Mahesh Kumar and Others vs The Union of India (UOI) and Others

Navaniti Prasad Singh, J.—The petitioners are admittedly employees of a contractor, who contract labourers and supply them to inter ali Jai Prakash Narayan International Airport for sweeping, cleaning and other works. They are in employment as such for over 15 years. They have filed this writ application for their absorption and protection of their employment. So far as the second aspect is concerned, there cannot be any dispute that they admittedly being employees of contractor and working in the establishment of respondents for over 15 years. They cannot be dispensed with except in accordance with the provisions of law relating to such employment. They have the statutory protection in that regard and it is the duty of the principal employer which in this would be (Air Port Authority) to ensure the compliance to statutory requirements by the Contract Employer and Protection of Service Conditions of the petitioner.

So far as, first prayer for absorption is concerned that was primarily based on circular No. 48 dated 17th April, 1998 issued by the Air Port Authority of India cannot be accepted. The circular, inter alia, provided that the workers earlier engaged by contractors on sweeping and cleaning jobs had to be absorbed with the Air Port Authority being the principal employer on such contract labour system for such employment being prohibited in terms of the Contract Labour Regulation Act. This circular in terms provides for absorbing workers like the petitioner. It is not in dispute that till date so far as petitioners are concerned they have not been absorbed. In my view, petitioners cannot get any benefit from the said circular as the said circular itself has lost all its potency and efficacy. The reasons are as follows.

It appears that in 1976 in exercise of powers purported to be conferred on the Central Government u/s 10 of the Contract Labourer Regulation Act, the Central Government issued a prohibition notification prohibiting employment of contract labour for sweeping, cleaning etc. work of perennial nature in Airport establishment. The matter was decided between the Airport Authorities and the Workers Union and reached the Apex Court leading to the decision of the Apex Court in the case of Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], A reference to the said decision would show that primarily three issues were raised therein. Firstly, keeping in view the nature of the organization which is the "appropriate government" under the Act. Secondly, whether the Central Government notifications of the year 1976 prohibiting employment of contract labour was valid and finally if it is held that such a notification was valid and the contract labour system abolished then the workers were entitled to be employed in the principal employer itself. All the three questions were answered in favour of the Workers Union by a Division Bench of three Judges. It was held that the appropriate government would be the Central Government. It was held that the notification issued by the Central Government in 1976 was valid and with regard to the third it was also held that though there was no statutory provision which obliged the principal employer to absorb the workers of the contract labourer that would be necessary consequence of abolition of the contract labour system. Here, I may point out that the circular dated 17th April, 1998 (Annexure-2) specifically refers to this judgment of the Supreme Court and said that the decision to absorb is taken pursuant to the said decision.

It appears that soon after the said decision was rendered by the Apex Court the question once again came up and the matter was then referred to a Constitution Bench for reconsideration of the judgment in the case of Air India Statutory Corporation. This laid to the decision of the Constitution Bench in the case of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., by the Constitution Bench. The Constitution Bench on each of the three issues decided in Air India Statutory Corporation case overruled the said decision. We are more concerned with the later two issues. In this case before the Constitution Bench validity of the year 1976 notification was issued as well, the Apex Court held the said notification to be bad. On the point of absorption the Apex Court held that even when a prohibition notification is issued it does not follow as a matter of course and no direction can be issued by any Court or authority obliging the principal employer to absorb the workers of contract labourer. Thus, on all four squares the judgment in the case of Air India Statutory Corporation (supra) was overruled. While delivering the said judgment in paragraph-125 in the case of Steel Authority (supra) the Apex Court held that they would be overruling the said judgment in the case of Air India Statutory Corporation (supra) prospectively. If any person had been absorbed pursuant to the earlier judgment or had been directed to be absorbed pursuant to the earlier judgment those positions would not be disturbed but directions to absorb which are pending compliance could not be given effect to. In sub para-6 of paragraph-25 a protection has however been given to employees of the contract labourer in the shape that if and when the authority decides to recruit new/fresh workers in the same stream of work they would give preference to the employees/workers of the contract labourers relaxing age and qualifications because of their past service, beyond this no other privilege was conferred much less their right to be disturbed. That being so the petitioners'' relief with regard to absorption cannot be granted.

In the result, the writ petition is disposed of with direction and observations, as noted above.