1. Heard learned counsel for the parties.
2. The petitioner Union, by way of this petition under Articles 226 and 227 of the Constitution of India has challenged the order dated 25.2.2010 passed by the Desk Officer – respondent no. 1 rejecting the request for raising the demand and refusal to refer the dispute for adjudication.
3. The facts, as could be seen from the memo of petition indicate that the petitioner Union while espousing the cause of its members workmen, who were engaged as Contract Labour by respondent no. 2 wanted to raise industrial dispute and therefore, letter of intervention came to be issued by them, wherein, it is specifically mentioned that contract labour system adopted by N.D.D.B is in fact sham, bogus and camouflage to deprive the workmen of its legitimate right to be considered as full fledge permanent employee. This letter of intervention is turned down vide order dated 25.2.2010 by respondent no.1. The conciliation failed and it was reported to the competent authority which in turn did not think it fit to refer the matter for adjudication as the workmen are engaged in the employment of the establishment, wherein, the Contract Labour is not prohibited under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Contract Labour Act' for short), hence the demand of regularization of contract labour in the employment of principal employer cannot be considered as industrial dispute. Being aggrieved and dissatisfied with this order dated 25.2.2010, present petition is preferred for the reasons stated in the memo of petition.
4. Learned advocate for respondent no. 2 contended that workmen have not in fact pleaded anywhere that there is a breach of Contract Labour Act and fact remains to be noted that in absence of any notification issued by the Competent Authority under Section 10 of the Contract Labour Act, the employment of workmen by way of Contract Labour employment is permissible and mere raising ground of so called camouflage or bogus contract, the same would not create any right in favour of workmen to seek dispute and adjudication. Hence, the order appears to be just and proper and court may not interfere with said order under Articles 226 and 227 of the Constitution of India. Learned advocate appearing for respondent no. 2 further contended that dispute is raised belatedly and on that count also, the workmen have rightly not been permitted to raise the dispute as the competent authority has felt that there exists no dispute which requires to be referred for adjudication. Thus, on these two grounds the petition is required to be dismissed. Learned counsel for respondent no. 2 submitted that the order passed by respondent authority deserves to be sustained. Learned counsel for respondent no. 2 has relied upon the decision of the Apex Court in case of Steel Authority of India Ltd. Vs. State of West Bengal reported in AIR 2009 SC 120 : 2008(14) SCC 589, contended that order impugned need not be disturbed or interfered with by this Court under Articles 226 and 227 of the Constitution of India.
5. The court is of the considered view that this petition is required to be allowed by quashing and setting aside the impugned order in this petition for the following reasons:
(I) The fact remains to be noted that ratio of the Apex Court in case of Steel Authority of India Ltd. and others Vs. National Union Waterfront Workers and others, reported in (2001) 7 SCC 1 is not water down in any manner, wherein, it is observed unequivocally that in a case where the workmen's claim to be subjected to sham and bogus Contract Labour employment, then, the jurisdiction of the Tribunal and/or adjudicatory authority is not prohibited at all and in such a situation, the appropriate authority cannot arrogate its task of deciding the plea of the workmen in respect of bogus and sham Contract Labour Practice.
(II) The workmen have made claim in letter of intervention, which in my view, were required to be referred to the competent authority and adjudicatory authority and appropriate government cannot take upon itself to decide and opine that there exists no sham and bogus contract only on the ground of non-issuance of any prohibitory notification.
(III) The plea with regard to sham and bogus contract being available to the workmen and if the same is taken, then, the authority in its administrative capacity can inform the authority to opine as it would appear in the present case, the authority has negatived the plea with regard to sham and bogus contract which is not competently done as the authority cannot assume any adjudicatory roll upon such plea. The order impugned indicates that there is advertence to its plea also and matter is remanded back to the authority.
6. Accordingly the order dated 25.02.2010 is hereby quashed and set aside. The respondent authorities are directed to reconsider the matter afresh without being influenced by the order dated 25.02.2010, which has been quashed and set aside by this court in this proceedings. It goes without saying that this court has not opined on merits of the matter in any manner and the matter is remanded for fresh consideration on the part of the authorities bearing in mind the existing position of law.
7. Accordingly, the petition is allowed. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
(S.R.BRAHMBHATT, J.) pallav