WIMCO LIMITED Vs. STATE OF ASSAM

JUDGEMENT

(1.) This application under Article 226 of the Constitution of India has been filed to quash the Notification dated 28/9/80 issued by the Government of Assam. That Notification is Annexure-C to the Writ Application and that is quoted below :-

(2.) The Notification has been published in the official Gazette. Before we proceed further let us have a look at Section 10 (1) (2) of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter called the Act)., that is 10. Prohibition of employment of contract labour

(3.) However, the power has been exercised after consultation with the Central Board or the State Board as the case may be and after having regard to the condition of work and benefits provided for the Contract Labour in the establishment concerned and other relevant factors as enumerated in Clauses (a) (b), (c) and (d) of sub-section (2) of Section 10. The state Advisory Contract Labour Board requires to be constituted by the State Government Under Section 4 of the Act. Under the explanation which really relates to Clause (b), the decision of the appropriate Government on the question whether any process or operation or other work is of perennial nature has been declared to be final. The sub-section (1) of Section 10 imposes a duty on the Government to consult the Board. It means that a certain statutory preliminary ought to be performed before the act is done. It can not be said from the Section that after consultation it is not open to the Government to deport from the view obtained from the concerned Board (See 1962 SC. 1130 A N. D'Silva -Vs-U.O.I.) The ultimate discretian to prohibit Contract Labour in any process, operation or other work in any establishment rests with the appropriate Government. The role of the Board in this respect is only advisory. The expression 'shall have regard to' only implies guidance and not a fetter. It only obliges the appropriate Government to consider, as relevant data, the materials to which it must have regard. In taking a decision to prohibit contract labour in any process, operation or other work in any establishment the Government must have regard to the condition of work and benefits provided for the contract labour in that establishment and also other relevant factors, such as, those memtioned in Clauses (a) to (d) of sub-section (2) of Section 10 of the Act. Further it is true that exploitation of labour may not be a conclusive itself for determining whether contract labour system in a particular factory or Unit should be permitted, but it is important itself and where it is found that there is no exploitation it should be slow to prohibit contract labour.