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PETITIONER: SANKAR MUKHERJEE AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT16/11/1989

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) VENKATACHALLIAH, M.N. (J)

CITATION:  1990 AIR  532            1989 SCR  Supl. (2) 182  1990 SCC  Supl.  668     JT 1989 (4)   330  1989 SCALE  (2)1119

ACT:     Contract Labour (Regulation and Abolition) Act, 1970: s. 10-Notification dated February 9, 1980 prohibiting  contract labour  in  establishments of M/s Indian Iron  &  Steel  Co. Ltd.--Exclusion  of  loaders in  brick  department--Validity of--Whether violative of Article 14 of the Constitution.

HEADNOTE:     Section  10(1)  of the Contract Labour  (Regulation  and Abolition) Act, 1970 empowered the appropriate Government to prohibit  employment  of  contract labour  in  any  process, operation or other work in any establishment.     The  Government of West Bengal issued a notification  on February  9, 1980 under s. 10(1) of the Act prohibiting  the employment of contract labour in certain departments in  the establishments  of  M/s Indian Iron and Steel  Company  Ltd. Paragraph 9 of the Schedule thereto listing the departments, included cleaning and stacking and other allied jobs in  the brick  department,  except loading and unloading  of  bricks from wagons and trucks.     In the writ petition, the affected workmen assailed this action  of the State Government in excluding them  from  the beneficial  purview of the notification as  arbitrary,  dis- criminatory and violative of Article 14 of the Constitution. It  was contended for them that the job of loading  and  un- loading was not peculiar to the brick department alone, that the  work of stacking was directly dependent on the  loading and unloading of bricks, and that the two jobs being  allied and  incidental the workmen holding these jobs could not  be treated  differently. For the respondents, it was  contended that the job of loading and unloading of bricks in the brick department was not of perennial nature, the supply of bricks being  intermittent depending upon the  requirement,  avail- ability of bricks as also the availability of the wagons and trucks. Allowing the writ petition, HELD: 1.1 The Contract Labour (Regulation and Abolition) Act is 183 an important piece of social legislation for the welfare  of the labourers and has to be liberally construed. [186D]

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   Standard-Vacuum Refining Co. of India Ltd. v. Its  Work- men,  [1960]  3 SCR 466 and Catering  Cleaners  of  Southern Railway v. Union of India & Anr., [1987] 1 SCC 700, referred to.     1.2  In  the instant case, it was not  denied  that  the bricks handled by the brick department were used in furnaces of  the company as refractory. Therefore, the work  done  by the  brick  department including loading  and  unloading  of bricks  was  incidental to the industry carried  on  by  the company. It was also not denied that the petitioners were  , employed  as  contract labour by the company  for  the  last 15/20  years.   There was, therefore,  no  justification  to treat the petitioners differently and deny them the right of regular appointment. [186E-F]     1.3 The purchase of bricks, transportation to the facto- ry, unloading, stacking and use in the furnace were the jobs in  one continuing process. It could not thus be  said  that all these jobs were not incidental or allied to each  other. That being so, all the workmen performing these jobs were to be treated alike. On the same reasoning it could not be said that  the loader’s job was not, and other jobs in the  brick department were, of perennial nature. There was,  therefore, no  justification for excluding the job of loading  and  un- loading of bricks from wagons and trucks from the purview of the notification dated February 9, 1980. [187G-188A]     2.  The  words "except loading and unloading  of  bricks from  wagons and trucks" in paragraph 9 of the  Schedule  to the notification are struck down being discriminatory and as such  violative of Article 14 of the Constitution of  India. [188A-B]     [The  petitioners  and co-workers to be treated  at  par with  effect  from the date of notification with  those  who were  doing  the job of cleaning and stacking in  the  brick department, and such of them who have been retrenched during the pendency of the writ petition to be put back into  serv- ice with all back wages and consequential benefits.]  [188B- C]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Civil) No. 2 123 of 1982. (Under Article 32 of the Constitution of India). 184 R.K. Garg and H.K. Puri for the Petitioners.     D.P. Mukherjee, G.S. Chatterjee, Ms. C.K. Sucharita, Ms. A. Subhashini and S.R. Grover for the Respondents. The Judgment of the Court was delivered by     KULDIP  SINGH,  J. The Parliament enacted  the  Contract Labour  (Regulation  and Abolition) Act,  1970  (hereinafter called  the  Act) with the object of abolition  of  contract labour  in respect of such categories as may be notified  by the  Appropriate  Government in the light of  criteria  laid down  in the Act and also regulating the service  conditions of contract labour where abolition is not possible.  Section 10 of the Act which is relevant is as under:               "Prohibition   of   employment   of   contract               labour--               (1) Notwithstanding anything contained in this               Act,  the  appropriate Government  may,  after               consultation with the Central Board or, as the               case may be, a State Board prohibit, by  noti-               fication  in the Official Gazette,  employment               of  contract labour in any process;  operation

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             or other work in any establishment.               (2)  Before  issuing  any  notification  under               sub-section  (1) in relation to an  establish-               ment,  the appropriate Government  shall  have               regard to the conditions of work and  benefits               provided  for  the  contract  labour  in  that               establishment and other relevant factors  such               as--               (a)  Whether the process, operation  or  other               work  is incidental to, or necessary  for  the               industry,  trade,  business,  manufacture   or               occupation  that is carried on in  the  estab-               lishment;               (b) Whether it is of perennial nature, that is               to  say, it is of sufficient  duration  having               regard  to the nature of  industry,  business,               manufacture  or occupation carried on in  that               establishment;               (c)  Whether  it is  done  ordinarily  through               regular  workmen in that establishment  or  an               establishment similar thereto;               185               (d) Whether it is sufficient to employ consid-               erable number of whole time workmen.               Explanation--If a question arises whether  any               process  or  operation  or other  work  is  of               perennial  nature, the decision of the  appro-               priate Government thereon shall be final."     In  exercise  of the powers under Section 10(1)  of  the Act,  the  Government of West Bengal issued  a  notification dated  February 9, 1980 prohibiting the employment  of  con- tract  labour  in  16 departments covering 65  jobs  in  the establishments  of  M/s.  Indian Iron  and  Steel  Co.  Ltd. (hereinafter called the company) situated at Burnpur in  the State  of West Bengal. The list of the departments  and  the jobs  is given in the schedule attached to the  notification and  paragraph 9 therein, relating to the Brick  Department, is as under: "Cleaning and stacking and other allied jobs except  loading and unloading of bricks from wagons and trucks."     It is thus obvious that the job of loading and unloading of bricks from wagons and trucks in the Brick Department has been  specifically excluded from the beneficial  purview  of the  notification. The said action of the  State  Government has  been challenged in this writ petition under Article  32 of the Constitution of India by the affected workmen on  the ground  that the petitioners have been subjected to  hostile discrimination  so much so that the workmen doing  the  same job in other departments and allied jobs in the same depart- ment  have been rescued from the archaic system of  contract labour  whereas  the petitioners have been  singled-out  and left  to  be  grinded under the pernicious  effect  of  this primitive system. The action according to the petitioners is arbitrary, discriminatory and is violative of Article 14  of the Constitution of India.     Mr.  R.K. Garg, learned counsel appearing for the  peti- tioners has contended that the job of loading and  unloading is not peculiar to the Brick Department rather such jobs are being  operated  in  the stores (iron  and  steel),  Traffic (steel) and Coke ovens Departments. The benefit of notifica- tion dated February 9, 1980 has been extended to the loaders in all these departments. He further argued that the work of stacking is directly dependent on the loading and  unloading of  bricks.  The two jobs according to him  are  allied  and incidental and as such the workmen holding these jobs cannot

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be treated differently. 186      The  learned counsel for the respondents on  the  other hand  has  argued that the job of loading and  unloading  of bricks  in the Brick Department is not of perennial  nature, the  supply  of  bricks is intermitent  depending  upon  the requirement, availability of bricks as also the availability of  the wagons and trucks. It is further submitted that  the decision  of the appropriate Government to the  effect  that the job is not of perennial nature is final under the Act.      It  is surprising that more than forty years after  the independence  the practice of employing labour through  con- tractors by big companies including public sector  companies is  still being accepted as a normal feature  of  labour-em- ployment. There is no security of service to the workmen and their  wages are far below than that of the regular  workmen of  the company. This Court in Standard-Vaccum Refining  Co. of India Ltd. v. Its Workmen, [1960] 3 SCR 466 and  Catering Cleaners  of  Southern  Railway v. Union of  India  &  Anr., [1987]  1  SCC 700 has disapproved the  system  of  contract labour   holding  it  to be ’archaic’,  ’primitive’  and  of ’baneful  nature’. The system, which is nothing but  an  im- proved  version of bonded-labour, is sought to be  abolished by the Act. The Act is an important piece of social legisla- tion  for the welfare of labourers and has to  be  liberally construed. It  is not denied that the bricks handled by the  Brick  De- partment are used in furnaces of the company as  refractory. Therefore  the work done by the Brick  Department  including loading and unloading of bricks is incidental to the  indus- try  carried on by the company. It is also not  denied  that the  petitioners  are  employed as contract  labour  by  the company for the last 15/20 years. Then where is the justifi- cation  to treat the petitioners differently and  deny  them the right of regular appointment?      We may examine the case from another aspect. The  peti- tioners  have specifically averred in paras 7 and 11 of  the writ  petition  that  the job of loading  and  unloading  of bricks  is allied and incidental to the job of  stacking  of bricks. Para 7 is as under: "It  is submitted that loading and unloading of bricks  from wagons  and trucks is an essential feature of; and/or a  job allied  and/or incidental to the job of stacking of  bricks. It is further submitted that the job of loading and  unload- ing  of  bricks from wagons and trucks cannot  be  separated from  the job of stacking and other allied jobs in the  case of the petitioners." 187 Further para 11 is as under:               "It may be stated here that"stacking" as  such               was never the job of contract labour. The  job               of stacking and the job of loading and unload-               ing  of  bricks are job  ancillary,  including               and/or  supplemented to each other. It may  be               made  clear  that the job of  stacking  and/or               loading and unloading of bricks has to be done               by  competent and technical hands. The  bricks               used  in  the furnace are a  very  costly  and               technical  material requiring  perfect  dimen-               sions  and  precision These  bricks  are  also               imported  from outside India. Such bricks  are               manufactured  indigenously too, but  depending               upon  the consumption and demand,  the               bricks  arc purchased locally and/or  imported               from outside India. Such a costly material has

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             to  be handled by skilled workmen. The job  of               loading  and  unloading of such  bricks  their               stacking  is done by skilled workmen and  this               work cannot be done by casual labour which may               be  engaged  disengaged  as  contract   labour               depending  upon the sweet will of the  manage-               ment. It is submitted that loading and unload-               ing and stacking of bricks are jobs which  are               supplementary to each other carried out by the               same  set of workmen and is essential for  the               day-to-day production. The petitioners  submit               that  it is not possible to engage one set  of               workmen for stacking and another set of  work-               men for loading and unloading of bricks."     In the counter affidavit on behalf of the company  filed by  its  Dy. Chief Personnel Manager, there is  no  specific denial  to  the above averments. Though it has  been  stated that  the petitioners are not doing the job of stacking  the bricks,  there is no denial nor any averment or material  on the record to show that the job of loading and unloading  of bricks  is not incidental or allied to the stacking  of  the bricks. Even otherwise we fail to understand how the  stack- ing  of bricks is a job which is not incidental  to  loading and unloading. The purchase of bricks, transportation to the factory, unloading, stacking and use in the furnace are  the jobs in one continuing process and it is difficult to accept that these jobs are not incidental or allied to each  other. That  being so all the workmen performing these jobs are  to be  treated alike. On the same reasoning it cannot  be  said that  the loader’s job is not, and other jobs in  the  Brick Department are, of perennial nature. In any case there is no material  or basis to show that the job of loading  and  un- loading of bricks is not of perennial nature. 188     We,  therefore, see no justification for  excluding  the job  of  loading  and unloading of bricks  from  wagons  and trucks  from the purview of the notification dated  February 9,  1980.  We allow the writ petition and  strike  down  the words  "except loading and unloading of bricks  from  wagons and  trucks" in paragraph 9 of the said notification  issued by  Government  of West Bengal being discriminatory  and  as such  violative of Article 14 of the Constitution of  India. We  direct that the petitioners and other workers doing  the job  of  loading  and unloading of bricks  from  wagons  and trucks  in the Brick Deptt. be treated at par,  with  effect from  the date of nonfication, with those who are doing  the job  of cleaning and stacking m the said department.  It  is further  directed that the workmen doing the job of  loading and  unloading who have been retrenched during the  pendency of the writ petition be put back into service with all  back wages and consequential benefits. There shall be no order as to costs. P.S.S.                                Petition allowed. 189