IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.27517 of 2009 and M.P.No.1 of 2009 and 1 of 2010 1.C.Kamaraj 2.K.Appandairajan 3.I.Arulmozhi Varman 4.T.Victor Raj 5.S.Rajasekar .. Petitioners Vs. 1.Government of India, rep by its Secretary, Ministry of Labour, Shram Mantralaya, New Delhi. 2.Assistant Labour Commissioner (C)-II, O/o Deputy Chief Labour Commissioner (Central), No.26,Haddows Road, Shastri Bhavan, Chennai-600 006. 3.Airport Authority of India, rep by its Airport Director, Chennai Airport, Meenambakkam, Chennai-600 027. 4.M/s.Lakshmi Electrical Enterprises, No.1-C, CLC Works Road, New Colony, Chrompet, Chennai-600 044. 5.R.Devendran, Proprietor, R.D.Electricals & Engineering Works, No.20,Nehru Street, Ullagaram, Nanganallur, Chennai-600 061. .. Respondents This writ petition is preferred under Article 226 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India praying for the issue of a writ of mandamus to forbear the third and fourth respondents from altering the service condition of the employees whose names are given in the annexure to this affidavit filed in support of the writ petition in any manner including discontinuance of service without getting permission under Section 33 of the Industrial Disputes Act, 1947, in the Industrial Dispute raised by the petitioners which is pending conciliation before the second respondent as Dispute No.M.8/8/2009-B3 regarding the regularization of the 18 employees who are working as Fire Pump Operators in the third respondent and further to direct the second respondent to conciliate and effect settlement and if no settlement is forthcoming to submit the failure report under Section 12(4) of the Industrial Disputes Act and in turn direct the 1st respondent to refer the dispute for adjudication before the competent industrial adjudicator and award costs. For Petitioners : Mr.Balan Haridas For Respondents : Mr.S.Sabari Perumal for RR1 and 2 Mr.R.Parthiban for R-3 - - - - ORDER These five petitioners have filed the present writ petition seeking to forbear the third and fourth respondents,i.e., Airport Authority of India and M/s.Lakshmi Electrical Enterprises from altering the service conditions of the employees whose names are given in the annexure to the affidavit filed in support of the writ petition in any manner including discontinuance of service without getting prior permission under Section 33 of the Industrial Disputes Act from the conciliation officer, before whom a dispute is pending regarding regularization of services of 18 employees who are working as Fire Pump Operators in the third respondent Airport Authority of India and for further direction to the second respondent Conciliation Officer to effect settlement and if no settlement is forthcoming, to submit a failure report under Section 12(4) of the I.D. Act to the first respondent, who in turn to refer the dispute for adjudication before the competent industrial forum. 2.In the writ petition, notice of motion was ordered on 30.12.2009. Pending notice of motion, an order of status quo was granted. Subsequently, the writ petition was admitted on 08.11.2010. Aggrieved by the order of status quo, the third respondent Airport Authority of India has filed a vacate status quo petition in M.P.No.1 of 2010 together with supporting counter affidavit, dated 22.4.2010. 3.While the petitioners claimed that they were appointed as Fire Pump Operators and they are entitled for absorption in the https://hcservices.ecourts.gov.in/hcservices/ Airport Authority, the contention of the third respondent was that they are employed through a contractor, i.e., M/s.Lakshmi Electrical Enterprises, the fourth respondent and they do not have any control or supervision over the performance of the petitioners. The contract for maintenance of Fire Pump House had expired on 31.7.2009 and it was extended from time to time. Due to modernization of Airport, the maintenance of Fire Pump House has been reduced. The allegation that there was violation of Section 33 of the ID Act was stoutly denied. But it is admitted that the conciliation proceedings was pending. 4.They have also filed an additional counter affidavit contending that the Fire Hydrant Pumps have been demolished and the Fire Hydrant lines were disturbed and that with modern equipments, it can be effected through remote operations. 5.An additional reply was filed by the petitioners contending that the Fire Hydrant Pumps have been demolished or fire hydrant lines were disturbed were not correct. Even till date, they have issued tender for Fire Hydrant and Sprinkler System, which works have been done by the petitioners. There are permanent vacancies for the post of Fire Pump Operators. The contract in which they were engaged is mere sham and nominal. 6.However, when the matter came up today, Mr.Balan Haridas, the learned counsel for the petitioner submitted that the second respondent Conciliation Officer by his failure report dated 20.12.2010 concluded the conciliation and sent a report under Section 12(4) to the first respondent Union of India. It is for the Central Government to refer the dispute for adjudication. Therefore, a direction may be issued to the first respondent and till such time, the order of status quo may be directed to be maintained as they have been enjoying the order for the last two years. 7.While Mr.R.Parthiban, learned counsel appearing for the third respondent Airport Authority has no objection in directing the Central Government to take a decision, but he had stated that no positive direction can be given and there cannot be any order of status quo in such matter. He placed heave reliance upon a judgment of the Supreme Court in Rashtriya Chemicals & Fertilizers Ltd. v. General Employees' Assn., reported in (2007) 5 SCC 273. A reading of the said judgment does not show the Supreme Court laid down any law relating to such issue and the observation made was relating to peculiar facts involved in that case as can be seen from paragraph 11 of the said judgment, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ 11.As rightly contended by learned counsel for the appellants once Respondent 1 Association approached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short “the Act”) applied, it presupposes existence of a valid contract. What the writ petitioner (Respondent 1 herein) wanted was quashment of notification for reconsideration. In view of what has been stated in Second SAIL case6 the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, the High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left Respondent 1 Association to avail remedy available in the ID Act. 8.But, on the contrary, a reading of paragraphs 8 and 9 of the same judgment will clearly show that such directions are permissible in a given case. The following passages found in paragraphs 8 and 9 can be usefully reproduced below: 8.It is now well settled that the High Courts will not straightaway direct the appropriate Government to refer the dispute. It is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the dispute. We may refer to the following observations of this Court in Steel Authority of India Ltd. v. Union of India6 (Second SAIL case, CLR p. 667, para 18) “For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a https://hcservices.ecourts.gov.in/hcservices/ Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. We would, however, hasten to add that this judgment shall not come in the way of the appropriate Government to apply its mind for the purpose of issuance of a notification under Section 10 of the 1970 Act.” 9.The exception to the above is, when the court finds that the appropriate Government refuses (sic refusal) to make a reference of a dispute, is unjustified. In such circumstances, the court may direct the Government to make a reference (Sankari Cement Alai Thozhilalar Munnetra Sangam v. Govt. of T.N.7, V. Veerarajan v. Govt. of T.N.8 and TELCO Convoy Driver's Mazdoor Sangh v. State of Bihar9.) 9.The Supreme Court in Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh reported in (2002) 4 SCC 609 held that absorption of contract labours cannot be automatic and the court cannot give any direction and that the parties must work out their rights in terms of paragraph 125 of the judgment in SAIL's case reported in (2001) 7 SCC 1 (Steel Authority of India Ltd. v. National Union Waterfront Workers) and the Supreme Court had given an option for the workers to go under the Contract Labour Act in case the contract is valid, for its abolition and where it is contended that the contract is sham and nominal to raise a dispute. Therefore, the option pointed out by the Supreme Court cannot be scuttled by any technical argument. The court has got power to grant such direction. While granting direction to appropriate Government for considering reference, the Supreme Court also directed status quo to be maintained for a period of six months. In paragraphs 28 and 29, it was observed as follows: “28.As laid down in the Constitution Bench judgment, absorption of contract labourers cannot be automatic and it is not for the court to give such direction. Appropriate course to be adopted is as indicated in para 125 of the said judgment in this regard. Thus having considered all aspects, we are of the view that the impugned judgment and https://hcservices.ecourts.gov.in/hcservices/ order cannot be upheld. 29.In the result, for the reasons stated and discussion made above, the impugned judgment and order are set aside leaving it open to the Union to seek remedies available in terms of para 125 of the judgment of the Constitution Bench in SAIL5 aforementioned before the State Government or the industrial adjudicator, as the case may be. In case, the Union moves the appropriate government or the industrial adjudicator within four weeks from today, they shall consider the same and pass appropriate orders within a period of six months. The order to maintain status quo regarding the employment of the contract labourers to the extent indicated, was passed in the writ petition on 20-4-1998 and even after disposal of the writ petition, the High Court stayed the order for a limited period and further, this Court passed order to maintain the status quo on 26-10-1999 which is continuing. In these circumstances, the order of status quo shall continue for a period of six months. We also make it clear that this order does not prevent the State Government to proceed in accordance with law in the matter of abolition of the contract labour system. The appeal is allowed accordingly in the above terms. No costs.” 10.Further, the Supreme Court vide its judgment in A.P. Foods v. S. Samuel reported in (2006) 5 SCC 469 held that in some cases, the court can give direction to Government to make reference for adjudication and in paragraphs 16 and 17, it was observed as follows: 16.Normally, it is for the State Government to take a decision in the matter of reference when a dispute is raised, the direction as noted above has been given in the circumstances indicated above. 17.In some cases, this Court after noticing that refusal by the appropriate Government to refer the matter for adjudication was prima facie not proper, directed reference instead of directing reconsideration. (See Nirmal Singh v. State of Punjab8, Sankari Cement Alai Thozhilalar Munnetra Sangam v. Govt. of T.N.9, V. Veerarajan v. Govt. of T.N.10 and Sharad Kumar v. Govt. of NCT of Delhi11.) 11.Considering the over all facts and circumstances of the case, this court is inclined to give a direction to the first respondent to refer the dispute covered by the failure report sent by the second respondent in No.M.8/27/2009-B3, dated 20.12.2010 pending with the first respondent to the CGIT-cum-labour court at Chennai-6 within a period of four weeks from the date of receipt of copy of https://hcservices.ecourts.gov.in/hcservices/ this order. Pending taking decision and making an order of reference, status quo shall be maintained for a period of six months as per the decision of the Supreme Court cited above and thereafter, the parties are at liberty to make an appropriate application before the Tribunal under which a reference will be issued. The writ petition will stand disposed of with the above direction and to an extent indicated above. No costs. Consequently connected miscellaneous petitions stand closed. -Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk To 1.The Secretary, Government of India, Ministry of Labour, Shram Mantralaya, New Delhi. 2.Assistant Labour Commissioner (C)-II, O/o Deputy Chief Labour Commissioner (Central), No.26,Haddows Road, Shastri Bhavan, Chennai-600 006. 3. Airport Authority of India, rep by its Airport Director, Chennai Airport, Meenambakkam, Chennai-600 027. + 1 C.C. to MR.R.PARTHIBAN Advocate SR.NO.61856 ORDER IN W.P.NO.27517 of 2009 CO [ RK ] VS 09.11.2011 https://hcservices.ecourts.gov.in/hcservices/