SANKAR MUKHERJEE AND ORS.versusUNION OF INDIA AND ORS.

                     SANKAR MUKHERJEE AND ORS.
A
                                  v.
                       UNION OF INDIA AND ORS.

                             NOVEMBER 16, 1989

B        [M.N. VENKATACHALIAH AND KULDIP SINGH, JJ.]

          Contract Labour (Regulation and Abolition) Act, 1970: s. JO--
    Notification dated February 9, 1980 prohibiting contract labour in
    establishments of Mis Indian Iron & Steel Co. Ltd.-Exclusion of loa-
    ders in brick deprtment-Validity of-Whether violative of Article 14 of
    the Constitution.
c
        • Section 10(1) of the Contract Labour (Regulation and Abolition)
    Act, 1970 empowered the appropriate Government to prohibit employ-
    ment of contract labour in any process, operation or other wofk in any
    establishment.
D
          The Government of West Bengal issued a notification on
    February 9, 1980 under s. 10(1) of the Act prohibiting the employment
    of contract labour in certain departments in the establishments of M/s
    Indian Iron and Steel Company Ltd. Paragraph 9 of the Schedule
    thereto listing the departments, included cleaning and stactPng and
E   other allied jobs in the brick department, except loading and unloading
    of bricks from wagons and trucks.

          In the writ petition, the affected workmen assailed this action of
  · the State Government in excluding them from the beneficial purview of
    the notification as arbitrary, discriminatory and violative of Article 14
F   of the Constitution. It was contended for them that the job of loading
    and unloading was not peculiar to the brick department alone, that the
    work of stacking was directly dependent on the loading and unloading
    of bricks, and that the two jobs being allied and incidental the workmen
    holding these jobs contd not be treated differently. For the responde.nts,
    it was contended that the job of loading and unloading of bricks in the
G brick department was not of perennial nature, the supply of bricks
    being intermittent depending upon the requirement, availa)>ility of
    brickS as also the availability of the wagons and trucks.

           Allowing the writ petition,

H          HELD: 1.1 The Contract Labour (Regulation and Abolition) Act is

                                         182
                         S. MUKHERJEE v. U.0.1.                          183
                                                                                A
an important piece of social legislation for. the welfare of the labourers
and has to he liberally c0nstrued. (186D]

      Standard-Vacuum Refining Co. of India Ltd. v. Its Workmen,
(1960] 3 SCR 466 and Catering Cleaners of Southern Railway v. Union
of India & Anr., (1987] 1SCC700, referred to.                                   B

      1.2 In the instant case, it was not denied that the bricks bandied
by the brick department were used in furnaces of the company as
refractory. Therefore, the work done by the brick department includ-
ing loading and unloading of bricks was incidental to the industry car-
ried on by the company. It was also not denied that the petitioners were . C
employed as contract labour by the company for the last 15/20 years.
There was, therefore, no justification to treat the petitioners differently
and deny them the right of regular appointment. [186E-F]

       1.3 The purchase of bricks, transportation to the factory, unload-
ing, stacking and use in the furnace were the jobs in one continuing D
process. It could not thus he said that all these jobs were not incidental
or allied to each other. That being so, all the workmen performing these .
jobs were to he treated alike. On the same reasoning it could not he said
that the loader's job was not, and other jobs in the brick depart- .
ment were, of perennial nature. There was, therefore, no justifica-
tion for excluding the job of loading and unloading of bricks from E
wagons and trucks froin the purview of the notification dated February
9, 1980. (187G-188A]

      2. The words "except loading and unloading of bricks from
wagons and trucks" in paragraph 9 of the Schedule to the notification
are struck down being discriminatory and as such violative of Article 14 . F
of the Constitution of India. (188A-B]

      (The petitioners and co-workers to he treated at par with effect
from the date of notification with those who were doing the job of
cleaning and stacking in the brick department, and such of them who
have been retrenched during the pendency of the writ petition to be put         G
back into service with all back wages and consequential benelils.] (18118-C I

        ORIGINAL JURISDICTION: Writ Petition (Civil) No. 2123 of
1982.

        (Under Article 32 of the Constitution oflndia).                         H.
    184        SUPREME COURT REPORTS                 [1989) Supp. 2 S.C.R.

          R.K. Garg and H.K. Puri for the Petitioners.
A
         D.P. Mukherjee, G.S. Chatterjee, Ms. C.K. Sucharita, Ms.
    A. Subhashmi and S.R. Grover for the Respondents.

          The Judgment of the Court was delivered by
B
          KULDIP SINGH, J. The Parliament enacted the Contract
    Labour (Regulation and Abolition) Act, 1970 (hereinafter called the
    Act) with the object of abolition of contract labour in respect of such
    categories as may be notified by the Appropriate Government in the
    light of criteria laid down in the Act and also regulating the service
    conditions of contract labour where abolition is not possible. Section
c   10 of the Act which is relevant is as under:

               "Prohibition of employment of contract labour~

               (1) Notwithstanding anything contained in this Act, the
D              appropriate Government may, after consultation with the
               Central Board or, as the case may be, a State' Board pro-
               hibit, 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
E
                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
F
                     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
G
                      industry, business, manufacture or occupation car-
                      ried on in that establishment;

                      (c) Whether it is done ordinarily through regular
                      workmen in that establishment or an establishment
H                     similar thereto;
              S. MUKHERJEE v. U.0.1. IKULDJP SINGH, J.]               185

                  (d) Whether it is sufficient to employ considerable        A
                  number of whole time workmen.

            Explanation-Ii 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."
                                                                             B
      In exercise of the powers under Section 10(1) of the Act, the
Government of West Bengal issued a notification dated February 9,
1980 prohibiting the employment of contract labour in 16 departments
co•1ering 65 jobs in the establishments of Mis. Indian Iron and Steel
Co. Ltd. (hereinafter called the company) situated at Burnpur in the
State of West Bengal. The list of the departments and the jobs is given      c
in the schedule attached to the notification and paragraph 9 therein,
relating to the Brick Department, is as under:

            "Cleaning and stacking and other allied jobs except loading
            and unloading of bricks from wagons and trucks."
                                                                             D
      It is thus obvious that the job of loading and unloading of bricks
from wagons and trucks in the Brick Department has been specifically
excluded from the beneficial purview of the· notification. The said
action of the State Government has been challenged in this writ peti-
tion under Article 32 of the Constitution of India by the affected
workmen on the ground that the petitioners have been subjected to            E
hostile discrimination so much so that the workmen doing the same job
in other departments and allied jobs in the same department have been
rescued from the archaic system of contract labour whereas the
petitioners have been singled-out and left to be grinded under the
pernicious effect of this primitive system. The action according to the
petitioners is arbitrary, discriminatory and is violative of Article 14 of   F
the Constitution of India.

      Mr. R.K. Garg, learned counsel appearing for the petitioners
has contended that the job of loading and unloading is not peculiar to
the Brick Departmeni rather such jobs are being operated in the stores
(iron and steel), Traffic (steel) and Coke ovens Departments. The            G
benefit of notification dated February 9, 1980 has been extended to the
loaders in all these departments. He further argued that the work of
stacking is directly dependent on the loading and unloading of bricks.
The two jobs according to him are allied and incidental and as such the
workmen holding these jobs cannot be treated differently.
                                                                             H
    186        SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.R.

A       The learned counsel for the respondents on the other hand has
  argued that the job of loading and unloading of bricks in the Brick
  Department is not of perennial nature, the supply of bricks is inter-
  mitent depending upon the requirement, availability of bricks as also
  the availability of the wagons and trucks. 1t is further submitted that
  the decision of the appropriate Government to the effect that the job is
B not of perennial nature is final under the Act.

        It is surprising that more than forty years after the independence
  the practice of employing labour through contractors by big companies
  including public sector companies is still being accepted as a normal
  feature of labour-employment. There is no security of service to the
  workmen and their wages are far below than that of the regular work-
C men of the company. This Court in Stilndard-Vaccum Refining Co. of
  lndia Ltd. v. Its Workmen, lll/6013 SCR 466 and Catering Cleaners of
  Southern Railway v. Union of India & Anr., [1987] 1 SCC 700 has
  disapproved the system of contract 1aoour hOlding it to be 'archaic',
  'primitive' and of 'baneful nature'. The system, which is nothing but an
D improved version of bonded-labour, is S0ught to be abolished by the
  Act. The Act is an important piece of social legislation for the welfare
  of labourers and has to be liberally construed.

         It is not denied that the bricks handled by the Btjck Department
   are usea m furnaces of the company as refractory. Therefore the work
E done by the Brick Department including loading and unloading of
   bricks is incidental to the industry carried on by the company. It is also
   not denied that the petitioners are employed as contract labour by the
   company for the last 15/20 years. Then where is the justification to
  ·treat the petitioners differently and deny them the right of regular
   appointment?
F
         We may examine the case from another aspect. The petitioners
   have specifically averred in paras 7 and 11 of the writ petition thai the
   job of loading and unloading of bricks is allied and incidental to the
   job of stacking of bricks. Para 7 is as under:

G              "It is submitted that loading and unloading of bricks from
               wagons and trucks is an essential feature of; and/or a job
               allied and/or incidental to the job of stacking of bricks. It is
               further submitted that the job of loading and enloading of
               bricks rom wagons and trucks ·cannot be separated from the
               job of stacking and other allied jobs in the case of the
H              petitioners."
                  S. MUKHERJEE v. U.0.J. [KULDIP SINGH, J.]              187

          Further para 11 is as under:
                                                                                A
                "It may be stated here that"stacking" as such was never the
                job of contract labour. The job of stacking and the job of
                loading and unloading of bricks are job ancillary, including
                and/or supplemented to each other. It may be made clear
                that the job of stacking and/or loading and unloading of        B
                bricks has to be. done by competent and technical hands.
                The bricks used in the furnace are a very costly and techni-
                cal material requiring perfect dimensions and precision.
                These bricks are also imported from outside India. Such
                bricks are manufactured indegenously too, but depending
                upon the consumption and demand, the bricks are
                purchased lo.cally and/or imported from outside India.
                                                                                c
                Such a costly material has to be handled by skilled work-
                men. The job of loading and unloading of such bricks and
                their stacking is done by skilled workmen and this work
                cannot be done by casual labour which may be engaged or
                disengaged as contract labour depending upon the sweet          D
                will of the management. It is submitted that loading and
                unloading and stacking of bricks are jobs which are sup-
                plementary to each other carried out by the same set of
                workmen and is essential for the dliy-to-day production. The
                petitioners submit that it is not possible to engage one set
                of workmen for stacking and another set of workmen for          E
                loading and unloading of bricks."

          In the counter affidavit on behalf of the company filed by its Dy.
    Chief Personnel Manager, there is no specific denial to the above
    averments. Though it has been stated that the petitioners are not doing
    the job of stacking the bricks, there is no denial nor any averment or      F
    material on the record to show that the job of loading and unloading of
    bricks is not incidental or allied to the stacking of the bricks. Even
    otherwise we fail to understand how the stacking of bricks is a job
    which is not incidental to loading and unloading. The purchase 'of
    bricks, transportation to the factory, unloading, stacking and use in
    the furnace are the jobs in one continuing process and it is difficult to   G
    accept that these jobs are not incidental or allied to each other. That
    being so all the workmen performing these jobs are to be treated alike.
    On the same reasoning it cannot be said that the loader's job is not,
    and other jobs in the Brick Department are, of perem;1ial nature. In

-   any case there is no material or basis to show that the job of loading
    and unloading of bricks is not of perennial nature.                         H
    188        SUPREME COURT REPORTS               I 1989] Supp. 2 S.C.R.

A         We, therefore, see no justification for excluding the job of load-
    ing and unloading of bricks from wagons and trucks from the purview
    of the notification dated February 9, 1980. We allow the writ petition
    and strike down the words "except loading and unloading of bricks
    from wagons and trucks" in paragraph 9 of the said notification issued
    by GovemmenfofWest Bengal being discriminatory and as such viola-
B   tive of Article 14 of the Constitution of India. We direct that the
    petitioners and other workers doing the job of loading and unloading
    of bricks from wagons and trucks in the Brick Dept!. be treated at par,
    with effect from the date of notification, with those who are doing the
    job of cleaning and stacking m the said department. It is further di-
    rected that the workmen doing the job of loading and unloading who
c   have been retrenched during the pendency of the writ petition be put
    back into service with all back wages and consequential benefits.
    There shall be no order as to costs.

    P.S.S.                                                Petition allowed.




                                                                               ..