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2022 Supreme(Cal) 1221
IN THE HIGH COURT AT CALCUTTA
T.S. Sivagnanam, Hiranmay Bhattacharyya, JJ.
Union Of India & Anr. - Appellants
Versus
Railway Contractor Labour Union (west Bengal) & Ors. - Respondents
M.A.T No. 1532 of 2018, I.A. No. CAN 2 of 2019 (Old No. CAN 3229 of 2019)
Decided On : 05-12-2022
Ashok Kr. Chakraborty, Advocate, Sanajit Kumar Ghosh, Advocate, Arunabha Ghosh, Advocate, Swarup Pal, Advocate, Guru Saday Dutta, Advocate, Anish Roy, Advocate
The jurisdiction to direct regularization or grant of permanent employment to contract labour lies with the Industrial Tribunal, and the writ Court does not have the jurisdiction to grant such relief.
Headnote:
Contract Labour - Regularization of Employment - Contract Labours (Regulation & Abolition) Act, 1970 - Section 10
Fact of the Case:
The respondents/trade union filed a writ petition seeking a mandamus to withdraw an order passed by the appropriate authority under the Contract Labours (Regulation & Abolition) Act, 1970, which decided not to abolish employment of contract labour in certain jobs/works. The writ Court directed the appellants to grant permanent employment to all the workmen represented by the trade union.
Finding of the Court:
The Court found that the relief granted by the writ Court directing regularization or grant of permanent employment to the members of the trade union was without jurisdiction, and the appropriate forum for the trade union to raise a dispute was the Industrial Tribunal.
Issues: The main issue was the jurisdiction of the writ Court to direct regularization or grant of permanent employment to contract labour represented by the trade union.
Ratio Decidendi: The Court relied on the decision of the Hon'ble Supreme Court in Steel Authority of India Limited & Ors. vs. National Union Waterfront Workers & Ors. and the decision of the Hon'ble Full Bench of the Court in Awadhesh Singh vs. Union of India, which established that disputed questions of fact related to contract labour should be adjudicated by the Industrial Tribunal.
Final Decision: The appeal was allowed, the order passed by the writ Court was set aside, and the writ petition was dismissed with liberty to the trade union to raise the dispute before the appropriate Industrial Tribunal.
JUDGMENT
1. This intra-Court appeal filed by the Union of India and Anr. is directed against the order dated 27th August, 2018 in WP No.251 (W) of 2017. The said writ petition was filed by the respondents/trade union praying for issuance of writ of mandamus to withdraw the order dated 13th July, 2016 passed by the appropriate authority under the provisions of Contract Labours (Regulation & Abolition) Act, 1970 (for short 'the Act') holding that the case does not merit issuance of a notification under Section 10 of the Act and accordingly, it was decided by the Central Government to bring the 'Appropriate Government' under the Act and not to abolish employment of contract labour in jobs/works on electric machine for automatic fare collection and passenger control system in the establishment of Metro Railways, Kolkata.
2. The learned writ Court had allowed the writ petition not confining to the prayers sought for by the respondents/trade union but proceeded a step further by directing the appellants to grant permanent employment to all the workmen represented by the trade union within a time frame. The correctness of the said order has been challenged in this appeal.
3. We have heard Mr. Ashok Kr. Chakraborty, learned Additional Solicitor General duly assisted by Mr. Sanajit Kr. Ghosh, learned advocate for the appellants and Mr.Arunabha Ghosh, learned senior advocate assisted by Mr. Swarup Pal, learned advocate representing the respondents/trade union.
4. The main issue is no more res integra. In the decision of the Hon'ble Supreme Court in Steel Authority of India Limited & Ors. vs. National Union Waterfront Workers & Ors. reported in (2001) 7SCC 1 the Hon'ble Supreme Court pointed out as follows.
'125. The upshot of the above discussion is outlined thus:
(1)(a) Before 28-1-1986, the determination of the question whether the Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression 'appropriate Government' as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry, or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government;
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government company/undertaking concerned or any undertaking concerned is included therein eo nominee, or
(ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by a railway company; or (c ) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State ion which that other establishment is situated, will be the appropriate Government.
2(a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government:
(1) After consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question, and
(ii) other relevant factors including those mentioned in sub-section (2) of Section 10;
(b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requir
