D. Biswas, J.
1. Both the writ petitions have been preferred by the Works Contract Labourers engaged on daily wage of Rs. 47.21 p by the Oil India Limited, respondent No. 2 for regularisation of their services and for payment of equal wages with their counterpart as detailed in Annexure-III of both the writ petitions vis-a-vis for quashing the Government Order communicated vide letter dated November 23, 1994 refusing to refer the matter to the Industrial Tribunal.
2. The petitioners' case is that although they are working as Works Contract Labourers under various contractors, in fact they are the direct workmen under the Oil India Limited for all intention and purposes and working as such without any interruption for the last several years discharging various functions of perennial nature. The petitioners are also members of Oil India Workers Association and the said Association espoused the cause of the petitioners for regularisation of their services. The Oil India Limited entered into an agreement with Asom Tailo Thikadari Shramik Santha and regularised the services of workers who are members of the said Association to the exclusion of the petitioners and other workers similarly situated. According to the petitioners, this is a case of discrimination between the similarly situated workers. The attempt by the Regional Labour Commissioner, Guwahati to resolve the dispute having failed, the Regional Labour Commissioner referred the matter to the Government of India as per provisions of the Industrial Disputes Act, 1947. The Union of India eventually refused to refer the dispute to the Industrial Tribunal for adjudication. The negative approach by the Oil India Limited and the Union of India being violative of the provisions of Article 16 of the Constitution, the petitioners have filed these two (2) writ petitions to vindicate their cause.
3. The Oil India Limited, however, in their affidavit-in- opposition submitted that the writ petitioners are works contract labourers within the meaning of the Contract Labour (Regulation and Abolition) Act, 1970 and, as such, no relief can be given to them by this Court under Article 226 of the Constitution as industrial dispute cannot be raised for regularisation of services of Works Contract Labourers. The appropriate Government may, however, deal with the situation as per provisions of Section 10 of the Act of 1970. The respondent Oil India Limited also denied that the writ petitioners are working for about 5 to 15 years under them discharging works perennial in nature. The list of workers (Annexure-1) and their status as workmen under the Oil India Limited has also been denied vis-a-vis their claim of membership with Oil India Workers Association. It is submitted that in order to maintain peace, the Company agreed to constitute a committee comprising representatives of the management, the Unions representing the Works Contract Labourers and the respondent No. 4, to identify the Works Contract Labourers (excluding workcharge labourers) who fulfil the conditions mentioned in Sub-section (2) of Section 10 of the Act of 1970. On proper consideration of the recommendations made by the Committee, tripartite settlement was signed on February 14, 1991 and the recommendations of the Committee for regularisation of 456 workers were accepted. The Oil India Workers Association refused to become signatory to the said agreement although they had taken part in the exercise undertaken by the Committee. It is contended that some of the petitioners who did not fulfil all the criteria were left out. The agreement referred to above provided for regularisation of 456 Works Contract Labourers in a phased manner and the petitioner not being Workmen are not entitled to regularisation. Therefore, no writ could be issued under Article 226 directing their regularisation in the services of the Oil India Limited.
4. The factual details reproduced above show that the writ petitioners are Works Contract labourers working under the contractors and they are not the direct employees of the Oil India Limited. Shri Sarma, Learned Counsel for the respondents, referring to the above position argued that there being no relationship of employer and employee between the Oil India Limited and the writ petitioners and the cause of the Works Contract Labourers not having being espoused by the direct employers, the provisions of the Industrial Disputes Act cannot be invoked. On this proposition, Shri Sarma further argued that the refusal by the Central Government to refer the dispute to the Industrial Tribunal cannot be legally questioned. Placing reliance on a decision of this High Court in Indian Oil Corporation Limited v. Presiding Officer, (1999-II- LLJ-904) (Gau-DB) Shri Sarma argued that the alleged dispute has to be resolved as per provisions of the Contract Labour (Regulation and Abolition) Act, 1970 provided that the Central Government is satisfied that the writ petitioners fulfill the conditions embodied in Sub-section (2) of Section 10 of the above Act.
5. Shri S.S. Dey, Learned Counsel for the writ petitioners, however, did not dispute the legal position as advanced by Shri Sarma. But he argued at length to show that the writ petitioners are the direct employees of the Oil India Limited. On careful consideration of the submission advanced on behalf of the parties and the documents on record, I am of the opinion that it would be difficult to conclude on the basis of the materials available that a relationship of employer and employee exists between the Oil India Limited and the writ petitioners. The refusal by the Central Government vide letter dated November 23, 1994 is also barred on similar consideration. The letter reads as follows:
'No. 29012/(20/93 IR (Misc)/(Coal-I) Government of India/Bharat Sarkar Ministry of Labour/Shrama Mantralaya
New Delhi dated November 23, 1994
To
1. The Group General Manager, Oil India Ltd., Duliajan, P.O. Duliajan, District-Dibrugarh.
2. The President, Oil India Workers' Association, Oil India Ltd., Duliajan, P.O. Duliajan, District - Dibrugarh.
3. Shri Khira Phukan, Oil India Ltd. MES Depot, Duliajan.
Subject: ID between the management of Oil India Ltd., Duliajan and Oil India Workers' Association, Duliajan over regularisation of WCLs at Duliajan.
Sir,
I am directed to refer to the Failure of Conciliation Report No. 8(13)/94. Con. dated June 24, 1993 received from the Regional Labour Commissioner (C), Guwahati on the subject noted above and to say that the Central Government, having considered the said report in terms of Section 12(5) of the Industrial Disputes Act, 1947, is of the opinion that the dispute is not fit for reference to the Industrial Tribunal for adjudication on the following grounds:
'It has been reported that the workmen were engaged as contract labourers under provisions of the Contract Labour (R & A) Act, 1970. Such Contract Labourers are not entitled to regularisation by the Principal Employer.'
Yours faithfully,
(Braj Mohan)
Desk Officer
Tel. No. 3718119
Copy forwarded to:
1. Regional Labour Commissioner (C), Guwahati.
2. Guard folder.'
6. It would appear from the contents of the letter above that the Central Government turned down the proposal for reference of the matter to the Industrial Tribunal as the workmen were engaged as contract labourers under the provisions of the Act of 1970 which obviously denotes that they are not the direct employees of the principal employer. In view of the categorical denial of the alleged relationship of employer and employees and, especially, when there is no documentary evidence to show that they are being paid by the Oil India, any attempt to adjudge their status would be nothing short of a futile exercise. This Court is, therefore, unable to uphold the claim of the writ petitioners in order to refer the matter to the Industrial Tribunal. The uncertainty can be dispelled and the ordeal surpassed only by resorting to the provisions of the Apt of 1970, provided they fulfil the conditions mentioned in Sub-section (2) of Section 10.
7. While dealing with a similar matter, this Court in Indian Oil Corporation Ltd v. Presiding Officer, (supra) took into consideration the decision rendered in Indira Gandhi v. Raj Narayan, AIR 1975 SC 2299, Shankar Mukerjee v. Union of India, (1990-II-LLJ-443)(SC) Gujarat State Electricity Board v. Hind Mazdoor Sabha (1995-II-LLJ-790) (SC); Air India Statutory Corporation etc, v. United Labour Union, (1997-I-LLJ-1113) (SC) and held as follows:
'11. The Apex Court clearly lays down that on abolition of the contract labour as per provisions of Section 10 of the Act, the intermediary i.e. the contractors cease to exist and the the workmen of the contractor become direct employees of the principal employer, the concomitant result being the absorption of the erstwhile workmen as regular employees under the principal employer. The Act though does not provide any express provision for such consequence on abolition of contract labour, the Apex Court, interpreting the Act, made bare the 'intent' of the legislature. Therefore, recourse to the scheme as suggested in Gujarat Electricity Board (supra) cannot be the correct answer in a case where the appropriate Government intends absorption of the workmen of the contract labourers in the establishment of principal employer. This view is manifest in para 69 of the judgment reported in AIR 1997 SC 645 (supra).
12. Keeping in mind the law as laid down by the Apex Court and having regard to the purpose of reference made in the instant case, it can be unhesitatingly said that this reference will frustrate the purpose sought to be achieved instead of ameliorating the plight of the workmen. In a case where the appropriate Government is of the opinion that the system of 'contract labour' prevailing in any establishment is to be abolished for permanent absorption of the workmen, the only course available for immediate relief is to issue a notification under Section 10 of the Act. Therefore, the judgment under appeal based on the ratio of Gujarat Electricity Board (supra) cannot be sustained as the impugned reference is contrary to law.'
8. The provision of law as discussed above is the only answer to the problem at hand, The Supreme Court has also provided safeguard to the workmen in the event of violation of this law in the following words:
'Para 59: The founding fathers placed on limitation of letters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel in the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by catena of decisions of this Court starting from Indira Gandhi v. Raj Narayan (supra) and Bommai case (AIR 1994 SC 1918). It would, therefore, be necessary that instead of leaving the workmen in the lurch the Court would properly mould the relief and grant the same in accordance with law.' 1997 AIR SC 645 (supra)
9. It would appear from above that in all cases, regularisation/absorption of the workmen engaged on contractual labourers has to be dealt with within the provisions of the Act. On abolition of contract labour under Section 10 of the Act, the intermediary vanishes and a direct relationship between the principal employer and the works contract labourers is established. The principal employer then is legally bound to regularise the services of the contract labourers in the establishment. The power of judicial review, in case of breach thereof, will always be available to the workmen to vindicate their cause.
10. In the cases at hand, considering the factual background as above, it would suffice to hold that the writ petitioners may take up the matter with the appropriate Government for consideration for abolition of contract labour by issuing necessary notification under Section 10 of the Act, The ratio laid down in AIR 1974 SC 960, (1999-1II-LLJ- (Suppl.)- 101) (SC) and (1997-III-LLJ (Suppl)- 1202) (SC) relied upon by the learned counsel for the petitioners do not alter the position.
11. In the result, both the writ petitions are disposed of with the direction that the petitioners may like to take up the matter with
the appropriate Government for abolition of
contract labour as per provisions of Section 10of the Act. On receipt of such
request/representation, the appropriate
Government shall dispose of the same in
accordance with the provisions of law
expeditiously, preferably within a period of 6
(six) months.
No order as to costs.