Civil No 2 123 of 1982
Under Article 32 of the Constitution of India
184 RK Garg and HK Puri for the Petitioners
DP Mukherjee GS Chatterjee Ms CK Sucharita Ms A Subhashini and SR Grover for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
The Parliament enacted the hereinafter called the Act with the object of abolition of contract labour in respect of such categories as may be notified by the Appropriate Government in the light of criteria laid down in the Act and also regulating the service conditions of contract labour where abolition is not possible
Section 10 of the Act which is relevant is as under 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 noti fication 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 establish ment 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 estab lishment b Whether it is of perennial nature that is to say it is of sufficient duration having regard to the nature of industry 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 185 d Whether it is sufficient to employ consid erable 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 appro priate Government thereon shall be final
 In exercise of the powers under Section 101 of the Act the Government of West Bengal issued a notification dated February 9 1980 prohibiting the employment of con tract labour in 16 departments covering 65 jobs in the establishments of Ms Indian Iron and Steel Co Ltd hereinafter called the company situated at Burnpur in the State of West Bengal
The list of the departments and the jobs is given in the schedule attached to the notification and paragraph 9 therein relating to the Brick Department is as under Cleaning and stacking and other allied jobs except loading and unloading of bricks from wagons and trucks
 It is thus obvious that the job of loading and unloading of bricks from wagons and trucks in the Brick Department has been specifically excluded from the beneficial purview of the notification
The said action of the State Government has been challenged in this writ petition under Article 32 of the Constitution of India by the affected workmen on the ground that the petitioners have been subjected to hostile discrimination so much so that the workmen doing the same job in other departments and allied jobs in the same depart ment have been rescued from the archaic system of contract labour whereas the petitioners have been singled out and left to be grinded under the pernicious effect of this primitive system
The action according to the petitioners is arbitrary discriminatory and is violative of Article 14 of the Constitution of India
Mr RK Garg learned counsel appearing for the peti tioners has contended that the job of loading and unloading is not peculiar to the Brick Department rather such jobs are being operated in the stores iron and steel Traffic steel and Coke ovens Departments
The benefit of notifica tion dated February 9 1980 has been extended to the loaders in all these departments
He further argued that the work of stacking is directly dependent on the loading and unloading of bricks
The two jobs according to him are allied and incidental and as such the workmen holding these jobs cannot be treated differently
186 The learned counsel for the respondents on the other hand has argued that the job of loading and unloading of bricks in the Brick Department is not of perennial nature the supply of bricks is intermitent depending upon the requirement availability of bricks as also the availability of the wagons and trucks
It is further submitted that the decision of the appropriate Government to the effect that the job is not of perennial nature is final under the Act
It is surprising that more than forty years after the independence the practice of employing labour through con tractors by big companies including public sector companies is still being accepted as a normal feature of labour em ployment
There is no security of service to the workmen and their wages are far below than that of the regular workmen of the company
This Court in Standard Vaccum Refining Co of India Ltd vs Its Workmen  and Catering Cleaners of Southern Railway vs Union of India  Anr  has disapproved the system of contract labour holding it to be archaic  primitive  and of baneful nature 
The system which is nothing but an im proved version of bonded labour is sought to be abolished by the Act
The Act is an important piece of social legisla tion for the welfare of labourers and has to be liberally construed
It is not denied that the bricks handled by the Brick De partment are used in furnaces of the company as refractory
Therefore the work done by the Brick Department including loading and unloading of bricks is incidental to the indus try carried on by the company
It is also not denied that the petitioners are employed as contract labour by the company for the last 1520 years
Then where is the justifi cation to treat the petitioners differently and deny them the right of regular appointment We may examine the case from another aspect
The peti tioners have specifically averred in paras 7 and 11 of the writ petition that the job of loading and unloading of bricks is allied and incidental to the job of stacking of bricks
Para 7 is as under It is submitted that loading and unloading of bricks from wagons and trucks is an essential feature of andor a job allied andor incidental to the job of stacking of bricks
It is further submitted that the job of loading and unload ing of bricks from wagons and trucks cannot be separated from the job of stacking and other allied jobs in the case of the petitioners
 187 Further para 11 is as under It may be stated here thatstacking as such was never the job of contract labour
The job of stacking and the job of loading and unload ing of bricks are job ancillary including andor supplemented to each other
It may be made clear that the job of stacking andor loading and unloading of bricks has to be done by competent and technical hands
The bricks used in the furnace are a very costly and technical material requiring perfect dimen sions and precision These bricks are also imported from outside India
Such bricks are manufactured indigenously too but depending upon the consumption and demand the bricks arc purchased locally andor imported from outside India
Such a costly material has to be handled by skilled workmen
The job of loading and unloading of such bricks their stacking is done by skilled workmen and this work cannot be done by casual labour which may be engaged disengaged as contract labour depending upon the sweet will of the manage ment
It is submitted that loading and unload ing and stacking of bricks are jobs which are supplementary to each other carried out by the same set of workmen and is essential for the day to day production
The petitioners submit that it is not possible to engage one set of workmen for stacking and another set of work men for loading and unloading of bricks
 In the counter affidavit on behalf of the company filed by its Dy
Chief Personnel Manager there is no specific denial to the above averments
Though it has been stated that the petitioners are not doing the job of stacking the bricks there is no denial nor any averment or material on the record to show that the job of loading and unloading of bricks is not incidental or allied to the stacking of the bricks
Even otherwise we fail to understand how the stack ing of bricks is a job which is not incidental to loading and unloading
The purchase of bricks transportation to the factory unloading stacking and use in the furnace are the jobs in one continuing process and it is difficult to accept that these jobs are not incidental or allied to each other
That being so all the workmen performing these jobs are to be treated alike
On the same reasoning it cannot be said that the loader s job is not and other jobs in the Brick Department are of perennial nature
In any case there is no material or basis to show that the job of loading and un loading of bricks is not of perennial nature
188 We therefore see no justification for excluding the job of loading and unloading of bricks from wagons and trucks from the purview of the notification dated February 9 1980
We allow the writ petition and strike down the words except loading and unloading of bricks from wagons and trucks in paragraph 9 of the said notification issued by Government of West Bengal being discriminatory and as such violative of Article 14 of the Constitution of India
We direct that the petitioners and other workers doing the job of loading and unloading of bricks from wagons and trucks in the Brick Deptt
be treated at par with effect from the date of nonfication with those who are doing the job of cleaning and stacking m the said department
It is further directed that the workmen doing the job of loading and unloading who have been retrenched during the pendency of the writ petition be put back into service with all back wages and consequential benefits
There shall be no order as to costs
PSS Petition allowed


Summary:
In a group of cases filed in this Court in connection with recruitment to the posts of Assistant District Attor neys by the State Public Service Commission
The Respondent State had undertaken that if any post was to be filled up within one year candidates who were selected by the Public Service Commission but had not been appointed would be appointed in the order of merit
However the petitioner who was selected by the Public Service Commis sion and assigned 39th position in the order of merit was not given the appointment and a fresh notification was issued by the Public Service Commission for selecting candi dates for 27 posts
Therefore the petitioner filed a writ petition in this Court alleging that the respondents had arbitrarily and illegally denied him his right to appoint ment to the posts
The respondent State contended that since only 37 posts were earmarked for general candidates and no vacancy had arisen before the expiry of one year the petitioner could not be appointed as per the undertaking given by the State
Disposing of the Writ Petition this Court HELD When this Court had given the direction on the undertaking given by the State that selected candidates would be appointed in vacancies that would arise within one year it was expected that the State Government would comply with the spirit and substance of the direction and not to avoid compliance on the technical plea of expiry of the one year period
The Court would not permit the State to avoid implementation of the order made by it on any technical or unjustified stand
192E F It is incredible to believe that within one year even one vacancy had not arisen when 27 posts were subsequently notified for direct 190 recruitment
It would be obvious and it is common knowl edge that vacancies keep arising as and when the incumbents of such posts either retire or resign or new posts are created
On the fact situation arising out of the record of the proceeding it has to be concluded that some of these 27 vacancies did arise within the one year period set by this Court but the State Government delayed action to allow the year to run out and to free itself from the purview of the direction
192C D F The petitioner therefore became entitled to be consid ered for appointment to the post of Assistant District Attorney and given appointment in accordance with the rules
The respondents would accordingly appoint the petitioner against one of the posts subject to physical fitness
192G