- (1.) ALL the three writ petitioners are commonly aggrieved against the notification issued in the Government Gazette dated October 4, 1985 published in Rajasthan Gazette on December 5, 1985 under Subsection (2) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act) in regard to the employment of contract labour in Mangalam Cement Ltd. , Associated Cement Company and Hindustan Sugar Mills Ltd. Udaipur Cement Works is a unit of Hindustan Sugar Mills. In the aforesaid notifications issued by the State Government, it was stated that in exercise of the powers conferred by Sub-section (i) of Section 10 of the Act, the State Government after considering the recommendations of the Rajasthan State Contract Labour Advisory Board had ordered that the employment of contract labour in the process of loading of filled cement bags in Wagons/trucks and in the work of sweeping/cleaning of spilled cement occurring in the process of packing and loading shall be prohibited with effect from expiry of three months period from the date of publication of the notification in the official Gazette. Similarly, some other notifications were issued in this regard, in regard to some other cement factories including J. K. Cement Factory. Being aggrieved against the said notification as published on December 5, 1985, the petitioners have filed the abovesaid writ petitions for the purpose of determining the common question, the facts are being taken from the writ petition No. 486/86 Associated Cement Company Ltd. v. State of Rajasthan. The notification reads as under : "g. S. R. 62--Whereas, the State Government has considered the factors laid down in Sub-section (2) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (Central Act 37 of 1970), in regard to the employment of contract labour in A. C. C. Cement Works, Lakheri in the process operation hereinafter mentioned : Now therefore, in exercise of the powers conferred by Subsection (i) of Section 10 of the said Act, the State Government after considering the recommendation of the Rajasthan State Contract Labour Advisory Board, hereby orders that the employment of contract labour in the following process operation in A. C. C. Cement works, Lakheri shall be prohibited with effect from expiry of three months period from the date of publication of the notification in the official Gazette:-- (i) in the process of loading of filled cement bags in Wagons/trucks, wherein loaders, chutemen and bag arranger cum supplier are employed (who supply empty gunny bags from stock kept on the packing floor to packing machines ). (ii) in the work of sweeping, cleaning of spilled cement occurring in the process of packing and loading (i. e. sweeping/cleaning in packing plant building, stacking and loading platforms ). "
(2.) APART from the various grounds of discrimination and other grounds, the common ground which is applicable to all the writ petitions as argued is that the State Government was not competent to issue such notification and had no authority what-so-ever; it is submitted that the said notification is void ab initio as it could only be issued by the appropriate Government as defined Under Section 2 (1) (a) of the Act and as such is not binding on any of the petitioners. To decide the points involved in the case, it is necessary to reproduce certain provisions of the Act, the definitions and various notifications, The relevant portion of Section 10 of the Act 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 benefit 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 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. Explanation : If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final. "
(3.) FROM the reading of Section 10 (1) of the Act, it is clear that the notification is to be issued by the appropriate Government after consultation with the Central Board as the case may be, State Board.;