Allowed

M/S.Pawan Hans Ltd. v. the Union of India and Ors.

Bombay HC20 Aug 2009WP/1673/1998

Case brief

AI extract

What is this about?

The High Court of Bombay allowed a writ petition challenging a 1997 Government notification prohibiting contract labour at Pawan Hans Ltd. The Court held the notification invalid for non-compliance with Section 10 of the Contract Labour Act, specifically the failure to consider mandatory factors regarding the nature of works, distinguishing the matter from a prior Supreme Court prosecution that ap

What did the court decide?

The notification dated 4th July 1997 is set aside, and the petition is allowed. Rule is made absolute.

M/S.Pawan Hans Ltd. Vs the Union of… — Constitutional and Fundamental Rights | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1673 OF 1998

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Pawan Hans Ltd....Petitioners
v/s
Union of India and others ...Respondents

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Mr Abhay Kulkarni for Petitioners.
Mr Y.R. Mishra for Respondents.

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CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ.

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DATE : 20TH AUGUST 2009.

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P.C. :-

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1]By this petition, the petitioner, which is

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a Government Company, challenges the Notification

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dated 4th July 1997 issued by the Government of

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India in exercise of its power under sub-section (1)

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of section 10 of the Contract Labour (Regulation and
Abolition) Act 1970 (hereinafter referred to as the

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Act for the sake of brevity). By that Notification,

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the Central Government has prohibited the employment
of contract labour in the works which are mentioned

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in the Notification on the establishment of
petitioner � Pawan Hans Ltd. With effect from the
date of publication of the Notification. The works
include � 1) Canteen Services; 2) House Keeping; 3)
Electrical Maintenance; 4) Plumbing; 5) Gardening

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and Horticulture and 6) Pump Operation. The learned
counsel appearing for petitioners attacked the
validity of the Notification on two grounds.

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Firstly, according to him, the Central Government

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could not have taken into consideration the opinion
expressed in favour of issuance of the Notification

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by a Committee constituted by the Central Advisory

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Contract Labour Board because when that Committee

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was constituted, the Central Government was not the

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appropriate Government in relation to the

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petitioners. The second contention raised is that
the Notification is contrary to the law laid down

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by the Supreme Court in its judgment in the case of
Steel Authority of India Ltd. and ors. v/s National

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Union Water Front Workers and ors., reported in
2001 III CLR 349. We have heard the learned counsel
appearing for respondents.

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challenges raised to the Notification, in our

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opinion, it is necessary to see the provisions of

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section 10 of the said Act. It reads as under :-

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�10. Prohibition of employment of contract
labour :-

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(1)Notwithstanding anything contained in
this Act (but, subject to the provisions of
clause (c) of sub-section (5) of section 1)

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the appropriate Government may, after

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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.

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(2) Before issuing any notification under

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sub-section (1) in relation to an
establishment, the appropriate Government

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shall have regard to the conditions of work
and benefits provided for the contract
labour in that establishment and other
relevant factors, such as -

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(a)whether the process, operation or other

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work is incidental to, or necessary for the
industry, trade, business, manufacture or
occupation that is carried on in the
establishment;

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(b) whether it is of perennial nature, that
is to say, it is of sufficient duration

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having regard to the nature of industry,

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trade, business, manufacture or occupation
carried on in that establishment;

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(c) whether it is done ordinarily through

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regular workmen in that establishment or an
establishment similar thereto;

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(d)whether it is sufficient to employ

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considerable number of whole-time workmen.�

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It is clear from the provisions of sub-

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section (1) of section 10 that the appropriate
Government can issue a Notification under that
provision prohibiting employment of contract labour

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in any establishment after consultation with the

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Central Board or the State Board. So far as this

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aspect of the matter is concerned, in our opinion,

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in order to successfully contend that the process

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of consultation with the Central Board was not

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effective, the petitioners will have to disclose in

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the petition the date on which reference was made

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by the Central Government to the Board seeking its
opinion in the matter of abolition of contract

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labour in relation to the establishment of the

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petitioners. So far as the present petition is
concerned, the petitioners have placed on record

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the material which shows that the Board constituted

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a Committee in relation to abolition of contract
labour on the establishment of the petitioners
pursuant to the directions issued by this Court and

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that Committee submitted its report in support of

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issuance of Notification. We do not have on record

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the date as to when the Central Government made
reference to the Board seeking its opinion. We

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also do not have on record the date when the
opinion was given by the Board to the Central
Government. In our opinion, if the reference was

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made by the Central Government after it became

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appropriate Government in relation to the

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petitioners and even if it is assumed that while
giving its advice the Board had taken into
consideration the opinion submitted by the

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Committee constituted on the basis of directions

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issued by this Court, then also it cannot be said

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that the consultation with the Board was not

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effective. In our opinion, therefore, there is no
substance in the first submission made on behalf of
the petitioners.

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3]So far as the second submission made by the

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learned counsel appearing for petitioners is
concerned, it is necessary first to refer to the
Notification. The Notification dated 4th July 1997
reads as under :-

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�No.U-23013/12/93-LW. In exercise of the

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power conferred by sub-section (1) of

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section 10 of the Contract Labour

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(Regulation and Abolition) Act 1970 (37 of
1970), the Central Government, after
consultation with the Central Advisory

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Contract Labour Board, hereby prohibits the

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employment of contract labour in the
following works in the establishment of M/s

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Pawan Hands Ltd., Mumbai with effect from

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the date of publication of this
notification in the Official Gazette,

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namely :-

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1.Canteen Services

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2.House Keeping

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3.Electrical Maintenance

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4.Plumbing

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5.Gardening and Horticulture

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6.Pump Operation�

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Perusal of that Notification shows that it

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prohibits the employment of contract labour in
certain works on the establishment of the
petitioners. It also shows that the Notification
has been issued by the Central Government after
consulting the Board. The Constitution Bench of the
Supreme Court has considered the provisions of

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section 10 of the said Act in its judgment in the

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case of Steel Authority of India Ltd. (supra). The
observations made by the Supreme Court in paragraphs
51 and 52 of that judgment are relevant. They read
as under :-

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�establishment� in section 10, the position
that emerges is that before issuing
notification under sub-section (1) an
appropriate Government is required to (i)
consult the Central Board / State Board;
(ii) consider the conditions of work and
benefits provided for the contract labour
and (iii) take note of the factors such as
mentioned in clauses (a) to (d) of sub-
section (2) of section 10, referred to
above, with reference to any office or
department of the Government or local
authority or any place where any industry,
trade, business, manufacture or occupation
is carried on. These being the requirement
of section 10 of the Act, we shall examine
whether the impugned notification fulfills
these essentials.

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52.The impugned notification issued by the

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Central Government on December 9, 1976,
reads as under :-

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�S.O. 779(E) 8/9.12.76 in exercise of

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the power conferred by sub-section (1)

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of section 10 of the Contract Labour
(Regulation and Abolition) Act 1970 (37

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of 1970) the Central Government after

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consultation with the Central Advisory
Contract Labour Board hereby prohibits
employment of contract labour on and

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from the 1st March 1977, for sweeping,
cleaning, dusting and watching of
buildings owned or occupied by the
establishment in respect of which the
appropriate Government under the said
Act is the Central Government.

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Provided that this notification shall
not only apply to the outside cleaning

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and other maintenance operations of
multi-storeyed buildings where such
cleaning or maintenance operations
cannot be carried out except with
specialised experience.�

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A glance through the said notification,

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makes it manifest that with effect from
March 1, 1977, it prohibits employment of
contract labour for sweeping, cleaning,

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dusting and watching of buildings, owned or
occupied by establishment in respect of
which the appropriate Government under the
said Act is the Central Government. This

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clearly indicates that the Central
Government had not adverted to any of the
essentials, referred to above, except the
requirement of consultation with the
Central Advisory Board. Consideration of

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the factors mentioned above has to be in

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respect of each establishment, whether
individually or collectively, in respect of

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which notification under sub-section (1) of
section 10 is proposed to be issued. The
impugned notification apart from being an

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omnibus notification does not reveal
compliance of sub-section (2) of section
10. This is ex facie contrary to the

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postulates of section 10 of the Act.

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Besides it also exhibits non-application of

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mind by the Central Government. We are,
therefore, unable to sustain the said

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impugned notification dated December 9,
1976 issued by the Central Government.�

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These observations were made by the Supreme

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Court while considering the point whether the

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Notification dated 9th December 1996 issued by the
Central Government under section 10(1) of the said
Act is valid and applies to all Central Government
Companies.

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Perusal of paragraphs 51 and 52 from the

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judgment of the Supreme Court in the case of Steel
Authority of India shows that apart from consulting
the Board, the Central Government has to consider
the conditions of work and benefits provided for

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the contract labour. It has also to take note of

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the factors which are mentioned in clauses (a) to
(d) of sub-section (1) of section 10 of the said

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Act. The Supreme Court quotes the Notification

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dated 9th December 1976 verbatim and then the

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Supreme Court has observed that the Notification

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indicates that the Central Government has not

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adverted any of the essentials referred to by the

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Supreme Court in paragraph 51 except the
requirement of consultation with the Board. The
Supreme Court has observed that the factors
mentioned in paragraph 51 of the judgment have to
be applied in respect of each establishment,
whether individually or collectively, in respect of
which Notification under sub-section (1) of section
10 of the said Act is proposed to be issued. Thus,
the Supreme Court has held that the Notification

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on the face of it must indicate that the factors
mentioned in paragraph 51 of its judgment have been
considered by the appropriate Government while
issuing the Notification. In the present case
also, the Notification dated 4th July 1997 on the

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face of it only shows that the Central Government,
before issuing the Notification, had consulted the
Board, other requirements mentioned in paragraph 51

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of the Supreme Court judgment for a valid

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Notification have not been complied with. Then we
find that the Supreme Court in paragraph 121(2)(b)
has observed thus :-

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�121(2)(b).inasmuch as the impugned
notification issued by the Central
Government on December 9, 1976 does not
satisfy the aforesaid requirements of
section 10, it is quashed but we do so
prospectively i.e. From the date of this
judgment and subject to the clarification
that on the basis of this judgment no order
passed or no action taken giving effect to
the said notification on or before the date

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of this judgment, shall be called in
question in any tribunal or court including
a High Court if it has otherwise attained
finality and/or it has been implemented.�

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The Supreme Court has set aside the
Notification dated 9th December 1976 for non-

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compliance of the requirements mentioned in section
10(1) of the said Act, but it did it prospectively.

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Though from the judgment of the Supreme Court it

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appears that no reasons have been given by the

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Supreme Court for applying the doctrine of

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prospective ruling, it appears that the Supreme

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Court might have applied the doctrine of

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prospective ruling because as a result of the

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judgment of the Supreme Court in the Air India�s

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case, which is referred to in the judgment of the
Steel Authority of India Ltd. (supra), a number of
contract labours had been absorbed by the Air
India. Firstly, the doctrine of prospective ruling

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is not available to us and secondly, in the

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present case, because of the operation of the

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interim order, none of the contract labour has been

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absorbed in the services of the petitioners. In

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the result therefore, the present petition succeeds

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and is allowed, the Notification dated 4th July 1997

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impugned in the petition is set aside. Rule is
made absolute accordingly with no order as to
costs.

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Parties to act on the copy of this order

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duly authenticated by the Associate / Private
Secretary of this Court.

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Certified copy expedited.

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( JUSTICE D.K. DESHMUKH )

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( JUSTICE R.G. KETKAR )

M/S.Pawan Hans Ltd. v. the Union of India and Ors.

Case brief

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What did the court decide?

M/S.Pawan Hans Ltd. v. the Union of India and Ors.

Case brief

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