@JUDGMENTTAG-ORDER
Satya Brata Sinha, C.J.@mdashThis appeal is directed against a judgment dated 25th September, 2000 passed by a learned single judge of this Court in WP No.29210 of 1998 whereby and whereunder the writ petition filed by the writ petitioners-respondents herein was allowed.
2. The writ petitioners were said to be engaged by the appellant-Nuclear Fuel Complex (for brevity MFC) -- as contract labourers. They filed the writ petition seeking a writ in the nature of mandamus directing the appellant herein to absorb them as its regular employees, to prescribe the appropriate scales of pay and other service conditions from the date of their initial appointment and to pay arrears of salary.
3. According to the writ petitioners they had been working as sweepers in the manufacturing plant and administrative building of the NFC. Admittedly, they had been working under a contractor having been appointed in the year 1992, except the petitioner No.5 who was appointed in year 1995.
4. The learned single Judge proceeded on the basis that Central Government had issued notification on 9-12-1976 prohibiting the employment of contract labour from March, 1977 for sweeping, clearing etc., in the Central Government Offices. The appellants herein inter alia contended that some of them were working in the residential complex of the NFC which is not a part of the industry and some were working in the industrial unit. So far as the residential complex is concerned, it is stated that the entire land is encompassed by fencing with gates at appropriate places for convenience of the occupants. The overall control including allotment of quarters vests in the Estate Officer.
5. Admittedly, a writ petition being WP No.13281 of 1987 was filed by the employees of the erstwhile contractor seeking regularisation of their services. This Court disposed of that writ petition on 6-6-1990 inter alia directing that the petitioners therein could file a representation before the appropriate Government.
6. Admittedly, workers engaged by the contractors were used in the premises guarded by CISF, for sweeping and cleaning of area around the residential flats, public buildings, general installations, drains etc., collection/transportation and disposal of refuses. The writ petitioners 1 to 19 were engaged by the contractor to attend to these works within the premises guarded by CISF and petitioners 20 to 37 were working as sweepers outside the premises guarded by CISF.
7. Thereafter, a seniority list of sweepers also was prepared which was subject-matter of Original Application before the Central Administrative Tribunal being OA No. 103 of 1991. The same was disposed of directing the appellant to maintain the seniority list.
8. The learned single Judge, it appears, basing on the statements made in the counter-affidavit allegedly arrived at a finding that extra work force was needed for sweeping and cleaning the entire area, apart from collecting transporting and disposal of refuses etc., but instead of creating additional posts, such jobs were given to the contractors. The learned single Judge further arrived at a finding of fact after analysis of evidence that the jobs are of perennial nature.
9. It was, however, found that out of 140 persons, who had been working as casual labourers till 1992, only 31 were regularised wherefrom the learned single Judge arrived at a finding that the appellant had come to the conclusion that appointment of no employee was necessary as the work can be extracted by entrusting the same to contractors. As regard the question as to whether having regard to the decision of
10. Having regard to the factual matrix, two principal questions that arise for our consideration in this appeal are (1) as to whether this Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India would enter into such disputed questions of fact or not, and (2) whether in the absence of any existing legal right vested in the writ petitioners, impugned order could have been passed in their favour.
11. The learned single Judge has strongly relied upon the decision of the Apex Court in
12. It was held that those contract labourers having been appointed when the abolition of contract labour was effective, became the direct employees of the principal employer upon issuance of a notification u/s 10 of the Contract Labour (Regulation and Abolition) Act.
13. It is not in dispute that the writ petitioners were working under contractors. It has not been contended nor any material has been placed that the contractors were not wholly independent of the management. In'' the writ application no question had been raised as regards the validity or otherwise of the contract. In the absence of any such pleadings, the Court will have to proceed on the footing that the contractors were not engaged only for record''s sake but they were independent of the management. In any event, once such a question falls for determination, evidently the same partakes the form of a disputed question of fact and the same could not have been gone into and decided in a writ proceeding particularly when it is not on record as to whether the contractor is a registered contractor or not.
14. The notification dated 9-12-1976, abolishing contract labour, was ''not filed. No material was placed before the Court showing that appointment of contractors was made in violation of the said notification dated 9-12-1976. Even assuming that such appointment was violative of the said notification dated 9-12-1976 issued by the Central Government in exercise of its powers u/s 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 and even applying the principles of Air India Statutory Corporation case (supra), those, who had been appointed through contractor during the years 1992-97, could not have been held to be employees of the principal employer as they were not the employees when the alleged notification dated 9-12-1976 u/s 10(1) of the Act was issued as they were appointed subsequent to the coming into force of the notification. We are, therefore, of the opinion that the concerned contractors'' employees were required to raise a fresh industrial dispute. They did not have any existing I legal right to be regularised in services i particularly when they had not been able to show that they come within the purview of the said notification or, they had any independent legal right to be regularised in service. This aspect of the matter has been considered by a Division Bench of this Court in
13. "Further more, we are of the opinion that only because a notification u/s 10 of the Act has been issued, the contract labourers who were appointed subsequent to the coming into force of the notification, cannot be directed to be absorbed, as the Supreme Court in Air India Statutory Corporation (supra) has specifically laid down the law that only those contract labourers who were working at the time of issuance of the said notification could be directed to be absorbed in the establishment of the principal employer.
14. Furthermore, in the event the petitioners contend that the appointment of the contractor is a mere facade of smoke and screen, the remedy of the applicants - writ petitioners would be to raise an industrial dispute in this regard. Neither any writ petition under Article 226 of the Constitution of India before this Court nor any application u/s 19 of the Administrative Tribunal Act before the Tribunal would be maintainable in this regard."
15. Furthermore, in the event, the writ petition is allowed in a situation of this nature, the same would amount to termination of contract, although the contractor is not a party to the writ petition and such a course of action, in the opinion of this Court, should not be taken without hearing the contractor.
16. For the reasons aforementioned and keeping in view the aforementioned binding precedent, we have no other option but to set aside the impugned judgment and allow the appeal. The impugned judgment is accordingly set aside and the appeal is allowed. There shall be no order as to costs.
