1994 Supreme(Guj) 112

Gujarat High Court
Judgename :A.P.RAVANI, N.N.MATHUR
GUJARAT WORKING CLASS UNION,bharuch - Appellant
Versus
STATE - Respondent
S.C.A. 6265 of 1991
Decided On : 04/13/1994

Headnote:High Court Rules, 1993 - Rule 2(10) - Hearing of petition under Art. 226 of the Constitution - When challenge to the constitutional validity of the Act is made in the petition - Amendment of the petition - Petitioner though not sought amendment but did not press the prayer seeking challenge to the constitutional validity of the Act - Held, it will not amount to amendment - Petition to be heard by Division Bench.

       There is difference between seeking permission to delete a prayer and making statement that the petitioner did not press the prayer. In this case the learned counsel for the petitioner states that he did not press the prayer, but he would like to argue the same point if permitted by the Court. Not to press a prayer does not amount to seeking amendment and deletion of the prayer. When a prayer is not pressed, the character of the petition remains the same. In such a situation all that may be necessary for the Court would be to record the statement of the counsel that he did not press the prayer and therefore the Court may reject the prayer as having not been pressed. Therefore the very basis of the contention that amendment was sought and the prayer was deleted does not exist. On this ground alone the preliminary point raised by the learned counsel for respondent No. 2 is required to be rejected. It is an admitted position that no amendment has been carried out in the petition. Therefore the petition as it stands today is entertainable by Division Bench of this Court. As far as the oral statement made is concerned, the fact remains that there is nothing on the record to show that the Division Bench accepted the statement and granted permission to the petitioner to amend the petition accordingly. Even if it is assumed that the Division Bench before which the statement was made had granted such permission, no such permission is reduced into writing and no written order is passed. Even if it is further assumed that without there being nothing on record, such amendment was prayed for and it was granted, then also, the fact remains that amendment has not been carried out and the prayer challenging the constitutional validity of section 10 of the Act remains on the record of the petition.

       [Paras 14 & 15]

       Contract Labour (Regulation and Abolition) Act, 1970 - Sec. 10 - Consultation with the Advisory Board - Petitioner seeking abolition of contract labour system in security staff of the company - Respondent State without consulting the report of the Advisory Board rejected the recommendation of abolition - Pretext that policy decision has been taken not to abolish contract labour system in security staff - No such policy decision produced before court - Held, consultation is mandatory under sec. 10 - In the instant case facts and circumstances reveal that no consultation was done with Advisory Board - Impugned decision of respondent State set aside.

       The consultation with the Advisory Board is mandatory. In the instant case, can it be said that there was effective and meaningful consultation with the Advisory Board? In the instant case what emerges from the record is that the Government has decided not to abolish the contract labour system in the security staff of respondent No. 2-Company mainly for the reason that it had taken policy decision to create a security force. It is also the case of the Government that needful was being done for the formation of such force by the Government. In the opinion of the Government such force would be more effective and reliable than the employee who may be member of local union and might be swayed with the feelings for his brother workers, and may permit damage or loss to the property of the establishment of vital importance to the nations economy. As indicated hereinabove, no such policy decision is placed on record of this petition. No particulars with regard to this policy decision are placed on record of the petition. Therefore adverse inference can legitimately be drawn against the Government to the effect that there is no such policy decision and if any such policy decision is there and the details with regard to the same are placed before the Court it would be adverse to the respondents. On this ground alone the decision of the Government not to abolish contract labour system in respect of security staff of respondent No. 2-Company is required to be quashed and set aside. Moreover, this alleged policy decision and the particulars with regard to the policy decision are not placed before the Advisory Board. There is no dialogue with the Board, much less any meaningful dialogue on this aspect. The views of the Advisory Board have never been ascertained by pointing out that the Government has taken such a policy decision. There is no interaction of views and thoughts on this point. There is no mutual exchange of thoughts between the Government and the Advisory Board on this alleged policy decision. Therefore, in facts and circumstances of the case, in substance, there is no consultation at all with the Board. In view of this position, the decision arrived at by the Government cannot be said to be in accordance with law and the same is required to be quashed and set aside.

       [Paras 27, 31 & 32]

       Constitution of India, 1950 - Art. 226 - Mandamus - Consultation with Advisory Board is a mandatory duty of the State - Mandamus can be issued for non compliance of the said duty.

       The Government is enjoined with a duty to take decision as to whether contract labour system should be prohibited in any establishment in relation to certain operations in any process, operation or any other work in any establishment? The Government is required to perform its duty in accordance with law. Once the Court finds that the duty has not been performed in accordance with law, the decision of the Government can be struck down and the Government can be directed to perform the duty in accordance with law. Whether the function is quasi-legislative or quasi-judicial is immaterial. Whenever there is failure to perform duty in accordance with law, mandamus can be issued. Hence the argument that the Court cannot issue mandamus in the instant case is rejected.

       [Para 34]

       Constitution of India, 1950 - Art. 226 - Petition under - Relief - Petitioner while seeking abolition of contract system want confirmation of all staff engaged under the contract system - Prayer partly allowed.

       In the result the petition is partly allowed. The decision of the Government not to abolish the contract labour system in respect of security staff of respondent No. 2-GNFC is quashed and set aside. The Government is directed to re-examine and reconsider its decision in accordance with law, preferably before 31st March, 1995. The prayer for directing the Government to issue order to GNFC-respondent No. 2 to absorb the members of the security staff as permanent workmen is refused. It will be open to State Government to consider this issue afresh. However, respondent No. 2-GNFC and respondent No. 6 - Contractor are directed not to terminate the services of the members of security staff either directly or through the device of termination of contract labour system or by changing the contractor till the Government takes decision as per the direction given by this Court.

       [Para 41]