MAHESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners are admittedly employees of a contractor, who contract labourers and supply them to inter ali Jai Prakash Narayan International Airport for sweeping, cleaning and other works. They are in employment as such for over 15 years. They have filed this writ application for their absorption and protection of their employment. So far as the second aspect is concerned, there cannot be any dispute that they admittedly being employees of contractor and working in the establishment of respondents for over 15 years. They cannot be dispensed with except in accordance with the provisions of law relating to such employment. They have the statutory protection in that regard and it is the duty of the principal employer which in this would be (Air Port Authority) to ensure the compliance to statutory requirements by the Contract Employer and Protection of Service Conditions of the petitioner.

(2.) SO far as, first prayer for absorption is concerned that was primarily based on circular No. 48 dated 17th April, 1998 issued by the Air Port Authority of India cannot be accepted. The circular, inter alia, provided that the workers earlier engaged by contractors on sweeping and cleaning jobs had to be absorbed with the Air Port Authority being the principal employer on such contract labour system for such employment being prohibited in terms of the Contract Labour Regulation Act. This circular in terms provides for absorbing workers like the petitioner. It is not in dispute that till date so far as petitioners are concerned they have not been absorbed. In my view, petitioners cannot get any benefit from the said circular as the said circular itself has lost all its potency and efficacy. The reasons are as follows.

(3.) IT appears that soon after the said decision was rendered by the Apex Court the question once again came up and the matter was then referred to a Constitution Bench for reconsideration of the judgment in the case of Air India Statutory Corporation. This laid to the decision of the Constitution Bench in the case of Steel Authority of India Limited and Ors. v. National Union Waterfront Workers and Ors. since reported in : (2001) 7 Supreme Court Cases 1 by the Constitution Bench. The Constitution Bench on each of the three issues decided in Air India Statutory Corporation case overruled the said decision. We are more concerned with the later two issues. In this case before the Constitution Bench validity of the year 1976 notification was issued as well, the Apex Court held the said notification to be bad. On the point of absorption the Apex Court held that even when a prohibition notification is issued it does not follow as a matter of course and no direction can be issued by any Court or authority obliging the principal employer to absorb the workers of contract labourer. Thus, on all four squares the judgment in the case of Air India Statutory Corporation (supra) was overruled. While delivering the said judgment in paragraph -125 in the case of Steel Authority (supra) the Apex Court held that they would be overruling the said judgment in the case of Air India Statutory Corporation (supra) prospectively. If any person had been absorbed pursuant to the earlier judgment or had been directed to be absorbed pursuant to the earlier judgment those positions would not be disturbed but directions to absorb which are pending compliance could not be given effect to. In sub para -6 of paragraph -25 a protection has however been given to employees of the contract labourer in the shape that if and when the authority decides to recruit new/fresh workers in the same stream of work they would give preference to the employees/workers of the contract labourers relaxing age and qualifications because of their past service, beyond this no other privilege was conferred much less their right to be disturbed. That being so the petitioners' relief with regard to absorption cannot be granted.