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2001 DIGILAW 756 (JHR)

H. N. Pareek & Company v. State Of Jharkhand

2001-11-20

SUDHANSU JYOTI MUKHOPADHAYA

body2001
ORDER S.J. Mukhopadhaya, J. 1. The petitioner, a contractor, has challenged the order, dated 22nd December, 2000. passed by the Licensing Officer under Contract Labour (Regulation and Abolition) Act. 1970 (Contract Labour Act, for short), whereby and whereunder licence granted to the petitioner under the provisions of the Contract Labour Act has been cancelled. Further prayer has been made to issue writ of mandamus commanding/directing the respondents to renew licence of petitioner with prohibition and direction not to interfere with the work of petitioner as licensed contractor. 2. According to the petitioner, respondent No. 3. M/s. Tata Engineering & Locomotive Co. Ltd. (TELCO. for short), issued Form-V in favour of petitioner on 30th September, 1980 under the Contract Labour Act, on an application preferred by the petitioner under Form-IV. Subsequently, after due verification, the respondents issued Licence No. 767, dated 30th December, 1980 for employing 499 contract labours and lor maintenance of services in TELCO Canteen of M/s. TELCO Ltd.. Jamshedpur initially for a period of one year. On the basis of the Licence No. 767, dated 30th December. 1980. the petitioner-Company continued its activities of maintaining services, i.e., preparation of food. staff and service thereof to the TELCO workers and other allied activities connected with the TELCO canteen by employing the contract labours as mentioned in the licence. The licence was renewed by respondent No. 2. Licensing Officer, from time-to-time. till a show cause notice was issued by respondent No. 2 on 28th July. 2000. 3. According to the petitioner. it was giving maintenance service, i.e., preparation of food, service to the TELCO workers connected with the TELCO canteen. It being a registered established issued Form-V under the Bihar Contract Labour (Regulation & Abolition) Rules. 1972 (for short. "Rules"). 4. It was fulfilling its contractual obligations by employing its own labourers. To regulate the service conditions of Us employees, the petitioner has its own standing orders certified under the Industrial Employment (Standing Orders) Act. 5. It is alleged that one Shri Vishnu Kant Kamat, who claimed himself to be the General Secretary of TELCO canteen employees union for his own milage was creating confusion by misleading Government officials relating to relationship of "employer and employee" between the employees of the petitioner and the TELCO. 5. It is alleged that one Shri Vishnu Kant Kamat, who claimed himself to be the General Secretary of TELCO canteen employees union for his own milage was creating confusion by misleading Government officials relating to relationship of "employer and employee" between the employees of the petitioner and the TELCO. It was at the instance of the said Shri Vishnu Kumar Kamat, a Reference Case No. 3/93 under Industrial Disputes Act, 1947, is pending before the Industrial Tribunal to adjudicate as to whether the persons working in TELCO canteen are the employees of M/s. TELCO Ltd.. Jamshedpur or not. The issue for adjudication is pending to reach its logical conclusion. 6. Further case of the petitioner is that Vishnu Kumar Kamat along with one Lakshmi Paswan also raised some objection before the Labour Superintendent. Jamshedpur, who issued letter No. 2808, dated 28th July, 2000 to petitioner with a copy to M/s. TELCO for their comment stating, inter alia, that his official records reveal that the petitioner was provided with a registration certificate in the year 1980 for 499 workers in pursuance of Form-V issued by M/s. TELCO Ltd., but on the complaint and spot inspection on 11th December, 1999, the workers working in the TELCO canteen informed that they were performing the work of preparation and serving food since 1963 which comes under work of catering. The petitioner was informed that it obtained licence by furnishing wrong information and suppressing factual position amounting to violation of Section 14(1)(a) of the Contract Labour Act. 1970. Accordingly, explanation was sought for from petitioner on 10th August. 2000 as to why its licence be not cancelled and it be not prosecuted under Section 22 of the Contract Labour Act, 7. Subsequently, on receipt of objection preferred by petitioner, the impugned order of cancellation of licence was issued on 22nd December. 2000. 8. An intervention application LA No. 91 of 2001. preferred by one TELCO canteen employees union through its General Secretary, Vishnu Kumar Kamat, wherein it has opposed the prayer made by petitioner with plea that any order passed by this Court in favour of petitioner will affect the right cause of the members of the TELCO Canleen Employees Union. The intervenor claimed that its members-employees of the canteen, are actually employed by M/s. TELCO Ltd. 9. The intervenor claimed that its members-employees of the canteen, are actually employed by M/s. TELCO Ltd. 9. According to the counsel for the intervenor, the petitioner- contractor of M/s. TELCO Ltd. has not obtained the licence as per Contract Labour Act, 1970. and Form-V under Rule 21(2) of the Bihar Rules, 1972 was not properly issued by M/s. TELCO Ltd. 10. The respondent No. 3, M/s. TELCO Ltd. while not opposed the case of the petitioner, have taken plea that under Section 46 of the Factories Act, 1948, M/s. TELCO Ltd., is bound to provide and maintain canteen for its workers. The State Government has framed Factories Rules. 1980 and in pursuance of the aforesaid Act and Rules, there is no legal impediment in entrusting maintenance of a canteen to a bona fide contractor. In this background, a certificate was given by M/s. TELCO Ltd. in Form-V to the petitioner on 30th September. 1980 which clearly indicates that M/s. TELCO Ltd. has engaged the petitioner- contractor in its establishment for running and maintenance of TELCO Ltd. Canteen. 11. Further stand taken by M/s. TELCO Ltd. is that intervenor Vishnu Kumar Kamat who claimed himself as the General Secretary of TELCO Canteen Employees Union is creating confusion before this Court, had earlier created before the other authorities. The dispute, as raised by Shri Kamat. has already been referred for adjudication by State Governments Memo No. 1944, dated 2nd November, 1993 and terms of reference in quoted hereunder : "(a) Whether relationship employer and employees establishes between employees working in the TELCO canteen and M/s. TELCO Ltd., Jamshedpur. If so. what should be designation, pay other facilities of employees working in TELCO Canteen. (b) Whether termination of services of Sarvashri Dasrath Kamat. Gopal Prasad. Shivalaa, Vishnu Kumar Kamat, Jagdish Kamat, Yadavnath. Subhash. Krishnadeo Mahato is proper ? not. whether they should be reinstate on works or/and should be given compensation." 12. The counsel for the petitioner pointed the infirmities in the show cause notice, dated 28th July, 2000 and impugned order, dated 22nd December, 2000. Therein, it speaks of "registration certificate", though the petitioner has no registration certificate, but has been provided with a "contractors licence", under the Contract Labour Act, 1970. 13. Similarly, it was pointed that in the impugned order, dated 22nd December, 2000. Therein, it speaks of "registration certificate", though the petitioner has no registration certificate, but has been provided with a "contractors licence", under the Contract Labour Act, 1970. 13. Similarly, it was pointed that in the impugned order, dated 22nd December, 2000. it talked of Bihar Factories Rules, 1966 to 1971 and Bihar Contract Labour (Regulation & Abolition) Act, 1972, though there is no such law framed by the State of Bihar but by the Central Government. 14. The Counsel for the intervenor relied on Supreme Courts decision in Bharat Friez Werner Ltd. v. State of Karnataka, reported in 2001 (2) J C R 52 (SC). However, it is not necessary to discuss the ratio laid down in the said case, as it relates to Prohibition of Contract Labour in Industrial Canteen and Factories, if notification under Section 10(2) issued under the provisions of the Contract Labour Act. 1970. 15. The provisions of the Factories Act, 1948 (63 of 1948) fell for consideration before the Supreme Court in Kanpur Suraksha Karmchari Union v. Union of India, AIR 1988 SC 1965 . In the said case, the Supreme Court taking into consideration Section 46 of the Act, held that there cannot be a canteen without sufficient number of workers working in the canteen appointed by occupier. Otherwise, it would not be fully complying Section 46 of the Act. It further observed as follows :-- "....We may, however, add that in case of a canteen run by a contractor or a Co-operative Society or some other bodies, the position may be different. But even then there has to be a Managing Committee, if such a canteen is treated as the canteen established for purposes of satisfying the requirement of Section 46 of the Act. Even in this case, ttie contractor or the Co-operative Society or some other body will be the employer but not the Managing Committee. In this situation, it is difficult to hold that the employees of the canteen established under Section 46 of the Act would not be the employees of the occupier, even though for the purposes of management, the Canteen Managing Committee, whose functions are advisors, as pointed out above, has to be constituted under the Rules.... ." 16. In this situation, it is difficult to hold that the employees of the canteen established under Section 46 of the Act would not be the employees of the occupier, even though for the purposes of management, the Canteen Managing Committee, whose functions are advisors, as pointed out above, has to be constituted under the Rules.... ." 16. The aforesaid finding is quoted not for the purpose of determination of the issue as to whether the workers of the canteen are employees of M/s. TELCO Ltd. or not. Such issue is required to be determined by a. competent Court (Industrial Tribunal, Ranchi), before which Reference Case No. 3/93 is stated to be pending. The aforesaid quotation merely suggests that there can be a contractor or a Co-operative Society or some other body which may maintain a canteen. 17. From the impugned show-cause notice and the order, dated 22nd December. 2000, there appears to be genuine mistake relating to the provisions of law mentioned therein, as suggested by the counsel for the petitioner. This apart, it appears that the Labour Superintendent-cum-Li censing Officer. Jam-shedpur has not properly applied its mind, taking into consideration the other relevant facts and the fact that the reference on the claim of the workmen is already pending consideration with the competent Tribunal. 18. In the aforesaid background, it is proper for the authority to reconsider the issue whether the licence granted be cancelled or not or it is to be renewed. Accordingly, the impugned order, dated 22nd December. 2000 is set-aside with direction to Labour Superintendent-cum-Licensing Officer. Jamshedpur to reconsider the question as to whether the licence earlier granted to petitioner is to be cancelled or to be renewed or not, within two months from the date of receipt/production of a copy of this order. 19. In the meantime, the parties will maintain the status quo, as was existing prior to this order. 20. The writ petition stands disposed of with the aforesaid observations and directions. Writ petition disposed of.