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2009 DIGILAW 358 (CAL)

Promatha Das Mahanta v. UNION OF INDIA

2009-05-08

JAYANTA KUMAR BISWAS

body2009
Judgment : JAYANTA KUMAR BISWAS, J. (1) The sixty petitioners in this writ petition dated January 7,2003 are seeking the following reliefs: "(a) A writ of or in the nature of mandamus be issued commanding the respondents and/or each of them, their servants and agents, directing them to forthwith regularise and/or absorb the services of the petitioners with the respondent No. 6, as their regular employees; (b) A writ of or in the nature of mandamus be issued commanding the respondents and/or each of them, their servants and agents directing them to pay same or similar salaries and allowances as those received by the regular employees of the respondent No. 6; (c) A writ of or in the nature of mandamus be issued commanding the respondents and/or each of them, their servants and agents to issue appropriate Notification under Section 10 of the Contract Labour (Regulation and (Abolition) Act, 1970 thereby directing absorption of the petitioners as the regular employees of the respondent No. 6." (2) Mr. Sengupta, counsel for the sixth respondent, questions the maintainability of the writ petition, insofar as the prayers (a) and (b), seeking reliefs against the sixth respondent, a private company, are concerned. He says that since the sixth respondent is not a State within the meaning of Article 12 of the Constitution of India. the writ petition seeking reliefs against it is not maintainable. Faced with this preliminary objection, Mr Chakraborty, counsel for the petitioners, submits that he has received instructions to say that the petitioners are not pressing prayers (a) and (b). (3) Under prayer (c) the petitioners are seeking a mandamus commanding the respondents to issue a notification under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. In view of the relief sought, I requested both Mr Chakraborty and Mr Sengupta to examine which Government would be the appropriate Government in relation to the sixth respondent. After examining the provisions of Section 2 of the Contract Labour (Regulation and Abolition) Act, 1970 and the provisions of Section 2 of the Industrial Disputes Act, 1947, both of them have agreed that in relation to the sixth respondent that has its registered office in Mumbai and is also carrying on business from its place of business in Durgapur, the State Government is the appropriate Government. (4) The petitioners have alleged that though by making representations dated November 11, 2002, Annexure P7 at p.69, and December 11, 2002, Annexure P8 at p. 72, they requested the State Government to issue a notification under (Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, it has not taken any step for the purpose. Mr Sengupta has rightly said that a notification under Section 10 cannot be issued by the appropriate Government for I the asking. He has said that a notification can be issued only if all the conditions for issuing a notification are fulfilled. According to Mr Chakraborty, the facts stated in the representations will show that in the present case the conditions were fulfilled. (5) The State Government is not appearing. The admitted position is that the representations, sent through lawyers, were not considered by the Government. Under the circumstances, I do not think it will be in the interest of justice to record an opinion on the question whether facts-stated in the representations satisfy all the conditions for issuing a Section 10 notification by the Government. A finding of the Court on the question is necessary only for deciding whether a mandamus should be issued. Since the Government has not expressed its view, I do not think the writ Court should express any view that virtually will be the first opinion on the issue. The question whether a mandamus should be issued should not be finally decided at this stage. (6) I am, however, of the view that the petitioners had legal right to submit the representations, and that once the representations were made, the Government incurred a statutory obligation to give appropriate decision in them. Since the decision has not been given and Mr Chakraborty has said that after filing of the writ petition many things have happened, I think it will be appropriate to dispose of the writ petition giving liberty to the petitioners and other interested persons to submit a detailed representation to the State Government requesting it to examine the question of issuing a Section 10 notification in relation to the sixth respondent. (7) The petitioners have filed three applications: (1) for amendment of the writ petition, (2) for addition of party, and (3) for certain interim orders. The interim reliefs have been sought against the sixth respondent. (7) The petitioners have filed three applications: (1) for amendment of the writ petition, (2) for addition of party, and (3) for certain interim orders. The interim reliefs have been sought against the sixth respondent. Mr Chakraborty has said that from the documents produced by the petitioners it will appear that the sixth respondent stated that the question of giving financial benefits in terms of certain agreement would be considered after the decision in this Writ petition. Mr Sengupta has rightly said that when the writ petition itself is not maintainable against the sixth respondent, there is no question of considering the question of making any interim order against it. (8) In my opinion, on the facts stated hereinbefore, there is no need to make any order in the amendment application. As to the application for addition of party Mr Sengupta has said that he has nothing to say. Mr Chakraborty has said that if the persons concerned are added, then they will acquire a right to submit representation with the other petitioners to the Government. This being the submission, I think the application for addition of party should be allowed. (9) For these reasons, the writ petition is dismissed as against the sixth respondent. It is disposed of insofar as the State Government, the third respondent, is concerned. The applications for amendment and interim relief shall be deemed to be disposed of. The application for addition of party is allowed. Cause papers shall be amended by advocate for the petitioner by next Monday. The petitioners will be at liberty to submit a detailed representation to the State Government asking it to examine the question of issuing a Section 10 Notification in relation to the establishment of the sixth respondent. If a representation is made, then the Government shall give appropriate decision in it within ten weeks from the date of receipt thereof. The reasoned decision shall be communicated to all concerned without any delay. A copy of the amended writ petition shall be served on Mr Senguptas Advocate- on-Record by next Tuesday. There shall he no order for costs. (10) Urgent certified xerox 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.