D.K.Seth, J. - (1.) a tender was floated inviting contracts for the performance of certain jobs including repair and maintenance of boiler. The tender contained a clause 6(1)(f), whereby it is stipulated that the successful tenderer has to employ 51 numbers of workmen being annexured heads to be provided by the company who are presently deployed for boiler repairs shall be deployed for the job under the proposed contract. The petitioners are 63 such contractors' labour other than those 51 annexured heads working under the present contract who seek to represent 119 similarly such contract labour being engaged by the present contractor each of whom is holding gate-pass.
(2.) in this writ petition the petitioners claim that the said condition contained in paragraph 6(1)(f) should be modified to include the scheme for protection of the said 63 petitioners as well as 119 other contract labour represented by them and the respondents should be directed to modify the said clause in the tender so as to ensure continuation of the employment of the contractor's labour who are alleged to have been employed over a long period of time.
(3.) mr. Shaktinath mukherjee learned counsel for the petitioners contends that by reason of the contract labour (abolition and regulation) act, 1970 the contract labour is prohibited and they are to be absorbed in the establishment of the principal employer when the job is a perennial one. According to him, even if, there may not be specific law on this subject requiring absorption or employment of contract labour still, it is a social philosophy that has since been consistently propounded by the high courts and the apex court as is evident from the decisions cited by him. According to him articles 14 and 16 of the constitution of india confer jurisdiction on the courts to enforce social philosophy in consonance with the directive principles of state policy of the constitution of india. He had led this court through the facts of each decision of the apex court to which reference would be made at an appropriate stage and had contended that such philosophy is now settled principle of law and courts are not powerless when there is no specific law. The court has jurisdiction to do so. When it comes before the court that a particular group of people who were so long being protected suddenly become victims of non-protection or abolition of the protection, in that event, the court must rise to the occasion and reach appropriate justice in deserving cases in which the present one falls. He further contends that the petitioners are not asking for absorption but are only claiming that though the contractor may change but the petitioners may be permitted to continue as contractor's labour instead of engaging new hands particularly in view of their long experience in the job by reason of their considerable period of continuation in the job. He had also referred to the system followed by the railways in respect of the contracts relating to parcel handling or coal handling in which cases all tenders contain particular condition that the contractors are to employ the existing workforce who were engaged in the job for such period by the erstwhile contractors. He referred to one such tender form in order to point out therefrom that such a condition is included in such tenders by the railway authorities. He further contends that since 51 workers have already been given such protection, there is nothing to distinguish or reasonably classify the said 51 persons from the petitioners and the other 119 persons so as to deprive the protection of such condition included in the tender. According to him, the said 51 persons are also contract labour while the petitioners and the said 119 persons are also contract labour. At the same time he points out that the said 51 persons are also not sought to be absorbed; only they were sought to be retained as contract labour even in the tender document. When such a condition could be included in the tender document, then it cannot leave out the balance workforce without any reasonable classification. On these grounds he contends that the said clause 6(l)(f) should be directed to be modified to extend protection to the petitioners as well as the said 119 persons. Alternatively, he contends that even if the court feels otherwise in interfering with the said condition in the tender in that event, the court should protect the interest of the petitioners and the said 119 persons by making it clear that the successful tenderer shall employ these 63 petitioners and the 119 persons before employing anyone else from outside. According to him, this is in consonance with the principles laid down in the decisions cited by him which is now accepted principle of law propounded by the apex court consistently.;