V.K. Shukla, ACJ.—Food Corporation of India, Mazdoor Union, Hapur, District Ghaziabad through its General Secretary is before this Court, assailing the validity of the order dated 19.04.2016 passed by learned Single Judge in Civil Misc. Writ Petition No. 50747 of 2015 (The Chairman Cum Managing Director F.C.I. and 3 others v. The General Secretary (Represented by Mohd. Hashim General Secretary) F.C.I. and another), allowing the writ petition by setting aside the order dated 29.05.2015 with liberty to Deputy Chief Labour Commissioner (Central), Kanpur to place the report to the Central Government for referring the dispute for adjudication under the Industrial Dispute Act, 1947.
2. Brief background of the case as is emanating that F.C.I. Mazdoor Union, Hapur, District Ghaziabad claims itself to be duly registered Union under the Trade Union Act, 1986 and also duly recognised by Food Cooperation of India, wherein Mohd. Hashim claims that he is duly selected General Secretary of Union. At Food Cooperation of India, the activity in question that was being carried out at Food Storage Depot of Food Corporation of India pertaining to loading, unloading, slacking, de-slacking, re-slacking, standization, weighment, sweeping and cleaning same was through contract system. The contract system was abolished by the Central Government under the provision of Contract Labour (Regulation and Abolition) Act, 1979. Thereafter Food Corporation of India accordingly issued a Circular on 05.12.1994 for providing benefit to the workers after abolition of the contract system. This much is reflected that there has been a lis in between workers and Food Corporation of India and ultimately F.C.I. Mazdoor Sangh filed Civil Misc. Writ Petition No. 22652 of 1998, which was disposed of vide order dated 08.09.1998. Against the order dated 08.09.1998, Food Corporation of India had filed Special Appeal No. 874 of 1998 and all other connected matter were disposed of by common judgement dated 30.11.2006. This much is also reflected that thereafter, pursuant to the order passed in Civil Misc. Writ Petition No. 22652 of 1998 and Special Appeal No. 874 of 1998, Assistant Labour Commissioner (Central), Kanpur by order dated 20.06.2007 resolved the controversy by verifying the workers and declared them to be genuine workers. Against the order dated 20.06.2007 passed by the Assistant Labour Commissioner (Central), Kanpur, the Food Corporation of India filed Civil Misc. Writ Petition No. 46677 of 2007 and in pursuance of the order passed in Civil Misc. Writ Petition No. 46677 of 2007, order dated 01.05.2009 has been passed by Assistant Labour Commissioner (Central), Kanpur and order dated 01.05.2009 has been subjected to challenge in Civil Misc. Writ Petition No. 27550 of 2009 by the Food Cooperation of India and same was dismissed on 27.05.2009. Thereafter against the order dated 27.05.2009, Special Appeal was preferred by the Food Corporation of India, which was been disposed of vide order dated 09.09.2009 with the observation that if any application for restoration is pending as claimed same shall be decided within two months. Thereafter the Assistant Labour Commissioner passed the order on 24.11.2009 which was challenged by Food Corporation of India in Civil Misc. Writ Petition No. 4604 of 2010 and said writ petition was dismissed by order dated 03.02.2010. Against the order dated 03.02.2010, Special Appeal No. 2906 of 2010 has been filed and same has also been dismissed on 07.10.2010. Record in question reflects that thereafter Food Corporation of India again moved application before the Assistant Labour Commissioner (Central), Kanpur for tracing restoration application and to decide the same. Thereafter, Assistant Labour Commissioner (Central), Kanpur by order dated 14.03.2011 rejected the application filed by the Food Corporation of India. Thereafter the Food Corporation of India filed Civil Misc. Writ Petit on No. 26953 of 2011 which was dismissed on 11.05.2011. Against the order dated 11.05.2011, Special Appeal was filed by the Food Corporation of India which was registered as Special Appeal No. 1558 of 2011 and same was dismissed by order dated 06.05.2014. Thereafter Food Corporation of India against the order dated 06.05.2014 filed Special Leave to Appeal before the Apex Court which was dismissed by order dated 03.11.2014. Thereafter, against the order dated 03.11.2014, Food Corporation of India filed Review Application, which was rejected on 20.01.2015 and order of Assistant Labour Commissioner ( Central), Kanpur was confirmed up to the Apex Court. Record in question reflects that in pursuance to the order dated 17.10.2011 passed in Civil Misc. Writ Petition No. 59544 of 2011, 3 Member Committee was constituted for verification of the contract labourers before whom the members of Union appeared, ultimately the Committee prepared its report on 19.11.2012. In the said report that has been so prepared, Mazdoor Union had feeling that various incumbents have been left out, accordingly Civil Misc. Writ Petition No. 34027 of 2013 had been filed and this Court on 19.06.2013 proceeded to pass order. This much is also reflected that thereafter Deputy Chief Labour Commissioner (Central), Kanpur proceeded to pass order on 29.05.2015 accepting the list of workers. Against the order dated 29.05.2015 Civil Misc. Writ Petition No. 50747 of 2015 had been filed and aforesaid writ petition has been allowed.
3. Sri Anil Bhushan, Senior Advocate, assisted by Sri S.K. Mishra, Advocate submitted with vehemence that in the present Deputy Chief Labour Commissioner (Central), Kanpur had full authority and jurisdiction to decide the issue of genuine/ingenuine of the workers, in the past such an exercise has been approved by this Court, and in view of this, totally wrong opinion has been formed by the learned Single Judge and as such Special Appeal deserves to be allowed.
4. Sri. K. Ajit, Advocate representing the respondents on the other hand contended that rightful order has been passed after law on the subject has been settled in the case of Steel Authority of India Limited v. National Union Water Front Workers 2001 Law Suit (SC) 1140 as such Special Appeal deserves to be dismissed.
5. Sri. Rizwan Ahmad, Advocate has entered appearance for Central Government.
6. After respective arguments have been advanced, factual situation that is so emerging in the present case is that identification of contract labour, who were earlier employed through private contractors in the depots of the Corporation, prior to the notification dated 23.04.2010 issued by the Central Government abolishing contract labour in exercise of power conferred under Section 10(1) of Contract Labour (Regulation and Abolition) Act, 1970 has been an issue inter-se Workers Union and Food Cooperation of India. After the said abolition exercise has been undertaken, the Corporation incorporated "No Work No Pay'' scheme providing guidelines to identify labourers working in the depots of the Corporation, and in reference of the same a Committee was constituted to identify the labourers and said Committee identified 222 labourers in respect of Roza Depot, District Shahjahanpur. This much is also reflected that such decision was not at all appreciated by the various incumbents, who had strong feeling that their name is in the list should also be finalized. This much is reflected from the record that in Civil Misc. Writ Petition No. 34027 of 2013 this Court on 19.06.2013 passed order to the effect that petitioners are at liberty to file a representation with a week before the competent authority and if the work is available the petitioners shall be engaged on the same status on which they were working on the date when the impugned order was passed. This much is reflected that contempt application has also been filed being Contempt Application No. 4366 of 2013. The incumbents approached Deputy Labur Commissioner, Kanpur by moving representation to the effect that they are genuine contract labourers and have wrongly been denied of the benefit available under scheme. Directives were given in Special Appeal No. 943 of 2014 on 15.10.2015 for expediting the matter. Pursuant thereof issues were framed to the effect as to whether set of workers, have worked in the notified depots of Food Corporation of India and are entitled to get benefit of Notification dated 10(1) of Contract Labour (Regulation and Abolition) Act, 1970. Whether claim of workers are genuine or not.
7. The Deputy Chief Labour Commissioner (Central) Kanpur, thereafter finalised the list of workers and thus impelling the Food Corporation of India to be before this Court, by assailing the decision so taken by Deputy Chief Labour Commissioner.
8. Before we proceeded to consider the matter on merit, view point of Apex Court in the case of Steel Authority of India Limited v. National Union Water Front Workers 2001 Law Suit (SC) 1140 is being looked into.
104. The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the provisions of the Act what the legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the legislature. We have already noticed above the intendment of the CLRA Act that it regulates the conditions of service of the contract labour and authorizes in Section 10(1) prohibition of contract labour system by the appropriate Government on consideration of factors enumerated in sub-section (2) of Section 10 of the Act among other relevant factors. But, the presence of some or all those factors, in our view, provide no ground for absorption of contract labour on issuing notification under subsection (1) of Section 10. Admittedly when the concept of automatic absorption of contract labour as a consequence of issuing notification under Section 10(1) by the appropriate Government, is not alluded to either in Section 10 or at any other place in the Act and the consequence of violation of Sections 7 and 12 of the CLRA Act is explicitly provided in Sections 23 and 25 of the CLRA Act, it is not for the High Courts or this Court to read in some unspecified remedy in Section 10 or substitute for penal consequences specified in Sections 23 and 25 a different sequel, be it absorption of contract labour in the establishment of principal employer or a lesser or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such clearly impermissible. We have already held above, on consideration of various aspects, that it is difficult to accept that the Parliament intended absorption of contract labour on issue of abolition notification under Section 10(1) of CLRA Act.
106. An analysis of the cases, discussed above, shows that they fall in three classes; (I) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the Industrial adjudicator/Court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the C.L.R.A. Act no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be sham and nominal rather a camouflage in which case the contract labour working in the establishment of the principal employer was held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) herein discharge of a statutory obligation of maintaining canteen in an establishment the principal employer availed the services of a contractor and the Courts have held that the contract labour would indeed be the employees of the principal employer.
124. The upshot of the above discussion is outlined thus: (1) (a) Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression appropriate Government as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government,
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the concerned Central Government company/undertaking or any undertaking is included therein eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by railway company; or (c) by specified controlled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(2) (a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government : (1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and;
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question; and
(ii) other relevant factors including those mentioned in subsection
(2) of Section 10;
(b) inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the afore-said requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment;
(4) We over-rule the judgment of this court in Air Indias case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labour following the judgment in Air Indias case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislation''s so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
125. We have used the expression industrial adjudicator by design as determination of the questions afore-mentioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be industrial tribunal/court whose determination will be amenable to judicial review.
9. Accepted position is that as far as member of petitioner/appellants Union are concern, they are claiming that they were genuinely appointed by the contractor and in view of this, their names ought to have been there in the list prepared for extending benefit of scheme in question. In the case of Steel Authority of India Limited v. National Union Water Front Workers 2001 Law Suit (SC) 1140 categorical mention has been made by Apex Court that after abolition of contract labourers, if any issue is raised in such direction, such issue should go before the Industrial Adjudication for determination.
10. Here in the present case, what we find that learned Single after considering the matter, has left the issue to be answered in proceeding initiated under Industrial Dispute Act, 1947 on reference being made by the Deputy Chief Labour Commissioner (Central), Kanpur.
11. We have also proceeded to examine the matter from the perspective and point of view of Contract Labour (Regulation and Abolition) Act 1979 and Rules framed thereunder. The CLRA Act was enacted by the Parliament to deal with the abuses of contract labour system.`It appears that the Parliament adopted twin measures to curb the abuses of employment of contract labour the first is to regulate employment of contract labour suitably and the second is to abolish it in certain circumstances. This approach is clearly discernible from the provisions of the CLRA Act which came into force on February 10, 1971. A perusal of the Statement of Objects and Reasons shows that in respect of such categories as may be notified by the appropriate Government, in the light of the prescribed criteria, the contract labour will be abolished and in respect of the other categories the service conditions of the contract labour will be regulated. Before concentrating on the relevant provisions of the CLRA Act, it may be useful to have a birds eye view of that Act. It contains seven chapters. Chapter I has two sections; the first relates to the commencement and application of the Act and the second defines the terms used therein. Chapter II which has three sections provides for the constitution of a Central Advisory Board by the Central Government and a State Advisory Board by the State Government and empowers the Boards to constitute various committees. Chapter III contains regulatory provisions for registration of establishments which employ contract labour. Section 10 which prohibits the employment of contract labour falls in this chapter; we shall revert to it presently. Chapter IV contains provisions for purposes of licensing of Contractors to make sure that those who undertake or execute any work through contract labour, adhere to the terms and conditions of licences issued in that behalf. Power is reserved for revocation, suspension and amendment of licenses by the Licensing Officer and a provision is also made for appeal against the order of the Licensing Officer. Chapter V takes care of the welfare and health of contract labour obliging the appropriate Government to make rules to ensure that the requirements of canteen, rest-rooms and other facilities like sufficient supply of wholesome drinking water at convenient places, sufficient number of latrines and urinals accessible to the contract labour in the establishment, washing facilities and the first aid facilities, are complied with by the contractor. Where the contractor fails to provide these facilities the principal employer is enjoined to provide canteen, rest-rooms etc., mentioned above, for the benefit of the contract labour. Though the contractor is made responsible for payment of wages to each worker employed by him as contract labour before the prescribed period yet for effective implementation of this requirement, care is taken to ensure presence of a nominee of the principal employer at the time of the disbursement of wages.
Here again, it is prescribed that if the contractor fails to pay the wages to the contract labour, the principal employer shall pay the full wages or unpaid wages, as the case may be, to the contract labour and a right is conferred on him to recover the same from the amount payable to the contractor; if however, no amount is payable to him then such amount is treated as a debt due by the contractor to the principal employer. Chapter VI deals with the contravention of the provisions of the Act, prescribes offences and lays down the procedure for prosecution of the offenders. Chapter VII is titled miscellaneous and it contains eight sections which need not be elaborated here.
12. It is true that under the aforementioned Act, contractor has to maintain various record, but there is nothing under Contract Labour (Regulation and Abolition) Act 1979 that authorises/empowers Deputy Chief Labour Commissioner (Central), Kanpur to decide as to who is genuine worker and specially in the backdrop when committee constituted by Food Corporation of India after undertaking extensive exercise has not accepted the said incumbents as genuine worker. Industrial Dispute is there within the scope and ambit of Section 2(k) of Industrial Dispute Act 1947 and Deputy Labour Commissioner ought to have referred the dispute to the Industrial Adjudicator instead of taking upon himself to decide the dispute. Merely because in the past, at some point of time, Deputy Labour Commissioner has examined the matter and said action has been approved by this Court, does not ipso facto means that Deputy Labour Commissioner has been authorised to decide such dispute. Once an issue is raised, questioning the very authority to decide an issue that falls within the realm of Industrial Dispute, then the said issue has to be answered on the parameters of C.L.R. Act as well as I.D. Act, and as per the same Deputy Labour Commissioner at the best can make effort to reconcile the issue but can never be substitute of Industrial Adjudicator. In view of this no premium/advantage/benefit could be derived by the appellants of the earlier proceedings so undertaken for deciding the issue as to who are genuine workers.
13. Learned Single Judge has also exhaustively considered the matter in extenso qua the scope and ambit of Contract Labour (Regulation and Abolition) Act 1979 as well as Industrial Dispute Act, 1947 and in view of judgement rendered by Apex Court in the case of Steel Authority of India Limited v. National Union Water Front Workers 2001 Law Suit (SC) 1140, as there has been remarkable shift in view that has been holding the field on the earlier occasion, and as such issues are not to be answered by the Deputy Chief Labour Commissioner (Central), Kanpur, and such issues necessarily are to be answered by Industrial Adjudicator. In view of this, there is no reason or occasion to interfere with the order of learned Single Judge.
14. With the above, present Special Appeal stands dismissed.
