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Friday, September 5, 2014

Labour laws - Notification for abolition of contract Labour engaged in DAP plant- cleaning Granulation, dry section, cleaing in combustion chmaber etc., - D.B. modified and held that those workersengaged in cleaning of Granulation, dry section, cleaning in combustion chamber, were directed to be regularized - the company raised a new plea that the state govt. has no authority to issue notification - Apex court held that We are of the view that since the decisions in the aforesaid writ petitions have reached finality, such question cannot be re-agitated in another writ petition between same parties as the question will be hit by the principles of res judicata. Now once the Notification dated 28th April, 2000 for abolition of contract labour in respect of the workers in DAP Plant –Cleaning of granulation dry section, cleaning in combustion chamber, etc. was issued, it was incumbent on the part of the Company to implement the same. Since it was not implemented, the High Court rightly directed to implement the same. In view of the fact as noticed above, while we are not inclined to answer the question about the appropriate government in the present case, keep the same open for determination in an appropriate case. We find no reason to interfere with the impugned judgment and order by which the High Court directed the appellant to implement the notification abolishing the contract labour and to regularize the service of the workmen.= CIVIL APPEAL NO.8151 OF 2014 (arising out of SLP(C) No.822 of 2013) M/S PARADEEP PHOSPHATE LTD. … APPELLANT VERSUS PARADEEP PHOSPHATE MAZDOOR UNION & ORS. … RESPONDENTS = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41849

  Labour laws - Notification for abolition of contract Labour engaged in DAP plant- cleaning Granulation, dry section, cleaing in combustion chmaber etc., - D.B. modified and held that those workers engaged  in  cleaning  of   Granulation,  dry  section, cleaning in  combustion  chamber,  were  directed  to  be  regularized - the company raised a new plea that the state govt. has no authority to issue notification - Apex court held that  We are of the view that since the  decisions  in  the  aforesaid  writ petitions have reached finality, such  question  cannot  be  re-agitated  in
another writ petition between same parties as the question will  be  hit  by the principles of res judicata. Now once the Notification dated 28th  April,  2000  for  abolition  of contract labour in  respect  of  the  workers  in  DAP  Plant  –Cleaning  of granulation dry section, cleaning in combustion chamber,  etc.  was  issued, it was incumbent on the part of the  Company to implement the  same.   Since it was not implemented, the High Court rightly  directed  to  implement  the same. In view of the fact as noticed above, while we  are  not  inclined  to
answer the question about the appropriate government in  the  present  case, keep the same open for determination in an  appropriate  case.  We  find  no reason to interfere with the impugned judgment and order by which  the  High Court directed the appellant to implement the  notification  abolishing  the contract labour and to regularize the service of the workmen.=

 The Division Bench of Orissa  High  Court,  Cuttack  by  its  impugned
judgment dated 17th September, 2012 in O.J.C. No.7464 of  2000  allowed  the
writ petition preferred  by  respondents  and  directing  the  appellant  to
enforce notification dated 28th April, 2000 issued by the  State  Government
for abolition of the Contract Labour in respect of workers  engaged  in  DAP
Plant-cleaning of Granulation, dry section, cleaning in combustion  chamber,
etc. The Division Bench further directed the  appellant  to  regularize  the
workers engaged in the DAP plant.
      The aforesaid judgment was challenged by the  appellant  by  filing  a
review petition.  The same was heard and disposed  of  vide  impugned  order
dated 20th December, 2012 by which the judgment  dated  17th  September,2012
was modified to the extent that not all the workers  engaged  in  DAP  Plant
but those who  were  engaged  in  cleaning  of   Granulation,  dry  section,
cleaning in  combustion  chamber,  were  directed  to  be  regularized.  The
aforesaid judgment and order passed in writ  petition  and  review  petition
are under challenge in these appeals.=

  we find that when earlier writ  application  OJC  No.
2751 of 2000  was disposed of by judgment dated 24th June,  2003,  the  High
Court directed the Company to  consider  the  recommendation  of  the  State
Advisory Contract Labour Board with regard to  abolition of Contract  Labour
in respect of 15 other areas  left out  by   it   and  to  take  appropriate
decision according to law,  though  the Company was a  party  to  the   said
writ application but no such plea was taken and the direction  of  the  High
Court reached  finality.
10.   Another Writ  Petition  being  W.P(c)  No.  13791  of  2005  was  also
disposed of by the High Court on 5th July, 2012. In the  said  case  similar
question  regarding  implementation  of  the  recommendation  of  the  State
Advisory Contract Labour Board was considered.  In the said case  also,  the
appellant-Company neither contended nor raised the question that  the  State
Government is not the appropriate government. The  said  writ  petition  was
disposed of by the High Court on 5th July, 2012.
11.   We are of the view that since the  decisions  in  the  aforesaid  writ
petitions have reached finality, such  question  cannot  be  re-agitated  in
another writ petition between same parties as the question will  be  hit  by
the principles of res judicata.
12.   Now once the Notification dated 28th  April,  2000  for  abolition  of
contract labour in  respect  of  the  workers  in  DAP  Plant  –Cleaning  of
granulation dry section, cleaning in combustion chamber,  etc.  was  issued,
it was incumbent on the part of the  Company to implement the  same.   Since
it was not implemented, the High Court rightly  directed  to  implement  the
same.
13.   In view of the fact as noticed above, while we  are  not  inclined  to
answer the question about the appropriate government in  the  present  case,
keep the same open for determination in an  appropriate  case.  We  find  no
reason to interfere with the impugned judgment and order by which  the  High
Court directed the appellant to implement the  notification  abolishing  the
contract labour and to regularize the service of the workmen.
14.   We find no merit in these appeals, they are accordingly dismissed.

2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41849
                                                              REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8151 OF 2014
                   (arising out of SLP(C) No.822 of 2013)


M/S PARADEEP PHOSPHATE LTD.                        … APPELLANT

                                   VERSUS

PARADEEP PHOSPHATE MAZDOOR UNION & ORS.            … RESPONDENTS

With

Civil Appeal No.8152 of 2014
(@)S.L.P(C) No.23088 of 2014 @ SLP(C) CC No. 4627/2013)


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      Delay condoned. Leave granted.
2.    The Division Bench of Orissa  High  Court,  Cuttack  by  its  impugned
judgment dated 17th September, 2012 in O.J.C. No.7464 of  2000  allowed  the
writ petition preferred  by  respondents  and  directing  the  appellant  to
enforce notification dated 28th April, 2000 issued by the  State  Government
for abolition of the Contract Labour in respect of workers  engaged  in  DAP
Plant-cleaning of Granulation, dry section, cleaning in combustion  chamber,
etc. The Division Bench further directed the  appellant  to  regularize  the
workers engaged in the DAP plant.
      The aforesaid judgment was challenged by the  appellant  by  filing  a
review petition.  The same was heard and disposed  of  vide  impugned  order
dated 20th December, 2012 by which the judgment  dated  17th  September,2012
was modified to the extent that not all the workers  engaged  in  DAP  Plant
but those who  were  engaged  in  cleaning  of   Granulation,  dry  section,
cleaning in  combustion  chamber,  were  directed  to  be  regularized.  The
aforesaid judgment and order passed in writ  petition  and  review  petition
are under challenge in these appeals.
3.    The factual matrix of the case is as follows:
      A writ petition being O.J.C.  No.  7464  of  2000  was  filed  by  the
respondents-Paradeep  Phosphates  Mazdoor  Union  and  others   (hereinafter
referred to as the “Trade Union”)   seeking  enforcement   of   Notification
dated 28th April, 2000 issued by the State  Government  abolishing  contract
labour  in respect of workers in DAP  Plant-cleaning  of   Granulation,  dry
section,  cleaning in combustion chamber,  etc.  The  respondents  contended
that the workers named  therein  were  working  in  the  DAP  plant  of  the
appellant- M/s Paradeep Phosphate  Ltd.  (hereinafter  referred  to  as  the
“Company”) for over 14 years uninterruptedly without any break  in  service.
They had been engaged through contractors appointed  for  the  purpose  from
time  to  time    The  contractors  were  changed  but  the  employees  were
continuing their  work  irrespective  of  change  of  contractors.   In  the
meantime,   those workers completed 15 years of service  in  the  particular
establishment. It was submitted that, the Trade Union  took  up  the  matter
considering the fate of such persons and several other  workers  engaged  in
different  establishments  of  the  Company  for  prohibition  of   contract
referring different establishments of the Company and for regularization  of
such employees in terms of Section 10(1) of the Contract Labour  (Regulation
and  Abolition)  Act,  1970.   After  much  deliberation   and   in   active
participation of  the  Company,   decision  has  been  taken  by  the  State
Advisory Contract Labour Board in its 21st meeting dated 3rd June, 1999  and
10th June, 1999 for  prohibiting  contract labour system  in   16  areas  of
the Company and the same was accordingly recommended  by the State  Advisory
Board.
4.    Meanwhile, the Government of Orissa through its Labour and  Employment
Department came out with a Notification dated 28th April,  2000  prohibiting
employment of contract labour in the  works in the Company  particularly  in
the  DAP  Plant-cleaning  of   Granulation,  dry   section,    cleaning   in
combustion chamber, etc.    It was submitted  that on  behalf of  the  Trade
Union that once  there  is  a   prohibition   of  competent  authority   for
engaging  contract  labourers  in  a  particular  work  in  the   particular
establishment, the only course left  with the establishment is  to  straight
away treat the persons concerned as the regular employees of the  particular
establishment and the relationship   between  contractor  and  the  contract
labourers ceases automatically  from the said moment when there is an  order
prohibiting  employment  of   contract  labour  in  particular   work  of  a
particular establishment. Thus, it was contended that the only  course  open
for the management is to regularize the employees  of the establishment  who
were working under the contractor.
5.    It was brought to the  notice  of  the  High  Court  that  on  earlier
occasions, another writ application was  filed  bearing  O.J.C.  No.2751  of
2000 which was disposed of on 24th  June,  2003  wherein  the  parties  were
common.  The said writ application was disposed of by the  High  Court  with
the following observation:
      “7.   There is no dispute that  the  State  Advisory  Contract  Labour
Board recommended to the State Government to abolish contract labour  system
in sixteen areas of  Paradeep  Phosphates  Limited  but  in  the  Government
notification dated 28.4.2000 only one area has been mentioned.   On  reading
of the note and order of the Minister extracted above, we  are  inclined  to
hold that the  Government  has  not  fully  considered  the  recommendation.
Therefore, in the interest of justice, the matter needs reconsideration.

      8.    For the reasons aforesaid,   we   direct  the  State  Government
(opposite  party  no.1)  to  reconsider  the  recommendation  of  the  State
Advisory Contract Labour Board with regard to abolition of  contract  labour
in respect of 15 other  areas left out by it and take  appropriate  decision
according to law within four months of receipt of this order.”

6.    In spite of  the  aforesaid  direction,  no  action  has  been  taken.
Later the aforesaid  writ  petition  being  O.J.C.  No.  7464  of  2000  was
preferred with the prayer as noticed above. In the said  case,  the  Company
appeared  and  filed  a  counter  affidavit  taking  plea  that  the   State
Government is not appropriate government for the purpose of the Act and  the
notification issued by the State Government is not binding upon the  Company
and did not order for  abolition of contract labour.
7.     The  High  Court  while  observing  that  the   Company   failed   to
substantiate its stand that the undertaking is  controlled  by  the  Central
Government, referred to the decision of this Court  in  Steel  Authority  of
India Limited  and  Others  vs.  National  Union  Water  Front  Workers  and
Others, AIR 2001 SC 3527 and held that the Central  Government  is  not  the
appropriate Government in such cases. It was also  noticed  that  this  plea
was not taken when the earlier writ petition was heard.
8.    Similar pleas as were taken before the High Court have been  taken  by
the appellant and the contesting respondents before this Court.
9.    From the record, we find that when earlier writ  application  OJC  No.
2751 of 2000  was disposed of by judgment dated 24th June,  2003,  the  High
Court directed the Company to  consider  the  recommendation  of  the  State
Advisory Contract Labour Board with regard to  abolition of Contract  Labour
in respect of 15 other areas  left out  by   it   and  to  take  appropriate
decision according to law,  though  the Company was a  party  to  the   said
writ application but no such plea was taken and the direction  of  the  High
Court reached  finality.
10.   Another Writ  Petition  being  W.P(c)  No.  13791  of  2005  was  also
disposed of by the High Court on 5th July, 2012. In the  said  case  similar
question  regarding  implementation  of  the  recommendation  of  the  State
Advisory Contract Labour Board was considered.  In the said case  also,  the
appellant-Company neither contended nor raised the question that  the  State
Government is not the appropriate government. The  said  writ  petition  was
disposed of by the High Court on 5th July, 2012.
11.   We are of the view that since the  decisions  in  the  aforesaid  writ
petitions have reached finality, such  question  cannot  be  re-agitated  in
another writ petition between same parties as the question will  be  hit  by
the principles of res judicata.
12.   Now once the Notification dated 28th  April,  2000  for  abolition  of
contract labour in  respect  of  the  workers  in  DAP  Plant  –Cleaning  of
granulation dry section, cleaning in combustion chamber,  etc.  was  issued,
it was incumbent on the part of the  Company to implement the  same.   Since
it was not implemented, the High Court rightly  directed  to  implement  the
same.
13.   In view of the fact as noticed above, while we  are  not  inclined  to
answer the question about the appropriate government in  the  present  case,
keep the same open for determination in an  appropriate  case.  We  find  no
reason to interfere with the impugned judgment and order by which  the  High
Court directed the appellant to implement the  notification  abolishing  the
contract labour and to regularize the service of the workmen.
14.   We find no merit in these appeals, they are accordingly dismissed.

                                              ............................J.
                                  (SUDHANSU JYOTI MUKHOPADHAYA)


                                               ...........................J.
                                            (S.A. BOBDE)

NEW DELHI;
AUGUST 26, 2014.




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