M. Subramani v. The Director Department of Industries and Commerce
2012-01-11
K.CHANDRU
body2012
DigiLaw.ai
Judgment :- 1. Unfortunately the petitioners in these Writ Petitions are Sweepers/Sanitary Workers engaged by BHEL at their plant at Ranipet. In these Writ Petitions, the petitioners seek for disposal of their representation dated 7.11.2011 sent by the petitioners by which they seek for regularization of their service, pursuant to their initial appointment made on 1.4.1987. 2. It is not clear as to how the petitioners can seek for a direction to the Directorate of Industries and Commerce in respect of their service grievance and when the power solely vests with the BHEL Limited, which is a Central Government owned Company. It is an autonomous body and only it has to decide the grievances projected by the petitioners. In any event, by their own admission, it is found that they were engaged through one Industrial Cooperative Society. In which event, the remedy open to the petitioners is to seek from appropriate remedy before the Industrial Forum with reference to their service grievances. 3. It must noted that initially the Central Government by its notification dated 9.12.1976 prohibited the engagement of contract labour in the process of sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government is the Central Government. However, the said Notification came to be set aside by the Supreme Court as without jurisdiction, vide the decision of the Constitution Bench of the Supreme Court in Steel Authority ofIndia and others v. National Union Water Front Workers reported in 2001 (7) SCC 1 . In that case, the earlier judgment of the Supreme Court in Air India Statutory Corporation etc., v. United Labour Union and others reported in 1997 (1) LLJ 1113 was set aside. The Supreme Court clearly held that in case of a person seeks either for abolition of the contract labour or that the engagement of such labour was a camouflage to deprive the legitimate rights of the workman, the remedy open to them is to raise an industrial dispute. In such an event, they will have to prove that the contract was sham and nominal. Otherwise they would seek for abolition of contract labour under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. 4. Initially there was a doubt as to whether the BHEL was an establishment under the control of the Central Government.
In such an event, they will have to prove that the contract was sham and nominal. Otherwise they would seek for abolition of contract labour under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. 4. Initially there was a doubt as to whether the BHEL was an establishment under the control of the Central Government. However, in the Steel Authority of Indias case, it has been clarified that if the establishment do not come within Section 2(1)(c) of the Act, the appropriate Government is only the State Government. 5. In respect of BHEL at Tiruchirapalli, they also moved the Court seeking for regularization on the ground that the State Government issued a Notification abolishing contract labour in respect of sweeping vide a Notification issued in the year 1988. Even that Notification was set aside by the Supreme Court vide its judgment in L&T MCnEIL Ltd. v. Government of Tamil Nadu reported in 2001 (3) SCC 170 . Therefore the only option open to such workers who are engaged through Cooperative Society is to raise a dispute or seek for abolition of contract system. On the other hand, the petitioners herein on being wrongly advised have sent representations to an authority under the State Government, who has no power to intervene in any service dispute with reference to BHEL, as the said BHEL do not come under the jurisdiction of the 1st respondent. Therefore, after sending a representation to a wrong authority and asking for their regularization is only a misnomer. It does not lead the case of the petitioner to anywhere. 6. The learned counsel for the petitioner relies upon an order passed by this Court in W.P.No.26065 OF 2011 and 26066 of 2011 dated 11.11.2011. In that case, the learned Judge of this Court without going into the merits of the case gave a direction to the State Governments officer to consider the representation of the petitioner. The said order does not lay down any proposition of law and do not take into account the entire history behind the contract labour abolition in the process of sweeping in BHEL Limited. 7. The learned counsel for the petitioners is well advised to inform his clients that they should seek for a genuine remedy, which will give them the relief and not to take a gardenpath without getting relief to them.
7. The learned counsel for the petitioners is well advised to inform his clients that they should seek for a genuine remedy, which will give them the relief and not to take a gardenpath without getting relief to them. The Writ Petitions are misconceived and bereft of legal reasoning. This Court is not inclined to give direction to the authority, who cannot deal with the problem of the petitioners. 8. Hence, all the Writ Petitions stand dismissed. No costs.