- (1.) The undisputed facts are that the petitioners were employed through a contractor for the work of the Municipal Council, Kota (respondent No. 2) (for short respondent Council) since 1995 i.e. from the date of establishment of Ward No. 36. The respondent Council is an establishment and its main function is to keep the City of Kota clean apart from other functions. The petitioners contended that they performed the same work which is being performed by other permanent employees appointed by the Council and the only difference between these employees and the petitioners is that the petitioners have been employed through contractor whereas regular employees (sweepers) have been appointedby the Council directly. As regards the nature of job and working hours of the petitioners, there is no difference between them and regular employees of the Council and as such, the petitioners case is that they stand on similar footing and they are entitled for all benefits which are being given to the employees appointed by the Council. The petitioner shave also placed reliance upon the certificate (Annexure 1) showing that the work performance of the petitioners during 1995-99 in Ward No. 36, Vasant Vihar Balakund was foundsatisfactory.
(2.) Mr. Ravi Kasliwal, learned counsel for the petitioners placed reliance upon the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as "the Act") which provides 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 it is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation 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." Section 2(e) of the Act runs as under: (e) "establishment" means- (i) any office or department of the Government or a local authority, or (ii) any place where any industry, trade, business, manufacture or occupation is carried on;
(3.) It has been contended by the learned counsel for the petitioners that as per the petitioners' knowledge the Council has not been notified under the provisions of Section 10 of the Act as an establishment and as such no work of Council can be executed by engaging contract labour. It was further contended that the Council had engaged the petitioners through contractor who in turn had appointed the petitioners to carry on the work of the Council and it is the Council which is making the payment as regards the wages through the contractor meaning thereby that the petitioners are working indirectly under the control of Council. As such, the petitioners although were engaged through the contractor for keeping the city clean, but in fact, they are the employees of respondent Council and, therefore, there can be no justification to treat the petitioners daily wagers as compared to the workers directly appointed by the Council and they had been working under the direct control of the Council looking to the nature of their duties qua the regular employees appointed by the Council directly. Hence, right to regular appointment cannot be denied to the petitioners. It was further contended that the petitioners had made several representations in the past to the Council to give them regular pay scales but, no attention was paid to their representations and as such, they were left with no other efficacious remedy except to invoke the jurisdiction of this Court by way of this writ petition.;