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2009 DIGILAW 829 (CAL)

Sheikh Jahangir Ali v. UNION OF INDIA

2009-11-23

J.K.Biswas

body2009
JUDGMENT JAYANTA KUMAR BISWAS, J. 1. THE twenty-three petitioners in this writ petition dated October 9, 2001 are aggrieved by the decision of the Central Government dated September 19, 2001, Annexure P-9 at p. 132, "not to prohibit employment of contract labour in the jobs/works of repair of conveyor belts I.e. Vulcanising in the establishment of Calcutta Port Trust, Haldia Dock Complex for which the 'appropriate Government' under the Contract Labour (Regulation and Abolition) Act, 1970 is the Central Government." 2. MR. Bhattacharya, counsel for the petitioners, has drawn my attention to the findings of the Assistant Labour Commissioner (Central), Calcutta - III recorded in his enquiry report dated April 7, 2000, Annexure P8 at p. 127, which are as follows: "From the above facts and circumstances, the following observations have been made: 1. That the jobs of rate contract for repairing and maintenance of conveyor belts and also repair of power and control cables of various plants and machineries under "Power and Equipment" Division of Haldia Dock Complex (CPT) are executed by the management of Haldia Dock Complex through contract labour for about 14 to 15 years. 2. Shri Jahangir Ali and 22 others have been working under Chanda Vulcanizers Pvt. Ltd. 3/1B, Mahendra Road, Calcutta-700 025, the contractor for above 12 to 15 years for the above job in Haldia Complex. The same contractor is engaged by the management of Haldia Dock Complex' (CPT), probably because they could get the job in all the time till date though the contract is awarded periodically by inviting open tenders. 3. THAT the service conditions including wages and other fringe benefits of these contract labourers and the statutory benefits like P.F., ESI, bonus etc. are reasonably protected and appears to be safeguarded. An agreement is reached periodically with the contractor and local union (affiliated to CITU) accordingly. Under this agreement, the workmen are also provided with annual increment, leave facilities, uniform House Rent allowance, canteen, conveyance, and welfare benefits, ad hoc monthly wages of Rs. 300/- per worker etc. 4. THE concerned workmen are thus paid their monthly wages around Rs. 5,000/- including all benefits as mentioned above. Under this agreement, the workmen are also provided with annual increment, leave facilities, uniform House Rent allowance, canteen, conveyance, and welfare benefits, ad hoc monthly wages of Rs. 300/- per worker etc. 4. THE concerned workmen are thus paid their monthly wages around Rs. 5,000/- including all benefits as mentioned above. That the job of repair of conveyor belt and other allied work are though apparently seen continuing from day to day on the basis of attendance of workmen in Haldia Dock Complex, but the job in fact is intermittent in nature, especially because of the nature of job. In case of vulcanizing job of conveyor belts, repair work is only required when it is either snapped and gets damaged during the operation. 5. THAT the services of some of the workmen are utilized sometime by other industries, like Hindustan Lever, Petro carbon and Chemicals etc. situated in Haldia area. 6. THAT the services performed by these contract labourers may not reasonably, be linked and associated with the main function of the establishment as repair work cannot be construed as work in the establishment under the definition of Section 2(e) of the Contract Labour (R and A) Act, 1970. No regular employee of the establishment is engaged for any kind of same job, which executed through Contractor, Chanda Vulcanizer Pvt. Ltd. 7. THE reasons for engaging same set of contract labour over the years are due to labour situation at Haldia Region which does not allow the contractor to engage labour of their own choice and suitability. It has rather become a convention in West Bengal probably in order to maintain industrial peace and harmony." 8. THE Central Government has given the impugned decision on the basis of the findings of the Assistant Labour Commissioner recorded in his report dated April 7, 2000. After examining the findings and the decision of the Central Government, Mr. Bhattacharya has said that there is no scope for him to make a submission that employment of contract labour in the establishment in question should be prohibited, or that the port trust should be ordered to absorb the petitioners in its establishment. He has said that it is not disputed by anyone that, the petitioners, having been employed in the work of the Port Trust, have been working for around twenty-four years. He has said that it is not disputed by anyone that, the petitioners, having been employed in the work of the Port Trust, have been working for around twenty-four years. Pointing out this feature and the fact that the petitioners, giving themselves over to the services of the Port Trust, may now be shown the door unceremoniously, he has invited me to make certain observations so that the port trust may explore the possibilities of extending some benefits to the petitioners, if a contractor other than the contractor 'through which they came to be employed is given the same work. He has said that for protecting interests of working class from time to time employers innovated ways, and that while some employers, e.g. the Food Corporation of India, protected interests of the class by introducing the direct payment system, some introduced the policy of compelling the incoming contractor to go on engaging the same workmen excluding the unwilling ones. Mr. Ghosh, counsel for the port trust, has submitted that the Court should not make any observation in any case knowing that the party concerned will ignore the observation and thus will show disrespect to the Court. According to him, the Court only decides a dispute by saying yes or no, and it should not step outside this area. In view of Mr. Bhattacharya's submissions, I am of the view that the impugned decision does not call for any interference. I am, however, unable to agree with Mr. Ghosh that the job of the writ Court is limited only to decide a dispute by saying yes or no. In my opinion, the writ Court will be failing in its constitutional duty, if it decides a writ petition taken out under Article 226 of the Constitution of India following a strait-jacket formula, and remaining oblivious of the constitutional goal envisaged in Article 38 that mandates, all concerned to work in tandem for bringing about a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The labourers, indisputably belonging to the weakest Section of the society, need protection. They need protection, especially from the Governments, and organisations, bodies, body corporates and authorities created or controlled by the Governments; they all are supposed to be ideal employers, and in the process they are to set examples for others. The labourers, indisputably belonging to the weakest Section of the society, need protection. They need protection, especially from the Governments, and organisations, bodies, body corporates and authorities created or controlled by the Governments; they all are supposed to be ideal employers, and in the process they are to set examples for others. They are not to treat poor labourers as private employers may. It is their solemn obligation to extend all possible benefits and protections to the working class to the best of their ability. I am, therefore, of the view that a litigant such as the port trust should not take a stand that the writ Court should not make any observation that it will consciously ignore and thus will show disrespect to the Court. Observations are made by the Courts only to guide the litigant concerned to the right direction, when existing law does not help the person inviting the Court to make the observations. I, therefore, think that the observations Mr. Bhattacharya invited me to make, can be made and should be made. 9. FOR these reasons, I dispose of the, writ petition by saying that the respondents, especially the Port Trust and its administrative ministry of the Central Government, shall explore the possibilities of introducing the direct payment system or compelling the incoming contractor, if one substitutes the existing one, to engage the same set of labourers excluding the unwilling ones, so that the petitioners, giving themselves over to the Port Trust's services during the last twenty-four years, are not shown the door unceremoniously. I have no doubt that if the respondents concerned can give some benefits to the petitioners, then they will be promoting the constitutional philosophy and setting an example for others. There shall be 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.