Government of Andhra Pradesh and Another vs Bhadrachalam Paper Boards Ltd. and Others

Jeevan Reddy, J.—Writ Petitions Nos. 465 of 1982 and 5595 of 1981, form which these two writ appeals arises, were allowed by the learned single judge following his judgment in W.P. No. 786 of 1981, dated February 4, 1983. These writ petitions were filed by (1) Bhadrachalam Paper Boards Ltd., and (2) Andhra Steel Corporation, respectively, for quashing certain notifications issued u/s 10 of the contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as "the Act").

G.O. Ms. No. 792 dated July 19, 1977 and G.O. Ms No. 287 dated May 7, 1981 were issued by the Government of Andhra Pradesh abolishing contract labour in certain processes and operations in Bhadrachalam paper Boards Ltd. The validity of these G.Os was challenged by the said company in W.P. No. 465 of 1982. By G.O. Ms. 375, dated June 5, 1981 issued u/s 10 of the said Act, the Government abolished contract labour in certain processes and operations in Andhra Steel Corporation. Visakhapatnam. W.P. No. 5595 of 1981 was filed by the said company challenging the validity of the said notification. The learned Judge quashed the said notifications following an earlier judgment of his W.P. No. 786 of 1981 in the case of West Godavari Co-operative Sugars Ltd., wherein the learned Judge held that by virtue of Section 119 of the Factories Act, 1948, the Contract Labour (Regulation and Abolition) Act, 1970 does not apply to the factories of the writ petitioners. The learned judge held that by virtue of the amendment of the definition of ''worker'' in section 2(1) of the Factories Act, by the Factories (amendment) Act 94 of 1976, the Contract Labour Act ceased to apply to factories to which the Factories Act Applies. It was accordingly, held that the notifications issued u/s 10 of the contract Labour Act abolishing contract labour in certain processes and operations in the Factories of the two writ petitioners, are incompetent and without jurisdiction. The correctness of the said view is questioned by the Government in these two writ appeals. It is also brought to our notice that an appeal was sought to be preferred against the judgment in W.P. No. 786 of 1981, but there was some delay in filing the writ appeal, and the appeal Court refused to condone the delay, with the result that the writ appeal could not be numbered or admitted.

The Factories Act, 1948 was enacted by Parliament to consolidate and amend the law regulating labour in factories. The Act obliges the occupier of every factory to abide by, and observe the several regulatory measures provides by the act in the interests of health, safety and welfare of the workers, working therein. Chapter III provides several measures for cleanliness., disposal of wastes and effluents. Ventilation and temperature, dust and fumes, artificial humidification, overcrowding, lighting, and drinking water, etc. Chapter IV provides several measures in the interests of safety of workers who have to handle and operate machinery. Chapter V provides several welfare measures, like washing facilities, facilities for storing and drying clothing, first-aid appliances, canteens, rest-rooms and lunch-rooms, creches, etc. Chapter VI prescribes the working hours for adults, while Chapter VII prohibits the employment of young persons. Chapter VIII provides for annual leave with wages. For enforcing and implementing the provisions of the Act several officers can be appointed, as provided in Chapter II. Chapter X provides for penalties in case of contravention of the provisions of the Act.

Rules have also been made by several States with a view to carry out the purpose of the enactment.

The expression "worker is defined in clause (1) of Section 2 of the Factories Act, in the following words :

"(1) ''worker'' means a person employed directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to or connected with, the manufacturing process, or the subject of the manufacturing process, but does not include any member of the armed forces of the Union."

The words within brackets, namely, "including a contractor" were added by the Factories (Amendment) Acts 94 of 1976. The effect of the said amendment is that even a worker engaged through a contractor and working in a factory falls within the definition of "worker" for the purpose of the Factories Act. All the beneficial provisions in the Act apply with equal force to such workers/labourers employed through a contractor. This was done evidently through a to ensure that the benefits of the several regulatory and welfare measures, provided by the Act, extends to such contract labour as well. Prior to the amendment, an occupier of a factory could well say that the contract labour was no right to avail of any of the benefits provided by him as required by the Act; for example, the canteen facility. Section 46 obliges every occupier of a factory employing more than 250 workers ordinarily to provide a canteen and to supply foodstuffs in accordance with the standards, and at charges specified by the Government in that behalf, to such workers. It is well known that the food items supplied in these canteens are made available at almost nominal charges. If the contracts-labour is not included within the meaning of the expression "worker", the contract labour would not be entitled to the said benefit. But now, by virtue of the Factories (Amendment) Act 94 of 1976, the contract labour having been included within the definition of "worker", they too will be entitled to the said benefit-indeed, to all the benefits provided by the Act, Section 119 of the Factories Act, which was reintroduced by the aforesaid Factories (Amendment) Act 94 of 1976, gives an overriding effect to the provisions of the Factories Act, notwithstanding anything inconsistent therewith contained in the Contract Labour Act. The section reads thus :

"119. Act to have effect notwithstanding anything contained in Act 37 of 1970. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Contract Labour (Regulation and Abolition) Act, 1970."

It would be evident from a reading of the said provisions that over-riding effect is given to the provisions of the Factories Act only where its provisions are found inconsistent with the provisions contained in the Contract Labour Act. The section does not say that, to the factories to which the Factories Act applies, the Contract Labour Act shall not apply. Only to the extent of inconsistency between the provisions of both enactment it is provided that the Factories Act shall have primacy. It is, therefore, necessary to examine, what are the provisions in the Contract Labour Act, and which of them, are inconsistent with the Factories Act.

The Contract Labour (Regulation and Abolition) Act, 1970 being Central Act 37 of 1970, was enacted to regulate the employment of contract labour in certain establishments, and to provide for its abolition in certain circumstances, and for matter connected therewith. The Act has a twofold purpose, namely, abolition of contract labour altogether in certain situations and regulation of contract labour where its abolition is either not practicable or desirable. Section 10 represents the first category. It provides for prohibition of employment of contract labour According to sub-section (1) thereof, the appropriate Government may, after consultation with the Central Board or the State Board, as the case may be, "prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment." Sub-section (2) prescribes the several circumstances and factors which the appropriate Government shall take into account before issuing a notification prohibiting the employment of contract labour under sub-section (1). Section 3 provides for constitution of a Central Advisory Board while Section 4 provides for constitution of a State Advisory Board. Where contract labour is not abolished, the Act provides for its regulation. Regulation involves licensing of contractors who supply contract labour (Chapter IV) and obligating the establishment to provide several facilities and welfare measures for such contract labour, including canteen, rest-rooms, and other facilities like providing wholesome drinking water, latrines, urinals, washing facilities, etc. It also contains a provision for full and prompt payment of wages (Chapter V). In the interest of proper enforcement of the Act Chapter III requires the establishments employing contract labour to get themselves registered, and to abide by the regulatory measures contained therein. Chapter VI provides for penalties and procedure. Chapter VII provides for certain incidental and miscellaneous matters.

Rules have been made under the Act, called "the Contract Labour (Regulation and Abolition) Central Rules, 1971", Chapter V whereof requires the establishment employing contract labour to provide certain facilities including canteens, dining-halls, furniture and utensils, latrines, urinals, washing facilities, charges for foodstuffs supplied in canteens, first-aid facilities, and so on. It would thus be evident that in establishments where the contract labour is not abolished and is, therefore, employed, several regulatory measures are provided by the Act in the interest of health and safety of casual labour.

A comparison of the provisions of both the Factories Act and Contract Labour Act would disclose immediately that the Factories Act contains far more elaborate and extensive provisions made in the interest of health, safety and well being of the workers, than the provisions contained in the Contract Labour Act and the Rules made thereunder. The contract labour working in most of the factories would be governed both by the Factories Act, as well as the Contract Labour Act. With a view to obviate any room for argument that the Contract Labour Act being an Act dealing specially with the contract labour, the more elaborate and more beneficial provisions contained in the Factories Act do not, and need not be applied to contract labour, and also with a view not to deprive the contract labour of the better facilities provided by the Factories Act, Section 119 of the Factories Act was enacted. In other words, both the enactments contain provisions in the interests of health, safety and well being of workers. Only to the extent of inconsistency therein does the Factories Act prevail and operate, and to that extent the Contract Labour Act would not apply. Now, what is significant to notice is that there is no provision in the Factories Act providing for abolition of contract labour in any factory or other establishment to which the Factories Act applies. The Factories Act does not deal with, and does not refer to the abolition of contract labour at all. The said aspect is dealt with only by Section 10 of the Contract Labour Act. In such a situation, it cannot be said that the Factories Act contains any provision inconsistent with Section 10 of the Contract Labour Act. If so, the power of the appropriate Government u/s 10 is not affected or curtailed in any manner by Section 119 of the Factories Act, or by any other provision in the said Act. As we have point out earlier, Section 119 of the Factories Act does not say that to the factories or establishments to which the Factories Act applies, the Contract Labour Act shall not apply. It only says that in case of inconsistency between the provisions of both the enactments, the provisions of the Factories Act shall prevail to the exclusion of the provisions of the Contract Labour Act. In the absence of any inconsistency both the Acts will apply, and continue to apply to a factory or establishment to which they apply. It may be noticed that the Factories Act applies to every factory, wherein ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on. The definition also includes any premises where 20 or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid or power, or is ordinarily so carried on. So far as the Contract Labour Act is concerned, it applies, according to sub-section (4) of Section 1 to every establishment where 20 or more workers are employed, or were employed on any day of the preceding twelve months as contract labour. It would be evident that several factories governed by the Factories Act would also be "establishments" for the purpose of the Contract Labour Act, with the result that both the Acts will be attracted. It is this situation which is provided for by Section 119 of the Act, and it is only in case of inconsistency between the provisions of both the Acts that overriding effect is given to the provisions of the Factories Act. Inasmuch as there is no provision contained in the Factories Act providing for abolition of contract labour, Section 119 can never have the effect of curtailing, or ineffectuating the power of the appropriate Government u/s 10 of the Contract Labour Act.

A perusal of the judgment of the learned Single Judge in W.P. No. 786 of 1981 discloses that the learned Judge was mainly influenced by the amendment of the definition of "worker" by the Factories (Amendment) Act 94 of 1976, whereby contract labour was also included within the definition of the said expression. The learned Judge was of the opinion that since contract labour is governed by the Factories Act, the Contract Labour Act would not apply together. Indeed, the learned Judge was of the opinion that while the Factories Act permits employment of contract labour, the Contract Labour Act provides for its abolition and, therefore, there is inconsistency between both. With respect, we cannot agree with this said view. The learned Judge, in our opinion, was also not right in bringing in the test of repugnancy enunciated in State of Orissa Vs. M.A. Tulloch and Co., into this controversy. When Section 119 expressly speaks of inconsistency between the provisions of both the Acts, the test enunciated in Tulloch for the purpose of Article 254 of the Constitution has no application.

For the above reasons, we are of the opinion that the judgment in W.P. No. 786 of 1981 is not correct. Inasmuch as the said judgment was followed and the two writ petitions concerned herein allowed, the writ appeals are liable to be allowed and are accordingly allowed. The judgment of the learned Single Judge in both the writ petitions is set aside. The State shall be entitled to its costs. Advocate''s fee Rs. 250 in each.