{"id":56380,"date":"2000-05-26T00:00:00","date_gmt":"2000-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajender-lal-others-vs-union-of-india-others-on-26-may-2000"},"modified":"2019-01-16T14:50:04","modified_gmt":"2019-01-16T09:20:04","slug":"rajender-lal-others-vs-union-of-india-others-on-26-may-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajender-lal-others-vs-union-of-india-others-on-26-may-2000","title":{"rendered":"Rajender Lal & Others vs Union Of India & Others on 26 May, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Rajender Lal & Others vs Union Of India & Others on 26 May, 2000<\/div>\n
Equivalent citations: 2000 (54) DRJ 738, (2001) ILLJ 435 Del<\/div>\n
Author: A Sikri<\/div>\n
Bench: A Sikri<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
A.K. Sikri, J.<\/p>\n
1.     All these writ petition are filed by contract workers who are  engaged by different contractors and all these contractors are\/were awarded work by CPWD.  All  these  contract workers in these writ  petitions  are  claiming regular appointment\/direct absorption by CPWD as their principle  employer. It is not necessary to state facts in each case for the purpose of  disposing  of these writ petitions. It would be sufficient to mention that  these contract workers have been working for varying periods which is as less  as 1-2  years  and as long as 18-20 years in certain cases.  Admittedly  every contract worker has worked for more than 240 days. Further, admittedly,  no notification has been issued by the “appropriate Government” u\/S. A href=”javascript:fnOpenGlobalPopUp(‘\/ba\/disp.asp’,’82156′,’1′);”>10 of the Contract  Labour Regulation and Abolition Act, (hereinafter referred to  as the  Act, for short) for abolishing the contract labour system in the  CPWD in  respect of the nature of work being undertaken by these contract  workers. These writ petitions are filed at a stage when in most of these  cases request  was made to the “appropriate Government” for constitution  of  the Board to undertake the task of ascertaining whether the process, operation, for  the work being carried on by the contract labour needs  abolition.  It has  been the contention of the petitioners that the work being  undertaken is of perennial nature and they have been doing this work for long time. It is  further  contended that the contract system is a camouflage  and  needs abolition and therefore in these cases the “appropriate Government”,  which is the Central Government in the instant cases, should issue  nortification u\/S. 10 of the Act prohibiting employment of contract labour in the  process,  operation  and the work carried on by these contract workers  in  the establishment of CPWD through contractors.\n<\/p>\n
2.   All  these writ petitions were heard at length when M\/s.  V.  Shekhar, Naresh  Kaushik,  Shankar Divate, Manas Panigrahi argued on behalf  of  the petitioners  in  different writ petitions. Mr.  P.  Chandramouly,  National President, National Forum for Forces Fighting Corruption and Injustice  had argued  in  person in support of claim in Civil Writ Petition No.  1159  of 1999. Dr. Abishek Singhvi, Senior Advocate with Mr. Sandip Aggarwal  argued for  the respondent-CPWD. After the arguments were heard and  judgment  was reserved, before the judgment could be pronounced certain subsequent development  took  place.  Some more matters relating to CPWD  when  listed  for hearing,  Mr. S.B. Jaisinghani, learned Additional Solicitor  General,  appeared on behalf of the CPWD alongwith Mr. Jayant Bhushan, Mr. A.K.  Bhardwaj  and Ms. Kumud L. Das and submitted that the  “appropriate  Government” was  considering  constitution of a Committee to go into  the  question  of abolition  of contract labour and requested that judgment in these  matters be  not pronounced at that stage. This second batch of writ petitions  were adjourned from time to time and ultimately on 20th April, 2000,  Resolution dated 30th March, 2000 was produced which was issued by Government of India u\/S. 5 of the Act whereby Central Advisory Contract Labour Board (  hereinafter  referred to as the Board, for short ) constituted a Committee to  go into  the  question of abolition of contract labour deployed  in  different offices\/establishments  by  the CPWD. In the schedule annexed to  the  above Resolution  brief  submissions were made by counsel for  both  the  parties after  this Resolution and that batch of writ petitions were also  reserved for delivering a common judgment.\n<\/p>\n
3.   At the time of arguments on the first batch of writ petitions  learned counsel for the petitioners formulated the following propositions:-\n<\/p>\n
     1. When the “appropriate Government” is not issuing  notification u\/S. 10  of the Act for abolishing contract labour in  respect  of the  work being performed by the petitioners, this  Court  should give  necessary  directions to the  “appropriate  Government”  to issue  such notification. It was submitted that there was  sufficient material placed on record and hardly any disputed questions of  fact  were  involved in view of the  aforesaid  material  and taking cognizance thereof this Court could give necessary  directions in exercise of its powers under Article 226 of the  Constitution of India.\n<\/p><\/blockquote>\n
     2.  It was argued in the alternative that in case the Court  felt that there was no sufficient material before the Court or because of  the  disputes  raised by the respondent with  regard  to  the sufficiency or admissibility of such material\/evidence on record, this Court under Article 226 had ample power to refer the  matter to the Board with the directions to undertake necessary  exercise and  submit  report  as to whether contract  labour  deployed  in different  offices\/establishments  of CPWD needed  abolition  and after  calling for the said report appropriate writ be issued  by the Court itself for abolition of the contract system in CPWD.\n<\/p><\/blockquote>\n
     3.  If the Court did not want to accept any of  the  alternatives suggested  above and was of the opinion that the matter is to  be gone into by the Board which is the expert body and ultimately it is  the  “appropriate  Government” which has  to  decide  whether contract   labour   system  needs  to  be   abolished   or   not, mandamus\/direction  be issued to the “appropriate Government”  to constitute a Committee to go into this question and thereafter in consultation  with  the Board, Govt. shall decide as  to  whether notification u\/S. 10 of the Act is to be passed or not. However if this  course  of  action is to be adopted, the  services  of  the petitioners\/contract workers on whose behalf these petitions  are filed  be  protected in the meantime and stay  granted  in  these cases be continued till the completion of exercise by the Central Government in terms of the provisions of Section 10 of the Act.\n<\/p><\/blockquote>\n
4.   In  support of their submissions the petitioners had relied  upon  the following  judgments  and  extensively quoted therefrom :-  (i)  Air  India Statutory  Corporation etc. Vs. United Labour Union and others ; (ii) Secretary, Haryana State Electricity Board Vs. Suresh and others  etc. etc. ; (iii Gujarat  Electricity Board,  Thermal  Power Station, Ukai, Gujarat Vs. Hind  Mazdoor  Sabha  and others  ,(iv) National Federation of  Railway Porters, Vendors and Bearers Vs. Union of India and others reported in 1995 (3)  SCC 152; (v) All India General Mazdoor Trade Union (Regd.)  Vs.  Delhi Administration and others .\n<\/p>\n
5.   It  was also argued that merely because alternative remedy was  available i.e. namely the machinery provided u\/S. 10 of the Act, did not bar the jurisdiction of this Court under Article 226 of the Constitution and it was still the discretion of this Court to entertain the writ petition and facts of these cases warranted such discretion to be exercised rather than  forcing  the petitioners to invoke machinery provided u\/S. 10 of the Act and  on this aspect various judgments of this Court were also cited.\n<\/p>\n
6.   Respondents  in their reply had vehemently opposed the prayers of  the petitioners  and submitted that these writ petitions were not  maintainable at all. It was submitted that there was not a single case where High  Court under Article 226 or Supreme Court under Article 32 of the Constitution had exercised  discretion  by issuing mandamus for abolition  of  the  contract
\nlabour. It was argued that Air India (supra) case was a meter where  there was already a notification u\/S. 10 of the Act abolishing contract labour and the Court was concerned with the effect and consequences of such  notification. As far as HSEB (supra) case is concerned, it was submitted that, that case  had originated from Industrial Tribunal and findings of  facts  after the evidence led by both the parties were recorded by the Industrial Tribunal,  to the effect that the contract labour system was a sham  and  camouflage. Referring to the passages from the very judgment cited by the  petitioners, it was sought to be argued that the Courts had generally  directed the “appropriate Government” to go into this question in consultation  with the  Board. It was also submitted that in the absence of  any  notification u\/S. 10 of the Act, the petitioners\/these contract workers were not entitled to  any  relief. The matter was to be left to the expert body  namely,  the Board  which could go into the exercise as contemplated u\/S. 10 of the  Act inasmuch  as various factors as per the said Act were to be  considered  by the “appropriate Government” in consultation with the Board as this was not a function of this Court. It was further argued that the alternative course of  action suggested by the petitioners namely calling for the  report  and then passing the order was also not proper as such directions in few  cases were given by the Supreme Court (on which reliance was placed by the  petitioners)  and in the peculiar facts and circumstances of those cases  which could  be  stated to be directions under Article 142 of  the  Constitution,
\nthere was no justification to adopt such course by this Court under Article 226  of  the Constitution. The only direction which could be given  to  the “appropriate Government” is to constitute a Committee to go into the aspect of  abolition of contract labour and decide as to whether  contract  labour needs to be abolished or not. On merits, it was also vehemently argued that the kind of activities being undertaken by the CPWD warranted  continuation of contract labour system as in the absence of such system the very structure  of CPWD would crumble as it was neither feasible nor appropriate  nor proper  to abolish the contract labour system for carrying out the kind  of activities  being undertaken by CPWD for which it was imperative  to  award contracts to the contractors and engage contract labour. Apart from relying on the same very judgment quoted by the petitioners and distinguishing some of  those judgments, the respondents referred to the judgment in the  cases of Dr. D.C. Wadhwa and others Vs. State of Bihar and others , Union of India and another Vs. Kirloskar  Pneumatic  Company Limited  reported  in  JT 1996 (5) SC 26, Assistant  Collector  of  Central Excise,  Chandan  Nagar, West Bengal Vs. Dunlop India  Limited  and  others , State of West Bengal and others Vs.  Calcutta Hardware Stores and others , Syndicate Bank  and another  Vs. K. Umesh Nayak reported in 1994 (5) SCC 572, State of  Haryana and  another  Vs. Chanan Mal etc. ,  Dhananjay Jana and others Vs. Union of India and others reported in 1999 (4) SLR 289, in support of their various contentions.\n<\/p>\n
7.   I  have noted the arguments of both the parties in very brief  and  in truncated form. In view of the fact that Resolution dated 30th March,  2000 is  passed constituting Committee to go into the question of  abolition  of contract labour deployed in different offices\/establishments of CPWD, it is not  necessary at least in these matters to go into the first two  propositions  advanced by the petitioners as noted above. Infact when  the  second batch of petitions were heard on 20th April, 2000 even the counsel for  the petitioners admitted that since the Committee has been constituted and  the Government has started undertaking necessary exercise the issues  mentioned in  the first two propositions have become more or less academic in so  far as these cases are concerned. However, the third proposition was strenuously  pressed and it was submitted that since Committee had been  constituted and government was to decide about abolition of contract labour system  the services  of the contract labourers\/petitioners be continued and  protected in  the  meantime. It was also submitted that direction be  issued  to  the respondents  to  complete the exercise within time bound  frame.  In  these circumstances it is this part of third proposition which only remains to be dealt with in the instant case.\n<\/p>\n
     Regarding interim arragement<\/p>\n
8.   In  support of this claim, the counsel for the  petitioners  submitted that all these contract workers required interim protection till the matter was  decided by the Government u\/s. 10 of the Act. It was submitted that  in many  of the cases these contract workers were working for number of  years and  they  could not be thrown out and rendered unemployed  merely  because they had approached this Court. Infact it was submitted by the  petitioners that  it was the duty of the “appropriate Government” itself to examine  as to  whether contract labour needed to be abolished and the  Government  had failed  in  its  duty by not undertaking this exercise uptil  now.  It  was further  submitted  that  Supreme Court in some of the  cases,  even  while referring  the matter to the “appropriate Government”, had granted  interim protection.  Reference  was  made to these  judgments  including  following passage from All India General Mazdoor Trade Union (Regd.) Vs. Delhi Administration and others (supra):-\n<\/p>\n
     “Till  this  process is completed, subject to what we  have  said earlier, the workmen will be continued in employment and Respondent 2 will ensure their continuance.”\n<\/p>\n
9.   It  was submitted that same directions are given by the Supreme  Court in several other cases also.\n<\/p>\n
     On  the other hand, learned counsel for the respondent submitted  that no  such direction was warranted in these cases and in support of its  submission following arguments were advanced:-\n<\/p>\n
     (a)  in  the absence of any notification u\/S. 10 of the  Act  writ petitions  are not maintainable. When the writ was not  maintainable  and  the Court could not grant the relief  claimed  by  the petitioners,  namely, Court could not give direction  to  regularise\/absorb these contract workers by CPWD and no interim  direction could also be given.\n<\/p>\n
     (b) High Court under Article 226 of the Constitution was Court of sub….. and was not meant to give semantic direction. There  was no juristic basis to give such directions and infact giving  such directions would be contrary to the provisions of the Act and the same  being  not permissible in view of the observations  of  the Supreme Court in Abdul Rehman Antulay Vs. R.S. Nayak case . What could not be done directly cannot be  allowed  to  be  done indirectly. Giving  such  directions  would amount  to  allowing the contract workers to continue  even  when they were not entitled to any such relief finally. Infact  giving such interim relief would amount to giving final relief.\n<\/p>\n
     (c)  The  reliance  placed by the petitioners  on  the  aforesaid judgments  of the Supreme Court was misconceived inasmuch as  the directions given by the Supreme Court in the aforesaid two  cases were in exceptional circumstances and were just directions  under Article 142 of the Constitution of India and were not the  directions under Article 141 of the Constitution of India laying  down ratio decidendi or obiter and therefore were not binding on  this Court. It was also argued that giving such directions would  lead to  laying down bad law resulting in serious consequences and  it would be difficult to draw a line inasmuch as any contract worker after working for 240 days would file writ petition under Article 226 of the Constitution claiming that contract system in the work being carried by him needs abolition and on this pretext he would seek  directions to be issued to the Government to  constitute  a Committee\/Board  and decide whether the contract system needs  to be  abolished and in the meantime would enjoy the  protection  of the  Court and continue to work, whether he is required  or  not. Therefore,  if  such course of action is adopted in  the  present case  it would be prone to misuse and the entire contract  labour system,  even if legitimately adopted and even when there  is  no notification  u\/S. 10 of the Act to abolish contract labour  in  a particular  activity in a particular establishment, would be  put to naught.\n<\/p>\n
10.  It  was  also submitted that interim orders passed in  many  of  these petitions  were  infact creating difficulties for the CPWD inasmuch  as  in many  cases  CPWD was given the contract of maintenance of  buildings  etc. which  were owned by other establishments\/public sector  undertakings  etc. where  the  CPWD itself was playing the role of a contractor.  In  many  of these  cases the contract were not renewed by the concerned  establishments but  as  cases by the contract workers with regard to  such  establishments were also pending, the CPWD was forced to continue with them  notwithstanding  the  fact  that the corpus itself had vanished in so far  as  CPWD  is concerned.\n<\/p>\n
11.  I have given my considered thought to this aspect in the light of  the legal position as well as factual matrix of these cases. There may be  some force  in  the arguments advanced by the respondents. However,  it  is  not necessary to go into these arguments in detail again because of the  subsequent developments which have taken place in this case and I am more influenced  by these developments while directing the interim arrangement  which should  be made in the intregnum. After all it would be a question  of  few months only when the whole exercise has to be completed and decision is  to be taken by the Central Government one way or the other. The position as of today is that the Board has already constituted a Committee to go into  the question   of   abolition  of  contract  labour   deployed   in   different ffices\/establishments of CPWD in the schedule annexed to Resolution  dated 30th March, 2000. Thus it is not a case where this Court or the  Government has to decide whether there is a requirement for constitution of a  Committee or not. Once a Committee is constituted which is to undertake the study of  contract  labour system in the jobs\/work\/process given in column  4  of Schedule  annexed to Resolution dated 30th March, 2000 in respect  of  such offices\/establishments maintained by CPWD, the Committee after  undertaking this study would submit its report to the Board and based on such a report, Central  Government as the “appropriate Government” would take decision  as to whether contract labour system needs to be abolished or not. If services of  these contract workers are dispensed with at this stage and  ultimately it is found that contract labour in respect of jobs\/work\/process undertaken by  these contract workers in respect of the  offices\/establishments  where they are working, needs to be abolished and notification u\/s. 10 of the Act issued  to  this effect by the Central Government, these  contract  workers would suffer irreparable injury and it may become difficult for them to get the benefits of such notification abolishing contract labour system.  Moreover, when the Committee is going ahead with the task then in the  meantime it  would also be not proper if the services of these contract workers  are dispensed  with  and fresh contract labour is engaged in their  place.  Not only it would cause injustice to these contract workers, it may prove to be counter  productive  even for CPWD if  ultimately  notification  abolishing contract  labour system is issued u\/S. 10 of the Act by the Central  Government  because at that point of time CPWD would be confronted with a  situation  where  not only the present contract workers (  discontinued  in  the meantime  if not protected) but contract labour engaged in their place  and working at that point of time would seek claim for absorption and regularisation with CPWD. That would be a worse situation for CPWD itself then  the present  situation where these contract workers are allowed to continue  in the    intregnum.   Therefore,   the   least   protection    which    these petitioners\/contract  workers require is that till the exercise  u\/S. 10  of the  Act is on after issuance of Resolution dated 30th March,  2000,  their services  be not substituted with other contract workers. These writ  petitions are accordingly disposed of with the following directions:-\n<\/p>\n
     1. The services of these contract workers shall not be substituted with other contract workers i.e. if the respondent require  to employ  contract workers in the jobs assigned to  these  contract workers, then they will not replace the present contract  workers with fresh contract workers.\n<\/p><\/blockquote>\n
     2.  In  case  of contract with a particular  contractor  who  has engaged  these petitioners\/contract workers, comes to an end  the said contract may be renewed and if that is not possible and  the contract  is given to some other contractor endeavour  should  be made to continue these contract workers with the new  contractor. It  would  be without prejudice to the respective  stand  of  the parties  before the “appropriate Government” and their  continuation  would depend upon the decision taken by the  Government  to abolish or not to abolish the contract labour system.\n<\/p><\/blockquote>\n
     3.  These  directions shall not apply in those  cases  where  the particular contract of maintenance etc. given by other establishment  to the CPWD earlier has ceased to operate with  the  result that  CPWD is not having the work\/contract any longer.  In  those cases  it  would be open to the CPWD to disengage  such  contract workers   as   not  required  any  longer  in  the   absence   of work\/job\/particular activity with the CPWD.\n<\/p><\/blockquote>\n
     4.  If  the decision is taken to abolish the contract  labour  in particular job\/work\/process in any of the  offices\/establishments of  CPWD (as per the terms of reference contained  in  Resolution dated 30th March, 2000), as per the judgment of the Supreme Court in Air India Statutory Corporation (supra) such contract  workers would be entitled to be absorbed with CPWD and would be  entitled to claim the benefits in terms of aforesaid judgment. In case the decision  of the “appropriate Government” is not to abolish  contract  labour  system  in any of the  works\/jobs\/process  in  any offices\/establishments  of CPWD the effect of that would be  that contract  labour  system is permissible and in  that  eventuality CPWD shall have the right to deal with these contract workers  in any manner it deems fit.\n<\/p><\/blockquote>\n
     5.  Such  contract labours who are still working  shall  be  paid their wages regularly as per the provisions of Section 21 of  the Act and in those cases where the contractor fails to make payment of wages, it shall be the responsibility of the CPWD as principle employer to make the payment of wages.\n<\/p><\/blockquote>\n
     6. The exercise undertaken by the “appropriate Government” u\/S. 10 of the Act, starting with the formation of a Committee by Resolution dated 30th March, 2000 should be completed as  expeditiously as  possible and in any case within a period of six  months  from today.\n<\/p><\/blockquote>\n
12.     There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Rajender Lal & Others vs Union Of India & Others on 26 May, 2000 Equivalent citations: 2000 (54) DRJ 738, (2001) ILLJ 435 Del Author: A Sikri Bench: A Sikri ORDER A.K. Sikri, J. 1. All these writ petition are filed by contract workers who are engaged by different contractors and all […]<\/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":[14,8],"tags":[],"class_list":["post-56380","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nRajender Lal & Others vs Union Of India & Others on 26 May, 2000 - 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\/rajender-lal-others-vs-union-of-india-others-on-26-may-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajender Lal & Others vs Union Of India & Others on 26 May, 2000 - 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