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Judgment
K. Sampath, J.—By consent the main Writ Petitions are taken up for hearing.
Apparently inspired by the decision of the Supreme Court in Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], , the above batch of Writ Petitions has been filed. The relief prayed for in all the Writ Petitions and the question to be decided are one and the same and this order will dispose of all the Writ Petitions.
The prayer is for the issue of a writ of mandamus directing the Respondents herein to regularise the services of the Petitioners as regular employees with all service benefits with effect from the date of appointment on the following allegations:
The Respondents recruited about ten contract labourers for watch and ward and conservancy services in Salem Airport through the contractor M/s New Everest Security Service at No. 192/5, Poova Gounder Complex, Five Roads, Salem, in the middle of the year 1994. The works of sweeping, dusting and watching of the buildings were perennial in nature. Except in Salem Airport, in no other airport contract labourers for the above works were engaged. The Petitioners had been recruited either as security personnel or sweeper or conservancy cleaner. The allotment of work, supervision and immediate control over all contract labourers were done by the first Respondent to whom the contract labourers reported for duty and performed the services as per his instructions and directions. An attendance register was also being maintained wherein all the contract labourers used to sign every day. The facilities and the working condition provided by the employer to the Petitioners were very poor and bore no match to the similar facilities provided to the regular service personnel. There was inequality between the workers employed in the Salem Airport and those employed in other airports. There was thus a clear violation of Article 14 of the Constitution of India. Some of the Petitioners have worked for more than 1000 days, thus becoming eligible to be recognized as regular employees. The period of contract was being extended every year and after a particular stage, it was being renewed once in three months. At the time of filing the Writ Petitions the contractor had informed the Petitioners that the contracts would not be further extended and would be terminated after they lapsed. The contract period came to an end on 16.3.1998. If was therefore that the present Writ Petitions had been filed.
The Central Government u/s 10(1) and Section 10(2) of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act) issued a Notification dated 9.12.1976 in Notification No. 779(E) prohibiting and abolishing employment of contract labourers engaged in sweeping, clearing, dusting and watching of buildings owned by or occupied by governmental or quasi-governmental organizations. Subsequent to the said Notification no principal employer was permitted to recruit contract labourers for the above said services. But, the Respondents herein had violated the provisions of the Act and the Notification issued pursuant thereto. All the employees employed by the Respondents through contractors were deemed to be recruited by the principal employer. The Respondents were also liable for prosecution as contemplated u/s 23 of the Act. The Respondents had a mandatory obligation and were bound to regularize and observe all the contract labourers engaged in violation of the Act and the Notification referred to supra. They were also under a mandatory obligation to give full salary and other benefits consequential thereto with effect from the date of employment. The prayer in all the Writ Petitions is for regularization of the services of the Individual Petitioners.
Counters have been filed on behalf of the Respondents in all the Writ Petitions inter alia contending as follows:
The Salem Airport was an establishment within the meaning of Section 2(e) of the Act, wherein only 13 contract labourers were employed and the Act had no application to Salem Airport. The terms and conditions of services of the individual Petitioners were governed by the contracts entered into between them and the contractor and they were bound by them. The Notification purported to have been issued pursuant to the provisions of the Act had no application to the Salem Airport, which was a totally different entity functioning under the Indian Airports Authority Act, 1994. The competent authority had not issued any Notification u/s 10 of the Act prohibiting contract labourer in the Respondents establishment.
The question whether the Petitioners were to be considered as regular employees under the Respondents had to be investigated in a properly laid dispute. Courts have held that the proper remedy of the Petitioner would be to raise an industrial dispute under the provisions of the Industrial Disputes Act, 1947, which is an exhaustive Code governing investigations, settlements and adjudications of industrial disputes and this Court would not entertain a petition under Article 226 of the Constitution of India. The Petitioners were also not sponsored through the Employment Exchange and the regularization of their services would amount to violation of the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. The Writ Petitions were liable to be dismissed for non-joinuor of necessary parties.
Mr. K. Chandru, learned Senior Counsel for Mr. T. Velumani appearing for the Petitioners, relied on the judgment of the Supreme Court in Air India Statutory Corporation and Ors. v. United Labour Union and Ors. already referred to and submitted that a direction should be issued to the Respondents to regularize the services of the Petitioners. The learned Senior Counsel also relied on the judgment of a Bench of this Court in Writ Appeal No. 1373/93 decided on 16.4.1998 and submitted that following that decision all the Petitioners, who were eligible to be regularized should be absorbed by the Respondents. To the objection raised by the Respondents that Salem Airport had engaged only 13 persons and therefore the provisions of the Act would not apply, the learned Senior Counsel relied on the judgment of the Bombaay High Court at Nagpur in S.B. Deshmukh v. The State and Anr. 1986 Lab.I.C. 204 and submitted that in view of Section 1(4) of the Act, there was no restriction as to the number of workman employed as contract labourers.
Mr. Godwin, learned Counsel for the Respondents, submitted that the prayer in the Writ Petitions was for the issue of a mandamus and there was absolutely no prior demand by the Petitioners and mandamus being a discretionary relief, the Court could not issue writs of mandamus in these cases. Mr. Godwin further submitted that the Petitioners in the various Writ Petitions were not sponsored by the Employment Exchange and they were not entitled to any relief. The learned Counsel also relied on the judgment of a Bench of Punjab and Haryana High Court in Mukhtiar Singh v. Regional Manager, F.C.I. reported in 1991 (1) SLR 227.
Let us first clear the ground regarding the relief of mandamus prayed for in the Writ Petitions''. In this connection, Mr. Godwin relied on the judgments of the Supreme Court reported in Saraswati Industrial Syndicate Ltd. and Others Vs. Union of India (UOI), and Food Corporation of India Workers'' Union Vs. Food Corporation of India and Others, .
In Halsbury''s Laws of England III Edition Volume 13 page 106 dealing with a Writ of mandamus it has been stated as follows:
As a general rule the order will not be granted unless the party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that demand was met by a refusal.
This statement of law has been accepted by our Courts in Kamini Kumar Das Choudhury Vs. State of West Bengal and Others, : Amrit Lal Berry and Another Vs. Collector of Central Excise, New Delhi and Others, and in Saraswati Industrial Syndicate Ltd.''s case which has been cited by the learned Counsel for the Respondents. In paragraph 24 of the last of the judgments, the Supreme Court has referred to the passage in Halsburys Laws of England and further observed as follows:
The powers of the High Court under Article 226 are not strictly confined to the limits which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognized rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for.
It has been held in the State Modern Houses Ltd. v. Dubbling Corporation 1953 I All. E.R. 202 that,
the formalities of the demand and refusal are usually fulfilled by the conduct of parties prior to the application and refusal to perform the duty is readily implied from conduct.
In the instant cases it is not difficult to deduce that the Respondents were under a duty to comply with the requirements of law and it is not open to them to say that they were either not aware of the mandatory nature of the provisions of the Act and the subsequent government order issued. Without the Petitioners having to do anything to project their claim for permanent absorption, the Respondents were duty bound to comply with the requirements of law. I am, therefore, satisfied that the formalities of demand and refusal were totally unnecessary in the present Writ Petitions.
It has been held in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, that an evasion or shelving of a demand for justice is sufficient to operate as a denial. It is not difficult to hold that there was a demand and there was a denial in substance in the instant cases. The prayer for mandamus is therefore not misconceived. I therefore reject the objection raised by the learned Counsel for the Respondents as regards the maintainability of the writs. The learned Senior Counsel is well-founded in his contention that the moment the provisions of the Act were violated the authorities became answerable.
The next question is as regards the applicability of the Act to Salem Airport. The decision of the Punjab and Haryana High Court in Mukhtiar Singh v. Regional Manager, F.C.I. relied on by the learned Counsel for the Respondents is clearly distinguishable on facts. The work of the organization concerned in that case was seasonal, sporadic and varied from region to region and the requirement of Security Guards, who prayed for absorption as permanent employees, always remained fluctuating. That is not the case of the Petitioners in the present Writ Petitions before this Court. On the contrary, the decision of the Bombay High Court in S.B. Deshmukh v. The State and Anr. relied on by the learned Senior Counsel for the Petitioners will have direct bearing on the question. The learned Judge of the Bombay High Court (at Nagpur) held as follows:
The applicability of Section 10(1) which gives authority to the appropriate Government to prohibit employment of contract labour in any process, operation or other work in any establishment, is not, in view of Section 1(4), restricted only to an establishment where 20 or more workmen are employed as contract labourers. The prohibition u/s 10 is not qua the establishment, but it is qua particular activity of contract labour. Once the object of Section 10(1) is realised, then it becomes obvious that the same is applicable to all establishments irrespective of the number of workmen employed in any particular activity of contract labour which is prohibited u/s 10(1).
The learned Judge further held that,
Section 10(1) of the Act, the non-obstante clause, operates in its own field notwithstanding other provisions of the Act in view of the object of the Act, viz. to abolish contract labour wherever possible or practicable and further in view of the fact chat Section 10(1) opens with a non-obstante clause, it operates in its own field notwithstanding other provisions of the Act.
The second objection raised by the learned Counsel for the Respondents Mr. Godwin is also therefore rejected. In view of the over-riding effect of the provisions of the Act, the objection relating to employment exchange is also not available to the Respondents.
The Supreme Court in Air India Statutory Corporation and Ors. v. United Labour Union and Ors., taking the cue from which the present Writ Petitions have been filed, in paragraph 66 of its judgment states as follows:
In this behalf, it is necessary to recapitulate that on abolition of the contract labour system, by necessary implication, the principal employer is under statutory obligation to absorb the contract labour. The linkage between the contractor and the employee stood snapped and direct relationship stood restored between the principal employer and the contract labour as its employees. Considered from this perspective, all the workmen in the respective services working on contract labour are required to be absorbed in the establishment of the Appellant. Though there exists no specific scale of pay to be paid as regular employees, it is for the establishment to take such steps as are necessary to prescribe scale of pay like class ''D'' employees. There is no impediment in the way of the Appellants to absorb them in the last grade, namely, Grade IV employees on regular basis. It is seen that the criteria to abolish the contract labour system is the duration of the work, the number of employees working on the job etc. That would be the indicia to absorb the employees on regular basis in the respective services in the establishments.
Ultimately, the Supreme Court upheld the direction issued by the High Court to regularise the services of the said employees with effect from the respective dates of the judgments of the High Court with all consequential benefits.
This judgment of the Supreme Court has been referred to and followed by a Bench of this Court in W.A. No. 1373/93 in Central Organisation of Tamil Nadu Electricity Employees (CITU) - represented by its Secretary, Madras-5 v. The Tamil Nadu Electricity Board - represented by its Secretary, Madras-2 and two Ors.
In view of the discussion above, the Writ Petitions are entitled to succeed. Consequently, the Respondents are directed to consider the respective claims of the Petitioners in the batch of Writ Petitions and in the light of the observations contained in this judgment and take necessary steps to absorb such of those Petitioners, who are eligible to regular service. The benefits they are entitled to will also be calculated from the day on which the contract labour system in the Respondents'' establishment for the work which they are doing gets abolished. There will be no order as to costs.
In view of the order passed in the main Writ Petitions, no further orders are necessary in the injunction petitions W.M.P. Nos. 4941/98 and 5070 to 5076/98. The compliance will have to be reported within a period of twelve weeks from the date of order in the Writ Petitions.