REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7394    OF 2009 (Arising out of SLP(C) No. 22912 of 2008)

Baleshwar Rajbashi and Others                …Appellants

Versus

The Board of Trustees  for the Port of Calcutta and Others                …Respondents

JUDGEMENT

R.M. Lodha, J.

Delay condoned. Leave granted.

2. This appeal by special leave is directed against the  

judgment  and  order  dated  March  31,  2008  passed  by  the  

Division Bench of High Court of Calcutta whereby the Board of  

Trustees for the Port of Calcutta - Respondent No. 1 (for short,  

‘CPT’)  has been directed to approach the Ministry of  Labour  

through  Ministry  of  Shipping  for  resolution  of  the  dispute  

concerning abolition of contract labour in the works of sleeper

renewal of railway tracks, repairing/restoration and laying and  

linking of tracks in the establishment of CPT.

3. The  appellants  are  contract  labour  who  claim  to  

have worked continuously from 1988 until 2006 under different  

contractors engaged by CPT for maintenance of railway track  

within  their  complex.  Upon  issue  being  raised  by  them,  a  

Committee  was  constituted  under  Section  5  of  the  Contract  

Labour (Regulation and Abolition) Act, 1970 (for short, ‘Act’) by  

Central  Advisory  Contract  Labour  Board  (for  short,   ‘Central  

Board’) to study the working of contract labour system in the  

jobs/works  of  sleeper  renewal  railway  tracks,  

repairing/restoration  and  laying  and  linking  of  tracks  in  the  

establishment  of  CPT  and  make  suitable  recommendation,  

whether or not the employment of contract labour in the above  

jobs/works in the establishment of CPT be prohibited under the  

Act.  The  Committee  in  its  report  opined  that  works/jobs  of  

sleeper renewal of railway tracks in the establishment of CPT  

were of regular nature attracting Section 10(2) of the Act, 1970  

and,  accordingly,  recommended  for  prohibition  of  contract  

labour in respect of the said jobs.

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4. Despite  recommendation  of  the  Committee  

constituted under Section 5 of the Act, the Central Government  

decided not  to  prohibit  employment  of  contract  labour  in  the  

jobs/works  of  sleeper  renewal  of  railway  tracks,  

repairing/restoration  and  laying  and  linking  of  tracks  in  the  

establishment of CPT which led to the filing of writ petition by  

the present appellants before the High Court at Calcutta. Vide  

Order dated July 22, 2004, the High Court directed the Central  

Government  to  reconsider  the  issue  concerning  abolition  of  

contract labour in CPT and pass a fresh order after hearing all  

the parties concerned.

5. In  pursuance  of  the  aforesaid  order  of  the  High  

Court,  the  Central  Government  reconsidered  the  matter  and  

issued a notification on July 7, 2005 in exercise of the powers  

conferred  by  sub-Section(1)  of  Section  10  of  the  Act,  1970  

prohibiting the employment of contract labour in the works of  

sleeper  renewal  of  railway  tracks,  repairing/restoration  and  

laying and linking of tracks in the establishment of  CPT with  

effect from the date of publication of the notification.

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6. Issuance  and  publication  of  the  notification  dated  

July  7,  2005  led  to  second  round  of  litigation  between  the  

appellants  and  CPT.  While  CPT challenged  the  legality  and  

validity  of  the  notification  dated  July  7,  2005  on  diverse  

grounds, the present appellants approached the High Court for  

issuance of  mandamus to  CPT to  implement  the  notification  

dated July 7,  2005 and not to engage contract  labour in the  

matter of maintenance, laying and linking, changing of railway  

tracks maintained by CPT.

7. By  his  order  dated  May  15,  2007,  Single  Judge  

dismissed the writ petition filed by CPT and held that there was  

no irregularity or illegality in the notification dated July 7, 2005.  

Insofar as the writ petition filed by the present appellants was  

concerned, its hearing was deferred.

8. CPT  challenged  the  order  dated  May  15,  2007  

passed by the Single Judge before the Division Bench of the  

High Court in intra court appeal. The Division Bench heard the  

appeal preferred by CPT and  also the writ petition preferred by  

the present appellants together and vide order dated March 31,  

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2008 directed CPT to approach the Ministry of Labour through  

Ministry of Shipping. This is what the Division Bench directed :

“The  Port  Trust  is  thus  directed  to  approach  the  Ministry  of  Labour  through  Ministry  of  Shipping.  Both  the  Ministries should discuss the issue at the appropriate level  and  take  a  formal  decision  in  the  matter.  The  said  two  departments would be free to take a decision irrespective of  the observations made by the learned Single Judge in the  judgment and order impugned.

Mr.  Sengupta  has drawn our  attention  to  the  latest  decision  in  the  case  of  City  and  Industrial  Development  Corporation, Maharashtra Ltd., & Ors. (supra) to show that  the issue to be resolved by High Power Committee to be  appointed by the Central Government. We feel that the issue  should  be left  to  the Central  Government  for  formation  of  High Power Committee if they so desire. If the High Power  Committee is formed regard may be had to the case of City  and Industrial  Development Corporation, Maharashtra Ltd.,  & Ors. (supra).

So  long  a  decision  at  the  appropriate  level  is  not  taken  in  the  matter  status  quo  as  of  date  should  be  maintained by the parties.

Mr.  Sengupta  contends  that  RITES  is  now  maintaining the railway track. Let them continue till the final  decision comes from the appropriate level.”  

9. Section  5  of  the  Act  provides  for  constitution  of  

committees by the Central Board or the State Board for such  

purpose as may be thought fit. It reads thus :

“5.  POWER  TO  CONSTITUTE  COMMITTEES.  -  (1)  The  Central Board or the State Board, as the case may be, may  constitute  such  committees  and  for  such  purpose  or  purposes as it may think fit.  

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(2)  The  committee  constituted  under  sub-section  (1)  shall  meet at such time and places and shall observe such rules  of procedure in regard to the transaction of business at its  meetings as may be prescribed.  

(3) The members of a committee shall be paid such fees and  allowances for attending its meetings as may be prescribed :  

Provided that no fees shall be payable to a member who is  an officer of government or of any corporation established by  any law for the time being in force.”  

10. The  provision  pertaining  to  prohibition  of  

employment of contract labour is contained in Section 10 of the  

Act  which empowers the  appropriate  Government  to  prohibit  

employment  of  contract  labour  in  any  process,  operation  or  

other work in any establishment. Section 10 reads thus:  

“10.  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 notification in the Official Gazette, employment of  contract  labour in any process,  operation or other  work in  any establishment.  

(2) Before issuing any notification under sub-section (1) in  relation  to  an  establishment,  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  establishment;  

(b) whether it  is of perennial nature, that is to say, it  is of  sufficient  duration having regard to the nature of  industry,  

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trade, 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;  

(d) whether it is sufficient to employ considerable 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 appropriate government thereon shall be final.”  

11. As noticed above, the Central Board constituted a  

Committee under Section 5 of the Act to go into the question of  

abolition of contract labour in the establishment of CPT. The  

Committee  examined  the  diverse  aspects  of  the  matter  and  

made its recommendations as follows :  

“RECOMMENDATIONS”

“From  the  above  elaboration  of  work,  the  job  in  question needs to be examined in the contract of provisions  of section 10(2) of the Contract Labour (R&A) Act, 1970.

1. Whether the work is incidental to or necessary  for the industry of Calcutta Port Trust the Committee  is of the opinion that works of CPT involved loading  and in landing of Cargo from or on the vassals of also  the  stores  of  Cargo.  The  railway  track  in  Calcutta  Dock System has been laid to facilitate the movement  of rail bound caused to and from CPT so the work is  very much incidental to the main operation of CPT.

2. The question whether work is of the provisional  nature  and  is  of  sufficient  duration,  the  committee  observes  that  if  renewal/cancellation  of  Tracks  and  sleepers  have  been  going  on  almost  continuously  may be in some or other part of the Railway tracks  

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and contract workers are working for full 8 hours so  job deemed to be a perennial nature.

3.The question whether it is also done by the regular  workmen, it has already been explained the total 71 of  regular  employee  are  also  involved  on  day  to  day  track maintenance job which includes the repairing to  tracks  after  derailment  and  in  routine  gauging  lubrication  of  point  and  crossing,  cleaning  of  check  rail, Dusking etc. which are also done by the contract  workers  after  the  replacement,  renewal  of  sleepers  and tracks and also in laying or linking of new railway  lines.

The Committee also feels that it will be relevant to mention  about the notification No. U-23013/21/98 LW dated 20th June  2000 issued by the Ministry of Labour, Government of India,  by  which  the  employment  of  contract  labour  has  been  prohibited on the job of regular track maintenance such as  through  packing  casual  renewal  and  maintenance  work  required for day to day maintenance in the establishment of  Eastern Railway.

In  the  contract  above  facts  and  observation,  the  committee is of opinion at work jobs of sleepers renewal of  Railway  tracks  repairing/restoration  laying  and  linking  of  Tracks in the establishment of Calcutta Port Trust seem to  be of regular nature and attracts the provisions of Section  10(2) of the Contract Labour (Regulation and Abolition) Act,  1970. Hence the committee recommended for prohibition of  contract labour on the above mentioned job.”     

12. The matter  was reconsidered by Central  Board in  

the light of the order of Calcutta High Court passed on July 22,  

2004  and  it  recommended  to  the  Central  Government  for  

prohibition  of  employment  of  contract  labour  in  the  jobs  of  

sleeper renewal of railway tracks,  repairing/restoration,  laying  

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and linking of tracks in the establishment of CPT. This is what  

Advisory Board said in its recommendation :

“……The Committee had recommended prohibition of  employment of Contract Labour on the ground that the work  seem to be of regular nature and since 1988 contracts have  been  engaged  for  renewal/construction  of  tracks  and  sleepers  in  some  or  other  part  of  the  railways  tracks  belonging  to  KOPT.  Secondly  the  job  performed  by  the  regular  employees  were  almost  identical  to  that  of  job  performed by contract workers and both type of maintenance  job, i.e. day to day maintenance and periodical maintenance  are required to be done on regular  basis.  The Committee  has also observed that since February 2000, miscellaneous  work in connection with strengthening of KOPT railway track,  as  and when required,  including  supply  of  materials  have  been  given  on  contract.  This  is  at  variance  with  the  statement of KOPT that there is no contract in the said jobs  since 1998.

The  management,  on  enquiry  by  the  Board,  categorically  stated  that  no  contract  labour  system  exists  now in the jobs under consideration and they would not be  adversely  affected  even  if  the  contract  labour  system  is  abolished.  The  management  was  also  not  able  to  satisfactorily convince the Board, on the query whether the  renewal of track/sleepers would be done only once in 10-12  years at one go and not in parts on continuous basis. This  gives rise to an inference that the jobs under consideration is  of  perennial  type  and are  required to  be  done by regular  employees.  In  view  of  the  recommendations  of  the  Committee and categorical statement of KOPT, and the fact  that  the  requirements  under  Section  10(2)  of  the  Act  are  satisfied,  the  Board  recommends  to  the  Government  prohibition of employment of contract labour in the jobs of  sleeper  renewal  of  railways  tracks,  repairing/restoration,  laying and linking of tracks in the establishment of KOPT,  Kolkata.”    

13. It is in the light  of the aforesaid backdrop that  the  

Central Government issued notification under Section 10(1) of  

the Act, 1970 prohibiting the employment of contract labour in  

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the  works  of  sleeper  renewal  of  railways  tracks,  

repairing/restoration,  laying  and  linking  of  tracks  in  the  

establishment  of  CPT.  The  Single  Judge  did  not  find  any  

infirmity or illegality in the said notification. However, Division  

Bench  without  going  into  the  merits  of  the  controversy,  

interfered with the order of the Single Judge by directing CPT to  

approach the Ministry of  Labour through Ministry of Shipping  

and both ministries were directed to discuss the issue at the  

appropriate level and take a formal decision in the matter.   We  

find it  difficult   to countenance  the approach of the Division  

Bench.  The Division Bench gravely erred in overlooking and  

ignoring the fact that the Central Government had already taken  

a decision in exercise of  its  power under Section 10(1) after  

following the consultative process provided in sub-Section (2) of  

Section 10 and the relevant aspects mentioned therein. There  

was  no  occasion  much  less  justification  to  direct  CPT  to  

approach the Ministry of Labour through Ministry of Shipping.  

The Division Bench ought to have considered the matter on its  

own merit within the permissible  limits of judicial  review.  If the  

impugned  order  is  allowed  to  stand,  it  would  tantamount  to  

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setting  at  naught   the  whole   exercise   undertaken   by  the  

Central  Government  under section 10 of the Act  without the  

Division Bench having considered   whether  the notification  

dated July 7, 2005 suffers from any infirmity  and illegality.  On  

this short ground alone, we are satisfied that matter needs to be  

remitted back to the High Court for fresh consideration.

14. Appeal  is,  accordingly,  allowed  to  the  aforesaid  

extent. M.A.T. No. 2363 of 2007 and F.M.A. No. 430 of 2008  

are restored to the file of the High Court at Calcutta for fresh  

hearing and disposal in accordance with the law.  We request  

the  High  Court  to  dispose  of  the  aforesaid  matters  as  

expeditiously as may be possible.   No orders as to costs.     

                           ……………………J  

(Tarun Chatterjee)

…….…… ………..J

    (R. M. Lodha)

New Delhi November 6, 2009.

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