Karaikal Industries Forum represented by its President, Registered Office: M/s. Henkel India Ltd. v. Government of Puducherry represented by its Secretary to Government
2012-03-07
K.CHANDRU
body2012
DigiLaw.ai
Judgment :- 1. 1. In all these four writ petitions, the petitioner is the same, i.e., M/s.Karaikal Industries Forum, represented by its President. In these writ petitions, the petitioner has chosen to challenge the G.O.Ms.No.19/Lab/AIL/G/2011, G.O.Ms.No.16/Lab/AIL/G/2011, G.O.Ms.No.21/Lab/AIL/G/2011 and G.O.Ms.No.18/Lab/AIL/G/2011, dated 24.08.2011 respectively. 2. By G.O.Ms.No.19/Lab/AIL/G/2011 impugned in W.P.No.5202 of 2012, the Union Territory of Puducherry had abolished the contract labours in the process such as loading into furnance, furnace area and tapping in all manufacture of basic metal industries (production of MS Ingots from Scrap Iron) in the Union Territory of Pududhcerry. The order was issued after accepting the advice of the State Contract Labour Advisory Board. 3. In W.P.No.5203 of 2012, the challenge is to the G.O.Ms.No.16/Lab/AIL/G/2011, in which the Union Territory of Pudhcherry had abolished the engagement of contract labour in chemical industries involving in the process such as raw material storage, reactor section, burner section, centrifuge section, dryer section, sieving section and packing section. 4. In W.P.No.5204 of 2012, the challenge is to the G.O.Ms.No.21/Lab/AIL/G/2011, wherein and by which the Union Territory of Puducherry abolished the contract labour in respect of all Pharmaceutical industries in the process of mixing, formulation and tableting. In W.P.No.5205 of 2012, the challenge is to the order passed in G.O.Ms.No.18/Lab/AIL/G/2011 in respect of bottle making, granite cutting and polishing industries in respect of the processes like raw material sieving, raw material handling and ball mill mixing, furnace / Kiln area, bottle making, drying section and cutting / polishing of stones. 5. In all these four writ petitions, identical contentions have been raised, i.e., their members are having industrial units. They are having regular direct manpower to work in technical and skilled operations. As certain works which are of intermittent casual nature, contract labours were employed through licensed contractor. The payment of wages and other service conditions are monitored by the principal employer, i.e., the members of the petitioner association. The industrial units were also periodically inspected by the Inspector of Factories and by enforcement officers of ESI and EPF Act. The workers who were engaged through the contractors were also having the benefits of the ESI and PF. But, however, the Government of Puducherry by the impugned notifications had abolished the contract labours in the processes as set out above without following the norms prescribed under the said Act.
The workers who were engaged through the contractors were also having the benefits of the ESI and PF. But, however, the Government of Puducherry by the impugned notifications had abolished the contract labours in the processes as set out above without following the norms prescribed under the said Act. Even though it was stated that it was based upon the recommendations of the sub committee, no details were forthcoming. The sole reason for prohibition was engagement of contract labour may cause occupational diseases to the contract labours. The reason of the committee that exposures to extreme temperature and fine dust may cause occupational diseases is baseless and contrary to the provisions of the Act, more particularly Section 10 of the Act. The consultation of the Government with the advisory board has not been made and that mechanically the orders have been passed. Since the Government of Puducherry has not constituted a State Advisory Board in terms of Section 4, any recommendation given by the sub-committee was not valid. The reason that it may likely to cause occupational diseases is unwarranted. The Factories Act takes care of such a situation. 6. However, this court is not inclined to entertain the writ petitions. In the present case, there is no violation of any legal provisions. The State Advisory Board under the Contract Labour (Regulation and Abolition) Act, 1970 in its meeting held on 25.11.2009, which also had a representative of the employer, unanimously recommended prohibition of certain employment in eight types of industries. In paragraph 7 of the minutes, it was stated as follows: "7.) The members of the State Advisory Board unanimously resolved to accept the sub committee's report, suggesting to prohibit certain categories of employment in eight types of industries as detailed below and to recommend the same to the Government for prohibition. 7. It is pursuant to the minutes of the meeting of the Board, which was constituted by G.O.Ms.No.31/Lab/G/2002, Labour Department, dated 03.09.2002, the Puducherry Government accepting the same had abolished the contract labour in the processes set out above. It is not clear as to how the petitioner can challenge the same especially when the Act enables the Government to abolish the contract labour in any process after following the procedure under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. 8.
It is not clear as to how the petitioner can challenge the same especially when the Act enables the Government to abolish the contract labour in any process after following the procedure under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. 8. Section 10(2) of the Act reads as follows: "10.) Prohibition of employment of contract labour. (1) ....... (2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) whether it is done ordinarily through regular workman in that establishment or an establishment similar thereto; (d) whether it is sufficient to employ considerable number of whole-time workmen. Explanation.--If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final." (Emphasis added) 9. In the present case, even as per the admission of the petitioner in the affidavit that in the place of regular workmen, due to intermittent vacancies, the contract labours were engaged, thereby proving that they were engaged to replace the regular workers though intermittently. Secondly, the Advisory Board comprising of the management representative and workers representatives, was unanimous in making the recommendation. The opinion of the committee was that the workers are being engaged in the areas where it is likely to cause occupational diseases and also temperature exposures, will not make the order invalid and that these are very much relevant considerations. Since the contract labourers were always used with a view to deny them providing wages and that the members of the petitioner association cannot be said to be aggrieved persons because if wages are not paid by contractor, under Section 21(4), the obligation is on the principal employer to pay wages.
Since the contract labourers were always used with a view to deny them providing wages and that the members of the petitioner association cannot be said to be aggrieved persons because if wages are not paid by contractor, under Section 21(4), the obligation is on the principal employer to pay wages. Further, under Rule 25(v) of the Contract Labour Central Rules, if the work is similar nature, the contract labours are bound to be paid the same wages as that of the employees of the principal employer. 10. The Act contemplates two methods in dealing with the contract labours, i.e., (1) regulating the terms and conditions and (2)abolition of contract labours. But the only pre-requisite is that for abolition, the Advisory Board will have to recommend the same. This court is not concerned with the composition of the advisory board since the advisory boards represents the employer's interests also. In the present case, the contention that they did not really represent the employer's interest cannot be considered as ultimately every employer cannot be accommodated in the advisory board. The recommendation of the board is not clearly binding on the Government. Ultimately, it is for the Government to decide the abolition of the contract labour. 11. The Supreme Court vide its judgment in Steel Authority of India Ltd. v. National Union Waterfront Workers reported in (2001) 7 SCC 1 has held that one of the course open to seek for abolition of the contract labour is through the mechanism provided under Section 10(1). Therefore, the abolition made in these cases cannot be thwarted by the writ petitioner. Ultimately, the employer's power to carry out the trade is subjected to reasonable restrictions. The Contract Labour (Regulation and Abolition) Act is one such enactment conceived with a view to uplift the contract labourers in the unorganised work. By abolition, it is not as if the petitioner is directed to close their industries. Therefore, this court is not inclined to interfere with the impugned orders. Accordingly, all the writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.