All India Casual Workers Union And Ors. vs Union Of India (Uoi) And Ors. on 30 August 2006

Delhi High Court
All India Casual Workers Union And Ors. vs Union Of India (Uoi) And Ors. on 30 August, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been filed by the petitioner with a prayer that this Court should issue a writ of certiorari and direct that the workman employed by contractor should be considered in continuous service of the principal employer. A prayer is also made that the letter dated 10.08.2006 terminating the contract between principal employer and contractor be quashed. The other prayer is that the court should give direction for regularizing the workers by the principal employer and to pay them equal wages for doing similar and identical work as to other regular employees.

2. Briefly, the facts are that one Sparkling Enterprises, respondent No. 5, was having a contract of maintenance of kitchen and allied areas of Ashoka Hotel. This contract was being given from time to time by floating open tenders. Vide letter dated 10.08.2006, management of Ashoka Hotel informed respondent No. 5 that tendering process was in progress for awarding various job contracts and till the tendering process is completed, i.e. by 31.08.2006, the contract of respondent No. 5 was extended. However, on 31.08.2006 afternoon, respondent No. 5 should withdraw the entire manpower deployed by it in Ashoka Hotel under a written conformation to the management and send it along with the bill up to 31.08.2006.

3. After receipt of this letter, respondent No. 5 issued a circular to the employees that it had received letter dated 10.08.2006 and since it had been called upon to withdraw the entire manpower by Ashoka Hotel, w.e.f. 31.08.2006, afternoon, it was forced to dispense with the services of the workman w.e.f. 31.08.2006 afternoon. This circular is dated 23.08.2006. This petition is filed by union of casual worker, its cashier and propaganda secretary. The petitioners have prayed to this Court that all the workmen should be directed to be regularized and the letter terminating the contract should be quashed.

4. I consider that the petitioner had no locus standie to challenge the validity of letter dated 10.08.2006 as there is no privity of contract between Ashoka Hotel and the petitioner. Only respondent No. 5 could have challenged the validity of letter dated 10.08.2006. As far as regularization of workmen of contractor by principal employer is concerned, law has been laid down by Supreme Court in Steel Authority of India Ltd. v. Water Front Workers’ Union as under:

125 (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 the 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 establishment concerned.
(4) We overrule the judgment of this Court in Air India Statutory Corpn. v. United Labour Union prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India Case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.

(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit there under. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age approximately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.

126. We have used the expression ‘industrial adjudicator’ by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review. (para 126)

5. This writ petition is not maintainable. However, the petitioners are at liberty to raise the dispute before the Industrial Tribunal after getting it referred from the appropriate Government. Petition is hereby dismissed. No orders as to cost.