R.K. Merathia, J.
1. Both the Letters Patent Appeals are taken together since a common question is involved namely whether the labourers under the contractor are entitled to be absorbed, by the management as regular employees.
2. The L.P.A. No. 140/2000 preferred by Indian iron & Steel Company Ltd. & Anr. arises out of CWJC No. 1938/1995(R) and L.P.A. No. 162/2000 preferred by Bharat Coking Coal Ltd. arises out of CWJC No. 1802/1994(R). Both the aforesaid writ petition (along with one CWJC No. 1803/1994 (R) were heard analogous and disposed . of by the common judgment dated 29-2-2000, which is impugned in the present appeals.
3. It will useful to state the cases of the respective parties in brief,
4. L.P.A. No. 140/2000 preferred by IISCO, arising out of CWJC No. 7938/ 1995(R):
(a) Rashtriya Koila Mazdoor Congress along with 43 contract labourers preferred the said writ petition for a direction to regularise the services of the contract labourers, as permanent employees of M/s. Indian Iron & Steel Company (IISCO) and to give salary/wages as of regular employees with all other fringe benefits with effect from the date, they are working. The case of the writ petitioners was/is as follows.
The contract labourers were employed under the contractor for loading and unloading of washed coal from Chasnala Washery to the Railway Yard for onward transportation to different Steel Plants. There is a ropeway system introduced for transportation of washed coal from Chasnala Washery directly to IISCO for feeding its Steel Plant which is, however, not sufficient to meet the requirement and as such contractor is engaged to supply the same through Railway at Tasra Branch siding which is about 1 and 1/2 kilometers from Chasnala Washery Washed coal is transported by dumper and stacked in the Railway Siding and loaded through the pay-loaders. The writ petitioners are engaged solely for supply of washed coal to IISCO Steel Plant, Such job is permanent and perennial in nature and continuing since 1973 through different contractors inspite of prohibition of such job being carried on by engaging contractor. The contract labourers are fringe paid wages only but they have insecurity of service and are being denied other fringe benefits as being enjoyed by regular employees of IISCO, It is clearly settled by various reports agreements and settlement arrived at from time to time and the notification issued under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970, that the transportation and removal of coal loading and unloading thereof in strictly prohibited to be done by the Contract Labour in the colliery, washery, or any other process connected therewith but the management is carrying out this nature of job, through contract labourers.
Coal loading and unloading, inter alia was, prohibited under the contract labour by notifications dated 1-2-1975 issued under the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter referred to as CLRA Act).
(b) The case of the respondents in the writ petition (appellants in this appeal) was as follows:
Loading of washed coal is being done mechanically from sidings to the wagons where some Mazdoors are required for cleaning jobs for split washed coal. The above job is not a continuous operation, as will appear from Annexure A. The terms and conditions of the contract for loading of washed coal from ground stock into dumpers/trucks/wagons and its transport from washery to the Railway Siding and loading into wagons will show that loading and unloading of clean coal from washery and loading in wagons was to be done mechanically and as such no loading and unloading is being done manually. The Mazdoors might have been engaged for cleaning. The special terms and conditions of tender for transporting and unloading Chasnala Washed Coal/Middlings is annexed as Annexure-B by the management in support of aforesaid stand. The said conditions of contract shows that the work was of temporary in nature and may be discontinued any time. It was also provided in the said terms of contract that the contractor will take over the existing staff and labour employed by the earlier contractor. The work of loading coal into dumpers/ trucks and into wagons is to be carried out entirely by a mechanical means by engaging bulldozers, excavators and pay-loaders from the beginning of the contract.
It appears that an application was made by the writ petitioner on 13-9-1999 for restraining the management from taking coercive steps for displacing the writ petitioners from their work. From Annexure 11 annexed with the said petition, it appears that the transpiration of clean coal from Washery to Railway Siding and loading into wagons was stopped since 6-9-1999. The management started the work by engaging departmental equipments and departmental workers exclusively as a temporary arrangement. However, it appears that no orders was passed restraining the management as prayed for.
5. L.P.A. No. 162/2000 preferred by BCCL arising out of CWJC No. 1802/1994 (R):
(a) Janta Mazdoor Sangh preferred the said writ petition on behalf on 17 contract labourers (detailed in Annexure 1), for a direction upon the respondents to regularise the services of the workmen engaged in the Damp Slurry Preparation Plant of Dugda Coal Washery under the contractors and to pay them equal pay for equal work and wages from the date of stoppage of the same i.e. 29-11-1992 and 30-10-1992 respectively and regularize their services and for other reliefs. Their case was as follows.
The contract labourers were employed on 12-12-1989 and since then they were continuously working, the job of recovery of slurry Near about 1000 such workmen were engaged in the excavation of slurry in Dugda Coal Washery. Slurry is collected in the ponds in the process of washing of coal Slurry is finer particles of high grade coal.
About 1000 workmen were considered for absorption on abolition of the contract system but in the process the management omitted the case of these 17 workmen involved in the writ petition. The writ petitioners admitted that the contract job has been stopped from 29-11-1992 and 30th October, 1992 respectively.
Thus in this case it is the admitted position that the 17 contract labourers worked underthe contractor from the date of their employment i.e. 12-12-1989 till 29-11-1992, when the contract job was stopped.
We may notice here that the union and other workmen than the writ petitioners, had moved the Patna High Court (Ranchi Bench) under Article 226 and 227 of the Constitution of India being CWJC No. 459/1985 (R) for a direction to the management to forbear from continuing the contract labour system and to regularise the services of the workmen with effect from the date of their appointment. The writ petition was dismissed.
After noticing the judgment reported in (1985) 1 SCC 630 (paragraph 6) BHEI Workers Association and Ors. v. Union of India and Ors., and in view of the controversial facts, the High Court directed for an enquiry into the matter in controversy. It was further observed that the Central Government shall pass necessary and appropriate orders under Section 10 of the Act in accordance with law. With the said observations and directions, the writ petition was dismissed on 9-7-1985.
It appears that by a Notification No. S.O. No. 3461 dated 11-12-1990, the Central Government prohibited the employment of contract labour in the work/operations of (i) Transporting of Middlings and (ii) Removal of Slurry, in the coal washeries (?) in the country with effect from the date of publication of the notification i.e. 22-12-1990.
(b) The case of the management, in the writ petition was that after 29-11 -1992 no contract was awarded to any other contractor till date and the company started doing such job departmentally through its own workmen and equipments.
6. Both the aforesaid writ petitions being CWJC No. 1938/95 (R) and CWJC No, 1802/1994 (R) were heard analogous (along with one CWJC No. 1 (303/1994 (R) and disposed of by a common judgment dated 29-2-2000 which is impugned in these appeals. The learned Single Judge, inter alia, held that admittedly, the Chief Labour Commissioner (Central) Delhi after hearing the parties passed order holding that the nature of the work done by the contract labour in Dugda Coal Washery can be validly compared to the work done by the departmental workers in other washery, and that the Commissioner ordered that the contract labourers engaged by the contractor shall be paid the same wages and they are entitled to same condition of services as are available to the corresponding category of departmental worke rs, working in the Sister Coal Washery and, therefore, the work done by the writ petit oners in both the writ petitions are perennial in nature and all the necessary requirements of Section 11 (Section 10 ?) of the Act are satisfied.
It may be noticed here that the said order was passed by the Commissioner in exercise of powers under Rule 25 (2) (v) (a) of CLRA Central Rules, 1971 as a condition for grant/renewal of contractor licence.
Learned Single Judge further held that undisputedly the petitioners of these two writ applications have been working for the last more than a decade under the contractors and therefore, they cannot be deprived of their legitimate right to be regularised in service. Relying on the observations made by the apex Court in the cases of Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645) and Secretary, Haryana State Electricity Boards. Suresh and Others, (AIR 1999 SC 1160), learned Single Judge disposed of the two writ petitions in question with a direction to the Central Government to take an appropriate action under Section 10 of the Act in the matter of prohibiting the employment so far as the nature of work done by these petitioners are concerned. The Central Government was further directed to take all the necessary steps in this regard within four months from, the date of receipt of the copy of the judgment/order. In the meantime, the management was also directed to take necessary steps to regularise the services of these petitioners.
7. L.P.A. No. 140/2000//SCO v. Rashtria Koila Mazdoor Congress
(a) Learned Counsel for the appellant made three fold submissions, namely, (a) the learned Single Judge has committed errors of record and intermixed the facts of the cases, leading to erroneous findings, (b) while directing the Central Government to take appropriate action under Section 10 of the CLRA Act, the learned Single Judge should not have given a finding that all the necessary requirements of Section 10 of the CLRA Act are satisfied, prejudicing the case of the appellant before the Central Government and (c) the direction of learned Single Judge to the management to take necessary steps or regularize the services of these petitioners, is bad in law. He relied on the recent judgment of the apex Court reported in (2001) 7 SCC page 1 Steel Authority of India Ltd. v. National Union Water Front Workers. He pointed out to paragraph 125 of the said judgment, and submitted that the case of Air India (supra) relief on by learned Single Judge has been overruled. He submitted that in view of the Constitution Bench Judgment rendered in Steel Authority of India's case (supra), the Court cannot issue mandamus to regularise the contract labourers, He further argued that the aforesaid notification dated 22-12-1990 prohibiting the contract labour in Coal Washeries for transporting of Middlings and Removal of Slurry is not applicable to the appellant as the contract labourers? Claimed that they were engaged for loading and unloading of washed coal. It was also submitted that the said work was not perennial in nature.
(b) On the other hand, learned Counsel for the respondents (contract labourers) submitted that washed coal is nothing but coal and by notifications issued by the Central Government on 1-2-1975 loading and unloading of coal was prohibited and therefore, the continuance of contract labour for loading and unloading of washed coal is illegal and the findings/directions given by the learned Single Judge is justified: He further argued that in any event, this Court should direct the management to regularise the contract labourers on the basis of the principle of equal pay for equal work. In other words he submitted that inspite of the provisions contained in the CLRA Act and the judgment of Steel Authority's case (supra) this Court can direct the management to regularise the contract labourers keeping in view the genera! principles entertained in the Constitution. In this connection, he referred to several judgments. He further argued that the Steel Authority's case (supra) will not be applicable as the learned Single Judge has already issued directions in this regard.
(c) In reply, learned Counsel for the appellant submitted that the said notifications dated 1-2-1975 prohibiting the loading and unloading of coal is itself bad as there is nothing to show that the same was issued keeping in view the provisions of Section 10(2) of the CLRA Act, He relied on a decision rendered in the case of Indian Iron & Steel Company Ltd. v. Union of India and Ors., reported in 2002 (3) JCR 259 (Jhr). He further argued that the directions issued by learned Single Judge was not given effect to and the same has not become final as the same are under challenge in this appeal.
8. We have carefully gone through the records and considered the entire matter and different aspects of the case.
9. It is true that serious errors of record have crept in the imougned judgment leading to erroneous findings, due to intermixing of facts of the two writ petitions. But in view of the order which we intend to pass, it is not necessary to enter into this aspect of the matter raised in this appeal. Moreover the respective cases of the parties have been noticed hereinabove carefully.
10. The case law relied on by the learned Counsel for the contract labourers are of no help to them and their argument noticed above cannot be accepted, in view of the judgment of the Constitution Bench of the Hon'ble Supreme Court in Steel Authority's case (supra). For the same reason, the mandamus issued by learned Single Judge to regularise the services of the contract labourers cannot be sustained. There was no occasion or justification for the learned Single Judge to give a finding to the effect that all the necessary requirements of Section 10 of the CLRA Act are satisfied, more so when the matter was being remitted to the Central Government appropriate action under Section 10 of the CLRA Act. The aforesaid directions and findings of learned Single Judge runs contrary to the said judgment of apex Court rendered in Steel Authority's case (supra).
11. We agree with the submissions of the learned Counsel for the appellant that the direction of the learned Single Judge has not been given effect to and it has not become final in view of the present appeals and therefore, the Steel Authority's case (supra) will apply in the present cases.
12. We are in agreement with the submission of learned Counsel appearing on behalf of the respondents that, washed coal, is also coal. But prime facie the argument of the learned Counsel for the appellant appears to be correct that the notifications dated 1-2-1975, prohibiting the loading and unloading of coal, is bad as it appears that the provisions, of Section 10(2) of the CLRA Act have not been complied, as has been held in the case of Indian Iron & Steel Company's case (supra). However, we are not applying ourselves to the aforesaid controversy between the parties regarding the validity or otherwise of the said notifications dated 1-2-1975, as this question is not involved in this appeal for the present. Moreover, as we are inclined to remit the matter to the Central Government, we refrain from entering into the question or validity of the notifications dated 1 -2-1975.
13. In view of the controversies on the facts between the parties, as noticed above and in view of the judgment rendered in Steel Authority's case (supra) in our view, the proper course will be to refer the matter to the Central Government to take appropriate action as provided under Section 10 of the CLRA Act and in the light of Steel Authority's case (supra). Since this litigations is going on since a longtime, it is desirable that the Central Government takes steps, as directed above without any further delay. It is excepted that it will complete the process of taking a decision regarding issuing or not issuing a notification under Section 10 of the CLRA Act and act on that decision within a period of six months from the date of receipt/production of a copy of this order.
14. We may further observe that it is high time, the Central Government takes such steps in accordance with law regarding other establishments, where such disputes exist. Several litigations will come to an end, by such exercise.
15. LPA No. 162/2000 (R) BCCL v. Janta MazdoorSangh
(a) Learned Counsel for the appellant argued that undisputedly the 17 contract labourers were employed on 12-12-1989 by the contractor on the job of recovery/removal of slurry, and from 29-11-1992, their services were dispensed with by the contractor as to contract was awarded thereafter to any other contractor. The company started doing the said job departmentally by its own workmen and equipments. It was also pointed out by him that admittedly about 1000 workmen were considered for absorption after the abolition of contract labour system, as aforesaid. In these circumstances, he submitted that no relief can be granted to the 17 contract labourers (writ petitioners). They worked for three years under the contractor, a decade ago.
16. In our view the 17 contract labourers in question have no subsisting cause and right to maintain the writ petition in the year 1994 after their services were dispensed with by the contractor in 1992, claiming regularisation etc,
17. We may incidentally notice here that the documents referred to and relied in the writ petition were priorto the employment of the 17 contract labourers in question. However, the report of committee recommending prohibition of contract labour in the operations of removal of slurry came in 1989 and accordingly the notifications under Section 10 of CLRA Act was published to the said effect on 22-12-1990, as noticed above. It appears that as the contractor was already engaged prior to the said notification, the said contract continued up to November, 1992 but not thereafter. In view of these facts and circumstances, no relief could have been granted by the learned Single Judge to the writ petitioners of CWJC No. 1802/1994 (R). Consequently, LPA No. 162/2000 is allowed and the judgment of the learned Single Judge so far as CWJC No. 1802/94 (R) is concerned, is set aside.
18. In the result, LPA No. 140/2000 is allowed in part to the extent indicated above and LPA No. 162/2000 is allowed by setting aside the judgment of the learned Single Judge, passed in CWJC No. 1802/94 (R) on 29-2-2000 and dismissing the writ petition. In the facts and circumstances of the case, there will be no order as to costs.