Mukul Mudgal, J.
1. This writ petition challenges the order dated 27th November, 2002 passed by the Under Secretary, Ministry of Labour, Government of India, respondent No. 1. The relevant portion of the said order dated 27th November, 2002 reads as under:
'Subject: ID between the management of M/s Indian Oil Corp. and the concerned contractors & Petroleum Trade Union, New Delhi for regularization of 7 contract labour workers in the establishment - reg.
Sir,
I am directed to refer to the Failure of Conciliation Report No. D-8/1/2002-ALC dated 21/05/2002 from the ALC (Dehradun) received in this Ministry on 29/05/2002 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:'The Union could not substantiate their contention for regular appointment by the management of Indian Oil Corporation'
2. The learned counsel for the workman/petitioner, Ms. Asha Jain Madan, has assailed the said order on the ground that this order is contrary to the well settled position of law laid down in the several judgments that the Government under Section 10(1) of the Act exercised its administrative functions and not judicial or quasi judicial functions and cannot delve into merits of the dispute and take upon itself the determination of the lis. The learned counsel for the petitioner thus has relied upon the following judgments, to support the above proposition:
1. Telco Convoy Drivers Mazdoor Sangh vs . State of Bihar : (1989)IILLJ558SC
2. Dhanbad Colliery Karamchari Sangh Vs . Union of India .
3. V. Veerarajn and others vs. Government of Tamil Nadu : (1987)ILLJ209SC
4. Nirmal Singh vs. State of Punjab, 1984 Lab IC 1312.
5. Sankari Cement Alai Thozhilalar Munnetra Sangh vs. Government of Tamil Nadu, : (1983)ILLJ460SC .
6. Ram Avtar Sharma vs. State of Haryana, : (1985)IILLJ187SC
7. Bombay Union of Journalists vs. State of Bombay : (1964)ILLJ351SC .
8. M/s Wings Wear Corporation vs. Workman of M/s Wings Wear Corporation, 1989 Lab IC 974.
9. V. Sri Ram and others vs. Delta Airlines, 1999 4 AD (Delhi) 782.
10. Shardad Kumar vs. Govt. of NCT of Delhi, : (2002)IILLJ275SC .
3. In particular reliance has been placed upon Dhanbad Colliery's judgment which according to the counsel for the petitioner had facts almost similar to the present case and clearly applies on all fours to the present case. The relevant portion of the said judgment relied upon by the learned counsel for the petitioner reads as follows:
'2. The appellant Union raised a dispute that the workmen employed in the mines run and maintained by M/s Bharat Coking Coal Ltd. , Lodhna Area, Dhanbad were engaged by the contractor without obtaining a license and in fact the workmen were under the direct employment of the management of M/s Bharat Coking coal Ltd. They claimed relief for a declaration to that effect. The workmen approached the Central Government for referring the dispute to Industrial Court under Section 10 of the Industrial Disputes Act, 1947. The Central Government by its order dated May 5, 1989 refused to refer the dispute on the ground that Union had failed to establish that the disputed workmen were engaged in prohibited categories of work under the Contract Labour (Regulation and Abolition) Act, 1970 and further that they were engaged by contractor and not by the management of the respondent company. The government further held that there appeared to be no employer-employee relationship between the management of the respondent company and the workmen involved in the dispute. The appellant challenged the government's order before the High Court by means of writ petition but the same was dismissed in liming. Hence this appeal.
3. After hearing learned counsel for the parties and having regard to the facts and circumstances of the case, we are of the opinion that this appeal must succeed. The Central Government instead of referring the dispute for adjudication to the appropriate Industrial Court under Section 10 of the Industrial Disputes Act, 1947, it itself decided the dispute which is not permissible under the law. We, accordingly, allow the appeal, set aside the order of the High Court and of the Central Government and direct the Central Government to refer the dispute for adjudication to the appropriate Industrial Court under Section 10 of the Industrial Disputes Act, 1947. We further direct the Central Government to make the reference within three months. '
4. The learned counsel for the petitioner has, thereforee, prayed that in view of the passage of time and in particular because the fact that the services of the petitioners were terminated subsequent to seeking of reference by the petitioner this was a fit case where this Court should direct the counsel to make a reference as per the above judgment of the Hon'ble Supreme Court and other judgments of the Hon'ble Supreme Court.
5. Mr. V. N. Kaura, the learned counsel appearing for respondent No. 2, Indian Oil Corporation, the principal employer as pr the petitioner's claim has relied upon the judgment in Steel Authority of India Ltd. vs. National Union Water Front Workers & Others, : (2001)IILLJ1087SC , and in particular sub paras 5 and 6 of paragraph 121 to contend that the sole forum for determination of the grievance raised by the petitioner would be a proceeding under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the 'Act) and the order directing reference as supportable on this ground also. The said sub-paras 5 and 6 of paragraph 121 and paragraph 122 of the said judgment read as follows:
'121 (5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labourer or otherwise, in an industrial dispute brought before it by any contract labourer in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labourer for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit there under. If the contract is found to be not genuine but a mere camouflage, the so-called contract labourer will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labourer in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of Para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate government, prohibiting employment of contract labourer in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall given preference to the erstwhile contract labourer, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
122. We have used the expression 'industrial adjudicator' by design as determination of the questions aforementioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. thereforee, in such cases the appropriate authority to go into those issues will be industrial tribunal court whose determination will be amenable to judicial review. '
6. Mr. Kaura has thereforee submitted that unless and until the prohibition notification under Section 10(1) of the CLRA Act is issued, the Industrial Tribunal cannot entertain any dispute and consequently the declining of the reference though seemingly going into the merits of the dispute is nevertheless based on this reading of Steel Authority's judgment (supra), which plea is also substantiated by the affidavit filed on behalf of respondent No. 1. The refusal of reference was sought to be justified in the counter affidavit of respondent No. 1 on the ground that since there was no prohibition notification there was no justification in the reference of the dispute. The relevant portion of the said affidavit of respondent No. 1 reads as under:
'v) The Hon'ble Supreme Court of India in their judgment on Steel Authority of India Ltd. & others etc vs. National Union of Waterfront Workers & others etc. has clarified that if prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour is there, only then the industrial adjudicator will have to consider the question whether the contract has been interposed under a genuine contract or is a mere camouflage. Since prohibition notification existed for the activities in which these workmen were engaged in the establishment of IOCL, Noida there was no justification for reference of the dispute for adjudication. '
7. Mr. Kaura has also referred to the judgment of a learned Single Judge of this Court in Pritam Singh vs. P. K. Jain & Ors, 2002 (65) DRJ 218, and in particular paragraph 9 thereof which reads as under:
'9. After coming into force the Contract Labour (Regulation & Abolition) Act, 1970 if the case is covered by Contract Labour (Regulation & Abolition) Act, 1970, a reference under Section 10 of the Industrial Disputes Act cannot be made. The contention of Mr. Sabharwal that there was still a pendency of the industrial disputes is of no avail to the petitioner. The I. D. 71/75 was the basis of the application filed by the petitioner under Section 33-A and once very foundation of the filing the application ceased to exist no proceeding was pending in relation to any industrial disputes. thereforee, I do not see any infirmity with the impugned order. '
8. Mr. Kaura has also relied upon a judgment of the Hon'ble Supreme Court which was rendered subsequent to the judgment in Steel Authority (supra), i. e. Municipal Corporation of Greater Mumbai vs. K. V. Sharmik Sangh, : (2002)IILLJ544SC . Reliance has been placed in particular on paragraph 19 and 29 of the said judgment. Relevant portion of paragraph 19 reads as under:
'19. . . . . . . . . . . It appears to us that the High Court proceeded to conclude that the labour contract was not genuine and the workers of the Union were employees of the corporation because the corporation and the contractors did not comply with the provisions of the CLRA Act. Conclusion that the contract was sham or it was only camouflage cannot be arrived at as the matter of law for non-compliance of the provisions of the CLRA Act but a finding must be recorded based on evidence particularly when disputed by an industrial adjudicator as laid down in various decisions of this Court including the constitution bench judgment in SAIL. '
Paragraph 29 of the said judgment reads as under:
'29. In the result, for the reasons stated and discussion made above, the impugned judgment and order are set aside leaving it open to the Union to seek remedies available in terms of para 125 of the judgment of the constitution bench in SAIL aforementioned before the state government or the industrial adjudicator as the case may be. In case, the Union moves the appropriate government or the industrial adjudicator within four weeks from today, they shall consider the same and pass appropriate orders within a period of six months. The order to maintain status quo regarding the employment of the contract labourers to the extent indicated was passed in the writ petition on 20. 4. 1998 and even after disposal of the writ petition, the High Court stayed the order for a limited period and further, this Court passed order to maintain the status quo on 26. 10. 1999 which is continuing. In these circumstances, the order of status quo shall continue for a period of six months. We also make it clear that this order does not prevent the state government to proceed in accordance with law in the matter of abolition of contract labour system. The appeal is allowed accordingly in the above terms. No costs. '
9. The learned counsel for the petitioner in reply has highlighted, the use of the phrase 'otherwise' in paragraph 121 (5) to contend that the judgment of the Supreme Court contemplated that de hors a prohibition notification, the industrial dispute could also be referred as is clear from the use of the word 'otherwise'. The relevant portion of para 121 (5) reads as follows:
'121 (5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labourer or otherwise, in an industrial dispute brought before it by any contract labourer in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labourer for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit there under. . . . . . . . . . '
Apart from placing reliance on paragraphs 121 and 122 of Steel Authority's judgment (supra), she has also referred to paragraph No. 70 of SAIL's judgment (supra)which reads as under:
'70. By definition the term 'contract labour' is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by or through a contractor, with or without the knowledge of the principal employer. A workman may be hired: (1) in an establishment by the principal employer or by his agent with or without the knowledge of the principal employer; or (2) in connection with the work of an establishment by the principal employer through a contractor or by a contractor with or without the knowledge of the principal employer. Where a workman is hired in or in connection with the work of an establishment by the principal employer through a contractor, he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman. But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because the supplies workman for any work of the establishment, a question might arise whether the contractor is a mere camouflage as a Hussainbhai Calicut's case (supra) and in Indian Petrochemicals Corporation's case (supra) etc. ; if the answer is in the affirmative, the workman will be in fact an employee of the principal employer; but if the answer is in the negative, the workman will be a contract labourer. '
10. In my view the crucial phrase in para 121 of the judgment of the Constitution Bench of the Hon'ble Supreme Court is the raising of the dispute through the medium of the Act or otherwise (underlining supplied). This clearly indicates than a dispute other than ennumerating through the CLRA Act was envisaged in the judgment. This is also clear from the subsequent para 122 which refers to an industrial adjudicator under the Industrial Disputes Act as contrasted within the direct approach to the High Court under Article 226 of the Constitution of India. Thus, it is evident that the adjudication under the Industrial Dispute Act even when a notification was not issued under the CLRA Act was also contemplated under SAIL's judgment (supra). Even if there was any doubt, it is resolved by the later judgment of the Hon'ble Supreme Court in Municipal Corporation of Greater Mumbai's judgment (supra) which follows and applies the judgment of SAIL and then applies it to permit adjudication under the I. D. Act dehors the approach under CLRA Act. No doubt the learned Single Judge of this Court has held in Pritam Singh's judgment (supra) that the recourse to I. A. Act is not available but in view of the observations of the Hon'ble Supreme Court in SAIL (supra) and in particular para 70, 121 and 122 and the later judgment in Municipal Corporation of Greater Mumbai (supra), the position of law is clear and I am bound by the judgment of the Hon'ble Supreme Court in preference to the view taken by the learned single Judge in Pritam Singh's case (supra).
11. Accordingly I am of the view that the reference would be made under the Industrial Disputes Act even when a notification under CLRA Act had not been issued. Once this issue is resolved in favor of the workman/petitioner the phrasing of the impugned order clearly demonstrates that in declining the reference on the ground that the Union could not substantiate their contention, the respondent No. 1 has clearly delved into the issue on merits which is forbidden in view of the law laid down in several judgments of the Hon'ble Supreme Court set out in para 2 above and in particular the judgment of Dhanbad Collery Karamchari Sangh's case (supra) which is on all fours with the present case.
12. Consequently as per the judgment in Dhanbad Collery's case (supra), the writ petition is allowed. The impugned order dated 27th November 2002 is set aside and the respondent No. 1 is directed by a writ of mandamus to make a reference of the disputes sought by the petitioner within 2 months from today and not later than 31st July 2003.
The writ petition stands disposed of with no order as to costs.