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1997 DIGILAW 772 (PAT)

Food Corporation of India v. State of Bihar

1997-10-27

AFTAB ALAM

body1997
Judgment Aftab Alam, J. The Food Corporation of India ('the Corporation', for short) has filed this writ petition on the specious plea that it needed this Court's help and guidance to follow the manner in which it was required to give effect to the notification prohibiting employment of contract labour in its godowns situated in this State. It appears to be a matter of some concern that the implementation of the notification is being delayed by the Corporation on some pretext or the other and the notification is yet to be fully given effect to even after 12 years from the date of its issuance, and despite two earlier orders passed by this court in this regard. 2. The Supreme Court by its judgment and order dated March 1, 1985 in the Food Corporation of India Workers Union Vs. Food Corporation of India and others (C.W.J.C. No. 13808 of 1985) gave directions to the different State Governments, including the State of Bihar, to constitute committees under Section 5 of the Contract Labour (Regulation and Abolition) Act (For short 'the Act') to make necessary enquiry and to subject their reports to the respective State Governments whether it would be possible to abolish contract labour in the Corporation. In furtherence of the direction, the State Government constituted a committee and on receiving its report issued notification dated November 30, 1985 published in the official gazette of December 5, 1985 in exercise of the powers under Section 10(1) of the Act prohibiting employment of contract labour in the Corporation's god owns situated in this State. 3. The Corporation challenged the notification on various grounds before this Court in CWJC No. 1362/1986 filed at its instance. That writ petition was dismissed by a Bench of this Court (of which I too happened to be a member) by judgment and order dated April 12, 1991. When no steps were taken by the Corporation for implementing the notification, its workers represented by the Food Corporation of India Workers and Employees Union came to this Court in CWJC No. 1564/1992 seeking a direction to the Corporation to give effect to the notification. That writ petition was disposed of by a bench of this court by order dated 19.1.1993. In that order, this court expressed its displeasure at the attitude taken by the Corporation. That writ petition was disposed of by a bench of this court by order dated 19.1.1993. In that order, this court expressed its displeasure at the attitude taken by the Corporation. From the order it appears that it was an admitted position then that the Corporation had not given effect to the notification even after the dismissal of CWJC No. 1362/1986 filed by it assailing the notification. At that stage the Corporation took the plea that against this Court's judgment and order dated 12.4.1991 dismissing CWJC No. 1362/1986 it had filed a special leave petition being S.L.P. (Civil) no. 15163/1991 and it was awaiting the result of its appeal before the Supreme Court. This Court observed that the Corporation was not justified in not implementing the notification on the plea of pendency of its leave application because no order of stay was passed by the Supreme Court. This court accordingly gave the following directions : “There is no reason why the order of the High Court is not to be implemented. Under these circumstances this High Court cannot remain silent in such a case and accordingly, we direct that the notification, being Annexure 3, be implemented with effect from the period specified therein. All steps be taken accordingly and all payments be made accordingly, unless there is any order of the Supreme Court to the contrary.” From the order it further appears that in that case too the Corporation sought to convass the question regarding the manner in which it was required to implement the notification. Brushing aside the alleged confusion which the Corporation claims to see in the notification, this Court observed as follows; "We make it clear that we are not going into the question as to how and in what manner it is to be implemented because it is to be implemented in accordance with law and no direction of this Court is necessary." 5. Shortly thereafter the Corporation's appeal against the judgment and order of this court in CWJC No. 1362/1986 was also dismissed by the Supreme Court by order dated 5.3.1993 passed in S.L.P. (Civil) Nos. 15163/1991 and 1374/93. Shortly thereafter the Corporation's appeal against the judgment and order of this court in CWJC No. 1362/1986 was also dismissed by the Supreme Court by order dated 5.3.1993 passed in S.L.P. (Civil) Nos. 15163/1991 and 1374/93. About five months after the dismissal of the special leave petition by the Supreme Court the Corporation once again brought this matter before this Court by filing this writ petition, "for a direction by this Hon'ble Court as to how and in which manner the notification dated 30.11.95 and the judgment of this Hon'ble Court holding the notification valid read with the order passed in CWJC No. 1564/1992, be implemented in view of the fact that the notification does not define the word 'nominal work'." 6. The office while making stamp report has expressed doubt regarding the maintainability of this writ petition, seeking the relief as quoted above. I, however, decided to hear and dispose of this case on merit so as to put an end to this controversy which seems to be lingering now for more than a decade. 7. Mr. Tara Kant Jha, learned senior counsel appearing on behalf of the Corporation stated that it was no longer the stand of the Corporation that it was under no legal obligation to implement the notification dated 30.11.85. Mr. Jha rightly submitted that after its writ petition challenging the notification was dismissed by this Court and the S.L.P. by the Supreme Court, it could not take such a stand. Learned counsel, however, submitted that the Corporation's officials were truely in a dilemma regarding the question as to which of the Corporation's god owns would be covered by the notification and would attract the prohibition against employment of contract labour. In taking this stand the Corporation seems to be deriving benefit from some vague expressions used in the notification and it appears to me that a rather careless drafting of the notification issued by the State Government led to its non-implementation for more than a decade and the workmen have thus been denied any benefit that should have flowed from the prohibition of contract labour in the Corporation. 8. At this stage, it will be appropriate to take a look at the notification. 8. At this stage, it will be appropriate to take a look at the notification. The notification which is in Hindi would in translation read as follows : "In the Corporation's god owns situated in the State of Bihar, excepting such godowns where there is only nominal work in a year the contract system will be abolished and will be replaced by system of making direct payment (of wages) by the management to the workers." 9. It is the expression 'nominal work in a year' which according to the management is the source of confusion. According to the petitioner's case, the expression 'nominal work in a year' has neither been defined in that notification nor any clarification was latter issued by the Govt. and therefore the Corporation's officials were at a loss to figure out as to in which of the Corporation's god owns it can be said that there was more than nominal work in a year so as to attract the prohibition imposed by the notification. In this regard, Mr. Jha invited my attention to another notification dated November 1, 1990 issued by the Central Government in exercise of the powers under Section 10(1) of the Act prohibiting employment of contract labour in such of the god owns and depots of the Corporation as are listed in the schedule to that notification. The schedule contains a list of 66 depots and at serials 60 and 61 are two food storage depots situated in this State. According to him, therefore, these were the only two depots where there was more than nominal work in a year and no other god owns of the Corporation should be held to attract the prohibition imposed by the notification dated 30.11.1985 issued by the State Government. 10. In my view, the submission is completely misconceived, The notification dated 1.11.90 was issued by the Central Government after an amendment was introduced in Section 2 of the Act defining 'appropriate Government'. The amendment was introduced by an ordinance which came into force on 25.1.1986 i.e. after the issuance of the notification by the State Government on 30.11.1985. 10. In my view, the submission is completely misconceived, The notification dated 1.11.90 was issued by the Central Government after an amendment was introduced in Section 2 of the Act defining 'appropriate Government'. The amendment was introduced by an ordinance which came into force on 25.1.1986 i.e. after the issuance of the notification by the State Government on 30.11.1985. This aspect of the matter was also considered by the judgment of this court in CWJC No. 1362/1986 where it was held that the notification issued by the State Government on 30.11.1985 was issued in furtherence of the directions given by the Supreme Court and it was much prior to the amendment introduced in the definition of 'appropriate Government' and therefore the 'State Government's notifications would remain completely unaffected by any subsequent changes in the definition of appropriate Government or any notifications issued by the Central Government in pursuance of the amended definition. 11. I have therefore no hesitation in holding that the notification dated 1.11.90 issued by the Central Government is of no relevance so far as implementation of the State Government's notification dated 30.11.85 is concerned and the stand taken by the Corporation (on the basis of the Central Government's notification) that the prohibition against employment of contract labour was applicable to only two of its food storage depot deserves to be thoroughly rejected. 12. The stand of the State Government on the other hand appears to be that the notification would cover all the Corporation's godowns where 10 or more contract workers were employed on any day during the 12 preceding months. In this regard, it relied upon a notification dated 18.1.79 (published in the official gazette dated 25.1.79) issued under the proviso to Section 1(4) of the Act. By virtue of this notification the provisions of the Act would apply to an establishment where 10 or more contract workers were employed on any day during the 12 preceding months. The stand of the State Government is spelled out in paras 5, 6 and 7 of the counter affidavit which is as follows: "5. By virtue of this notification the provisions of the Act would apply to an establishment where 10 or more contract workers were employed on any day during the 12 preceding months. The stand of the State Government is spelled out in paras 5, 6 and 7 of the counter affidavit which is as follows: "5. That it is most respectfully submitted that the Contract labour (Abolition and Regulation) Act, 1970 (hereinafter 'the Act') is applicable to the establishments where 10 or more workers are employed as in view of the power conferred under sub-section (4) of Section 1 of the Act notified that the provisions of the Act would be applicable in all such establishments and contractors under whom 10 or more than 10 contract labours have been employed on any day within a period of last 12 months 10 or more contract labour was engaged. 6. That it is most respectfully submitted that the petitioner has altogether 87 god owns in the State of Bihar out of which the petitioner has engaged regular departmental labour for 9 such godowns. 7. That it is relevant to state here that with regard to 21 godowns of the petitioner, the petitioner has engaged labour through the contractor but payment has been made by the petitioner directly. With regard to the rest 57 godowns the petitioner has been directed to engage piece rated labour but payment should be made directly by the petitioner." 13. Mr. Tara Kant Jha submitted that the notification dated 18.1.1997 issued under the proviso to Section 1 (4) of the Act was regarding the applicability on the provisions of the Act and not on the question of abolition of contract labour system in terms of Section 10 of the Act. Learned counsel submitted that the applicability of the provisions of the Act was some thing quite different from the desirability of completely prohibiting the employment of contract labour in an establishment by issuing a notification under Section 10 of the Act. He pointed out that there may be a large number of establishments to which the provisions of the Act were applicable but the appropriate Government may choose only a few or even none of them for prohibiting employment of contract labour in terms of Section 10 of the Act. The submission made by Mr. He pointed out that there may be a large number of establishments to which the provisions of the Act were applicable but the appropriate Government may choose only a few or even none of them for prohibiting employment of contract labour in terms of Section 10 of the Act. The submission made by Mr. Jha cannot be said to be without substance and I find that the notification dated 18.1.1079 is also of not much help to interpret the expression 'nominal work in a year'. 14. Coming now to the stand taken by the workers represented by the Food Corporation of India Workers Union, respondent no. 2, I find that their stand is the most fair and sensible and the whole controversy can be reasonably resolved by accepting it. Mr. Shivajee Pandey, learned counsel for the respondent Union invited my attention to Section 1 (5) of the Act. Section 1, inter alia, deals with the question of applicability of the Act and its sub-section (5) lays down that the Act will not apply to establishment in which work only of an intermittent and casual nature is performed. The explanation to clause (a) of sub-section (5) of Section 1 defines work which is not of an intermittent nature. The explanation is as follows : "Explanation. - For the purpose of this sub-section, work performed in an establishment shall not be deemed to be of an intermittent nature- (i) If it was performed for more than one hundred and twelve months, or (ii) If it is of a seasonal character and is performed for more than sixty days in a year." 15. Although the explanation is part of Section 1 which deals with the applicability of the Act, to my mind it can also provide a very fair guide to the meaning of the expression 'nominal work in a year' because the work being performed for more than 120 days in the preceding 12 months can by no stretch of imagination be described as 'nominal work in a year'. It is stated in the counter affidavit, and not denied by the petitioner, that in all the 19 depots/godowns of the Corporation situated in the State of Bihar the number of working days was more than 120 days in a year. The relevant statements are made in paras 8 and 10 of the counter affidavit which are as follows: "8. It is stated in the counter affidavit, and not denied by the petitioner, that in all the 19 depots/godowns of the Corporation situated in the State of Bihar the number of working days was more than 120 days in a year. The relevant statements are made in paras 8 and 10 of the counter affidavit which are as follows: "8. That in order to substantiate the case, the respondent no. 2 states and submits that there are altogether 19 depots/godowns in the State of Bihar and the number of working days performed in each godown is not more than 120 days. In support of the aforesaid fact the respondent no. 2 is annexing a chart of different god owns which will support the contention of respondent no. 2. The chart prepared by respondent no. 2 has been duly attested by the Depot Incharge. "10. That the number of god owns as mentioned above have been in operation for last 20 years and above employees in each depots are more than 20-30 staff (category nos. 2 to 4) except the worker doing the job of loading and unloading, itself is a proof that the work in the depot/godown is of a permanent nature." 16. Taking thus the explanation to clause (a) to sub-section (5) of Section 1 of the Act as a fair guide to interpret the meaning of 'nominal work in a year', I have no hesitation in holding that the notification dated 30.11.1985 issued by the State Government would cover all the Corporation's god owns situated in the State where work was performed for more than 120 days in a year. 17. The last issue thus having been resolved, the Corporation is directed to forthwith give full effect to the notification dated 30.11.1985. 18. Before concluding this order, it may be noted that Mr. Shivajee Pandey, learned counsel for the union submitted that as a consequence of the abolition of the contract labour system the workmen hitherto engaged through the agency of the contractor would get the right to be regularised in the services of the Corporation. In support of his submission, he relied upon a Supreme Court decision in Air India Statutory Corporation vs. United Labour Union, A.I.R. 1997 S.C. 645. As this question does not fall for consideration in this case, I am not inclined to make any pronouncement on Mr. Pandey's submission. In support of his submission, he relied upon a Supreme Court decision in Air India Statutory Corporation vs. United Labour Union, A.I.R. 1997 S.C. 645. As this question does not fall for consideration in this case, I am not inclined to make any pronouncement on Mr. Pandey's submission. Suffice it to say that the notification will be implemented in accordance with law as interpreted and laid down by the Supreme Court. 19. This application is thus disposed of subject to payment of a cost of Rs.5000/- by the petitioner-Corporation to the 2nd respondent. The cost must be paid within one month from the date of this order.