1. Heard the learned advocate for the parties. The petitioner, a Company registered under the Provisions of Companies Act, 1956 has approached this Court under Section226 and 227 of the Constitution of India challenging the notification dated 11/02/2003 issued by respondent no.1 in its exercise of powers under the provision of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (herein after referred to as the “Contract Labour Act” for the sake of brevity) prohibiting the activities of loading/unloading and container shifting to be carried out with the help of contractor's labour.
2. The facts in brief leading to this petition as could be culled out therefrom deserves to be setout as under.
2.1 The petitioner is engaged in the business of Manufacturing and Sale of Chemical products known as Optical whitening agent used in the Textile Industries, Paper Industries and the Detergent Manufacturing Industries. The petitioner is carrying out its activity at the location of GIDC Estate, Ankleshwar. The petitioner has in all 211 workmen on a permanent basis and petitioner has to engage contract labour for the work of Loading/Unloading, Watch and Ward, Maintenance Work, Fabrication and other incidental and similar work. The activities in respect of the loading/unloading, performed by the contract labours were in accordance with provision of Contract Labour Act as the labour legislation in this behalf were followed and the contractors have requisite licence issued by the Competent Authority. The employees and workmen working in lieu of the location of G.I.D.C. Panoli, Bharuch and Ankleshwar have approached this Court by way of S.C.A. No.57/1997 wherein the present petitioner was figuring at serial no.29 for the relief against the respondents for abolishing the contract labour system in some of the activities. The said petition came to be disposed of by this Court (Coram : Mr.Justice M.R.Calla, J.) on 01/04/1997 interalia observing that in absence of any specific allegations in regard to any breach of contract of labour legislation, the workmen were relegated to takeout respective remedies under law, like filing of complaints with respect to the grievances and the State was to take decision in this behalf. The direction for completing the entire exercise was to be finished within four months from the date of receipt of certified copy of the order. The State referred the matter to the Board Constituted under the Contract Labour Act, which in turn issue notices to the concerned establishments including the present petitioner on 09/09/1997 calling upon the petitioner to furnish details in respect of reference no.55/1199/77.
3. The details were to be furnished by 31st September, 1997, which was complied. The petitioner was granted hearing. The members of the board visited the premises of the petitioner company on 12/02/1999. They give audience to the contractors and the workmen. The decision was required to be taken thereafter in terms of the order of this Court passed in the aforesaid petition being S.C.A. No.57 of 1997. However, nothing was heard or communicated till the subsequent notice came to the reconstituted board by the petitioner. In the mean time, the petitioner continued his activities in those areas also by obtaining contract labour and the contractors were given licences and the company was permitted to carry out activities through contract labour. The reconstituted board undertook the exercise of quality material affording an opportunity of being heard to the petitioner and ultimately filed its report recommending the abolition of contract labour system in two activities, namely (1) loadingunloading and (2) container shifting. The State, the Competent Authority under Section10 of the Contract Labour Act accepted the report and acted thereupon and issued notification dated 11/02/2003 qua the present petitioner and indicated that two activities were not permitted to be carried out through contract labour activities and the contract labour system stood abolished. Being aggrieved and dissatisfied with this notification, the present petition preferred. This Court (Coram : Mr.Justice P.B.Majmudar, J.) on 07/07/2003 passed the following order.
“Leave to join GIDC Employees' Union through its President having his office at A/6, 2nd Floor, Sardar Patel Complex, GIDC, Ankleshwar as party respondent No.3. Notice to the newly added party returnable on 29/07/2003. In the meanwhile the State may not take any penal action against the petitioner.”
4. The learned advocate for the petitioner contended that the impugned notification is issued without complying with the provisions of Section10 of the Contract Labour Act and hence, the same is required to be quashed and set aside.
5. The learned advocate for the petitioner invited this Court's attention to the decision of this Court containing direction to complete the exercise of examining the grievances of the workmen, who were petitioners before the Court in S.C.A.No.57 of 1997 and submitted that the inordinate delay in concluding the proceedings of and the time laps between the first issuance of notice and the ultimate notification indicates that the notification is required to be quashed and set aside as there exists no justification on the part of the State in singling out the petitioner's establishment for abolition of contract labour system qua two activities mentioned in the notification. The leanred advocate for the petitioner further contended that so far as the second activity is concerned, namely shifting of container was not the activity for which the petitioner ever engaged contract labour and therefore, the mentioning of this activity in the notification would point to the lack of application of mind on the part of the concerned authorities.
6. The learned advocate for the petitioner further contended that the entire exercise of examining and verifying the various aspects at the end of the board pursuant to the first notice could have been taken to be over, which did not yield any order or result and therefore, the reviving of the said proceeding by the reconstituted board in the form of subsequent notices would vitiate the entire proceedings and therefore, on that ground also the notification is required to be quashed and set aside.
7. The learned advocate for the petitioner further contended that the notification do not reveal on its plain reading that the State has considered the abolition of the Contract System in the activities named in the notification in the petitioner's organization on the basis of any material except the report, which was submitted to them by the advisory board. The State has not adhere to the mandatory provision of issuing the notification only in consultation with the advisory board as the plain reading of Section10 would indicate. In the instate case, the reading of the notification do not reveal anywhere that requirement of consideration was completely fulfilled before the notification was issued.
8. The learned advocate for the petitioner while elaborating the aforesaid contentions, invited this Court's attention to the report of the advisory committee and contended that in the entire report the advisory board has not referred anywhere that it undertook any exercise in respect of facts of prevalent Contract Labour System in these activities in other industries though the information called from the petitioner in a proforma did contain a specific column calling upon the petitioner to indicate as to whether the contractor employed by the petitioner were also employed in any other establishment or industry. The petitioner infact sent him detailed information against this column by subsequent letter, but unfortunately the board did not advert to it in any manner, which would indicate the noncompliance with the mandatory provision of factors enumerated under Section10 (2) (a) to (d) of the Contract Labour Act. The precise nonapplication of mind is pleaded qua Section 10 (c) of the Contract Labour Act. This is however, reflected in the notification as well as, the affidavitinreply as nowhere the State has even admitted to justify or establish the real consideration of the aspects mentioned in Section10 of the Contract Labour Act. Therefore, the notification impugned in this petition being vitiated on account of blatant ignorance and overruling of relevant factors and deserves to be quashed and set aside.
9. The learned advocate for the petitioner invited this Court's attention to the averments made in the reply affidavit by the deponent on behalf of the State and contended that the deponent has rather unequivocally averred in the affidavit that the State has independently decided to abolish the Contract Labour System on the report of the advisory board that also would be pointer to the nonapplication of mind and nonconsideration qua the factors and the requirement of meaningful conciliation with the board. There ought to have been a specific decision prior to issuance of the notification which would indicate meaningful conciliation in compliance of provision of Section10 of the Act. In the instant case, though affidavits have been filed, the State has failed in establishing any independent decision prior to issuance of notification, which would amount to say that the report of the advisory board is accepted in its totality and acted upon without any meaningful deliberation thereon by the State authorities, which cannot be said to be due compliance with the provision of Section10 of the Contract Labour Act.
10. The leanred advocate for the petitioner relying upon the decision of this Court in case of Gujarat Narmada Valley Fertilizers Co. Ltd., V/s. State of Gujarat and Ors. reported in 2000 (1) GLR page 443 submitted that the aspect of consultation by the State with the board and the burden of establishing the lack of discrimination and objective decision making process is laid upon the State when the notification is passed in respect of an individual establishment in exercise of powers under Section10 (1) of the Contract Labour Act. The learned advocate for the petitioner laid emphasis upon the observations of the Court in paragraph no.7, 8, 9, 16 and 18. The fact remain to be noted in this case that the notification impugned in this petition is qua the petitioner's establishment and as such the appropriate justification for passing the notification prohibiting the contract labour in the activities mentioned in the resolution should have brought on record when the challenge is at large before this Court.
11. The learned advocate for the petitioner as a substantive limb of the aforesaid submission further submitted that firstly there is no material coming forward on record indicating any discussion and/or material qua choosing the present petitioner's establishment for prohibition of contract labour and the process of consultation is not established. The precise challenge is in respect of passing of the resolution in respect to the petitioner's establishment without following the procedure and adverting to the aspect and the factor in terms of Section10 (2) (c) of the Contract Labour Act that what is the position prevalent in other similarly situated establishment. Thus, the challenge to the notification is also on the ground of nonfulfillment of the conditions enumerated in Section10 of the Contract Labour Act as well as, lack of specific decision justifying singling out by the petitioner establishment without adverting the other similarly situated industrial establishments. The learned advocate for the petitioner invited this Court's attention to the decision of the Apex Court in case of Steel Authority of India Ltd., and others V/s. National Union Waterfront Workers and Ors reported in 2001 (7) SCC, page1 and submitted that the ratio laid down in this decision vizaviz the entitlement of the workman in the establishment where the contract labour system is abolished would be governing the field and in this judgment the ratio laid down in Air India Corporation V/s. V. A. Revello and another reported in (1972) 1 SCC 814 is expressly overruled. Therefore, from that angle if one examine the impugned notification, then the direction or the declaration with regard to the workman's entitlement is also not inconsonance with the provisions of law as declared by the Court in case of Steel Authority of India Ltd., and others V/s. National Union Waterfront Workers (Supra).
12. The learned advocate for the petitioner, thereafter, invited this Court's attention to the order passed by this Court in group of petitions being S.C.A.No.2647/2003, 2180/2003, 2684/2003, 2706/2003, 2752/2003 and 2896/2003 decided on 26/12/2005, wherein the notices received by the petitioners from the reconstituted board were challenged and the petitioner had not challenged such notices and which in turn submitted and resubmitted the documents to resist the abolition or prohibition of contract labour system and its establishment. The Court in those petitions quashed the notices on account of delay, which observation would amply be applicable and available to the present petitioner also. Those petitioners were infact similarly situated qua the present petitioner as the entire proceeding of notices in the first instance were offset of the earlier petition discussed herein above being S.C.A. No.57 of 1997, which was disposed of by this Court vide order dated 01/04/1997. Thus, infact when similarly situated other establishment were granted relief, it ought to have been properly appreciated by the State and the State could not have justifiably resisted the prayers made in this petition without first indicating any distinguishing feature which according to the advocate for the petitioner is none and hence on this ground also the quashment of the notification is prayed.
13. The learned AGP appearing for the respondent no.1 submitted that the averments and contentions raised in the affidavitin reply are relied upon for resisting this petition and the observations made by this Court in case of Gujarat Narmada Valley Fertilizers Co. Ltd., V/s. State of Gujarat and Ors. (Supra) would not support the contention of the petitioner rather it would support the contention of the respondent as the notification does contain the minimum requirement of recital that the State has followed the procedure and the State has kept in view the factors enumerated under Section10 (2) (a) to (d) of the Contract Labour Act. One such recycle is existing in the notification then the burden of proving otherwise would be cast upon the petitioner or the person who is assailing the notification on assertion of noncompliance and/or nonadverting to those factors. The subsequent part of the notification, which refers to the case of Air India Corporation (Supra) cannot be said to be a part of the notification of prohibition, as the language of the notification itself is clearly indicative thereof.
14. The learned advocate for the respondent no.3 submitted that the notification impugned is required to be sustained and the petition is required to be dismissed as the report contains in detail the number of opportunities offered to the petitioner for justifying its claim to be not prohibited under the proposed action of notification. The learned advocate for the respondent no.3 invited this Court's attention to the relevant averments made in the report filed on behalf of the State and submitted that the opportunities granted for hearing if not availed to its fullest by the petitioner, then, petitioner cannot be permitted to turn around and challenge the notification as it would amount to permitting the petitioner to make out a new case altogether, which were not pleaded before the board when the board called upon the petitioner to adduce evidence in support of their contention. The learned advocate for the respondent no.3 invited this Court's attention to report of the advisory board and contended that the report contains in detail the justification for recommending prohibition as the said report is a result of fact finding inquiry & acceptance thereof by Government resulting into notification may not be interfered by this Court under Article226 of the Constitution of India.
15. The learned advocate for the respondent no.3 emphatically relied upon the observations of the board in its report qua the activities of loadingunloading being perennial in nature shall fulfill the requirement for dispensing with the contract labour system in the establishment. The broad existence of the factors and consideration of those factors are evident of the report of the advisory board and straight way its acceptance on account of no doubts or query available with the State would in itself not be amounting to lack of consultation as sought to be canvassed on behalf of the advocate for the petitioner. The consultation is evident and the State accepted the report and passed resolution, which may not be interfered with under Article226 of the Constitution of India.
16. The learned advocate for the respondent no.3 invited this Court's attention to page no.95, 96, 100, 80 and 83 in support of aforesaid contentions and other relevant material in the petition.
17. The learned advocate for the respondent no.3 relying upon the decision of this Court in case of Alembic Chemical Works Co. Ltd., V/s. State of Gujarat reported in 1995 (1) GLR page 143, contended that the observations made by the Division Bench of this Court in para8 would indicate that the relevant factors were considered by the State before issuing the notification and therefore, the impugned notification needs no interference under Article226 of the Constitution of India.
18. The learned advocate for the respondent no.3 thereafter, invited this Court's attention to another judgment of this Court in case of South Gujarat Textile Processors' Association V/s. State of Gujarat, 1994 (1) GLH page – 94 and laid emphasis upon observations of the Division Bench in para12 to support his contention that the plea of discrimination invoking the Article14 is wholly misconceived in light of the pronouncement of the position of law as exists on the date.
19. The learned advocate for the respondent no.3 invited this Court's attention to the decision of the Apex Court reported in case of Prabhakaran Nair etc., V/s. State of Tamil Nadu and others, AIR 1987 SC 2117 and contended that ordinarily challenge to subordinate legislation or an outcome of subordinate legislation on the ground of discrimination under Article14 is not available as the exercise is under taken as legislative exercise, which may not brook any interference under Article226 of the Constitution of India.
20. The learned advocate for the respondent no.3 contended that the last portion of the notification containing reference to the decision of Air India Corporation (Supra) would be not so glaring affect so as to render the factum of prohibition vitiated in any manner. Infact, the reading of the notification would suggest clearly that the prohibition aspect is over at the moment it is ending after that two activities'
narration. The later aspect is merely a consideration and/or a declaration, which can be read separately for saving the earlier portion of the notification. In other words also, it can be submitted that even if that portion is read as a part of the notification, that would not be in any manner indicative of any substance to challenge to the entire notification, as there is clear compliance with the provision of Section10 of the Contract Labour Act.
21. The Court has heard the learned advocate for the parties. The scheme and the provision of Contract Labour Act would unequivocally indicate that the very act is enacted so as to regulate the contract labour and if required, abolish the system of contract labour. The scheme of the act would clearly indicate that the contract labour system is to be regulated in accordance with the provision of the Act and in a given case whether the appropriate Government is satisfied with regard to the aspects enumerated in Section10 (2) (a) to (d) of the Contract Labour Act, it can prohibit by notification the employment of contract labour in any process, operation or other work in an establishment. It would be most expedient to reproduce the provision of Section10 of the Contract Labour Act for the sake of convenience.
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) 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 that is 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 wholetime 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.
22. The plain reading of the provision of Section10 of the Contract Labour Act, which is relevant provision for the purpose of this petition indicates following.
(i) Section10 is an exception to the entire act as it starts with nonobstantic laws empowering the State to issue notification in the official gazette prohibiting employment of contract labour in any process, operation and other work in any establishment. The inclusion of word establishment clearly indicate that the State is empowered to issue notification and prohibiting employment of contract labour in any of the process undertaking in the establishment.
(ii) The Section10 (1) of the Contract Labour Act makes it mandatory upon the State to consult the board in respect of proposed action of prohibiting the employment of contract labour in any process, operation or other work in any establishment. Thus, the consultation with the board is sine qua none for issuing notification of prohibiting the employment of contract labour. In case, if there is no consultation, then the notification would not be valid as the mandatory provision of consulting the advisory board would have remained to be complied with.
(iii) The provision of subSection2 of Section10 of the Contract Labour Act makes it incumbent upon the State to have recorded the conditions of work and benefits provided to the contract labours in the establishment and other relevant factors enumerated as per Section10 (2) (a) to (d) of the Contract Labour Act before issuing the notification in exercise of powers under Section10 (1) of the Contract Labour Act. Thus, the State is under obligation to advert to the aspect and factors mentioned in subSection2 of Section10 and has to establish that the said provision is completely complied with when the notification is issued and is challenged before the Court of law. The issuance of the notification is therefore, essentially preceded by an exercise of consultation consulting the board and adverting to the aspect and factors figuring in subSection2 of Section10 of Contract Labour Act. The notification impugned reflect this in terms, but when there is a challenge to it, the State has to establish the compliance with Section10 (2) of the Contract Labour Act.
(iv) The explanation appended to Section10 makes it all the more incumbent upon State to carefully follow the procedure and apply its mind to the aspects and factors enumerated in Section10 (2) of the Contract Labour Act as the decision is said to be final qua the work being perennial in nature etc.
Thus, the aforesaid aspects emerging from the close perusal of provision of Section10 of the Contract Labour Act would have to be born in mind while examining the rival contentions of learned advocate for the parties in respect of the notification dated 11/02/2003, impugned in this petition.
23. The undisputed fact in respect of the prolonged proceedings is required to be born in mind as in the instant case the claiming qua employment of contract labour by the workman concerned in some of the areas of GIDC namely Panoli, Ankleshwar and Bharuch resulted into bringing about an application in the form of S.C.A. No.57 of 1997. Thus, it can be said that there existed a kind of challenge in respect of bringing about an end to the system of employing contract labour in the units of industries operating in those areas. It is required to be borne in mind that the workmen has a right to seek appropriate declaration from the concerned forum established under the provision of Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act for the sake of brevity) in respect of their claim to be treated as permanent employee or workman, if they establish that the contract labour system was merely a hazard, sham and bogus so as to deprive of their legitimate right to seek benefit attached to permanency. In such an eventuality, the workman would have been required to be established various factors, which would include perennial nature of work of the industry, which has been performed by the workman and other incidental aspects arising therefrom based on evidence led by workman and the industry. The workman chose to take a remedy by way of filing petition being S.C.A. No.57 of 1997. The fact remains to be noted that the present petitioner is figuring as one of the respondent in total 37 industries against whom the petition is filed. The name of the present petitioner is said to be figured at serial no.29. Thus, the said aspect of abolition of contract labour system subject matter of challenge before this Court did not yield any result in favour of the workman, though it is required to be noted that the Court infact passed an order leaving it open to the workman to raise appropriate grievance and prescribing time limit to the authority for deciding the same. The operative part of the order could be set out for ready reference as under : “I find that the other prayers which have been made in this petition with regard to the breach of the provisions of the labour legislation are not specific and it is for the petitioner union to furnish the details with specification of such violations before the Labour Commissioner and Chief Factory Inspector who shall make scrutiny of the violation of the labour laws which are alleged by the petitioner union and detailed report in this regard shall be submitted by the Commissioner of Labour and Chief Factory Inspector who will submit their separate reports to the Government of Gujarat in the Labour Department and concerned officer or high functionary appointed by the Government shall pass appro0pirate orders in accordance with law thereon for award of cost and compensation to the concerned employees or such appropriate orders as it may deem fit but before passing such orders the concerned respondents who are found to have violated any provisions of industrial law shall be afforded an opportunity of hearing. Copies of the reports made by the Commissioner of Labour as also by the Chief Factory Inspector shall be made available to the petitioner union immediately while sending the reports to the Government. The whole exercise in this regard shall be completed at the earliest possible opportunity but in no case later than a period of four months from the date of the certified copy of this order is served upon the respondents No.1, 2 and 3 respectively. With the directions as aforesaid this Special Civil Application is disposed of. Notice is discharged. Interim relief stands vacated.”
Civil Applications No.3610 to 3625 of 1997.
“In view of the order passed in the main matters, Civil Applications filed by the respondents represented through Mr.K.S.Nanavati are also disposed of as no orders are required to be passed.”
Sd./ Date : 01/04/1997. [M. R. Calla, J.]
23.1 Thus, four months' time limit was ordered by the Court, which admittedly has not been adhered to by anyone as could be seen from the development after the said proceedings.
24. The petitioners have averred that the first notice pursuant to the aforesaid order came to be issued on 09/09/1997. The proceedings were numbered as reference no.55/97 and it culminated into the final report. Though the report does not indicate any date, the signature appended thereof indicate that it is signed on 22/10/2002. In the mean time, there was change of reconstruction of the board as is evident on the record. The petitioner's contention with regard to inordinate unexplained delay in the proceedings dehors the Court's order and time limit of four months would render entire proceedings vitiated cannot be brushed aside as untenable submission. Infact, the factor of delay is required to be born in mind as it is to be said that delay despite the Court's order of disposing of matter within four months is per say prejudicial. The Court has not to adhere that the process was required to be viewed from the provision of Contract Labour Act and with the special reference to provisions of Section10 of the Contract Labour Act, it would not preclude the workmen of an individual industry to takeout appropriate proceedings qua their entitlement to be treated as regular permanent employee on their establishing that the contract was bogus, sham and only hazard and deprived them of the right of receiving permanency benefit.
25. The delay in the proceedings though pleaded and though appears to be evident, in my view, cannot be said substantial bearing upon the proceedings but the delay has remained unexplained as the explanation of requirement of reconstituted board is of no avail. Infact, the delay did give some explanation rather legitimate explanation in the industry to treat as if the proceedings have come to an end. But, the fact remains that the present petitioner chose not to challenge the subsequent notices by reconstituted board like other similarly situated industry would takeout major substance from the plea of delay vitiating the proceedings. But, this factor should not be outrightly rejected as causing no prejudice at all to the industry in question, that is the petitioner industry. Thus, bearing the delay aspect in mind, without attaching much importance to it, now let us examine further submissions as the notification is not required to be quashed only on the ground of belated action as the provision of Section10 of the Contract Labour Act does not prescribe on such limitation and as the proceedings were as an offset of order of the Court the same could have been required to be completed within four months as prescribed. The noncompletion of the same and continuation of the same in absence of a greater prejudice would not render the notification vitiated only on that ground as the Section10 (1) of the Contract Labour Act is an exercise, which could have been takenup by the State, independent of the order of the Court and when such an exercise envisaged then the action impugned is required to be viewed from that angle also.
26. The Court is unable to accept the submission of learned advocate for the petitioner qua lack of consultation in respect of the industry that is petitioner's establishment before issuing the notification. The Court is not able to accept the contention that the State was under obligation to indicate and place on record the orders of acceptance of the advice or recommendation of the board before issuing the notification. Had there been a recommendation contrary to the decision of the State as was the case in respect of Gujarat Narmada Valley Fertilizers Co. Ltd., V/s. State of Gujarat and Ors. (Supr) then, it would assume a different dimension and complexion, but in the instant case the State has accepted the recommendation and therefore, in absence of any specific challenge to nonexistence of decision on file, the straight way submission with regard to the lack of consultation on that ground cannot be sustainable in the eye of law and hence, on this ground alone, it cannot be said that there is no consultation as sought to be canvassed on behalf of the petitioner.
27. The Court has time and again as could be seen from the decision cited at the bar by both the sides reiterated the proposition of law that in a subordinate piece of legislation, lacks one in question the recital of compliance with the provision required to be followed is sufficient to presume compliance was that at the end of the State, but that presumption is certainly rebuttable and the burden would therefore lie upon the person or industry asserting noncompliance. In other words one can say that when the notification contains recital qua compliance with the provision of Section10 (1) and (2) of the Contract Labour Act, then that recital itself is sufficient to shift the burden of proving that the notification is without compliance would be upon the industry asserting the same. The Court is of the view that the authorities cited at bar on behalf of the workman qua the resultant being sufficient would be also not any avail to the workman in as much as those observations cannot be said to be propounding of law that mere recital of compliance in notification establishment is a conclusive proof or evidence so as to lead to unrebuttable presumption of compliance. This shall be so, when additional burden is cast upon the State to justify issuance of notification qua establishment when an establishment is alone subject matter of issuance of notification containing prohibitory direction for prohibiting employee of contract labour.
28. Bearing the aforesaid proposition in mind, now let us examine whether there exists any justification on the part of the State for choosing those industry for prohibiting the contract labour system in the activities mentioned in the notification. This examination would also involve the exercise of adverting to the factors enumerated under Section10 (2) of the Contract Labour Act on behalf of the State. Therefore, composite consideration of both these aspects would be expedient for deciding the controversy. The report of the advisory board is conspicuously silent qua the aspect covered by provision of Section10 (2) (c) of the Contract Labour Act, as rightly submitted by learned advocate for the petitioner. The provision of Section10 (2) (c) of the Contract Labour Act provides for an application of mind and consideration of factors in a similarly situated other establishments also. The learned advocate for the respondent no.3 is not justified in contending that the evidences were adduced before the advisory board and therefore, advisory board was not required to take into consideration and in turn therefore, the State was also not required to take into consideration in an alternate submission on this aspect by the advocate of respondent no.3, is also unacceptable to this Court that the petitioner cannot be permitted to takeout this submission in the writ petition if the evidence is not adduced before the board as in my view the provision of Section10 (2) (c) of the Contract Labour Act cast an obligation upon the State to consider relevant factors independent of any aid or assistance from any quarter. The real challenge or the action to challenge the notification is promulgated and therefore, it would not be justified on the part of the respondent no.3 advocate to contend that the nonproduction of documentary evidence qua other similarly situated industries would work as an impediment in contending before this Court on behalf of the petitioner that the factor elaborated in Section10 (2) (c) of the Contract Labour Act remained noncomplied and has remained overlooked and remained to be considered.
29. The fact remains to be noted that not only the advisory board's report is silent on this aspect, even the affidavitinreply placed on record on behalf of the State also do not contain justifiable reasons or indicate any conscious exercise on the part of the State to advert to the aspect enumerated under Section10 (2) (c) of the Contract Labour Act, which would go to show that the State and the advisory board unfortunately did not advert to this aspect consciously and record its reason for justifying prohibition qua the present petitioner's establishment.
30. The petitioner has clearly averred in the memo of the petition in paragraph no.2 and paragraph no.13 (8) that the container shifting activities were not carried out by engaging contract labour in the petitioner's industry and establishment nor has any of the contractor engaged by the petitioner has obtained licence to carry out activity of container shifting through contract labour and when it is clear from the record that petitioner's establishment has not carried out activities of container shifting by contract labour, the prohibition of the contract labour qua container shifting as mentioned in notification is indicative of clear noncompliance of mind on the part of the State authorities vitiating the issuance of the notification shows clear violation of Section 10 (2) of the Contract Labour Act. The submission canvassed on behalf of the petitioner in this behalf has remained uncontroverted and therefore, the same is required to be considered in its true perspective. It has not come out on record as to in what manner and why the “container shifting” is figuring in the notification as one of the activity in which contract labour employment is prohibited when all alone it was the say of the petitioner that the contract labour was not employed so far as the container shifting is concerned and container shifting was not done by engaging contract labour in the premises of the establishment. Thus, the activity of the container shifting and prohibition of the activity through contract labour employment is clearly indicative of the lack of appropriate appreciation of the evidences and facts, which would have gone into consideration before forming an opinion of abolishing the contract labour. That decision making process, which has resulted into issuance of notification is thus, established clearly to have been vitiated on account of the facts, which were not nonexistence and which have been still being made part of the notification. Thus, on this count also this Court is of the clear view that the decision stood vitiated, its resultant effect resulting the issuance of notification itself.
31. The Court is of the view that the factum with regard to not undertaking an exercise of similarly situated industrial establishment situation would be a material ground for sustaining the challenge to the notification. The ClauseC of Subclause2 of Section10 of the Contract Labour Act makes it incumbent upon State to take that factor into consideration and as held by this Court in the Case of Gujarat Narmada Valley Fertilizers Co. Ltd., V/s. State of Gujarat and Ors. (supra) when an individual establishment is singled out, subjecting it to prohibition then it is all the more incumbent upon the State to come out with specific ground of justification for doing so. In the instance case, unfortunately, the affidavitinreply and the submission canvassed on behalf of the State do not establish any justification for taking out only this establishment for prohibitory orders. The Court also needs to be mindful of the fact that the petitions, which would have been disposed of by this Court in favour of the petitioner, and subsequent notices issued by the reconstituted board have been quashed were exactly similarly situated establishment so far as the treatment and development after the proceedings under S.C.A. No.57 of 1997 were over. Thus, the benefit of the reasoning available to those petitioners cannot be denied to the present petitioner, especially it is so as the State has also failed in establishing any distinguishing features qua the present petitioner.
32. Hence, the Court is of the considered view that the notification is not issued after considering various factors, which were compulsorily required to be considered by the State before issuing the notification. The decision making process stood vitiated on the ground of aforesaid discussion and therefore, the notification also would not be sustainable in the eye of law. The Court is of the view that the same is therefore, deserves to be quashed and set aside and is accordingly quashed and set aside. The petition succeeds. However, there should be no order as to costs. Rule made absolute.
[S. R. Brahmbhatt, J.]
33. After the aforesaid order was passed, Shri Pathak submitted that the Court may remand the matter back to the authorities for deciding it afresh, as otherwise the direction issued by the Court in Special Civil Application No.57 of 1997 would be of no avail, as the present exercise is result of the said order of this Court.
34. This mentioning is made in absence of learned advocate for the petitioner, who is not available to reflect upon this. However, this Court is of the considered view that looking to the provision of Section 10 (1) & (2) it is always open to the appropriate Government to take out proceedings in accordance with law, and this would not preclude the State or other authorities from taking out action nor this observation would come in the way of respondent no.3 workman to raise independent dispute alleging that the contract labour was sham or mere hazard. The observations are recorded for examining the challenge to the notification as it stood.
Rathod
[S. R. Brahmbhatt, J.]