Tipnis, J.
1. Mumbai Shramik Sangh, a registered trade union has filed this petition on behalf of about 27 persons allegedly employed for cleaning, sweeping, dusting and washing multi-storey ed buildings in the staff colony at Mahul, Mumbai, owned and possessed by Bharat Petroleum Corporation Ltd., respondent No. 1 to this petition. It is alleged that the said colony of respondent No. 1 consists of a large number of multi-storeyed buildings which are owned and occupied by respondent No. 1 and about 27 workers who are listed in exh. 'A' to the petition are employed for the purpose of sweeping, cleaning, dusting and washing of floors of these buildings. It is asserted that the work which these employees are performing is of permanent/perennial nature. These 27 workmen are doing the said work continuously for a period ranging from minimum of one-and-a-half years to maximum of about 12 years. It is alleged that during the entire period of their employment as aforesaid, they worked under different contractors for different periods. One of such contractors who was engaged by respondent No. 1 at the relevant time, is respondent No. 2 Kleenwel (India). It is asserted that even though respondent No. 1 changed contractors, the employees doing the aforesaid work in the housing colony continued to be the same. The services of some of the employees were terminated illegally and fresh employees were employed. However, the total number of workmen remain almost unchanged. It is alleged that respondent No. 1 engaged contractor like respondent No. 2 as other contractors to avoid paying workmen wages, benefits and privileges of permanent and regular employees of respondent No. 1. It is asserted that, in law and in fact, it is respondent No. 1 who is the employer of these 27 workmen. It is further asserted in the petition that respondent No. 1 has permanent employees for doing similar/identical or equal work in their establishment. Such employees, at the relevant time, were being paid a minimum salary of Rs. 2,200/ per month whereas these 27 workmen are paid much less and across the Bar, we are told that they were being paid at the rate of Rs. 600/ per month. It is asserted that these workmen doing the same work are entitled to be paid equal salary as per the rules under the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter referred to as the 'Contract Labour Act')- It is then contended that by notification dated December 9, 1976 issued by the Government of India, the employment of contract labour for sweeping, cleaning, dusting and washing of buildings owned and occupied by the establishments in respect of which the appropriate Government is the Central Government has been prohibited. It is asserted that the policy of the Government of India i.e. the public policy has been laid down by the aforesaid notification. It is asserted that in the face of this notification, it is impermissible for respondent No. 1 -Corporation to engage contract labour for the aforesaid purpose of sweeping, cleaning, dusting and washing of the buildings owned or occupied by the establishment. It is alleged that the permanent employees of respondent No. 1 who are doing the same, similar or identical work get weekly off, annual leave, casual leave, sick leave, uniform, canteen facilities, etc., whereas these 27 workmen do not get weekly-off, any form of leave, uniform, canteen facilities or any other benefits or facilities enjoyed by regular/permanent employees of respondent No. 1. The petitioner had initially filed a complaint of unfair labour practice, being Complaint (ULP) No. 539 of 1990 before the Industrial Court at Bombay. However, it is an agreed position that in view of the fact that the Central Government is the appropriate authority, the provisions of the MRTU & PULP Act will not be attracted and, therefore, in our opinion, this factor that the complaint was dismissed cannot come in the way of the petitioner. It is, ultimately prayed that respondent No. 1 be directed to absorb all the 27 employees mentioned in exh. 'A' to the petition as direct, regular and permanent employees and treat them on par with regular employees of respondent No. 1 and give them the wages, benefits and facilities of the regular employees of respondent No. 1 with retrospective effect of their respective dates of joining.
2. Affidavit-in-reply has been filed on behalf of respondent No. 1-Corporation. After taking preliminary objection to the maintainability of the petition, in view of the dismissal of the complaint for want of prosecution by the petitioners before the Industrial Court, it is stated that although the assertion in para 3, viz., that about 27 employees are employed for cleaning, sweeping, dusting and washing of multistoreyed buildings in the staff colony at Mahul, Mumbai, are substantially true, respondent No. 1 is not aware of the names of the employees employed by respondent No. 2-contractor, pursuant to the house-keeping contract entered into between respondent No. 1 and respondent No. 2. It is further asserted that respondent No. 1 has a residential colony at Aziz Baug, Chembur, for providing residential accommodation to its employees. It is accepted that respondent No. 1 has awarded composite house-keeping contract to respondent No. 2 for the general upkeep of the colony. It is denied that the work of the employees engaged by respondent No. 2 is of a permanent or perennial nature. It is stated that respondent No. 1 used to engage different contractors for house-keeping at their staff colony from time to time and each contractor used to engage his own employees on such conditions as deemed fit by him. It is further stated that it is quite possible that some of the contractors might have employed some employees of the previous contractors. It is emphatically denied that the 27 workmen referred to in Exh. 'A' are employees of respondent No. 1. It is asserted that there is no relationship of employer or employee or master and servant between respondent No. 1 and the workmen mentioned in Exh. 'A'. It is asserted that it was perfectly legitimate for respondent No. 1 to enter into a contract with respondent No. 2 for house-keeping in respect of buildings at the housing colony. With reference to the allegation regarding settlement dated June 20, 1990, it is asserted that the employees of the contractor as referred to in the said settlement employed at the office premises of the Marketing Department were absorbed by respondent No. 1 as its employees. It is denied that abolition of contract labour under Section 10 of the Contract Labour Act is extended to staff colony as the colony is not a commercial premises but a welfare amenity for employees of the Corporation. It is contended that the staff colony of respondent No. 1 can never constitute an establishment within the meaning of the notification issued by the Central Government dated December 9, 1976 or that the notification has any application to the staff colony. Therefore, it is contended by respondent No. 1 that the petitioner is not entitled for any relief and the petition has to be dismissed.
3. We have heard Mr. Gonsalves for the petitioner, D.Y. Chandrachud for respondent No. 1 -Corporation, and Mr. Master for respondent No. 3-Union of India. Broadly, Mr. Gonsalves made two submissions. He first contended that the notification dated December 9, 1976 issued by the Government of India prohibiting employment of contract labour for sweeping, cleaning, dusting and washing of buildings owned or occupied by establishments in respect of which the appropriate Government under the Contract Labour Act is the Central Government clearly covers the employment of the aforesaid 27 workmen in the housing colony owned and occupied by respondent No. 1. In the alternative Mr. Gonsalves contended that assuming without admitting that the aforesaid notification does not cover the employment of the 27 workmen employed for sweeping, dusting, cleaning etc. of the buildings of the housing colony and even de hors the provisions of the Contract Labour Act, respondent No. 1, which is a public Corporation, is indulging into blatant discrimination in employing contract labour in its housing colony whereas for similar work in their office buildings or elsewhere in the establishment, they are employing regular permanent workmen. This act of respondent No. 1 is in breach of the provisions of Articles 14 and 19 of the Constitution of India. It is further submitted that the Union of India can give directions to respondent No. 1-Corporation which are binding on respondent No. 1 and when the Union of India has prohibited employment of contract labour for sweeping, cleaning, dusting, etc., in the buildings owned and occupied by public Corporations, it is impermissible in law for respondent No. 2 to engage contract labour for the aforesaid purpose in the buildings of the housing colony of respondent No. 1.
4. Dr. Chandrachud, learned counsel appearing for respondent No. 1-Corporation, on the other hand, contended that the notification relied upon cannot, by any stretch of imagination, include housing colony owned by respondent No. 1-Corporation. Referring to several provisions of the Contract Labour Act and several decisions of the Apex Court, Dr. Chandrachud contended that the abolition of contract labour has to be in the establishment and on proper interpretation of the provisions of Section 10 in general and of the phrase 'in any process, operation or other work in establishment' as also the definition of the word 'establishment', one has to see, in the words of Dr. Chandrachud, 'the core activity' of the establishment and such other process which is incidental to or necessary for such core activity. Dr. Chandrachud submitted that the buildings or the housing colony and the activities there can never constitute a part of the establishment of the Bharat Petroleum Corporation Ltd., as the core activity of respondent No. 1 is refinery and, of course, all necessary and incidental process such as accounting, office etc. Dr. Chandrachud emphasized the fact that there is no legal obligation on respondent No. 1 to have a housing colony or to compulsorily provide staff quarters to any of its employees. To maintain a housing colony, Dr. Chandrachud contended, is a benevolent and welfare activity of respondent No. 1 for the benefit of the employees of the Corporation. Such benevolent and welfare activity, though undertaken by the establishment, cannot be considered to be a part of the establishment for the purposes of the definition of 'establishment' and provision of Section 10 of the Contract Labour Act.
5. So far as the second submission of Mr. Gonsalves is concerned, Dr. Chandrachud contended that there is no material to show that the work done by the employees mentioned in Exh. 'A' in the housing colony is identical, similar or equal to the work done by the employees engaged in the office buildings of respondent No. 1-Corporation for sweeping, dusting, etc. and, as such, it cannot be stated that any discrimination is practiced by respondent No. 1-Corporation. In fact, Dr. Chandrachud has produced a document showing the ratio of building area to premises as well as ratio of manpower required for building housekeeping vis-a-vis total manpower restricted to housing colony and sports club which, according to the learned counsel, depicts that in respect of the buildings, the actual man-hours required ranges between 1 hour to 4 hours per day. The statistics which is supplied regarding the hours of work done by the contract labourers as submitted by respondent No. 1-Corporation is seriously disputed by Mr. Gonsalves. Dr. Chandrachud also submitted that it is not as if contract labour is totally impermissible. Under the provisions of the Contract Labour Act, the Central Government is given power to abolish contract labour altogether from the establishment under Section 10 thereof whereas when the contract labour is not abolished, it is sought to be regulated by the Contract Labour Act. Dr. Chandrachud, therefore, submitted that if the grievance of the petitioner is regarding the wages and other service conditions with the contractor, the petitioner has ample remedy to redress the said grievances under the very provisions of the Contract Labour Act. Dr. Chandrachud even submitted that if this Court finds that there are any such unjust and patently unfair terms, then the Court can suggest just and fair terms to which respondent No. 1 cannot have any legitimate objection.
6. Before dealing with the submissions, we find this to be an appropriate stage to make a reference to several authorities cited by the respective counsel in support of their rival contentions. Mr. Gonsalves cited the decision of the Apex Court in Gammon India Ltd. v. Union of India, reported in : (1974)ILLJ489SC . After referring to the definitions of various words 'establishments', 'principal employer', and 'workman' as given in the Contract Labour Act and after referring to the particular facts of the case before it, in para 12, the Apex Court has observed that when the banking company employs the petitioners i.e. Gammon India Ltd., to construct a building, the petitioners are in relation to the establishment contractors who undertake to produce a given result for the bank. The petitioners are also persons who undertake to produce the result through contract labour. It is further observed that to accede to the petitioners' contention that the construction work which is away from the place where the industry, trade or business of the establishment is carried on is not the work of the establishment is to render the words 'work of any establishment' devoid of ordinary meaning. The construction of the building is the work of the establishment. The building is the property of the establishment. Therefore, the construction work is the work of the establishment. That is why a workman is deemed to be employed as contract labour in connection with the work of an establishment. The place where business or trade or industry or manufacture or occupation is carried on is not synonymous with 'the work of the establishment' when a contractor employs contract labour in connection with the work of the establishment. In para 14, it is observed that the Act was passed to prevent the exploitation of contract labour and also to introduce better conditions of work. The Act provides for regulation and abolition of contract labour. The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated conditions of work and contemplates progressive abolition to the extent contemplated by Section 10 of the Act. The dominant idea of Section 10 of the Act is to find out whether contract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the establishment. In para 17, it is observed that a contractor under the Act in relation to an establishment is a person who undertakes to produce a given result for the establishment through contract labour. A contractor is a person who supplies contract labour for any work of the establishment. The entire context shows that the work of the establishment is the work site. The work site is an establishment and belongs to the principal employer who has a right of supervision and control, who is the owner of the premises and the end product and from where the contract labour receives its payment either directly or through a contractor.
7. Mr. Gonsalves then referred to a decision which is specifically against the first contention of Mr. Gonsalves and that is the decision of the learned single Judge of the Kerala High Court in Powar v. Labour Enforcement Officer (C) reported in : (1993)ILLJ521Ker . Criminal prosecution was launched against the Reserve Bank of India, Trivandrum Branch, for offence punishable under Section 23 of the Contract Labour Act. The offence was for engaging three contract labourers for sweeping, cleaning and watching of the residential quarters of the officers of the Reserve Bank of India which was prohibited under Notification No. S. 779(E) dated December 9, 1976 issued by the Government of India, pursuant to Section 10(1) of the Contract Labour Act. It was contended on behalf of the Reserve Bank of India that the employment was in respect of residential quarters of the officers of the Reserve Bank of India and not in the establishment of the Reserve Bank of India. The question before the learned Judge of the Kerala High Court was as to whether the employment of contract labour in residential quarters of the Reserve Bank of India establishment would come within the mischief of Section 10 of the Act. Referring to Section 10 and specially the words 'other work in any establishment' and to the decision of the Supreme Court in the case of Gammon India Ltd. (supra), the learned Judge held that the contention of the respondent that the notification issued by the Central Government would make the position abundantly clear that employment of contract labour is prohibited in buildings owned or occupied by establishment and so it would equally apply to the residential buildings of the officers of the Reserve Bank of India is not tenable. The learned Judge held that the notification cannot go beyond the scope of Section 10(1). As Section 10(1) specifically prohibits employment of contract labour in any process, operation or other work in any establishment and as it cannot include any work connected with the establishment, the prohibition envisaged under Section 10(1) is not attracted to employment of contract labour in the residential quarters of the bank. Referring to the definition of the word 'establishment', the learned Judge observed that it cannot be held that residential quarters of the bank would come within its fold. Referring to the notification, the learned Judge held that inasmuch as the definition of the word 'establishment' specifically mentions only office or department of the Government or a local authority or any place where any industry, trade, business, manufacture or occupation is carried on, the notification cannot make any improvement or addition to the definition to include residential quarters. Notification cannot go beyond what Section 10(1) of the Act has envisaged. It is on this reasoning that the learned Judge held that the notification does not cover residential quarters and, hence, quashed the prosecution. Mr. Gonsalves submitted that though this case is directly against his first contention, there is hardly any reasoning in the entire judgment. In para 8, there is a direct conclusion to the effect that from the definition of 'establishment', it cannot be held that the residential quarters of the bank would come within its fold. Why such residential quarters cannot come within the definition of the word 'establishment' is nowhere discussed nor any reasons given in support of this conclusion. Mr. Gonsalves, therefore, submitted that this judgment is without any reasoning and, in any case, does not lay down the correct legal position.
8. Mr. Gonsalves then referred to the decision of the Apex Court in Bangalore Water Supply and Sewerage Board v. Rajappa, reported in : (1978)ILLJ349SC . In para 131 of the judgment, the Supreme Court has observed as under :-
'Industry, as defined in Section 2(j) and explained in Banerji : [1953]4SCR302 has a wide import.
(a) Where (i) systematic activity, (ii) organised by co-operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i.e. making, on a large scale prasad or food) prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking'.
Mr. Gonsalves submitted that once the triple test as mentioned in the aforesaid observations are satisfied, it must be held to be an industry even for the purposes of the word 'industry' as used in the definition clause of 'establishment' in the Contract Labour Act. Mr. Gonsalves submitted that so far as the employees doing the work of sweeping, dusting and cleaning in the buildings of the housing colony owned by respondent No. 1 are concerned, it satisfied the triple test and as such, housing colonies and the activity undertaken there must be held to be industry in the establishment within the meaning of the definition of 'establishment' as also the provisions of Section 10 of the Contract Labour Act.
9. Mr. Gonsalves then referred to the decision of a learned single Judge of this Court in Narayan Vaghul and Ors. v. R.K. Mhatre, Inspector, Security Guards Board and Ors., reported in : (1995)IILLJ238Bom . The matter arose out of prosecution for contravention of the provisions of Clause 14 of the Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981 read with Section 3(3) of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The complaint stated that Industrial Credit and Investment Corporation of India Ltd. was involved in commercial activities and it employed private security guards from the contractor and, as such, were amenable to the provisions of the Scheme and the Act and ought to have got themselves registered with the Board, as they have failed to register themselves, they have committed an offence. The contention on behalf of the Industrial Credit and Investment Corporation of India was that several quarters at Andheri (East) and (West). Borivili, Dadar and Prabhadevi where the security guards have been appointed are not 'commercial establishment' under Section 2(4) of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. Referring to the definition of 'establishment' under Section 2(4) of the aforesaid Act as also Section 2 of the Bombay Shops and Establishments Act, 1948 and referring to other definitions of the words 'employer', 'security guard', 'wages', and other relevant provisions of the Maharashtra Security Guards (Regulation of Employment and Welfare) Act, 1981, the learned Judge in para 6 observed that reading of the aforesaid provisions indicated that the security guards employed by the factory or establishment are covered under the Act and the Scheme. The learned Judge observed that what is relevant under the Act is identity of the employer which has been defined in Section 2(8) of the Bombay Shops and Establishments Act, 1948 and also Section 2(4) of the said Act. The intention of the Legislature is to safeguard the interest and the service conditions of the security guards employed by the factories and establishments and it is explicit that security guards employed by the factories and establishments are covered under the provisions of the Act and the Scheme irrespective of the place where they have been allotted work, The mere fact that a security guard has been put by the factory or the establishment at the residence of an officer or at the staff quarters is not at all relevant for the purposes of the Act. It is not the place of posting which is a relevant consideration under the Act and the Scheme. What is material is as to whether the appointment has been made by the factory or establishment. It is further observed that the security guards have been employed by the petitioners for providing safety to their employees and the services are incidental to the business activity carried out by the petitioners and the petitioners being a commercial establishment are covered under the provisions of the Act.
10. Mr. Gonsalves then referred to the decision of a Division Bench of this Court in National Organic Chemical Industries Ltd, v. State of Maharashtra and Ors., reported in 1986 2 C.L.R 612. Reliance is placed on the observations of the Division Bench in para 11 which are as under :-
'The contract work is being supervised by the Factory Supervisors. The operations like general cleaning, removing garbage, grass cutting, road cleaning and canteen are also of permanent nature, and of sufficient duration and the contract labour in these operations are doing this work since last so many years. It was also observed therein that there would be sufficient work for canteen and cleaning employees if permanent labourers are employed. The work of canteen and cleaning can be provided on full time basis, and the financial condition of the principal employer appears to be sound. Therefore, so far as item No. 1 is concerned i.e. general cleaning, removal of garbage, grass cutting and road cleaning, which includes cleaning etc. of housing colonies also, there was enough material before the Advisory Board as well as the Government to come to the conclusion for prohibiting the employment of contract labour in that behalf'.
11. Mr. Gonsalves next relied upon the decision of the Apex Court in Catering Cleaners of Southern Railway v. Union of India and Anr. reported in : (1987)ILLJ345SC , wherein the learned Judges of the Apex Court have observed as under :-
'The practice of employing labour through contractors for doing work inside the premises of the primary employer, known to researchers of the International Labour Organisation and other such organisations as 'Labour only contracting' or Inside contracting' system, has been termed as an archaic system and a relic of the early phase of capitalist production, which is now showing signs of revival in the more recent period. Of late there has been a noticeable tendency on the part of big companies including public sector companies to get the work done through contractors rather than through their own departments. As pointed out by a group of researchers in the Economic and Political weekly. Review of Management, dated November 29, 1986, it is a matter of surprise that employment of contract labour is steadily on the increase in many organised sectors including the public sector, which one expects to function as a model employer. More than a quarter of a century ago in the Standard Vacuum Refining Company of India Ltd. v. Its Workmen, this Court had occasion to refer to some of the pernicious features of the contract labour system. It is an important decision, unfortunately not very much noticed in later cases. The importance of the case lies in the fact that it was held to be competent for an Industrial Tribunal functioning under the Industrial Disputes Act to abolish the contract labour system in an industrial undertaking which happened to be a private enterprise in that case.'
The Court referred to the observations of the Apex Court in the aforesaid case of Standard Vacuum Refining Company of India Ltd., that it was relevant to bear in mind that industrial adjudication generally did not encourage the employment of contract labour in modern times. Quoting from the report of the Royal Commission on Labour, it was said that whatever merit there was in the system in primitive times, it was now desirable for the management to discharge completely the complex responsibility laid upon it.
12. Mr. Gonsal ves also referred to the decision of the Division Bench of this Court, in Lalbavta Hotel & Bakery Mazdoor Union and Ors. v. Bharat Petroleum Corporation Ltd. and Ors. reported in : (1993)IILLJ1179Bom wherein the Court, in the facts and circumstances of the case, issued a writ of mandamus to Bharat Petroleum Corporation Ltd. to abolish the system of contract labour existing in the canteen of the refinery of Bharat Petroleum Corporation Ltd. and gave certain consequential and ancillary directions. Dr. Chandrachud pointed out that the matter was taken before the Apex Court in Appeal, being Civil Appeal No. 1445 of 1993, and the appeal was dismissed mainly because the particular facts and circumstances of the case were squarely covered by the recent decision of the Apex Court in Parimal Chandra Raha and Ors. v. Life Insurance Corporation of India and Ors. : (1995)IILLJ339SC in which it was held :-
'Where, as under the provisions of the Factories Act, it is statutorily obligatory on the employer to provide and maintain canteen for the use of his employees, the canteen becomes a part of the establishment and, therefore, the workers employed in such canteen are the employees of the management'
As it was not disputed in the aforesaid case that the Corporation was under a statutory obligation, in view of Section 46 of the Factories Act, to provide and maintain a canteen for the benefit of workers, the Apex Court held that the decision in the aforesaid case of Parimal Chandra Raha is squarely applicable.
13. Mr. Gonsalves also relied upon the observations of the Supreme Court in para 75 of the judgment in Gujarat Electricity Board, Vkai v. Hind Mazdoor Sabha and Ors. reported in : (1995)IILLJ790SC , which are as under :-
'While parting with these matters, we cannot help expressing our dismay over the fact that even the undertakings in the public sector have been indulging in unfair labour practice by engaging contract labour when workmen can be employed directly even according to the tests laid down by Section 10(2) of the Act. The only ostensible purpose in engaging the contract labour instead of the direct employees is the monetary advantage by reducing the expenditure. Apart from the fact that it is an unfair labour practice, it is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. The economic growth is not to be measured only in terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be the focal point of development. The attitude adopted by the undertakings is inconsistent with the need to reduce unemployment and the Government policy declared from time to time, to give jobs to the unemployed. This is apart from the mandate of the directive principles contained in Articles 38, 39, 41, 42, 43 and 47 of our Constitution. We, therefore, recommend that :-
(a) all undertakings which are employing the contract labour system in any process, operation or work which satisfied the factors mentioned in Clauses (a) to (d) of Section 10(2) of the Act, should on their own, discontinue the contract labour and absorb as many of the labour as is feasible as their direct employees;
(b) both the Central and the State Governments should appoint a committee to investigate the establishments in which the contract labour is engaged and where on the basis of the criteria laid down in Clauses (a) to (d) of Section 10(2) of the Act, the contract labour system can be abolished and direct employment can be given to the contract labour. The appropriate Government on its own should take initiative to abolish the labour contracts in the establishments concerned by following the procedure laid down under the Act.
(c) the Central Government should amend the Act by incorporating a suitable provision to refer to the industrial adjudicator the question of the direct employment of the workers of the ex-contractor in the principal establishment, when the appropriate Government abolishes the contract labour'.
14. Mr. Gonsalves also referred to the judgment of the learned single Judge of this Court in United Labour Union and Ors. v. Union of India and Ors., reported in : (1991)ILLJ89Bom , judgment of the appellate Bench, of this Court in the very matter reported in 1993 LIC 1277 and the decision of the Apex Court in further appeal, being Civil Appeal No. 15535 of 1996 rendered on December 6, 1996.
15. Dr. Chandrachud, learned counsel appearing for respondent No. 1 in support of his submissions also relied upon several judgments of the Apex Court. In support of his submission that the word 'Industry' as defined under the provisions of the Industrial Disputes Act, 1947 and as used in the definition of 'establishment' under the provisions of the Contract Labour Act has different connotation, meaning thereby that the word 'industry' as used in the definition of 'establishment' under the Contract Labour Act will have to be given a restricted meaning, cited several judgments. Dr. Chandrachud relied upon the decision of the Apex Court in Vegoils Private Limited v. The Workmen, reported in : (1971)IILLJ567SC . Vegoils Private Limited carried on the business of manufacturing edible oils, soaps and certain by-products. It employed about 700 permanent workmen. However, for loading and unloading seed and oil cake bags and for feeding the hoppers in the solvent extraction plant, the appellant employed labour through a contractor. The workmen in an industrial dispute claimed inter alia that the work of loading and unloading seed bags as well as that of feeding the hoppers was of a perennial nature and therefore in respect of these, contract labour should be abolished. The Industrial Tribunal, on considering the evidence before it held that the work of feeding the hoppers could not be said to be intermittent and sporadic as claimed by the appellant; it was on the other hand closely connected with the principal activity of the appellant. The Tribunal held that the appellant also should carry out this work through permanent workmen. In the matter of loading and unloading of seed and cake bags the Tribunal held that these activities were also closely connected with the main industry and the work was of a permanent character. The Tribunal held that in this respect also the appellant must employ only permanent workmen. The Apex Court in the aforesaid judgment observed at page 572 as under :-
'We are not inclined to accept the contention of Mr. Pai that the direction given by the Industrial Tribunal abolishing the contract labour regarding the work of feeding the hoppers and other allied activities incidental and connected therewith is in any manner erroneous. The direction given in this regard, in our opinion, is fully justified. Even according to the evidence of the appellant's witnesses, referred to above, it is clear that the feeding of hoppers in the solvent extraction plant is an activity closely and intimately connected with the main activity of the appellant namely, crushing oil cakes and oil seeds for extraction of oil and other chemical production. Excepting a few days, as already referred to above this work has to go on continuously almost throughout the year. From this it follows that this item of work is incidental to the nature of the industry carried on by the appellant, which must be done almost every day and there should be no difficulty in having regular workman in the employment of the appellant to do this type of work. It is not as if that the work is of an intermittent or temporary nature or so little that it would not be possible for the appellant to employ full time workmen for this purpose. Further, it cannot also be said that by employing contract labour for this purpose, the appellant could be enabled to keep down the costs on the ground that there would not be sufficient work for ail the workmen if permanent labour was employed'.
Dr. Chandrachud especially relied upon the observation that the feeding of hoppers in the solvent extraction plant is an activity closely and intimately connected with the main activity of the appellant and that the item of work is incidental to the nature of the industry carried on by the appellant. Dr. Chandrachud also relied upon the observations at page 574 to the effect that if the work for which contract labour is employed is incidental to and closely connected with the main activity of the industry and is of a perennial and permanent nature, the abolition of contract labour would be justified.
Dr. Chandrachud next relied upon the decision of the Apex Court in The Standard Vacuum Refining Co. of India Ltd. v. Its Workmen and Ors., reported in 1960 II LLJ 233. The dispute therein was raised by the workmen of the Standard Vacuum Refining Co. with respect to contract labour employed by it for cleaning and maintenance work at the refinery including premises and plant belonging to it. On page 240, Apex Court observed that the aforesaid work is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day.
16. Dr. Chandrachud next relied upon the judgment of the Apex Court in Sankar Mukherjee v. Union of India, reported in : (1990)IILLJ443SC . In the aforesaid case in exercise of powers under Section 10 of the Contract Labour Act, the Government of West Bengal issued a notification dated February 9, 1980 prohibiting the employment of contract labour in 16 departments covering 65 jobs in the establishments of Indian Iron and Steel Co. Ltd. The list of the departments and the jobs was given in the Schedule attached to the notification and para 9 therein relating to the Brick Department which was as under :-
'Cleaning and stacking and other allied jobs except loading and unloading of bricks from wagons and trucks'.
The exclusion of loading and unloading of bricks from wagons and trucks in the aforesaid notification was challenged on the ground of discrimination which challenge was upheld by the Apex Court. While upholding the said challenge, the Apex Court observed that it is not denied that the bricks handled by the Bricks Department are used in furnaces of the company as refractory. Therefore, the work done by the Bricks Department including loading and unloading of bricks is incidental to the industry carried on by the company. The Supreme Court also referred to the specific assertion in the petition that the job of loading and unloading of bricks is allied and incidental to the job of stacking of bricks. It further observed that the purchase of bricks, transportation to the factory, unloading, stacking and use in the furnace are the jobs in one continuing process and it is difficult to accept that these jobs are not incidental or allied to each other. That being so, all the workmen performing these jobs are to be treated alike. It is on this reasoning that the challenge was upheld and that part of the notification excluding loading and unloading of bricks from wagons and trucks was struck down.
17. Dr. Chandrachud next relied upon the judgment of the Apex Court in Reserve Bank of India v. Workmen, reported in : (1996)IILLJ42SC . In the aforesaid case, it was found that the Reserve Bank of India has been providing canteen facilities to its employees in Classes III and IV. The Reserve bank 'Lounge' caters to the needs of its officers at some centres. There was no obligation either under any statute or otherwise, for the Bank to run the canteens. It is so done only as a welfare measure. The Bank bears by way of subsidy to the extent of 95% of the costs incurred by the canteens for payment of salary, provident fund contribution, gratuity, uniform, etc. and also provides premises, fixtures, utensils, furniture, electricity, water etc. free of charge. The canteens are run either by 'Implementation Committee (Canteen Committee)' or 'Cooperative Societies' or 'contractors'. Out of 12 representatives in the implementation Committee, three are from the Bank. Certain employees, who are in the Committee, are permitted by the RBI for the full or half day to supervise the day-to-day work of the canteen. The Committee cannot increase the strength of canteen employees nor can it revise the wages without permission of the Bank. The licence renewal charges of the canteens run by the co-operative societies are reimbursed by the Bank. On these facts, relying on M.M.R. Khan case (supra) and holding the persons employed in various canteens to be employees of the Bank, the Tribunal directed them to be fitted with retrospective effect in the corresponding categories of employees employed in the officers' lounge. In appeal, the Apex Court set aside the decision of the Industrial Tribunal holding that the bank has only a limited role to play regarding the functioning of the Committee and does not have any control whatsoever on the employees engaged by the Committee so far as taking of disciplinary action against any particular employee is concerned. The recruitment of the workers for the canteen is made by the Canteen Committee, and the attendance record as well as the sanctioning of leave to the workers is done by the Committee. The only role played by the Bank in the running of the canteen is the nomination of the three members to the Committee. It is common ground that the canteen run by the Implementation Committee (Canteen Committee) is not under any legal obligation. Moreover, there is no right in the Bank to supervise and control the work done by the persons employed in the Committee nor has the Bank any right to direct the manner in which the work shall be done by various persons. The Bank has absolutely no right to take any disciplinary action or to direct any canteen employee to do a particular work. Even according to the Tribunal, the bank exercises only a 'remote control'. The Supreme Court held, therefore, in the absence of any effective or direct control in the Bank to supervise and control the work done by various persons, the workers in the canteen run by the Implementation Committee (Canteen Committee) cannot come within the ratio of M.M.R. Khan case (supra). As regards the canteens run by the cooperative societies, the mere fact that the Bank nominates its representative to the Committee or reimburses the licence renewal charges, will not in any way provide any direct control. In respect of the contract, the Bank has detailed the subsidy and other facilities afforded by it to run the canteen and has also stipulated certain conditions necessary for conducting the canteen in a good, hygienic and efficient manner like insistence of the quality of food, supply of food, engagement of experienced persons etc. However, the Apex Court held that such conduct cannot in any manner point out any obligation in the Bank to provide a canteen. The Apex Court held, therefore, on the facts of the case before it that in the absence of any statutory or other legal obligation and in the absence of any right in the Bank to supervise and control the work or the details thereof in any manner regarding the canteen workers employed in the three types of canteens, it cannot be said that the relationship of master and servant existed between the Bank and the various persons employed in three types of canteens.
18. Dr. Chandrachud next relied upon the judgment of the Division Bench in Govt. Soap Factory, Bangalore v. Labour Court, reported in AIR 1970 Mys 225. In the aforesaid case, the Division Bench also considered the definition of 'worker' in the Factories Act and the expression 'incidental to, or connected with manufacturing process'. The Division Bench held that watchman employed in a soap factory was not a worker within the meaning of Section 2(1) of the Factories Act. It was contended that the normal duties and functions of a watchman should be regarded as being incidental to, or connected with the manufacturing process, or the subject of the manufacturing process. On the other hand, the other side contended that none of the functions and duties of a watchman can be said to be incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process. On consideration of the relevant provisions of the Act and several decisions, the learned Judges held that the expression 'incidental to, or connected with' should be construed so as to imply proximate and not remote relationship between the work of the employees in question and the manufacturing process. The learned Judges held that the relationship between the work done by the watchman of the factory and the manufacturing process or the subject of the manufacturing process, is too remote to regard such work as being incidental to, or connected with, the manufacturing process. Relying on these authorities, Dr. Chandrachud submitted that inasmuch as maintaining of housing colony was not any legal obligation of respondent No. 1-Corporation and inasmuch as cleaning, sweeping and dusting in the housing colony cannot be considered to be of work incidental or necessary for the core activity of the Bharat Petroleum Corporation Ltd., it could not be held to be worthy of abolition and, therefore, the notification cannot be construed to include the work of cleaning, sweeping, dusting etc. so far as housing colony or buildings therein are concerned.
January 31, 1997
19. Dr. Chandrachud next relied upon the decision of the Apex Court in B.H.E.L. Workers' Association and Ors. v. Union of India and Ors., reported in : (1985)ILLJ428SC . The petitioner-union therein contended that out of 16,000 and odd workers working within the premises of the respondent-undertaking, as many as a thousand workers were treated as 'contract labour' and placed under the control and at the mercy of contractors and that though they did the same work as the workers directly employed by the undertaking, they were not paid the same wages nor were their conditions of service the same.
It was further alleged that the management pays to the contractors and in turn the contractors pay them their salary after deducting substantial commission, and that the wages received by them bear no comparison with the wages paid to those directly employed by the undertaking. It was alleged that the rights of these workers were infringed under Articles 14 and 19(1)(f) and a declaration was sought that the system of contract labour prevalent in the respondent-undertaking was illegal and that the 'contract labour' employees were direct employees of the respondent-undertaking and entitled to equal pay as the workmen directly employed. The respondent-undertaking therein contended that if the petitioners had any genuine grievance they could have availed themselves of the rights secured to them under the Contract Labour Act, the Minimum Wages Act, 1948, Equal Remuneration Act, 1976, etc., for ventilation of their grievances and seeking appropriate relief. It was further contended that certain jobs though required to be done within the plant area could be more conveniently and efficiently done on a job-contract basis by contractors and this was actually due to the incorporation of new technology for expansion of production programme with foreign collaboration. The jobs themselves were entrusted to contractors and it was not appropriate to say that the contractors merely supplied the labour, they were required to do the total job and payment was made on the basis of the quantum of work involved and not on the basis of the workers employed by the contractor. Dismissing the writ petition, the Apex Court held that the Contract Labour Act does not provide for the total abolition of contract labour, but only for its abolition in certain circumstances, and for the regulation of the employment of contract labour in certain establishments. It was further observed that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of work, and conditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate Industrial and Labour laws. If there is any dispute with regard to the type of work, the dispute has to be decided by the Chief Labour Commissioner (Central). It was further observed that Parliament has not abolished contract labour but has provided for its abolition by the Central Government in appropriate cases under Section 10 of the Contract Labour Act. It is not for the Court to inquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any establishment should be abolished or not. This is a matter for the decision of the Government after considering the matters required to be considered under Section 10 of the Act. Whether the work done by the contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the Chief Labour Commissioner under the proviso to Rule 25(ii)(iv)(a) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. The Apex Court held that in a petition under Article 32, it is not possible to embark into the enquiry whether the thousand and odd workmen working in various capacities and engaged in multifarious activities do work identical with work done by the workmen directly employed by the BHEL and whether for that reason they should be treated not as contract labour but as direct employees of the undertakings. The Apex Court observed that there are other forums created under statutes designed for deciding such question. Ultimately, the Apex Court issued directions to the Central Government to consider whether the employment of contract labour should not be prohibited under Section 10 of the Act in any process, operation or other work of the aforesaid public undertaking. The Apex Court also gave directions to the Chief Labour Commissioner to enquire into the question whether the work done by the workmen employed by the contractors is the same type of work as that done by the workmen directly employed by the principal employer in the undertaking.
20. Dr. Chandrachud next relied upon the decision of the Apex Court in R.K. Panda v. Steel Authority of India, reported in 1997 III LLJ 1202. After referring to the provisions of the Contract Labour Act, the Apex Court observed in para 4 that from the provisions referred to above, it is apparent that the framers of the Act have allowed and recognized contract labour and they have never purported to abolish it in its entirety. The primary object appears to be that there should not be any exploitation of the contract labourers by the contractor or the establishment. For achieving that object, statutory restrictions and responsibilities have been imposed on the contractor as well as on the principal employer. The Act also conceives that appropriate Government may after consultation with the Central Board or the State Board, as the case may be, prohibit by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment, taking all facts and circumstances of employment of contract labour in such process, operation or the work into consideration. In para 5, the Apex Court observed that of late a trend amongst the contract labourers is discernible that after having worked for some years, they make a claim that they should be absorbed by the principal employer and be treated as the employees of the principal employer especially when the principal employer is the Central Government or the State Government or authority which can be held to be State within the meaning of Article 12 of the Constitution, although no right flows from the provisions of the Act for the contract labourers to be absorbed to become the employees of the principal employer. In para 7, the Apex Court observed that it is true that with the passage of time and purely with a view to safeguard the interest of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact, such a condition is incorporated in the contract itself. However, such a clause in the contract, which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour, cannot by itself give rise to a right to regularization in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or the Supreme Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such question, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the Court. Normally, the Labour Court and the Industrial Tribunal under the Industrial Disputes Act are the competent for a to adjudicate such dispute on the basis of the oral and documentary evidence produced before them. Even observing so, on the basis of the peculiar facts and circumstances of the case before it, ultimately, the Apex Court gave directions that all labourers who had been initially engaged through contractors but have been continuously working with the undertaking for the last ten years on different jobs assigned to them in spite of the replacement and change of the contractors, shall be absorbed by the undertaking as their regular employees subject to being found medically fit and if they are below 58 years of age. While absorbing them as regular employees their inter se seniority shall be determined department/job-wise on the basis of their continuous employment. Certain other incidental directions were also given as to the date of the absorption and other entitlements of the labourers. Relying heavily on these two authorities, Dr. Chandrachud contended that even in the facts and circumstances of this case, with which we are dealing, the petitioners can approach the competent authority under the Contract Labour Act and obtain necessary reliefs.
21. Lastly, Dr. Chandrachud relied upon the decision of the Apex Court in Unni Krishnan v. State of A.P., reported in : [1993]1SCR594 . Referring to paras 56 to 67 and 164 to 167, Dr. Chandrachud contended that the connotation of word 'industry' as mentioned in the definition of word 'establishment' in the Contract Labour Act and the connotation of word 'industry' under the Industrial Disputes Act is different meaning thereby that under the Contract Labour Act, it has a much restricted meaning.
22. We have heard Mr. Master, Learned Counsel appearing for the Union of India who, in the absence of instruction, stated that he cannot make any submissions. It is also to be mentioned that the Union of India has not filed any affidavit in this petition. The learned counsel appearing for respondent No. 2-Contractor adopted the submissions of Dr. Chandrachud.
23. We must now make a reference to the latest pronouncement of the Apex Court on the Contract Labour Act in Air India Statutory Corporation v. United Labour Union and Ors. : (1997)ILLJ1113SC alongwith several connected Appeals made on December 6, 1996. The Apex Court set down several questions for decision inter alia (i) whether on abolition of contract labour, they are entitled to be absorbed; if so, from what date (ii) whether the High Court under Article 226 has power to direct their absorption; if so, from what date? ; and (iii) whether the workmen have got a right for absorption and, if so, what is the remedy for enforcement?. After a detailed analysis of the various provisions of the Contract Labour Act, Contract Labour Rules, the provisions of the Constitution of India and a specific reference to the decision of the Apex Court in Gammon India's case (supra), the Apex Court observed that it would thus be seen that before the Central or State Advisory Board advised the appropriate Government under Section 10(1) on the issue whether or not to abolish the contract labour system, it has before it all the relevant factual material and the appropriate Government after the receipt and consideration of the recommendations and the material and then takes decision. After posing the question as to what would be the consequences on abolition of the contract labour by publication of a notification in the Gazette under Sub-section (1) of Section 10 of the Act, the Apex Court observed that on abolition of the contract labour, the intermediary i.e. contractor is removed from the field and direct linkage between labour and principal employer is established. Thereby, the principal employer's obligation to absorb them arises. The right of the employee for absorption gets ripened and fructified. The moment the contract labour system stands prohibited under Section 10(1), the embargo to continue as a contract labour is put an end to and direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes responsible for taking the services of the workmen hitherto regulated through the contractor. The object of the penal provisions was to prevent the prohibition of the employer to commit breach of the provisions of the Act and to put an end to exploitation of the labour and to deter him from acting in violation of the constitutional right of the workman to his decent standard of life, living wages, right to health, etc. The Apex Court further observed that on abolition of the contract labour system, by necessary implication, the principal employer is under statutory obligation to absorb the contract labour. Considered from this perspective, all the workmen in the respective services working on contract labour are required to be absorbed in the establishment of the employer. The Apex Court in the case before it, observed that though there exists no specific scale of pay to be paid as regular employees, it is for the establishment to take such steps as are necessary to prescribe scale of pay like class 'D' employees. There is no impediment in the way of the appellants to absorb them in the last grade viz., grade IV employees on regular basis. The date of engagement as contract labour will be the criteria to determine their inter se seniority. In case there would be any need for retrenchment of any excess staff, necessarily, the principle of 'last come, first go' should be applied subject to his reappointment as and when the vacancy arises. The Apex Court further observed that the High Court has directed to absorb the services of the workman from the date of the judgment and the respondent Corporation did not challenge it, and, therefore, the Apex Court was constrained not to grant the benefit to the employees of the respondent-Union from the date of the abolition of the contract labour system. In a concurring judgment, Justice MAJUMDAR observed that once the conditions as mentioned in Section 10(2), Clauses (a) to (d) are established, on the basis of the report of the Advisory Board concerned, it is an obligation of the appropriate Government to abolish such contract labour system prevailing in the given process or operation in the establishment. The learned Judge further observed that it has to be appreciated that engagement of contract labour has been found to be unjustified by a catena of decisions of the Apex Court. When the work is of perennial nature and instead of engaging regular workmen, the system of contract labour is resorted to, it would only be for fulfilling the basic purpose of securing monetary advantage to the principal employer by reducing expenditure on work force. It would obviously be an unfair labour practice. Such a system was tried to be put to an end by the Legislature by enacting the Act, but when it found there are certain activities of establishment where the work is not of perennial nature when the contract labour may not be abolished but still it would be required to be regulated so that the lot of the workmen is not rendered miserable. The real scope and ambit of the Act is to abolish contract labour system as far as possible from every establishment. Consequently, on abolition which is the ultimate goal, the erstwhile regulated contract labour cannot be thrown out of the establishment.
24. After having considered the rival submissions and several decisions cited by the learned counsel on both the sides, it is clear that engaging contract labour is found to be a pernicious practice by the Courts all throughout. The decisions also make it clear that the principal aim of the Act is to abolish contract labour wherever possible and if not, to regulate the conditions of work of contract labour with a view of affording them conditions of services which are on par with regular workmen employed in the establishment doing the same or similar work. The authorities also clearly show that Parliament has empowered the appropriate Government to prohibit by notification in the Official Gazette employment of contract labour in any process, operation or other work in establishment. Section 10 also provides for the matters to which the appropriate Government shall have regard, firstly, the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment, secondly, whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment, thirdly, whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereof, and, fourthly, whether it is sufficient to employ considerable number of whole-time workmen. By explanation, if a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final. The provisions of Section 10 and the decisions relevant to the issue clearly show that the entire matter is left to the appropriate Government subject to consultation with the appropriate Board and regard be had to the aforesaid conditions.
25. In the light of the aforesaid, we would consider the effect of the notification bearing No. S.O. 779(E) dated December 9, 1976 issued by the Central Government. The said notification states that in exercise of the powers conferred by Sub-section (1) of Section 10 of the Contract Labour Act, the Central Government after consultation with the Central Advisory Contract Labour Board, hereby prohibits employment of contract labour on and from March 1, 1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the said Act is the Central Government. The proviso states that the notification shall not apply to the outside cleaning and other maintenance operations of multi-storeyed buildings where such cleaning or maintenance operations cannot be carried out except with socialised experience. We are of the clear opinion that once such a notification is issued by the Central Government under the provisions of Section 10(1), full effect shall have to be given in terms of the notification. It is an admitted position that by settlement dated June 22, 1990 under Section 12(3) read with Section 18(3) of the Industrial Disputes Act, all the 56 employees employed by the contractor Eagle Kleenwell in housekeeping services engaged in cleaning, sweeping, dusting etc,, of its offices at Bharat Bavan I & II, Udyog Bhavan, Maker Towers and Sewree 'K' will henceforth be done by the Corporation's directly employed workmen and contractor's workmen numbering 47 as mentioned in annexure I thereto as a result of abolition of the composite contracts shall be given appointment by the Corporation against available vacancies in newly created posts of general workmen. This is to emphasize the fact that there are direct workmen doing the job of housekeeping services, sweeping, dusting, etc. in respect of the office buildings of respondent No. 1-Corporation. It is also to be noticed that the total number of buildings in the staff colony is 34 plus 6 residential. If one looks at the details of work of contract, a copy of which has been tendered by the learned counsel for respondent No. 1-Corporation and which we have taken on record, it is clear that the nature of work is such that it will require employment of sizeable number of workmen and that the nature of work is bound to be perennial as long as the housing colony exists. We have no reason to expect that respondent No. 1 -Corporation will at any time in future completely absolve itself of these housing colonies. The work of cleaning, dusting etc. therein in our opinion, is therefore clearly perennial. The housing colony is meant for the purpose of housing only the employees and only till they are in the employment of respondent No. 1-Corporation. The terms of contract clearly show that the directions of the Bharat Petroleum Corporation's representative are to be abided while doing the work. For example, the doors, windows, ventilators, window grills, door closers, louvers, doors and windows in toilets, etc. will have to be kept clean by wiping daily and swabbing whenever required as per the directions of the BPCL representative. The carpets, upholstery, mats, floor coverings etc. in club and office premises will have to be cleaned with vacuum cleaners as and when required and instructed by BPCL representative. If sufficient quantity of approved quality of material is not supplied by the contractors, BPCL representative will make arrangement for the material. The contractor will have to plan his manpower requirements in suitable manner so as to meet the contractual obligations as outlined above in consultation with the Officer- in-Charge so as to ensure that jobs are carried out effectively. One of the terms provides that if the contractor fails to render the services to the satisfaction of the Engineer-in-charge on any particular day for any reason during the contract period, appropriate deductions will be made from the bills. The bills/works will have to be certified for satisfactory performance by the concerned office-in-charge. The nature of the work and other conditions are too numerous to be repeated here. After having gone through the terms of the contract, in our opinion, there is enough supervision and control of respondent No. 1-Corporation over the work of sweeping, dusting, etc. done in the housing colony by the officer of the Corporation. Taking into consideration the fact that the housing colonies are admittedly owned and occupied by respondent No. 1-Corporation, that these are meant only to the serving employees of the Corporation, that the Corporation has supervisory control over these activities are clear indications that these activities are incidental to the industry carried on by respondent No. 1. We are overwhelmingly conscious of the fact that it is not our function to determine these factors relevant under Section 10, but we are merely mentioning these facts to repel the submissions seriously made on behalf of respondent No. 1-Corporation that the notification cannot possibly include the housing colonies of respondent No. 1 -Corporation. We have referred to all these factors only to demonstrate that, on the contrary, the Central Government which is having ample and almost exclusive jurisdiction to prohibit employment of contract labour appears to have advisedly included all 'buildings owned or occupied by the establishment'. In our opinion, once it is an admitted position that all the buildings wherein these contract labour system is invoked are owned and occupied by respondent No. 1 -Corporation, the notification dated December 9, 1976 must apply to that with full force. In the view which we have taken of the notification, with respect to the learned single Judge of the Kerala High Court, we are unable to accept the correctness of the decision rendered by the learned single Judge in Powar 's case (supra).
26. In the aforesaid circumstances, as we hold that the notification itself is applicable, we find it unnecessary to consider the second submission on behalf of the petitioners that even if the notification is not attracted and de hors the provisions of the Contract Labour Act, the public Corporation like respondent No. 1 should not be allowed to discriminate, against the workmen whose cause is being espoused by the petitioning union.
February 21, 1997
27. In the result, the petition must succeed. The list of workmen who have been working for the purpose of cleaning, sweeping etc. in the housing colony consists of 30 persons. It is an agreed position before us that the workman at Sr. No. 2 Draupadi Kashinath Daha died in the year 1993 and the workmen at Sr. No. 25 Swarta Tappned Jadhav and Sr. No. 26 Manda Gopal Ravnang left the services in the year 1991. The services of the workman at Sr. No. 27 Vinod Sitaram Bhosale were also terminated in the year 1991. Excepting these four persons, all the remaining 26 persons in the aforesaid list of 30 workmen are working as of today and doing the work of sweeping, cleaning etc. in the housing colony of Bharat Petroleum Corporation Ltd. It further appears, that excepting the workman at Sr. No. 28-Dayanand L. Chaugule who joined in the year 1995, all were working since or prior to 1991. The petition is filed on January 17, 1991. Accordingly, we direct that excepting the workmen at Sr.No. 2 Draupadi Kashinath Daha Sr. No. 25, Swarta Tappned Jadhav, Sr. No. 26 Manda Gopal Ravnang, Sr. No. 27 Vinod Sitaram Bhosale and Sr. No. 28 Dayanand L. Chaugule the remaining 25 persons in the list shall be absorbed as from February 1, 1991 by respondent No. 1 Corporation as permanent employees and they shall be entitled to the emoluments and other benefits as are available to workmen of respondent No. 1 doing similar work in their establishment. So far as workman at Sr. No. 28 Dayanand L. Chaugule is concerned, he shall be absorbed and shall be entitled to the aforesaid benefits as from the date of his appointment in the year 1995. Workman at Sr. No. 2 Draupadi Kashinath Daha died and workmen at Sr. No. 25 Swarta Tappned Jadhav, Sr. No 26 Manda Gopal Ravnang and Sr. No. 27 Vinod Sitaram Bhosale having been resigned or removed, respectively, in the year 1991, will not be entitled to any relief. The rule is made absolute in the aforesaid terms. There shall be no order as to costs.
28. Upon the application of Dr. Chandrachud, the operation of this judgment is stayed for a period of eight weeks from today to enable respondent No. 1 to approach the Apex Court.