1. As common question of law and facts arise in these group of Second Appeals, they are being disposed of by this common judgment and order.
1.1. Second Appeal No. 193/2007 has been preferred by the appellant-State of Gujarat-original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Senior Division), Bharuch dated 06/05/1999 in Regular Civil Suit No. 38/1992 by which the learned trial Court has decreed the said suit preferred by respondent no. 1-original plaintiff-Contractor and has declared that the notifications issued by the Labour and Employment Department bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') as illegal, improper, unjust, arbitrary, discriminatory and violative of principles of natural justice and granted permanent injunction restraining the appellant-original defendant no. 1 from implementing the said notifications and to stay the operation of the said notification. The appellant-original defendant no. 1 has also challenged the impugned judgment and order passed by the learned Joint District Judge and Presiding Officer, Fast Track Court No. 2, Bharuch dated 16/07/2005 in Regular Civil Appeal No. 72/1999 by which the learned appellate Court has dismissed the said appeal preferred by the appellant-original defendant no. 1 confirming the judgment and decree passed by the learned trial Court.
1.2. Second Appeal No. 194/2007 has been preferred by the appellant-State of Gujarat-original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Senior Division), Bharuch dated 06/05/1999 in Regular Civil Suit No. 40/1992 by which the learned trial Court has decreed the said suit preferred by respondent no. 1-original plaintiff-Contractor and has declared that the notifications issued by the Labour and Employment Department bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') as illegal, improper, unjust, arbitrary, discriminatory and violative of principles of natural justice and granted permanent injunction restraining the appellant-original defendant no. 1 from implementing the said notifications and to stay the operation of the said notification. The appellant-original defendant no. 1 has also challenged the impugned judgment and order passed by the learned Joint District Judge and Presiding Officer, Fast Track Court No. 2, Bharuch dated 16/07/2005 in Regular Civil Appeal No. 71/1999 by which the learned appellate Court has dismissed the said appeal preferred by the appellant-original defendant no. 1 confirming the judgment and decree passed by the learned trial Court.
1.3. Second Appeal No. 195/2007 has been preferred by the appellant-State of Gujarat-original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Senior Division), Bharuch dated 06/05/1999 in Regular Civil Suit No. 37/1992 by which the learned trial Court has decreed the said suit preferred by respondent no. 1-original plaintiff-Contractor and has declared that the notifications issued by the Labour and Employment Department bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') as illegal, improper, unjust, arbitrary, discriminatory and violative of principles of natural justice and granted permanent injunction restraining the appellant-original defendant no. 1 from implementing the said notifications and to stay the operation of the said notification. The appellant-original defendant no. 1 has also challenged the impugned judgment and order passed by the learned Joint District Judge and Presiding Officer, Fast Track Court No. 2, Bharuch dated 16/07/2005 in Regular Civil Appeal No. 70/1999 by which the learned appellate Court has dismissed the said appeal preferred by the appellant-original defendant no. 1 confirming the judgment and decree passed by the learned trial Court.
1.4. Second Appeal No. 196/2007 has been preferred by the appellant-State of Gujarat-original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Senior Division), Bharuch dated 06/05/1999 in Regular Civil Suit No. 39/1992 by which the learned trial Court has decreed the said suit preferred by respondent no. 1-original plaintiff-Contractor and has declared that the notification issued by the Labour and Employment Department bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') as illegal, improper, unjust, arbitrary, discriminatory and violative of principles of natural justice and granted permanent injunction restraining the appellant-original defendant no. 1 from implementing the said notifications and to stay the operation of the said notification. The appellant-original defendant no. 1 has also challenged the impugned judgment and order passed by the learned Joint District Judge and Presiding Officer, Fast Track Court No. 2, Bharuch dated 16/07/2005 in Regular Civil Appeal No. 69/1999 by which the learned appellate Court has dismissed the said appeal preferred by the appellant-original defendant no. 1 confirming the judgment and decree passed by the learned trial Court.
2. The facts leading to the present Second Appeals in nutshell are as under;
2.1. The appellant-original defendant no. 1-State of Gujarat, after considering the report of the advisory board, issued notifications bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 under Section 10(2) of the Act prohibiting employment of the contract labour with respondent no. 2- original defendant no. 2-GNFC. The said notifications bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 came to be challenged by respective respondent no. 1-Contractor, who were having contract of employment of contract labour by way of aforesaid Regular Civil Suits on the ground that the said notifications are in breach of principles of natural justice as the said notifications have been issued without giving any opportunity of being heard to them as they are likely to be affected. It appears that initially the aforesaid suits came to be dismissed on the ground that the civil Court has no jurisdiction to consider such a relief to decide the validity of the notifications, however, in appeal, the judgment and decree passed by the learned trial Court came to be set aside and the matters were remanded to the learned trial Court to decide the same on merits. The suits came to be resisted by the State by filing written statement submitting that the notifications have been issued after a detailed study was undertaken by the advisory board in six chemical fertilizer industries of the State of Gujarat. It was also submitted that as such there is no requirement of giving any separate or individual hearing to the Contractor and, therefore, on the ground that the notifications are in breach of principles of natural justice the notifications issued under Section 10(2) of the Act are not required to be quashed and set aside. The learned trial Court by judgment and decree passed in respective suits declared the aforesaid notifications bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 as illegal solely on the ground that the same are in breach of principles of natural justice and the said notifications are being issued without giving any opportunity to the Contractors. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court in respective suits declaring the aforesaid notifications as illegal and in breach of principles of natural justice, the appellant-original defendant no. 1-State of Gujarat preferred appeals before the learned District Court, Bharuch and by impugned judgment and order the learned appellate Court has dismissed the aforesaid appeals by confirming the judgment and decree passed by the learned trial Court in respective suits declaring the notifications under Section 10(2) of the Act as illegal and in breach of principles of natural justice. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in respective suits as well as appeals, the appellant-original defendant no. 1-State of Gujarat has preferred the present Second Appeals under Section 100 of the Code of Civil Procedure.
3. Shri Pranav Dave, learned AGP appearing on behalf of the appellant-original defendant no. 1-State of Gujarat has vehemently submitted that the judgment and order passed by both the Courts below declaring the notifications bearing No. GU-90-223-CLA-1083-C-20(B) M(3) dated 28/09/1990 and No. GU-91-229-CLA-1083-20(B) M(3) dated 27/09/1991 under Section 10(2) of the Act as illegal and in breach of principles of natural justice are absolutely illegal and contrary to the provisions of the Act. It is submitted that as such under the provisions of the Act while issuing notifications under Section 10(2) of the Act no such hearing to the Contractor is contemplated and, therefore, as such the learned trial Court has materially erred in declaring the notifications under Section 10(2) of the Act as illegal and in breach of principles of natural justice. It is further submitted by Shri Dave, learned AGP appearing on behalf of the appellant-State of Gujarat that even otherwise considering the fact that the notifications under Section 10(2) of the Act were issued after considering the report submitted b the advisory board the procedure as required under Section 10 of the Act was followed and, therefore, the learned trial Court ought not to have and could not have set aside the notifications. It is further submitted by Shri Dave, learned AGP that even otherwise the learned trial Court has acted beyond jurisdiction to consider the legality and validity of the notifications under Section 10(2) of the Act. Making the above submissions, it is requested to allow the present Second Appeals.
4. Though served, nobody appears on behalf of the original plaintiff.
5. Ms. Samta Patel, learned advocate has appeared for Nanavati Associates for respondent no. 2-original defendant no. 2-employer-GNFC, Bharuch. She has tried to support the judgment and order passed by both the Courts below declaring the notifications under Section 10(2) of the Act as illegal and in breach of principles of natural justice. However, it is required to be noted that so far as respondent no. 2-original defendant no. 2 is concerned, they have never challenged the notifications under Section 10(2) of the Act and as such they have accepted the same. Under the circumstances, as such it is not open for respondent no. 2-original defendant no. 2 to support the impugned judgment and orders quashing and setting aside the notifications under Section 10(2) of the Act.
6. Heard Shri Dave, learned AGP appearing on behalf of the appellant-original defendant no. 1 and Ms. Samta Patel, learned advocate appearing on behalf of respondent no. 2- original defendant no. 2-GNFC. As stated hereinabove, nobody appears on behalf of respondent no. 1-original plaintiffs.
7. Considering the impugned judgment and order passed by the learned trial Court confirmed by the learned appellate Court, it appears that the learned trial Court has quashed and set aside the notifications issued under Section 10(2) of the Act and has granted declaration declaring the notifications under Section 10(2) of the Act as illegal and in breach of principles of natural justice solely on the ground that the notifications under Section 10(2) of the Act have been issued without giving an opportunity to the original plaintiff-Contractors, who were having job contract with respondent no. 2-original defendant no. 2. It is required to be noted that so far as respondent no. 2-original defendant no. 2-employer is concerned, it has accepted the notifications and the same are not challenged by it and, therefore, the short question, which is posed for consideration of this Court is, whether before issuing notifications under Section 10(2) of the Act, the Contractors, who are having the job contract with the employer are required to be heard before issuing notifications under Section 10(2) of the Act?
7.1. For the aforesaid, Section 10 of the Act deserves to be considered, which reads 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.
(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 whole time workmen.
7.2. Considering Section 10 of the Act it confers power upon the appropriate Government, after consultation with the Central Board, 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. It also appears that before issuing any notification Sub Section (1) of Section 10 in relation to an establishment, the appropriate Government would have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors mentioned in Sub Section (2) of Section 10. Thus, there is no requirement of giving opportunity of being heard either to the establishment with respect to the notification under Section 10 of the Act or either to the contractor with whom the establishment might have entered into job contract. Under the circumstances, the learned trial Court has materially erred in holding the notifications under Section 10 of the Act as illegal and in breach of principles of natural justice solely on the ground that the original plaintiff-Contractors, who were having job contract with the establishment i.e respondent no. 2- original defendant no. 2 were not given any opportunity of being heard. It cannot be disputed that giving an opportunity of being heard cannot be inferred unless it is specifically provided in the statute. Even otherwise, it is required to be noted that the notifications under Section 10 of the Act were issued after considering the report of the advisory board and after considering the requirement under Section 10 of the Act. Under the circumstances, when the advisory board opined to prohibit the employment of contract labour in respondent no. 2-original defendant no. 2 establishment and when appropriate Government, on consultation of the Board, has issued notifications under Section 10 of the Act in prohibiting the contract labour in respondent no. 2-original defendant no. 2 establishment and when the said establishment has not challenged the same and has accepted the same, it was not open for the Civil Court to quash and set aside the same. As stated hereinabove, and considering the judgment and decree passed by the learned trial Court, which has been confirmed by the learned appellate Court, it appears that the learned trial Court has decreed the suit solely on the ground that the same are in breach of principles of natural justice as the original plaintiff-Contractors were not given opportunity of being heard. Considering the aforesaid and considering Section 10 of the Act, the learned trial Court has committed a grave error in decreeing the respective suits and declaring the notifications under Section 10 of the Act as illegal and in breach of principles of natural justice and the learned appellate Court has materially erred in dismissing the appeals preferred by the appellant-original defendant no. 1 herein confirming the judgment and decree passed by the learned trial Court passed in respective suits.
8. In view of the above and for the reasons stated hereinabove, all the Second Appeals succeed and the impugned judgment and decree passed by the learned Civil Judge (Senior Division), Bharuch dated 06/05/1999 in Regular Civil Suit Nos. 38/1992; 40/1992; 37/1992 and 39/1992 are hereby quashed and set aside. All the appeals are accordingly allowed. There shall be no order as to costs.
(M.R. SHAH, J.) siji