Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 425 (ORI)

Bijaya Kumar Jena v. Union of India

2006-05-19

J.P.MISHRA, P.K.MOHANTY

body2006
JUDGMENT P. K. MOHANTY, J. : These two writ petitions involve common question of law and facts and as such, on the prayer and consent of the learned counsel for the parties, they were heard analo¬gously and are disposed of by this common judgment. 2. The petitioners, in these two writ petitions, have challenged the illegal action of the authorities in allowing engagement of the contract labour in security services of the National Aluminium Company Limited (in short “NALCO”) and claimed that since all along the petitioners have been engaged in the security service and since such work is perennial in nature and such work is ordinarily done through regular workmen employed in NALCO, the petitioners are entitled to be declared as regular employees of NALCO which happens to be the principal employer. A Division Bench of this Court, after hearing the learned counsel of the parties at length, directed the Labour Commissioner (Central), Bhubaneswar to conduct an enquiry after due notice to the parties and submit the report within six months on the ques¬tion as to the number of contract labourers with their designa¬tion, age, date of entry and total period of engagement in the security services of both the units, viz, Smelter Plant and Captive Power Plant of NALCO and the requirement of total number of security personnel in different cadres/posts to be employed on regular basis. The writ petitions were directed to be listed in the month of February, 2000 to pass further orders. In the inter¬regnums, the opposite party-NALCO and its official went in appeal to the Hon’ble Supreme Court and by interim order dated 14.1.2000, the apex Court directed maintenance of status quo relating to all parties concerned. 3. The apex Court disposed of the Civil Appeals with the following order : “These appeals filed by the Management are directed against the judgment of the High Court. The High Court relying upon the decision of this Court in Air India Statutory Corporation v. United Labour Union (1997) 9 SCC 377 directed the appellants to absorb the respondents employees on regular basis in terms of the impugned judgment. Air India’s case has since been overruled by Constitution Bench in Steel Authority of India Ltd & others v. National Union Waterfront Workers & Others (2001) 7 SCC 1 . Air India’s case has since been overruled by Constitution Bench in Steel Authority of India Ltd & others v. National Union Waterfront Workers & Others (2001) 7 SCC 1 . It has been, inter alia, held that any direction for absorption of contract labour following the judgment in Air India’s case shall not hold good except where it has been given effect to and has become final. That is not the position in the present case. While issuing notice directions contained in the impugned judgment were stayed by this Court. In view of the decision in Steel Authority’s case (supra) the impugned judgment of the High Court is set aside and the appeals are allowed without prejudice to the rights, if any, the employees may have in accordance with law. Parties to bear their own costs.” 4. The writ petitioners thereafter filed applications for amendment of the writ petition incorporating certain paragraphs keeping in view the observations of the apex Court in Steel Authority of India Ltd & others v. National Union Waterfront Workers & Others (2001) 7 SCC 1 that the High Court under Article 226 of the Constitution of India may not be appropriate authority to embark upon such an enquiry, but the said enquiry can be done by the Industrial Adjudicator/Industrial Forum and incorporate a prayer that the High Court should refer the dispute for adjudica¬tion by the Industrial Forum as to whether the conditions of Section-10(2) of the Contract Labour (Regulation & Abolition) Act are fulfilled or not and whether the contract between the NALCO Management and the Contractor is a sham contract in view of the factual position as narrated in the writ application. The amend¬ment was allowed and the petitioners have filed the consolidated writ petition. 5. The learned counsel for the petitioners submitted that the engagement of contract labour in security services of NALCO having been prohibited by the Labour & Employment Department’s Notification Dt. 9.4.1991, the petitioners having been engaged in the security services and since such work is of perennial nature and ordinarily done through regular workmen employed in NALCO, the petitioners are entitled to be declared as regular employees of NALCO which is the principal employer. 9.4.1991, the petitioners having been engaged in the security services and since such work is of perennial nature and ordinarily done through regular workmen employed in NALCO, the petitioners are entitled to be declared as regular employees of NALCO which is the principal employer. In the writ petitions, the names of the contract labourers in different capacity looking after the security services being engaged by opposite parties 7 and 8 have been given along with the year for which they have been engaged. It appears that each one of the petitioners has been engaged on different years, but they all claim that they are continuing till date. It is, therefore, contended that since the date of their initial engagement, all the petitioners have been discharging their duty sincerely, honestly and to the best satis¬faction of the authority, their services are to be regularized. 6. The opposite parties 3 to 6 have filed a joint counter affidavit refuting the claim and have disputed the factual averments made in the writ petitions. According to these opposite parties, the writ petitions are not maintainable since the peti¬tioners are not employees of the opposite parties and they have been employed as contract labour by the opposite parties 7 and 8. It is contended that earlier the Investigation and Security Services India Private Limited, opposite party No.7, along with some others filed O.J.C. No.3249 of 1992 for quashing the notifi¬cation No.429 dt. 9.4.1991 issued by the Labour & Employment Department of Government of Orissa under Section 10 of the Con¬tract Labour (Regulations and Abolition) Act, 1970, prohibiting employment of contract labour in the security services in the establishment of NALCO. The said notification was annexed as Annexure-1 to O.J.C. No.3249 of 1992 which is also relied on by the petitioners in support of their claim. O.J.C. No.3249 of 1992 was allowed vide judgment dt. 28.9.1993 and the said Government notification was quashed so far it related to prohibition of contract labour particularly security services in the establish¬ment of Smelter Plant NALCO at Angul and that judgment covers the case of all the petitioners of the present writ petitions since all the petitioners are employed by the Investigation and Securi¬ty Services of India Private Limited. 28.9.1993 and the said Government notification was quashed so far it related to prohibition of contract labour particularly security services in the establish¬ment of Smelter Plant NALCO at Angul and that judgment covers the case of all the petitioners of the present writ petitions since all the petitioners are employed by the Investigation and Securi¬ty Services of India Private Limited. It is contended that this Court with reference to the opinion of the Sub-committee consti¬tuted under Section 10 of the Act and its findings made in spot study of the jobs in captive power plant as well as smelter plant of NALCO observed that the Sub-committee examined only two out of four relevant factors as provided for under Sub-Section (2) of Section 10 of the Act and from the proceedings of the State Board, it appears that it accepted the report of the sub-committee and recommended the Government for abolition of con¬tract labour system in the works in question. The report of the Sub-committee has to be held to be incompetent one and the recom¬mendations of the Board to the State Government on the basis of such report is clearly vitiated in law and accordingly quashed the notification so far as it prohibited employment of contract labour in Smelter Plant of NALCO. In the meantime, this Court, in Civil Review No.151 of 1998 arising out of O.J.C. No.3249 of 1992, has already allowed the review petition and quashed the entire notification dt. 9.4.1991 relating to the Captive Power Plant as well as Smelter Plant of the NALCO. It is, therefore, submitted that since the notification under Section 10 in its entirety prohibiting employment of contract labour in the Captive Power Plant as well as Smelter Plant of NALCO has been quashed, the petitioners cannot stake any claim on the basis of such notification for regularization services. 7. An additional affidavit has been filed by opposite parties 3 to 6 to the amended writ petition reiterating the stand as well refuting the averments made in the paragraphs 10(a) to 12 of the consolidated writ petition. 8. Sri B. Rath, learned counsel for the opposite party-NALCO submitted that these opposite parties moved the apex Court in C.A. Nos. 4728 & 4729 of 2007 against the judgment dt. 8. Sri B. Rath, learned counsel for the opposite party-NALCO submitted that these opposite parties moved the apex Court in C.A. Nos. 4728 & 4729 of 2007 against the judgment dt. 26.8.1999 passed in O.J.C. No.3249 of 1992 reported in 88(1999) CLT 377 and the apex Court while allowing the appeals has already set aside the interim judgment of this Court and as such, the case has reached its finality and as such, the petitioners are not justified in pursuing the writ petition any further with some plea or the other. Submission is made that after the final judg¬ment of the apex Court, entertaining the writ petition in some form or other will be amounting to interfere with the judgment of the apex Court specially when the apex Court has already set aside the judgment of this Court and allowed the appeals without prejudice to the rights, if any, the employees may have in ac¬cordance with law. Thus, according to the opposite parties, petitioners have no further cause of action to pursue the writ petition. Otherwise also, the petitioners can approach the appro¬priate forum for redressal of their grievances, if any. Further, submission is made that as a matter of fact, the petitioners are employees of the contractor and they are working with certain terms and conditions set up by their employer i.e. M/s. ISS Pvt. Ltd., opposite party No.7 and therefore, there is little scope for NALCO exploiting these petitioners. There may be at best a dispute with regard to the petitioners and their employer and not with NALCO. The opposite parties have been directed by the compe¬tent authority to do the particular work under contract system and accordingly, the work is being done through contract system. In view of judgment of the Constitution Bench of the apex Court in Steel Authority of India Ltd. (supra) over ruing the Air India Statutory Corporation’s case, the petitioners are not entitled to any relief, whatsoever. 9. In order to appreciate the contention raised by the learned counsel for the parties, it is necessary to look into the order dt. 26.8.1999 passed by a Bench of this Court. 9. In order to appreciate the contention raised by the learned counsel for the parties, it is necessary to look into the order dt. 26.8.1999 passed by a Bench of this Court. The Court by order/judgment dated 26.8.1999 held that it would be well within its jurisdiction to direct the principal employer of an estab¬lishment to absorb the contract labour on regular basis even if there is no abolition of contract labour as provided in the Act. The Court after holding so, directed the Labour Commissioner (Central), Bhubaneswar to conduct an enquiry after due notice to the parties and submit his report within six months on the fol¬lowing points : (i) Number of contract labourers with their designation, age, date of entry and total period of engagement in the security service of both the units, viz, Smelter Plant and Captive Power Plant of NALCO. (ii) Requirement of total number of security personnel in different cadres/posts to be employed on regular basis. The writ petition was directed to be listed in the first week of February, 2000 to pass further order after receipt of the report from the Labour Commissioner. 10. It has been already noted earlier that he said decision of this Court has been set aside by the apex Court by order dt. 17.7.20003 passed in C.A. Nos.4728 of 4729 of 2000. The apex Court held that since the decision in AIR India Statutory Corpo¬ration v.United Labour Union (1997) 9 SCC 377 has been overruled by the Constitution Bench in Steel Authority of India Ltd & others v. National Union Waterfront Workers & others (2001) 7 SCC 1 , the direction of the High Court for absorption of contract labour following the judgment in Air India Statutory Corporation shall not hold good except where it has been given effect and has become final. The apex Court having found that such is not a position in the present case, has set aside the judgment and allowed the appeals without prejudice to the rights, if any, the employees may have in accordance with law. 11. In view of the order of the apex Court, we think the contention of the opposite parties that the writ petitions have attained finality has sufficient force. 11. In view of the order of the apex Court, we think the contention of the opposite parties that the writ petitions have attained finality has sufficient force. The prayer of the peti¬tioners for directing the opposite parties to declare them as regular employees in the post held by them and their further prayer to refer the dispute for adjudication by the Industrial Forum as to whether the conditions of Section-10(2) of the Con¬tract Labour (Regulation & Abolition) Act are fulfilled or not and whether the contract between the NALCO management and the contractor is a sham contract in view of the factual position as narrated in the writ petition do not subsist for consideration. The writ petitioners, if so advised, may seek for any remedy as is available to them in accordance with law but are not entitled to any relief in the present writ petitions. The writ petitions do not survive consideration on the basis of the amendment sought after the decision of the apex Court. In the aforesaid view of the matter, the writ petitions are dismissed. However, it is open to the petitioners to seek for any remedy as available to them under law, on which we express no opinion. J. P. MISHRA, J. I agree. Petitions dismissed.