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Judgment
Tapan Kumar Dutt, J.—Heard the learned Advocate for the respective parties Facts of the instant case, briefly, are that the petitioners were
engaged in the respondent No. 1 company at its Kulty Works in the Town Engineering Department in 1978 and the petitioners have been
discharging their duties as Fitters, Mistri, Carpenter and Painter etc and that such duties were permanent in nature The petitioners'' case is that the
respondent No. 1 was not giving similar benefit to the petitioners like the permanent employees and the petitioners wanted to have their services
regularised since the respondent No. 1 has the practice of engaging contractors in various areas for making payment to the employees of the
company where works are permanent in nature The petitioners filed a writ petition in this Court in the year 1993 being C.R. No. 12477(W) of
1993 and by order dated 28 3 2000 an Hon''ble Single Judge was pleased to dispose of the writ petition wherein it was recorded inter alia that the
petitioners who are rendering services continuously over 10 years as contract labourers without any interruption sought for direct appointment by
the respondent employer and having been denied the said writ petition was filed. His Lordship was also pleased to observe that even if it is
assumed that the services of the writ petitioners are perennial in nature, that ipso facto does not create any right in favour of the petitioners for
being engaged or appointed by the principle employer. But in the event steps are taken under the Contract Labour (Regulation and Abolition) Act,
1970 to prohibit by appropriate notification, employment of contract labourers in the process of operation of other work in the establishment of the
respondent employer then of course, contract labourers who had been discharging such prohibited functions may be deemed to have acquired right
to get direct employment from the respondent employer but until such time prohibition is made by the notification in the Official Gazette no such
right accrues. His Lordship was pleased to dispose of the writ petition with the following observation:
... I grant liberty to the petitioners to approach the appropriate Government within a period of one month from today with a request to refer their
case to the committee for the purpose of investigation whether the employment given to the petitioners is liable to the prohibited in terms of the
provisions contained in Section 10 of the said Act. In the event the petitioners so approach the appropriate Government, the appropriate
Government shall within one month''s time decide whether to refer the matter to the committee or not to refer the same. Until two months from
today and until the report is submitted by the committee to the appropriate Government, in the event the appropriate Government decides to refer
the matter to the appropriate committee, the respondent employer shall not engage any one to do the jobs which are being rendered by the
petitioners in their replacement except by their permanent employees.
It appears from Annexure P-3 [a letter dated 26.09.2001 addressed by the Government of India, Ministry of Labour to the Regional Labour
Commissioner (C), Calcutta] to the writ petition that a representation dated 15.05.2000 was made by the petitioners wherein the petitioners had
requested for regularisation of their services in the respondent No. 1 company and the petitioner took the stand that they have completed 240 days
of working in perennial nature of job. It appears from the said Annexure P-3 that in the petitioners representation no indication was given regarding
the name of job performed by the petitioners and no request was made for abolition of contract labour system in the job in which they were
working and the appropriate Government under the said Act of 1970 has no powers to direct absorption of the contract labour in the
establishment of the principal Employer and that it was for the respondent No. 1 to consider their case for direct absorption. It further appears that
another representation dated 28.09.2000 was made by the petitioners wherein the petitioners made a request for abolition of contract labour in
certain jobs in the Town Engineering Department and township and another representation dated 07.12.2000 was also on similar lines. It further
appears from the said Annexure P-3 that the representation of the petitioners was forwarded to the State Government for appropriate action at
their end.
It also appears that another writ petition being W.P. No. 12836(W) of 2001 was filed by the writ petitioners and by order dated 05.10.2001
an Hon''ble Single Judge of this Court was pleased to dispose of the said writ petition by observing inter alia that ""As the matter is pending before
the appropriate authority, no interference is being made on the writ petition and I hope and I trust that the matter will be decided by the
appropriate authority in accordance with law expeditiously"".
The petitioners filed an application on 26.04.2004 before the Additional Labour Commissioner, West Bengal and Convener of the Committee
constituted under the State Advisory Committee, Contract Labour Board stating inter alia that the matter is pending before the learned State
Advisory Contract Labour Board for effective adjudication and praying for an interim order of status quo till the disposal of such application. It
appears that'' by letter dated 30.4.2004 the Additional Labour Commissioner, West Bengal and Convenor and Member-Secretary of the
Committee under the State Advisory Contract Labour Board wrote to the respondent No. 1 that status quo should be maintained in respect of the
service condition of the contract labours till the disposal of the case by the committee and the appropriate Government. In the said letter it was also
indicated that the committee constituted under the State Advisory Contract Labour Board is examining the issue and is expected to forward its
recommendation after hearing parties concerned.
The petitioners filed an application before the Additional Labour Commissioner, West Bengal and Convenor of the Committee constituted under
the State Advisory Committee Contract Labour Board wherein the petitioners stated that the respondent No. 1 is not allowing to put their
signatures in the Attendance Register with effect from 01.06.2004 although the petitioners have been working under the respondent No. 1 till that
date. In such application the petitioners prayed for an order to initiate a proceeding u/s 33A of the Industrial Disputes Act, 1947 against a Senior
Manager of the respondent No. 1 and also his associates and agents and the petitioners also prayed for an interim order directing the authority
concerned of the respondent No. 1 to see that no interference is created by the said respondent in the day-to-day rendering of services by the
petitioners to the respondent No. 1.
The present writ petition has been filed by the petitioner for commanding the respondent No. 7 to initiate a proceeding u/s 33A of the said Act
of 1947 against the said senior manager of the respondent No. 1 and also his associates and agents in the context of provisions of Sections 33 and
33A of the said Act of 1947 and also for a direction upon the respondents concerned not to interfere with the day-to-day rendering of services by
the petitioners to the respondent No. 1 and also allowing the petitioners to put their signatures on the Attendance Register.
It appears from the paragraph 4.4 of the affidavit-in-opposition filed on behalf of the respondent No. 1 that the respondent No. 1 does not
require the services of any contract labour and all the production activity of the company at the Kulty Unit was stopped since 1st April, 2003 and
the Board for Industrial and Financial Reconstruction has sanctioned a scheme of rehabilitation of the respondent No. 1 and such scheme directs
closure of the Kulty Unit and also sale of all assets including the plant and machinery at the Kulty Unit.
In paragraph 4.5 of the said affidavit it has been stated that the Kulty Unit has been finally closed. In paragraph 4.6 of the said affidavit it has
been stated that continuance of existing contracts and/or entering into fresh contract is being resorted to by the company only for the purpose of
compliance with orders of status quo passed by the Hon''ble Court in different proceedings although the company has hardly any work to perform
and the only job left with company at its Kulty Unit is the closing up operation consequent upon the closure of the Unit. In the said paragraph of the
said affidavit it has been stated that the company is finding it extremely difficult to pay to the contractors for the idle labour engaged by them and
the insignificant jobs which the company is still required to carry on at its township in Kulty can be got done by persons drawn from other
establishments of the company and for this the company cannot bear any financial burden and the said company does not need the services of the
petitioners.
The learned Advocate for the said respondents also submitted that the application filed by the writ petitioners u/s 33A of the said Act of 1947 is
wholly misconceived and the provisions of the said Sections 33 and 33A of the said Act of 1947 have no application in any proceeding pending
under the Contract Labour (Eegulation and Abolition) Act, 1970. The said learned Advocate also submitted that there is no question of
regularising the services of the petitioners in the respondent No. 1 company and the question of prohibiting contract labour in a closed unit does not
arise.
It is the case of the writ petitioners that the respondent No. 5 has issued a verbal order that the services of the petitioners are not required any
more on and from 1st May, 2004, and such order being a verbal order the said order could not be annexed to the writ petition.
After having heard the learned Advocate for the parties, a very basic question arises in this matter. The question is, whether the provisions of
Sections 33 and 33A can be made applicable to a proceeding pending under the Contract Labour (Regulation and Abolition) Act, 1970. Section
33 contemplates pendency of any conciliation proceeding before an Arbitrator or ""a Labour Court or Tribunal or National Tribunal in respect of
any industrial dispute. Now, the expressions ''conciliation proceeding'', ''conciliation officer'', ''Board'', ''Arbitrator'', ''Labour Court'', ''Tribunal'',
''National Tribunal'', ''industrial dispute'' and ''employer'' have specific connotations and have been defined in the said Act of 1947. The authorities
mentioned in the said Section 33 are all authorities under the said Act of 1947. The said Section 33 does not contemplate any proceeding pending
under the Contract Labour (Regulation and Abolition) Act, 1970. The authorities contemplated u/s 33A of the said Act of 1947 are also
authorities under the said Act, 1947 and the said Section 33A contemplates a situation where an employer contravenes the provisions of Section
If Section 33 is not attracted in the case then Section 33A cannot be applied. That apart, the pendency of proceeding as contemplated in
Section 33A does not include a proceeding under the said Act of 1970. In such circumstances, the application made by the writ petitioners u/s
33A of the Industrial Disputes Act, 1947 was a misconceived one and the said application is not maintainable.
This Court has also considered the various statements made in the sub-paragraphs of paragraph 4 of the affidavit-in-opposition and also the
statements made in the affidavit-in-reply and this Court is of the view that no interference is called for in this writ proceeding.
In view of the discussions made above, this Court finds that there is no merit in the writ application and the present writ application is.
accordingly, dismissed. There will, however, be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.