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PETITIONER: VEGOILS PRIVATE LEMITED

       Vs.

RESPONDENT: THE WORKMEN

DATE OF JUDGMENT10/09/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN

CITATION:  1972 AIR 1942            1972 SCR  (1) 673  1972 SCC  (2) 724

ACT: Industrial  Dispute-Abolition of Contract  Labour-Principles to be followed-Effect of the Contract Labour (Regulation and Abolition) Act (Central Act 37 of 1970) and the  Maharashtra Mathadi,  Hamal  and other Mannual  Workers  (Regulation  of Employment and Welfare) Act 30 of 1969.

HEADNOTE: The  appellant--a  private limited  company-carried  on  the business  of’ manufacturing edible oils, soaps  and  certain by-products.  In connection with its business the  appellant employed  about 700 permanent workmen.  However for  loading and  unloading  seed and oil cake bags and for  feeding  the hoppers  in  the  solvent  extraction  plant  the  appellant employed  labour  through a contractor.  The workmen  in  an industrial  dispute  claimed  inter alia that  the  work  of loading  and unloading seed bags as well as that of  feeding the  hoppers  was  of a perennial nature  and  therefore  in respect  of these contract labour should be abolished.   The Industrial  Tribunal on considering the evidence  before  it held that the work of feeding the hoppers could not be  said to intermittent and sporadic as claimed by the appellant; it was  on the other hand closely connected with the  principal activity of the appellant.  In similar plants in the  region the work of feeding the hoppers was carried  on by permanent workmen.   On the basis of these factors the  Tribunal  held that  the appellant also should carry out this work  through permanent  workmen.  In the matter of loading and  unloading of  seed  and  cake  bags  the  Tribunal  held  that   these activities  were  also  closely  connected  with  the   main industry  and  the work was of.a permanent  character.   The Tribunal noted that the comparable units in the same  region carried  on  the  work  of  loading  and  unloading  through contract labour, but nevertheless, on the view that contract labour  must be discouraged, the Tribunal held that in  this respect  also  the  appellant  must  employ  only  permanent workmen.   The  Tribunal  referred to  the  Contract  Labour (Regulation  and  Abolition) Act 1970, (Central  Act  37  of 1970)  and  the Maharashtra Mathadi Hamal and  Other  Manual Workers  (Regulation  of Employment and Welfare) Act  30  of 1969 and observed, that these two enactments also  supported its view.  In appeal by special leave before this Court  the

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appellant apart from questioning the Tribunal’s decision  on merits  challenged  the  jurisdiction  of  the  Tribunal  to consider  the  question of abolition of contract  labour  in view of the provisions of the aforesaid two Acts. HELD:     (i) The Industrial Tribunal acquired  jurisdiction to  entertain the dispute in view of the reference  made  by the State Government on April 17, 1967.  Admittedly on  that date neither Central Act 37 of 1970 nor, Maharashtra Act  30 of 1969 had been passed.  Even during the proceedings before the  Tribunal  the appellant raised no objection  after  the passing  of  the  two enactments that the  Tribunal  had  no longer  jurisdiction to adjudicate upon the dispute.   Under these circumstances the Tribunal had to adjudicate upon  the point  referred  to it having due regard to  the  principles laid  down by the Courts, particularly this Court  governing the abolition of contract labour. [689 E-G] (ii) Central  Act  37 of 1970 had received  the  President’s assent  before  the passing of the Tribunal’s award  but  it came into force after the. 9-L3SupC.I./72 674 said  award.  The State Act had come into force  before  the passing  of  the  award.  Though  the  contention  that  the Tribunal  lost  jurisdiction  to consider  the  question  of contract  labour  in view of these enactments could  not  be accepted  this  Court would be justified when  dealing  with this appeal to give effect particularly to the provisions of the  Central Act having due regard to the clearly  expressed intention  of the legislature in the said Act regarding  the circumstances under which contract labour can be  abolished. [689 C-D; 690 B] (iii)     Even according to the evidence of the  appellant’s witnesses  it was clear that the feeding of hoppers  in  the solvent  extraction  plant  was  an  activity  closely   and intimately   connected  with  the  main  activity   of   the appellant,  namely,  crushing oil cakes and  oil  seeds  for extraction of oil and other chemical production.   Excepting for  a  few days this work had that  by  employing  contract labour  for this purpose the appellant would be  enabled  to keep  down the costs on the ground that there would  not  be sufficient work for all the workmen if permanent labour  was employed.   There was no wrong approach by the  Tribunal  in this  regard.  Further the award of the Tribunal  abolishing the  contract labour in respect of feeding the  hoppers  was fully  justified  because  it was  in  accordance  with  the principles  laid  down  by  this  Court  and   substantially incorporated in ,Cis. (a) to (d) of s. 10(2) of the  Central Art.  The Tribunal’s direction in this regard must therefore be upheld.. [680 C-F; 681 A-B; 694 C-D] (iv) However  the Tribunal’s direction to the appellant  not to  engage :any labour through a contractor for the work  of loading  and unloading after May 1, 1971 must be set  aside. The  Central Act had come into force on February  10,  1971. Under  s.  10  of the said Act the  jurisdiction  to  decide matters  connected  with prohibition of contract  labour  is vested in the appropriate Government.  Therefore with effect from February 10, 1971 it is only the appropriate Government that can prohibit contract labour by following the Procedure and  in accordance with the provisions ,of the Central  Act. The   Industrial  Tribunal  in  the  circumstances  had   no ,jurisdiction, though its award was dated November 20, 1970, to   give  a  ,direction  in  that  respect  which   becomes enforceable after the date of the ,coming into force of  the Central  Act.  In any event, such a direction  contained  in the  award could not be enforced from a date when  abolition of  contract  labour  can only be done  by  the  appropriate

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Government in accordance with the provisions of the  Central Act. [692 A-D] Further under cl. (c) of s. 10(2) of the Central Act one  of the  relevant  factors  to  be  taken  into  account  is  to consider, when contract labour regarding any particular type of  work is proposed to be abolished, whether that  type  of work  is  done  ordinarily through regular  workmen  in  the establishment, or an establishment similar thereto.  In  the present  case  similar  establishments,  as  noted  by   the Tribunal,   employed   contract  labour  for   loading   and unloading.   The  evidence  also showed  that  the  work  of loading  and unloading required varying numbers  of  workmen from day to day justifying the employment of contract labour under the ,.principles laid down by this Court. [693 E] The  Standard-Vacuum  Refining  Co. of  India  Ltd.  v.  Its Workmen  & Ors., [1960] 3 S.C.R. 466, Shibu Metal  Works  v. Their  Workmen,  [1966] 1 L.L.J. 717 and National  Iron  and Steel  Co.  Ltd. and Ors. v. The State of  West  Bengal  and Anr., [1967] 2 S.C.R. 391 referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION             Civil  Appeal  No. 620 of 1971. 675 970,  of  the Industrial Tribunal,  Maharashtra,  Bombay  in Refeence (I.T.) No. 110 of 1967. G.   B.  Pai,  P.  N.  Tiwari and  0.  C.  Mathur,  for  the appellant. The respondent did not appear. The Judgment of the Court was delivered by Vaidialingam J. This appeal, by special leave, is,  directed against  the award (Part.-I) dated November 20, 1970 of  the Industrial Tribunal, Maharashtra, Bombay in Reference  (I.T. No. 110 of 1967). The reference was made by notification dated April 17,  1967 and three questions were referred for adjudication.  We  are not  concerned in these proceedings with the subject  matter of  dispute relating to demand Nos. 2 and 3. Part I  of  the award,  against which this appeal is preferred,  related  to demand No. 1, which was as follows:               "Demand No. 1--Abolition of contract system:               The Company shall abolish the contract  system               in whatever form and in any department of  the               company  existing at present and  the  workmen               employed  by the contractors shall be  treated               as the Company’s regular employees and all the               benefits  of  service  conditions  and   wages               available  to the company’s employees will  be               extended to them." It  will be seen that the above demand consisted  really  of two  parts  :  (a)  that  the  contract  system  should   be abolished,  and  (b)  that  the  workmen  employed  by   the contractor  should  be treated as  the  appellant’s  regular employees  with all the benefits of service conditions  that are available to the regular employees of the Company. The  original parties to the reference were the Swastik  Oil Mills Ltd., Wadala, Bombay and the workmen employed  therein as  represented  by  the Dyes and  Chemical  Workers  Union. Prior  to its incorporation in 1968, the  appellant  Company was carrying on business of manufacturing edible oils, soaps and its by products such as glycerine and deoiled cake  meal in the name of Karamchand Premchand Private Limited.  In  or about  March,  1970 the latter firm was taken  over  by  the

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appellant Company.  The said business was originally carried on by Swastik Oil Mills Limited, which by the orders of  the High  Courts  of  Bombay and Gujarat  was  amalgamated  with Karamchand  Premchand  Private Limited on  April  18,  1967. Since the taking over of the said Karamchand 676 Premchand  Private Limited by the, Vegoils Private  Limited, namely,  the appellant, the latter has been carrying on  the said business. In connection with its business, the appellant employs about 700  permanent  workmen at its factory in  Wadala,,  Bombay. According  to the appellant, it has been employing for  more than 30 years a contractor for loading, unloading,  weighing and stacking materials and bags and feeding the hoppers.  It may be mentioned at this Stage that the workmen had raised a dispute  under demand No. 1 regarding the abolition  of  the contract  system of employing labour in the two  departments of  the appellant, namely, (i) in the canteen  section,  and (ii)  in the seeds godown and the solvent extraction  plants section.   But before the Industrial Tribunal the Union  did not  press their demand for abolition of contract labour  in respect  of  the  canteen section.   As  a  consequence  the Industrial  Tribunal in the award has rejected the claim  of the  Union  for  abolition of the  contract  system  in  the canteen  section.   There  fore, we  will  make  no  further reference  to the stand taken by the parties regarding  this section, in our judgment. We  will now refer to the stand taken by the  appellant  and the  Union  regarding the abolition of  contract  labour  in respect  of seeds godown and the solvent extraction  plants. The stand taken by the Union in its statement of claim dated May 30, 1967 was briefly as follows : The Company had work in this section which was of a  regular and  continuous  nature.  The work in that section  was  not intermittent  or accidental type.  The work required  to  be performed is of loading and unloading seed bags and also  to feed the hoppers for the requirements of solvent  extraction plants.   The  product  left after the  process  of  solvent extraction  also is to be filled in gunny bags.   All  these items  of  work  are of a permanent  nature  and  was  being regularly  carried  out  by  the  contractor’s  workmen   by employing  on  an average more than 200 workmen.   The  work being of a continuous nature is being carried out throughout the  year.  Further, this type of work is an essential  part of   the  solvent  extraction  unit.   As  the   jobs   were essentially  connected  with  the day to  day  work  of  the Company,  and as they were continuous, the employment  of  a contractor for getting these types of work done, is  nothing but an unfair labour practice adopted by the appellant.  The employment  of contract labour has been disapproved  by  the various  Committees  and Commissions.  This Court  has  also discussed and laid down principles regarding the  employment of   contract  labour.   The  labourers  working   under   a contractor  were  at  his mercy and  were  not  getting  the benefits  which  the permanent employees  of  the  appellant Company are normally entitled to.  To 677 avoid  giving the benefit to such workmen, the  Company  has adopted  the  device  of having the work  done  by  contract labour.  The demand for abolition of contract labour is fair and reasonable and as such the demand has to be acceded to. In  the  written statement dated July 22,  1967,  which  was originally  filed  by the Swastik Oil  Mills  Limited,,  the Company took up the following contentions : Wherever the work was of a perennial nature, the Company

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has  been  having  that  work done  only  by  its  permanent employeesBut   where   certain  items  of   work   were   of intermittent  and  sporadic  nature  and  irregular  in  its working,  to ensure efficiency, economy and proper  working, the appellant had to engage contract labour.  In respect  of the   seeds  godown  and  solvent  extraction  plants,   the appellant classified the type of work into four parts :  (i) unloading  of  seeds and cake bags from railway  wagons  and motor  trucks and stacking the same in the godown  for  easy identification  in  separate lots, (ii) loading  of  deoiled cake  meal bags into motor lorries and wagons whenever  they had to be despatched from the factory, (iii) feeding of cake in  the  hopper which in turn feed  the  solvent  extraction plants  through a system of long screw conveyors  and  other necessary equipment; and (iv) filling, weighing and stacking ,of small bags. The full particulars regarding the type of work involved  in the  above  four items were given. All these items  of  work were  of an intermittent and irregular nature.  The  loading and unloading in wagons and trucks was not a regular  affair but  dependent  on the availability of  railway  wagons  and trucks.  The  feeding of cakes into hoppers and  filling  up deoiled  cakes  were also of an irregular  and  intermittent nature. In view of these circumstances, it was not  possible to  employ permanent workmen to carry out the said items  of work.  Further,  legislation regarding  the  regulation  and abolition  of contract labour was being contemplated by  the Central  Government  and the State of  Maharashtra.  Various charts  relating  to  the  approximate  number  of   workmen employed, their          hours  of work as well as the  days on which they were employed        for  these items of  work by the contractor, were also given. In       view   of   the peculiar  type  of these items of work, the  demand  of  the Union for abolition of contract labour was not justified. The  Industrial  Tribunal considered the  demand  under  two heads  :  (i)  the abolition of contract  labour,  and  (ii) treating the   workmen employed by the contractor as regular employees of the         Company  and  giving them  all  the benefits of service conditions which the permanent employees were entitled to. 678 So far as the second part of the above demand is  concerned, the   Industrial  Tribunal  rejected  the   Union’s   claim. According  to  the  Industrial Tribunal the  Union  has  not placed  any material nor made-out any case  justifying  this part  of  the  claim.  In  this  connection  the  Industrial Tribunal  relied  upon the evidence of the  contractor  Shri Giri,  as well as the documents filed by him,, and has  come to  the  conclusion  that  the  persons  working  under  the contractor were not his permanent employees and that, on the other  hand, they were free to go and work on any day  under anybody else.  In view of this circumstance, the  Industrial Tribunal  held that there was no relationship  of  permanent employees  between  the  contractor  and  the  labour  force engaged  by him for the daily work which he had to get  done under  the contract.  Hence this part of the claim to  treat the contractor’s workmen as regular employees of the Company was rejected. Regarding the first part of the demand, namely, abolition of contract  labour, the appellant adduced volume of  evidence, oral  as  well  as documentary.   The  documentary  evidence consisted  of  various  charts  prepared  not  only  by  the appellant  but  also by the contractor,  Shri  Giri,  giving particulars about the number of workmen employed, the  hours of work done by them, as well as the days on which there was

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no  work  at all to be done.  Some of the  officers  of  the appellant  Company as well as the contractor  gave  evidence regarding the manner in which the work was done in the seeds godown  and the solvent extraction plants.   In  particular, the appellant led evidence to show that the work of  loading and unloading in wagons and lorries was not of a  continuous nature.   The  arrival of wagons on any particular  day  was uncertain.  Nevertheless, the contractor has to be ready  to clear  the  wagons as and when it arrives  within  the  time allowed   by  the  railway  authorities,   otherwise   heavy demurrage had to be paid.  While on certain days no wagon at all  will  arrive, on certain other days  suddenly  a  large number of wagons will arrive necessitating the clearance  of the  goods  promptly and immediately for which  purpose  the contractor  was  always  having workmen ready  to  meet  the situation.   This type of work, according to  the  appellant company,  could be done efficiently and promptly only  by  a contractor. The  Union,  on  the other hand, placed  reliance  upon  the charts  furnished  by The appellant and the  contractor  and pleaded  that  the work was of a  continuous  and  perennial nature,  which could be very efficiently discharged  by  the permanent  employees  of the appellant Company.   The  Union also  referred  to the practice obtaining in  certain  other companies doing similar business in the area and pointed out that  the type of work that was being done by the  appellant through  a  contractor was being done in those  concerns  by their permanent workmen. 679 The Industrial Tribunal considered the affidavit filed ,  by Vallabhdas  A.  Parikh,  who was at the  material  time  the Production Director of the Swastik Oil Mills, But he was not available, for giving evidence, hence the Company relied  on the  affidavits filed by Anirudhha R. Shah, the  Head  Time- keeper and Ramanlal M. Desai, who was incharge as ’the  Head of the Department of the solvent section, crushing  section, refinery  and  refined filling sections  of  the  appellant. Further the business Manager of the appellant Sri  Rajnikant C.  Nanavati had also filed an affidavit.  ’the,  contractor Giri also gave evidence on behalf of the appellant.  Such of those  witnesses  who had given  affidavits  supporting  the claim  of  the appellant were cross-examined by  the  Union. The  Industrial Tribunal placed reliance on the evidence  of Ramanlal M. Desai, who was the Head of the Department of the Solvent  section.  This witness gave  particulars  regarding the  approximate number of days that the solvent  extraction plant  worked  in the years 1967, 1968 and 1969.   From  his evidence  it  was clear that out of 365 days  in  1967,  the plant did not work for 65 days because of nonavailability of raw  materials and it had to be closed for general  cleaning and repairs for about 23 days.  Similarly it remained close, for  6  days  due to holidays and for 8 days  due  to  power failure.   During all the other days the plant was  working. The position in 1968 and 1969 was more or less substantially similar.   Even  in  cross-examination  Ramanlal  M.   Desai admitted  that the solvent extraction plant was working  for about  300  days out of 365 days in the year  and  that  the solvent  extraction plant was working in three shifts.   The contractor  Giri also gave evidence regarding the number  of workmen  engaged  by him regarding  the  solvent  extraction plant.  The Industrial Tribunal is of the view that the work of filling the hoppers, in view of the evidence referred  to above,  cannot be said to be intermittent or  sporadic.   On the  other  hand,  feeding of hoppers  in  the  solvent  ex- traction plant is intimately and closely connected with  the

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principal  activity  of  the  appellant,  namely,  that   of crushing  oil cakes and oil seeds for extraction of oil  and other  chemical productions.  In- this view, the  Industrial Tribunal held that the work of feeding the hoppers and other allied  process  connected, with the filling  of  bags  with deoiled  cakes  must  be considered to be  a  necessary  and integral  part of the industry carried on by the  appellant. The Industrial Tribunal is also of the view that the work of feeding the hoppers and other activities connected with  the same  are  of  a  permanent  nature.   In  consequence,  the Industrial Tribunal held that there was no justification for the appellant to employ contract labour for this purpose. Mr’  G.  B.  Pai, learned counsel,  for  the  appellant,  no doubt,.  attacked this finding of the  Industrial  Tribunal. According to the learned counsel the evidence in this regard has  not  been  properly  appreciated  and  the   Industrial Tribunal committed an error in 680 holding that the work connected with feeding of the  hoppers and  other  activities  connected with the  same  are  of  a permanent and perennial nature. The  Union, though served, has not chosen to appear in  this appeal.   But  Mr. Pai has drawn our attention  to  all  the relevant materials on record. We are not inclined to accept the contention of Mr. Pai that the  direction given, by the Industrial Tribunal  abolishing the  contract  labour  regarding the  work  of  feeding  the hoppers and other allied activities incidental and connected therewith  is in any manner erroneous.  The direction  given in  this regard, in our opinion, is fully  justified.   Even according  to  the evidence of  the  appellant’s  witnesses, referred  to above, it is clear that the feeding of  hopoers in  the solvent extraction plant is an activity closely  and intimately   connected  with  the  main  activity   of   the appellant,  namely,  crushing oil cakes and  oil  seeds  for extraction of oil and other chemical production.   Excepting a  few days, as already referred to above, this work has  to go on continuously almost Throughout the year.  From this it follows  that this item of work is incidental to the  nature of  the industry carried on by the appellant, which must  be done  almost every day and there should be no difficulty  in having regular workmen in the employment of the appellant to do  this type of work.  It is not as if that the work is  of an  intermittent  or temporary nature or so little  that  it would not be possible for the appellant to employ full  time workmen  for this purpose.  Further, it cannot also be  said that  by  employing con-tract labour for this  purpose,  the appellant  could  be enabled to keep down the costs  on  the ground  that there would not be sufficient work for all  the workmen if permanent labour was employed, There  is  also  on record the statement Ex.   C,  filed  on behalf of the appellant.  That statement gives the items  of work  got  done  by  the  contract  labour  by  three  other concerns, namely, M/s Godrej Soap Works, M/s Tata Oil ’Mills and  M/s.  Hindustan Lever.  From the said statement  it  is seen  that  feeding  of  cakes in the  hoppers  is  done  by contract labour in the appellant Company and M/s Godrej Soap Works.   That  work is done by the departmental  workmen  in M/s.   Tata Oil Mills, M/s.  Hindustan Lever does  not  have any  solvent extraction plant, but the work of  feeding  the seeds.  in  the hoppers, filling of cakes in  the  bags  and stitching  cake  bags and stacking those bags  are  done  by departmental workmen.  Therefore, from this it follows  that the feeding of hoppers is an essential part of the  industry carried on by the appellant and that it could "very well  be

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done  by  the departmental workmen as is being done  by  M/s Tata  Oil  Mills and M/s Hindustan Lever.  In  view  of  all these circumstances pointed out above the direction of 681 the  Industrial  Tribunal  regarding  this  aspect  is   not erroneous.   In  fact  Mr. Pai  ,himself  felt  considerable difficulty  in satisfying us that there has been  any  wrong approach  made by the-Industrial Tribunal, in  this  regard. Further,  the  direct-ion given by the  Industrial  Tribunal abolishing  the  contract labour in respect of  feeding  the hoppers is quite in accordance with the principles laid down by  this Court in various decisions.  Those principles  will be referred to by us when considering the direction given by the  Industrial  Tribunal  abolishing  the  contract  labour regarding loading and unloading of seeds bags in wagons  and trucks. The  Industrial’Tribunal  considered the  evidence  of  the, appellant’s  witnesses  regarding loading and  unloading  of seeds and cake bags from railway wagons and motor trucks and stacking  the same in the godowns as well as the loading  of deoiled  cake  meal  bags in the motor  lorries  and  wagons whenever  required to be dispatched from the factory.   Here again  the  Industrial Tribunal is of the  view  that  these activities are also closely connected with the main industry carried  on by the appellant and that the said work is  also of  a  permanent  character.  This item  of  work  forms  an integral  part  of the process of the industry  itself.   On this  reasoning,  the Industrial Tribunal  held  that  those activities also could be carried on by the appellant by  its permanent workmen.  The industrial Tribunal no doubt,  noted that  from Ex.  C it is clear that the work of  loading  and unloading of seed bags, cake bags from wagons and lorries is being done in all the firms, namely, M/s Godrej Soap  Works, M/s Tata Oil Mills and M/s Hindustan Lever, situated in  the same area including the appellant, were got done by contract labour.   But, nevertheless,, the Industrial Tribunal is  of the  view  that  the contract labour will have  to  be  dis- couraged.   The  Industrial  Tribunal  also  referred  to  a statement filed by the appellant Ex.  C9.  The said  exhibit is as follows "EMPLOYMENT POSITION-LOADING AND UNLOADING CONTRACTOR Month  No.of- Total-  Aver-  Total-  Maxi-  Mini-   Total-        emplo- Man-    age-   work-    mum-  mum   amount        yees on days   atten  ing     emplo  emplo paid to        roll           dance  days    yed per yed per cont-                       per day        day     day    ractor March, 1967    67   1176 47   25   51   41   11,183.05 April, 1967    64   1188 47   25   56   43   11,300.02 May, 1967      63   6124548   46   55   43   12,510.40 June, 1967     82   1669 64   26   76   46   11,358 ;00 for the Swastik Oil Mills Ltd., Sd. V. A. Parikh, Production Director." 682 From  the  above  figures furnished by  the  appellant,  the Industrial  Tribunal is of the view that the average  number of  employees on the roll were between 63 and 82  per  month and that the total man-days ranged between 1188 to 1669  per month.  The average attendance per day again ranged  between 46  to-  47  per day.  From this  statement  the  Industrial Tribunal drew an inference that the total number of  working days  in every month was between 25 or 26 while the  minimum and  maximum persons employed per day fluctuated between  41 and  46 at the minimum and between 51 to 76 at the  maximum. The Union also placed very strong reliance on this document.

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Ex.   C9  in  support of its contention  that  the  work  of loading  and unloading is of a permanent nature and that  it could  be  done by the permanent employees of  the  Company. The  Industrial  Tribunal accepted this  contention  of  the Union and ultimately held that even in respect of this  item of work, the contract labour should be abolished. It must also be pointed out that the Industrial Tribunal has referred  to two enactments : (1) passed by  the  Parliament and  (2) by the Maharashtra State Legislature, to  which  we will refer later.  It is the view of the Industrial Tribunal that  these  two enactments also support its view  that  the contract  labour  should be abolished as  far  as  possible. Ultimately,  the Industrial Tribunal directed the  appellant not to engage any labourer through a contractor for the work of  loading  and unloading also with effect  from  the  date after  the termination of the present contract  between  the employer and the contractor, that is, after May 1, 1971. Mr. G. B. Pai, has very strenuously attacked this finding of the  Industrial  Tribunal.   Learned  Counsel  raised  three contentions  :  (1)  The Tribunal had  no  jurisdiction,  lo consider  the  question of abolition of contract  labour  in view  of the Contract Labour (Regulation &  Abolition)  Act, 1970,  (Act 37 of 1970) (hereinafter to be referred  as  the Central  Act) and The Maharashtra Mathadi, Hamal  and  Other Manual  Workers (Regulation of Employment and Welfare)  Act, 1969,  (Act 30 of 1969) (hereinafter to be referred  as  the State  Act);  (2) even on the basis of the  principles  laid down by this Court, the direction to abolish contract labour in respect of loading and unloading is erroneous in law, and (3) the finding that contract labour should be abolished  in this  regard  is opposed to the evidence  and  the  practice obtaining in other industries in the same area. Before we deal with the contention regarding jurisdiction of the industrial Tribunal based upon the Central Act and Maha- rashtra  Act, we will refer to the principles laid  down  by this  Court  in  considering the question  of  abolition  of contract   labour  which  is  the  subject  of  the   second contention of Mr. Pai.  According to 683 the learned counsel, the principles laid down by this  Court have  been  ignored when the  Industrial  Tribunal  directed abolition   of   contract  labour  regarding   loading   and unloading.   There  has  been. a consistent  demand  by  the labour for abolishing the system of contract labour and that has  given  rise to certain  industrial  adjudications,  the correctness of which has corn,-- up for consideration before this  Court.  In The Standard-Vacuum Refining Co.  of  India Ltd.  v.  Its  Workmen and others(1)  two  questions  arose, namely,  (1)  whether  a dispute  raised  by  the  permanent workmen  regarding  abolition  of  contract  labour  is   an industrial dispute under s. 2(k) of the Industrial  Disputes Act, and (2) whether the directions given by the  Industrial Tribunal abolishing the contract system was justified. We  are  not concerned with the first  aspect,  referred  to above, in the case before us.  Regarding the second  aspect, the  Industrial  Tribunal  had in that  case  abolished  the contract  system obtaining in the particular  establishment. This  Court  after refering to the  recommendations  of  the Royal  Commissions  on  Labour,  as  well  as  the   opinion expressed by several Labour Inquiry Committees appointed  in different States, has expressed the opinion that in a  given case  the Industrial Tribunal should nest its  decision  not merely  on  theoretical or abstract objections  to  contract labour  but  also  on  the terms  and  conditions  on  which contract  labour is, employed and the grievance made by  the

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employees  in  respect  thereof.  In that  case  this  Court further held that the contract labour was doing an itself of work  which  was incidental to  the  manufacturing  process, which  was carried on by the company and that type  of  work was necessary and also of a perennial nature which had to be done every day.  It was also noted I that such type of  work was generally done by the workmen in other industries in the area  by the regular employees of the employer.  In view  of all these circumstances it was held by this Court that there should  be  no difficulty in having the said  type  of  work getting  done  by regular workmen of the employer.   It  was also  emphasised that the matter would be different  if  the work  was of an intermittent or temporary nature or  was  so little  that  it would not be possible to employ  full  time workmen  for the purpose.  This Court approved the  decision of the Industrial Tribunal abolishing contract labour in the above  circumstance.  The said principles laid down  in  the above  decision  have  been referred to  with  approval  and adopted  in  Shibu Metal Works v. Their Workmen 2  )  .  The abolition of contract labour by the Industrial Tribunal  Was also approved in. this case.  In National Iron and Steel Co. Ltd.  and others v. The State of West Bengal and  another(3) after quoting with approval (1)  [1960] 3 S.C.R. 466 (3) [1967] 2 S.C.R. 391. (2) [1966] 1 L.L.J. 717. 684 the  principles  laid down by this Court  in  The  Standard- Vacuum  Refining  Co.  of  India Ltd.  v.  Its  Workmen  and others(-’),   this  Court  afirmed  the  decision   of   the Industrial  Tribunal  abolishing  ,contract  labour  on  the ground that the employment of contract labour would not have served to keep down the costs of the employer on the  ground that  there would not be sufficient work for the workmen  if permanent labour was employed. From the principles laid down by this Court and referred  to above,  it  is  clear that if the work  for  which  contract labour  is employed is incidental to and  closely  connected with the main activity of the industry and is of a perennial and permanent nature, the abolition of contract labour would be justified.  It is also open to the Industrial Tribunal to have regard to the practice obtaining in other industries in or about the same area.  It may be pointed out that most  of the  principles laid down by this Court have been given  due regard  in  the  Central Act, to which  we  will  refer  im- mediately.   In  our  opinion, Mr.Pai is  justified  in  his contention  that  the principles laid down by  this  Court,, though adverted to by the Tribunal, have not been given  due regard,  when  it gave a ,direction regarding  abolition  of contract labour regarding loading and unloading.  We will be discussing  this aspect a little more ;elaborately  when  we deal with the third contention of Mr. Pai on merits. Now coming to the first contention, it is necessary to refer to  the  material  provisions of the  two  enactments.   The Central  Act  received  the  assent  of  the  President   on September 5, 1970 and came into force on February 10,  1970. Therefore,  at the time when the award was passed,  the  Act had received the assent of the President, though it had  not come  into force, but the State Act had been passed on  June 13,  1969  and we are informed that it had come  into  force even before the date of the award. The Central Act, as its preamble shows, was to regulate  the employment of contract labour in certain establishments  and to  provide for the abolition in certain  circumstances  and for matters connected therewith.  Under sub-s. (4) of s.  1,

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the  Act applies to the establishments mentioned therein  as well  as  to  every contractor who  employs  the  number  of workers  referred  to in cl. (b).  There is  no  controversy that the Act applies to the appellant establishment. Section  2  defines  the  various  expression.   Expressions "appropriate  Government"  "contract  labour"   "contractor" "establishment"  & "principal employer" are all  defined  in cls.  (a) (b) (c) (e) and (g) respectively of sub-s. (1)  of s.  2. Chapter 11 deals with the Advisory Board.  Section  3 (1 ) provides for the Central                             685 vernment  constituting ,the Central Advisory Contract Labour hard,  to  advise  the Central  Government  with  regard  to matters sing out of the Administration of the, Act.   Sub-s. (2)  provides, the composition of the said Board,  and  from cl. (c) it ’is seen at among other persons, the, said  Board is  to  consist of the representatives  of  the  contractor, workmen and the industries concern Under the proviso to sub- section (3) the number of members nominated to represent the workmen  shall  not  be less than  the,  member  of  members nominated  to  represent  the principal  employers  and  the contractors.   Section  4 deals with the constitution  of  a hilar  Advisory  Board by the State  Government.   The  said State advisory Board is also to consist among other persons, of  the representatives of the industry, the contractor  and the workmen. proviso to sub-section 3 of s. 4 similar to the proviso to subsection (3) of s. 3 has also been enacted. Chapter  III deals with the registration  of  establishments employing  contract  labour.  Sections 6 to 15 are  in  this Chapter, section 6 deals with the appointment of registering officers  by the appropriate Government by  notification  in the  Official Gazette. section 7 makes it compulsory on  the part  of  every principal employer of  an  establishment  to which  the  Act  applies  to make  an’  application  to  the registering   officer   within  the  time   prescribed   for Registration  of  the establishment.  Section 8  deals  with revocation  registration  in  the  circumstances   mentioned therein.    Section   dealing  with  the  effect   of   non- registration   prohibits  the  principal  employer   of   an establishment  to  which  the  Act  applies  from  employing contract labour if the establishment has not been registered under  s. 7 within the time prescribed or in the case of  an establishment  in  respect of which  registration  has  been revoked   under  s.  8,  Section  10  which  prohibits   the employment of contract labour and  which, in our opinion, is an important provision is as follows Section 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  es- tablishment and other relevant factors, such as- (a)  whether  the  process,  operation  or  other  work   is incidental to, or necessary for the industry, trade, 686 business,  manufacture or occupation that is carried  on  in the  establishments; (b)  whether  it is of perennial nature, that is to say,  it is  of  sufficient duration having regard to the  nature  of

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industry, 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." The  following points emerge from S. 10(1)  the  appropriate Government has power to prohibit the employment of  contract labour  in  any  process,: operation or other  work  in  any establishment; (2) Before issuing a notification prohibiting contract  labour, the appropriate Government has to  consult the  Central  or State Board, as the case may be,  which  we have  already pointed out, comprises of the  representatives of  the  workmen, contractor and the  industry;  (3)  Before issuing any notification under sub-section (1),  prohibiting the   employment  of  contract,  labour,   the   appropriate Government  is  bound  to  have  regard  not  only  to   the conditions  of work and benefits provided for  the  contract labour  in  a  particular  establishment,  but  also   other relevant  factors  enumerated  in cls. (a) to  (d)  of  sub- section  (2);  and (4) under the  Explanation  which  really relates  to  cl.  (b),  the  decision  of  the   appropriate Government, on the question whether any process operation or other work is of perennial nature, shall be final. Chapter  IV  deals  with  licensing  of  contractors.    Two sections  in this Chapter have to be noted, namely,  ss.  11 and 12.  Section 11 deals with the appointment of  licensing officers  by the appropriate Government for the  purpose  of Chapter IV.  Sub-section (1) of S. 12 prohibits a contractor to whom. the Act applies, from undertaking or executing  any work’ through contract labour except under and in accordance with  the  licence issued in that behalf  by  the  licensing officers.   Sub-section (2) of s. 12 provides for a  licence issued  to  a contractor containing conditions  relating  to hours  of  work,  fixation  of  wages  and  other  essential amenities   in  respect  of  contract  labour,   which   the appropriate Government may                                         687 deem fit to impose by the rules made under s. 35.   Sections 13,  14  and  15 relate to the procedure for  the  grant  of licence,  revocation, suspension and amendment  of  licences and  appeals by persons aggrieved by the orders  made  under ss. 7, 8, 12 and 14. Chapter  V  deals with the welfare and, health  of  contract labour.  There are provisions made for the establishment  of Can.teens and Rest Houses and to provide other facilities to the contract labour by the contractor. Section  20 casts a liability on the principal  employer  to provide  the amenities referred to under ss. 16, 17, 18  and 19  for  the  benefit of contract  labour  employed  in  his establishment,  if  the contractor fails  to  provide  those amenities.    That  section  also  enables   the   principal employer,  if it provides those amenities, to  recover  from the  contractor  expenses so incurred by  him.   Section  21 makes the Contractor responsible for payment of wages to the contract  labour.   Sub-section  (2)  of  s.  21  makes   it obligatory  on  every  principal  employer  to  nominate   a representative  duly authorised by him to be present at  the time  of disbursement of wages by the contractor.  The  said sub-section  also  casts a duty on  such  representative  to certify  the  amounts  paid as wages as  prescribed  by  the rules.  Sub-section (4) makes the principal’ employer liable

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to pay wages in full or the unpaid balance due, as the  case may  be,  in case the contractor fails to make  the  payment within the period prescribed. it also enables the  principal employer  to recover from the contractor the amount so  paid to the labour. Chapter VI provides for penalty for any person  contravening any provision of the Act or the Rules. Chapter  VII deals with Miscellaneous matters.   Section  29 makes  it obligatory on a principal employer and  contractor ’to maintain the registers and records as provided  therein. Section  30 provides that the Central Act shall have  effect notwithstanding anything inconsistent therewith contained in any  other law or in the terms of any agreement or  contract of  service  or  in any standing orders  applicable  to  the establishment whether made before or after the  commencement of  the  Act.   No doubt the said  section  also  saves  any agreement  or contract or standing order, where  under,  the contract  labour gets more benefits than those conferred  on them under the Act. Section 35 gives power to the appropriate Government to make rules  for carrying out the purpose of the Act and  also  in respect  of various other matters mentioned in cls.  (a)  to (p) of sub-section (2). 688 The  State Act, as we have already mentioned, was passed  on June 13, 1969 and had already come into force when the award was  passed.   The State, Act is an Act for  regulating  the employment of unprotected manual workers employed in certain employments  in the State of Maharashtra, to make  provision for their adequate supply and proper and full utilization in such  employments, and for matters connected therewith.   It purports   to  be  an  Act  for  regulating  employment   of unprotected manual workers and to make better provisions for their  terms and conditions of their employment as also  for their welfare, health and safety measures.  Sub-section  (3) of  s.  1  makes  the  Act  applicable  to  the  employments specified-in the Schedule.  Item No. 5 of the Schedule is as follows               "5-Employment  in markets, and  factories  and               other   establishments,  in  connection   with               loading,   unloading,   stacking,    carrying,               weighing,   measuring  or  such   other   work               including  work preparatory or  incidental  to               such  operations  carried on  by  workers  not               covered   by   any  other  entries   in   this               Schedule." From the above it will be seen that employment in  factories and   other  establishments  in  connection  with   loading, unloading,  stacking etc. are within the ambit of  the  Act. Section 2 defines the various expressions.  The  expressions contractor",   "employer"   "   establishments,   "Principal employerScheme",  "unprotected  worker"  and  "work’   are defined in cls.(2), (3), (4), (7), (10), (11) and  (12) respectively  of  s.  2.Section 3  provides  for  the  State Government framing a schemefor registration of  employers and  unprotected  workers and to provide for the  terms  and conditions  of work of such unprotected workers as  well  as for their general welfare in the employment.  The, scheme so framed may provide also for the various matters mentioned in cls.  (a) to (1) of sub-section (2) section 4  empowers  the states  government  after  consultation  with  the  advisory committee  to  make one or more schemes  for  any  scheduled employement  or group of employments.  Section 5  makes  the decision of the State Government in respect of any  question arising  whether any scheme apply any class  of  unprotected

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workers  or  employers,  final.  But  the  State  Government should  arrive at a decision after consulting  the  Advisory Committee constituted under s. 14.  Section 6 deals with the establishment  of a Board by the State, Government  for  any scheduled  employment in any area.  Sub-section (3)  dealing with   the   composition   of  the   Board   provides   that representation  be given to employers,  unprotected  workers and the state Government.  Section 14 provides for the State Government constituting an Advisory Committee to advise upon such matters arising out of the administration of the Act or any Scheme made under the 689 Act.   Section  21 saves the rights and  privileges  of  the unprotected workers employed in any scheduled employment  of the  rights  and privileges that he was entitled to  on  the date  of the Act coming into force any other law,  contract, custom  or  usage.   This  right  is  saved  notwithstanding anything  contained in the Act.  Section 25 makes  void  any contract   or  agreement  whereby  an   unprotected   worker relinquishes  any  right conferred by or accruing to  ,  him under  the  Act or the Scheme.  The said  provision  applies both to the contract or the agreement made either before  or after the commencement of the Act. The  question  naturally arises what is the  effect  of  the Central and the State Acts regarding the jurisdiction of the Industrial  Tribunal  to  entertain and  adjudicate  upon  a dispute regarding abolition of contract labour.  The Central Act had received the assent of the President on September 5, 1970  before the date of the award, though the said Act  has come  into  force only with effect from February  10,  1971. The  State  Act was already in force at the  time  when  the award was passed.  Though we are not inclined to accept  the extreme  contention of Mr. Pai that the Industrial  Tribunal in  view  of these two enactments, had  no  jurisdiction  to adjudicate upon the dispute regarding, abolition of contract labour,  nevertheless,  we are of the view  that  those  two enactments,  which are now in force, have to be  taken  into account  in considering whether the award of the  Industrial Tribunal  regarding abolition of contract labour in  respect of  loading  and unloading operations has to  be  sustained. The  Industrial Tribunal acquires jurisdiction to  entertain the  dispute  in  view of the reference made  by  the  State Government on April 17, 1967.  Admittedly ’on that date none of  these  enactments  have been passed.   Even  during  the proceedings  before  the Industrial Tribunal,  there  is  no indication, that the appellant raised an objection after the passing  of the enactments that the Tribunal has  no  longer jurisdiction  to adjudicate upon the dispute.   Under  those circumstances, the Tribunal had to adjudicate upon the point referred to it having due regard to the principles laid down by  the  courts,  particularly  this  Court  governing   the abolition of contract labour.  It may be that in future if a reference  is  proposed to be made or actually made  by  the authorities concerned regarding abolition of contract labour for  adjudication by the Industrial Tribunal it may be  open to  the  persons concerned to resist the  reference  on  the ground  that the jurisdiction to consider such  matters  and prohibiting   contract  labour  is  now  vested   with   the appropriate Government under the Central Act. In  fairness  to the Industrial Tribunal it must  be  stated that  it  has  referred to these two  enactments.   But  the Industrial  Tribunal  has proceeded on the  basis  that  the effect of these two enactments 10-L3Sup.C.I./72 690 is  to abolish contract labour which is consistent with  the

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recommendations made by the Royal Commission and the various Committees constituted by the States.  No doubt, there is  a reference by the Industrial Tribunal to s. 10 of the Central Act  dealing  with  prohibition of  employment  of  contract labour,  but  in our opinion, the  Industrial  Tribunal  has misapplied  those provisions when it directed  abolition  of contract labour regarding loading and unloading  operations. We are of the opinion that we will be justified when dealing with  this  appeal  to  give  effect  particularly  to   the provisions  of  the  Central Act having due  regard  to  the clearly  expressed intention of the legislature in the  said Act  regarding  the  circumstances under  which  a  contract labour can be abolished. The  main grievance of the Union was that the conditions  of employment  of the persons working under a  contractor  were entirely  different  from  that of  the  workmen  under  the permanent  employ of the appellant and in order  to  improve the  conditions  of service of contract labour,  the  latter must be treated as the appellants regular employees with all benefits of service conditions etc. We have referred to  the various  provisions of the Central Act and, in our  opinion, it  has  elaborately regulated the  employment  of  contract labour.  It has also made provisions for improving the  ser- vice  conditions of contract labour.  ’An establishment  has been  prohibited  from employing contract labour  unless  it gets  it  registered  under  s. 7. The  said  Act  has  also provided   for  licensing  of  contractors  and   casts   an obligation  on the contractors to provide the amenities  and proper  wages  to  the  contract labour.   It  has  cast  an obligation on the principal employer to provide amenities to the contract labour, if the contractor fails to provide  the same.   Even in respect of payment of wages,  the  principal employer has to nominate a representative to be present when the  contractor disburses the wages to the contract  labour. In  fact, ’it makes it obligatory on the principal  employer to  pay the wages or any deficiency in wages in  consequence of  default committed by the contractor.   Contravention  of the  provisions  of  the Act by  any  person  including  the principal employer has been made A penal offence’ The said Act specifically deals with the Central  Government and the State, Government: constituting the Central Advisory Board  and the.  State Advisory Board  respectively.   Those Boards  consist of representatives of the workmen,  industry and of the contractor.  Section 10 dealing with  prohibiting employment of contract labour gives power to the appropriate Government to prohibit employment of contract labour in  any process, operation or other work in any establishment.   But before issuing a. notification prohibiting the employment of contract  labour,  the appropriate Government  is  bound  to consult the Central Board or the State Board, as 691 the  case  may be.  That means the  representatives  of  the contractor,  the  workmen and of the industry  will  have  a voice in expressing their views when the Board concerned  is being  consulted  With  regard to  a  proposal  to  prohibit contract  labour.   Sub-section (2) lays  down  the  various matters, which are, considered to be relevant factors, to be taken  into account by the appropriate Government before.  a notification  prohibiting  contract labour is  issued.   The appropriate Government is bound ,to have regard also to  the conditions  of work and benefits provided for  the  contract labour  in the establishment.  The Explanation which has  to be read along with cl. (b) of subsection (2) makes final the decision   of  the  appropriate  Government  regarding   the question whether any process, or operation or other work  is

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of a perennial nature. We are emphasising the provisions of s. 10 to highlight  the point  that  a particular authority acting in  a  particular manner  has been given the power and jurisdiction to  decide whether  contract  labour  has  to  be  prohibited  in.  any establishment.   Before  such  a-  decision  is  taken,  the representatives of the workmen, contractor and the  industry have an opportunity to express their opinion.  The  more important aspect to be noted is the provision  in the Explanation which makes the decision of the  appropriate Government  final, on the question, whether any  process  or operation or work is of a perennial nature.  We have already extracted the whole of s. 10 and one of the relevant  factor is  that  contained in cl. (b) of sub-s. (2) in  respect  of which the Explanation makes the decision of the  appropriate Government final.  The appropriate Government. when taking’- action  under  s. 10 will have an overall  picture;  of  the industries  carrying  on  similar activities  I  and  decide whether  contract labour is to be abolished in  respect  ’of any  of the activities of that industry.  Therefore, it,  is reasonable to conclude that the jurisdiction ’to sbide about the Abolition of contract labour, or to put it  differently, to  prohibit the- employment of, contract labour is now   to be done in accordance ’with’ S. 10. Therefore, it is  proper that  the  question whether- the contract  labour  regarding loading and unloading in the industry of the appellant is to be  abolished  or  not,  is  left  to  be  dealt  with   the appropriate  Government  under  the,  Act,,  if  it  becomes necessary.  On: this ground, we are of the opinion that  the direction  of  the Industrial Tribunal in this  ’regard  all have to be set aside. The Maharashtra, Act also, as we  have pointed  out  applies to employment in factories  and  other establishments in connection with loading and unloading etc. But,  the said Act deals with different aspects,  and  that? Act;  also  has the effect of improving  the  conditions  of both-  unprotected worker and the worker as defined  in  the Act.  But the provisions, more directly,in point, as pointed out above are above contained in the Central Act." 692 The  legality  of  the direction  given  by  the  Industrial Tribunal  abolishing contract labour in respect  of  loading and  unloading from May 1, 1971 can also be considered  from another  point  of  view.  The  Central  Act,  as  mentioned earlier, had come into force on February 10, 1971.  Under s. 10  of  the  said Act tin  jurisdiction  to  decide  matters connected with prohibition of contract labour is now  vested in the appropriate Government.  Therefore, with effect  from February  10,  1971, it is only the  appropriate  Government that can prohibit contract labour by following the procedure and  in accordance with the provisions of the  Central  Act. The Industrial Tribunal, in the circumstances, will have  no Jurisdiction, though its award is dated November 20,1970, to give  a direction in that respect which becomes  enforceable after the date of the coming into force of the ’Central Act. In  any  event,  ’Such a direction contained  in  the  award cannot  be enforced from a date when abolition  of  contract labour  can  only be done by the appropriate  Government  in accordance with the provisions of the Central Act.  In  this view  also  it  must  be held  that  the  direction  of  the Industrial  Tribunal abolishing contract labour with  effect from  May 1, 1971 regarding loading and unloading cannot  be sustained. In the view that we have expressed above that the  direction of the Industrial Tribunal will have to be set aside, it may not  be really necessary to consider elaborately  the  third

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contention of Mr. Pai, which is really an attack against the decision of the Industrial ’Tribunal on merits.  The learned counsel  has taken us through the various items of  evidence on record.  The appellant has filed various charts  relating to  several  periods showing the number of days in  a  month when  the  work  of loading and unloading  from  wagons  and trucks  was  done by the contractor as also the  volume  ,of work  done  together with particulars  regarding  days  when there was absolutely no work.  The contractor Giri has  also given evidence in this behalf and has also filed  statements giving  particulars  similar  to the  charts  filed  by  the appellant.   As a specimen we will only refer to the  period commencing  from March to June, 1967.  A glance through  the statement  reveals that in March the work load  ranges  from 200  bags on 3rd to 14700 on the 30th.  Similarly, in  April 228 bags were handled on 3rd and about 13704 bags were dealt with on the 17th.  Similarly in May, on the 9th, 10405  bags were handled whereas on 29th only 400 bags were handled.  In June, on 9th 9600 bags were dealt with and on 26th 142  bags were,  handled.  These figures show the sharp difference  in the  nature of work that has to be done.  We can also  state that for these four months on 29th a total of 3200 bags were handled  and,  on  17th about 35714 bags  were  dealt  with. These figures, which have been taken as illustrative clearly show the drastic variation in the nature of work that had to be  done by the con,tractor regarding loading and  unloading of wagons and trucks. 693 We have only given some illustrative figures and even during the intervening days there is a very wide discrepancy in the total number of bags dealt with.  There is also evidence  on record  to, show that on some days no wagons or  trucks  are available.  That means there will be no work of loading  and unloading  on  those days; whereas on certain other  days  a number  of  wagons and trucks suddenly arrive,  which  means that there must be workmen ready to clear the goods within a specified  time.   It is also seen from Ex.  C. 8  that  the goods are allowed to be cleared from the railway wagons free of  demurrage  within five hours after the. arrival  of  the wagons.   After  the  expiry of five  hours,  demurrage  is. charged by the railway at 10 paise per hour per tonne on the carrying  capacity  of the wagon.  The contractor  Giri  has stated  that  he  has to keep  in  readiness  the  necessary workmen anticipating the arrival of wagons on any date or at any time of the day and if the goods are not cleared  within live  hours, heavy demuxrage will. have to be paid.  Ex.  C, to which we have already referred to shows that the work, of loading  and  unloading  of seed bags  and  cake  bags  from lorries and wagons are done by contract labour by the  three other  concerns in the area, namely, M/s Godrej Soap  Works, M/s  Tata Oil Mills and Mys Hindustan Lever.  At this  stage it  may be mentioned that under cl. (c) of s. 10(2)  of  the Central  Act, one of the relevant factors to be  taken  into account  is to consider, when contract labour regarding  any particular type of work is proposed to be abolished, whether that  type  of  work is,  done  ordinarily  through  regular workmen  in that establishment or an  establishment  similar thereto.   When it is shown that in  similar  establishments this  type  of work is not ordinarily done  through  regular workmen,  but  by contract labour, that  is  a  circumstance which will operate in favour of the appellant. The  evidence on the side of the appellant is to the  effect that ,the work of loading and unloading in trucks and wagons is not of a perennial and permanent nature so as to  justify the  appellant  maintaining  a  permanent  staff  for   that

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purpose.   On  the other hand, their evidence is  that  this type of work is of an intermittent and temporary nature  and so  little, that it would not be possible and profitable  to employ full time workmen for the purpose and that this  type of  work  is being done in the other concerns  in  the  area through   contract  labour.   These  facts  have  not   been seriously disputed by the Union. The Union has placed reliance on Ex.  C. 9, a statement fur- nished  by  the  appellant.  We have earlier  given  a  full extract of Ex. C. 9. The Union appears to have pressed  into service  that exhibit to show that the work of  loading  and unloading  is  of  a continuous and  perennial  nature.   No doubt,  a perusal of Ex.  C. 9, without anything  more,  may give the impression that the work 694 of  loading  and unloading  is a continuous  activity  of  a permanent  nature.   Unfortunately, the appellant  does  not appear  to have impressed upon the, industrial Tribunal  the fact  that the particulars mentioned in Ex.  C. 9 deal  with the  entire work done by the contractor on the basis of  the contract  entered  into  by him.  The  current  contract  in favour  of  the  contractor is dated  May  28.,  1970.   The previous contractors have been more or less substantially on the same lines as the present contract.  The contractor  has undertaken  to  do twenty types of jobs referred  o  in  the contract  for  which  the  rate of  payment  has  also  been specified.  They include feeding the hoppers and doing other work  incidental  to  and closely related  to  the  work  of feeding  the  hoppers.   We  have  already  held  that   the Industrial  Tribunal  was justified in  abolishing  contract labour  in  respect  of the work  relating  to  feeding  the hoppers.   Though  the Central Act has come into  force,  we have  confirmed that part of the award regarding feeding  of hoppers  because we are satisfied that the, principles  laid down  by this Court and substantially incorporated  in  cls. (a) to (d) of S. 10(2) have been properly taken into account by the Industrial Tribunal. Ex.  C.  9 is a chart relating to all the  twenty  items  of jobs,  which  the contractor had to do under  the  contract. The Industrial Tribunal has proceeded on the basis that  Ex. C.  9  relates  only to the contract  work  of  loading  and unloading,  which  we  have  already  shown  is   erroneous. Therefore,  even on merits the direction of  the  Industrial Tribunal  abolishing contract labour regarding  loading  and unloading cannot be sustained. in  the  result,  the  award  of  the  Industrial   Tribunal directing  the appellant not to engage any labour through  a contract for the work of loading and unloading is set  aside and  to that extent the appeal is allowed and the  award  of the  Industrial Tribunal will stand modified.  As the  Union has not appeared before us to contest the appeal, there will be no order as to costs. G.C.                                                  Appeal allowed. 695