1 WP.123/2009 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 123 OF 2009 Airports Authority of India, Mumbai ...Petitioner Vs. Indian Airport Kamgar Union & Ors. ...Respondents Mr. Shamrao S. Patil with Mr. A.S. Patil, Advocates for Petitioner Mr. Anand Grover with Ms. Jane Cox, Advocates for Respondent Nos.4 to 6 Mr. Girish S. Kulkarni with Mr. Kiran Kandpile for Respondent No.3 CORAM : SMT. ROSHAN DALVI, J. Date of reserving the order: 7TH JULY 2010 Date of pronouncing the order: 10TH AUGUST, 2010 ORDER : 1. The Petitioner is the Airport Authority of India. The Respondent No.1 is its Union. There has been a protractive lis between the parties. A circular was issued by the Government of India, Ministry of Labour, New Delhi deciding not to prohibit the contract labour under the Contract Labour (Regulation and Abolition) Act, 1970 (C.L. Act) on 16th November 1999. This led to its challenge by the Respondent No.1. 2. In an earlier Writ Petition an order came to be passed by consent of the 2 WP.123/2009 parties that Central Government was the appropriate Government with regard to any reference for labour disputes between the parties. The relevant part of the order of the Division Bench of this Court in Writ Petition No.78/2000 runs thus:- “ We are satisfied that following order shall meet the ends of justice:- 1. The appropriate Government, i.e., the Central Government (as agreed to by both the learned counsel) is directed to make a Reference of the following demands to the Industrial Tribunal for adjudication within two months from today:- (i) Whether the contract between Airport Authority of India and the respondents contractors, is a sham and bogus and is a camouflage to deprive the workers concerned in the petition of benefits available to permanent workmen of Airport Authority of India ? (ii) Whether the workers concerned in the petition should be declared as permanent workers of Airport Authority of India ? (iii) What are the wages and consequential benefits to be paid to the workers concerned in the petition ? 2. The petitioners shall apply to the concerned Industrial Tribunal for interim relief within a period of four weeks from the date of notice of Reference till the application for interim relief is decided by the Industrial Tribunal and for a period of four weeks thereafter, respondents are directed to abide by the interim relief granted by this Court, if any. It will be open to respondents to change the contractor but the new contractor shall engage the same workers subject to the order of the Industrial Tribunal. 3. All contentions of parties are kept open to be agitated before the Industrial Tribunal. (underlining supplied) 3 WP.123/2009 4. The Industrial Tribunal is expected to hear and decide the Reference expeditiously. 5. Rule is disposed of accordingly. 6. No costs.” Consequently, a reference was to be filed by the Central Government and had to be considered by the appropriate authority. All the contentions of all the parties were kept open. 3. Reference was made essentially upon the contention that the contract labour was sham, bogus and a camouflage. Its maintainability was challenged. Both aspects have been decided. The Petitioner has challenged its maintainability as well as the impugned Award on merits in this Writ Petition. 4. Mr. Patil on behalf of the Petitioner contends that the individual contract labourers, who were specifically allowed to be contracted in the establishment of the Petitioner under the aforesaid order dated 16th December 2002 could not maintain their respective references because an industrial dispute as defined under Section 2 (k) of the Industrial Disputes Act (I.D. Act) can be brought by only workmen defined under Section 2(s) of the I.D. Act. Contract labourers are not the workmen of the Petitioner though claimed and described as such. They cannot make a reference. The union can make a reference only on behalf of the workmen of the 4 WP.123/2009 Petitioner and not contract labourers. Their case is to be espoused by requisite number of workmen of Respondent No.1 workmen. Nothing of this is done and hence the reference is not maintainable. 5. Mr. Grover on behalf of the Respondents contended that the maintainability of the reference was not in issue since the parties by consent agreed to refer the dispute to the appropriate authority and hence that aspect need not be considered in this Writ Petition. The relevant part of the aforesaid order of the Division Bench of this Court shows that the parties consented only to the extent that the Central Government was the appropriate Government. Since all the contentions were left open the Petitioner cannot be taken to have consented to the reference on behalf of the contract labourers whose case is stated not to have been espoused by the workmen of the Petitioner. The dispute in Reference (CGIT-1) No.14 of 2003 is between the Petitioner and “their workmen” represented by the Respondent No.1. Whether these were the workmen of the Petitioner and whether they were entitled to be represented by the union of the Petitioner or whether they had to maintain their lis either as contract labourers or as workmen would have to be seen. Hence, the Petitioner’s contentions on maintainability shall have to be considered as per the law which is shown to Court. 6. In the case between Workmen of Dimakuchi Tea Estate (Assam Chah Karmachari Sangh) Vs. Dimakuchi Tea Estate 1958 I LLJ S.C (513) of the Apex Court the question of who is a workman itself came up for 5 WP.123/2009 consideration. By the majority judgment rendered by Justice S.K. Das it was held that the word “any person” in the definition of industrial dispute under Section 2(k) of the I.D. Act, 1947 cannot mean “anybody and everybody in this wide world”. Considering the three aspects to which the dispute must relate, it was observed that the person in respect of whom the employer – employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employer and workmen. It was further observed that the definition clause must be read in the context of the subject matter and scheme of the Act and consistently with the objects and other provisions of the Act. Quoting from Maxwell, Interpretation of Statutes, 9 th Edition, page 55 it was observed that the words must harmonize with the subject as well as of the object of the enactment the legislature had in view. Considering this by setting out the preamble and the purport of the various chapters of the Act the salient provisions of the Act came to be enunciated which inter alia was shown to include collective bargaining. For conceptualising the definition of any person in the definition clause, 4 limitations were set out which inter alia show that the workmen must have a nexus with the dispute either because they were personally interested or because they had taken up the cause of another person in the general interest of labour welfare. Consequently, the workers were held not vitally interested by the reason that they belonged to the trade union in which one of its members’ dismissal was in question which became a matter of general interest to all the workmen in the establishment. Upon examining the definition clause in the light of the limitation set out in the judgment for considering whether a person was a 6 WP.123/2009 workman, it was inter alia observed that the parties to the dispute must be directly or substantially interested therein. It was further observed: “The Act avowedly gives a restricted meaning to the word “workman” and almost all the provisions of the Act are intended to confer benefits on that class of persons who generally answer to the description of workmen. The expression “any person” in the definition clause means, in our opinion, a person in whose employment or non-employment, or terms of employment, or conditions of labour the workmen as a class have a direct or substantial interest – with whom they have, under the scheme of the Act, a community of interest. Our reason for so holding is not merely that the Act makes a distinction between workmen and non-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, non-employment, terms of employment or conditions of labour of persons who belong to the supervisory staff and are, under provisions of the Act, non-workmen on whom the Act has conferred no benefit, who cannot by themselves be parties to an industrial dispute and for whose representation the Act makes no particular provision ? We venture to think that the answer must be in the negative.” 7. In the case of State of Punjab Vs. The Gondhara Transport Co. (P) Ltd. 1975 LAB.I.C. 358 = AIR 1975 S.C. 531 again the definition of industrial dispute came up for consideration. That was a case of dismissal of employees. Out of 60 workmen 18 had sponsored the cause of dismissed workmen. The dispute, therefore, was espoused by only 1/12 of the workmen actually employed in the Company. Out of those 18, 13 were the dismissed workmen themselves. Their cause was, therefore, espoused 7 WP.123/2009 by only 5 other workmen. The proportion of 5/60 (i.e. 1/12) was held not a substantial body of workmen to agitate the industrial dispute. The workmen may apply for their own cause. They may raise an industrial dispute. If the persons raising the dispute are stated not to be the workmen their case cannot be stated to have been espoused and their dispute, therefore, cannot be taken to be an industrial dispute. In that case the State Government was observed to have been induced to make a reference which was earlier refused to be made. The Company raised the preliminary objection that there was no industrial dispute under Section 2(k) of the I.D Act. Seeing that the cause of the workmen was not espoused by the substantial body of the workmen by merely filing the dispute by the dismissed employees themselves and only 5 other workmen and distinguishing that cause from the cause of Rohtak General Transport Co. (1962) 1 Lab LJ 634 (SC) in which the cause was taken up by the union upon a resolution passed by the employees of the Company supporting the cause of dismissed workmen, it was held that that cause was not of an industrial dispute in which the cause was “espoused”. 8. In the case between K.K. Thilakan & Ors. Vs. FACT Ltd. & Anr. 1992 II LLJ 782 the disputants were not the workmen of the Company; they were stated to be contract workers. They sought employment with the Company. They wanted to be absorbed in the Company. They were employed by a Contractor. Such employment can only be of persons who were outside the establishment. Upon the admitted case that they were contract workers it 8 WP.123/2009 was held that there was no industrial dispute between them and the Company as none could arise unless they were absorbed. Before that could happen they cannot consider the Company as their employer and cannot treat themselves as its workmen. When the jurisdiction to entertain the dispute was challenged it was held that there could not have been any reference for any industrial dispute. It was held that there could be no industrial dispute between the employer and between the persons “seeking” employment. That was an admitted case of contract labourers. The contract was not challenged. Hence the workers were admittedly the workers of the Contractor, but sought employment by absorption in the Company. 9. In the case of Gujarat Electricity Board Ukai Vs. Hind Mazdoor Sabha AIR 1995 SC 1893 the concept of contract labour came to be considered for the purpose of abolishing the contract labour under Section 10 of the C.L.Act. Whether or not there was a genuine contract was first to be determined. If, as in the case of FACT Ltd. (supra), it was admitted that there was a genuine contract of Contract Labour, Section 10 of the C.L. Act requiring the abolition of the contract labour would come into play. That can be abolished by the appropriate Government and not by the Court. However, if there was no genuine contract of contract labour and the so called contract was a sham and camouflage, the provisions of C. L. Act will be inapplicable. The workmen of such sham Contractor (who would otherwise be workmen actually of the Company), could raise an industrial 9 WP.123/2009 dispute that they should be deemed to be the employees of the principal employer before the Court or the Industrial Adjudicator. To make a grievance that there was no genuine contract under C.L Act and that they were the employees of the principal employer and that they be absorbed by the company and that appropriate service conditions be provided to them etc., such industrial dispute could be raised by the workmen having : 1. a community of interest with contract labour or 2. a substantial interest in the subject matter of the dispute. Such workmen could apply for a declaration that the contract was sham and they were the direct employees of the principal employer. If the contract is held to be sham, the Industrial Adjudicator would have jurisdiction to adjudicate the industrial dispute. If the contract is held to be genuine, he would refer the dispute to the appropriate Government for abolition of contract labour. This he could do, if the dispute was espoused by the direct workmen of the principal employer or by the disputants themselves of the principal employer. 10.Mr. Patil sought to emphasise the fact that the industrial dispute could be raised only by the direct employees or by the direct workmen of the principal employer espousing the cause or the contract labourers. The persons claiming to be the direct employees, but whose status as such direct employees is disputed, cannot sue as direct employees. They are the contract labourers who may be held to be contract labourers under a sham contract. Until that is done since they are not admittedly direct employees, 10 WP.123/2009 they cannot sue themselves. They also cannot be represented by the Union of the principal employer. Their cause would have to be espoused by the other direct workmen of the principal employer. Mr. Patil, therefore, contends that since in this case the cause of persons taken to be contract labourers is not espoused by a substantial number of direct workmen who have a community of interest with such contract labourers or a substantial interest in the subject matter of the dispute of the contract labourers the reference made would be invalid and the complaint is not maintainable. 11.In the case of Air India Statutory Corporation ETC Vs. United Labour Union & Ors. 1997 1 CLR 292 the case of Gujarat Electricity Board and its aftermath was analysed and lamented. The remedy carved out in Gujarat Electricity Board was observed to be beset with several incongruities and obstacles in the way of contract labour for immediate absorption. The shortcomings in case of espousal of the cause of contract labourers, which was observed not to have been brought to the notice of the Court in the case of Gujarat Electricity Board, were highlighted. It was observed that the union of the Company may not espouse the cause of the contract labourers. The workmen, on abolition of contract labour system, would have no right to seek a reference under Section 10 of the I.D. Act. The workmen would be kept out of job needlessly awaiting the award and to face delay in enforcement. The management will keep them at bay for absorption. It would be difficult for them to workout their rights. They would be embroiled in a tardy and time consuming process. Years would roll by without wages. They would not be armoured to fight the litigation 11 WP.123/2009 endlessly. Hence, it was observed that though some strides were made in Gujarat Electricity Board (supra) from the completely bleak position enunciated in FACT Ltd. (supra) and Gondhara Transport (supra), it was held that the methodology suggested in Gujarat Electricity Board was unworkable and incorrect in law. It was, therefore, held that once the contract labour was abolished it was the duty of the employer to absorb the workmen in his establishment. They must be declared to be the employees from the effective date. Absorption must, therefore, follow. Setting out the fundamental right, specially the right to life, which included the right to live with dignity, as also the Directive Principles of State Policy enunciated in a chain of judgments, it was held that the absorption followed as a matter of corollary to abolishment of contract labour despite there being no express provision in the C.L. Act. Absorption, it was held, resulted in regularisation of the service as the Contractors so soon as the contract labour stood removed and the direct relationship of employer and employee was created. However, Mr. Patil argued that this would come about only when contract labour is accepted and the appropriate Government abolishes the contract labour upon procedure prescribed by law under Section 10 of the C.L. Act. Since in this case the contract labour is not abolished and specifically allowed under the order dated 16th November 2002, the employers’ duty to absorb the workmen and regularise their services does not come up. The case of the workmen that the contract labour is sham can only be an industrial dispute under Section 2(k) of the I.D. Act, if the permanent 12 WP.123/2009 workmen would support the cause of the workmen who are stated to be contract labourers, but who contend that that position is sham. Mr. Patil contends that since the persons claiming to be workmen and not contract labourers are not admittedly workmen they must prove first that they are workmen. This they can do only by proving the contract labour to be sham. Before they can prove that they are workmen they cannot be taken to be workmen. Hence, they cannot maintain an industrial dispute themselves directly by making an application in that behalf themselves. They cannot themselves show that they are personally interested in the dispute as workmen because they are not admitted to be workmen or proved to be workmen. Therefore, their case must necessarily be taken up by other workmen. These can be workmen having a nexus with their dispute and having a community of interest or a substantial interest in their dispute. That can only be, if they are represented by a union. The union of the employer cannot represent them because they are not the workmen of the employer and consequently, not members of such union. The other workers can have no nexus with their dispute. Their dispute is personal only to them. It is for them to show that the contract labour is sham and that they are actually workers or for them to accept the contract labour for whatever it is worth and exercise in the direction of getting it abolished by following the procedure established by law under Section 10 of the C.L. Act, which procedure is already followed. 12.Consequently, though it is observed in Air India (supra) that Gujarat 13 WP.123/2009 Electricity Board “only softened the rough edges” and the case of Dinanath was set aside as a narrow and pedantic view, any which way this nebulous position is seen, if the analogy of Mr. Patil is to be accepted, the dispute of such workmen cannot be agitated as is sought to be done. Much as they may contend that they are workmen, they are, on the date of the application, not indisputably workmen. They must, therefore, get their status and position made clear. Only as and when the contract labour is shown to be sham and they stand in the position of workmen, can they be declared to be workmen and then alone they would be able to agitate the right of absorption or the right of regularisation in the company. But until they are workmen they cannot maintain an action as workmen personally interested in the dispute. Similarly their action cannot be maintained by other workmen and the company because they have no nexus with the dispute, they are not directly or substantially interested in the dispute and they consequently have no community interest. The dichotomous position of the workmen set out in Air India (supra) would, therefore, remain at that in case of persons claiming to be workmen, but taken to be contract labourers. 13.Hence Mr. Patil contends that the reference could, therefore, only have been made in the case of the applicants not by the applicants themselves, but by such number of regular workers supporting them who would have nexus with the dispute and who would demonstrate a substantial interest in their dispute to make it an industrial dispute showing community of interest under the class action brought by them. 14 WP.123/2009 14.It was contended by Mr. Grover on behalf of Respondent No.1 that the entire nebulous, anomalous situation was brought to rest by the Apex Court in the case of Steel Authority of India Ltd. & Ors. Vs. National Union Water Front Workers & Ors. 2001 III CLR 349 (SAIL) in which the Court had to concern itself with the issuance of prohibition notification under Section 10(1) of the C.L. Act. Upon such a notification, it was observed, in paragraph 121(5) at page 386 of the judgment in conclusion that in an industrial dispute brought before it by any contract labourer in regard to his conditions of service the industrial adjudicator would have to consider the question whether the contract was genuine or sham. If it is found to be sham the contract labourers would be treated as the employees of the principal employer, who shall be directed to regularise their service in the concerned establishment as held in the case of Air India (supra). It may be at once stated that the expression used by the Apex Court in paragraph 121(5) is with regard to the industrial dispute “brought before it by any contract labourer in regard to conditions of service”. A person can bring his own dispute before the competent Court. What was contemplated was the industrial dispute brought before the Industrial Adjudicator “by any contract labour”. 15.Mr. Patil would however contend that there is a distinction between a “dispute brought” and a “dispute raised”. The expression “brought”, he contends, is the action in law brought by regular workers supporting those contract labourers to make it a collective dispute as a class action with 15 WP.123/2009 community of interest which is an essential of an industrial dispute under Section 2(k) of the I.D. Act held since the case of Dimakuchi Tea Estate in 1958 (supra). An action raised, he contends, would be the action raised by the applicant making the reference himself. Hence for a reference to be made the support of the regular workers who have a substantial interest in the dispute would be a condition precedent and since the applicants are not workmen themselves, they cannot raise an industrial dispute themselves. 16.The plain English Dictionary meaning of the two words “brought” and “raised” must, therefore, also be considered. Whereas the word “brought” in Concise Oxford English Dictionary, XI Edition at page 178 is shown as “past and past participle of bring” and the word “bring” at page 174 inter alia shows “initiate (legal action)”, the word “raise” does not show any act with regard to legal action. The term “raise” in Black’s Law Dictionary Eighth Edition at page 1287 refers to raising an issue in a pleading, but not raising an action in law. 17.There is, therefore, no distinction, in the two expressions “action brought” and “action raised”