P.K. Mohanty, J.
1. The petitioners have approached this Court for a writ of mandamus, directing the opp. parties 1 to 3 to absorb them as regular employees against the posts held by them at present with the Institute of Physics.
2. The short facts of the petitioner's case is that they have been working as Security Guards under the opp. parties 1 to 3 for last 3 to 9 years being so engaged by the Contractor, M/s. Winners Security Service (Orissa) Private Limited. The engagement of the petitioners, initial date of engagement in respect of each one of them and post held, have been given in the chart in paragraph-3-B of the writ petition. It is claimed that since the date of their respective initial engagements they have been discharging their duties as Security Guards sincerely and honestly and to the best satisfaction of the authorities concerned. The petitioners claim that they fall within the definition of 'contract labour' being so engaged by the Contractor (opp. party No. 4) and they are entitled to be absorbed as regular employees of the institute in terms of Section 10(2) of the Contract Labour (Regulation and Abolition) Act, 1970. According to the petitioners the job performed by them is of permanent and perennial in nature and highly essential to the primary activities/process of the institution (opp. party No. 1) and the Institute of Physics has the capacity to permanently absorb the petitioners, but in violation of the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter called 'the Act') they are not being absorbed by opp. parties 1 to 3 on regular employment.
3. The opp. parties 2 and 3 have filed a counter affidavit denying the claim of the petitioners. It is their case that as per the agreement entered into on 5.10.1998 between the opp. party-Institute of Physics and M/s. Winner Security Service (Orissa) private Ltd., represented by its Managing Director, the petitioners have been engaged by the said Security agency on a monthly provisional charge of Rs. 1,500/- per month per Security Guard which has subsequently been revised to Rs. 1,890/-. In terms of Clauses 5 and 6 of the Agreement the petitioners were on the pay roll of M/s. Winner Security Service (Orissa) Private Ltd. which is also responsible for their salary and allowances, cost of uniforms and equipment, leave, E.P.F., E.S.I, contribution and other statutory payment under the Labour Laws. In terms of Clause 9 of the Agreement the Security agency is the Disciplinary authority of the petitioners and thus, neither the Institute of Physics is the employer nor there any relationship of employer and employee between the institute and the petitioners. It is asserted that the petitioners were the employees of the Security agency, but not of the Institute of Physics.
4. The opp. party No. 4, the Managing Director of M/s. Winner Security Service (Orissa) private Ltd, has also filed a counter affidavit. It is admitted, that the Security agency used to deploy the Security Personnel to various establishments throughout the State. It recruits persons as Security Guards from time to time, depending on its requirement. On the basis of requisition from the Institute of Physics, opp. party No. 4 deployed the petitioners as Security Guards to perform watch and ward duty. They have been appointed by the Security agency and on termination of the contract with the Institute of Physics they can be withdrawn from such duty post and transferred to other establishments or posts by the opp. party No. 5 depending upon requisition/contract. The opp. party No. 4 has asserted in paragraph-4 of the counter that the petitioners have no direct relationship with the Institute of Physics. They are governed by the Contract Labour (Regulation and Abolition) Act, 1970 and are getting all the benefits and dues as per Minimum Wages Act, E.P.F. Act, E.S.I Act, payment of Bonus Act, payment of Gratuity Act etc. from the employer, the Security agency.
5. In view of the pleadings of the parties and submissions made, it appears that the petitioners claim the relief relying on the judgment of the Apex Court in Air India Statutory Corporation etc. v. United Labour Union and Ors.; AIR 1997 SC 645 and the decision of this Court in Bijaya Kumar Jena and 215 Ors. etc. v. Union of India and Ors.; (O.J.C. Nos. 3158 and 5191 of 1994, disposed of by a common judgment dated 26.8.1999) In Bijaya Kumar Jena's case this Court had directed the principal employer to absorb the contract labourers on regular basis even if there was no abolition of contract labour, placing reliance on Air India's case. The judgment of this Court was challenged in S.L.P. before the Apex Court and it is told that the impugned judgment has been stayed.
In Steel Authority of India Ltd. and Ors. etc. etc. v. National Union Water Front Workers and Ors., etc. etc. 2001 (6) Supreme 602, it has been held that neither Section 10 of the Act nor any other provision of the Contract Labour (Regulation and Abolition) Act expressly or by necessary implication provides for automatic absorption of contract labour on issuance of a notification by appropriate Government.
6. A similar question had come up before this Court in Jogendra Sabar and Ors. v. State of Orissa and Ors.; O.J.C. No. 719 of 1999, disposed of on 8.2.19.99) and this Court relying on the judgment of the Apex Court in Dena Nath and Ors. v. National Fertilisers and Ors.; AIR 1992 SC 457 repelled the contention of the petitioners-therein. The Apex Court in Dena Nath's case has specifically observed that the question of abolition of employment of contract labour in any process, operation or in any other work is a matter for decision of the Government and not the Courts. The Courts ought not to issue a mandamus under Article 226 of the Constitution of India for deeming the contract labour as having become the employees of the principal employer. It is not for the Courts, but for the Central Government to enquire and decide whether employment of contract labour in any establishment should be abolished or not and it has to decide after considering the matters in the light of the provisions contained in Section 10 of the Act. The Apex Court rejected the contention of the petitioners therein that the absolution of contract labour can be entertained by the Court. Mr. Palit, learned counsel for the petitioner strenuously arged that in the facts and circumstances of the case, the petitioners should be deemed to be holding the posts under the principal employer i.e. the Institute of Physics since the posts are perenia! in nature and there is requirement for their absorption.
7. In Kishore Chandra Nayak v. Union of India and Ors., (O.J.C. No. 2294 of 2001, disposed of on 2.2.2002) another Division of this Court, where one of us P.K. Mohanty, J was a member, this exact question come up for consideration. There the petitioner was also a Security Guard working under this very Institute of Physics, being engaged by the preset contractor M/s. Winner Security Service (Orissa) Private Limited claiming regularisation as in the present case. The Bench relying on the judgment of the Supreme Court in Dena Nath's case and Steel Authority of India's case (supra), held that the question of abolition of employment of contract labour in any process, operation or in any other work is a matter for the decision of the Government under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 and not the Courts. It is for the Central Government to enquire and decide whether employment of contract labour in any establishment should be abolished or not and no direction can be given by the Court for absorption of contract labour like the petitioner for permanent absorption.
8. In view of the conspectus of the decisions of this Court and of the Apex Court discussed earlier, the points raised stand concluded. The petitioners, who are admittedly engaged by M/s. Winners Security (Orissa) Private Ltd. as Security Guards to work with the Institute of Physics, on the basis of a contract between the parties, cannot claim regularisation of their services with the principal employer on the plea that they have rendered services for some period and that the job is of perennial nature and the employer is capable of engaging such persons. Whether there shall be abolition of contract labour in a given situation is for the Central Government to decide in terms of the Contract Labour (Regulation and Abolition) Act, 1970 whereafter question of absorption may crop in. It is not the function of the Court to delve into and decide such an issue.
In the result, we find no merit in this writ petition and as such, it is dismissed. Consequently the Misc. Cases for interim orders stand dismissed. But there shall be no order as to cost.
L. Mohapatra, J.
l agree.