Damodar Vally Corporation and Others vs Patit Pawan Tewary and Others

Satyabrata Sinha, J.—This appeal is directed against a judgment and order dated 17.6.99 passed by a learned Single Judge of this Court whereby and whereunder the writ application filed by the respondent-writ-petitioners was allowed directing, "The scope of the job entrusted upon the Committee was to make a suitable recommendation whether or not the employment of contract labour with the job/works entrusted, inter alia. upon the petitioner in the establishment of the said project be prohibited in view of the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. It has been stated that the said Committee has already submitted its recommendation. It is therefore, the Government of India which has to decide upon the matter now. Let the Governement of India decide the recomendation of the said Committe and take appropriate steps in pursuance therewith as quickly as possible but not later than two months from the date communication of this order. Until the Government of India decides on recomendation of the Committee, let Damodar Valley Corporation not engage any worker though contractor in replacement of the petitioners. Any decision, which is now to be taken by Government of India pursuant to this order. it is made clear, will relate back to the date of filing of the writ petition. This writ petition is, thus, allowed to the exlent indicated as above." Mr. P.K. Roy, learned Senior Counsel appearing on behalf of the appleant inter alia, submitted that the writ petitioner respondents have no legal and confoceable right to be absorbed in services. According to the learned counsel, in terms of the provisions of the Cotract Labour (Regulation and Aboltion) Act, 1970. It is for the appropriate Government to issue a notification presending employment of contract labour and even in terms of such notification, nobody can be directed to be appointed.

Mr. Maloy Kumar Basu, learnde Senior Counsel appearing on behalf of the repondents, however, submitted that the Central Government have already isssued a notification on 8th March, 2000 being S.O. 205(E) which read thus:

In exercise of the powers conferred by sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970(37 of 1970), the Central Government, after consulation with the Central Advisiory Contract Labour Board, hereby prohibits the employment of contract labour in the jobs or work, specified in the Schedule annexed herin, in the establishment of Durgapur of Damodar Valley Corporation with the effect from the date of publication of this notification in the Official Gazette.

SCHEDULE

Operation and maintanance jobs in water supply at 220 k.v. sub-station of Durgapur Thermal Power Station Purulia, Post Office (sic), Police Station, Durgapur, District Burdwan (West Bengal).

Cleaning and water supply in the plant of Majia Thermal Power Station of Damodar Valley Corporation."

The learned counsel contends that the petitioners-respondents come within the purview of item No. 2 of the schedule appended thereto.

There cannot be any doubt whatsoever that after the coming into force of the Contract Labour (Regulation and Abolition) Act, the appropriate Government alone is entitled to issue notification prohibiting employment of contract labour in terms of the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. The said notification has been issued.

In view of the judgment of the Apex Court in Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], the Apex Court has held that natural corollary of issuance of such notification would be that the contract labours engaged by the contractors would be absorbed by the -principal employer. The correctness of the aforementioned decision of the Apex Court has been doubted by the other Division Bench having regard to the earlier decision of the Apex Court in Bharat Petroleum Corpn. Ltd. Vs. Mumbai Shramik Sangha and Others, In the order passed by the Apex Court in Food Corporation of India, Bombay''s case (supra) a question has been raised even as regards the right of the contract labourers be automatically absorbed in the service under the principal employer. However, this court being bound by the law of precedent and the law laid down by the Supreme Court of India, must follow the decision of the Apex Court unless and until the same is over-ruled. Even in terms of the decision of Air India Statutory Corporation (supra), the absorption of the contract labourers by the principal employer, if any. would be upon the coming into force of the said notification and not prior thereto.

Mr. Roy, learned counsel submitted that having regard to the proposition of law laid down in Air India Statutory Corporation''s case (supra) even if the said decision is applicable to the facts of the case, that portion of the order of the learned trial Judge whereby and whereunder the doctrine of relating back had been a applied must be held to be bad in law.

Mr. Basu, learned counsel, however, submitted that the petitioners-respondents at all material times had been working as the contract labourers and thus when the writ application was filed, in the event of issuance of such notification by the appropriate government u/s 10 of the Contract Labour (Regulation and Abolition) Act, 1970, the writ-petitioners-respondent, would have right to be absorbed but as during the pendency of the writ application, contract of the contractor concerned had been terminated and another contractor had been appointed, the learned trial Judge had been appointed, the learned trial Judge had passed the said order. Mr. Roy, learned counsel, however, submitted that the work in question was being done by the department after termination of the contract of the contractor concerned. In this appeal this court is not in a position to enter into the aforementioned disputed question. Mr. Basu, learned counsel submitted that it was the writ-petitioner-respondents, who had applied before the appropriate Government for abolition of contract labour and interim order was passed in that regard by Kabir, J.

The right of the parties vis-a-vis the right of the third party, if any, must be determined by an appropriate forum inasmuch as in the event it is declared by this court that the writ-petitioners-respondent only were entitled to be absorbed in terms of the notification dated 8th March, 2000, the right of the other workmen who had been engaged by the contractor, if any, may be affected. We, therefore, are not in a position to hold as has been submitted by Mr. Basu, learned counsel, that in preference to the workmen who had been working immediately prior to the issuance of the notification dated 8th March, 2000. the writ-petitioner-respondents should be absorbed by the appellant herein. However, if the contention of Mr. Roy is correct that the work is being done departmentally, there cannot be any doubt that having regard to the fact that the writ application was pending when the pending when the interim order was passed, the right of the writ-petitioners-respondents will have to be determined having regard to the state of affairs as was existing at the relevant point of time. We. however, having regard to the fact that the correctness of the decision of the Apex Court in Air India Statutory Corporation (supra) is pending consideration, also observe that the absorption of the writ-petitioners-respondents. if any. shall abide by the decision of the larger Bench of the Supreme Court of India.

With the aforementioned observations, this appeal is disposed of without any order as to costs. Urgent xerox certified copy of this order be given on priority basis.

H. Banerji, J.

I agree.