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2007 DIGILAW 732 (CAL)

Rajaram Singh v. Bharat Petroleum Corporation Ltd

2007-09-20

JAYANTA KUMAR BISWAS

body2007
Judgment :- (1.) THE sixteen petitioners are seeking a declaration that decision of the first respondent that its certain retail outlets only women should be engaged for running the outlets is hit by the provisions in Articles 15 and 16 of the constitution of India. They are seeking an order directing the Central government to consider and decide the nature of the job performed by them for holding that it is perennial in nature, and hence the system of employment of contract labour should be prohibited in the retail outlets of the first respondent. (2.) COUNSEL for the petitioners argues that the decision to engage only women workers for running the outlets is unconstitutional. She says that because of the decision man workers working in the outlets in many years lost their employment. Her further submission is that by submitting representation dated July 13th, 2004 the petitioners requested the labour commissioner (central) to resolve the disputes keeping in view that in reality an employer employee relationship between them and the corporation always existed and hence the corporation was not entitled to refuse engage them in its outlets from November 9th, 2003. Counsel for the corporation submits that in view of certain policy decision of the Central Government decision was taken by the corporation that only women workers should be engaged for running some of its outlets. She further says that the parties concerned not only approached the labour commissioner that lodged industrial disputes, but also instituted a suit before the civil Court. (3.) THERE is nothing to show that by any legal means any decision was taken by any competent authority those women workers should be engaged for running some of the outlets of the first corporation. This being the position, i am unable to see how the corporation could issue order directing its dealers operating the outlets to engage only women workers for running the outlets. Such decision and order of the corporation is clearly violative of the provisions in Article 15 of the Constitution of India. As I have said no special provision for the purpose has been made by the state. Only on the ground of sex man workers have deprived of the opportunity of working in certain outlets of the first corporation. In my view such a dispute on the ground of sex cannot be made. As I have said no special provision for the purpose has been made by the state. Only on the ground of sex man workers have deprived of the opportunity of working in certain outlets of the first corporation. In my view such a dispute on the ground of sex cannot be made. (4.) AS to the question of making an order directing the Central government to issue notification under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970,i do not see how the petitioner can seek a mandamus from this Court. There is nothing to show that they submitted any application to the appropriate Government seeking a notification under Section 10. Counsel has said that representation submitted to the labour commissioner (central) may be considered as the application necessary for considering the case in the context of the provisions in Section 10. I do not see how she can make the submission. The representation was made raising an industrial dispute whether there was any dispute that a different question and whether the labour commissioner (central) was the appropriate authority that is not to be decided as well. There is nothing to show that with respect to the corporation the Central Government is the appropriate Government. It has not been said that the Central Government is carrying on the industry concerned or that the corporation has been carrying on the industry under the authority of the Central government. Hence I do not see how the petitioners can seek an order directing the Central Government to consider the question of issuing a notification under section 10. Be that as it may, since the petitioners did not approach the appropriate Government for considering the question of issuing and notification under Section 10, I do not think any order for the purpose can be made in this writ petition. (5.) IN so far as the question of engagement of the persons concerned is concerned I am of the view that in exercise of writ powers any relief can be given to them. The persons concerned were never engaged by the corporation as its employees or workers. Whether they are employees or workers of the corporation is a question that has to be decided only by the appropriate forum are after adjudicating the relevant issues on the basis of evidence recorded by it. The persons concerned were never engaged by the corporation as its employees or workers. Whether they are employees or workers of the corporation is a question that has to be decided only by the appropriate forum are after adjudicating the relevant issues on the basis of evidence recorded by it. Sitting in writ Court I cannot decide whether the persons concerned are actually contract labourers or were employees or workers of the corporation. If the contractors who engaged the persons previously were not inclined to engage them any more, in my view no relief can be given by the writ Court. (6.) FOR these reasons I dispose of the writ petition ordering that decisions and orders of the corporation that only women workers shall be engaged in some of its outlets shall be deemed to be quashed. It is made clear that in all outlets of the corporation both women and men workers shall be entitled to get employment, and that the man workers shall not be discriminated on the ground of sex alone unless any special law for the purpose is made by the state. As to the question of issuing notification under Section 10, I say that the petitioners will be at liberty to approach the appropriate Government with appropriate application. With regard to the representation made to the labour commissioner (central) I say that that authority shall give his final decision in the representation, in accordance with law, as expeditiously as possible. There shall be no order for costs in the case. (7.) IN view of this decision nothing remains to be decided in the application (CAN 10069 of 2005) taken out by the petitioners. That application not appearing today, is treated as on the days list, by consent of Counsel for the parties, and it shall be treated as disposed of. (8.) URGENT certified xerox copy of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.