The case of the nine (9) petitioners in this writ petition under Article 226 of the Constitution is that they have been engaged by the Deputy Superintending Engineer, Oil and Natural Gas Corporation Ltd, Lakwa Unit, for daily cleaning, maintenance and allied works, etc since the year 1988 through the work orders issued from time to time. Their further case is that although in the work orders the petitioners have been referred to as contractors, the petitioners themselves have been doing the aforesaid work relating to daily cleaning, maintenance, allied works, etc bringing additional persons as and when necessary to carry out the said work. Despite the fact that the petitioners have rendered their services for such daily cleaning, maintenance and allied works in the Lakwa Unit of the respondent No.4 continuously for more than 12 years, the Oil and Natural Gas Corporation Ltd, (for short, the Corporation), has issued a notice on 23.5.2000 in /2 the newspaper inviting tenders, (for short, the NIT) for award of operation and maintenance contract for upkeeping and environment jobs in various installations at Lakwa/Lakmani/Demulgaon of the Eastern Region Business Centre of the said Corporation. The petitioners are aggrieved by the said NIT because if pursuant to the said NIT operation and maintenance work in the Lakwa Unit of the Corporation is given to some other tenderers, the petitioners as well as other personal engaged in such operation and maintenance work in the said Lakwa Unit of the Corporation will be without any work and as a consequence without any livelihood. The petitioners have therefore prayed for quashing the said NIT dated 23.5.2000 and for directing the respondents to regularise the services of the petitioners in the Lakwa Unit of the Corporation with immediate effect. When the writ petition was moved on 16.6.2000, the Court issued a Notice of Motion and directed as an interim measure that tenders be received pursuant to the impugned NIT and processed, but no final orders be passed by the respondent authorities awarding the contract to any of the parties until further orders. 2. When the writ petition was moved on 16.6.2000, the Court issued a Notice of Motion and directed as an interim measure that tenders be received pursuant to the impugned NIT and processed, but no final orders be passed by the respondent authorities awarding the contract to any of the parties until further orders. 2. In response to the notice of the Court, the respondents 1 to 4 have appeared and filed their affidavit-in-opposition stating, inter alia, that the Field In-charge of the Installations of the Corporation have been engaging contractors from time to time for cleaning of oil spillage inside the installations/boilers, disposal and spreading of sand, housekeeping/upkeeping of installation and office block, preparation of chemical solution in various Group Gathering Stations where crude oil extracted from various wells are treated, dosing of chemicals in Water Injection Pump, loading/unloading and other similar nature of jobs, and the aforesaid jobs done through the contractors are not of perennial nature but are of seasonal nature and are neither connected with or incidental to the main activities of the Corporation which is production of crude oil. In the said affidavit-in-opposition, the said respondents 1 to 4 have further stated that the scope of such work varies from time to time as per requirement and the workers employed by the contractors work directly under the control and supervision of the contractors who are responsible for payment of their wages. In the said affidavit-in-opposition, the respondents 1 to 4 have denied that the petitioners have been awarded such work continuously since 1988, and have stated that the contracts have been awarded to the petitioners for different temporary jobs as and when necessity or doing such work arose in the installations. In the said affidavit-in-opposition, the respondents 1 to 4 have further stated that different work orders annexed to the writ petition would show that the petitioners are not contract labourers but are contractors. In the said affidavit-in-opposition, the said respondents 1 to 4 have also stated that as a matter of feet, the petitioner No. 1 has participated as a tenderer pursuant to the impugned NTT and his tender has been found to be valid, and it is therefore not open to the petitioners and more particularly the petitioner No. 1 to challenge the impugned NIT. The respondents 1 to 4 also stated in the said affidavit-in-opposition that there is no post in the Corporation for doing the particular jobs which have been done under the contract and hence the question of absorption of the petitioners in the service of the Corporation does not arise. The respondents 1 to 4 have also filed Misc Case No. 1104 of 2000 for vacating the interim order dated 16.6.2000 passed by this Court in the writ petition. 3. M/s Foweth which had submitted a tender in response to the NIT, filed Misc Case No. 150 of 2001 for being impleaded as a party respondent in the writ petition and on 15.2.2001 this Court allowed the said application and impleaded M/s Foweth as respondent No. 5 in the writ petition. The said respondent No. 5 has also filed Misc Case No. 149 of 2001 for vacating the interim order dated 16.6.2000 passed in the writ petition. In the misc case application, the respondent No.5 has stated, inter alia, that pursuant to the NIT the respondent No. 5 submitted its tender and the tenders were opened on 19.6.2000 and the Corporation completed the tender process but could not award the contract to any of the tenderers due to the interim order passed by this Court on 16.2.2000, and the respondent No.5 is eagerly awaiting for issuance of work order. The respondent No. 5 has also stated that it has submitted a Bank Guarantee of Rs.50,0007- along with its tender as per the terms and conditions of the NIT, and has been paying 7% interest to the Bank regularly. The aforesaid two applications for vacating the interim order, viz, Misc Case No. 1104 of 2000 and Misc Case No. 149 of 2001 were taken up along with the writ petition for hearing. 4. At the hearing, Mr. N. Dutta, learned counsel for the petitioners, submitted that the work that the petitioners have been doing since 1988 comprised of daily cleaning, maintenance and allied works, etc and such work cannot be seasonal but perennial in nature. 4. At the hearing, Mr. N. Dutta, learned counsel for the petitioners, submitted that the work that the petitioners have been doing since 1988 comprised of daily cleaning, maintenance and allied works, etc and such work cannot be seasonal but perennial in nature. He cited the decision of the Supreme Court in Secretary, HSEB vs. Suresh, AIR 1999 SC 1160 : (19SW) 3 SCC 601, in which the Supreme Court has held that the Haryana State Electricity Board in usual course of business have had to maintain the plant and stations as a licensee within the meaning of Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948, and the maintenance work cannot by any stretch be ascribed to be of seasonal nature but a continued effort to achieve the purpose of its existence in terms of the statute. Mr. Dutta submitted that since the work that has been done by the petitioners and other personnel brought in by the petitioners were of perennial nature, this is a fit case in which this Court should direct the Central Govt to consider prohibiting the employment of contract labour in such work in the establishment of the Corporation and till such decision is taken by the Central Govt, the work should not be allowed to be given to any contractor pursuant to the NIT. Relying on the observations of the Supreme Court in Secretary, HSEB vs. Suresh (supra), deprecating the practice of engagement of contract labour, he submitted that the Corporation which is State within the meaning of Article 12 of the Constitution of India cannot be allowed to ignore its constitutional obligation under the Directives Principles of State Policy in Articles 38, 39,42,43 and 43 A of the Constitution and deprive the workmen who have been engaged although in such cleaning, maintenance and allied works, etc of their means of livelihood, and to award the work to contractors pursuant to the impugned NIT. Mr. Dutta referred to clause 6.3 of the General Terms and Conditions of the Contract which is part of the tender documents relating to the impugned NIT to show that under the said clause contractors are to deploy new personnel as identified by them and approved by the Corporation. According to Mr. Mr. Dutta referred to clause 6.3 of the General Terms and Conditions of the Contract which is part of the tender documents relating to the impugned NIT to show that under the said clause contractors are to deploy new personnel as identified by them and approved by the Corporation. According to Mr. Dutta, such a provision in the General Terms and Conditions of the Contract is intended to throw out the labourers who have been engaged in operation and maintenance work of the Corporation since 1988, and obviously me petitioners and other labourers engaged by the petitioners will be out of employment. He finally submitted that if the case of the Corporation is that the petitioners are contractors within the meaning of section 2 (1) (c) of the Contract Labour (Regulation and Abolition) Act, 1970, a (for short, the Act, 1970) as pleaded by the Corporation in the affidavit-in-opposition, then the Corporation was required to comply with the provisions of Rule 73 of the Contract Labour (Regulation and Abolition) Central Rules, 1971. But the Corporation has not complied with the said provisions of Rule 73 and, therefore, the contention of the Corporation that the petitioners are all contractors within the meaning of section 2 (1) (c) of the Act, 1970, should not be accepted. 5. In view of the aforesaid submission made by Mr. Dutta, the Court passed orders on 2.1.2001 asking the counsel for the petitioners to file a list of workmen said to be doing the work of daily cleaning, maintenance and allied works in the Corporation clearly indicating the period during which they were doing the said work. By the said order dated 2.1.2001, the Court also asked the counsel for the respondents 1 to 5 to obtain necessary instruction and file similar affidavit and if necessary produce records to show the contractors who were doing the work of contract labour in respect of Lakwa Unit of the Corporation. Pursuant to the said order passed on 2.1.2001, an additional affidavit has been filed on behalf of the petitioners on 9.1.2001 enclosing therewith a list of 43 labourers said to be working along with the petitioners as labourers since the year 1988 as per work ^ orders issued in favour of the petitioners by the Corporation for daily cleaning, maintenance and allied works, etc. An affidavit-in-opposition has also been filed by the respondents 1 to 4 in reply to the additional affidavit filed by the petitioners and in the said affidavit-in-opposition, the said respondents have stated that they were not aware if such persons mentioned in the list in Annexure X to the additional affidavit were labourers and if they had been working under the writ petitioners e since 1988. 6.. Mr. PC Deka, learned counsel appearing for the respondents 1 to 4, u% reply submitted that the work orders issued in favour of the petitioners would show that they were contractors within the meaning of section 2 (1) (c) of the Act, 1970. He further contended that the contracts awarded in favour of the petitioners have long since expired, and the contractors cannot be awarded with the work permanently. He argued that it was open for the petitioners to have submitted their tenders pursuant to the impugned NIT, and as a matter of fact the petitioner No. 1 has submitted his tender and his tender has been found to be valid. He relied on the averments in the affidavit-in-opposition of the respondents 1 to 4 that the work of daily cleaning, maintenance and allied work awarded to the petitioners was not of perennial nature and the said work had been awarded from time to time as and when necessity arose. He also pointed out that besides the cleaning and maintenance work some other civil works are also given from time to time and are to be awarded pursuant to the impugned NIT. Mr. Deka submitted that there is no prayer in the writ petition for directing the Central Govt to consider abolition of engagement of contract labour and that the prayer in the writ petition is for quashing the impugned NIT. Mr. Deka stated that the tenders were invited in June 2000 and opened on 19.6.2000, but on account of interim orders contracts have not been awarded in favour of any party pursuant to the impugned NIT and as a result the Corporation is unable to have its operation and a maintenance work done. He stated that after £.12.2000 no contractor is in the field to do the work in question and the contracts that were awarded to different parties have expired. Mrs Anima Hazarika, learned counsel appearing for the respondent No. 5, supported the said contentions of Mr. He stated that after £.12.2000 no contractor is in the field to do the work in question and the contracts that were awarded to different parties have expired. Mrs Anima Hazarika, learned counsel appearing for the respondent No. 5, supported the said contentions of Mr. PC Deka and further stated that more than 7 months have lapsed since the respondent No.5 furnished the Bank Guarantee of Rs.50,000/- along with its tender. 7. Section 10 of the Act, 1970, on which reliance has been placed by Dutta, learned counsel for the petitioner is quoted herein below : "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, 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 Govt thereon shall be final." A bare reading of sub-section (1) of section 10 quoted above would show that the appropriate Govt may prohibit by notification in the Official Gazette employment of contract labour in any process, operation or other work in any establishment. But sub-section (2) of section 10 makes it clear that before issuing any such notification in relation to any establishment, the appropriate Govt shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors indicated therein. But sub-section (2) of section 10 makes it clear that before issuing any such notification in relation to any establishment, the appropriate Govt shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors indicated therein. One of the factors indicated in clause (b) under sub-section (2) of section 10 is that whether the process, operation or other work is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in the establishment. Thus, unless the Court comes to a clear finding that the operation and maintenance work carried on by the petitioners pursuant to work orders in their favour and now sought to be given to contractors pursuant to the impugned NIT is of perennial nature as indicated in the said clause (b) of sub-section (2) of section 10 of the Act, 1970, the Court in exercise of its power under Article 226 of the Constitution should not issue a writ or direction to the appropriate Govt to consider prohibition of employment of contract labour in any process, operation and other work in any establishment, 8. In Secretary HSEB vs. Suresh (supra) relied on by Mr. Dutta, pursuant to an order of reference under section 10 of the Industrial Disputes Act, 1947, the Labour Court had come to a definite conclusion on the basis of evidence tendered that the work force did in feet work for more than 240 days in the year and as a matter of fact, there was no dispute raised on mat score by the Haryana State Electricity Board and the Labour Court recorded that the presence of an intermediary would not alter the situation as regards the existence of relationship of the employer and the workmen, and having answered such reference in the affirmative recorded a further finding that the workmen were entitled to be reinstated with continuity of service along with 1 0% back wages . This finding of the Labour Court was accepted by the High Court in the writ petition tinder Article 226 of the Constitution by the Secretary, Haryana State Electricity Board. This finding of the Labour Court was accepted by the High Court in the writ petition tinder Article 226 of the Constitution by the Secretary, Haryana State Electricity Board. The Supreme Court upheld the judgment of the High Court and refused to interfere with the findings of facts arrived at by the Labour Court on the basis of the evidence before the Labour Court. But in the instant case, the respondents 1 to 4 have in their affidavit-in-opposition disputed the contention of the petitioners that the work of cleaning, maintenance, etc, carried on by the petitioners and other labourers brought in by them was perennial in nature. Unless this dispute between the parties that the work of cleaning, maintenance, etc carried on by the petitioners and other labourers brought in by them is of perennial nature within the meaning of clause (b) of sub-section (2) of section 10 of the Act, 1970, is resolved by an appropriate Court or Tribunal on the basis of oral or documentary evidence adduced before such Court or Tribunal, it will not be a proper exercise of discretion by this Court under Article 226 of the Constitution to issue a writ or direction to the appropriate Govt to consider prohibiting employment of contract labour in any process, operation or other work in any establishment. 9. But de hors the provisions of section 10 of the Act, 1970, the Corporation is under constitutional and legal obligation to ensure that the workers who have been engaged for long periods in operation and maintenance work in its different installations and units are not deprived of their only means of livelihood by a new contractor who is awarded the work pursuant to the impugned NIT. In the case of Hussainbhai vs. Alath Factory Thezhilali Union, (1978) 4 SCC 257 , referred to in Secretary HSEB vs. Suresh (supra), the Supreme Court held : "….The true test may, with brevity, be indicated once again. Where a worker or group of workers labours do produce goods or services and these goods or services are for the business of another, that other is, in feet, the employer . He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. Where a worker or group of workers labours do produce goods or services and these goods or services are for the business of another, that other is, in feet, the employer . He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex-contract is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts Welfare obligations on the real employer, based on Articles 38, 39,42, 43 and 43 A of the constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the Maya of legal appearances." Thus, even assuming as has been contended by the Corporation that workers were engaged for such operation and maintenance work not by the Corporation but by the contractors to whom the work was awarded, such workers ultimately rendered services relating to operation and maintenance to the Corporation and the Corporation must therefore ensure that such workers who have been engaged in operation and maintenance work for long duration are not deprived of their only means of livelihood. The Corporation is not a private employer but an instrumentality of the State. The petitioners have stated in paragraph 2 of the writ petition that the Corporation is State within the meaning of Article 12 of the Constitution of India and this statement has not been disputed by the respondents 1 to 4 in their affidavit-in-opposition. Part IV of the Constitution of India contains the Directive Principles of State Policy, and Article 36 states that in the said Part, unless the context otherwise requires, 'the State' has the same meaning as in Part III of the Constitution. Under Article 12 in Part HI of the Constitution, 'the State' has been defined to include other authorities within the territory of India or under the control of the Govt of India. Under Article 12 in Part HI of the Constitution, 'the State' has been defined to include other authorities within the territory of India or under the control of the Govt of India. The Corporation is therefore State within the meaning of Part III and Part TV of the Constitution. Article 38 provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Article 39 further provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood. Article 3 9A states that the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity. Article 41 further provides that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work. Article 42 provides that the State shall make provision for securing just and humane conditions of work. Article 43 further provides that the State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life. The Corporation which is state within the meaning of Part IV of the Constitution containing the said Directive Principles in Articles 3 8, 39, 39A, 41, 42 and 43 cannot ignore its aforesaid constitutional obligations altogether and say that it is for the contractors to engage workers of their choice and not to engage the workers who have been working in such operation and maintenance work in the installations and units of the Corporation for long duration. 10. Such obligation of the Corporation under the Directive Principles of State Policy can be fulfilled through a condition in the General Terms and Conditions of the Contract in relation to the work to be awarded to contractors. Clause 6.3 of the General Terms and Conditions of the Contract which is part of the. tender documents relating to the impugned NIT is quoted herein below : "6.3 Personnel: Contractor will furnish at its sole expense and under its exclusive responsibility deploy operating crew/personnel as identified by them and approved by ONGC. Clause 6.3 of the General Terms and Conditions of the Contract which is part of the. tender documents relating to the impugned NIT is quoted herein below : "6.3 Personnel: Contractor will furnish at its sole expense and under its exclusive responsibility deploy operating crew/personnel as identified by them and approved by ONGC. In case the contractor is not able to provide the personnel initially identified in their offer, and seeks for deployment of alternate personnel in Installations, he may do so by obtaining the prior approval of ONGC." Under the said clause 6.3, the contractors are not required to deploy new personnel as contended by Mr. Dutta but is obliged to deploy operating crew/personnel " as identified by them and approved by the Corporation. Through the said clause 6.3, the Corporation can ensure that the contractors offer engagement to the workers who have been carrying on maintenance and operation work installations and units, for long period so that such workers are not deprived of their means of livelihood. Further, the Corporation will have to ensure consistent with its aforesaid obligations under the Directives Principles of State Policy that the wages offered by such contractors to the workers to. be engaged are fair and reasonable. 11. The case of the nine (9) petitioners is that they along with 43 labourers/workers named in Annexure X to the additional affidavit filed on behalf of the petitioners on 9.1.2001 in this Court have been engaged since the year 1988 in daily cleaning, maintenance and allied works pursuant to work orders issued by the Corporation in favour of the petitioners for the Lakwa Unit of the Corporation. In the affidavit-in-opposition of the respondent Nos 1 to 4 in reply to the said additional affidavit filed on behalf of the petitioners, the said respondents 1 to 4 have not denied that the labourers/workers named in the said Annexure X have been working under the petitioners since 1988 but have only stated that they are not aware if such persons named in the list in Annexure X are labourers and have been working along with the writ petitioners since 1988. I am therefore inclined to issue a writ/direction to the Corporation to ensure that the petitioners and the labourers/workers named in the said list in Annexure X are offered engagement by the contractors in whose favour the contracts for operation and maintenance work for Lakwa Unit of the Corporation are awarded and that they are paid fair and reasonable wages. 12. For the aforesaid reasons, I am not inclined to quash the impugned NIT dated 23.5.2000, and to direct the respondents to regularise the services of the petitioners in the Lakwa Unit of the Corporation. Nor am I inclined to direct the Central Govt to consider prohibiting employment of contract labour in the Corporation for operation and maintenance work in its various installations and _ units. But I direct that the respondents will ensure that the petitioners and the 43 workers/labourers named in Annexure X to the additional affidavit filed on behalf of the petitioners on 9.1.2001 are offered engagement in daily cleaning, maintenance and allied works by the contractors in whose favour contracts for operation and maintenance work in question are awarded at fair and reasonable wages. With the aforesaid directions, the writ petition is disposed of and the interim order passed by this court on 16.6.2000 is vacated. Considering however the entire facts and circumstances of the case, there shall be no order as to costs.

Khagen Konwar v. Oil and Natural Gas Corporation Ltd. and Ors.