The Workmen of Nttf Workers Union (Regd.) (Affiliated to Hind Mazdoor Kisan Panchayath) Represented by Its President, Mr. L. Kalappa Vs. the State of Karnataka Represented by Its Secretary, Department of Labour, - Court Judgment

Excerpt:
- karnataka scheduled castes & scheduled tribes (prohibition of transfer of certain lands) act, 1978, sections 4 & 5 :[p.d.dinakaran, c.j. & v.g.sabhahit,j] alienation of granted land held. : section 4 prohibits the alienation of the granted land notwithstanding anything provided in any law to the contrary. any agreement, contract or instrument for transfer of granted land made either before or after commencement of the act made in contravention of the terms of the grant is therefore declared void. the transfer is not only a nullity but also void. the transferee/alienee derives no right, title or interest in such land. section 4 therefore strictly prohibits any person from purchasing granted land after the commencement of this act. any transfer or occupation of the said land without previous permission from the government shall therefore be void. section 5 of the act enables the interested person to make an application before the assistant commissioner who after an enquiry as he deems necessary and is satisfied that the transfer of such granted land is null and void, by an order take possession of such land and evict the transferee and restore the same to the weaker sections and pass an order of resumption. section 5(3) lays down statutory presumption. the resumption under section 5 is incorporated to the extent that any person other than the grantee or his legal representatives who is in possession of the granted land, it shall be presumed until the contrary is proved that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of section 4 of the act. therefore, the burden is shifted on the alienee or his legal representatives to prove that the transfer of such land is not null and void. as per the scheme of the act it is obvious that the provisions of the act pursuant to sections 4 and 5 have to be implemented in spirit and substance speedily and effectively to protect the interest of the weaker sections of the community so that the economic interest of the weaker sections can be protected and preserved intact and they can be prevented from exploitation by vested interests. - any reference to the tribunal to decide the question of abolition of contract labour is clearly illegal. (5) on issuance of prohibition notification under section 10(1) of the clra act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before the tribunil by any contract labour in regard to conditions of service, the industrial adjudicator will hate to consider the question whether the contractor has been interposed either on the ground of hiving undertaken to produce any given result for the establishment or for supply of contract labour 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 thereunder, f the contract is found to be not genuine but a mere camouflage, the so called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it. in the constitutional bench decision noted above the apex court has clearly stated that section 10 of the clra act does tot provide tor an automatic absorption of the contract labour on issuing a notification by the appropriate government. it is ordered that any direction issued by the industrial adjudicator or the court including the high court for absorption of the labour following the judgment of the air india's case shall hold good and the same shall not be set aside or altered where already the order was given effect to.orderhuluvadi g. ramesh, j.1. this petition is filed by the nttf workers union seeking for to issue writ of mandamus or any other order directing the state government to take action under section 10 of the contract labour (regulation & abolition) act of 1970 (hereinafter referred to as clra act) and to issue appropriate orders for abolition of the contract labour.2. according to the learned counsel for the petitioner-union, m/s. nttf industries ltd., is engaged in manufacturing various tools and other equipment to leading automobile electrical manufacturing companies throughout the would; there are about 400 workers working in the said industry out of them, about 120 are contract workers; no separate service conditions have been framed except the standing orders; the standing orders do not provide for engagement of laborers through the contractors or on piece rate system; no license has been obtained by the said company as per section 7 of the clra act of 1970 although it is mandatory, as otherwise the principal employer is not entitled to employ contract labor as per section 9 of the act. it is further submitted that as per section 10 of the clra act the government is empowered to prohibit the contract labour system; the contract labour system was introduced and being continued for marry years which is perennial in nature. stating that workmen who are working through the contractors are not getting wage benefits and other statutory benefits, as a welfare measure, sought for to issue direction to the government to consider the case of the petitioner and to abolish the contract labour system. in support of his argument leaned counsel for the petitioner relied upon the decision of this court in w.p. no. 25277/94 and other connected matters deposed of on 12.3.98 to contend that it is for the appropriate authority to decide the question of abolition of the contract labour under section 10 of the act. any reference to the tribunal to decide the question of abolition of contract labour is clearly illegal.3. per-contra, the learned counsel appearing for the respondent-management relying upon the judgment in the case of steel authority of india v. national union water front workers reported in : 2001-ii-llj 1087 referred to sub-paras 5 and 6 of paragraph 119 wherein it is held that;(5) on issuance of prohibition notification under section 10(1) of the clra act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before the tribunil by any contract labour in regard to conditions of service, the industrial adjudicator will hate to consider the question whether the contractor has been interposed either on the ground of hiving undertaken to produce any given result for the establishment or for supply of contract labour 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 thereunder, f the contract is found to be not genuine but a mere camouflage, the so called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it.(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 labour 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 give preference to the erstwhile contract labour, 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.and submitted mat the aforesaid question requires an enquiry into the disputed question of tact by the tribunal on such raising the dispute. only on such finding the government shall proceed to abolish or to continue the contract labour system and the question of straightaway directing the government to consider the application for abolition under section 10 without there being an enquiry and finding thereon is not appropriate.4. in the light of the arguments advanced, the point that would arise for my consideration is, whether a direction could be issued to the government to consider the grievance of the petitioner regarding the abolition of the contract labour as per section 10(1) of the clra act or whether the petitioner ha to raise an industrial dispute to have a finding on that and the to move the government5. the main grievance of the petitioner is that althogh the work is perennial in nature the management instead of extracting the work by appointing the regular workman extracted the work through the labour contractor which is opposing to the provisions of the clra act of 1970, as such, a direction has to be issued to the government to take a decision on the application tiled by the petitioner to abolish the contact labour system.6. it is seen that the petitioners are indirectly seeking for absorption of their services to the company by abolishing the contract labour system and engaging their services through the contactor. in the constitutional bench decision noted above the apex court has clearly stated that section 10 of the clra act does tot provide tor an automatic absorption of the contract labour on issuing a notification by the appropriate government. section 10(1) prohibits the employment of contract labour in any process, operation or other work in any establishment. consequently, the principal employer cannot be required to order for absorption of the contract labour working in the concerned establishment and also overrule the judgment of the air india's case prospectively. it is ordered that any direction issued by the industrial adjudicator or the court including the high court for absorption of the labour following the judgment of the air india's case shall hold good and the same shall not be set aside or altered where already the order was given effect to.7. however, on issuance of prohibition notification under section 10(1) of the clra act prohibiting employment of contract labour or otherwise, an industrial dispute brought before it by any contract labour, the industrial adjudicator will have to consider the question whether the contract has been interposed or not. if the contract is found to be not genuine but a mere camouflage the so-called contract labour will have to be treated as employee of the principal employer who shall be directed to regularise the services. in view of the ratio laid down by the apex court in the latest constitutional bench decision there has to be a finding as to whether the engagement of the work to the contractor is only a camouflage to avoid the regular appointment or it is a genuine necessity. in this regard it is for the petitioner to seek reference to raise the dispute before the tribunal and as a matter of tact finding the tribunal has to give a finding as to its genuineness or otherwise of continuing the contract labour and to find out whether there is exploitation by way of contract labour and if it is found that it is only a camouflage then necessary orders have to be passed by the tribunal for observing the services of the workmen. seeking a direction to the government to straightaway issue notification only on the point that there is exploitation by the management may not be appropriate with regard to the tactual position of law laid down by the apex court. it is for the petitioner-union to raise the dispute seeking reference through the government and on such reference it is for the tribunal to dispose of the matter in accordance with law, as noted, after enquiry to the effect that engaging services of the workmen through the contractor is a camouflage or genuine. on such finding given by the tribunal it is for the petitioner to seek for an appropriate remedy or for absorption or otherwise and it would be subject to decision of the tribunal or this court as the case may be on such order passed by the tribunal if it is being assailed.8. in that view of the matter, petition is disposed of in the above terms directing the petitioner to approach the tribunal through the government seeking for reference of the matter.

Judgment:
ORDER

Huluvadi G. Ramesh, J.

1. This petition is filed by the NTTF workers union seeking for to issue writ of mandamus or any other order directing the State Government to take action under Section 10 of the Contract Labour (Regulation & Abolition) Act of 1970 (hereinafter referred to as CLRA Act) and to issue appropriate orders for abolition of the contract labour.

2. According to the learned Counsel for the petitioner-Union, M/s. NTTF Industries Ltd., is engaged in manufacturing various tools and other equipment to leading automobile electrical manufacturing companies throughout the would; there are about 400 workers working in the said industry out of them, about 120 are contract workers; no separate service conditions have been framed except the standing orders; the standing orders do not provide for engagement of laborers through the contractors or on piece rate system; no license has been obtained by the said company as per Section 7 of the CLRA Act of 1970 although it is mandatory, as otherwise the principal employer is not entitled to employ contract labor as per Section 9 of the Act. It is further submitted that as per Section 10 of the CLRA Act the Government is empowered to prohibit the contract labour system; the contract labour system was introduced and being continued for marry years which is perennial in nature. Stating that workmen who are working through the contractors are not getting wage benefits and other statutory benefits, as a welfare measure, sought for to issue direction to the Government to consider the case of the petitioner and to abolish the contract labour system. In support of his argument leaned Counsel for the petitioner relied upon the decision of this Court in W.P. No. 25277/94 and other connected matters deposed of on 12.3.98 to contend that it is for the appropriate authority to decide the question of abolition of the Contract Labour under Section 10 of the Act. Any reference to the Tribunal to decide the question of abolition of contract labour is clearly illegal.

3. Per-contra, the learned Counsel appearing for the respondent-Management relying upon the judgment in the case of Steel Authority of India v. National Union Water Front Workers reported in : 2001-II-LLJ 1087 referred to sub-paras 5 and 6 of paragraph 119 wherein it is held that;

(5) on issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before the Tribunil by any contract labour in regard to conditions of service, the industrial adjudicator will hate to consider the question whether the contractor has been interposed either on the ground of hiving undertaken to produce any given result for the establishment or for supply of contract labour 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 thereunder, f the contract is found to be not genuine but a mere camouflage, the so called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it.

(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 labour 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 give preference to the erstwhile contract labour, 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.

and submitted mat the aforesaid question requires an enquiry into the disputed question of tact by the Tribunal on such raising the dispute. Only on such finding the Government shall proceed to abolish or to continue the contract labour system and the question of straightaway directing the Government to consider the application for abolition under Section 10 without there being an enquiry and finding thereon is not appropriate.

4. In the light of the arguments advanced, the point that would arise for my consideration is, whether a direction could be issued to the Government to consider the grievance of the petitioner regarding the abolition of the contract labour as per Section 10(1) of the CLRA Act or whether the petitioner ha to raise an industrial dispute to have a finding on that and the to move the Government

5. The main grievance of the petitioner is that althogh the work is perennial in nature the Management instead of extracting the work by appointing the regular workman extracted the work through the labour contractor which is opposing to the provisions of the CLRA Act of 1970, as such, a direction has to be issued to the Government to take a decision on the application tiled by the petitioner to abolish the contact labour system.

6. It is seen that the petitioners are indirectly seeking for absorption of their services to the company by abolishing the contract labour system and engaging their services through the contactor. In the constitutional bench decision noted above the Apex Court has clearly stated that Section 10 of the CLRA Act does tot provide tor an automatic absorption of the contract labour on issuing a notification by the appropriate Government. Section 10(1) prohibits the employment of contract labour in any process, operation or other work in any establishment. Consequently, the principal employer cannot be required to order for absorption of the contract labour working in the concerned establishment and also overrule the judgment of the Air India's case prospectively. It is ordered that any direction issued by the industrial Adjudicator or the Court including the High Court for absorption of the labour following the judgment of the Air India's case shall hold good and the same shall not be set aside or altered where already the order was given effect to.

7. However, on issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, an industrial dispute brought before it by any contract labour, the industrial adjudicator will have to consider the question whether the contract has been interposed or not. If the contract is found to be not genuine but a mere camouflage the so-called contract labour will have to be treated as employee of the principal employer who shall be directed to regularise the services. In view of the ratio laid down by the Apex Court in the latest constitutional bench decision there has to be a finding as to whether the engagement of the work to the contractor is only a camouflage to avoid the regular appointment or it is a genuine necessity. In this regard it is for the petitioner to seek reference to raise the dispute before the Tribunal and as a matter of tact finding the Tribunal has to give a finding as to its genuineness or otherwise of continuing the contract labour and to find out whether there is exploitation by way of contract labour and if it is found that it is only a camouflage then necessary orders have to be passed by the Tribunal for observing the services of the workmen. Seeking a direction to the Government to straightaway issue notification only on the point that there is exploitation by the Management may not be appropriate with regard to the tactual position of law laid down by the Apex Court. It is for the petitioner-Union to raise the dispute seeking reference through the Government and on such reference it is for the Tribunal to dispose of the matter in accordance with law, as noted, after enquiry to the effect that engaging services of the workmen through the contractor is a camouflage or genuine. On such finding given by the Tribunal it is for the petitioner to seek for an appropriate remedy or for absorption or otherwise and it would be subject to decision of the Tribunal or this Court as the case may be on such order passed by the Tribunal if it is being assailed.

8. In that view of the matter, petition is disposed of in the above terms directing the petitioner to approach the Tribunal through the Government seeking for reference of the matter.