THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.9483 of 2005 ORDER: This writ petition is filed seeking a Mandamus declaring the Order No.L-30011/39/2004-IR(M) dated 25.6.2004 of the Government of India, Ministry of Labour, New Delhi, first respondent herein as arbitrary and illegal and the consequential I.D.No.91 of 2004 on the file of the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad, second respondent herein, as not maintainable. Petitioner is Oil and Natural Gas Corporation Limited located at Rajahmundry. First respondent is Government of India, represented by its Secretary, Ministry of Labour, Shramshakti Bhavan, New Delhi. The short question that arises for consideration in this writ petition is whether the Central Government was right in referring the dispute to the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad for adjudication of the following issue, in the peculiar facts and circumstances of the case. “Whether M/s Oil & Natural Gas Corporation Ltd., Krishna- Godavari Basin is the actual employer in respect of the workmen S/Shri B.Balakrishna Reddy & 110 others (As per List)? If yes, whether the action of the said management in terminating their services w.e.f. 30.6.1997 is legal and/or justified? If not, to what relief the concerned workmen are entitled?” BRIEF HISTORY: It appears, the Godavari Industrial Workers Maintenance Service Cooperative Society, represented by its President, of which the third respondent and others were the members of the society, had filed Writ Petition No.12190 of 1997, seeking a Writ of Mandamus, declaring that all its members purported to have been employed on contract basis are regular employees of ONGC and in any event the management of ONGC cannot unilaterally terminate the contract at their will and pleasure and deprive livelihood of its members without any rhyme or reason. While dismissing the said writ petition by an order dated 22.6.2000, this Court held as under: “The W.P. is filed seeking writ of mandamus declaring that all the employees purported to have been employed on contract basis are regular employees of ONGC and ONGC cannot unilaterally terminate the contract and for consequential directions. Petitioner is the Industrial Workers Maintenance Service Cooperative Society. It is the case of the petitioner that an agreement was entered between ONGC and the petitioner for supply of contract labour in various categories such as round the clock security services and fire prevention/fighting at all the operational areas of K.G. Project. The period of agreement was being extended from time to time. But, however, in respect of the security services which had expired on 31.3.1997 was extended upto 30.6.1997 and thereafter it was not extended. Aggrieved by the termination of the contract, the present Writ Petition has been filed and ancillary relief was also sought for to the effect that the Workmen working as contract labour through the media of the petitioner cooperative society should be absorbed in appropriate posts in the ONGC. It is the case of the petitioners that the workmen employed by the petitioner cooperative society fall within the definition of contract labour under the provisions of the Contract Labour (Regulation and Abolition) Act (hereinafter called as ‘Act’) and the contract labour was engaged in prohibited area. The Central Government issued notification in 1997 prohibiting the engagement of contract labour in various categories including fire fighting section. Therefore, the Workmen have to be treated as if they are the employees of the ONGC. That the termination of the contract labour has resulted in the deprivation of the livelihood of the petitioners who are working as contract labour under the petitioner society. It is also stated that when the Assistant Commissioner of Labour (Central) visited the establishment of ONGC at K.G. Project he recorded the finding that the contract labour was engaged in prohibited areas. Therefore, in effect, the petitioners are seeking absorption in the service of the ONGC. The learned senior counsel for ONGC submits that the question of absorption of the workmen engaged by the petitioner society would not arise inasmuch as the notification prohibiting engagement of the contract labour did not apply to the categories under the prohibited employment. Moreover, it is not the case where the contract was terminated on account of notification having been issued under Section 10 of Contract Labour Abolition Act. It is the termination of agreement that took place under the terms and conditions of contract. Once the contract period was over, the contract gets terminated and therefore, the reference to Contract Labour Act is wholly irrelevant and accordingly, the Writ Petition has to be dismissed in limine. The learned counsel further submits that in pursuance of the directions issued by the Central Government, the security services has been entrusted to the ex-servicemen cooperative society who are manning the relevant points which was hitherto performed by the petitioner cooperative society. The question that calls for consideration is whether the petitioners are entitled for the relief as claimed for? It is not in dispute that in pursuance of the agreement entered into between the petitioner and the ONGC, the workmen force was supplied at various places. On expiry of the time stipulated in the contract, the contract came to an end. But the contract was extended upto 30.6.1997, therefore, on termination of the contract the petitioner society has to withdraw from engaging the labour in the places mentioned in the contract. But can’t it be said that it gives rise to the persons engaged by the petitioner society for absorption in the ONGC services. It is no doubt true that the apex Court laid down the principles that when a notification under Section 10 of the Act (Contract Labour Abolition Act) is issued prohibiting engagement of contract labour, the contract labour affected by virtue of the notification is required to be considered for absorption. But, in the instant case, such situation would not arise inasmuch as the contract was neither terminated nor the contract labour was disengaged on account of the notification having been issued under Section 10. Therefore, the decision of the Supreme Court do not come to the aid of the petitioner society. But, however, the learned counsel contend that the very engagement of the employees supplied by the petitioner society in the prohibited categories is contrary to the notification issued by the Central Government in 1994. Therefore, they should be treated as if they are employees of the ONGC. I am afraid I cannot accept this contention also. It is for the contract labour who could have agitated the matter when they were continued in the employment during 1994 to 1997, no such action was initiated by them, hence I have to reject the contention. The learned counsel, however, relied on the Division Bench judgment of this Court in OIL AND NATURAL GAS TECHNICIANS INDUSTRIAL SERVICE COOPERATIVE SOCIETY LTD. vs. OIL AND NATURAL GAS COMMISSION (W.P.No.15307/89 and batch dated 22.4.1992), wherein the Bench directed the employees to file an application before the Commissioner, who will decide the matter under Rule 25 of the Contract Labour Abolition Act. Rule 25 is not relevant. It relates to payment of salary on par with the regular employees. Here we are concerned with the absorption on the ground that the Government has prohibited the engagement of the contract labour. Therefore, the decision of the Division Bench is of no avail to the petitioner society. Under these circumstances, I am of the view that the petitioners are not entitled for the relief as prayed for. Accordingly the writ petition is dismissed. However, I leave it open to the concerned employees to take recourse to the appropriate forum, if they so chooses”. After disposal of the above writ petition, the individual employees (173) have filed claim petitions under Section 2-A(2) of the Industrial Disputes Act, 1947 before the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad. Those claim petitions were challenged by the ONGC before this Court in Writ Petition No.21925 of 2001 and batch on the ground that the respondents therein cannot maintain petition under Section 2-A(2) of the I.D. Act. The said batch of writ petitions filed by ONGC were allowed by this Court vide common order dated 21.1.2003, which reads as under: “From the above observation, it is evident that if the High Court is satisfied that proceedings before an inferior Court or Tribunal are not maintainable either on the grounds of fact or law, it can certainly interdict the Court or Tribunal from proceeding with and the party complaining of the same need not be compelled to approach that very Tribunal to raise the objection. It was observed that it was not only the right of the High Court, but also its duty to undertake such an exercise. Since it is found that the proceedings before the Industrial Tribunal initiated by the contract labour were not maintainable, this Court finds that the same can be interdicted by issuing Writs of Prohibition. The result is that (a) the proceedings initiated against the petitioner by the contract labour before the 4th respondent under Section 2-A(2) of the I.D. Act were not maintainable; and (b) Writs of Prohibition would issue restraining the 4th respondent from proceeding with the adjudication of the same; and (c) The writ petitions are accordingly allowed with no order as to costs. This, however, does not preclude the adjudication of the rights and entitlement of the contract labour if the same is brought before the 4th respondent in accordance with the procedure under Section 10(1) read with Sec. 2(k) of the I.D. Act”. It appears, by taking inspiration from the above observation made by this Court, the respondents have raised a dispute before the Conciliation Officer under the I.D. Act. On reporting failure of the conciliation, the Central Government referred the above issue for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad, aggrieved by which the present writ petition is filed. Learned senior counsel Sri E.Manohar, appearing for the petitioner, contended that the entire dispute between the parties, has already attained finality in the above writ petitions, and the finding of this Court is that there is no relationship of master and servant/employer and employee between petitioner and respondents. Even according to the respondents and their pleadings in the earlier two rounds of litigation, they were all contract labour engaged by the society. Therefore, the observations made by this Court, in the second batch of writ petitions, filed by ONGC, while allowing the writ petition, was only applicable to the extent of working out their remedies, if any, under Section 10(1) read with Sec.2(k) of the I.D. Act only against the society, in which they were all members and not against the petitioner herein. The litigation between the parties has attained finality. In this regard, the learned senior counsel relied upon the judgment in BHARAT SANCHAR NIGAM LTD. v. TELEPHONE CABLES LTD.[1] and drawn the attention of the Court to paragraphs 19, 20, 21 and 22, which reads as under: “Some collateral issues 19. This case makes it necessary to refer to two areas of concern. The first relates to misuse by litigants, of routine observations made by courts reserving liberty to a litigant to seek further remedy, while disposing the matters, to claim non-existent rights and remedies. Second relates to the unenviable position to which public undertakings are reduced, for lack of freedom and unnecessary litigation. Misuse of liberty reserved for further action 20. In the first writ petition filed by the respondent, the issue was whether the BSNL while evaluating the bidders had committed an error in adjudging NICCO as V-1 (vendor with the highest rating). The assessment of vendor rating (VR) was governed by the following formula : VR = 0.6PR + 0.3DR + 0.1 QR (PR, DR and QR referring to price rating, delivery rating and quality rating). The formula for arriving at PR was simple. QR did not involve any formula. But the formula prescribed to arrive at DR was complicated. The High Court found that the delivery rating (DR) of NICCO was modified by BSNL on a representation by NICCO, which led to NICCO, being adjudged as V-1. The High Court found that the modification of Delivery Rating was not warranted and consequently held that the vendor rating of NICCO was not proper. But it did hold that there was any malafides, bias or arbitrariness in the process of assessment of vendor rating by BSNL. In other words, the rating of NICCO as V-1 was apparently on account of a bonafide error in assessment or wrong understanding of the principles relating to assessment of Vendor Rating. The High Court directed correction of that error. The High Court was also aware that by the time it decided the writ petition, BSNL had completed the process of placing of purchase orders and only a very small quantity remained unallotted (In fact according to BSNL even this quantity had been transferred to next year's tender). Consequently, the High Court while disposing of the first writ petition directed the BSNL to reassess the vendor rating, and if as a result the respondent secured V-1 rating, to allot to it, any unallotted quantity of cables. So far so good. 21. But the High Court did not stop there. It proceeded to observe at the end of the order that after giving effect of balance supply, if the respondent was entitled to further supplies, it will be open to the respondent to pursue its remedies against the appellant for compensation/damages that may be available to it in law. 22. Where the terms of the bid documents barred any claim being made on account of the rejection or non-acceptance of any bid, the bid inviter would not incur any liability to any aggrieved bidder, and the bidder would not have any cause of action in private law. But as the bids were invited by BSNL, which is 'state' for the purpose of Article 12, a writ petition was entertained, when respondent alleged arbitrariness in the process of assigning vendor-rating. In the absence of a finding in regard to arbitrariness, bias or malafides in the decision but only a mere error in assessment, the High Court ought not to have interfered in the tender process. In fact, it did not set aside the contract awarded to NICCO. But the High Court chose to issue a direction for re-assessment of the vendor rating and if respondent was found to have V-1 rating, then place a purchase order for the quantity that remained over after all the purchase orders. This was unobjectionable as a public law remedy. Having done so, there was no justification for the High Court to make any observation regarding compensation, as that was impermissible on the facts and circumstances, either in public law or private law. In fact, it was not based on any prayer. That unwarranted observation while disposing of the first writ petition, though it did not cast any liability on BSNL, was sufficient to persuade the designate of the Chief Justice while exercising jurisdiction under Section 11 of the Act to assume that the High Court in the order dated 29.4.2004 had ordered the respondent to pursue the remedy against the appellant for compensation/damages and therefore, an. arbitrator should be appointed to decide the claim.” The learned senior counsel also relied upon the judgment in HIMMAT SINGH AND OTHERS v. ICI INDIA LTD. AND OTHERS[2], wherein it was held: “Where a definite stand was taken by employees that they had been working under contractors, it would, not lie in their mouth to take a contradictory and inconsistent plea that they were also workmen of principal employer. The workmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication”. The learned senior counsel further on the judgment in MANAGEMENT BURMAH SHELL OIL STORAGE AND DISTRIBUTION CO. OF INDIA LTD., MADRAS v. INDUSTRIAL TRIBUNAL, ANDHRA PRADESH AND OTHERS[3] and drawn the attention of the Court to paragraph 36 of the said judgment, which reads as under: “For the reasons aforesaid, we hold that after the Act came into force, the Government had no jurisdiction to refer a dispute relating to regulation or abolition of contract labour, such as here, under Section 10 of the Industrial Disputes Act to the Industrial Tribunal. Consequently, the Industrial Tribunal also has no jurisdiction to adjudicate upon the dispute referred to it by the Government which admittedly relates to the introduction of contract labour in the depots by the company. We would therefore allow the appeals, set aside the judgment of the learned Judge and allow the writ petitions. The impugned orders of the Industrial Tribunal are quashed by issue of a writ of certiorari. In the circumstances of the case, however, we leave the parties to bear their own costs throughout”. Learned senior counsel further contended that the issue as to relationship of employer and employee between the parties has attained finality having concluded in the earlier two rounds of litigation, therefore such questions cannot be raised again and again before the lower Tribunals, once it is decided by the higher Courts. Whereas the learned counsel for respondents Sri Abhinand Kumar Shavali, strenuously, contended that earlier two rounds of litigation has nothing to do with the present issue. The issue involved in the reference is whether in respect of Balakrishna Reddy and (110) others whether ONGC, is the actual employer, or not. If ONGC is the actual employer, whether the action of the management in terminating their services is legal and justified, if not to what relief. In the first round of litigation in W.P.No. 12190 of 1997, though the writ petition was dismissed, liberty was given to the respondents to pursue their remedies as available under law. Therefore, they have raised a dispute under Section 2-A(2) of the Industrial Disputes Act, 1947 against the petitioner herein alleging illegal termination of their services. Those individual claim petitions filed before the Labour Court were challenged as not maintainable in the second round of litigation. No doubt, while holding that the claims petitions are not maintainable under the Act, since the ONGC is only a principal employer and the respondents are the contract employees supplied by the society, it was observed; “This, however, cannot be construed as saying that the contract labour are without any remedy. It is certainly open to them to raise a dispute as contemplated under Section 2(k) and the matter can be brought before the concerned Labour Court through a reference under Section 10(1) of the I.D. Act. What is found not permissible is treating the individual disputes under Section 2-A as those under Section 2(k) of the I.D. Act”. Under those circumstances, this Court made observation while allowing the second round of writ petitions saying; “This, however, does not preclude the adjudication of the rights and entitlement of the contract labour if the same is brought before the 4th respondent in accordance with the procedure under Section 10(1) read with Sec. 2(k) of the I.D. Act”. Therefore respondents had to raise a dispute before the Conciliation Officer and when the conciliation failed and report submitted to the Central Government, the Central Government referred the matter to the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad for adjudication of the above issue. Therefore, it does not lie in the mouth of the respondents that the Central Government has not exercised its powers properly by considering as to there lies any dispute between the parties or not. Now the dispute is not the relationship of contract employees with principal employer, nor the termination, for which claim petition is maintainable under Section 2- A(2) of the I.D. Act. Now the dispute raised is for the purpose of deciding whether the respondents are the workmen of ONGC and whether the nomenclature of a contract labour is a camouflage and the corporate wheel needs to be lifted and seen as to there was any direct relationship of employer and employee. In this regard, the learned counsel for respondents relied upon the judgment in STEEL AUTHORITY OF INDIA LTD. AND ORS. ETC. ETC. v. NATIONAL UNION WATER FRONT WORKERS AND ORS. ETC. ETC.[4] and drawn the attention of the Court to following: “The upshot of the above discussion is outlined thus: (1)(a) Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression “appropriate Government” as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company ? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government. (b) After the said date in view of the new definition of that expression, the answer, to the question referred to above, has to be found in Clause (a) of Section 2 of the Industrial Disputes Act; if (i) the concerned Central Government company / undertaking or any undertaking is included therein eo nomin, or (ii) any industry is carried on (a) by or under the authority of the Central Government or, (b) by railway company; or (c) by specified controlled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated; will be the appropriate Government. 2(a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government: (1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and (2) having regard to (i) conditions of work and benefits provided for the contract labour in the establishment in question; and (ii) other relevant factors including those mentioned in Sub- section (2) of Section 10 (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 passes or no action taken giving effect to the said Notification on or before the date 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. (3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under Sub-section (1) of S.10 prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment. (4) We overrule the judgment of this Court in Air India’s case (supra) prospectively and declare that any direction issued by any industrial adjudicator/ any Court including High Court, for absorption