- (1.) This misc. appeal U/s.30 of Workmen's Compensation Act has been filed claiming the following reliefs :- "That in view of the fact and grounds mentioned here in above the humble appellants respectfully prays as under :- 1. That by an appropriate order or direction the Order dated 20-06-2006 passed by The Commissioner, under (The) Workmen's Compensation Act, 1923 in case of Civil Misc. Application No.WC/NF/6/2001 (Sh. Lal Singh V/s Sh. Amarjeet Mehta and Ors.) may kindly be quashed and set aside."
(2.) Learned counsel for the appellants submits that J.V.V.N.L., an electricity company, was getting the poles erected through the contractor and the respondent workman was doing the erecting work under the contractor. Thus, the liability of the appellant company will not arise. Learned counsel for the appellants in this regard relies on the judgment of the Hon'ble Apex Court in the case of Dena Nath and others. vs. National Fertilisers Ltd. and others reported in AIR 1992 SC 457, relevant paras no.18 to 22 read as follows :- "18. The High Court of Kerala in the case of P. Karunakaran v. The Chief Commercial Superintendent and Others, (1988) 2 L.I.C. 1346 took the same view as was taken by the Punjab and Haryana High Court in the judgment under appeal. A similar view was expressed by the Delhi High Court in the case of New Delhi General Mazdoor Union v. Standing Conference of Public Enterprises (Scope) and Another, (1991) 2 Delhi Lawyer 189. 19. The reference to the Labour Court/Industrial Tribunal could be as to whether it is necessary for the Management to employ contract labour directly or indirectly; a question can as well be referred whether the engagement of contract labour was bona fide or it was a camouflage. In appropriate cases in industrial adjudication appropriate directions can be given to the principal employer in this behalf. This has been the subject matter of decisions by the Tribunals/Labour Courts and by this Court also. The case of Standard Vacuum Refining Co. v. Their Workmen 1960 2 LLJ 233 is a case on this point. It was a case where the workmen employed by an oil refinery demanded that the contract system of labour adopted by the company for cleaning mainte- nance of the refinery belonging to the company should be abolished and the said demand was referred for adjudication. It was found that the work for which the contract was given is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day and in these circumstances the Industrial Tribunal directed the Company to abolish the contract system of labour with effect from a particular date and to have the said work done through workmen engaged by itself. This direction was given in view of the fact that the work was of a permanent nature and the labour employed through contractor was receiving much less wages than the unskilled workmen of the company and they were not having any other benefits and amenities like provident fund, gratuity, bonus, privi- lege leave etc. On the award of the Industrial Tribunal the Supreme Court gave the finding that it was an industrial dispute as defined under Section 2(k) of the Industrial Disputes Act. In dealing with the question whether the Tribunal was justified in giving the directions for abolishing the contract system the Supreme Court noted that industrial adjudication generally does not encourage employment of contract labour in modern times and it would be necessary to examine the merits of the dispute apart from general consideration that contract labour should not be encouraged; and that in any case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions of the contract labour and the grievance made by the workmen thereof. On facts the Supreme Court observed (at p.952 of AIR 1960 SC 948) : "It may be accepted that the contractor in the present case is an independent person and the system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the work- men. But the fact that the contract in this case is a bona fide contract would not necessarily mean that it should not be touched by the industrial tribunals. If the contract had been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen. But because the contract in this case was bona fide, the tribunal has not ordered the company to take over the entire body of workmen. It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractor." The Supreme Court also noticed that the industrial dispute was confined to the cleaning maintenance of the plant; the work was incidental to manufacturing process and the work is necessary for it and was of a perennial nature which must be done every day and such work is generally done by workmen in the regular employment of the employer and there would be no difficulty in having regular workmen for this kind of work. It noted that the matter would be differ- ent if the work done was of an intermittent or temporary nature or was so little that it would not be possible to employ full-time workmen for the purpose. 20. It would be noticed that after the aforesaid observations of the Supreme Court in the case of Standard Vacuum Refining Company (supra) the Parliament while giving power to the appropriate Government to prohibit employment of contract labour in any process or operation or other work in any establishment gave the guidelines in clauses (a),(b),(c) and (d) of sub-section (2) of Section 10, as noticed earlier, and guidelines are practically based on the guidelines given to the Tribunals in the aforesaid case of Standard Vacuum Refining Coral)any by this court. The Act as can be seen from the scheme of the Act merely regulates the employment of contract labour in certain establishment and provides for its abolition in certain circumstances. The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act. 21. In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act vis- a-vis the type of establishment with which we are concerned. 22. It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any estab- lishment should be abolished or not. It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act. The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act. We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. We would not like to express any view on the decision of the Karnataka High Court or of the Gujarat High Court (supra) since these decisions are under challenge in this court, but we would place on record that we do not agree with the aforequoted observations of the Madras High Court about the effect of non-registration of.the principal employer or the non-licensing of the labour contractor nor with the view of Bombay High Court in the aforesaid case. We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same."
(3.) Learned counsel for the respondents have opposed the submissions.;