe view that the dispute should be adjudicated by the Industrial
\nTribunal and, as the Government has persistently declined to make a
\nreference, under Section 10(1) of the Act, we think we should direct
\nthe Government to make such a reference. In several instances this
\nCourt had to direct the Government to make a reference under Section
\n10(1) when the Government had declined to make such a reference and
\nthis Court was of the view that such a reference should have been
\nmade. See Sankari Cement Alai Thozhiladar Munnetra Sangam v. Govt. of
\nTamilnadu, (1983) 1 Lab LJ 460; Ram Avtar Sharma v. State of Haryana,
\n(1985) 3 SCR 686 : (AIR 1985 SC 915); M. P. Irrigation Karamchari
\nSangh v. State of M. P.,<\/a> (1985) 2 SCR 1019: (AIR 1985 SC 860); Nirmal
\nSingh v. State of Punjab, (1984) 2 Lab LJ 396 : (AIR 1984 SC 1619).”\n<\/p>\n
8.2\tShe
\nhas also placed reliance on the decision of Apex Court in case of GEB
\nThermal Power Station, Ukai v. Hind Mazdoor Sabha and Others,<\/a>
\nreported in AIR 1995 SC 1893. Relevant observations of aforesaid
\ndecision are in Para.11 and 13, which reads as under:\n<\/p>\n
“11.\n<\/p>\n
These decisions in unambiguous terms lay down that after the coming
\ninto operation of the Act, the authority to abolish the contract
\nlabour is vested exclusively in the appropriate Government which has
\nto take its decision in the matter in accordance with the provisions
\nof Section 10 of the Act. This conclusion has been arrived at in
\nthese decisions on the interpretation of  Section 10 of the Act.
\nHowever, it has to be remembered that the authority to abolish the
\ncontract labour under Section 10 of the Act comes into play only
\nwhere there exists a genuine contract. In other words, if there is no
\ngenuine contract and the so called contract is sham or a camouflage
\nto hide the reality, the said provisions are inapplicable. When, in
\nsuch circumstances, the concerned workmen raise an industrial dispute
\nfor relief that they should be deemed to be the employees of the
\nprincipal employer, the Court or the industrial adjudicator will have
\njurisdiction to entertain the dispute and grant the necessary relief.
\nIn this connection, we may refer to the following decisions of this
\nCourt which were also relied upon by the counsel for the workmen.\n<\/p>\n
\tIn
\nStandard –Vacuum Refining Co. of India Ltd. v. Its Workmen (AIR<\/a> 1960
\nSC 948) (supra), an industrial dispute was raised by the workmen of
\nthe appellant-company with respect to the contract labour employed by
\nthe company for cleaning maintenance work at the refinery including
\nthe premises and plants belonging to it. The workmen made a demand
\nfor abolition of the contract system and for absorbing workmen
\nemployed through the contractor into the regular service of the
\ncompany. The matter was referred for adjudication to industrial
\nTribunal. The company objected to the reference on the ground (1)
\nthat it was incompetent inasmuch as there was no dispute between it
\nand the respondents and it was not open to them to raise a dispute
\nwith respect to the workmen of some other employer, viz., the
\ncontractor, and (2) in any case, it was for the company to decide
\nwhat was the best method of carrying on its business and the Tribunal
\ncould not interfere with that function of the management. The
\nTribunal held that the reference was competent. It was of the opinion
\nthat the work which was being done through the contractor was
\nnecessary for the company to be done daily, that doing this work
\nthrough annual contracts resulted in deprivation of security of
\nservice and other benefits of the workmen of the contractor and hence
\nthe contract system with respect to that work should be abolished. In
\nappeal, this Court held that the dispute raised was an industrial
\ndispute within the meaning of Section 2 (k) of the Industrial
\nDisputes Act because (i) the respondent-workmen had a community of
\ninterest with the workmen of the contractor, (ii) they had also
\nsubstantial interest in the subject-matter of the dispute inasmuch as
\nthe class to which they belonged was substantially affected thereby,
\nand (iii) the company could give relief in the matter. The Court
\nfurther held that the work in question was incidental to the
\nmanufacturing process and was necessary for it and was of perennial
\nnature which must be done every day. Such work is generally done by
\nworkmen in the regular employment of the employer and there should be
\nno difficulty in having direct workmen for that kind of work. The
\nmatter would be different if the work was of intermittent or
\ntemporary nature or was so little that it would not be possible to
\nemploy full time workmen for the purpose. While dealing with the
\ncontention that the Tribunal should not have interfered with the
\nmanagements’ manner of having its work done in the most economical
\nand convenient way that it thought proper, and that the case in
\nquestion was not one where the contract system was a camouflage and
\nthe workmen of the contractors were really the workmen of the
\ncompany, the Court   held that it may be accepted that the contractor
\nin that case was an independent person and the system was genuine and
\nthere was no question of the company carrying on the work itself and
\ncamouflaging it as if it was done through contractors in order to pay
\nless to the workmen. But the fact that the contract in the case was a
\nbona fide one  would not necessarily mean that it should not be
\ntouched by the Industrial Tribunals. If the contract had been mala
\nfide and a cloak for suppressing the fact that the workmen were
\nreally the workmen of the company, the Tribunal would have been
\njustified in ordering the company to take over the entire body of
\nworkmen and treat it as its own workmen. But because the contract in
\nthe case was bona fide, the Tribunal had not ordered the company to
\ntake over the entire body of workmen. It had left to the company to
\ndecide for itself how many workmen it should employ and on what
\nterms, and had merely directed that when selection is being made,
\npreference be given to the workmen employed by the contractor. The
\nCourt also held that the only question for decision was whether the
\nwork which was perennial and must go on from day to day and which was
\nincidental and necessary for the work of the refinery and was
\nsufficient to employ a considerable number of whole-time workmen and
\nwhich was being done in most concerns through direct workmen, should
\nbe allowed to be done by contractors.  Considering the nature of the
\nwork done and the conditions of service in the case, the Court opined
\nthat the Tribunal’s decision was right and no interference was called
\nfor.\n<\/p>\n
\tThis
\ndecision is of seminal importance for two reasons.  It laid down the
\ntests for deciding whether contract labour should be continued in a
\nparticular establishment, occupation or process etc. Section 10 of
\nthe Act incorporates more or less the same tests as laid down by this
\ndecision. Secondly, it also spelt out the circumstances when the
\nworkmen of an establishment can espouse the cause of other workmen
\nwho were not the direct employees of the establishment and raise an
\nindustrial dispute within the meaning of the ID Act.\n<\/p>\n
\tThis
\nbeing a case decided prior to the coming into operation of the Act,
\nthe Court had held here that even if the contract is a genuine one,
\nthe industrial adjudicator will have jurisdiction to abolish the
\ncontract labour and give appropriate relief as the industrial
\nTribunal had done in the case.  Its importance lies in the fact that
\nit lends support to the proposition that even after the coming into
\noperation of the Act, the  industrial adjudicator will have, in
\nappropriate cases, jurisdiction to investigate as to whether the
\ncontract is genuine or not, and if he comes to the conclusion that it
\nis not, he will have jurisdiction also to give suitable relief.  It
\nmay also appear that even where the contract is genuine but it comes
\nto be abolished by the appropriate Government under Section 10 of the
\nAct, the industrial adjudicator will have jurisdiction to determine
\nthe status of the workmen of the erstwhile contractor.\n<\/p>\n
\tIn
\nHussainbhai, Calicut v. The Alath Factory Thozhilali Union, Kozhikode<\/a>
\n(1978) 4 SCC 257 : (AIR 1978 SC 1410), a number of workmen were
\nengaged in the petitioner’s factory to make ropes. But they were
\nhired by contractors who had executed agreements with the petitioners
\nto get such work done. When 29 of these workmen were denied
\nemployment, an industrial dispute was referred by the State
\nGovernment.  The Industrial Tribunal held them to be workmen of the
\npetitioner. This award was challenged by the petitioner before the
\nHigh Court and the learned single Judge held that the petitioner was
\nthe employer and the workmen were employees under the petitioner.
\nThe Division Bench of the High Court upheld this decision.  While
\ndismissing the special leave petition against, the said decision,
\nthis Court observed that the facts found were that the work done by
\nthe workmen was an integral part of the industry concerned. The raw
\nmaterial was supplied by the management, the factory premises
\nbelonged to the management, the equipment used also belonged to the
\nmanagement and the finished product was taken by the management for
\nits own trade. The workmen were broadly under the control of the
\nmanagement and the defective articles were directed to be rectified
\nby the management.  These circumstances were conclusive to prove that
\nthe workmen were workmen of the petitioner.  The Court further held
\nthat if the livelihood of the workmen substantially depends on labour
\nrendered to produce goods and services for the benefit and
\nsatisfaction of the enterprise, the absence of direct relationship or
\nthe presence of dubious intermediaries cannot snap the real life
\nbond.  If however, there is total dissociation between the management
\nand the workmen, the employer is in substance and in real life terms
\nanother.  The true test is where the workers or group of workers
\nlabour to produce goods or services and these goods or services are
\nfor the business of another, that another is in fact, the employer.
\nHe was economic control over the worker’s skill, subsistence, and
\ncontinued employment. If for any reason, he chokes off, the workers
\nare virtually laid off. The presence of intermediate contractors with
\nwhom alone the workers have immediate direct relationship ex
\ncontractu is of on consequence when on lifting the veil or looking at
\nthe consepectus of factors governing employment, the naked truth is
\ndiscerned and especially since it is one of the myriad devices
\nresorted to by the management to avoid responsibility when labour
\nlegislation casts welfare obligations on real employer based on
\nArticles 38,39,42,43,and, 43A (sic) of the Constitution.\n<\/p>\n
\tIn
\nR. K. Panda v. Steel Authority of India Ltd. (1994) 5 SCC 304 : (1994
\nAIR SCW 2460), the contract labourers by filing a writ petition under
\nArticle 32 claimed party in pay with direct employees and also
\nregularisation in the employment of the respondent-authority. They
\nwere continuing in employment for periods ranging from 10 to 20
\nyears. The contractors used to be changed but the new contractors
\nwere under the terms of the agreement required to retain the workers
\nof the predecessor contractors. The workers were employed through the
\ncontractors for different purpose like construction and maintenance
\nof roads and buildings within  plant premises, public health,
\nhorticulture, water supply etc. In the agreement with the
\ncontractors, it was stated that the parties shall be governed by the
\nprovisions of the Act as well as by the provisions of the payment of
\nBonus Act. On these facts, this Court observed as follows (at p. 2466
\nof AIR) :-\n<\/p>\n
“It
\nis true that with the passage of time and purely with a view to
\nsafeguard the interests of workers, many principal employers while
\nrenewing the contracts have been insisting that the contractor or the
\nnew contractor retains the old employees. In fact such a condition is
\nincorporated in the contract itself. However, such a clause in the
\ncontract which is benevolently inserted in the contract to protect
\nthe continuance of the source of livelihood of the contract labour
\ncannot by itself give rise to a right to regularisation in the
\nemployment of the principal employer. Whether the contract labourers
\nhave become the employees of the principal employer in course of time
\nand whether the engagement and employment of labourers through a
\ncontractor is a mere camouflage and a smokescreen, as has been urged
\nin this case, is a question of fact and has to be established by the
\ncontract labourers on the basis of the requisite material. It is not
\npossible for the High Court or this Court, while exercising writ
\njurisdiction or jurisdiction under Article 136 to decide such
\nquestions, only on the basic of the affidavits. It need not be
\npointed out that in all  such cases, the labourers are initially
\nemployed and engaged by the contractors. As such at what point of
\ntime a direct link is established between  the contract labourers and
\nthe principal employer, eliminating the contractor from the scene, is
\na matter which has to be established on material produced before the
\nCourt. Normally, the labour Court and the Industrial Tribunal, under
\nthe Industrial Disputes Act are the competent for a to adjudicate
\nsuch disputes on the basis of the oral and documentary evidence
\nproduced before them.”\n<\/p>\n
\tTaking
\ninto consideration the developments during the pendency of the writ
\npetition in this Court and the offer made by the respondent-authority
\nto the workmen either to accept voluntary retirement on the terms
\noffered by it or to agree to be absorbed on regular basis and the
\nscheme of modernisation which was in the process of implementation,
\nthe Court gave certain directions in respect of 879 workmen who were
\ninvolved in that case. Those directions included, among other things,
\nregularisation of those workmen who had put in 10 years’ continuous
\nservice provided they were below 58 years of age which was the age of
\nsuperannuation under the respondent-authority. The workmen so
\nregularised were not to receive any difference in their contractual
\nand regular wages till the date of their absorption which was to be
\ncompleted within four months of the date of the order. The
\nrespondent-authority was further at liberty to retrench workmen so
\nabsorbed in accordance with law. The said direction was further
\napplicable to 142 out of 246 jobs in view of the fact that contract
\nlabour had already been abolished in 104 jobs.\n<\/p>\n
13.
\nIt is not necessary for us to go in to the question of the finality
\nof the decision under Section 10 of the Act since as held by this
\nCourt in Vegoils Pvt. Ltd. (AIR 1972 SC 1942 ) , B.H.E.L. Workers’
\nAssociation (AIR 1985 SC 409), Catering Cleaners of Southern Railway
\n(AIR 1987 SC 777) and Dena Nath (1991 AIR SCW 3026) (supra), the
\nexclusive authority to decide whether the contract labour should be
\nabolished or not is that of the appropriate Government under the said
\nprovision. It is further not disputed before us that the decision of
\nthe Government is final subject, of course, to the judicial review on
\nthe usual grounds. However, as stated earlier, the exclusive
\njurisdiction of the appropriate Government under Section 10 of the
\nAct arises only where the labour contract is genuine and the question
\nwhether the contract is genuine, or not can be examined and
\nadjudicated upon by the Court or the industrial adjudicator, as the
\ncase may be. Hence in such cases, the workmen can make a grievance
\nthat there is no genuine contract and that are in fact the employees
\nof the principal employer.”\n<\/p>\n
8.3\tIn
\nview of aforesaid decisions of Apex Court and decision of Division
\nBench of this Court, as referred above and considering reasoning
\ngiven by respondent No.1 – appropriate Government, which is
\nquoted as under :\n<\/p>\n
“The
\nclaimants are engaged by the Contractor on the job in which
\nemployment of contract labour is not prohibited under the provisions
\nof Contract Labour (Regulation and Abolition) Act,1970. Hence, the
\ndemand of regularization in the job of the Principal Employer cannot
\nbe construed as an Industrial Dispute.”\n<\/p>\n
9.\tThe
\naforesaid reasoning is apparently considered by appropriate
\nGovernment on merits because if the claimants are engaged by
\ncontractor on job in which employment contract labour is not
\nprohibited, even though claimants can raise industrial dispute before
\nappropriate Government under provisions of the I.D.Act,1947 to the
\neffect that their services may be regularized by principal employer
\nbecause they are working under control of principal employer. But
\nwhether in fact they are working under control of principal employer
\nor not and arrangement made by respondent No.3 with contractor is
\nmerely paper arrangement or not and contract labour system is real or
\nsham and bogus or genuine or not,   that question is to be examined
\nby Adjudicator but, this decision apparently on merits and question
\nas to whether claimants are having any relationship with principal
\nemployer or not, that question only can be examined by Adjudicator
\nand not by appropriate Government.\n<\/p>\n
10.\tIn
\nlight of these reasoning which found apparently on merits and for
\nthat, appropriate Government has no jurisdiction to decide it and
\nappropriate Government must have to consider only whether industrial
\ndispute exists at the time when it has been raised by Union or not.
\nIf there is industrial dispute exists, then appropriate Government
\nmust have to refer such industrial dispute for adjudication before
\nappropriate concerned Industrial Tribunal.\n<\/p>\n
11.\tHowever,
\ncontention raised by learned advocate Mrs.Mauna Bhatt that there is
\nno relationship between claimant and respondent No.3 as an employer –
\nemployee. If that be so, such contention can be raised by respondent
\nNo.3 before Industrial Tribunal wherein such industrial dispute is
\nreferred for adjudication.\n<\/p>\n
11.1\tThe
\npetitioner has also made application for review before appropriate
\nGovernment – respondent No.1. Even that review application is
\nalso rejected by appropriate Government by order dated 15.6.2010
\nwithout giving separate reasons while dealing with contention raised
\nby Union in its review application which suggests clear
\nnon-application of mind of respondent No.1.\n<\/p>\n
12.\tIn
\nview of this, order passed by appropriate Government dated 10.5.2010
\nas well as order passed in review application dated 15.6.2010 are
\nhereby quashed and set aside, with a direction to appropriate
\nGovernment – respondent No.1 to re-consider entire matter a
\nfresh in light of decision relied  and referred by this Court and
\nthereafter, to pass appropriate orders of reference under Section
\n10(1) of I.D.Act,1947 within a period of two months from date of
\nreceiving copy of present order. This order has been passed by this
\nCourt without expressing any opinion on merits. Rule is made absolute
\nto the aforesaid extent.\n<\/p>\n
[
\nH.K.RATHOD, J. ]<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Chemical vs Secretary on 26 April, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/662\/2011 43\/ 43 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 662 of 2011 ========================================================= CHEMICAL MAZDOOR PANCHAYAT – Petitioner(s) Versus SECRETARY THROUGH DESK OFFICER & 2 – Respondent(s) ========================================================= Appearance […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-36847","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nChemical vs Secretary on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chemical vs Secretary on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-04-25T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-03-12T07:52:17+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"69 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Chemical vs Secretary on 26 April, 2011\",\"datePublished\":\"2011-04-25T18:30:00+00:00\",\"dateModified\":\"2018-03-12T07:52:17+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011\"},\"wordCount\":13646,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011\",\"name\":\"Chemical vs Secretary on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2011-04-25T18:30:00+00:00\",\"dateModified\":\"2018-03-12T07:52:17+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/chemical-vs-secretary-on-26-april-2011#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Chemical vs Secretary on 26 April, 2011\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Chemical vs Secretary on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011","og_locale":"en_US","og_type":"article","og_title":"Chemical vs Secretary on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2011-04-25T18:30:00+00:00","article_modified_time":"2018-03-12T07:52:17+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"69 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Chemical vs Secretary on 26 April, 2011","datePublished":"2011-04-25T18:30:00+00:00","dateModified":"2018-03-12T07:52:17+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011"},"wordCount":13646,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Gujarat High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011","url":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011","name":"Chemical vs Secretary on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2011-04-25T18:30:00+00:00","dateModified":"2018-03-12T07:52:17+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/chemical-vs-secretary-on-26-april-2011#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Chemical vs Secretary on 26 April, 2011"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/36847","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=36847"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/36847\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=36847"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=36847"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=36847"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}