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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2771 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.3104 OF 2011)
BALESHWAR RAJBANSHI & ORS. … APPELLANTS
VERSUS
BD. OF TRUSTEES FOR PORT TRUST OF
CALCUTTA & ORS. …RESPONDENTS
J U D G M E N T
Aftab Alam, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated January
29, 2010 passed by a division bench of the Calcutta High court in an intracourt appeal against the judgment of a learned single Judge of that court. By
the impugned judgment, the division bench has carved out an exception in
favour of the respondent, Port Trust of Calcutta (hereinafter, “Port Trust”)
from a notification issued by the Central Government under section 10(1) of
the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter “the
Act”) and held that the notification “would not in any way affect the right of
the Port Trust to assign the work of laying and linkage of railway tracks as
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one time measure of (sic. to) RITES, another Central Government
Organization”.
3. The controversy in this case centres around
a notification dated July 7,
2005 issued by the Central Government under section 10(1) of the Act. The
notification was issued after due consultation with the Central Advisory
Central Labour Board with regard to the conditions of work and benefits
provided for the contract labour and other relevant factors enumerated in
sub-section 2 of section 10 and it prohibited the employment of contract
labour “in the works of sleeper renewal of railway Tracks, repairing,
restoration and laying and linkage of tracks in the establishment of Kolkata
Port Trust, Kolkata” with effect from the date of publication of the
notification in the official gazette.
4. After the issuance of the notification, the appellants who claimed to
be engaged for the works covered by the notification for more than two
decades through different contractors approached the Calcutta High court in
W.P. No.20171 (W) of 2005 seeking a direction from the High Court to the
Port Trust to abolish the system of giving the works covered by the
notification to the contractors. On the other hand, the Port Trust also
approached the High Court in W.P. 22545 (W) of 2005, questioning the
validity of the notification. The two writ petitions were heard together by a
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learned single Judge who decided to consider the writ petition filed by the
Port Trust first, as the decision on the legality of the notification would have
a direct bearing on the writ petition filed by the individual workmen.
5. The learned single Judge upheld the validity of the notification and
by judgment and order dated May 15, 2007 dismissed the writ petition filed
by the Calcutta Port Trust.
6. The Port Trust challenged the judgment, dated May 15, 2007 passed
by the learned single Judge before a division bench of the High Court in
intra-court appeal. The division bench by order dated March 31, 2008
directed the Port Trust to approach the Ministry of Labour through the
Ministry of Shipping for resolving the issue.
7. The order passed by the division bench was challenged by some
individual workmen before this court in civil appeal No.7394/2009 (arising
from SLP(C) No.22912/2008). The appeal was allowed by judgment and
order, dated November 6, 2009 passed by this Court1
. The order of the
division bench of the High Court dated March 31, 2008 was set aside and
the High Court was asked to rehear the Port Trust’s appeal against the
judgment of the single judge (MAT No.2363 of 2007 and FMA No. 430 of
2008) and to dispose it of in accordance with law.
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(2010) 1 SCC 116
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8. After remand, the division bench of the High Court once again heard
the appeal and disposed it of by a brief order, modifying the order of the
learned single Judge and notwithstanding the notification under section 10 of
the Act, allowing the Port Trust to assign the work of laying and linkage of
railway tracks as one time measure to RITES, another Central Government
organization.
9. The division bench simply noted the submission of the counsel for the
Port Trust that laying and linking of the railway tracks did not come within
the daily affairs of the Port Trust; that it was required for the purpose of easy
movement of cargo; and further that such railway tracks were laid by the
railway. The railways were asked to replace the old tracks and the railways
perhaps got the work were done through contracts. That the Port Trust had
asked RITES, a Central Government undertaking under the Ministry of
Railways to lay and link railway tracks as one time job and such work is
nearing completion in the first phase. The High Court also noted the
submission of the counsel for the Port Trust that the laying and linkage of
railway tracks cannot be termed as a work of perennial nature and, therefore,
the assignment of the work of laying and linkage of railway tracks to RITES
who have the necessary expertise in the work cannot come within the
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mischief of section 10 of the Contract Labour (Regulation and Abolition)
Act.
10. Accepting the submission made on behalf of the Board Trust, the
division bench held and directed as under:-
“We have considered the rival contentions. We have
perused the judgment and order of the learned Single Judge. We
are in full agreement when His Lordship deals with the issue of
maintenance of the railway tracks by way of repair or
otherwise. We are, however, of the opinion that laying and
linking as one time measure could not be said to be a
perennial duty. In any event, laying of railway tracks is no
part of the duty of the Port Trust. The duties and
responsibilities of the Port Trust do not include lying of railway
tracks. Railway tracks are laid only for the purpose of smooth
movement of the cargo discharged through the Port. In any
event, such laying can only be done by expert. The Railways
have that expertise and RITES is one such Corporation under
the Ministry of railways. Hence, we are of the view that the
Notification under challenge would not, in any way, affect
the right of the Port Trust to assign the work of laying and
linking of railway tracks as one time measure of RITES,
another Central Government Organisation.”
(emphasis added)
11. We are unable to appreciate or to even follow the view taken by the
High Court. The Contract Labour (Regulation and Abolition) Act, 1970, is a
special Act that was framed to regulate the employment of contract labour in
certain establishments and to provide for its abolition in certain
circumstances and for matters connected therewith.
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12. Section 3 of the Act provides for constitution of Central Advisory
Board and it is as under:-
“Central Advisory Board. – (1) The Central Government shall,
as soon as may be, constitute a board to be called the Central
Advisory Contract Labour Board (hereinafter referred to as the
Central Board) to advise the Central Government on such
matters arising out of the administration of this Act as may be
referred to it and to carry out other functions assigned to it
under this Act.
(2) The Central Board shall consist of –
(a) a chairman to be appointed by the Central Government;
(b) the Chief Labour Commissioner (Central), ex officio;
(c) such number of members, not exceeding seventeen but not
less than eleven, as the Central Government may nominate
to represent that Government, the Railways, the coal
industry, the mining industry, the contractors, the workmen
and any other interests which, in the opinion of the Central
Government, ought to be represented on the Central Board.
(3) The number of persons to be appointed as members from
each of the categories specified in sub-section(2), the term
of office and other conditions of service of, the procedure to
be followed in the discharge of their functions by, and the
manner of filling vacancies among, the members of the
Central Board shall be such as may be prescribed:
Provided that the number of members nominated to
represent the workmen shall not be less than the number of
members nominated to represent the principal employers
and the contractors.
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13. Section 4 provides for the constitution of the State Advisory
Board.
14. Section 5 deals with the power of the Central Board or the State
Board to constitute committees and it is as under:-
“Power to constitute committees. – (1) The Central Board or
the State Board as the case may be, may constitute such
committees and for such purpose or purposes as it may think fit.
(2) The committee constituted under sub-section (1) shall
meet at such times and places and shall observe such
rules of procedure in regard to the transaction of
business at its meetings as may be prescribed.
(3) The members of a committee shall be paid such fees
and allowances for attending its meetings as may be
prescribed:
Provided that no fees shall be payable to a member who is
an officer of Government or of any corporation established
by any law for the time being in force.”
15. Section 10 deals with prohibition of employment of contract labour
and it is as under:-
“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.
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(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
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.”
In this case, the Central Board first constituted a Committee under section 5
of the Act to go into the question of abolition of contract labour in the
establishment of Calcutta Port Trust. The Committee examined the matter
in detail and made its recommendations as follows:-
"From the above elaboration of work, the job in
question needs to be examined in the contract (sic.
context?) of provisions of section 10(2) of the Contract
Labour (R&A) Act, 1970.
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1. Whether the work is incidental to or necessary
for the industry of Calcutta Port Trust the Committee is
of the opinion that works of CPT involved loading and
unloading of cargo from or on the vessels as also the
stores of cargo. The railway track in Calcutta Dock
System has been laid to facilitate the movement of rail
bound caused to and from CPT so the work is very much
incidental to the main operation of CPT.
2. The question whether work is of the provisional
nature and is of sufficient duration, the Committee
observes that renewal/cancellation of tracks and sleepers
have been going on almost continuously may be in some
or other part of the railway tracks and contract workers
are working for full 8 hours so the job deemed to be a
perennial nature.
3. The question whether it is also done by the
regular workmen, it has already been explained the total
71 of regular employees are also involved on day- to- day
track maintenance job which includes the repairing of
tracks after derailment and in routine gauging, lubrication
of point and crossing, cleaning of check rail, dusking, etc.
which are also done by the contract workers after the
replacement, renewal of sleepers and tracks and also in
laying or linking of new railway lines.
The Committee also feels that it will be relevant to
mention about Notification No. U-23013/21/98 LW dated
20th June 2000 issued by the Ministry of Labour,
Government of India, by which the employment of
contract labour has been prohibited on the job of regular
track maintenance such as through packing, casual
renewal and maintenance work required for day-to-day
maintenance in the establishment of Eastern Railway.
In the context of the above facts and observation, the
Committee is of the opinion that work/jobs of sleeper
renewal of railway tracks repairing/restoration laying and
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linking of tracks in the establishment of Calcutta Port
Trust seem to be of regular nature and attracts the
provisions of Section 10(2) of the Contract Labour
(Regulation and Abolition) Act, 1970. Hence the
Committee recommended for prohibition of contract
labour on the above mentioned job."
The matter was then considered by the Central Board and it recommended to
the Central Government for prohibition of employment of contract labour in
the jobs of sleeper renewal for railway contracts repairing/restoration, laying
and linking of tracks in the establishment of Calcutta Port Trust. The
Advisory Board in its recommendation stated as under:-
"......The Committee had recommended prohibition of
employment of Contract Labour on the ground that the work
seems to be of regular nature and since 1988 contracts have
been engaged for renewal/construction of tracks and sleepers in
some or other part of the railways tracks belonging to KOPT.
Secondly, the job performed by the regular employees were
almost identical to that of job performed by contract workers
and both types of maintenance jobs, i.e. day-to-day
maintenance and periodical maintenance are required to be
done on regular basis. The Committee has also observed that
since February 2000, miscellaneous work in connection with
strengthening of KOPT railway track, as and when required,
including supply of materials have been given on contract. This
is at variance with the statement of KOPT that there is no
contract in the said jobs since 1998.
The management, on enquiry by the Board,
categorically stated that no contract labour system exists
now in the jobs under consideration and they would not be
adversely affected even if the contract labour system is
abolished. The management was also not able to
satisfactorily convince the Board, on the query whether the
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renewal of track/sleepers would be done only once in 10-12
years at one go and not in parts on continuous basis. This gives
rise to an inference that the jobs under consideration are of
perennial type and are required to be done by regular
employees. In view of the recommendations of the Committee
and categorical statement of KOPT, and the fact that the
requirements under Section 10(2) of the Act are satisfied, the
Board recommends to the Government prohibition of
employment of contract labour in the jobs of sleeper renewal
of railways tracks, repairing/restoration, laying and
linking of tracks in the establishment of KOPT, Kolkata."
Based upon the aforesaid recommendations, the Central Government issued
the notification under section 10(1) of the Act which inter alia covers laying
and linking of tracks in the establishment of Calcutta Port Trust.
16. From the provisions of the Contract Labour (Regulation and
Abolition) Act, as are noted above, it is quite clear that the notification is
issued after following a statutory scheme and it is based on a detailed
investigation of issues of facts followed by two tiers of recommendations,
first by the committee constituted under section 5 of the Act and the second
by the Advisory Board constituted under section 3 of the Act.
17. Whether the work of laying and linking of tracks is of perennial nature
and whether workers engaged through contractors are employed by the Port
trust for that work are pure questions of fact that were investigated by the
statutory committee constituted under section 5 of the Act and are covered
by the recommendations made both by the Committee and by the Advisory
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Board. It was, therefore, quite wrong for the division bench of the High
Court to completely nullify that part of the notification in a highly casual
and off- hand manner and simply on the ipse dixit of the respondent; more
so as the division bench did not otherwise find any illegality in the
notification in question.
18. In light of the discussion made above, we see no justification for the
division bench of the High Court to carve out the exception and to
rationalize the assignment of the contract to RITES merely on the ground
that it is another Central Government organization. The High Court clearly
exceeded its jurisdiction in passing the impugned order.
19. We are, therefore, unable to sustain the impugned order passed by the
division bench. The order of the division bench of the High Court is set
aside and the order of the learned single Judge is restored.
20. The appeal is allowed but with no order as to costs.
……………………….J.
(Aftab Alam)
……………………….J.
(Ranjana Prakash Desai)
New Delhi;
April 2, 2013.
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