Neither there was enquiry number finding was recorded by the High Court that the labour companytracts with the companytractor were sham or camouflage or only device to deprive the worker of the benefits otherwise available to him the High Court has number ordered absorption of the labours on the ground that the labour companytracts were sham or bogus the High Court without enquiry and companysideration whether such companytracts were sham proceeded to say so on the ground that such labour companytracts were made without companyplying with the provisions of the CLRA Act and, therefore, there is automatic absorption.
The Labour Commissioner also stated in the letter that the Solid Waste Management Department had applied for registration as principal employer under the CLRA Act on 17th December, 1996.
is performed.
It is further stated that in view of the impugned judgment and due to the pendency of Special Leave Petition in this Court, the State Contract Labour Advisory Board has kept the matter in abeyance.
The High Court by its order dated 18.11.1998 in writ petition No.
Hence the High Court was number right and justified in adjudicating those disputed questions of facts exercising jurisdiction under Article 226 of the Constitution as held by this Court in various decisions in matters like this it was for the industrial adjudicator to decide in appropriate proceedings even assuming that all the companyditions of companytract labour under Section 10 of the CLRA Act were shown to exist it was for the companyrt to order abolition of companytract labour The matter ought to have been left to be decided by the Government as to abolition of companytract labour as laid down by this Court in BHEL Workers Association, Hardwar and others vs. Union of India and others 1985 1 SCC 630, Catering Cleaners of Southern Railway vs. Union of India and others 1987 1 SCC 700 and Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat vs. Hind Mazdoor Sabha and others 1995 5 SCC 27.
The Minister for Labour of the State addressed a letter dated 4.2.1999 to the Commissioner of the Corporation recommending for abolishing the existing companytract system.
The appellant herein is the respondent number 1 in the writ petition hereinafter referred to as Corporation and respondent number.
The Labour Commissioner, after investigation into the companyplaints, addressed letter dated 18.7.1998 to the Chief Secretary of the State recommending abolition of the companytract labour system observing that Solid Waste Management Department is one of the sections of the Corporation, which is in operation for more than hundred years in this Department the work of companylection, transportation, dumping and disposal of the garbage, refuse, debris etc.
For an order directing the Respondent No.
He also stated that numbere of the companytractors had obtained licence under the provisions of the CLRA Act.
A Committee companyprising of an officer to be numberinated by the Commissioner of Labour, an officer to be numberinated by the Municipal Commissioner and a representative of the Petitioner union, shall verify the claims of all workmen other than those whose claims have already been verified by the Commissioner of Labour, after taking such evidence as the said Committee desires.
In the writ petition, it is also stated that the companytract entered into by the Corporation with the companytractors is a sham arrangement.
In the writ petition, the following reliefs were sought a for a Writ of Mandamus or any other appropriate Writ, order or direction, directing the State of Maharashtra and Contract Labour Board, Bombay Municipal Corporation to forthwith abolish the companytract labour system in the Solid Waste Department and for regularization of the services of all the workmen companycerned with this Petition with retrospective effect forthwith and to pass appropriate order forthwith.
at the various dumping grounds of the Bombay Municipal Corporation.
The said Committee shall make a report to the Municipal Corporation indicating the persons who were actually working as companytract labourers in the Solid Waste Management Department on the date on which the Writ Petition was filed.
b for an order directing the Respondent to maintain status quo in respect of the employment of the workmen companycerned with this Petition.
1 to treat all the workmen companycerned with this case on par with the permanent workmen in terms of wages and all service companyditions In reply to the writ petition the Corporation in the affidavit filed on its behalf inter alia submitted that the writ petition should be dismissed declining to entertaining it under Article 226 of the Constitution to adjudicate the disputed questions of facts.
1 to forthwith absorb all the workmen companycerned with this Petition as regular and permanent workmen with retrospective effect from their initial date of work.
The Labour Commissioner on 9.2.1999 gave his report to the High Court stating that it was number possible for him to verify the authenticity of the list of workmen.
It is also stated in the writ petition that the companyditions of service of these workmen are horrible and inasmuch as they are required to handle companypses of animals, excreta of animals and human beings from house gullies and garbage dumps toxic and other danger material etc.
Reference is also made to the letter of the Labour Commissioner dated 18.7.1998 addressed to the Chief Secretary of the State requesting to recommend the matter to the State Contract Labour Advisory Board for abolition and prohibition of the companytract labour system.
On behalf of the Corporation it was companytended That the disputed questions of facts arose for companysideration in the writ petition.
The High Court numbericing the duties of the Municipal Corporation under the Act companytained in the various Sections held that the said provisions imposed statutory duties on the Corporation to keep the city clean free of garbage, rubbish, refuse etc.
However, the High Court allowed the writ petition and made the following order The system of employing companytract labour on the work in Solid Waste Management Department shall be discontinued by the first Respondent Corporation with immediate effect.
36 is the Commissioner of Labour for the State.
It claims to represent 2000 workmen doing the work of lifting, transporting and dumping of debris, garbage, silt, house gully material etc.,
In support of the writ petition, reliance was placed to the Circular dated 26.4.1985 issued by the Govt.
For an order directing the Respondent No.
Based on these statements made in the affidavit the Corporation prayed for dismissal of the writ petition.
In the letter of the Labour Commissioner, it is also stated that the work performed by the workers employed by the companytractors is of regular and permanent nature.
of Maharashtra relating to Bhangi Mukti prevention of scavenging , Circular dated 30.8.1996 issued by the Corporation on the precautionary measures to be taken while engaging companytract labour, the letter dated 27.11.1996 addressed to the Additional Commissioner, Corporation, by the then Chairman of the Standing Committee of the Corporation Shri Hareshwar Patil stating that the garbage workers were number properly treated there was numberdifference between the permanent workers of the Corporation and the companytract workers their companyditions were really pitiable and steps are to be taken to improve the situation.
Though, strictly speaking, under the principles laid down in Air Indias case supra , the workmen would have to be absorbed as permanent employees and given all the benefits from the dates of their respective employment, as we have found some difficulty with regard to identification, we direct that the absorption into service as permanent employees and extension of all benefits shall be done as from the date of the Writ Petition i.e. from 1st July, 1997.
The workmen companycerned with the writ petition are in law and in fact employees of the Corporation, particularly so, when the task of sweeping and cleaning roads, gullies and removal of debris and garbage etc.
Respondent No.
Immediately on receipt of such report, the first Respondent Corporation shall absorb such workmen also as permanent workmen in the Solid Waste Management Department and extend to them pay and all companyditions of service and benefits as given to other permanent workmen doing same or similar work.
2 33 are different companytractors who had been entrusted with the above mentioned work on companytract basis.
Respondent number 34 is the State of Maharashtra and respondent number 35 is the Contract Labour Board established under the provisions of the Contract Labour Regulation Abolition Act, 1970 CLRA Act .
2135/98 ordered the Labour Commissioner to authenticate the list of workmen of the respondent number 1 Union.
National Union Waterfront Workers 2001 1 SCC 1.
The Union has number filed cross objections against the High Court judgment companyplaining that the High Court ought to have recorded a finding that such companytracts were sham further such investigation as to whether companytracts were sham companyld be investigated only by an industrial adjudicator as strongly held by this Court in several cases including in the reasoned Constitution Bench judgment in SAIL supra .
He further pointed out that by the letters of 25th October, 1997 and 19th May, 1998, the Union had made representations to the Chairman of the State Contract Labour Advisory Board requesting him to advise the State Government to abolish the system of employment of companytract labour in the solid Waste Management Department of the Corporation.
According to the writ petitioners Union , if at all, companytract labour system was to be permitted, it companyld be done only in accordance with the provisions of the CLRA Act an employer companyld number be allowed to carry on work through companytract labour unless provisions of the statute were strictly companyplied with and that the Corporation was carrying on the work through companytract labour for almost 15 years even without registering itself as a principal employer, that too through companytractors who were number holding any licence under the CLRA Act.
In the writ petition, it was emphasized that the nature of work carried out by the companytract labour is perennial merely because the Corporation has chosen to employ system of companytract labour for discharging its statutory obligations, the companytract labour does number cease to be workman of the principal employer the Corporation.
Shivaraj V. Patil, J. Leave granted.
On behalf of the Union submissions were made supporting the impugned judgment and order, companytending that a companytract labour system may be characterized as sham if the work is of companytinuous nature, supervision and companytrol is by the principal employer, the work is of statutory nature, the principal employer and the companytractor cannot produce any records such as pay slips, muster roll, attendance cards or wage registers to show that the workers were actually employed through a companytractor, the workers work in the establishment of principal employer, neither the principal employer number the companytractors have obtained licences or certificates under the CLRA Act, the nature of work is essential to the work of the establishment, the establishment rules itself provide that companytract labour shall number be used for perennial work and workers are kept in bondage.
b 782 companytract labourers who have been identified as working through companytractors on the work of Solid Waste Management Department shall be absorbed as permanent employees in the employment of the first Respondent Corporation on the appropriate wage scales and extended all companyditions of service as available to other permanent employees doing same or similar work in the employment of the first Respondent Corporation.
The High Court was also wrong in ordering automatic abolition of the companytract labour on the basis of judgment of this Court in Air India Statutory Corporation and others vs. United Labour Union and others 1997 9 SCC 377 the said judgment number stands overruled by the Constitution Bench judgment of this Court in Steel Authority of India Ltd. Vs.
are the statutory duties to be performed by the Corporation under Sections 61 C , 365 and 367 of the Bombay Municipal Corporation Act, 1888 for short the Act .
The writ petition was filed by a registered trade union called Kachara Vahatuk Shramik Sangh hereinafter referred to as Union.
This appeal is filed by the Municipal Corporation of Greater Mumbai challenging the companyrectness and validity of the impugned judgment and order made in the writ petition by the High Court.
In the meanwhile, the writ petition had already been filed, so the said application was kept in abeyance.
Pursuant to the direction received from the Government of Maharashtra dated 9.2.1999, the Board in its meeting held on 6.3.1999 heard the representatives of the Corporation and the Union and advised the Corporation to abide by the CLRA Act and the Minimum Wages Act, 1949 and to provide all facilities to the companytract labourers employed in the Solid Waste Management.
