IMPORTANT POINT
Power of abolishing the contract labour system is vested in the Government, therefore, High Court was wrong in giving such direction in writ petition which involved not only disputed questions of fact on rival contentions which could not be decided in writ but was also against the judgment of Constitution Bench in SAIL Case (2000) 1 SCC 1 and thus is liable to be set aside leaving it open to the Trade Union to move the appropriate Government or Industrial Adjudicator to consider the same in accordance with law.

Headnote:(i) Bombay Municipal Corporation Act, 1888-Sections 61(2)-Statutory duty on the corporation for removal of garbage-Solid Waste Management Department of Corporation doing this work partly itself and partly by contract labour-Registered Trade Union filing writ petition for abolition of contract labour, for regularisation of services of all workmen, to absorb all the workmen as regular and permanent workmen with retrospective effect and equality in terms of wages and service conditions-High Court granting the reliefs relying on Air India case (1997) 9 SCC 377-Whether correct? (No, as Air India case overruled by SAIL case (2000) 7 SCC 1) (See Paras 16 to 18).
       (ii) Contract Labour (Regulation and Abolition) Act, 1970-Section 10(2)-Constitution of India-Article 226-Writ petition by Trade Union against Municipal Corporation of Greater Bombay and others, complaining unfair contract labour practice in Solid Waste Management Deptt. of Corporation and demanding its abolition, status quo, regulation and permanent absorption on par with permanent workers-Involving disputed questions of fact-Allowed by High Court (See Para 8)-Whether impugned judgment and order of the High Court is correct in view of SAIL case (2000) 7 SCC 1? (No) (Paras 19 to 28)-Proper course-Union must seek the remedies from appropriate Government or the Industrial Adjudicator-Status quo to continue (Para 29) -Appeal allowed accordingly.
       Held : In our view, the conclusion of the High Court that the contract labour system in the present case was sham cannot be sustained in the light of what is stated above and particularly when the disputed questions of fact arose for consideration in the light of rival contentions raised by the parties. We have detailed them above to say so. (Para 20)
       The High Court having said earlier although the power of abolishing the contract labour system vested in the Government because of delay in doing so, there was no impediment to pass such an order itself. In para 45 of the judgment, the High Court states thus:-
       "We are inclined to direct that the workmen required for work in the Solid Waste Management Department should not fall within the purview of the Contract Labour (Regulation & Abolition) Act, 1970 at all, but that they should be absorbed as direct employees of the Bombay Municipal Corporation."
       This direction cannot be sustained not being consistent with the judgment of the Constitution Bench in SAIL case (supra). As laid down in the Constitution Bench judgment, absorption of contract labourers cannot be automatic and it is not for the court to give such direction. Appropriate course to be adopted is as indicated in para 125 of the said judgment in this regard. Thus having considered all aspects, we are of the view that the impugned judgment and order cannot be upheld. 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. (Paras 26 to 29)

JUDGMENT

Shivaraj V. Patil, J.-Leave granted.

2. This appeal is filed by the Municipal Corporation of Greater Mumbai challenging the correctness and validity of the impugned judgment and order made in the writ petition by the High Court. The writ petition was filed by a registered trade union called Kachara Vahatuk Shramik Sangh (hereinafter referred to as Union . It claims to represent 2000 workmen doing the work of lifting, transporting and dumping of debris, garbage, silt, house gully material etc., at the various dumping grounds of the Bombay Municipal Corporation. The appellant herein is the respondent No. 1 in the writ petition (hereinafter referred to as `Corporation ) and respondent Nos. 2-33 are different contractors who had been entrusted with the abovementioned work on contract basis. Respondent No. 34 is the State of Maharashtra and respondent No. 35 is the Contract Labour Board established under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act). Respondent No. 36 is the Commissioner of Labour for the State.

3. In the writ petition, it was emphasized that the nature of work carried out by the contract labour is perennial; merely because the Corporation has chosen to employ system of contract labour for discharging its statutory obligation, the contract labour does not cease to be workman of the principal employer - the Corporation. According to the writ petitioners (Union), if at all, contract labour system was to be permitted, it could be done only in accordance with the provisions of the CLRA Act; an employer could not be allowed to carry on work through contract labour unless provisions of the statute were strictly complied with and that the Corporation was carrying on the work through contract labour for almost 15 years even without registering itself as a principal employer, statute were that too through contractors who were not holding any licence under the CLRA Act. It is the further case of the Union that it kept on complaining to the Labour Commissioner about the gross violation of law and the legal rights of the workmen concerned. The Labour Commissioner, after investigation into the complaints, addressed letter dated 18.7.1998 to the Chief Secretary of the State recommending abolition of the contract labour system observing that Solid Waste Management Department is one of the sections of the Corporation, which is in operation for more than hundred years; in this Department the work of collection, transportation, dumping and disposal of the garbage, refuse, debris etc. is performed. The Labour Commissioner also stated in the letter that the Solid Waste Management Department had applied for registration as principal employer under the CLRA Act on 17th December, 1996. In the meanwhile, the writ petition had already been filed, so the said application was kept in abeyance. He also stated that none of the contractors had obtained licence under the provisions of the CLRA Act. He further pointed out that by the letters of 25th October, 1997 and 19th May, 1998, the Union had made representations to the Chairman of the State Contract Labour Advisory Board requesting him to advise the State Government to abolish the system of employment of contract labour in the solid Waste Management Department of the Corporation. In the letter of the Labour Commissioner, it is also stated that the work performed by the workers employed by the contractors is of regular and permanent nature. In the writ petition, it is also stated that the contract entered into by the Corporation with the contractors is a sham arrangement. The workmen concerned with the writ petition are in law and in fact employees of the Corporation, particularly so, when the task of sweeping and cleaning roads, gullies and removal of debris and garbage etc. are the statutory duties to be performed by the Corporation under Sections 61(C), 365 and 367 of the Bombay Municipal Corporation Act, 1888 (for short the Act ). It is als

Click Here to Read the rest of this document

2002 Supreme(SC) 482

Cases Referred (5)