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2017 DIGILAW 767 (CAL)

Indian Oil Corporation Ltd. v. Union of India

2017-09-12

SAMBUDDHA CHAKRABARTI

body2017
JUDGMENT : 1. A gazette notification, dated May 25, 2011, prohibiting the employment of contract labour in the job of barrel and small can filling (upto 1 liter.) in the establishment of Lube Oil Blending Plant of Indian Oil Corporation, Budge Budge, is the subject matter of challenge absolutely on certain points of law raised in the present writ petition. But as in respect of all points of law, so also in the present one, it cannot be appreciated in vacuum, calling for a brief narration of facts leading to the issue of the notification. This will turn facilitate as appreciating both the context as well as the validity of the points of law raised. 2. The petitioner i.e. Indian Oil Corporation, (the Corporation, for short) is a government company. It owns and operates a lubricant plant at Budge Budge. This was originally owned by IBP Co. Ltd. which became the petitioner’s upon the amalgamation of the Corporation with the IBP Co. Ltd. on May 2, 2007. 3. At all material times contract labour was employed in the plant. In the year 2001, a union of the IBP company, i.e., the respondent no. 4 moved a writ petition before this Court and obtained an order directing the respondents therein to dispose of the application under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, (the Act, for short) in accordance with law within a period of three months from the date of the communication of the order. The Central Advisory Contract Labour Board (the Board, for short) by a resolution dated February 18, 2003, constituted a committee for examining the issue. 4. After a thorough examination of the issues involved the committee submitted a report that it would not be reasonable to prohibit the employment of contract labour in question. During this period the concerned union and the respondent no. 4 informed the Regional Labour Commissioner that the dispute raised in the writ petition had been amicably settled and the matter pending before the Board was to be treated as closed. 5. As per the direction the petitioner and the concerned union attended the 62nd meeting of the Board, held on July 11 and 12, 2005. Upon a consideration of the said report the Board had taken a decision that the contract labour should not be prohibited and made a recommendation to the Government accordingly to that effect. 5. As per the direction the petitioner and the concerned union attended the 62nd meeting of the Board, held on July 11 and 12, 2005. Upon a consideration of the said report the Board had taken a decision that the contract labour should not be prohibited and made a recommendation to the Government accordingly to that effect. 6. The union, however, subsequently asked the Board to review its decision and the matter was discussed at the board meeting on various dates which the petitioner corporation had also attended. 7. Ultimately as the parties could not come to a settlement as suggested by the Board, the union again moved a writ petition and by an order dated April 28, 2010, a learned Single Judge with the consent of the respective parties disposed of the writ petition by directing the Board to take a decision in the matter in accordance with law as expeditiously as possible, preferably within a period of six weeks from the date of the communication of the order. 8. Again the Board constituted a committee and the committee held several meetings and made an “on the spot” study. The petitioner put forward its case against the abolition of the contract labour as there was no change in the circumstances from the time of the recommendation of the first committee. The Corporation placed a note also for the consideration of the committee. 9. On June 18, 2011, the Corporation received a copy of the notification, dated May 25, 2011, which has been annexed to the writ petition as Annexure P-9, of the Ministry of Labour, prohibiting the employment of contract labour in certain activities at the said plant. It also received a communication dated June 20, 2011, from the concerned union requesting the petitioner to treat these contract labourers as its permanent employees. 10. Subsequently the petitioner requested the Regional Labour Commissioner to supply copies of all reports of the committee which were sent to the Board and also to the Secretary of the Board requesting to him to supply copies of the minutes of the necessary consultation between the Board and the Union of India. These letters have not been replied. 10. Subsequently the petitioner requested the Regional Labour Commissioner to supply copies of all reports of the committee which were sent to the Board and also to the Secretary of the Board requesting to him to supply copies of the minutes of the necessary consultation between the Board and the Union of India. These letters have not been replied. From this the petitioner wants to draw an inference that there has not be any consultation between the Board and the Union of India before the gazette notification dated May 25, 2011 which has been assailed in the present writ petition. 11. The respondent nos. 1 to 3 contested the writ petition by filing an affidavit affirmed by the Deputy Chief Labor Commissioner. The affidavit gives a short narration of the factual background. It states that pursuant to the concerned order passed by this Court in the year 2010 on the consent of the parties, it was decided at its 76th meeting of the Board to appoint a fresh subcommittee to do the fact finding exercise keeping in view the provision of Section 10 (2) of the Act for recommending the abolition of employment of contract labour or otherwise. The subcommittee held a meeting with the representatives of the petitioner and the respondent no. 4 union and they visited the concerned plant of the petitioner at Budge Budge where they inspected various operational areas. At the meeting of the committee held on March 12, 2011, the abolition of contract labour in the operation of the barrel and small can filling (upto 1 liter) was unanimously recommended. 12. The answering respondents have also mentioned of a contempt proceeding initiated by the respondent no. 4 union in view of which the Secretary, Ministry of Labour and Employment as well as the Secretary of the Board were directed to circulate a copy of the report, dated March 12, 2011, prepared by the committee to all the members of the Board with a request to send their views by fax or by speed-post. It was further clarified that if any response was not received it would be presumed that the said member did not have any objection to the report of the committee. 13. It was further clarified that if any response was not received it would be presumed that the said member did not have any objection to the report of the committee. 13. The affidavit discloses that in response to the said letter majority of the members of the Board in writing approved the report of the committee that had prohibited the employment of contract labour. 14. Upon receipt of the said approval the impugned notification prohibiting employment of contract labour in the specific job as mentioned therein was published by the Central Government in the official gazette. 15. The respondent nos. 1 to 3 have denied the allegations made in the writ petition and stated that the notification had been issued after a detailed fact finding exercise resulting in unanimous decision of the committee formed under Section 5 of the Act. The decision has been duly endorsed by the members of the Board. The petitioner was given adequate opportunity of being heard during the fact finding exercise of the meeting. Therefore, their legal right to natural justice has not been compromised in any manner. The respondent nos. 1 to 3 have prayed for dismissal of the writ petition. 16. Mr. Chowdhury, the learned Senior Counsel for the petitioner submitted that the petitioner did not wish to file any affidavit-in-reply to the affidavit of the respondent nos. 1 to 3. 17. The principal ground of challenge to the impugned notification is that the mandatory requirement of Section 10 of the Act has not been observed by the Government before issuing the notification rendering the entire action to be bad in law. 18. In order to appreciate the validity of the submission and the specific requirements of Section 10 of the Act it is necessary to consider the section itself which is reproduced below: S. 10: Prohibition of employment of contract labour.- 1. Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. 2. Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. 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 so 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 workmen 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. Section 10 of the Act specifically thus stipulates that the government may after consultation with the Central Board or a State Board, as the case may be, prohibit by the notification in the official gazette employment of contract labour in any process, operation or other work in any establishment. The principal point of grievance of the petitioner is that there has not been any consultation between the government and the Board and the petitioner by its letter dated June 27, 2011, requested the Secretary of the Board to furnish it with the copies of the minutes of the necessary consultation between the Board and the Union of India and other relevant documents. These documents had not been supplied to the petitioner and, therefore, the petitioner argued that an inference might be drawn that there was no such consultation between the government and the Board before the notification was issued. 19. It is the specific case of the petitioner that even in the affidavit used by the respondent nos. 1 to 3 the allegations made in the relevant paragraph of the writ petition have not been specifically denied. Mr. 19. It is the specific case of the petitioner that even in the affidavit used by the respondent nos. 1 to 3 the allegations made in the relevant paragraph of the writ petition have not been specifically denied. Mr. Chowdhury, the learned Senior Counsel for the petitioner, further argued that the affidavit makes one thing clear that the members of the Board did not consider the report of the committee at a single meeting but the same was circulated amongst them and some of them concurred with the findings in writing. Mr. Chowdhury specifically drew the attention of the Court to the letter dated March 15/24, 2011 written by the Secretary of the Board to its Chairman and submitted that it transpires from it that the views of the Board had not even been sent to the government. In paragraph 6 of the said letter, the Secretary of the Board had written that eight members had agreed with the recommendation of the committee and the rest who have not submitted their views may also be treated to have agreed with the recommendation of the committee to prohibit the employment of contract labour in certain operations of the petitioner Corporation. The Chairman of the Board had endorsed on the letter that after going through the matter in details he was in agreement with the decision of the committee and the proposal in the paragraph mentioned above was approved and the same might be communicated to the concerned immediately. Mr. Chowdhury pointed out that there is no positive averment in the affidavit that there was any consultation between the government and the Board or there was no material in the form of minutes of meeting or even noting in a file to show that any consultation between the two had truly taken place. 20. Ms. Alam appearing for the respondent nos. 1 to 3 submitted in terms of the statements made in their affidavits-in-opposition. She submitted that a notification was initially published in the Official Gazette of February 18, 2003 to go into the question of abolition of the contract labour in the concerned plant of the petitioner. A committee under Section 5 of the Act was constituted and the terms of reference were formulated. She submitted that a notification was initially published in the Official Gazette of February 18, 2003 to go into the question of abolition of the contract labour in the concerned plant of the petitioner. A committee under Section 5 of the Act was constituted and the terms of reference were formulated. Initially, the committee and the Board at their meeting held on July 11/12, 2005, decided that contract labour should not be prohibited and proposed that such recommendation to be forwarded to the government. Since the workers prayed for a reconsideration of the decision based on the report of the committee, the same was discussed at the Board meeting. Subsequently the Board had requested the parties to try to settle the dispute amicably between them selves. Subsequently, when a writ petition was filed by the respondent no. 4, the learned Single Judge disposed of the matter with a direction upon the Board to take a decision in the matter in accordance with law as early as possible. 21. Ms. Alam had laid stress on the decision taken at the 76th meeting of the Board where it was decided to form a subcommittee to conduct a fact finding exercise for this purpose and the representatives of the writ petitioner and the respondent no.4 were present. 22. Ms. Alam, reiterating the circulation of the Report to all the members, argued that, therefore, it is to be presumed that the members who did not respond actually accepted the proposal of the government accepting the report of the committee. Thus, the Chairman of the Board approved the proposal and desired the same to be communicated immediately. 23. Ms. Alam contested the primary contention of the petitioner that there was no consultation with the Board relying on Rule 12 of Contract Labour (Regulation and Abolition) Central Rules, 1971 which reads as under: 24. R. 12: Disposal of business: Every question which the Board is required to take into consideration shall be considered at a meeting, if the Chairman so directs, by sending the necessary papers to every member for opinion, and the question shall be disposed of in accordance with the decision of the majority: 25. Provided that in the case of equality of votes, the Chairman shall have a second or a casting vote. 26. Provided that in the case of equality of votes, the Chairman shall have a second or a casting vote. 26. Explanation:- “Chairman” for the purpose of this Rule shall include the Chairman nominated under Rule 13 to preside over a meeting. 27. The respondents had next sought to justify the impugned notification by referring to the alternative meaning of the word ‘consult’. Referring to Mitra’s Legal and Commercial Dictionary [(5th Edn., Kolkata – 1990) p.168]. Ms. Alam submitted that the word ‘consult’ implies a conference of two or more persons or the impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at least a satisfactory solution. Such consultation may take place at a conference table or through correspondence. The form is not material but what really matters is the substance. Again, she has relied on Stroud’s Judicial Dictionary on Words and Phrases [(5th Edn., Vol-I, London – 1986) p. 523] to find out a different meaning attached to the word. The essence of consultation is the communication of a genuine invitation to give advice. Mere sending of a letter which is not received is not sufficient. 28. The respondents have further relied on the case of Chandra Mouleshwar Prasad Vs. Patna High Court and Others, reported in AIR 1970 SC 370 . There also the exact connotation of the word ‘consultation’ came up for consideration and a five-judge Bench of the Supreme Court held that consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer, the direction to give effect to the counter proposal without anything more cannot be said to have been issued after consultation. 29. Ms. Alam next relied on the case of Supreme Court Advocates-on- record Association Vs. Union of India, reported in (2016)5 SCC 1 , where it has been observed that the word ‘consult’ implies a conference of two or more persons or an impact of two or more minds who may be able to confer and produce mutual impact. 29. Ms. Alam next relied on the case of Supreme Court Advocates-on- record Association Vs. Union of India, reported in (2016)5 SCC 1 , where it has been observed that the word ‘consult’ implies a conference of two or more persons or an impact of two or more minds who may be able to confer and produce mutual impact. It is essential that each must have for its consideration full and identical facts which can at once constitute both the source and foundation of the final decision. Ms. Alam submitted, therefore, in the present case, the Secretary of the Board who is also an official of the government circulated the report of the committee to all the members of the Board seeking their opinion. Whether they had responded or refrained from making any response, it would be presumed that they were in agreement with the report. The members had full and identical facts that formed mutual impact, thereby constituting the source and foundation of the final decision giving rise to issue the notification, dated May 25, 2011. After completion of the consultation process with the Board it is presumed that the Board had accepted the proposal and since there was no contrary proposal, the consultation process was duly completed resulting in issuing the gazette notification abolishing contract labour in Lube Oil Blending Plant of the writ petitioner. 30. A very major emphasis of Ms. Alam’s submission is that the members of the Board had unanimously accepted the findings of the committee and had communicated their views. None had expressed any contrary view and hence the Government of India has acted in accordance with the view of the statutory fact finding committee. 31. The stand of the respondents is that the requirements of Section 10 of the Act were duly complied with and none has made any allegation about it. The entire dispute between the petitioner and the respondent no. 4 being confined to the process or operation at the plant the decision of the appropriate government is final. 32. As mentioned above, the principal challenge of the petitioner to the impugned notification is on the ground that the mandatory requirement of Section 10 has not been complied with by the government before issuing the impugned notification. 4 being confined to the process or operation at the plant the decision of the appropriate government is final. 32. As mentioned above, the principal challenge of the petitioner to the impugned notification is on the ground that the mandatory requirement of Section 10 has not been complied with by the government before issuing the impugned notification. This being the initial issue with which the petitioner approached the Court it has now to be considered whether the version of the respondents has successfully dispelled the area of criticism. In other words, whether the projected unanimous decision of the Board can be taken to be the proper consultation by the government merely because he who had circulated it was a government employee. 33. One thing stands out very clearly from the case of the respondents that no factual consultation did take place between the government and the Board, at least the meaning in which the word ‘consultation’ is understood in common parlance. Therefore, the respondents attempted to justify their action by resorting to the extended meaning of the word ‘consultation’. It has been specifically pleaded in the writ petition that since no minutes of the necessary consultation between the Board and Union of India and other relevant documents, despite being asked by the petitioner, was supplied an inference should be drawn that there was no consultation as such at all between the government and the Board before the notification was issued. 34. The affidavit used by the respondents does not dislodge the reasons for drawing an inference by the petitioner about the absence of any consultation at least by was of a meeting between the Union of India and the Board. The respondents have given a very evasive reply to the very specific case made by the petitioner in paragraph 11 of the writ petition as matters of record. It has to be borne in mind that from the circumstances the petitioner could only a negative inference. The onus to counter it lay on the respondents as a fact within their special knowledge. This they never attempted with reference to the specific allegation. 35. Mr. Chowdhury has specifically argued that the members of the Board did not consider the report of the committee at a meeting but concurrence was obtained through circulation. Relying on the letter dated March 15/24, 2011 from the Secretary of the Board to its Chairman Mr. This they never attempted with reference to the specific allegation. 35. Mr. Chowdhury has specifically argued that the members of the Board did not consider the report of the committee at a meeting but concurrence was obtained through circulation. Relying on the letter dated March 15/24, 2011 from the Secretary of the Board to its Chairman Mr. Chowdhury argued, and not without valid reasons that the views of the Board had not even been sent to the Government. The Chairman’s endorsement on the letter is significant. 36. Mr. Chowdhury submitted that the impugned notification in all probability was the result of a sense of urgency created by the initiation of a contempt proceeding by the respondent no. 4. Since the contempt was directed against the Chairman and members of the Board, the Secretary was anxious to dispose of the matter as early as possible, and in the process a very important part of the consultation was ignored. 37. I find sufficient substance in the submission of the petitioner that in the present case there was no consultation worth the name and the requirement of Section 10 of the Act has not been satisfied. Whatever extended meaning that may be attached to the word ‘consult’ or ‘consultation’, such act must be between two persons or bodies. The law requires a consultation between the government and the Central Board. It does not speak of an inter se unanimity of opinion by circulation of the views between the members of the Board. If the meaning sought to be projected by Ms. Alam is to be accepted that consultation means the meeting of mind or the impact it must be between the two persons or authorities and not an inter se consultation between the members of the Board; it must be between the relevant government and Board. The explanation that the Secretary of the Board being an official of the government, there was a consultation between the government and the Board is hardly any defence, let alone a satisfactory one, to the point of criticism by the petitioner. Rule 10 of the Rules referred to above limits the functions of the Secretary to assisting the Chairman in convening the meetings of the Board and certain other matters relating to its functions as specified in the said Rule. Rule 10 of the Rules referred to above limits the functions of the Secretary to assisting the Chairman in convening the meetings of the Board and certain other matters relating to its functions as specified in the said Rule. If he is also the Under Secretary to the Government of India, a letter from him cannot be said to be in satisfaction of the requirement of consultation by the government with the Board. Even if the Secretary has used the stationeries of the Government of India or had used the dual designation below his signature that is no pointer that the Under Secretary was acting on behalf of the government. 38. A very pertinent question raised by the petitioner and left untouched by the respondents is that under the relevant Act and Rules, the Secretary cannot exercise any power beyond that conferred by Rule 10. I fully agree with the submission of the petitioner that the lacuna cannot be covered with reference to Rule 12 of the said Rules. Even if Rule 12 is pressed into action, the Situation for the respondents is hardly improved. All that it says is that either the question which a Board is required to take into consideration shall be considered at a meeting, or, if the Chairman so directs, by sending the necessary papers to every member for opinion and the question shall be disposed of in accordance with the decision of the majority. If this Rule permits the Board to take a decision by circulation of papers, it must be preceded by a direction of the Chairman of the Board. It has nowhere been pleaded that the Chairman had directed the circulation. 39. It is a principle of law settled for more than a century and a half that when the law requires a thing to be done in certain manner it should either be done that way or not at all. The Supreme Court in the case of Ramchandra Keshav Adke (Dead) by Lrs. Vs. Govind Joti Chavare and Others, reported in AIR 1975 SC 915 , observed that more than a century ago i.e. from the date of delivery of the judgment by the Supreme Court, in Taylor Vs. The Supreme Court in the case of Ramchandra Keshav Adke (Dead) by Lrs. Vs. Govind Joti Chavare and Others, reported in AIR 1975 SC 915 , observed that more than a century ago i.e. from the date of delivery of the judgment by the Supreme Court, in Taylor Vs. Taylor, reported in (1875) 1 CHD 426, Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. The Privy Council applied it in Nazir Ahmed Vs. Emperor, reported in AIR 1936 Privy Council 253 (2) and later by this Court in a large number of cases. This principle of law applies with full force to the facts of this case as neither the notification was issued in terms of Section 10 of the Act upon consultation with the Board nor was the paper circulation amongst the members of the Board was done in terms of Rule 12 of the Rules referred to above. 40. A further point to take a note of is that there has not been any change in the factual position between the time the Board decided not to recommend abolition of the contract labour and the time when it did so recommend. Until and unless the circumstances requiring an alteration of the recommendation is clarified or indicated by the respondents the later recommendation must be held to be not sustainable in law. 41. In paragraph 9 of the writ petition, the petitioner has specifically mentioned that there has not been any change in the factual situation between the two decisions of the Board. This statement of the petitioner goes uncontroverted in the affidavit used by the respondents. I find sufficient merit in the submission of Mr. Chowdhury that the earlier decision was arrived at after the Board had heard all the parties including the petitioner. Such a decision must be given some degree of finality so as to save it from the consequential uncertainty visiting the relevant area. When the previous decision is sought to be revisited by the Board and the Board makes a contrary recommendation, it was incumbent upon the Board to consider and record the change of circumstances warranting an altered recommendation. Such a decision must be given some degree of finality so as to save it from the consequential uncertainty visiting the relevant area. When the previous decision is sought to be revisited by the Board and the Board makes a contrary recommendation, it was incumbent upon the Board to consider and record the change of circumstances warranting an altered recommendation. This not having been done the recommendation subsequently made must be deemed to have been made on the same circumstances prevailing at the time when the first recommendation was made. Unless there is an alternation in the circumstances, a contrary recommendation by the same Board is not a laudable act. 42. Ms. Alam relied on the judgment in the case of Gujarat Electricity Board, Thermal Power Station, Ukai Vs. Hind Mazdoor Sabha and Others, reported in AIR 1995 SC 1893 . The Supreme Court had held in the relevant paragraph that after coming into operation of the Act, the authority to abolish the contract labour is vested exclusively in the appropriate Government which has to take its decision in the manner in accordance with the provisions of Section 10 of the Act. However, the authority to abolish the contract labour under Section 10 of the Act comes into play only where there exists a genuine contract. In other words, if there is no genuine contract and the so called contract is sham and camouflage to hide the reality the said provision is inapplicable. 43. Again Ms. Alam relied on the judgment in the case of Steel Authority of India Ltd. Vs. Union of India and Others, reported in AIR 2006 SC 3229 . The Supreme Court had held that the Act is a complete code by itself. Determination of the question relating to relationship of employer and employee is essentially a question of fact and that would depend upon a large number of factors. Ordinarily a writ court would not go into such a question. Neither the labour court nor the writ court can determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the appropriate government. A decision in that behalf undoubtedly is required to be taken upon following the procedure laid down in Section 10 (1) of the Act. 44. Neither the labour court nor the writ court can determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the appropriate government. A decision in that behalf undoubtedly is required to be taken upon following the procedure laid down in Section 10 (1) of the Act. 44. So far as the first judgment is concerned it is not clear why it has been relied on by the respondents. It does not help the respondents advance their submission in support of the case that the requirements of Section 10 (1) have been complied with. The judgment is entirely on a different point. 45. So far as the case of Steel Authority of India Ltd. (Supra) is concerned, the background of the case was a notification by the State Government referring an industrial dispute for adjudication to the labour court to determine whether the contract workers employed in the nature of the contract work of the concerned company justified in demanding absorption as regular permanent employees thereof. The contract employees’ union was common in both the proceedings i.e., the one under the Industrial Disputes Act the other being the writ petition. It was in this context that the Supreme Court had observed that since the relationship between the employer and employee was a matter of fact depending on various factors, the same cannot be gone into in a writ petition. All that the Supreme Court restrained the labour court and the writ court was from entering into a question whether the contract labour should be abolished or not. The Supreme Court has never held that in a given case if it is alleged that before a notification has been issued there had not been proper compliance with the provision of Section 10 (1) of the Act, the writ court must stay off its hands as the issue falling into the area of impermissible jurisdiction. The petitioner never raised any issue about whether the contract labour should be abolished. It is the non-compliance of the procedure provided which is the subject matter of challenge in the present writ petition. 46. It may be mentioned that a similar question came up for consideration in the case of Tata Refractories Ltd. Vs. Union Of India, reported in (1992) 2 LLJ 810. It is the non-compliance of the procedure provided which is the subject matter of challenge in the present writ petition. 46. It may be mentioned that a similar question came up for consideration in the case of Tata Refractories Ltd. Vs. Union Of India, reported in (1992) 2 LLJ 810. There also the notification of the Central Government issued in exercise of powers conferred by sub-Section 1 of Section 10 of the Act prohibiting engagement of contract labour in the fireclay mines of the country was challenged by way of a writ petition, primarily on the ground that the appropriate authority had not applied its mind to the relevant conditions stipulated under the Act before issuing the notification. The question that arose for consideration before the Court was whether the exercise of power by the Central Government under Section 10 of the Act and issuing a notification could be said to be invalid and inoperative for non-compliance with the provisions contained in Section 10 of the Act. 47. A Division Bench of the Orissa High Court in Tata Refractories (Supra) observed that the Act had been enacted to regulate the employment of contract labour in certain establishments and to provide for its abolition in certain circumstances as enumerated in different provisions of the Act. The Division Bench noted the observations of the Supreme Court in various judgments that the system of engaging contract labour has been held to be ‘archaic’, ‘primitive’ and of ‘baneful nature’. However, the Division Bench was constrained to hold that howsoever laudable the object the legislation may be and howsoever primitive the practice of engaging the contract labour may be when a notification issued by the Central Government abolishing contract labour is challenged, it must be shown by the appropriate government that there has been due compliance with the provisions of the Act and the formation of the opinion of the Central Government is bona fide after considering the germane materials as enumerated in the Act itself. Otherwise, the exercise of power conferred on the Central Government will be vitiated. It has further been held that before issuing the notification under Section 10 of the Act consultation with the Board is mandatory. 48. Otherwise, the exercise of power conferred on the Central Government will be vitiated. It has further been held that before issuing the notification under Section 10 of the Act consultation with the Board is mandatory. 48. As mentioned earlier, howsoever the respondents authorities may try to establish a non-conventional mode of consultation it cannot be gainsaid that it does not satisfy the requirement of Section 10 of the Act which requires such consultation to take place between the appropriate government with the Board. Merely because the recommendations of the committee was forwarded by the Under Secretary of the government who was also the Secretary to the Board it does not mean that the government was consulted. When the law requires that the government should be consulted its rules of business must lay down with which designated functionary such consultation must take place. This is an area on which the respondents never tried to throw any light. The grayness of the area as emerging from the stand of the respondents has been covered by an obfuscatory darkness. 49. I, thus, find that the essential pre-conditions for issuing the impugned notification under Section 10 of the Act have been violated. The notification dated May 25, 2011, is set aside and quashed. The writ petition is allowed. There shall, however, be no order as to the costs.