HNL CASUAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a registered trade union working among contract and casual workers under the third respondent company viz., 'Hindustan News Print Ltd.' which is a subsidiary of 'Hindustan Paper Corporation Ltd.'. This writ petition has been filed mainly challenging Ext.P4 order of the second respondent and seeking issuance of a writ of mandamus commanding the second respondent to conciliate the industrial dispute raised in Ext.P3 petition in accordance with the provisions under the Industrial Disputes Act (for short 'the I.D. Act'). As per Ext.P4, the second respondent declined to conciliate on the dispute of regularization of contract labourers in the third respondent establishment on the ground that the issue raised by the petitioner is not a subject matter to be dealt with as an industrial dispute under section 2(k) of the I.D. Act as the same constitutes only violation of the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 (for short 'the Act').

(2.) The contention of the petitioner is that there are about 200 contract workers employed through the fourth respondent for the third respondent establishment and out of which 35 contract workers are members of the petitioner union. It is further contended that they had been working in the third respondent establishment since 1982-83 though the petitioner union was registered only in 2006. On 25.6.2008 a conciliation petition under section 12 of the I.D. Act was moved before the second respondent on the issue of regularization of the contract workers working for the third respondent through the unlicenced petty contractor, the fourth respondent. When the petitioner union earlier sought information under the Right to Information Act from the second respondent as to the details regarding the licenced contractors from the third respondent, Ext.P2 information was given. In Ext.P2, the name of the fourth respondent was not included as a licenced contractor. It is in the said circumstances that the union relying on the decisions of the Hon'ble Apex Court in Secretary, Haryana State Electricity Board v. Suresh and others, 1999 AIR(SC) 1160 and in Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha, 1995 AIR(SC) 1893 filed Ext.P3 conciliation petition dated 25.6.2008. The sum and substance of the contentions of the petitioner union is that the regularization of the contract labourers employed through unlicenced contractors through adjudicatory process under the I.D. Act is possible and permissible in terms of the decisions referred above. It is the further contention of the petitioner that in the light of notification No. GSR 336(E) dated 5-5-2008 issued in exercise of power under section 39 of the I.D. Act in supersession of notification No. SO 556(E) dated 3.7.1998 the second respondent is empowered to act as Conciliation Officer in regard to the industrial disputes in Government of India Companies like the third respondent. After considering Ext.P3 conciliation petition the second respondent passed Ext.P4 order declining to conciliate for the reasons mentioned earlier. It is in the said circumstances that this writ petition has been filed with the aforesaid prayers.

(3.) The contention of the petitioner is that the action on the part of the second respondent in declining to conciliate on the dispute invites interference by this Court. Section 12 of the Act provides that no unlicenced contractor shall undertake or execute any work through contract labour. In view of the said provision, it is contended that the employment of contract labour for the third respondent through unlicenced fourth respondent contractor would enable such workers to take and stake a claim to be treated as workers under the principal employer. Relying on the decision reported in AIR 1995 SC 1893 it is contended that in case the contract labourers became the employees of the principal employer in course of time the contract labourers could raise a dispute in accordance with the procedures under the I.D. Act and conciliation over such a dispute could not be declined by the conciliation officer. In such circumstances, the issue whether the concerned contract labourers are working under the principal employer or under the petty contractor would necessarily become a matter of dispute. At any rate, such a dispute cannot be treated as one relating abolition of contract labour but only as a dispute for securing the appropriate service conditions from the principal employer on the premise that the workmen concerned were always the employees of the principal employer. It is the further contention of the petitioner that the effect and impact of employing unlicenced contractor was elaborately dealt with by the Hon'ble Apex Court in the decision reported in AIR 1999 SC 1160 (supra), more particularly in paragraph 19 therein. Taking into account the facts and circumstances of the said case, it was held that contract system was mere a camouflage and there existed a real contractual relationship between the Board on one hand and the employer on the other hand. Relying on the said decision it is contended that the fourth respondent herein was only a name lender and, in fact, it would reveal that in the facts and circumstances of the case the employees were working for the third respondent and there existed a real contractual relationship between the third respondent and the concerned contract labourers who are members of the petitioner union. Since they had worked for more than 240 days during the period of twelve calender month preceding the date with reference to which calculation is to be made, in terms of the provisions under the I.D. Act they are entitled to seek absorption into the regular establishment. It is based on such contentions that the petitioner assails Ext.P4 whereby the second respondent declined to conciliate on the dispute raised as per Ext.P3.