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Judgment
S. Nagamuthu, J.—The petitioner is a Government of India undertaking Company and is having its unit at Thiruchirapalli. The Company has
registered itself as a principal employer under the Contract of Labour (Regulation and Abolition) Act of 1970 and is engaged in the manufacture of
High Pressure Boilers, Boiler Component, Balls and Auxiliaries etc.
The third respondent is a society known as ""BHEL Complex Co-Operative Labour Contract Society Limited"" governed by the Tamilnadu Co-
operative Societies Act and the same is administered by a Board of Directors. Now it is understood that it is administered by A Special Officer
duly appointed. The third respondent is one of the labour contractors of the petitioner Company and the services of the members of the third
respondent are engaged by the petitioner for maintenance of its buildings like white washing, loading and unloading, sanitation and sweeping etc., in
terms of Contract Labour (Regulation and Abolition) Act of 1970. The services of employees of the third respondent society are regulated by the
third respondent society itself.
It is the further case of the petitioner that the petitioner never exercised control or supervision over the employees of the third respondent society
who are engaged as contract labours by the petitioner.
The second respondent herein is BHEL Society Sanitary Workers Union, registered as a Trade union. The second respondent filed W.P. No.
5398 of 1995 for regularising the services of the members of the Union who were employed as sweepers and scavengers in the petitioner''s
concern in view of G.O.Ms. No. 2082, Labour and Employment Department, dated 19.9.1988. In the said Writ Petition, the 2nd respondent
Union had categorically admitted that all the contract labourers engaged by the petitioner company were workers only under the third respondent
contractor.
During the pendency of the said Writ Petition, the second respondent Union filed another Writ Petition in W.P. No. 10933 of 1999 seeking to
quash the proceedings of the petitioner in Ref.SSTP:DGM:PRS:MP dated 27.5.1999 wherein the petitioner declined to regularise the services of
the contract labourers engaged during the contract. The said Writ Petition was filed once again based on G.O.Ms. No. 2082 referred to above.
While so, the G.O.Ms. No. 2082 dated 19.8.1988 was challenged before the Hon''ble Supreme Court in L & T Mc.Neil Ltd. v. Government
of Tamil Nadu. By Judgment dated 30.1.2001, the Hon''ble Supreme Court quashed the said G.O.,. The judgment is reported in L and T Mc.
Neil Ltd. etc. Vs. Government of Tamil Nadu, .
In view of the above Judgment of the Hon''ble Supreme Court, when Writ Petition Nos. 5398 of 1995 and 10933 of 1999 came up for final
hearing, a learned single Judge of this Court by order dated 25.7.2007 passed the following order:
Since the issues raised in both the Writ Petitions are common, both the Writ Petitions are taken up together for hearing and disposal by this
common order, which basis the writ petitions were filed had been quashed quashed by the Supreme Court. However, in view of the directions
issued by the Supreme Court in Municipal Corporation''s case (cites supra), liberty is given to the petitioner union to move the State Government
or the industrial adjudicating authority within four weeks from today and in case such applications are filed, the same shall be considered by them
and orders passed within a period of six months thereafter. Till such time orders are passed as directed above, status quo that prevails as on today
shall continue. In the event, no application is filed as directed above, the order of status quo shall automatically stand vacated. It is also made clear
that this order will not prevent the State Government to proceed in accordance with law in the matter of abolition of the contract labour system.
No costs. consequently, W.M.P. Nos. 8872 and 8873 of 1995 are also dismissed.
Subsequent to the above said order passed by the learned single Judge, the second respondent union raised industrial dispute u/s 2(k) of the
Industrial Disputes Act before the Deputy Commissioner of Labour Thiruchirapalli and for the first time in the said dispute, the Union claimed that
members of the third respondent society were directly employed by the petitioner company and the contract said to have been entered into
between the third respondent and the petitioner is sham and nominal. The said petition was entertained by the Deputy Commissioner and by means
of the impugned order u/s 10 of the Industrial Disputes Act, he has referred the same to the Industrial Tribunal for adjudication. The said order of
reference is under challenge in this Writ Petition.
I have heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondents 1 and 3. The learned
Counsel on record for the second respondent is not present but his junior informs the Court that the Counsel on record has no instructions from the
second respondent and so he is not in a position to argue the matter. This Writ Petition has been pending from the year 2004 and it was listed on
several occasions for final hearing. Recently, the case was listed on 18.11.2008, 26.11.2008 and also today.
Having regard to the above background, I do not propose to adjourn the case to issue one another notice to the second respondent as it is not
at all necessary. If the second respondent is really interested in the case, the second respondent would have very well made some alternative
arrangements to argue the case. Therefore, on hearing the arguments of the learned Counsel appearing for the petitioner and the learned Counsel
appearing for the respondents 1 and 3 and after perusing the records, I proceed to dispose of the Writ Petition.
The main contention of the learned Senior Counsel appearing for the petitioner is that the dispute raised by the second respondent would not
fall within the ambit of industrial dispute as defined in the Industrial Disputes Act and therefore, the reference made is not at all legally sustainable.
The learned Senior Counsel would rely on the counter affidavit filed on the earlier occasion in W.P. No. 5398 of 1995 and W.P. No. 10933 of
1999 wherein categorically, the second respondent Union has stated that the members of the third respondent society have been engaged by the
petitioner as contract labours and therefore, there is no relationship of employer and employee between the petitioner and the said contract labours
viz, members of the third respondent. He would rely on the judgment of the Hon''ble Supreme Court in National Engineering Industries Ltd. Vs.
State of Rajasthan and Others, wherein the Hon''ble Supreme Court has held that unless the dispute raised is an industrial dispute falling within the
scope of the Act, reference made u/s 10 is not at all sustainable under law.
Applying the said law laid down by the Hon''ble Supreme Court, now I have to decide whether the dispute raised in this case is an industrial
dispute.
In Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., , the Hon''ble Supreme
Court has held that the contract labours would not fall within the ambit of the Act so as to have the reference made u/s 10 of the Act. Relevant
portion of the judgment is as follows:
(3) Neither section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for
automatic absorption of contract labour on issuing a notification by appropriate Government under Sub-section (1) of Section 10 prohibiting
employment of contract labour, in any process, operation or other work in any establishment. Consequently, the principal employer cannot be
required to order absorption of the contract labour working in the concerned establishment.
In this case, it is now claimed for the first time in the industrial dispute that the contract said to have been entered into between the third
respondent and the petitioner is sham and nominal. The said stand cannot be accepted for the simple reason that as rightly pointed out by the
learned Counsel for the petitioner, in the earlier Writ Petitions viz., W.P. No. 5398 of 1995 and 10933 of 1999, the second respondent Union has
categorically stated that they are the members of the third respondent society and there was a contract between the third respondent society and
the petitioner company.
It has been further admitted that as per the contract entered into, the members of the second respondent union were engaged as contract
labours by the petitioner through the third respondent. When this is the categorical admission, it is too late for the second respondent now to take a
different stand. Therefore, undoubtedly, the members of the second respondent union are only contract labours who were engaged by the
petitioner through the society viz., the third respondent. When that be so, as per the law laid down by the Hon''ble Supreme Court as extracted
above, there is no such relationship of employer and workmen between the petitioner and the contract labours. As a corollary, I am of the
confirmed view that the contract labour would not fall within the ambit of workmen as against the petitioner so as to attract Section 10 of the
Industrial Disputes Act. Therefore, the impugned order is not sustainable and the same is without jurisdiction.
In ANZ Grindlays Bank Ltd (now known as Standard Chartered Grindlays Bank Ltd.) Vs. Union of India (UOI) and Others, , the Hon''ble
Supreme Court has held that a Writ Petition challenging the order of reference made u/s 10 of the Industrial Disputes Act is not maintainable in the
event it is contended that the said reference is without jurisdiction. It is needless to say that the Deputy Commissioner gets the jurisdiction to refer
the dispute u/s 10 of the Act if only the dispute is an industrial dispute. When it is not an industrial dispute, the Deputy Commissioner lacks
jurisdiction to refer u/s 10 of the Act and thus, the order passed by him is without jurisdiction, which can be certainly challenged under Article 226
of the Constitution of India.
In view of the above said position of law and in the above background of the facts enumerated above, I hold that the impugned order is not at
all sustainable and therefore, the same is liable to be quashed and accordingly, it is quashed. The Writ Petition is allowed. Connected
Miscellaneous Petition is closed. No costs.