Janavadi General Kamgar Mazdoor Union Vs. Central Institute of Fisheries Education and ors. - Court Judgment

Y.K. Sabharwal, C.J. and A.P. Shah, J.

1. Rule, returned forthwith.

2. The petitioner is a trade union, which has filed this petition seeking issue of writ of mandamus directing Respondent No. 1 to absorb the workers listed at Exhibit 'A' and to regularise their services with effect from the respective dates of joining Respondent No. 1 - establishment. Further relief sought for is for issue of directions to the Central Government to take a decision whether or not the employment of Contract Labour in the jobs carried out by the workers listed at Exhibit 'B' should be prohibited.

3. The workers at Exhibit 'A' are performing the work of sweeping and cleaning of the building of Respondent No. 1 i.e., The, Central Institute of Fisheries Education' (deemed University) (for short, C.I.F.E.). The workers listed at Exhibit 'B' are stated to be employed for work of Peons, Electricians, Gardeners, Carpenters, Cooks, Fishermen and Plumbers with C.I.F.E.

4. C.I.F.E. is an institute for education and training in Fisheries Science and is under the administrative control of the Indian Counsel of Agricultural Research (I.C.A.R.). It is wholly financed and controlled by the Central Government. The Central Government has issued a Notification dated December 9, 1978, which prohibits employment of contract labour on and from March 1, 1977 for the work of; sweeping, cleaning, dusting and washing of buildings owned or occupied by establishments in respect of which the appropriate Government under the Contract Labour (Regulation and Abolition) Act, 1970 (the Act, for short) is the Central Government. The petitioner seeks issue of directions on the lines which were issued by a Division Bench of this Court on April 21, 1998 in Writ Petition No. 101 of 1998 United Labour Union v. Air India Ltd. and Ors. According to the petitioner, the case of employees in Exhibit 'A' is squarely covered by the decision of the Supreme Court in the case of Air India Statutory Corporation, etc. v. United Labour Union and Ors. 1997 I LLJ 113.

5. Opposing the reliefs claimed in the petition, learned Additional Solicitor-General strenuously contends that the provisions of the Act have no applicability to the activities of C.I.F.E. since it is performing the sovereign functions. At the first blush, the argument looked attractive, but, on deeper consideration, we find no substance on the same. Pointing out the activities of C.I.F.E., it was submitted that the research activities, assessment of marine living resource in Exclusive Economic Zone and oceanographic studies, as conducted by C.I.F.E. and detailed in the Affidavit of Director of C.I.F.E. show that this institute mainly and predominantly conducts regal and sovereign functions of the State.

6. Reference has also been made to the provisions of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zone Act, 1978, in particular provisions of Sections 7 and 5 thereof, in support of the contention that the institute is performing predominantly sovereign functions. The Act relied upon only lays down the limits of the Exclusive Economic Zone. It cannot be inferred therefrom that any activity being carried on the said zone by itself would amount to sovereign function.

7. Reliance has also been placed on the decision of the Supreme Court in Physical Research Laboratory v. K. G. Sharma, : (1997)IILLJ625SC where on consideration of the activities being performed by the said laboratory it was held that PRL is not an 'industry'. Here itself, we may notice the contention of learned Counsel for the petitioner that the decision in PRL's case was mainly based on the earlier-decision of the Supreme Court in the case of Sub-Divisional Inspector of Post v. Theyyam Joseph : (1996)IILLJ230SC .

8. It was contended by Mr. Singhvi that Theyyam Joseph's case is no longer good law, in view of the decision of the Supreme Court overruling Theyyam Joseph's case (see General Manager, Telecom v. A. Srinivasa Rao and Ors. 1998 I LLJ 255 (SC) it was thus contented that the respondents cannot rely upon PRL's case, though it is correct that Theyyam Joseph's case has been overruled but it is not necessary to go into the effect of it in the present case, since, in our view, the functions which were being considered and were subject-mater in PRL's case were regarding Space Research and the said laboratory was not rendering any service. The functions being performed, as to borne out from the affidavit filed on behalf of the Respondents by the C.I.F.E. are unlike the functions with which the Supreme Court was concerned in PRL's case. The present functions cannot be said to be sovereign in nature. In our view, the relevant factor is the nature of the activities being performed by the institute, and in view of the dominating nature test and other tests laid down in Bangalore Water Supply & Sewerage Board v. A. Rajappa. : (1978)ILLJ349SC which still holds the field, it is not possible for us to accept the contention put forth by learned Counsel for the Respondents. The object of the act is laudable. It is a welfare legislation. In case the contention put forth on behalf of the Respondents is accepted, it would lead to exclusion of the applicability of the Act to various organisations run by the Government or under the Government.

9. It also deserves to be noticed that, in the case relating to amenability of I.C.A.R. to the writ Jurisdiction, the stand of I.C. A.R. was that it is not a 'State' or 'instrumentality of State' and, therefore, it is not so amenable. The stand now taken is entirely contrary. Be that as it may, having regard to the nature of activities of C.I.F.E. it is not possible to accept the contention that the provisions of the Act are not applicable to it. If that be the position, the petitioner is entitled to the reliefs sought for.

10. In view of the above, we direct:

(i) The employees listed in Exhibit 'A' be absorbed and their services be regularised with effect from the date of their engagement.

(ii) The Central Advisory Board shall consider the case of the workmen in Exhibit 'B' and tender its advice to the Central Government within a period of 6 months and after 3 months from the receipt of advice, the Government, after consideration thereof, make on Order under Section 10 of the Act directing abolition of contract labour or for continuation thereof.

(iii) Until an order as aforesaid is passed by the Government and a period of three months thereafter services of employees listed in Exhibit 'B' shall not be dispensed with.

(iv) C.I.F.E. would be free to engage fresh contract labour after the present contract comes to an end but the services of these employees would continue for the aforesaid period.

11. Rule is made absolute in the above terms, leaving parties to bear their own costs.