M. B. SHARMA, J. - (1.) THIS is a writ petition in which a reference made under Section 10 of the Industrial Disputes Act, 1947 (for short, ID Act) has been challenged by the petitioner inter alia on the ground that the reference could not have been made and it is without jurisdiction because after passing the Contract Labour (Regulation And Abolition Act, 1970 (for short,the Act), the state Government ceased to have any power to make a reference under the ID Act and both the legislations i. e. Act and the ID Act are central legislations and in view of the fact that the Act being special Act will prevail over the general Act i. e. I. D. Act.
(2.) THE writ petition is on behalf of one of the units of Delhi Cloth and General Mills, the petitioner and the said unit is M/s. Shri Ram XXX Chemical Industries, Kota. It is the case of the petitioner that in order to carry out its operation efficiently, the company employs amongst others, independant con-tractors to do Pertain jobs most of which are intermittent in nature such as loading and unloading of raw materials received and loading of finished products sent outside the petitioner's factories. THE workers employed by the contractor are completely under the control and supervision of such contractors. THE management of the petitioners has neither any control over the workers * employed by the contractors nor is it entitled to give any direction to the said workers for carrying out their jobs. According to the petitioner, as a matter of fact there is no relationship of employer and employee between the petitioner and the workers employed by the contractors and there is no privity of contract amongst them. THE petitioner's establishment is registered under Section 7 of the Act vide registration No. 10/71. Most of the contractors in relation to the petitioner's establishment who have undertaken to do the work assigned by the establishment are licensed under Section 12 of the Act. According to the petitioner, a perusal of the subject-matter of reference which translated into English reads as under: Whether the action of Management of Shri Ram Chemical Industries, Kota is not acceding to the following demands raised by the General Secretary, SCI Employees Union, Kota, is legal and valid? If not to what relief the workmen are entitled? (i) All workers who are working with contractors on permanent jobs should made permanent and recruitment from outside be stopped. (ii) In base of need against permanent vacancy contractors labour be given preference for recrement" Will shoe that the reference is vague and indeterminable in so far as details of details of workers working with contractors particularly on 'permanent' jobs have not been given, the name of the contractors whose workmen's grievances are desired to be adjudicated upon have not been specified. THE reference provides for adjudication of matters viz. . recruitment which is fundamentally and undisputedly a management function and cannot be a subject matter of Industrial dispute and adjudication by the industrial Tribunal. It is also the case of the petitioners that so far as amendment made by the State legislature and ID Act are concerned, in Section 2 (g) (iii) and in Section 2 (s) are concerned, they were made in the year 1958 which received the assent of the President on August 12, 1958 and the Act came into force in 1970 and therefore they will not apply. In the return filed on behalf of the respondent No. 1, it has been said that the Act does not restrict the powers of the State Government regarding reference for adjudication under Sec. 10 of the ID Act and it does not affect the definitions of workmen, employer given under the ID Act as amended by the Rajasthan Amendment Act of 1958. So far as the cases referred in the writ petition are concerned, they are not directly applicable to the present case as the subject-matter of dispute referred by the Sate Government relate to the claim of the workmen on the posts held by them. THE Act does no provide any remedy for the settlement of such industrial demands. In other words, the reference is within the jurisdiction of the State Government THE petitioner has also filed the rejoinder to the reply of the State Government. The first question which arises for determination in the present case is what is the nature of the reference made to the Industrial Tribunal and whether it is for the abolition of contract labour or for any other dispute? In the earlier part of this order while giving facts of the case, the dispute referred to the Industrial Tribunal has been extracted and at the cost of the repetition it may be said that two demands were made by the Union of the workmen which were not accepted by the management and the two demands were:- " (i) All the workers who are working with contractors on permanent jobs should be made permanent and recruitment from out side be stopped. (ii) In case of need against permanent vacancy contractors labour be given preference for recruitment. The question arises whether such a reference could be made by the State Government to the Industrial Tribunal for adjudication? The Act is the Central legislation like the ID Act, but it is a special enactment so far as contract labour is concerned. There is no dispute between the parties for the present that the Act is applicable to the of the petitioner. A look at the terms of the reference will show that it did not relate to any section or department of the petitioner's unit contract labour is being employed. It does not specify the number of contract labour which is said to have been employed and should be permanently absorbed on regular basis in the various departments where they might be working on behalf of the contractor. There can be no dispute that in the above terms of the reference is also included a reference of the dispute that in future the contract labour be abolished. Even the list of such of the persons who might be working as contract labour has not been annexed. The dispute to me appears to be vague and on that account also it will be difficult for the Industrial Tribunal to adjudicate the same if the Tribunal would have had the jurisdiction in the matter. A look at para No. 2 of the reply filed on behalf of the State will show that it is admitted that the petitioners employs workers through contractor as per the provisions contained in the Act. But a reference has been made to Section 2 (g) (iii) of the ID Act as amended by the Rajasthan Industrial Disputes (Rajasthan Amendment) Act, 1958 a reference to which shall be made hereinafter. There is no dispute that the contract labour was employed by the petitioners. 'employer' has been defined in Section 2 (g) of the ID Act and the said Act was amended by the Rajasthan Amendment Act and clause (iii) was added in Section 2 (g) of (iii) of Section 2 (g) of the ID Act reads as under:- 'employer' means. . . . . . . . . . . . . . . . " (iii) Where the owner of any industry in course of or for the purpose of conducting in the industry contract with the person for the execution by or under the contractor of the whole or any part or any work which is Corresponding Section 2 (s) which contains the definition of 'workman' was also amended and in the definition of 'workman' any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical operational, clerical or supervisory work for hire or rewards, is also included. The aforesaid amendment was made by the Rajasthan Amendment Act, 1958 and it came into force w. e. f. July 1, 1960. It can therefore, be said that in the ID Act as amended by the Rajasthan Amendment Act 1958 within the definition of workman even a person employed by the contract in relation to execution of his work shall be included. But in my opinion that will not make any difference. The ID Act was amended as aforesaid w. e. f. July 1,1960 by the Rajasthan Amendment Act, 1958 and the Act is Central legislation which was enacted in the year 1970 and came into force on February 10, 1971. The ID Act is general Act whereas the Act is special Act enacted in so far as the purpose of Contract labour is concerned. A look at Article 254 of the Constitution of India, more so, its clause (i) and proviso to sub- clause (2) will show that it can be said that the Act being a latter legislation in the Parliament, it shall prevail over the ID Act-so far as regelating, recruitment and other conditions of the contract labour is concerned. In the case of Management Burmah Shell Oil Storage and Distribution Co. of India Ltd. Madras V. The Industrial Tribunal, Andhra Pradesh and others, (1) a Division Bench of the Andhra Pradesh High Court said that the Act covers the entire subject of contract labour and provides protection to the labour by providing suitable enactment which applies to all industries and all workmen coming within its field and very industrial dispute within the meaning of the Act including previously the dispute relating to contract labour could be referred for adjudication under the provisions of the ID Act. Out of generality of these cases falling under the ID Act takes out case of contract labour and legislate exclusively thereon. The Act therefore is a special enactment applicable only to the subject of contract labour. Whether employed by a contractor or they work in an establishment. Every dispute therefore relating to contract labour must have to be tackled only under the provisions of ID Act and not under the general law. The Act therefore takes away the power of the Government which it enjoyed previously under Sec. 10 of the ID Act to refer disputes relating to contract labour to the Industrial Tribunals Instead the Government can now, if they so desire apply the provisions of the Act to such an establishment or prohibit the contract labour in any process of such establishment. I will respectively agree with the aforesaid view and I am of the opinion that the Act being a special Act in so far as contract labour is concerned, it was applied to contract labour and any dispute in respect of them has to be resolved under the provisions of the act and not under the ID Act. The Supreme Court in the case of Vegoils (P) Ltd. vs. The workmen (2) dealt with the provisions of the ID Act as well as the Act. In that case the dispute which was referred to the industrial Tribunal was in respect of contract labour in respect of seeds godown and solvent extraction plants. The Tribunal had given an award and a direction had been given to the management not to engage any labour through contractor for the work of loading and unleading. The Supreme Court took a view that the appropriate Government has power to prohibit employment of contract labour in any process, operation or other work in any establishment, but before it could do so by notification, the State Government was bound to have regard to the conditions of work and benefit provided for the contract labour in the establishment and the decision of the Government that the work is of perennial nature shall be final. The Supreme Court said that :- "the appropriate Government when taking action under Section 10 will have an over all picture of the industries carrying on similar activities and decide whether contract labour is to be abolished in respect any of the activities of that industry. Therefore, it is reasonable to conclude that the jurisdiction to decide about the abolition of contract labour or to put it differently to prohibit the employment of contract labour is now to be done in accordance with sec. 10. Therefore it is proper that the question whether the contract labour regarding loading and unloading in the industry of the appellant is to be abolished or not is left to be dealt with by the appropriate Government under the Act, If it becomes necessary, On this ground, we are of the opinion, that the direction of the Industrial Tribunal in this regard will have to beset aside". The court further said that after coming into force the Act, even if the award might have been made, jurisdiction to decide the matters connected with prohibition of contract labour is now vested in the appropriate Government which can do so after following the procedure and in accordance with the provisions of the Act, and that Industrial Tribunal in the circumstances will have no jurisdiction, though its award is dated November 29,1970 to give a direction in that respect which becomes enforceable after the date of the coming into force of the Act. The Supreme Court to upheld a part of the award of the Industrial Tribunal and the case had gone to the Supreme Court after dispute had been adjudicated by the Tribunal. In the instant case before the dispute was adjudicated the petitioner has come to this Court but in the present case there does not appear to be any dispute between the parties that the contract labour was employed under the provisions of the act and the Contractor is registered one and has licence and a perusal of para No. 2 of the writ petition will show that the petitioner has come out with a specific case that most of the work is intermittent in nature such as loading and unloading of raw materials received and loading of finished products sent outside the petitioner's factory. I will not like to go into the dispute but I have already said that a look at the terms of reference will show that the reference is vague and it does not specify the section or department of the petitioner's industry or number of contractor employees. At any rate, if there are any sections or departments to which the provisions of the Act applies, the management employes the persons through contractor and takes work from the contract labour to the extent the jurisdiction of the Industrial Tribunal will be barred, but so far as the dispute referred is concerned, I have already said that the subject-matter is only of abolition of contract labour on which the Industrial Tribunal has no jurisdiction after coming into force the Act. I am of the opinion that the State Government has no jurisdiction to make a reference and even the Industrial Tribunal has no Jurisdiction to adjudicate upon it. Though it is not the practice of the court generally to entertain the writ petitions against the reference unless the reference has been adjudicated or is against order made by the Tribunal, but if the jurisdiction of the Tribunal is challenged and in his case the legality of the reference has been challenged on the basis of the provisions of the Act and the court comes to the conclusion that the Tribunal has no jurisdiction to adjudicate the dispute and the State Government has exercise of the extra-ordinary writ jurisdiction, can quash the reference. Consequently, I hereby allow this writ petition and hold that the disputes which have been referred to the Industrial Tribunal by the state Government are the disputes covered under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and can only be resolved under the provisions of the special Act and the reference under the ID Act is not maintainable and is without jurisdiction. The reference made by the State Government under its No. l (l) (550) Lab/79 dated March 5, 1980 to the Industrial Tribunal Kota is hereby quashed. The Government will be free to raise the dispute before the proper forum, if so advised. Costs made easy. .;